triation.

The section enunciates what is in fact a general principle, Chapter X that liability for any given act can only be determined as at the Consequentime the act was committed. Although, so far as it contains any ces of ex-padirection, the provision can only operate with respect to English Courts, yet it is more than probable that a foreign Court, if the question arose before it, would judge of the liability on this neral principle.

ge

liability.

The fact of liability is however only dealt with, and not with Section does the method of enforcing that liability. After ex-patriation the not affect procedure to newly made alien would in all probability be resident in his new enforce country the procedure of Order XI, as to service of writs out of the jurisdiction would then have to be resorted to. One of the results of ex-patriation would be a change of domicil, and it might well be that those rules would prevent action being brought in the English Courts.

The marginal note to the section is "saving of allegiance "Saving of allegiance", prior to ex-patriation ", and it may well be asked whether it was intended to do more than emphasize the fact that the general principle is not affected by the Act. But if the allegiance and all its consequences are "saved", it would appear that the intention. was that the new alien should remain liable for all acts done before ex-patriation as if he were still a British subject. Civil liability depends so seldom on nationality by English law that the question may be ignored so far as it is concerned. But, assuming that liability includes criminal as well as civil liability, the proposition is hardly tenable; for it would mean that a person naturalized into a foreign country, and therefore a subject of that country, is to be still treated as a British subject with regard to his former criminal acts. He could be tried if arrested in England, but extradition would be refused unless the treaty al- The queslowed subjects to be extradited. In the extradition treaty with with by ExFrance this is expressly stipulated.

tion dealt

patriation Treaties.

Native-born or naturalized subjects of either country are excepted with France. from extradition. In the case, however, of a person who, since the com- 1876: art. 2: mission of the crime or offence of which he is accused, or for which he has been convicted, has become naturalized in the country whence the surrender is sought, such naturalization shall not prevent the pursuit, arrest and extradition of such person, in conformity with the stipulations of the present Treaty.

But in the treaty with Germany, and in many other countries, the corresponding article which prevents the extradition of subjects does not contain a similar exception.

Chapter X

No German shall be delivered up by any of the Governments of the Empire to the Government of the United Kingdom; and no subject of the United Kingdom shall be delivered up by the Government thereof many, 1872 to any German Government.

with Ger

art. 3.

with Italy: 1873:

art. 2.

art. 3.

Converse principle.

as to re

In the treaty with Italy the extradition is allowed within five years of the naturalization.

The Italian Goverment shall not deliver up any Italian to the United Kingdom; and no subject of the United Kingdom shall be delivered up by it to the Italian Government.

In any case where an individual convicted or accused shall have obtained naturalization in either of the two Contracting States after the commission of the crime, such naturalization shall not prevent the search for, arrest, and delivery of the individual. The extradition may, however, be refused if five years have elapsed from the concession of naturalization, and the individual has been domiciled, from the concession thereof, in the State to which the application is made.

The converse of the general principle is also true that is to say, that the person who has become an alien shall not acquire thereby any liability in respect of his former acts. This is expressly provided in s. 8 with regard to re-admission to British nationality: the person re-patriated resumes his position as a Same prin- British subject, from the date of the re-admission, "but not in ciple in S. 8 respect of any previous transaction ". Had there been any express patriation. statement in s. 7, that from the date of the certificate of naturalization the alien assumes the status of British subject, the same sentence would probably have been inserted; though it is not clear why the word "transaction" is used, which would appear to leave the question open with regard to criminal acts. The broad rule may, therefore, be stated thus :-a change of nationality by no liability any of the recognised means does not either absolve from any created by pre-existing liability, nor create any new liability, in respect of nationality. acts done before the change.

General

principle:

change of

tion in

does not

We must now consider two questions connected with ex-patriation which lie outside the provisions of the Act.

NATURALIZATION INTO AN ENEMY STATE.

Nataraliza- Naturalization into a foreign State in amity with Great Brienemy State tain alone results in ex-patriation. If a person should become result in ex- naturalized into a State at war with this country it will be an act patriation of treason, and will be punished as such, the allegiance being but is high treason. held to be still subsisting.

This question was considered in the recent case of R. v. Chapter X Lynch, where the prisoner took the oath of allegiance to, and was [L.R. 1903, naturalized in, the South African Republic during the Boer war. i K.B. 444.1 It was not disputed that apart from the Act of 1870, naturalization in an enemy State would afford no defence to an indictment for high treason* for subsequent acts of warfare or in aid of warfare against the forces of the Crown; the King's Bench Division held that the permissive clauses of the Act had not altered the law. The argument was that s. 6 had given a general sanction to British subjects to become naturalized in foreign States, and that there was no limitation of that sanction. To this it was answered

"The section is not dealing with the circumstances under which naturalization may be legal or may be illegal, but with the consequences of the naturalization. It assumes throughout that naturalization did exist, and was not in itself unlawful, and then it says that where naturaliza, tion has taken place or may take place it shall have certain consequenIt does not make naturalization more legal or more illegal than it was before" (Channell J.)

ces.

The question may be viewed as one of disability, and therefore as not falling within the provisions of the section recognizing naturalization in a foreign State.

question.

In the argument of the Attorney General many authorities Authorities were quoted on the law irrespective of the Act. In some the rule on the was based on the proposition that the King's subjects cannot trade with an alien enemy without the King's license. The analogy does not seem to be thoroughly satisfactory, more especially in view of the exception. In others the question was treated on its own merits, and as an obvious principle.

"Now it is an obvious principle that an act of illegality can never be construed into an act of emigration or ex-patriation. At that rate treason and emigration, or treason and ex-patriation, would be in certain cases be synonymous terms. The cause of removal must be lawful : otherwise the emigrant acts contrary to his duty, and is justly charged [3 Dallas with a crime" [Paterson, J-Talbot v. Janson.]

NATURALIZATION INTO A STATE WHERE FOREIGN JURISDICTION

EXISTS.

I have suggested in another work that naturalization into a

*See the case of Fitch v. Weber referred to on p. 157:

Rep. U.S. 133-1

Chapter X State in which the King exercises foreign jurisdiction will probably not be recognised: that is, that it will not give rise to ex-paNaturalization in State triation.†

where

foreign jurisdiction exists does

ex-patria

tion.

The subject is a difficult and complicated one, and it is not possible here to do more than state briefly the nature of the not result in question involved. By the grant of privileges of exterritoriality the foreign Sovereign has parted with certain sovereign rights with regard to the alien community whose establishment in his territory he has sanctioned. That community is subject to the jurisdiction of its own Legislature and its own Courts. It is probably not true to say that he has ceased to be the Sovereign of the country so far as the Treaty Ports are concerned; but it is doubtful whether he can be said to have retained the naturalizing power as against the Sovereign with whom the exterritorial treaty has been entered into. The idea of a British subject becoming naturalized into such a State seems to be inconsistent with the principle of s. 6 of the Naturalization Act, which appears to contemplate the naturalization of a British subject into an independent State.

Both cases arise from consent

being unnecessary to ex-patria

The question may be looked at in another way. No British subject can enter China, for example, without coming under British consular jurisdiction. The Foreign Jurisdiction Act therefore operates upon him immediately, and would prevent him from availing himself of the provisions of Naturalization Act.

This also might possibly be regarded as a disability under s. 6 of the Act.

In both these cases the rule is the direct consequence of expatriation requiring no formal sanction. It is assumed in the authorities that express sanction might be given to naturalization under these circumstances, but it is not clear how such sanction could be given, except by Act of Parliament.*

MODIFIED EXPATRIATION.

Loss of certain Rights of Citizenship.

Apart from the provisions of the Act of 1870 which deal with naturalization in a foreign State, the consequences which result See" Exterritoriality "p. 156.

*See the quotation from Halleck's International Law, in the argument in R. v. Lynch, at p. 455.

oath of

allegiance to

Sovereign

from a British subject taking the oath of allegiance to a foreign Chapter X Sovereign, irrespective of his becoming naturalized, must be Consequenconsidered. If the taking the oath is by the law of the foreign ces of taking State equivalent and sufficient for naturalization, without other formality, that would result in ex-patriation under s. 6. But whe- foreign ther it amounts to complete naturalization in the foreign State without naor not, it is in some cases expressly provided by statute that turalization. taking the oath itself shall involve the loss of certain rights of citizenship. Thus, to revert once more to the ownership of British ships, there is the following proviso in s. 1 of the Merchant Merchant Shipping Act, 1894.

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

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

(a) natural-born British subjects:

provided that any person who...

**

(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:

shall not be qualified to be owner of a British ship unless, after taking the said oath, or 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.

It will be observed that the penalty imposed in this case is that the person never resumes his complete rights as a British subject with regard to owning ships, but is put in the same category as persons naturalized and denizens. Yet, not having been naturalized in the foreign State, he is in point of fact stil a natural-born British subject, and by his oath of allegiance to the King, may be presumed to have cancelled, so far as the King is concerned, his oath of allegiance to the foreign Sovereign.

Again in s. 44 of the Constitution of the Commonwealth of Australia, it is provided that

Provision in

Shipping
Act.

Provision in Common

any person who is under any acknowledgment of allegiance, obedience, wealth of or adherence to a foreign Power, or is a subject or a citizen or entitled Australia Act; to the rights or privileges of a subject or a citizen of a foreign Power, shall be incapable of being chosen or of sitting as a Senator or a mem- 63 & 64 ber of the House of Representatives. Vict. c. 12.]