ing a reference to the Courts in cases of difficulty: but the Act Chapter XIII has not done this, nor has it provided that the Courts, in the event of the question of the person's nationality coming before them, should accept the finding of the Secretary of State. Both these omissions show, and I suggest conclusively, that nothing can have been further from the intention of the Legislature than to give the Secretary of State such a power. the Courts 22 Vict. c. 93. ed under Moreover, there is another Act, the Legitimacy Declara- But may be tion Act, 1858, which does in fact give this power to the Courts. settled by The probabilities, therefore, are against this contention. But any under 21 & doubt as to whether this is the meaning of the provision or not is settled in the negative by the clause itself: for it expressly provides that the special certificate is to be granted "in manner aforesaid". That to say, the special certificate of naturalization is to Certificate be granted in the same manner as the ordinary certificate of to be grantnaturalization. "In the same manner" can only mean " subject same condito the same conditions ". And these conditions are, residence in tons as certhe United Kingdom, or service under the Crown, for not less naturalizathan five during the eight years preceding the application, with intention of permanent residence, or continued service, after the grant of the certificate. The Secretary of State may further require the same evidence, and is to exercise the same absolute discretion, as in the ordinary cases; and the certificate is only to take effect after the oath of allegiance has been administered. tificate of tion. not arise in Why should such conditions be required to be fulfilled in order to enable doubts as to a person's nationality to be solved? How will doubts which have arisen as to a person's nationality, by reason of difficulties in proving the birth-place, in the United Kingdom, either of himself or of his father or grandfather, be Doubts do solved by the fulfilment of such conditions? The doubts do connection not arise in connection with the facts on which the grant with facts required to of the certificate depends: either as to the period of the ap- be proved. plicant's residence in the United Kingdom, or of his service under the Crown, or as to his intentions, or as to his respectability or loyalty, or as to the qualifications of his four guarantors. Nor again, can they be connected with such personal matters as are referred to in the memorial-his name, address, age, profession, trade or occupation : whether he is married, whether he has children, whether they are under age or whether they reside with him. There is only one other allegation required for Chapter XIII the usual memorial-" of what foreign State the applicant is a subject": and the basis on which the special application rests is that there is a doubt as to this. cable where But then, the conditions on which the special certificate will be granted being precisely identical with those on which the usual certificate is granted, the questions immediately suggest themselves: if the conditions of naturalization have to be fulfilled, why should not the person resort to naturalization? why should there be any special procedure? The reason is the following. Naturaliza- There is a doubt as to the applicant's nationality. He cannot tion inappli- therefore make the usual application, nor can the usual certifidoubts exist cate be granted to him; for that would be to assume that he is asto whether person is or an alien, whereas it might ultimately be decided that he was is not a British subject. quiets not or, if he is in fact a British subject, it would profess to make him what he actually is. The grant of the usual certificate would prejudge, and might prejudice, the ultimate determination of the doubtful question. It being therefore doubtful whether the case is one to which the ordinary certificate is applicable, the Act has provided a special certificate, with this special condition attached to it, that it is not to be "deemed to be any admission that the person to whom it was granted was not previously a British subject". The converse of this condition must also be implied: that the grant does not prove that the person was not a British subject. Special cerThe meaning now seems clear: the grant does not profess tificate only to settle the doubts, only to quiet them. It enables the person to doubts but prosecute his case for declaration of British nationality under does not set the Act of 1858, if he should be so minded, and by this means to tle them. have the doubts absolutely settled by the Court. The Secretary of State being satisfied as to the existence of the doubts, puts the person in the same position as an alien who has become naturalized. The special certificate has the same effect as the usual certificate but there is a curious omission with regard to it. The grant is not made subject to steps being taken to bring about the ultimate settlement of the doubts which the grant of it has quieted and from this it might well be said that it matters little whether the doubts are bona fide or not. A concrete case will show that, although the Secretary of State has no responsibility of certificate. thrown on him so far as the settlement of the doubts are con- Chapter XIII cerned, yet it is important that he should be satisfied that there are in fact doubts of a serious nature. To revert to the illustra- Practical tion already given, if the applicant were party to a suit in importance which his right to hold shares in a British ship was challenged, the probable effect of the Secretary of State's certificate would be practically that of an interim order allowing him to continue in possession for with the certificate he could at least hold as a naturalized subject, while without it he would be an alien, and there might be difficulties as to his capacity to continue on the register. THE LEGITIMACY DECLARATION ACT, 1868. The settlement of doubts is vested in the Courts by statute The Act for declaring passed in 1858, known as the Legitimacy Declaration Act, a Legitimacy short title which excludes part of the purport of the legisla- and Natio nality. tion. It is really a Legitimacy and Nationality Declaration Act, for it was passed in order " to enable persons to establish their legitimacy, and the marriage of their parents and others from whom they may be descended, and also to enable persons to establish their right to be deemed natural-born subjects." This is the preamble, and it shows at once the essential difference between the object of the Act and that of the section just con- Essential sidered. Persons are enabled to establish their right to be deem- difference ed natural-born British subjects, and therefore all those doubts Act and the as to which reference has been made at the commencement of this chapter, more especially those in connection with the person's birth-place, may be brought for solution to the Courts. between the rection. It will thus be seen that the Act has a twofold operation ; the first, which its short title explains, the settlement of doubts as to legitimacy: the second, which directly concerns our subject, the settlement of doubts as to British nationality. The reason for joining the two subjects in one Act is not at first sight clear: but it is apparently the following-It is provided that a declaration of legitimacy can only be applied for by a naturalborn British subject: but the right to be a British subject may itself depend on the settlement of doubts as to legitimacy. Hence doubts as to legitimacy and doubts as to nationality became in- legitimacy terlocked; and it was not unnatural that when the Act allowed and national Questions of interlocked. Chapter XIII complicated questions of legitimacy to be settled by the Court, it should have gone further, and allowed cases of doubtful nationality also to be settled by the same procedure. The first two sections of the Act are as follow: 21 & 22 Vict. c. 93, ss. 1, 2. vorce Court Applica 1-Any natural-born subject of the Queen, or any person cation to Di- whose right to be deemed a natural-born subject depends for declara- wholly or in part on his legitimacy or on the validity of a martion of legiti- riage, being domiciled in England or Ireland, or claiming any macy or vali- real or personal estate situate in England, may apply by petidity or inva- tion to the Court for Divorce and Matrimonial Causes,* praylidity of mar- ing the Court for a decree declaring that the petitioner is the riage. legitimate child of his parents, and that the marriage of his father and mother, or of his grandfather and grandmother, was a valid marriage, or for a decree declaring either of the matters aforesaid : and any such subject or person, being so domiciled or claiming as aforesaid, may in like manner apply to such Court for a decree declaring that his marriage was or is a valid marriage, and such Court shall have jurisdiction to hear and determine such application and to make such decree declaratory of the legitimacy or illegitimacy of such person, or of the validity or invalidity of such marriage, as to the Court may seem just : and such decree, except as herein-after mentioned, shall be binding to all intents and purposes on Her Majesty and on all persons whomsoever. tion of right Applica 2-Any person, being so domiciled or claiming as aforetion to Court said, may apply by petition to the said Court for a decree for declara declaratory of his right to be deemed a natural-born subject to be deemed of Her Majesty, and the said Court shall have jurisdiction to a natural- hear and determine such application and to make such decree born subject. thereon as to the Court may seem just and where such application as last aforesaid is made by the person making such application as herein mentioned for a decree declaring his legitimacy or the validity of a marriage, both applications may be included in the same petition and every decree made by the said Court shall, except as hereinafter mentioned, be valid and binding to all intents and purposes upon Her Majesty and all persons whomsoever. This enactment has been criticised as being difficult to construe, and as failing to give all the relief intended by its drafters. If this is a true criticism with regard to ordinary questions of legitimacy, it is doubly true when doubtful questions of nationNecessity ality complicate the issue. The drafting itself is most confused and the subjects of legitimacy, validity of marriage, and nationality are so mixed together, that the sections need the most careful unravelling to understand them. analysis of the Act. Nationality being one of the issues, it will be useful to repeat here the definition of natural-born subjects given on p. 53. *Now the Probate Division of the High Court. Natural-born British subjects are: (a) Children born within the dominions : Chapter XIII Definition of (b) Children born abroad of a father who falls within cate-natural-born gory (a) :-(7 Anne, c. 7, and 4 George II, c. 21). (c) Children born abroad of a father who falls within category (b).—(13 George III, c. 21). British sub jects. tion of dif We must now proceed to examine the five different cases Examinawhich are provided for under ss. 1 and 2. There are two spe- ferent cases cial conditions attached to the applications, but these must be falling unreserved until the cases themselves have been examined. (A).—PETITION FOR DECLARATION OF LEGITIMACY, Case A-under s. 1. A natural-born subject may petition the Court for Example. Ha natural-born subject, the son of X the husband, and Y the wife. Question raised by the petition : is H legitimate ? The issues are: i. was H born in wedlock ? or der the Act. ii. were X and Y within the prohibited degrees? The issues The decree will be under i, declaratory of legitimacy of H, : or the reverse : under ii, declaratory of the validity of the So far as nationality of the parties is concerned H may be in category (a), (b) or (c) : X may be in either category: Y will be in the same category Presumably the marriage, in this and the following cases, and decree. not trans The marriage of the grandparents, also referred to in s. 1, has Illegitimacy no bearing on the question. Illegitimacy is not a transmissible of parents vice; and therefore the legitimacy of H will not be affected by missible. the fact that, from any cause, either of his parents, X or Y, is illegitimate. |