noverians do

attempt to establish that the ante nati were in the same position Chapter V as the post nati: more especially that part which relates to the subjects of both of the King's kingdoms making their swords good against a common enemy. The only term which at all ex- Persons in the position presses the status of these persons is "non-alienage"; that is, of the Hathey are not aliens to one another. It is not even accurate to say, not even as at the commencement of the chapter it was said, that they possess the rights of possess the rights of natural-born subjects. It needs no demonstration to admit that they do not come within the scope of the born subjects. statutes of Anne and George II: a fortiori of the statute of George III: that is to say, their children born abroad would not be eg. under natural-born subjects, but, the union continuing, such children of George would be in like predicament with their fathers. These indeed II. are the two classes of claimants to the franchise which were disposed of without argument in the Stepney Petition case.

the statute

for all age."

The rights which they possess cannot be other than those Rights flowing from which flow from "non-alienage ". They may do what an alien "non-aliencannot do for they are not aliens. Thus they can vote may vote who are not aliens, and who possess the other necessary qualifications. So, they can hold lands: for here again the statement of the right is prohibitory, rather than permissive it is not "all subjects may hold lands", but "no alien may hold lands". But this is very different from saying that they have all the rights of natural-born British subjects, for this would include rights which are expressly limited in their enjoyment to British subjects, which they are not, but only subjects of a King who is also King of Great Britain.

rule in

Petition

vote.

But if the rule in Calvin's case even thus modified is difficult Difficulties to understand, the rule in the Stepney Petition case has difficul- in applying ties peculiar to itself; and it is not easy to work out from it, in Stepney all the details, the consequences of severance, or cessation of case. union of Crowns. In the case of the franchise the vote is given and done with it is a right of a temporary nature; a man has Right to the right to vote under then existing circumstances in 1836: and these circumstances having changed, he has not the right to vote in 1838. But the holding of lands depends on a right Right to of a different nature, and it is not easy to fit on to it a termina- hold lands ble tenure and in the case of devolution of lands it is still more difficult to follow. If, when the union of Crowns comes to an end, the joint subjects of the same King fall asunder and

-or ships.

Chapter V become the several subjects of several Kings, then the status of non-alienage" comes to an end, and “alienage

99 supervenes. And with alienage all its consequences, one of which was the absence of any right to hold lands.

It is necessary for the sake of argument to treat the case as it would have been treated prior to the change in the law as to tenure of lands by aliens in 1870: the principle obviously covers any right not enjoyable by aliens in the present day, and in applying it we need only substitute British ships for British land. Consequen- What then is to be the result when alienage supervenes? Is "non-alien- the tenure to come to an end, and those who hold to be disage" is seized? And what of those who hold by inheritance from ancesreplaced by alienage" tors who held in their own right as non-aliens?

ces when

are not

clear.

Consequen

ces of

ment the same in

I do not profess to give the answers to these questions. If the case should arise it may be that the Courts would devise a new doctrine-perhaps, that those who have held the right once in virtue of their non-alienage, should not be subsequently dispossessed by their subsequent alienage. It might be that now that the Courts have expounded the law, Parliament would intervene should ever the occasion again arise to settle the question, as similar questions are settled by treaties of cession. It is permitted perhaps to say that Lord Coleridge's criticism of the old judgment— that

"the Judges never expected the case to arise, and did not trouble themselves to think out the consequences which would follow from their doctrine if a case they thought so improbable ever did arise "seems to be in part applicable to the new judgment : for assuredly its consequences were not fully thought out. The manifold difficulties which arise in applying the doctrine at least suggest the reflexion whether, in spite of the learning of it, and in spite of the subsequent acceptance of it as of the highest authority, the rule in Calvin's case does not require further investigation.

The consequences of dismemberment must naturally follow dismember- the same law as those of severance, for the incident of a rupture of a relationship hitherto existing between certain persons exists principle as in both cases: in the case of dismemberment however this rupture occurs as between persons who were in fact fellow-subjects. As dismemberments are generally evidenced by some document -a treaty of cession, or a recognition of a declaration of inde

the conse quences of severance.

Some points

settled by

pendence- it is more than probable that the question of subse- Chapter V quent tenure of lands will be specifically dealt with. Thus in the treaty between Great Britain and its former Colonies, the United usually States, there was a special provision to which Abbott C. J. treaty or alluded in Doe d. Thomas v. Acklam: the treaty provides that other "British subjects who then held lands in the territory of the United States, and American citizens who then held lands in the dominions of

document.

[2 B. & C.

799. Ru. Ca.

Case of the

His Majesty, should contiuue to held them, and might grant sell or 11, 632.] devise them, as if they were natives, and that neither they nor their heirs United or assigns should, as far as might respect the said lands, and the legal States. remedies incident thereto, be considered as aliens."

It does not appear that any similar provision was inserted with regard to the ownership of shares in British ships.

of the

is looked to.

In the case of compulsory severance there is a further point In cases of to be considered: although there is a transfer of allegiance en severance compulsory masse of the inhabitants of the country, regard is generally paid the wish to the wish of the individual as to leaving or adhering to the individual old allegiance the general principle tending towards fulfilment of the wish of the person in question, if clear evidence of is forthcoming. The cases which arose out of the declaration of independence of the United States are illustrative of this principle. The first case is Doe d. Thomas v. Acklam. James Ludlow [2 B. & C. was born in a part of America which was at the time a British [1, 632.] Colony; he was therefore a British subject. His daughter was Cases born after the recognition of the independence of the Colonies, of indeThe question was whether at the time of her birth her father was pendence of still a natural-born subject. It was answered in the nagative because after the Colonies had become United States, and their inhabitants generally citizens of those States,- James Ludlow by his continued residence in those States manifestly became a citizen of them ".

799. Ru. Ca.

arising out

United

States.

Declaration of severance

The effect of severance is thus stated by Abbott C. J."A relinquishment of the government of a territory is a relinquishment of authority over the inhabitants of that territory. A declaration that a State shall be free, sovereign, and independent, is a declaration that the people composing the State shall no longer be considered as imports subjects of the Sovereign by whom such a declaration is made."

cessation of old natio

In re Bruce is a similar case. A person born in Maryland in nality. 1764, and therefore like Ludlow a British subject, remained in [2 Cr. & J. 436.] the States after the treaty. The Court held "that the King having relinquished his claim to the allegiance of the American

Chapter V citizens, this particular American acquiesced in the relinquishment."

Deliberate

continued

residence

tion.

Ludlow and Bruce therefore, by continuing to reside in the States after the Declaration of Independence, were held to have after separa- deliberately accepted American citizenship. The question arises whether a deliberate acceptance of a new conditions is essential, and if so, what other evidence would support it, or would support the opposite, a deliberate refusal to accept the new conditions; in other words, whether these cases warrant the conclusion that the exercise of free-will or choice is allowed in the matter.

[5 B. & C. 771]

Residence commenced

nition of separation.

In Doe d. Auchmuty v. Mulcastle, we have an example of a person remaining a British subject in spite of continued residence in the new States. Auchmuty resided in New York during the revolutionary war within the British lines, and, serving in the Governor's company of volunteers, bore arms against the States until the peace. He embarked with British troops when they evacuated New York, and resided in England for two years. He then returned to New York in the employment of the British Government, and at the end of his employment he settled in the United States, married a British-born subject, and had four children. The case was clearly distinguishable from the others on the ground that Auchmuty had not "put off his allegiance at at the time of the treaty which enabled him to do so."

Abbott C. J., said that "it is not found that Auchmuty was after recog- at the time of the treaty in 1785 adhering to the United States." When therefore he resided in America after the treaty, he was in the same situation as if he had gone to reside in any other foreign country, and his children were expressly within the statute 4 George II c. 21, and entitled to the privileges of natural-born subjects of the King of England (Bailey J.)

[3 Knapp. P. C. 130].

There is one other similar case reported which arose in consequence of the cessions of territory stipulated in the Treaty of Versailles: Jephson v. Riera.

The plaintiff was a native of Minorca born in 1782, the daughter of Peter Walls, also a native of the Island, which at Case arising the of his birth belonged to Great Britain. In 1783 the Island was of Minorca. ceded to Spain. It was contended that after the cession Walls and his family adhered to the Spanish Government and aban.

from cession

doned their allegiance to Great Britain. On the other hand it Chapter V was proved that soon after the cession, and before the expiry of the time allowed by the treaty for the removal of their property, Walls left Minorca for England with the intention of never re turning thither to make it his place of domicile, and that from that time he never did return, but settled in Gibraltar. There was an attempt, apparently unsuccessful, to prove that he did in fact return to Minorca with the intention of obtaining employment there. The Privy Council held that, even if that fact Return to had been proved, it would not, in the presence of the previous try after facts, have warranted a finding that he had so returned under nationality circumstances which would have established his intention to aband on the privileges of British subject, which he had preserved to himself by his action within the period of protection provided by the treaty.

ceded coun

determined.

the cases.

Now in each of these cases the decision clearly turns on some Review of definite circumstance which occurred at the time of the severance in the case of Ludlow there was " continued residence": Bruce "remained in the States": Auchmuty, in spite of continued residence, bore arms against the States: Walls exercised the privilege of leaving Minorca which the treaty gave him.

tion of rule

The question we have to consider is, what is to determine Examinanationality in newly created States? Is the change of nationa- applicable. lity to be imposed on all the old subjects primâ facie: or is express proof of definite intention to assume the new allegiance necessary in each case? How far is any overt act necessary to indicate this intention?

What word soever be used to designate the state of mind. which brings about what in fact takes place on such occasions whether it be "option" or election", "taking advantage of the treaty", or "acquiescing in the relinquishment", it is clear that there is an active state of mind and not a passive one. Even the mere fact of remaining in the new State is the result of deliberate intention. Ludlow and Bruce remained when they might have departed. The circumstances inevitable to such a time tend to support the suggestion that some deliberate expression of desire on the part of all persons interested must be necessary to determine their subsequent allegiance.

Facts of the time necessi

'rate'exercise

The treaty being about to be entered into the consequences tate a delibeof remaining or of departing are clearly put before all persons of choice.