CO885-(16-18) — Page 464

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would be no conflict of allegiance. Suppose (A), the father, to become naturalized in England, then (B), the child, would be by English law a British subject, and coase to be the subject of the country of his father's origin; and so he would be regarded by all the world; assuming the United States to adopt (as we have reason to believe they would adopt) the principle laid down in Section I. of the Report, viz., that foreign naturalization extinguishes the native allegiance. The same thing would occur if (B) were himself naturalized. And thus, by the adoption of a simple and consistent rule, we should lay the foundation of a general harmony in the doctrine and practice of nations which is not only of theoretical value but of great practical consequence. For nothing would more solidly conduce to the peace of the world than that the same allegiance should be predicated of the same person by all governments.

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(3) I am by no means insensible of the practical conveniences which may result in some cases from the adoption of the rule of the locality of birth, which are set forth in Section IV. of the Report, but there appear to be grave disadvantages attendant on the rule which more than counteract them. Such a rule, as has been shown above, will have the effect of imposing the quality of British subjects on a number of persons who neither seek nor desire it. It is true that the Report makes provision in the case of such persons for a machinery by which they may divest themselves of that character. Upon this it may

be observed that a foreigner, in transitu, may, through ignorance or carelessness, omit to take measures which shall have the intended effect. But it is not necessary to urge this point, because in fact it would be as impossible in the future, as it has proved in the past, to insist against the will of the individual on his British character thus imposed by the mere accident of birth. The real evil, to this country is of an exactly opposite character, viz., that by this rule persons are clothed with the character of British subjects, and become entitled to all its benefits, who have no real connection with the community, and who ought to have no claims it. It is not probable that any foreigner accidentally resident in this country would disclaim the citizenship for his child which the law would confer, for the simple reason that the child would be enabled to take all the benefits, but could in no case be really made to fulfil the obligations of a British subject. Under this rule the child of a foreigner born here might return to his own country in his infancy, and he would thereafter possess, whenever he chose to claim them, not only for himself, but (since he is a natural-born British subject) for his children also, all the benefits of the character of a British subject, whilst it is abundantly clear that neither he nor his children could ever be called upon to perform any of its duties. This is the practical mischief of the present rule, and to re-enact it would be to give fresh authority to a principle the inconvenience of which is sufficiently apparent. Nothing can be more politically inexpedient than that this country should be exposed to the claims of a class of persons who have no interest in its welfare, and who, neither by origin nor domicil, have any community with its affairs.

On the other hand, in the case of foreigners and their children who really desire to incorporate themselves and their interests in the common stock of this country, and to embark their fortunes with ours, there seems neither hardship nor inconvenience in requiring that they should evidence their intention to change their nationality and adopt a new domicil by some formal act which, whilst it would establish their British nationality, would at the same time terminate their foreign allegiance. They would then no longer be able to blow hot and cold, and adopt in turn such nationality as happened for the moment to suit their interests. If the alien father is domiciled in England, and intends to cast in his lot and that of his family with this country, why should he object to naturalize himself or his child? But if he is unwilling by such an act to sever his connection or that of his family with the country of his origin, why should we embarrass our relations with foreign States by conferring our nationality on such a person-to his advantage it may be, but certainly not in any respect to our own?

If the father and the child are really domiciled in this country, the process of naturalization would be simple and easy, and having regard to the recommendation in Section 5 of the Report, it will be seen that a person so naturalized will enjoy all the advantages which belong to a natural-born

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subject; if they are not so domiciled I venture to think the child ought not to acquire the privilege of British nationality by the simple accident of birth. The great importance of insisting on naturalization in such cases is, that it is by this means alone that the double allegiance can be avoided. For this pur- pose it is essential that the act which confers the new nationality should in itself openly and unambiguously terminate the old allegiance. This, the rule which requires naturalization of a foreigner born in England as a condition of British nationality would do; whilst the rule conferring nationality by the mere fact of birth would give the new nationality without dissolving the old allegiance.

I should therefore propose that in the case of children of foreigners born within the realm, the following rules should be adopted :-

Children born within the realm of alien fathers who have been them- selves born abroad, shall be deemed aliens. But such children shall become British subjects (1) upon the naturalization of their fathers, or (2) upon their being themselves naturalized either by their fathers during their minority or by themselves at full age.”

This rule would make the child born in this country, of an alien father also born in this country, a British subject by birth, and in this respect it accords with the French law. Though apparently somewhat in conflict with the general principle, it is in fact in strict conformity with the principle which makes domicil the governing rule of nationality; for though the presumption of domicil is very sinall from the mere fact of the place of birth of a single individual in one generation, it becomes very strong when the birth both of the father and the child takes place in the same country. Such a condition of things may be safely taken as a sufficient proof of permanent change of domicil and of the election of a new nationality, which could not be inferred from a solitary and isolated instance.

There is another point affecting the latter part of Section IV. of the Report on which I feel great difficulty. Though I concur in the principle laid down in Section IV. (§ 2a) of the Report, by which it is declared that the children born of British fathers abroad should be regarded by the British law as British subjects," I greatly doubt the expediency of the declaration in the same section (§ 26), that “in the administration of British criminal law" such children are under certain conditions not to be treated as British subjects. The word "subject" in my understanding of the term involves of necessity subjection to the laws of the State of which such person is a subject, aud above all subjection to its criminal law. If it is necessary (though I think that is more than doubtful) to create a class of persons who shall be capable of all the privileges whilst they are liable to none of the obligations of citizens, it would be desirable to discover for such a class some more appropriate title than that of "subjects." What is no doubt intended is that such persons should have the capacity of becoming at their election British subjects, and that till they have exercised the option to enjoy the benefits they shall not be called upon to hear the burthens of that character, but that after they have claimed the advantages they shall not be able to decline the obligations of subjects. But surely if this be the view which it is intended to present, it should be distinctly asserted that whilst the person is not amenable to the law of England he is not yet a British subject, and that as soon as he becomes a British subject he is at once amenable to that law. I cannot therefore assent to a definition which speaks of a person as "regarded by British law as by birth a British subject " (Section IV., § 2a), and of the same person, at the same time, under certain conditions, as a person "who in the administra- tion of British criminal law should be treated as a subject of the country in which he was born" (Section IV., § 2b). The question of whether a particular individual who is thus declared a British subject is or is not amenable to our criminal law made to turn upon the point of whether he has or not ever exercised or claimed any right or privilege as a British subject." I confess that in terms so general and vague there seems to me to lurk a dangerous ambiguity very intractable in the administration of criminal law. What are these "rights and privileges"; what is to be the extent of the exercise pr the nature of the "claim" which by their absence

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