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PUBLIC RECORD OFFICE
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Reference:---
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
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The first is whether it is possible to confine the scope of the proposed Bill to Turkey. The dominions of the Porte are, so far as is known, the only place where there are British communities of such long standing that more than two successive generations have been born abroad, but except for this there do not seem to be any arguments in favour of limiting the legislation as suggested. Residents in China, and other places where jurisdiction is exercised under the Foreign Jurisdiction Acts, would certainly feel aggrieved, and it would seem unreasonable to confer privileges upon British subjects in Turkey which are not shared in those great African Protectorates of His Majesty, which are British Colonies in all but name and technical legal status. It is also most desirable that any such alteration of the law should be made in the manner least likely to attract attention or provoke criticism, and, if it is confined to Turkey, there is a possibility that it might lead to remonstrances by the Porte against what would be represented as the removal of large classes of persons from the juris- diction of the Sultan.
Lord Lansdowne would therefore prefer that the legislation should extend to all places where His Majesty exercises jurisdiction under the Foreign Jurisdiction Acts, and in this view the Secretary of State for the Home Department, to whom these papers have been referred, concurs.
The next question is the nature of the provisions that should be inserted in the Bill.
The great desire of all those upon whose status doubt has been cast is that their British nationality should be recognized as already existing. Any arrangement enabling them to become British subjects by letters of denization, or by naturalization, would not be accepted, in any way, as a satisfactory settlement; it would increase the irritation, and the remedial means provided might even be rejected by those whom it was intended to benefit.
Lord Lansdowne therefore proposes that the Bill should provide that the issue of British subjects should, if born within places where His Majesty exercises jurisdiction under the Foreign Jurisdiction Acts, themselves be British subjects.
A Bill has already been drafted by the Parliamentary Counsel to the Treasury, a copy of which is inclosed herewith, to codify and amend the law relating to naturalization and aliens in accordance with the report of the Inter-Departmental Committee on the Naturalization Acts, which was laid before Parliament in 1901. It is understood, however, that the Secretary of State for the Home Department does not propose to proceed with the Bill during the present session. The question, therefore, arises whether it is better that a short Bill should be introduced at once to carry out the above objects, and efforts made to get it passed this session, or whether the matter should be allowed to rest until the larger measure is introduced. On the one hand, it would be an advantage to set the matter at rest as soon as possible, but, on the other hand, it is desirable that the question should attract as little attention as may be, and it is thought this latter object would be better achieved by the point being dealt with in the general Bill.
If this alternative be adopted, provisional measures can be taken that will sufficiently prevent any further anxiety being felt among the members of the British communities in Turkey, and that will insure an 'absence of anything approaching public agitation.
It has been suggested that if the question is dealt with in the general Bill, this should be effected by a slight alteration of the wording of Clause 28 (see p. 39 of the Confidential Print).
I am to request that you will be so good as to take the papers transmitted here- with into your early consideration, and will favour Lord Lansdowne with your opinion-
1. Whether persons of British descent in the paternal line born in Turkey, but not within the Acts of 1730 and 1773, are or are not British subjects?
2. If not, whether legislation to confer upon them British nationality should be confined to Turkey, or should extend to all places where His Majesty exercises juris- diction under the Foreign Jurisdiction Acts?
3. Whether the suggestion that the issue of British subjects should be given British nationality if born in such places is, in your opinion, a desirable method of dealing with the question?
4. Whether the legislation should be enacted by a short Bill to be introduced this session, or whether it is desirable to wait until the introduction of the larger measure?
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5. His Lordship would also be glad to be furnished with any observations of
a general character which you may have to offer.
LIST OF PAPERS.
I have, &c.,
F. A. CAMPBELL.
Confidential Print, “Correspondence relative to the National Status and Registration
in the Ottoman Dominions of Persons of British Descent," 1 to 24. Confidential Print, "Returns of British-protected Subjects in the Ottoman Dominions,
1887-89" (Confidential, No. 5968).
Draft Bill.
"Ottoman Order in Council, 1899" (Confidential, No. 7171*).
Report.
It appears to be clear that persons of British descent in the paternal line born in Turkey, although not within the Acts of 1730 and 1773, are, as between His Majesty and the Ottoman Porte, entitled to the benefit of the Capitulations.
There
has been a long and unbroken practice to this effect, and we do not think that the Porte could successfully raise any objection to it. It is, moreover, to be noted that the Porte has never raised any such objection, and apparently never will. We do not think that it is necessary in order to bring such persons within the benefit of the Capitulations, that it should be established that for all purposes they are British subjects. It is enough if it appears (as we think it does) that they are British subjects within the meaning of the Capitulations. On this point we agree with Mr. Dicey's opinion, set out at pp. 48 and 49 of the Confidential Print which accompanies the despatch under reply. This view of the case disposes of the point which is by far of the greatest practical importance, viz., the right of these persons to British protec- tion in Turkey.
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The question whether such persons are, for all purposes, British subjects does not appear ever to have arisen in the Courts of this country. It might arise under the Foreign Marriages Act, under Lord Kingsdown's Act as to wills, or under the Act as to offences against the person. It might also arise if such persons settled in this country and claimed the franchise.
This last question is, in our opinion, one of difficulty. It is quite clear that the Acts of 1730 and 1773 have no application-the question being, as is pointed out by Sir Kenelm Digby, whether at common law such persons are natural-born subjects. To be a natural-born subject at common law it is necessary to be born within the King's allegiance.
It is clear that in certain cases this condition might be satisfied, although the birth did not take place physically within the King's dominions, as in the case of the children of Ambassadors abroad, and of children of British parents born within the lines of the King's army in foreign parts. An alien is defined by the Court in Calvin's case (7 Rep. 16 a) as a subject that is born out of the ligeance of the King and under the ligeance of another. We think that the children of British parents born on a desert island belonging to no Sovereign would, even at common law, not be aliens. They would certainly not be born within the allegiance of any other, and as everyone must be either an alien or a subject (7 Rep. 17 a), we think such children We think would be held to be born within the allegiance, and therefore subjects.
that the same principle would apply in the case of children of British parents born in British Protectorates, otherwise the extraordinary consequence would follow that the great-grandchild of a man born in England who had settled in, e.g., Rhodesia, where his descendants had remained under English law, would be an alien.
As regards Turkey, it appears that the children in question are not Turkish subjects (see pp. 32-3 of the Confidential Memorandum), Lord Watson (13 A. C.,