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C.O-885

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purposes of the Unemployed Act to the specific purpose of enigration, as it would be if the further (contingent) recommendation of the Committee were adopted.

Colonial Office, April 1907.

No. III.

The Naturalization Bill and the Colonial Conference.

The object of the Bill is to re-enact, with certain amendments, the existing law as to the acquisition and loss of British nationality.

The existing law consists of the common law and the Statute law. The main point of the common law-and the only point of importance in the present connection-is that every person born within the dominions and liegeance of the Crown is a British subject. It is proposed to embody this in a statute (see clause 28 of the Bill).

The existing Statute law-or such part of it as is at present in question— is contained in the Acts 4 Geo. II., cap. 21, and 13 Geo. III., cap. 21, dealing with nationality according to parentage, and in the Nationalization Act of 1870, 33 & 34 Vict., cap. 14, dealing mainly with the acquisition of British nationality by naturalization.

As regards the amendment of the law proposed by the Bill, the main motive is to be found in the facts that development of the Empire since 1870 has given rise to anomalies and inequalities between the various parts of the Empire in the matter of naturalization, that the phraseology of the Act of 1870 is extremely obscure, and that that Act does not provide clearly for all contingencies which experience has brought to light. These considerations led to the appointment of the Committee of 1899, on whose Report the Bill is based, and since the Report was published the opinions of the Colonies have been asked upon its recommendations, with the result, speaking generally, that they concurred in the main object of the recommendations, namely, that the law of naturalization should be made uniform throughout the Empire.

With reference to the present Conference, the majority of the Colonies have not expressed any special opinion on this point, but Natal and the Cape of Good Hope have sent messages.

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Natal represents that, having herself passed, in the year 1905, a Natura- lization Act, which was practically based on the concurrence of South "African Colonies, she is not prepared at the present time to consider the

question of any amendment of existing legislation as affecting Natal."

Cape Colony takes her stand on certain criticisms and objections drawn up by her Attorney-General, and expresses her inability to concur, in particular, in clauses 7, 9, and 26 of the Bill.

The position taken by Natal is possibly due to a misapprehension, as will be seen later on, when the provisions of the Bill are further considered.

Some of the criticisms of the Cape Attorney-General cut somewhat deeply

into the British law of nationality, and raise serious questions.

The points at issue may perhaps be best seen if the main provisions of the Bill are roughly classified according to their main character and object.

The Bill may be divided into three heads: (1) Declaratory; (2) Re enacting; (3) Amending. It is proposed in this Memorandum to mention only those provisions which have aroused, or appear likely to raise, comment in connection with the present Conference.

1. Declaratory. Clauses 9 and 28.

Clause 9.-The effect outside the United Kingdom of a certificate of naturalization granted under the Act of 1870 is, owing to the obscurity of the language of the Act, open to some doubt. There is, however, good opinion to the effect that the certificate confers the status of a British subject every- where except, under certain conditions, in the country of origin. Passports are granted to holders of such certificates, and it is believed that such persons

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are in fact accepted as British subjects throughout the Empire. Clause 9 declares this to be the law. Natal's objection to the Bill cannot have reference to this point, because she has herself enacted in her Act of 1905 that the holder of an English certificate of naturalization shall have all the rights, privileges, &c., that he would have if naturalized in Natal. The Cape's objection is not overtly directed to this provision, but the conditions under which a certificate may be granted in the United Kingdom are called in question in connection with the Cape's criticisms on clause 26, relating to the validity throughout the Empire of Colonial certificates, and they will be dealt with under that heading.

Clause 28 (1) (a) declares the common law that a person born in British dominions is a British subject. The Cape Attorney-General, in pointing to the disadvantages which might result to the Cape if Chinese children were to be horn there, would be on stronger ground if this were a new departure in the Bill, whereas, of course, it is part of the ancient law of England. It may be doubted whether it lies with the Colonies at this juncture to suggest an alteration of this law, and certainly the question of amending it has not been under consideration in connection with the Bill If the other Colonies do not actively support the Cape on the point, it might be set aside on general grounds, and the matter has probably not assumed great importance in many Colonies owing to the restrictions placed on the immigration of non-European races, and consequently on the birth of non-Europeans in the Colonies. "But if the common Colonial antipathy to these races results in the points being taken up generally, the Colonies may adopt the position that, if the question of Imperial naturalization is to be touched at all, it is necessary to go back to the foundation of things and amend a principle which, right as it may have been in the ancient times from which it took origin, is, in the modern conditions of the world, inconvenient. In that case the point will require very careful consideration.

The question was considered by the Royal Commission of 1869, and the majority of the Commissioners reported in favour of leaving the common law as it was. Their report on the point is set out in Appendix I. (a). There is, however, a great deal to be said on the other side, as may be seen from the forcible dissenting Memorandum of Sir William Harcourt, one of the members of the Commission (see Appendix I. (b)). The Cape Attorney- General suggests that the law should be modified so as not to apply to the children of aliens "imported for certain purposes temporary in character, or "avowed to be temporary in character, such as labour on the mines." There is no principle underlying such a limitation, and there would probably be greater force behind the broader suggestion that non-European or perhaps Mongol races as a whole should be excluded from the operation of this law. Such a suggestion would of course run counter to the Japanese alliance. If it be suggested more broadly still that the common law on the point be abolished, strong as may be the reasons for such action, it has to be borne in mind that the change would be one of great magnitude in present conditions. It would make an immense difference to the aliens who now enter the United Kingdom in large numbers yearly, and, when there, breed at a great rate, all the children becoming ipso facto British subjects.

If the change is to be contemplated at all, it would seem necessary that there should first be an inquiry specially directed to the point. The Committee of 1899 was not charged with the duty of considering it. Such an inquiry would not necessarily have the effect of postponing the Bill if it could be arranged that the Bill should proceed on the understanding that this point would be dealt with separately at some later date.

It has, however, to be recollected that the "Yellow race problem underlies the criticisms of the proposed validification of a certificate throughout the Empire (see observations as to clause 9 above and clause 26 below).

2. Re-enacting.

Clauses 7 and 8 re-enact with amendments the conditions under which the Secretary of State may grant certificates of naturalization. The objection to these conditions, as existing or as amended, which are suggested by the

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