Her Majesty’s Consul at Cadiz5 having requested instructions in 1841 as-to the claims of the sons of British subjects born in Spain to exemption from the conscription, he was informed that as British law considered all persons born in Great Britain to be British subjects. Her Majesty’s government could not urge the claims of persons born in Spain to British protection as against the laws of that country.
Lord Aberdeen, however, pointed out that by the Spanish constitution of 1837 it was, declared that all persons born in Spain were Spaniards, but when that law was passed it was interpreted by the Spanish government to mean that such persons have the right of being admitted to the privileges of Spanish subjects at their option, and that if it was thereby meant that the children of aliens born in Spain were aliens unless they declared their option of becoming Spaniards, it might be contended that the sons of: British parents so situated, who had not made such a declaration, remained British subjects, and, as such, exempt from conscription.
By article 24 of the Royal Decree6 of 17th November, 1852, it was provided that persons domiciled or traveling in Spain, as well as their sons, who had not chosen Spanish nationality, should be exempt from military service, with the exception of those whose parents were born in Spanish territory.
In 1856 a question arose as to the interpretation of this law, and certain persons, grandsons of native British subjects, claimed exemption in the face of it.
The case was referred to Lord Clarendon, who decided that the claim was inadmissible.
In 1861, however, it appeared that Her Majesty’s consuls in Spain still continued to claim to protect the grandsons of British subjects from military service, and Lord Russell 7 then gave instructions that they should desist from doing so.
Further correspondence passed between Sir J. Crampton and Lord Russell 8 on this subject in 1862, and the following dispatch was addressed to Sir J. Crampton (July 9, 1862):
“I have to state to you that with regard to the general question I have nothing to add to the instructions conveyed to you in my dispatch No. 164, of the 17th December last, to which her Majesty’s government adhere.
“With respect to the particular cases of Lieutenant Arguimban and his son Mr. Joseph Arguimban, and to any other cases which may come under the same category, [Page 1348] I am advised that they should he determined by the domicile of the parents at the time of the birth of the children within the territories of the Crown of Spain. If at the time of the birth of Lieutenant Arguimban, his father was not only a natural-born British subject, but legally domiciled in the British dominions, I am of opinion that Lieutenant Arguimban himself was at the time of his birth a British subject, owing permanent allegiance to the British Crown, and entitled to British protection. If, on the contrary, his father was then domiciled in the dominions of the Spanish Crown, he became a Spanish subject, and is not entitled to claim British protection against any obligations resulting from his Spanish allegiance, although by an English statute he may be also entitled to the privileges of a natural-born British subject in Great Britain.
“The same observations apply to the case of Mr. Joseph Arguimban, whose position is likewise dependent on the allegiance and domicile of his father at the time of his birth.
“The fact of Lieutenant Arguimban and one of his sons being officers in the royal navy tends prima facie to show that the domicile of Lieutenant Arguimban, if originally in England, did not afterwards cease to be so; but even this point would not be conclusive if that gentleman has resided for a long time in the Spanish dominions, and I am advised that no length of service in the army or navy of Great Britain would be material for the purpose of the present question if the allegiance and domicile of the person engaged in such service were originally Spanish.
“I should add that, even in the case of persons owing permanent allegiance to the British Crown, but domiciled and resident in Spain, the claim to exemption from military service in Spain cannot justly be extended on their behalf to any services required for the legitimate purposes of internal defense only, and which do not involve any act at variance with the duties of their British allegiance.”1
- Consul Brackenbury, Nos. 6, 9, 9, 11, 1841. To Consul Brackenbury, No. 4; November 5, 1841.↩
- Lord Howden, No. 96; March 25, 1856.↩
- To Sir J. Crampton; Dec. 11, 1861.↩
- Sir J, Crampton, No. 197: May 2, 1862. To Sir J. Crampton, No. 139; July 9, 1862. Law officers; July 7, 1862.↩
- The tenor of this dispatch seems inconsistent with the doctrine previously held by the British government, as it makes the nationality of the son to depend on the domicile of his father instead of the the place, of his own birth. It is to be presumed that the instruction was framed with reference to the peculiar law and usage of Spain, and was not intended to lay down any general principle applicable to other countries.↩