which naturalized. class of na Even in the case of those who were naturalized prior to the Act, Chapter XI and who were, after declaring their British nationality, held Qualificanever to have been other than British subjects, the qualification tion as to was introduced: it could hardly have been omitted in the case of country in those who resumed their nationality after naturalization expressly person recognised by the Act. The result is, however, the creation of a Section class of natural-born British subjects who are liable to lose their creates a nationality in a specified State. What has already been said as tural-born to the difficulties which may arise in the event of death in that with limited subjects country, in connection with the proviso to s. 6, applies also to rights. this case. The taint of the ex-patriation, therefore, is never com- [cf. p. 146.] pletely removed: but on the other hand, the consequences of naturalization being what they are, the privilege of resumption is great, for there is no limitation to the enjoyment of the rights in the United Kingdom" to prevent him being a ject throughout the Empire, and, save in that one which he once adhered, the world. British sub country to cants. The Instructions to applicants for certificates of re-admission Instructions to British nationality are framed on the same lines as those for to applialiens applying for certificates of naturalization, except that the applicant is required to verify his former British nationality by a declaration that he was a natural-born British subject "by reason of having been born in British territory, or by reason of his or her father or grandfather, by the father's side, having been a British subject". This, it has been pointed out, is the approach to a definition of British subject to be found: not statutory. The applicant has further to state the mode in which he became an alien. This clause in the Instructions refers only to naturalization and to widows, thus bearing out the suggestion made above as to the meaning of the term "statutory alien ". nearest but it is The resumption of the position of British subject is limited. by the words "but not in respect of any previous transaction ". This has already been referred to in the last chapter. The last paragraph of s. 8 deals with the powers of Governors of Colonies with regard to re-patriation: this subject will be considered in the chapter on colonial naturalization. A curious point must be here noticed, which will be more fully considered when we come to deal with the United States conventions. By s. 3, foreigners who have become British subjects cf. p. 52. Chapter XI and who desire to renounce their naturalization may, when there is a convention, re-patriate themselves into their former State Re-patriaby means of a declaration of alienage. Corresponding powers are tion of British sub- not taken in the Act on behalf of British subjects naturalized in jects in virthe contracting State, and therefore they would have, in spite of tue of convention, the convention, to go through the process of re-admission to not provided for. British nationality in all its details. 35&36 Vict. c. 39, Chapter XII The Naturalization Act, 1872, confirming the Supplementary Convention was confined to s. 2, and sanctioned a departure from the procedure traced out by the Act with regard to the formalities necessary for making declarations of alienage: formalities required by the Act of 1870 to be performed before British officers. This Act of 1872 allowed the declarations to be made before officers of the United States; but it does not apply to declarations made under s. 3. Chapter XII. Of "Temporary Allegiance"; and of the Rights of The expression "temporary allegiance" has long since passed into current use. It is meant to indicate the legal position of an Meaning of alien when within the realm, and to connote the assimilation in 66 temporary allegiance" many, but not all respects, of his position with that of a subject also within the realm; but it is an obviously inaccurate expression; hardly even a convenient one. It serves no good purpose to use words which have a definite meaning in a sense which conveys no meaning. If " temporary allegiance" were the accurate term for defining the position of an alien in the kingdom, the alien from whom such allegiance is due would also be accurately described as a "temporary subject": and it would then follow that while he was so temporarily subject, he would be entitled to the statutory rights specially conferred on subjects: an impossibility on the face of it. Allegiance is the term specially applicable to the relation of a subject to his Sovereign. The correlative of alle-· giance is protection: and the expression is supposed to find its justification in the facts that the protection of the Sovereign is accorded to an alien while he is in the country, and that obedience to the laws is required of him. But the position of an alien is not Misuse of the word allegian ce". completely assimilated to that of a subject. If there were any Chapter XII common law rights or duties consequent on allegiance in its ordinary meaning, such for example, as military service, it is hardly doubtful that they would not apply to an alien temporarily within the realm; and moreover there are certain statutory differences in his position to be presently examined. The more correct expression is that the foreigner while present in the realm, is "within the ligeance of the Crown"; it is used in the carliest statutes dealing with nationality, and occasionally also in judgments of the Courts. We have to enquire what are the rights and duties of aliens when they are within the ligeance. Position of resident same as that unless the contrary. The fundamental principle is that unless there is an express provision to the contrary, either by common law or statute, their aliens the position is the same as that of subjects. What are those express of subjects provisions to the contrary will be examined in this chapter. But rights may exist within the ligeance, though their pos- provision to sessor be beyond. A difficult question arises as to the position of aliens abroad Position of under statutes conferring rights exerciseable in the United King-pective of dom, when the aliens have fulfilled the statutory conditions on which those rights depend. This will be considered in a subsequent chapter but it may here be noted that the decisions start with the principle that aliens within the kingdom are as a rule in the same position as subjects, and are entitled to the same rights unless there is an express limitation. Even this does not complete the statement of the relations in which aliens stand to the Empire: for the law imposes many duties, and creates some privileges, on the high sea and abroad, and in a limited measure aliens come within the purview of them This subject will be dealt with in the chapters on extra-territorial legislation. aliens irres residence. The justification for the introduction of these subjects is in the Act of 1870 itself; it is called the Naturalization Act, but it professes to be an Act" to amend the law relating to the legal condition of aliens and British subjects "*. The 2nd. to the 5th. sections are grouped under the sectional title "Status of aliens in the United Kingdom": of these, ss. 3 and 4 have already been in Act of 1870 with Provisions *The full title of Sir Alexander Cockburn's essay is "Nationality or the Law re- to aliens. lating to Subjects and Aliens ". The detailed examination of the position of aliens is so mixed up with that of subjects, as to form an integral part of the question. Chapter XII considered : s. 2 deals with the capacity of aliens with regard to property: s. 5 does away with the jury de mediatate linguæ; and finally, at the end of the Act, s. 14 saves the provisions of the Merchant Shipping Act which operate to prevent aliens from owning shares in British ships. The provisions of the Act of 1870 must first be examined. Rights as to 33 & 34 Vict. c. 14, s. 2. Capacity of Real and personal property of every description may be an alien as to taken, acquired, held, and disposed of by an alien in the same property. manner in all respects as by a natural-born British subject: and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject: Provided, (1) That this section shall not confer any right on an alien to hold real property out of the United Kingdom, and shall not quality an alien for any office, or for any municipal, parliamentary, or other franchise: (7) That this section shall not entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him : (iii) That this section shall not affect any estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pursuance of any disposition made before the passing of this Act, or in pursuance of any devolution by law on the death of any person dying before the passing of this Act. id. Alien not s. 5. From and after the passing of this Act, an alien shall not be entitled to be tried by a jury de mediatate linguæ, jury de mebut shall be triable in the same manner as if he were a nadiatate lintural-born subject. guæ. id. Saving as to S. 14. Nothing in this Act contained shall qualify an alien to be British ships. the owner of a British ship. The right conferred on aliens by s. 2 extends to both real and property. personal property of every description, and is irrespective of residence in the United Kingdom: there does not seem, however, to have been any personalty which could not have been held by an alien previous to the Act. [L.R.9 P.D. 130.] The full extent of the right was discussed in Bloxam v. Fabre. The argument put forward was shortly this: that as the section gave to aliens a right to dispose of, as well as to hold realty," in the same manner in all respects as a natural-born British subject ", therefore an alien could avail himself of the privilege accorded to British subjects by Lord Kingsdown's Act-24 & 25 Vict. c. 114-of making wills abroad either by the lex loci, or by the law of the domicil, or by the law of that part of the dominions Chapter XII in which the testator had his domicil of origin. This very special right of the subject was held not to have been included in the grant to aliens of the right to dispose of real property. The Court of Appeal adopted the following statement of the under the law by Sir James Hannen 66 "I am of opinion that the words disposed of in the same manner in all respects as by a natural-born British subject " do include a disposition by will, but that in determining what is a valid will of an alien the general principles of law laid down by the Privy Council and House of Lords must still be applied." Cotton L. J. stated the law concisely thus:— "The object of the Act of 1870 was to remove the disabilities of aliens with regard to real property. According to the common law they could acquire property in England by purchase, but could not hold it against the Crown. The present Act enables them to hold it against the Crown, and to dispose of it. The words " in the same manner in all respects as by a natural-born British subject" occasion some difficulty; but looking at the object of the Act, I think we ought not to construe them as intended to confer upon aliens particular privileges given by a former statute to British subjects ".* No rights Wills Act, 1861. the provi soes to s. 2. hold lands Having gramed exceptional rights, the section then proceeds Meaning of to hedge them in which provisoes, which for the most part, be it said with deference to the draftsman, seem to deal with imaginary difficulties. It seems hardly necessary to have enacted that the section conferred no right on aliens to hold realty out of the United Kingdom. It is probable that the proviso had colonial lands No right to in view; but the statute did not apply and was not extended to out of the Colonies; it was purely territorial in its operation, and it United Kingdom. is difficult to see how the conferring of the right to hold realty in the United Kingdom, could possibly be construed into an interference with the powers of the legislative authorities of the Colonies to legislate for land within their own jurisdiction. The proviso omits personalty. tary fran The second part of the first proviso may be justified on the Parliamendraftsman's principle of greater safety". It is the only text chise not which refers to the disqualification of aliens for the parliamentary possessed franchise. But this depends on the common law, whereas the common by aliens by * In the chapter on extra-territorial legislation another argument in support of the decision will be given, which it would be premature at the present moment to consider. law. |