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PUBLIC RECORD OFFICE

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British Empire), where the father's nationality is uncertain; and it has the effect of obliterating speedily and effectually disabilities of race, the existence of which within any community is generally an evil, though to some extent a necessary evil. Lastly, we believe that of the children of foreign parents, born within the dominions of the Crown, a large majority would, if they were called upon to choose, elect British nationality. The balance of convenience, therefore, is in favour of treating them as British subjects unless they disclaim that character, rather than of treating them as aliens unless they claim it. The former course is, of the two, the less likely to inflict needless trouble and disappoint natural expectations.

We do not therefore recommend the abandonment of this rule of the common law, but we are clearly of opinion that it ought not to be, as it now is, absolute and unbending. In the case of children of foreign parentage, it should operate only where a foreign nationality has not been chosen. Where such a choice has been made, it should give way.

APPENDIX In. To No. III.

Concurring as I do in the fundamental recommendation of the Report contained in its first section, I have thought it right to sign the Report.

I feel compelled, however, after the best consideration I have been able to give to the subject, to dissent from the scheme contained in Section IV. of the Report for determining the nationality of children of foreign parents born within the realm.

1

Most persons will probably agree that the true rule for determining nationality, if it were practicable, would be found in the principle of domicil, i.e., that the home of a man's choice should also be the country of his allegiance; and indeed the Report asserts the soundness of this principle. The difficulty, however, of ascertaining the true domicil of a person resident in a foreign country, in the legal acceptation of that term, is a bar to its adoption in a case where it is requisite that the rule should be simple and obvious. Of all questions of law those which concern domicil are the most complicated and obscure, because they ultimately depend upon intention, which is necessarily of all things the most difficult to determine. We are driven, therefore, to adopt some less accurate but more practical rule, which shall approximate to, though it may not reach the same result.

In the case of persons born within British territory, of British parents, the presumption of British nationality and British domicil is of course conclusive. In the case of persons of British origin who have formally accepted a foreign naturalization, the presumption of change of domicil, and therefore of nationality, is sufficiently evidenced by the overt act of naturalization; and to such a condition of things the provisions of Section I. of the Report apply themselves. Here the nationality follows distinctly the domicil which is clearly ascertained.

But there exists further two classes of cases with which Section IV. of the Report deals, viz. (1), that of the children born of British parents abroad, and (2) that of children of foreigners born in the dominions of the Crown. In these cases the real domicil may be said to be indeterminate, or at least ambiguous. For the British subject resident abroad or the foreigner resident in England may in either case desire to adhere to the domicil of his origin.

Hitherto, as is well known, by the common law of England, inherited rather than adopted by the United States, the nationality of such children has been determined solely by the locality of their birth. The inconveniences of this principle, where rigorously applied, have been universally recognised. The State law of England and America has made provision to remedy its operation in the case of the children of their own subjects born abroad. Indeed the rule is wholly indefensible in principle. By the law of all modern nations the condition of the child primarily depends on that of the father. But the doctrine of deriving nationality from the locality of birth makes it depend on the accidental situation of the mother; and by this rule a child may become a subject of a country in which his father not only never made his home, but which he never even entered.

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The rule of determining nationality by locality of birth was of purely feudal origin, and accordingly in the legislation of modern Europe since the French Revolution it has been discarded as the governing principle amongst Continental nations. The Code Napoléon has adopted another principle; viz., that the nationality of the child should follow the nationality of the father, in the absence of any proof of an election on the part of the child to adopt the nationality of the country of his birth. This doctrine seems sound in principle. In the absence of naturalization by the father in the country of the birth of the child, there is no ostensible evidence of the desire of the father to change his domicil or his country. The nationality of the child ought not therefore to be altered whilst that of the father remains unchanged, except by some deliberate act of the child. That this principle is also convenient in its operation is proved by the fact that almost all Continental States have in practice adopted the doctrine of the Code Napoléon; and, as has been mentioned above, it has been incorporated into the Statute law of Eugland and America in the case of their own subjects born abroad. That the Commissioners do not dissent from this rule is shown by the fact that in Section IV. (§ 2), as to persons born of British fathers out of the dominions of the Crown, they recommend that the nationality of the child shall in the first instance be determined by that of the father.

But in the same section (Section IV., § 1), in the case of children of foreign parents born within the realm, the Report proposes that the old rule of the locality of birth should, primâ facie, prevail.

From this latter recommendation I dissent, and that for several reasons:-- (1) If it is desirable to recast the doctrine of nationality by such extensive changes as those proposed in the Report, it seems expedient to found the whole system on some intelligible and self-consistent principle. It would be difficult to suggest any reason for adopting the rule by which the nationality of the father determines that of the child in the case of the children born of British fathers abroad, which does not equally apply to the case of the children born of foreign fathers in England; and to lay down an opposite rule in the two cases seems not only indefensible in principle, but to be a course which, in respect of policy, is very likely to be misunderstood by foreign Governments. If, whilst we assert that the child born of an English- man abroad is a British subject, we also claim that the child born of a foreigner in England is likewise a British subject, it will be thought that acting for our own advantage on inconsistent principles we are grasping at the combined chances of a double event.

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(2) It seems very desirable, as is stated in section 7 of the Report, to lay down some rule in which all or most States are likely to agree. Now the rule of determining the nationality of the child, primâ facie, by that of the father is adopted by all States as regards the children born of their own subjects abroad. As regards the children of foreigners born in the realm, it is adopted by all States except England and America. It is obvious, therefore, that this is the rule by the adoption of which will be most readily obtained that consent of nations which on such a subject is of capital importance. It is stated in section 7 of the Report that " we have endeavoured to diminish the number of cases in which one who by British law is a British subject is regarded by foreign law as a foreign subject, and to obviate as far as possible the difficulties and inconveniences arising "from a double allegiance." In that object I entirely concur; but it seems to me that it is not accomplished, but rather defeated, by laying down the rule that the child born of a foreigner in England is, primâ facie, a British subject. In the view of every State (including the United States, so far as regards the children of born Americans in England) such person is a subject of the State of his father's origin; and therefore the proposed rule necessarily creates all the difficulties and inconveniences of a double allegiance. Assume, on the other hand, the rule, adopted by the Report in the case of the children born of British parents abroad, to be applied consistently to the case of the children born of foreign parents in England, it will be seen that the desired object will be completely accomplished. If the child (B) of a foreigner (A) is born in England, he will then be regarded by the English law as a foreigner; and so he would be regarded by all the world; and thus there