being involved: in which cases it is probable that his capacity to become "voluntarily "naturalized in another State would not be affected. The conclusion seems to be that at the time the question arises for decision, the law of both countries will be taken into account, both as to the fact of disability, and as to the consequences arising from it. Disability by the law of either country will prevent expatriation. Chapter X Practical result to minor This may be applied to the practical question which will present itself to an English minor desirous of becoming naturalized in a Englis country where full age begins at, say, 18. The answer is, that becoming although the formalities of naturalization in that country are ful-naturalized filled, yet the naturalization will be inoperative to destroy his English nationality-certainly in English Courts, and most probably in the Courts of any country. And so as to other disabilities. abroad. The foregoing argument is based on the general law as to disability: and if it is sound, it shows that the question would arise even though the condition were not inserted in the section: and, as has been already suggested, irrespective of the definition in s. 17. It would therefore apply to persons under curatorship, der curatorthe curatelle being in all cases created either by law or by express ship. decision. Person un not men operation of s. 6. In connection with this subject it is to be noticed that in s. 7, which deals with naturalization into the United Kingdom,the Disability question of disability is not referred to: yet it is clear that a minor ioned in s.7. cannot be naturalized under the Act of 1870. It is suggested that this would be held to mean a minor by the law of England. Section 6 is retroactive, and recognises naturalizations al. Retroactive, ready effected at the time of the passing of the Act. The Act of 1870, did not recognise nataralization into a foreign State, and ex-p atriation was therefore unknown prior to 1870. Such naturalizations would, in virtue of the common law, have been inoperative, and would, therefore, have given rise in all cases to double nationality. But the retroactive provision was two-edged : on the one hand it sanctioned the ex-patriation of those who had really desired to cease to be British subjects: but on the other hand, without some modification, it would have treated as expatriated many who had never intended, by being naturalized abroad, to cast off their British allegiance. There were probably at the time the Act of 1870 was passed, many who had adopted for convenience a foreign nationality-convenience of residence.con Chapter Xvenience of commerce: neither of which in some States is so free for foreigners as for subjects. Naturalizations before the Act. Declara tions of British It can hardly be said that the law sanctioned this, for it certainly still asserted the common law maxim, and there was a provision in existence at the time with regard to the ownership of British ships, which would probably have been applied against them, the case arising. There is no explanation in the books what the actual position of affairs was; nor is there any authority dealing with the interesting question, what was the practical result of this ex post facto recognition of the hitherto unrecognised naturalization. When it was decided to recognise naturalizations for the future, and when the logical consequence, the recognition of naturalizations in the past had also been decided on, it became necessary to provide for those who had not intended to cast themselves adrift from their British allegiance, which the law had compelled them to retain. Hence the proviso, that within two years after the passing of the Act, the foreign allegiance might be cast off by the simple means of a "declaration of British nationality". After that time their naturalization in a foreign State nationality, was to be given effect to, and they would be held to be its subject. Nevertheless, it seemed expedient that the same deference, which it was the fundamental principle of the Act should be paid Recognition to the law of the person's former State in the case of foreigners of existing naturaliza naturalizing themselves in the United Kingdom, should also be tions made paid in this case*: the same proviso was, therefore, attached to the resumption of British nationality by means of the declaraforeign State tion, as is attached to naturalization itself into the United Kingwithin that dom. If the person had not ceased to be a subject of the State into which he had been naturalized, he was not to be deemed, when within the limits of that State, to be a British subject. subject to law of when person State. This did not completely remove the consequences of the double nationality which had in fact been created in spite of the English common law : for the foreign allegiance could only have been cast off so far as the United Kingdom was concerned. It remained unless, which is not probable, the foreign State recognised the "declaration of nationality "as equivalent to natu *This inverts the order of the provisions of the Act, as we are now dealing with s. 6, and naturalization is dealt with in s. 7. The arrangement of the sections of the Act is one of its most curious features : but it is suggested that the statement in the text is fully warranted, as it takes the Act as a whole, and the principles laid down with regard to naturalization as being the fundamental principles of the legislation. ralization. The usual questions connected with double nationality Chapter X would have resulted: though in this case there is a new element. introduced by the fact, which must now be considered, that the original English nationality was held by English law never to have been lost. allowed Although the time for making this declaration expired two Two years years after the passing of the Act, yet there may still be some after paspersons alive for whose bene fit it was inserted: or, if they them- sing of Act for making selves are dead, it may still be of importance to their descendants declaration. to know whether in point of fact such a declaration was or was not made. The evidence required to prove the fact of its having been made, and the oath of allegiance taken, is indicated in the second clause of the proviso. But when we come to the effect of the declaration, it is necessary to see what the consequence of the limitation is, and to compare it with the limitation imposed by the law on the effect of certificates of naturalization. tion may between Now, it will be observed that the words "shall be entitled in But questhe United Kingdom ", which caused so much difficulty in s. 7, do still be not appear. There is simply the provision that when the person important. who has made the declaration is in the foreign State in which he has been naturalized he will not, under the circumstances specified, be considered to be a British subject. There can be no dif- Comparison ficulty in interpreting these words. Nor are the words "in the limitation as United Kingdom" used, as they are used for the second time in to certifis. 7, in connection with the rights acquired or obligations resul- turalization ting from the declaration of nationality. The person who made and as to it was simply "deemed to be and to have been continually a British of nationality. subject ". Again there can be no difficulty in interpreting the words: the status of British subject was to be held never to have been interrupted. These words were deliberately chosen to fit in with the thenexpiring common law: the continuity of British nationality was held never to have been broken: and this idea was also carried out in the words used with regard to the person himself, who was described as being "desirous of remaining a British subject ". cates of na declarations limitation on persons still For such persons as are still alive this provision is still ope- Effect of rative but where the persons are dead, it has probably ceased to be of importance to determine whether or not they were British alive. subjects; for the circumstances under which there would have been a suspension of British nationality in spite of the decla Consequences when person dead. Chapter X ration can no more arise, except in one case. If the person had died in the country in which he had been naturalized, then, if by the laws of that State he was still considered a subject, his British nationality would have been in suspense, and he would, even by English law, have been deemed at the time of his death, a subject of that State; and the same decision would be arrived at any Court whose duty it was to review the circumWhen death stances, and pronounce what his nationality was. This hardly Occurred in exhausts the question, for although his nationality at the time of which per- his death is determined in this way, it does not follow as a matter turalized. of course that all questions of rights and obligations, whether of himself or of his descendants, would he determined according to that nationality. An enquiry into possible cases would lead us too far afield; it must therefore be sufficient to have indicated what will be the basis of argument should such a question ever arise in the Courts. State in son was na No condi dence attached to No condition of residence was attached to the declaration, tion of resi- the second clause of the proviso expressly providing that it could be made before diplomatic or consular officers out of the domideclaration. nions. This again is the logical consequence of the fundamental idea of the section, that if the declaration was made the British nationality had never ceased to exist. Nationality who made declarations of nationality. This question of residence is of importance as regards the of children children born abroad, even during the period between the natuof persons ralization and the making of the declaration. The father being a natural-born subject, the children would have been entitled to the benefit of the statute of George II, and would also be British subjects. In this there is an important difference between the declaration of nationality and the certificate of naturalization. The children of such children would be British subjects under the statute of George III. Declaration B-BY BRITISH-BORN SUBJECTS. Declarations of Alienage. Section 4 of the Act deals with a different class of persons, of alienage, with a different order of ideas, and with a different process of expatriation. The marginal note is "How British born subject may cease to be such": the witnessing document is called a declaration of alienage". 33 & 34 Vict. c. 14, s. 4. How British Any person who by reason of his having been born within Any person who is born out of Her Majesty's dominions of a father being a British subject may, if of full age and not under any disability, make a declaration of alienage in manner aforesaid, and from and after making such declaration shall cease to be a British subject. Chapter X the Section inbe- give relief in tended to cases of The declaration of alienage is intended to give relief in cases of double nationality which result from the conflict tween the jus soli and jus sanguinis: it may be said to be Eng- double gland's contribution to the settlement of the difficulties which tionality. result from her adherence to the former principle. The section deals with two classes of persons: those who are made British subjects compulsorily by the common law, on account of their birth in the United Kingdom : and those who are made British subjects compulsorily by statute, although they are born abroad. Relief from the operation of the Common Law. na Subjects by The class of cases aimed at in this part of the section are Law. those where the accident of birth in the United Kingdom has made the children of foreigners natural-born British subjects. Children of foreigners During their minority they are British subjects; but they are born in allowed, when they come of age, to throw off this imposed na- Kingdom. tionality by making a declaration of alienage: after which time they cease to be British subjects. United tion in ap There can be little doubt that the persons referred to could, if they so desired, cease to be British subjects by naturalization in a foreign State so far as English law is concerned. But, being also subjects of another State by parentage, the process of natu- Naturalizaralization in that State would be impossible; and therefore in plicable. order to enable the British nationality to be abandoned in an expeditious manner, the declaration of alienage has been substituted. The person making it must be "of full of age, and not under any disability." Person makOnce more we come across the question of disability, though ing declarastated in a slightly fuller form than in s. 6, where the words used tion not to were simply "not under the disability ". This however is a mere disability. be under |