A question arose in 1851 whether the illegitimate children of British parents, born in Venezuela, were entitled to be registered as British subjects at Her Majesty’s consulates.5
Sir John Dodson, then Queen’s advocate, considered that such persons might be taken to be British subjects for the purposes of registration only, but that their claim to British nationality could not be asserted against an actual adverse claim of the Venezuelan government to treat them as natural-born citizens.
It having been pointed out to Sir John Dodson that this opinion seemed to be at variance with a report which he had previously made in the case of a Mr. Stratford, when he had stated that the illegitimate children of British parents born abroad were not entitled [Page 1352] to be considered as British subjects in foreign countries, Sir John Dodson replied that the question was one of much difficulty, in which the other law officers should be consulted.
This was accordingly done, and on the 3d of February, 1852, the law officers advised that illegitimate children born abroad, of English parents, are not British subjects, and therefore not entitled to British protection. By the common law children born abroad of English parents were not, except in certain special cases, English subjects. Acts of Parliament have been passed to remedy this inconvenience, but these acts, from their particular purposes and wording, can only be held to apply to legitimate children.
During the discussion of the British claims on Venezuela, in 1865, the Venezuelan government objected to the insertion of certain claims in the British schedule, on the ground that the claimants were citizens of Venezuela.
In support of the principle on which this objection was based, they quoted at considerable length passages from Wheaton, Blackstone, Sir R. Phillimore, and other jurists, showing the doctrine of native nationality held by England.1
With regard to the particular case of Venezuela, the foreign secretary stated, (July 27, 1865:) “Now, in this country it has been judged suitable, for many reasons, to establish that all that are born in its territory are Venezuelans. It has been thus declared in the constitutions that have ruled the country since 1821. In the long process of time which has elapsed, it has been understood that the fact of being born in Venezuela carries with it the obligation of naturalization. A controversy which originated with the Spanish legation in 1847 for pretending to include in the matriculation of subjects of Her Catholic Majesty persons born in Venezuela, although of Spanish parents, might be cited.
“During the war of five years, on an occasion which created difficulties, and to avoid others, the executive power deviated, in one single instance, from the common practice, that of the young man Alexander d’Empaire, and declared him exempt from military service, as a minor, being under the protection of his father, and not having signified his wish to become a citizen of Venezuela. But that resolution cannot be considered definite, for it is not given to the executive power to point out the sense of the constitution. The President understood it to be so, and mentioned it in his message to Congress in 1861, asking that a law should interpret the constitutional rule. Nothing was then resolved. The question was still undecided when the constituent assembly met in 1863; the government insisting for a termination, it pronounced itself in this manner in article 6 of the federal constitution:
“‘Venezuelans are: 1. All persons born, or who may be born, in the territory of Venezuela, whatever may be the nationality of their parents.
“‘2. The children of a Venezuelan father, or of a Venezuelan mother, born in other territories, who may fix their residence in this country, and shall express their desire to be considered as such.’
“It therefore appears that there can be no doubt as to the meaning of the legislators, and if a more explicit declaration has been asked for, it is owing to its being considered that it should come directly from them.”
On the 23d of October, 1865, Mr. Edwardes,5 under instructions from Lord Russell, replied: “Her Majesty’s government are of opinion that the general principles on which his excellency founds his particular position are sound; though it is to be observed that by treaty stipulation, and by long usage, one state may concede to the subjects of another privileges which are not accorded to its own subjects. Many circumstances may make such a usage not impolitic or unreasonable.”2
“Her Britannic Majesty’s government are, moreover, of opinion that when such usage is abrogated by the municipal law, ample time should certainly be given to the subjects of the state from whom the privilege is withdrawn to make up their minds whether they will remain in, or leave, the country in which this change in their former relation to it has been effected.
“M. Seijas will perceive, from the foregoing opinions, that although her Britannic Majesty’s government offer no opposition to the change which the Venezuelan government desire to make in the position of children born to British subjects in Venezuela, they are far from admitting its power of retroaction.
“The undersigned, therefore, being unable to see how the solution of the question at issue can possibly affect the settlement of claims already pending, avails himself, &c.”3
The Venezuelan government rejoined, on the 22d of November, 1865, that it was not a question of passing a new law, but of interpreting a principle which had been (with the exception of the French case previously referred to) maintained since the foundation of the republic.
In January, 1866, Lord Clarendon4 instructed Mr. Fagan, “that Mr. Edwardes appears to have stated the matter very properly to the Venezuelan government. It seems clear that the new law ought not to affect the position of British claimants [Page 1353] whose claims had accrued previously to the passing of this law; and the argument that the law is not retroactive, but explanatory, is inadmissible.
“Previously to the passing of it, practice and usage had interpreted the law as treating the children of foreign subjects, though born in the Venezuelan territory, as foreigners. To pass a law now, explaining that the law had never meant to consider such persons as foreigners, is substantially to pass a retroactive law to the injury of foreigners.”
In November, 1865, Mr. Edwardes 1 forwarded a list of claims admitted by the Venezuelan government. This list includes the claims of persons alleged to be British subjects, although born in Venezuela, and a note is appended to their names showing that these claims were admitted subject to their nationality being proved.2
Negotiations are now pending for the settlement of these admitted claims, together with any other claims not yet investigated, by a mixed commission, when the right of these Venezuelan natives to British nationality will again come under discussion.3
- Mr. Riddel, consular, No. 42; August 12, 1851. Queen’s Advocate; January 19, 1852. Law officers; February 3, 1852.↩
- Mr. Edwardes, No. 66; August 23, 1865.↩
- Mr. Edwardes, No. 89; October 25, 1865.↩
- Mr. Harrison, No. 5; December 9, 1865.↩
- To Mr. Fagan, No. 3, January 16, 1866.↩
- Mr. Edwardes, No. 93; November 9, 1865. Mr. Edwardes, No. 97; November 22, 1865.↩
- Mr. Irving’s memorandum; February 2, 1867.↩
- To Mr. Fagan, No. 4; January 30, 1868.↩