Meaning of "deemed to have resumed". Chapter IV safe-guarding himself deliberately, as Mr. Dicey suggests, with the words" shall be deemed to have resumed".* Be that as it may, these words are sufficient to remove any difficulty of construction. There is more serious hiatus in the sub-section. In the case of parents the certificate of re-admission is in abeyance when they are within the State from which they are re-patriating themselves, if that State refuses to let them go. The resumption in the case of the children appears to be without this qualification. residence The re-admission of the children to British nationality is Condition of made subject to the condition that they have been resident with with parents. the father or widowed mother during infancy. This condition differs from the one imposed under the previous sub-section, because the residence in this case cannot apparently be independent of the parent. The law specifies no length of time for residence, only" during infancy ", and a question might arise whether this means during the whole of the previous life of the child. Probably it would be so in the case of young children, whose age would not have allowed them to fulfil the condition of five out of the previous eight years which is required of the parent but where their age permitted it, it might conceivably be held to mean that the residence should be during the whole of the parent's "probationary period". Whatever may be the construction put upon the condition, it cannot be without its importance in the educational question: and in the hypothetical cases put under the last sub-section, if the children had remained at school in England the question would solve itself: for Condition of where the expatriation of the parents has taken place during s. 10 (3) to have been fulfilled. the lifetime of the child, this sub-section finds no application unless the conditions for expatriation of the child under the previous sub-section have been fulfilled if they have not, the child has remained British. There is a still more important question raised by this subsection. The child's residence with its parents may be " in the British dominions", and is not limited to the United Kingdom. Apparent The fact is therefore recognized that the parents have been residence of residing in the dominions but beyond the United Kingdom: from the parents which the deduction might not unreasonably be drawn that resi conflict as to betweens. TO (4) and s. 8. *The legal value of the word "deemed "figures again in a most important question hereafter to be discussed, as to certain acts done beyond the jurisdiction which are deemed to have been done within the jurisdiction. Mr. Dicey's suggestion is I think the right one, and coincides with what I have suggested in the question of jurisdiction. Dominions. dence in the dominions is sufficient for the re-patriation of the Chapter IV parents. This appears to be in direct conflict with the condition Residence of attached by s. 8 to re-patriation, identical with that required for child in the naturalization, which is, that the residence must have been in the United Kingdom. Underlying this apparent difficulty is that fundamental distinction which is said to exist between nationality by birth and nationality by naturalization- that the former prevails throughout the dominions, but that the latter is limited to the United Kingdom. The effect of the sub-section cannot therefore be fully understood until this thorny question has been unravelled. Moreover the question is intimately connected with [see Chapthe subject of colonial nationality, and the powers of re-patria- and XV.] tion conferred on Colonial Governors by the last paragraph of s. 8, a subject which cannot as yet be considered. The discussion of this part of the sub-section must therefore be postponed for the present. (F).-CHILDREN OF A FATHER, OR OF A WIDOW, WHO BECOMES A NATURALIZED BRITISH SUBJECT. 32 & 33 Vict. c. 14, s. 10 (5). ters XIV Where the father, or the mother being a widow, has obtained a Act of 1870. certificate of naturalization in the United Kingdom, every child of such father or mother who during infancy has become resident with such father or mother in any part of the United Kingdom,* or with such father while in the service of the Crown out of the United Kingdom*, shall be deemed to be a naturalized British subject. The words printed within asterisks were added to the subsection by s. 1 (1) of the Naturalization Act, 1223, which is as follows 58 & 59 Vict. c. 43, s. 1 (1) The residence of a child of a naturalized British subject with his Act of 1893. father while in the service of the Crown out of the United Kingdom, shall have, and be deemed always to have had, the same effect, for the purpose of sub-section (5) of section 10 of the Naturalization Act, 1870, as residence with such father in the United Kingdom. The second sub-section introduced the words into s. 10(5) of the principal Act as printed above, allowing them to be inserted in every copy of that Act thereafter printed. The fifth sub-section of s. 10 lays down the conditions under Condition of which the infant children of foreigners, who become naturalized residence with parents. in the United Kingdom, may adopt the new nationality of their parents. Since the naturalization of the parent was not granted without a period of residence, it was natural that a similar condition should be attached to the admission of the children to Chapter IV British nationality, and therefore we find the condition that there must be residence with the parent during infancy. The remarks made as to the meaning of the condition in sub-s. (4) will apply also to this sub-cection. The sub-section may lead to cases of no-nationality. It is quite conceivable that the law of the State to which the foreigner Case of no- belongs, should provide that the expatriation of the father involves nationality under the the expatriation of the minor children. They would then cease to sub-section. be subjects of that State, and if by chance they had not fulfilled the condition of s. 10(5), they would not become British subjects. The amendment of the law introduced by the Act of 1893 Amendment supplies a manifest hiatus in the old law: for, seeing that the alterintroduced native condition for naturalization is serving the Crown abroad, it by Act of 1893. was only logical that the children of such persons should also be recognised as naturalized subjects, on fulfilling the same condition of residence with the parent during infancy. Otherwise they could not become British subjects till their majority. Act is re The Act of 1893 is retrospective. The residence of the child trospective. with the father abroad in the service of the Crown is to be deemed always to have had the same effect as residence in the United Kingdom with the parent. In other words, all children in this predicament, who had during the 23 years between the passing of the Act been aliens, were thenceforward to be considered as if they had not been aliens but naturalized subjects. It is possible that curious questions might arise out of this ex post facto alteration of their national status. parents at (IV).-EXCEPTIONS TO THE STATUTORY RULES. The statute of Edward III and that of Anne laid down Children of in general terms the law of nationality in the case of birth tainted of abroad. The first exception is contained in s. 2 of the Act time of birth. 4 George II, c. 21, and relates to children of parents attainted of treason, or in the actual service of foreign Princes in enmity with the Crown. It provides as follows treason at 4 George II, c. 21, s. 2. treason, and Children of Nothing in the said recited Act 7 Anne c. 5, or in this prepersons at sent Act contained, did, doth, or shall extend or ought to be tainted of construed, adjudged, or taken to extend to make any children others born or to be born out of the ligeance of the Crown of England cepted. or of the Crown of Great Britain, to be natural-born subjects of the Crown of England or Great Britain, ex whose fathers at the time of the birth of such children respectively. were or shall be attainted of high treason by judgment, outlawry, or Chapter IV otherwise, either in this Kingdom or in Ireland; or whose fathers at the time of the birth of such children respectively by any law or laws made in this Kingdom or in Ireland were or shall be liable to the penalties of high treason or felony in case of their returning into this kingdom or into Ireland without the license of His Majesty His Heirs or Successors, or of any of His Majesty's Royal Predecessors; or whose fathers at the time of the birth of such children respectively, or in service were or shall be in the actual service of any foreign Prince or State then of ennemy. in enmity with the Crown of England or of Great Britain, all such children are, were, and shall be and remain in the same state,plight,and condition to all intents,constructions, and purposes whatsoever as they would have been in if the said Act, 7 Anne c. 5, or thispresent Act had never been made, anything in the said Act, 7 Anne c. 5, contained to the contrary in any wise notwithstanding. 13 Geo. III. These provisoes were applied by 13 George III, c, 21, s. 2, Exceptions to the persons made natural-born subjects by it, and their effect continued in in the statute of George II was declared not to have been touched by the passing of the new statute. 13 George III c. 21. s. 2. Provisoes of Nothing in this present Act contained shall extend, or be Since attainders were abolished the only exception which has any present application is the one which relates to service. with enemies of the Crown. Recent events have shewn that taking up arms against the King is an offence which men with treason in their minds do still commit. *[query, per Chapter V Chapter V Of Changes in the Sovereignty. The geographical aspect of nationality has been considered: Historical we must now deal with its historical aspect, for history is full of aspect of the incidents which have an important bearing on the question. Such subject. incidents as follow in the footsteps of war-capture and cession on the one side: declaration of independence on the otherbringing about dismemberment of an empire, changing the sovereignty, and so affecting the nationality of the individual. And there are incidents which come about in more peaceful fashionunion of kingdoms affecting the territory governed: union of Crowns, affecting the person of the Sovereign with their converse-rupture of the union, whether as regards the territory under the one Crown, or as regards the two Crowns no longer worn by one King. In such unions and ruptures there are also changes in the continuity of the sovereignty, and the nationality of the individual is affected. The ante nati and the post nati. Territories and islands in all parts of the globe have been added by conquest or cession to the dominions of the Crown of England: the North American plantations declared themselves to be no longer part of the British Empire. Aquitaine and Normandy have ceased to be "jewels of the English Crown": Scotland and Ireland are united with England into one Kingdom : King James VI of Scotland became by inheritance King James I of England: the King of England, by intervention of the Salic Law in the succession, can no longer wear the Crown of Hanover. These are the familiar instances of English history: the law resulting from the changes perhaps not so quite familiar. But there is one point from which we can start as to which there can be no difficulty, for it is independent of the fact whether the change has been brought about by war or peace. Seeing that nationality depends on birth, it is obvious that any variation in the law must depend on whether birth takes place before or after the change in the sovereignty and thus there are two distinct classes of persons with whom we have to deal-the ante nati and the post nati. |