Chapter XII qualifications are created by the electoral statutes. The contention which the proviso appears to have been designed to meet was probably, that as aliens were allowed to become freeholders they have now the necessary qualification for the franchise. But for a long time aliens had been allowed to be tenants of houses, and they have never exercised the occupation franchise. There is nothing in the Act which could in any way be pressed into an argument that, by granting to aliens the right to hold realty, it had disturbed either the common or the statute law as to the franchise. The common law went and goes further, as it does not allow aliens to sit in Parliament.

Municipal franchise.

Incapacity to be

The non-existence of the municipal franchise now depends in England on the Municipal Corporations Act, 1882; s. 9 of which is as follows

45 & 46 Vict. c 50, s. 9.

(1) A person shall not be deemed a burgess for any purpose of this Act unless he is enrolled as a burgess.

(2) A person shall not be entitled to be enrolled as a burgess unless he is qualified as follows:

*

(3) Every person so qualified shall be entitled to be enrolled as a burgess, unless he

(a) is an alien;

By s. 11 a person is not qualified to be elected or to be a counCouncillor. cillor unless he is lawfully enrolled as a burgess.

Meaning of

viso.

It is clear that this express provision could not have been disturbed by the grant of the right to aliens to hold land. Nor could the grant as to land have given any right to hold office. The second proviso is to the effect that the section "shall second pro- not entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property " as are expressly given to him by the section. This is the proviso of of "greatest safety ", but it is deceptive. The section does not confer greater rights than it professes to confer ; but on the other hand, the proviso cannot be construed to mean that the alien has no other rights in the United Kingdom than those which are conferred on him in respect of property by the section, which might appear at first sight to be its meaning. It is well established, for example, that the right to personalty existed at common law long before the Act of 1870 was passed.

The effect of the third proviso is to forestall the argument that the section had a retroactive effect, and safeguards the

interests of persons who had acquired rights to property, by Chapter XII disposition or devolution of law, prior to the passing of the Act, which were in any way dependent on the fact that aliens could not hold realty, and which they would not have acquired if aliens could have held such property.

14 Shares in

British

cf. p. 257.

The saving as to the ownership of British ships in s. might well have been made a fourth proviso to this section, as ships. in s. 3 of the Canadian Naturalization Act. It cannot be looked on as declaratory of the existence or non-existence of any right, but is merely what its marginal note explains it to be, a saving clause. It should be expanded thus: "Nothing in this Act shall be held to give an alien any qualification to be the owner of a British ship which he does not now otherwise possess, or in any way to affect the provisions of the Merchant Shipping Act," i.e. the Act of 1854. The real purport of s. 14 is probably to settle any question which might arise as to whether, in spite of the Merchant Shipping Act, a ship came within the words of s. 2, "real and personal property of every description."

The law as to ownership of British ships now depends on s. I of the Merchant Shipping Act of 1894. This section has already been printed in a dissected form on several occasions : it will now be convenient to set it out in full.

57 & 58 Vict. c. 60. s. 1.

Qualification A ship shall not be deemed to be a British ship unless owned Merchant for owning wholly by persons of the following description (in this Act referred Shipping British ship. to as persons qualified to be owners of British ships), namely,

(a) natural-born subjects:

(b) persons naturalized by or in pursuance of an Act of Parliament of the United Kingdom, or by or in pursuance of an Act or Ordinance of the proper legislative authority in a British possession:

(c) persons made denizens by letters of denization: and

(d) bodies corporate established under and subject to the laws of some part of Her Majesty's dominions, and having their principal place of business in those dominions :

Provided that any person who either

(i) being a natural-born British subject has taken the oath of allegiance to a foreign Sovereign or State or has otherwise become a citizen or subject of a foreign State: or

(ii) has been naturalized or made a denizen as aforesaid :

shall not be qualified to be the owner of a British ship unless, after taking the said oath, or becoming a citizen or subject of a foreign State, or on or after being naturalized or made denizen as aforesaid, he has taken the oath of allegiance to His Majesty the King, and is during the time he is owner of the

Act.

Chapter XII ship either resident in His Majesty's Dominions, or partner in a firm actually carrying on business in His Majesty's Dominions.

Application

cases of

The law seems so easy to state that it will appear strange of section to even to suggest that difficulties may arise in applying it. It is, double however, necessary to ascertain what is the exact position of nationality. aliens with regard to the ownership of British ships.

From time immemorial, the broad principle of the law has been to exclude aliens from the right to hold British ships. But when the occasion arose for putting this principle into statutory language, the draftsman must have been puzzled which of the two expressions to use—“British ships shall be owned only by British subjects," or "British ships shall not be owned by aliens "—for neither deals clearly with persons who fall under the ban of "double nationality."

It is evident that the mere statement of the difficulty which this twofold status involves is itself attended with difficulty; for while this term "British subject " evidently implies "British subject by British law," it is more than doubtful whether, under the circumstances of double nationality, the term “alien" implies "the subject of another country by the law of that country." It probably should be construed to mean a person who is "not a British subject by British law." Expressions used in an Act of Parliament must be construed according to British law, and it would therefore seem, on the face of it, to be immaterial which form of statement was adopted, for persons with two nationalities-one British, one foreignwould in the eye of the law be British subjects and not aliens : the law not regarding the fact of double nationality. Yet the intention of the old principle governing the tenure of British Examination ships was clearly to exclude persons who are in spirit and in of special fact aliens. The following cases require special examination. First, persons born abroad who are British subjects by statute. If they are born in a country where nationality is governed by the lex soli, they are subjects of that country as well as British subjects. But they fall clearly within the spirit of the old principle, and should not be excluded from the right to own British ships.

cases.

Secondly, persons of foreign descent, born within the dominions. They are British subjects by British law, and fall within the words of the Merchant Shipping Act, yet they

are aliens in every sense except the legal. It cannot have Chapter XII been the meaning of the old principle that they should be entitled to hold shares in, or for that matter the whole of, a British ship. Rather they fall within this principle if it could be stated in the form "no alien shall own a British ship."

The third case is even more at variance with the spirit of the old law, for the children of such foreigners, though born abroad, and the children of such children, though born abroad, are also British subjects under the statutes; and they also come within the words of the Merchant Shipping Act.

The case of persons who have two nationalities does not seem to have been specially considered by the framers of the Act. The only words which might possibly be construed as having reference to them are those in the proviso which relate to persons who have "otherwise become" subjects of a foreign State. It does not seem possible to apply these words to a person who is at the time of his birth a subject of a foreign State. Such a construction would exclude all British subjects who have a second nationality. The position is only one more example of the puzzles caused by double nationality.

The proviso of the section further deals specially with a Subjects certain class of aliens-natural-born British subjects who have naturalized been naturalized in a foreign State.

abroad may

own British

It will be convenient, as before, to print the provisions ships. applicable to them separately. Omitting the reference to cases of "modified expatriation," which have already been cf. p. 157. dealt with, the proviso runs as follows :—

Provided that any person who ...

(i) being a natural-born British subject has . . . become a citizen or subject of a foreign State :

shall not be qualified to be the owner of a British ship unless, after . . becoming a citizen or subject of a foreign State, . . . he has taken the oath of allegiance to His Majesty the King, and is during the time he is owner of the ship either resident in His Majesty's dominions, or partner in a firm. actually carrying on business in His Majesty's dominions.

There cannot be any doubt upon two points; first, that the only recognised way by which a British subject can become a subject of another State is by naturalization into that State; secondly, that the result of such naturalization is, in the words of s. 6 of the Naturalization Act, that the person is to "be

Chapter XII deemed to have ceased to be a British subject, and be regarded as an alien." The result is, that, subject to the fulfilment of certain conditions—the taking the oath of allegiance to the King (which of itself does not remake him a subject or the King) and residing in the dominions, or being a partner in a firm carrying on business in the dominions-this category of aliens may be owners of British ships.

Bodies corporate

with foreign members.

Firms with foreign partners.

Whether this derogation from a time-honoured rule was intended in 1894, is a question which I refrain from discussing; but it is permissible to suggest that there has been a repetition of the provisions of the Merchant Shipping Act of 1854 without full consideration of the consequences. At that time there was no such thing as expatriation, and it may well be that under those circumstances the tenure of British ships by persons who, though they had become subjects of a foreign State, yet remained British subjects, might have been sanctioned. The only other possible construction of this sentence of the proviso is that the words "become a citizen or subject of a foreign State" are surplusage, the words "being a natural-born British subject " having a continuing intention; but then the case to which the sentence refers could not arise.

The proviso does not limit in any way paragraph (d) of the section, which relates to bodies corporate. If, therefore, there is no restriction by the laws of that part of the dominions in which the body corporate is established, against aliens being members of such bodies, they can in this way become joint owners of British ships. Under the English Companies Act there is nothing to prevent a body corporate registered under the Act from being composed entirely of foreigners. It will be observed that the company in question need not have its principal place of business in that part of the dominions in which it is registered.

So far as firms are concerned, their right to hold British ships as a firm must depend on whether each of the partners is qualified to hold. The position of alien partners is sufficiently indicated in the section.

These questions are not without importance in colonies where many foreigners are trading, in view of the provisions of the section which have reference to the dominions, for “British ship" includes ships registered in the colonies.