PUBLIC RECORD OFFICE
Reference :-
TILLC.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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Section 14 is classed among the miscellaneous [supplemental] provisions of the Act, and expressly declares that "nothing in this Act contained shall qualify an alien to be the owner of a British ship." The words "nothing in this Act appear at first sight to include the very provisions of the Act by which a certificate of naturalization may be obtained, and yet to enact that nothing even in those provisions shall qualify an alien naturalized thereunder to be the owner of a British ship.
If this Act stood alone, there would, I think, be no escape from the conclusion that the Legislature on grounds of national policy deemed it inexpedient that even a naturalized alien should own a British ship, but the Naturalization Act is not the only Statute to be taken into account. Under the Merchant Shipping Act, 1854, Section 18, the persons who are qualified to own a British ship are defined, and among them are persons naturalized by or pursuant to an Act of the Imperial Legislature, or by or pursuant to an Act or Ordinance of a proper legislative authority in any British Possession," provided that such persons are continuously resident within Her Majesty's Dominious, or are members of a British factory or commercial house actually carrying on business within Her Majesty's Dominions, and have taken the oath of allegiance to Her Majesty subsequently to the period of their being so naturalized.
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The Naturalization Act of 1870 does not in terms purport to repeal or oven to affect in the slightest degree the above provision of the Merchant Shipping Act of 1854. That provision, therefore, stands, and the problem is how to reconcile its language with the distinct prohibition contained in Section 14 of the Naturalization Act, 1870.
It is quite clear that, so far as the Merchant Shipping Act was concerned, a naturalized alien fulfilling the prescribed conditions is qualified to own a British ship. and this being a provision in force at the present day, I think it must be held that, according to the true construction of the prohibition in sec. 14 of the Naturalization Act, the "Alien," who is thereby disqualified must mean an alien who has not obtained a certificate of naturalization.
The whole scope and tenour of the Naturalization Act are in favour of this construc- tion. Even an alien not naturalized is entitled by that Act, as already stated, to hold "real and personal property of every description," except real property situated out of the United Kingdom, although not qualified, unless naturalized, for any office, or for any municipal, parliamentary, or other franchise. On obtaining a certificate of naturalization, then all the political and other rights, powers and privileges of a natural born British subject are conferred upon the person naturalized, and this even within the limits of the foreign State of which he was previously a subject if he has ceased to be a subject of that State in pursuance of the laws thereof, or in pursuance of a treaty to that effect. The conditions therefore under which a naturalized alien retains the rights, powers, and privileges of a British subject are similar to those under which he is qualified by the Merchant Shipping Act to be and continue the owner of a British ship. In other words, a mere alien is, by the Naturalization Act, qualified to hold every description of property with the exception of (a) real property not in the United Kingdom, and (b) a British ship: while an alien who has become naturalized under the provisions of the same Act, is endowed with all the rights, powers, and privileges of a natural born British subject, which include the right to own a British ship. Although, therefore, nothing in the Naturalization Act is to qualify an alien (that is to say, in my view of the matter, an alien not naturalized) to be the owner of a British ship, yet, under the Merchant Shipping Act 1854, sec. 18, he is qualified to be such owner when naturalized by or pursuant to an Imperial or Colonial Act or Ordinance.
In this way, it seems to ine, that the apparent contradiction in the statutory provisions on this subject may fairly and reasonably be reconciled,
The truth is, that the Naturalization Act was not well drawn. In that part which relates to a mere alien, as well as in that which concerns a person who has obtained a certificate of naturalization, the same word "alien" is applied to both, and there is no definition of the word in the Act. It is clear, too, that the disabling section 14 should have been placed in that part of the Act which enlarges the rights of a mere alien. By adopting the construction before suggested, that it was only intended to disqualify a mere alien and not a person naturalized from owning a British ship, the real object of sec. 14, is made clear, for without such an express prohibition, an alien would, under the large words of the Act, have been qualified to own a British ship without any of the conditions imposed by the Merchant Shipping Act, 1854, even upon a person naturalized. In other words, the Act of 1870 might have been held to repeal the provisions of 1854 by implication. and to have conferred upon a mere
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alien larger rights with respect to the property in a British ship than those which a person naturalized enjoyed under the Act of 1854. The legislature could not have so intended, and accordingly, although section 14 appears in the wrong place, its meaning clearly was to declare as regards a mero alion that the enlargement of his other rights under the Act should not qualify him to own a British ship, and as regards a person naturalized, to leave unaffected and unaltered, his position under the Act of 1854.
The Acting Secretary of the Department of Trade and Customs raises, however, a narrower question for the consideration of the Board of Trade, viz., whether a person naturalized in the United Kingdom or in some other Colony than New Zealand is entitled to be registered in New Zealand as owner of a British ship. It is true that a certificate under the Naturalization Act of 1870 confers upon an alien his complete rights only in the United Kingdom, and by a further limiting provision in section 16 all laws, statutes, and ordinances duly made by the legislature of a British possession for imparting to any person any of the privileges of naturalization to be enjoyed by such person within the limits of such possession shall limits have the authority of law."
"within such
According to these enactments it would therefore seem that the effect of naturali- zation is, in the United Kingdom to be confined within its limits, and in any Colony to be also confined to the limits of that Colony, but, on looking again at the provisions of the Merchant Shipping Act, 1854, it is clear that the ownership of British ships is made a subject of special treatment. They are in a certain distinctive sense national property, as being under the protection of the national flag; their ownership is in fact, a matter of inperial concern (see, inter alia, вs. 18, 19, 103-106 Merchant Shipping Act, 1854). A ship, whether registered in the United Kingdom, or in India, or in a Colony, is everywhere a British ship; her nationality is one and indivisible; evidenced throughout the world by the British flag. Accordingly, the subject of such ownership is dealt with as a uniform system by an Imperial Act, many of whose provisions have force in every part of Her Majesty's dominions (Merchant Shipping Act, 1854, sec. 109). None of its enactments can be controlled or varied by the legislature of any British possession, whose authority is merely local.
Inasmuch, therefore, as it is clearly laid down in section 18 of the Merchant Shipping Act, 1854, that not only a person naturalized under an Imperial Act, but also a person so naturalized by or pursuant to an Act or Ordinance of the proper legislative authority in any British possession, is qualified to be the owner of a British ship, the effect of naturalization is obviously not local or confined within the limits of the particular possession, but is universal. So far as regards the ownership of a British ship, naturalization in any part of Her Majesty's dominions is naturali- zation throughout the whole. The reply to the Wellington despatch upon this point should therefore be in my opinion that an alien, if naturalized in Queensland or New South Wales is, so long as he fulfils the prescribed conditions, entitled to be registered as, and to own a British ship in New Zealand, and so mutatis mutandis with respect to overy part of Her Majesty's dominions.
Lastly, the above view of the question is not inconsistent with Lord Carnarvon's circular despatch of 10th September 1874, which does not profess to deal with the separate and independent question as to the ownership of British ships.
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