Earl of Malmesbury to the Earl of Cowley.
6 My Lord: Your excellency recently requested to be informed how the decisions could be reconciled which had been come to Her Majesty’s government upon two cases of nationality which had been under their consideration.
“The first of the two cases was that of a gentleman named Julien Colonna Walewski, who had claimed from your excellency to be considered a British subject on the ground that his father (a Polish emigrant) had gone to England in 1824, where he had married an English lady, and had resided in England up to the time of his death in 1854, during which period Mr. J. C. Walewski had been born in London. In this case it was the opinion of Her Majesty’s government that M. Walewski, having been born in London, was, under the circumstances, entitled to be considered a British subject in France.
“The second case had been raised with regard to the law of this country on the question of the nationality of children of British subjects born in foreign countries, as bearing upon the general question at issue with regard to compulsory enlistment by the government of Buenos Ayres. The opinion given by Her Majesty’s government upon this case was that all children, of whatever parentage, born in the Queen’s dominions, are British subjects by birth, and are in England entitled to the privileges and liable to the obligations of that status.
“Your excellency pointed out with reference to these two decisions, that it appeared to you that according to the latter it is only in England that foreigners born in England enjoy the rights of British subjects; whereas, according to the former, M. Walewski was to be treated as a British subject in France.
“I have now to inform your excellency that Her Majesty’s government, having carefully considered the difficulty suggested by you, do not see that there exists any contradiction between the two decisions.
“If M. Julien Colonna Walewski had been born in France, (although of British parents,) and had voluntarily returned to France, he would have been a British subject [Page 1337] in England, but he would not have been entitled to British privileges or protection in France as against the country of his actual birth and domicile.
“And this, as it appears to Her Majesty’s government, is precisely the case of the children of British subjects who are born and resident in Buenos Ayres. They are British subjects in England, but this cannot prevent their being considered and treated as Buenos Ayreans in Buenos Ayres; but M. Waleski was born in England, and, as such, is a natural-born subject of Her Majesty, and the circumstance that his father was a Pole cannot disentitle him to British privileges in France.
“It is competent to any country to confer, by general or special legislation, the privileges of nationality upon those who are born out of its own territory, but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable, when actually therein, to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations (as Buenos Ayres) to do the same.
“But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned. The expression, ‘in England,’ found by your excellency in the decision given by Her Majesty’s government in the Buenos Ayres case, referred to the inquiry of Count Walewski, as reported by you, ‘What is the law of England in such matters?’
“I am, &c.,
1 In reply to an inquiry addressed to the foreign office in July, 1859, Lord John Russell stated to M. Julien that, “independently of any disabling clause which they may contain, British letters of naturalization do not give the holders of them any right to British protection in the country of their birth.”
A case occurred in 1861 in which a M. Casaubon claimed protection from the British embassy at Paris to procure his exemption from the conscription on the ground that he was born in the Mauritius.
2 It appeared that his father was a Frenchman, and the French government accordingly claimed Mm as a French subject.3
4 Lord Cowley was instructed to request the French government to state the reasons upon which “M. Casaubon had been subjected to the conscription, notwithstanding his certificate of British nationality, and the fact of his having been born in the Queen’s dominions, and having resided there until he was of age.”
The result of Lord Cowley’s application to the French government was not reported.
5 A question arose in February, 1861, as to the right of a naturalized British subject, Mr. Zwinger, a Swiss by birth, to be married at the British embassy.
6 Lord Cowley was instructed to allow the marriage in question to be solemnized at the British embassy, taking care that the bride was previously informed that Mr. Zwinger may be considered legally as a Swiss citizen, as well as a naturalized British subject; and that the validity of the marriage might be open to doubt in Switzerland, France, and elsewhere out of England, and recommending her to be previously married in the French civil form.7