Chapter X question of unequal drafting; the causes of disability, and the principles on which questions are to be decided, are precisely the same in both cases. Married women. Minors. differs in the tries. As to married women: the birth-nationality of a married woman having by English law merged into the nationality of her husband, this section is inapplicable to them. As to minors: nationality being personal to the minor, and the law being express that the person making the declaration of alienage should be of full age, it seems probable that this section has in view merely the ability of the person to act by English law. The effect is, and probable intention was, to prevent persons who Cases where might by the law of their second nationality become majors majority before 21, from availing themselves of the declaration. There is two coun- then the converse case, where majority in the second State is fixed at an age beyond 21. It does not seem likely that the law should have concerned itself with the question whether the person is of full age in the other State: nor indeed does it matter, for no complication can arise, the hypothesis on which this part of the section rests being that the person is already a subject of that State. There is no act contemplated to be performed in that State, and nothing results from the act of declaration but the abandonment of one of two nationalities; the person making the declaration being free to act as he pleases. Where the age of majority in the foreign State is above 21, the consequence of making the declaration would be that the person ceases to be an Englishman of full age and becomes a foreign minor. Lunatics, As to the lunatics, drunkards, and persons under curatorship, it is not necessary to add anything to what had been said in the torship. previous pages. and persons under cura Subjects by statute. The manner of making the declaration of alienage is governed by the second paragraph of s. 3 of the Act, which will be set out in the next division of this chapter. Relief from the operation of the Statute Law. Although in the second part of the section, there is no such express reference to the statutes as there is in the first part to the common law, there can be little doubt that this provision was intended to apply to those who are made British subjects by the statutes of Anne and George II; and it may be asked why, since this is an adoption by England of the jus sanguinis, any relief from its effect should have been thought necessary. the two parts It will be seen that the two parts of the section are drafted Chapter X differently. In the first part there is a statement of the causes Comparison which have brought about the double nationality: of the reason, between that is to say, for the introduction of its provisions the birth drafting of within the dominions, which has made the person a natural-born of s. 4. British subject: and the operation of a foreign law, in virtue of which he is also a subject of another State. There is therefore double nationality, and relief is given from its consequences; so far as English law is concerned, the person affected may get rid of it altogether. But in the second part there is no such statement of the causes for the existence of double nationality: it simply runs-" any person who is born out of His Majesty's dominions of a father being a British subject...". Double na- apparently tionality is not even hinted at as the reason for the enactment, on double and it may be that it has a much wider scope than at first sight nationality. appears to have been intended: this part of the section is indeed one of the most difficult provisions of the Act to understand. There are many complicated forms of double nationality arising under the statutes, the inevitable result of the jus sanguinis being tacked on to the jus soli in the same system of law: for the accident of a child of foreign parents being born in England not only makes a British subject of the child, but spreads its effect to the next generation by the operation of the statute of George II. The intention seems to have been to give the privilege of making a declaration of alienage to the second generation, in case the father had neglected to do so in his life-time under the first part of the section. Second part not based born abroad born in The first case therefore which falls under the second part of Case of son the section is that of the son born abroad of a father born of of foreigner foreign parents in the United Kingdom. The father's double na- England: tionality results from the common law, but his son comes within the statute of George II, and he also has a double nationality, assuming that his father has not availed himself of the first part of the section. He himself may make the declaration of alienage under the second part. grandson : But the grandson is also born" of a father being a British case of subject", assuming as before that his father has not made the declaration. He falls within the statute of George III, being the son of a father to whom the statute of George II has given Bri Chapter X tish nationality. He therefore also has a double nationality, and may make the declaration of alienage. case of great grand son. of British parents born ing double But the children of persons made British subjects by the statute of George III are also born " of a father being a British subject" but they, when they are born abroad, are not British subjects, and therefore it needs no declaration to make them alien. There seems to be in this a trace of faulty draftsmanship, which becomes more marked as we continue the analysis of the section. But there is another and entirely different case, also coming Case of son within the second part of s. 4, which is the converse of the case dealt with in the first part. The son of British parents born abroad abroad hav- in a country where the jus soli prevails, has also a double nanationality. tionality: he is British under the statute of George II, and a subject of the other country by reason of birth within it. He therefore can make the declaration of alienage, and throw off his British nationality. There can be little doubt that the case falls within the section: but it is a deliberate departure from the principles of the statutes of Anne and George II; for persons whom it was the express object of those statutes to invest with British nationality are now enabled to abandon it. Extreme case of such The extreme case is not one of double nationality at all. The section is so worded that it must apply to any person born abroad "of a father being a British subject ", irrespective of whether he has another nationality to fall back upon. A person whose parents and whose parents' parents have son not hav- been English-born through generations may, if by chance he was ing double nationality, born abroad, reject the nationality which the statutes of Anne and George II have given him, and become... the sentence must stop, for the law has omitted to contemplate what will become of him after his ex-patriation. The case is so improbable as perhaps not to be worth considering. But the statute is so drafted and seeing that some do in fact what the heir of Locksley Hall threatened to do, it is necessary to draw attention to what I think must be faulty draftsmanship. As the section now stands this extreme case falls within its provisions, and it would have to be applied, the circumstances arising. The difference between the two parts of the section becomes even more marked when we look at the forms provided in the Instructions, the error of draftsmanship (assuming it to be an Chapter X error) being perpetuated in a remarkable manner. The title to the first form is "Declaration of alienage by a The diffeperson born within British Dominions": and it runs thus.- rence between the “I, A. B., of being held by the common law of Great Britian to be two parts a natural-born subject of His Britannic Majesty by reason of my having perpetuated been born within His Majesty's dominions, and being also held by the in the forms. law of C. D. to have been at my birth and to be still a subject for citizen] of C. D. hereby renounce my nationality as a British subject and declared that it is my desire to be considered and treated as a subject [or citizen] of C. D). But the form under the second part is not amplified in a simi. lar manner. It is headed " Declaration of alienage by a person who is by origin a British subject ", and is simply as follows IA. B., of having been born out of His Britannie Majesty s dominions of a father being a British subject, do hereby renounce my nationality as a British subject ". It might possibly be argued that this shows that the second part was deliberately drafted to cover all the cases above indicated. C-BY NATURALIZED BRITISH SUBJECTS. The renunciation of allegiance by naturalized subjects by means of a declaration of alienage is dealt with by s. 3. 33 & 34 Vict. c. 14, s. 3. turalized aliens to divest them selves of their statue in certain cases. : Declarations of alie nage by na Power of na- Where Her Majesty has entered into a convention with any turalized foreign State to the effect that the subjects or citizens of that subjects. State who have been naturalized as British subjects may divest themselves of their status as such subjects, it shall be lawful for Her Majesty by Order in Counoil, to declare that such convention has been entered into by Her Majesty and from and after the date of such Order in Council, any person being originally a subject or citizen of the State referred to in such Order, who has been naturalized as a British subject, may, within such limit of time as may be provided in the convention, make a declaration of alienage, and from and after the date of his so making such declaration such person shall be regarded as an alien, and as a subject of the State to which he originally belonged as aforesaid. A declaration of alienage may be made as follows: that is to say,If the declarant be within the United Kingdom in the presence of any Justice of the Peace, If elsewhere in Her Majesty's dominions in the presence of any Judge of any Court of civil or criminal jurisdiction, of any Justice of the Peace, or of any other officer for the time being authorised by law in the place in which the declarant is to administer an oath for any judicial or other legal purpose. If out of Her Majesty's dominions in the presence of any officer in the diplomatic or consular service of Her Majesty. Chapter X deprive This section is somewhat confusing. It deals with the cases in which naturalized aliens may divest themselves of their status, and at first sight appears to create a distinction in the matter of throwing off allegiance between natural-born subjects and naturalized subjects. From the way in which the section is drafted it would seem that once an alien has become a naturalized British subject, his right of ex-patriation, at least so far as his former State is concerned, is made subject to the existence of a convention. This confusion arises partly from the position of the section in the Act for it deals with the resumption of the national status of naturalized aliens before the right of aliens to become naturalized is established: and it refers to the declaration of alienage before that means of ex-patriation is dealt with as it affects natural-born subjects with double nationality, for whose benefit the declaration was devised. The object of the section is however quite different : it extends Right of ex- rather than contracts the privileges of naturalized subjects, for it patriation by declara- gives them the right of ex-patriation by declaration of alienage tion does not in lieu of naturalization, should they desire to revert to their fornaturalized mer nationality. But the section does not interfere in any way subjects of with naturalization under s. 7, which, it is presumed, may be right of naturalization. resorted to by naturalized subjects as by all other subjects. But right is This right however depends on the existence of a convendependent tion with the person's former State. It is therefore regarded as a privilege as indeed it is, the formalities attendant on naturalization being dispensed with. At present the only convention entered into is the one with the United States of 13th. May 1870, with the supplementary convention of 23rd. February 1871, which will be considered in a subsequent chapter. convention. : D-THE CONSEQUENCES OF EX-PATRIATION. Saving of Where any British subject has in pursuance of this Act become an alien, he shall not thereby be discharged from any liability in respect of any acts done before the date of his so becoming an alien. This section is drawn in general terms; it relates to both forms of ex-patriation, and to all who avail themselves of the privilege: that is, to British subjects, British-born subjects, and naturalized aliens, and whether they become aliens by naturalization or by declaration of alienage. |