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NATIONALITY:
OB THE
LAW RELATING TO SUBJECTS AND ALIENS,
4
CONSIDERED
WITH A VIEW TO FUTUKE LEGISLATION.
BY
THE EIGHT HON. SIR ALEX. COCKBURN,
LOBD CHIEF JUSTICE OF ENGLAND.
LONDON:
WILLIAM BIDGWAY, 169, PICCADILLY, W.
1869.
CONTENTS.
PAGE
Introduction ..... 3
CHAPTER I.—Nationality ... 6
Section 1. Nationality of Origin . . 6
„ 2. Law of Great Britain . 7
„ 3. Law of the United States . . 12
„ 4. Law of the Continental Nations . 13
„ 5. South American States . . 22
„ 6. Nationality of Married Women abroad 24
CHAPTER II.—Naturalization . .' . 26
Section 1. Conflict of Laws respecting it . 26
„ 2. British Naturalization . . 27
„ 3. Naturalization in the Colonies . 37
„ 4. Naturalization in the United States
of America ... 38
„ 5. Continental Naturalization . 41
CHAPTER III—Expatriation . . . 50
Section 1. Expatriation in general . . ^50
„ 2. Foreign Law ... 51
„ 3. Law of England and of the United States 63
CHAPTER IV.—Disputes abising pbom Conflict-
ing Claims ... 68
Section 1. Conflict of Laws ... 68
3, 2. Disputes between Great Britain and
the United States . . 70
„ 3. Claims of Protection . . 106
„ 4. Disputes between the United States
and other Countries . . 117
„ 5. Results of foregoing discussions . 135
2
CONtknts.
PAGE
CllAPTKK V. At.ikns .... 138
Section 1 High is and Disabilities in general . 138
„ 9. .Position of Aliens in this country . 139
„ 3. Position of Aliens in other countries 152
CHAPTNH VI. Amendment op thja Tmw . 1'/'/
Section 1 A8 to rights of Aliens . . 17V
„ 9. As to double Nationality . . 183
„ 3. Amendment as to Allegiance . 198
„ A- Naturalisation ... 203
CHAPTmiVM. Co^cj.ysiOK ... 214
INTRODUCTION.
It seems to be admitted on all hands that the
law of England respecting nationality, with refer-
ence to the circumstances under which the status of
a subject arises, or may be acquired, or, on the
other hand, may be put off, together with the law
relating to the disabilities of aliens, requires to be con-
sidered with a view to its alteration and amendment.
The conflict between the law of England and that
of so many of the leading nations of the world as to
the origin of nationality, and the inconvenience to
which such conflict may give rise, as well as the incon-
sistency of our rule as to the immutability of allegi-
ance, at a time when emigration from this country to
America is annually taking place on so large a scale,
are now so* sensibly felt, that an alteration of the law
has become inevitable. The observations of one of the
ablest public writers of the present day in the columns
of the Times, the recent Eeport of the Committee on
Foreign Affairs of the House of Eepresentatives of
the United States on the rights of American citizens
in foreign states, and the discussion of the sub-
ject by the press, having had the effect of directing
public attention to the subject, a Royal Commission
was appointed in May, 1868, to inquire and report
on the laws of naturalization and allegiance. The
Commissioners appointed under that Commission have
B
i
recently made their report, and have suggested certain
amendmen Is in the existing law. Some of their recom-
mendations everyone will approve of Others may be
open to exception In one highly important particular
the report falls short of what, in the opinion of the
minority of the Commission, it would have been expc
dient to recommend, As to this, a scpaiate report
having been sent in, with reasons for the di(Terence of
opinion, the public can judge for themselves The
Commissioners have supplied us with information
which will be eminently useful in forming an opinion
as to what is really required to be done in the
way of alteration of the law. They have collected
and published in the form of an appendix to the
report a considerable body of valuable information
as to the law of the various nations of Kurope and
America on the important subjects with which the
Commission had to deal Unfortunately the informa-
tion thus furnished is not embodied in the report,
and it is probable that but few persons will pro-
ceed further than the report, or take the trouble to
go through the numerous documents contained in
the appendix Yet a knowledge of these matters is
necessary to the proper understanding of the subject
in all its bearings, it being important to sec how
the law of this country conflicts with that of other
nations, and to appreciate the embarrassment and
inconvenience which arise from this antagonism
This is the more necessary as the report of the Com-
missioners, however excellent in some respects, when
the subject is looked at by the light thus thrown on
it, is not altogether satisfactory, and will leave at all
events one great source of difficulty unremedied.
Under these circumstances, it has occurred to the
writer that it might be useful to place before the
public, so far as is necessary for the present purpose,
the law of other countries on the subject of nationality,
as collected from foreign codes and from the materials
furnished by the Commissioners, to contrast those laws
with our own, and to offer in a condensed form the in-
formation scattered over the pages of the appendix,
not always in the most systematic manner, as to
the instances in which embarrassment has arisen from
the working of conflicting laws.
With these data before us, we shall be better able to
judge between the opposite opinions of the two sec-
tions of the Commissioners, and to consider what ought
properly to be done in the way of legislation, in order
to place the law relating to nationality on a sound and
satisfactory basis, so as at the same time to avoid col-
lision with other nations, and to protect individuals
against conflicting claims to their allegiance. We
shall be then able to judge how far it is important, in
order to prevent misunderstanding between govern-
ments, that the law relating to nationality should be
uniform among civilized nations, and to form a
rational opinion as to what the law ought to be, and
what we ought to invite other nations to make it.
b 2
6
0 11 A F T K K T
JNATIOJNALITY.
Nationality, or, in other words, the status of an
individual as subject or citizen in relation to a
particular sovereign or state, is either natural or
acquired: natural when it results from birth; acquired
when an individual is accepted as subject or citizen
by a fttate to which he did not originally belong.
Section 1. Nationality of Origin.
Nationality by birth or origin depends, according
to the law of some nations, on the place of birth;
according to that of others on the nationality of
the parents. Tn many countries both elements exist,
one or other, however, predominating. Thus, by the
law of England, the status of a subject depends gene
rally on the place of birth: nevertheless, the descen-
dant of a natural-born subject, for two generations,
though born out of the dominions of the Crown, are,
to all intents and purposes, subjects. Tn like manner,
by the law of France, though, generally speaking, it
is necessary to be born of French parents to be a
Frenchman, an exception is made in favour of the
child of a foreigner, if born in France, subject only
to the condition of the French nationality being
claimed within a prescribed period
7
Section 2. Law of Great Britain.
By the Common law of England, every person born
within the dominions of the Crown, no matter whe-
ther of English or of foreign parents, and, in the latter
case, whether the parents were settled, or merely tem-
porarily sojourning, in the country, was an English
subject; save only the children of foreign ambassa-
dors (who were excepted because their fathers carried
their own nationality with them), or a child born to
a foreigner during the hostile occupation of any part
of the territories of England. No effect appears to
have been given to descent as a source of nationality.
This rule, when originally established, was not
unsuited to the isolated position of this island, and
the absence of intercourse with foreign nations in
Saxon times. No children of English parents being
born abroad, or children of foreign parents being
born within the realm, the simple rule that to be
born within the dominions of the Crown constituted
an Englishman answered every purpose. But
when the foreign possessions of our kings and the
increase of commerce had led to greater intercourse
with the Continent, and children of English parents
were sometimes born abroad, the inconvenience of the
rule which made the place of birth the sole criterion
of nationality soon became felt.
It appears from the Parliamentary Rolls of the
reign of Edward III., that as early as the 17th of that
king (1343), doubts having arisen whether even the
king's sons bom without the realm could inherit, the
0
Archbishop of Canterbury brought the question before
the Lords. The Lords replied unanimously that there
was no doubt that the king's sons could inherit, where
ever born, but that with regard to children of other
persons there were great difficulties in deciding the
question The matter was again brought before the
Lords and Commons jointly, who concurred in the
opinion previously given by the Lords, and recom-
mended that a law should be passed on the subject;
but, as Parliament was about to be prorogued, u et
44 ccste besoigne demand grant avisement et bone dc
44 liberation coment ele se purra mieltz faire, etplus
44 suicmcnt," the further consideration of it was
deferred.*
Owing to the plague, legislation on this and other
subjects was not resumed till the year 1350, when
the Act 25 ftdward III stat. 2 was passed, entitled
a A statute for those that be born beyond sea." "By
this statute it is provided "that all children inheri-
u tors which from henceforth shall be born without
a the legiance of the king, whose fathers and mothers
44 at the time of the birth be and shall be at the faith
44 and legiance of the King of England, shall have
44 and enjoy the same benefits and advantages, to have
44 and bear the inheritance within the same legiance,
44 as other inheritors aforesaid in time to come;
44 so always the mothers of such children do pass the
44 sea by the license and wills of their husbands."
* K-otuli Farliamentorum, yoL ii. p. 139. Appendix to Kc
port of Commissioners, p. 6.
9
It has been said that this statute was only declara-
tory of the Common law.* But this view is hardly
consistent with its language, which is prospective,
and refers only to children which "from henceforth
shall be bornand it has been pertinently observed
that if the statute had only been declaratory of the
Common law, the subsequent legislation on this sub-
ject would have been wholly unnecessary.
The Act of the 25 Edw. Ill, as hereinbefore set
forth, refers, as has been seen, to children inheritors.
The Statute of the 7 Anne, c. 5, the principal
purpose of which, however, was to naturalize all
Protestants within the realm, contained a more
general enactment. By section 3 of this statute,
44 the children of all natural-born subjects, born out of
44 the legiance of Her Majesty, her heirs and succes-
44 sors, shall be deemed adjudged and taken to be
44 natural-born subjects of this kingdom to all intents,
44 constructions, and purposes whatsoever."!
The Act of the 4th Geo. II, c. 21, purporting
to explain the foregoing clause, enacts that u all
children born out of the legiance of the Crown of
England, or which shall hereafter be born out of
such legiance, whose fathers were, or shall be,
natural-born subjects of the Crown of England, or
of Great Britain, at the time of the birth of such
children respectively, shall and may, by virtue of the
* See what is said by Lord Bacon when arguing as counsel
in Calvin's case, 2 State Trials, p. 585.
t With the exception of this clause, the Statute in question
was repealed by the 10th Anne, c. 5.
10
said recited clause in the said Act of the seventh
year of the reign of Her said late Majesty and of
this present Act, be adjudged and tat en to be, and
all such children are hereby declared to be natural-
born subjects of the Crown of Great Britain, to all
intents, constructions and purposes whatsoever."
A later Statute^ that of the 13th Geo. Ill, c. 21,
went still further, and enacted that all persons whose
fathers were by the Act of Geo. Jl entitled to the
rights of natural-born subjects, should be adjudged
natural-born subjects also; thus extending the pro-
visions of the Act of George the Second to the
grandchildren of natural born subjects.
An exception is made by the d Geo. 11, c. 21, in the
case of those whose fathers, at the time of the birth
of such children respectively, were or shall be at-
tainted of high treason by judgment, outlawry, or
otherwise, or were or shall be liable to the penalties of
high treason or felony in case of their return without
the royal licence to the United Kingdom, or whose
fathers, at the time of the birth of such children
respectively, were or shall be in the actual service of
any prince or state at enmity with the British Crown *
Such remains the law to the present time. All
* The abjuration by a British subject oP his allegiance to the
Crown, and his promise of obedience to a foreign state, although
it might have rendered him liable, under the 3 James I, c. 4, s. W9
9>B, to the penalty of high treason, docs not divest him of his
chax*acler of a British subject, and therefore docs not disqualify
the children or grandchildren of such British subject to be British
subjects, See .Fitch v. Weber, 6 Jlai*e, 51
11
persons born within the dominions of the Crown,
(with the very limited exception before stated), whe-
ther of British or foreign parents, and all persons
being the children or grandchildren of British parents,
though born within the dominions of a foreign state,
are to all intents and purposes British subjects, and
owe allegiance to, and are entitled to protection
from, the Sovereign of these realms.
It was at one time thought that children born abroad,
of an English woman married to an alien, were en- ,
titled to the benefit of the statute of the 25 Edw. III., /
and were to be considered as British subjects.* This
doctrine is however now exploded, the Court of
Queen's Bench having decided, in the case of
Duroure v. Jones,"f" that the son of an alien father,
bom of an English mother, out of the king's domi-
nions, could not inherit an estate in this country in
right of his mother. But, now, by the statute of
7 & 8 Vict. c. 66, § 3, such children, though not made
British subjects, are declared capable of taking real
or personal estate by devise, purchase, inheritance or
succession.
To this should be added, to complete this sketch of
of the law of England on this subject, that, contrary
to the law of all other nations, except those which have
followed the English law, marriage, by the common
law, had no effect on the nationality of women. An
English woman marrying an alien still remained
a British subject: an alien woman marrying a Bri-
* See Bacon's Abridgement, Tit. Aliens A.
t 4 Term Keports, p. 300.
12
tish subject, remained none the less an alien ;* until
the latter anomaly was cured hy the Act of 7 and 8
Victoria, c. 06, the 16th section of which provides
that u any woman married, or who shall be married
u to a natural born subject or person naturalized,
u shall be deemed and taken to be herself naturalized,
u and have all the rights and privileges of a natural
"born subject/7
Such being the law of this country as to nationality
of origin, it next becomes important to sec how far it
agrees with or differs from the law of other countries.
Recti on 3. T^aw of the United States.
The law of the United States of America agrees
with our own | The law of Kngland as to the effect
of the place of birth in the matter of nationality
became the law of America as part of the law of the
mother country, which the original settlers carried
with them The extension of citizenship to persons
born of American parents out of the territories of
* Co. Lit. 31 b. "A French woman becomes in no way a
"Hritish subject by marrying an Englishman; she continues an
"alien, and is not entitled to dower;" per Parke H., Countess of
Conway's case, 2 Knapp, P. C. C. 368. So, in delivering the
judgment of the Privy Council in the Countess de Wall's case,
"Lord Campbell says, " the 7 & 8 Vic. c. 66 § 16, is not a do
"claratory Act, and we consider it to be quite clear that at
"common law, not only was an alien woman married to an Kng-
"lishman incapable of taking dower, but while she remained
"abroad, she was not within the allegiance of the crown of
"Kngland" 19. Jurist, 348.
t Kent's Commentaries, vol. ii. p. 1.
13
the States was effected by a Statute of 1855.* But
the privilege is limited to one generation, unless the
parents have resided within the States, there being
an express provision u that the rights of citizenship
shall not descend to persons whose fathers never
resided in the United States."
With regard to the nationality of women, the law of
America^ previously identical with our own, has been
amended by the same statute, which enacts, in sec-
tion 2, that any woman, who might lawfully be
naturalized under the existing laws, married, or who
shall be married to a citizen of the United States,
shall be deemed and taken to be a citizen.
Section 4. Law of the Continental Nations.
In marked contrast to the law of England and
America, the nations of continental Europe make
nationality depend, some exclusively, all principally,
on the nationality of the parent. As a general rule,
the nationality of the child follows that of the pa-
rents, the place of birth being immaterial. In no
country is the child of a subject other than a subject,
by reason of having been born out of the dominions
of the particular country.
Such, however, was not the ancient law of the con-
tinental nations universally. On the contrary, in some
at least, if not in all, birth within the dominions of
the particular country, as well as parentage, deter-
mined the nationality of the individual.f
* 10 Statutes, 604.
t The eminent jurist, Mons. Demolombe, speaks of this rule as
a "regie Europeenne."
11
By the law of France, anterior to the revolution,
a child bora on French soil, though of foreign paients,
was a Frenchman, as it was termed, jure soli; a child
bom of French parents out of French territory, was
a Frenchman jure sanguinis.] The framers of the
Code Napoleon, adopting a sounder principle, ex-
cluded the place of birth as the source of nationality
in itself; but compromising, as it were, with the old
rule, they allowed the place of birth to have effect so
far as to give to the offspring of an alien the right
of claiming French nationality on attaining full age
The example set by the framers of the French code
has been followed by the nations by which that
Code has been adopted, as also by others in remodel-
ling their constitutions or codes. The result has been
I that, throughout the Furopean States generally,
descent, and not the place of birth, has been
adopted as the primary criterion of nationality,
though with a reservation, in some, of a right to
persons born within the territory to claim nationality
within a fixed period. Thus, while in some of these
countries nationality is derived from parentage alone,
in others the right becomes complicated by reason that,
in addition to parentage, birth within the dominions
of the particular country confers citizenship on the
offspring of alien parents in some absolutely though
subject to the right of the individual concerned to
reject it at majority in others on the right being
claimed on certain specified conditions.
* Demolombe, Cours de Code .Napoleon, vol i. sec. 146;
Jfothier, des JFersonncs, Tit. 2, sec. 1; Bourjon, Droit commun de
la .France, TAv. i. Tit. 7, sec. 2, No. 27.
15
The German States (with the exception of Baden),
Sweden, Norway, and the Swiss Confederation, con-
stitute the first class; Denmark, Portugal, and Hol-
land, the second; France, Belgium, Spain*, Italy,
Greece, the Grand Duchy of Baden, Eussia, Russian
Poland, and the Ottoman Empire the third.
According to the Austrian Code, State-citizenship
is the right of the child of an Austrian citizen, where-
soever such child may be born.*
In Prussia, as appears from a law of December 31,
1842, Article 12, every child of a Prussian subject
is by birth a Prussian subject, wheresoever born.
In neither of these states does birth within the
country confer any right.
In Bavaria, Saxony, Wurtemberg, and the minor
German States, except Baden, as appears from infor-
mation obtained by the British Government through
its diplomatic agents, and set out in the Appendix to
the Beport of the Commissioners, the law is the
same.
The law of Sweden stands on the same footing;
the character and status of a Swedish subject
is derived from parentage alone, irrespective of
the place of birth.f The law of Norway is the
same.J
* Allgemeines Biirgerliches Gresetzbuch, s. 28. Ellinger, Hand-
buch des Oesterreichiachen allgemeinen Privatrechts, p. 35.
f Appendix to Report, p. 148. St. Joseph, Concordance
des Codes, vol. iii. p. 4.
% St. Joseph, Concordance des Codes, vol. iii. p. 1. Norway,
though united with Sweden, has its own law.
16
Go also the child of a Swiss is a Swiss, wheresoever
born: the child of an alien, though born in Switzer-
land, is not the less an alien *
Denmark, .Portugal, and Holland are the only
continental states in which, in addition to nationality
from descent, the circumstance of having been born
within the territory gives to the child of an alien
the character and status of a subject, without the
necessity of claiming it.
Tn the first of these countries, by a law similar to
ours, the child of an alien, born within the Danish
dominions, is a Dane This, however, is subject to
the condition of his continuing to reside in Denmark
Tf he quits the country, the character of a Danish
subject is lost. ] Whether it would revive on his re
turning docs not appear.
By the law of Portugal, the child of alien parents,
* Appendix lo Keport, p. 148.
t There seems to be some uncertainty as to the state of the
Danish law on this head. The law, as stated in the text above,
is taken from an opinion of Mr. Krock, an advocate of the
supreme Court at Copenhagen, transmitted by Sir Chas. Wyke,
and printed at page 143 of the Appendix to the Report of the
Commissioners. "Rut in a letter from Count Jb'rijs to Sir Chas.
Wyke, of the 95th June, 1868, printed at p. 116 of the Appendix,
it appears that the rule that birth within the kingdom gives to the
children of aliens the character of Danish subjects applies only
where the parents are permanently residing in the country.
By a decree of 17V6, referred to at page 66, and which appears
to be still in force, the children of foreigners, born in Denmark,
can claim the rights of Danish citizens after a permanent resi-
dence in the country up to their eighteenth year.
17
born within the Portuguese dominions, is a Por-
tuguese subject, unless he declares, when of age or
emancipated, or through his parents or guardian if
a minor, that he does not wish to be a Portuguese.
In the latter case, however, on coming of age, or
when emancipated, he may, by means of a new
declaration, recall that which has been so made on
his behalf.* If, however, the mother be a Portu-
guese, and the father has his property and domicile
in the country, and has lived in it for ten years con-
secutively, the child will be a Portuguese without
such option.")"
By the law of Holland, in addition to children of
Dutch parents, wheresoever born, any person born of
foreign parents, either in the kingdom, or out of it,
becomes a Dutch subject, if, either the parents were
domiciled within the kingdom at the time of the
birth, or the person in question, after attaining the
age of twenty-three years, declares his intention of
remaining in the country and establishes his domicile
there.}:
We pass on to the States in which, in addition to
the right by parentage, birth within the territory gives
the right to claim the status of a subject.
The law of France makes the child of a French-
man, whether born within French territory or in a
* Civ. Code, Tit. 11. Art. 18. No. 2. Appendix to Eeport,
p. 145.
•f St. Joseph, Concordance des Codes, p. 138.
J Law of 28 July, 1850. Appendix to Report, p. 145.
10
foreign country, a Frenchman;* unless indeed, the
father at the ihne of the child's birth beyond the
territory has lost his rights as a Frenchman; in
which case the child's position is that of the child of
an alien |
The law of Belgium, as also that of Greece, coin-
cides in these particulars with the law of France;
as docs also that of Spain |
The law of the new kingdom of Italy is in both
respects the same;§ except that it further reserves
to the child of a father who has lost his citizenship
before the birth of the child, the right of citizenship,
if the child is born within the state and resides
in it; leaving it, however, at his option when of
age, to take the quality of an alien, on making a
declaration to that effect. Tf born abroad, the
child of a father so circumstanced will be an alien;
but he may become a citizen if he mates a declara-
tion to that effect, and fixes his domicile in the
kingdom within a year from the declaiation Tf
he accepts state employ, or serves in the army or
navy, or submits to the conscription without claim-
* Code Civil, Aril 10.
J Tb. Art. 10. Appendix to Jbteport, pp. 27, 143.
X Constitution of 1845, A rt.? Royal decree of 17th J\ov.
1852, Arts, 3 & 4 Appendix to .Report, p. 147.
As the law stood under the constitution of 1845, persons born
within the dominions of Spain of alien parents were Spaniards;
but this is altered by AH. 3 of the Decree of 1852, and such per-
sons must now claim Spanish nationality in order to become
Spaniards.
§ Codice Civile, AH. 4.
19
ing exemption on the plea of being an alien, he is
considered a citizen without further formalities.*
But in all the countries in this class, while parentage
is the primary source of citizenship, birth within the
territory of the state gives, (as has already been
said,) to the children of aliens a right to claim to
be subjects.
By the law of France, every person born of
foreign parents in France is entitled, within a year
after attaining his majority, to claim the quality of a
Frenchman, provided that, if residing in France, he
declares his intention of fixing his domicile in the
country, or that, if resident out of it, he makes his
submission to fix his domicile in it, and actually
settles there within a year from the act of submis-
sion.f If he has served in the French army or navy,
or submitted to the conscription law without assert-
ing his character of alien, he is not limited to
the year ensuing on his majority, but may claim
nationality, on the conditions stated, at any time.J
On the other hand, by a law of 1851,§ the grand-
child of a foreigner, if the father was born in France,
becomes, from the mere fact of birth in France, a
French subject, unless within a year after attaining
majority, he disclaims that character, and declares
before the prescribed authority his desire not to
become a Frenchman.
* Codice Civile, Arts. 5 & 6.
t Code Civil, Art. 9.
t Decree of 22nd Marcb, 1849.
§ Dixieme Serie, No. 2730. Appendix to Eeport, p. 20.
C
20
The law of Belgium is the same as that of France,
except that when the alien parents are domiciled in
Belgium, the child is not limited to the year following
his majority to claim citizenship.* The law of Greece,
in this particular, is precisely the same as that of
.France |
My the Italian Code, the child of an alien, if the
latter has had his domicile established within the
kingdom for ten years uninterruptedly, is a citizen,
unless he elects to be an alien, and makes the pre
scribed declaration accordingly. Tf the alien father
has not been domiciled for ten yeais, the child is
considered an alien7 unless he elects, as he may do, to
become an Italian citizen, and makes a declaration
to that effect before the proper authority.)
By the law of Spain, the children of aliens, if
born within the Spanish dominions, may, in like man-
ner, claim to be Spaniards. So also may the chil-
dren of an alien father and Spanish mother, though
born out of the dominions; as also those born out of
the dominions of Spanish fathers wdio have lost their
nationality.§
Tn the Grand Duchy of Baden, a person born of a
foreign parent in the country may claim the rights of
a subject within a year after attaining the age of 21,
on condition of promising to fix his abode in the
* Appendix to Keport, p. 27, 149
t Tb. p. 143
J Codice Civile, Arts. 8 & 9.
§ Royal Decree of of 1852, Avis. 2 & 3. Appendix to KepoH,
p. ?9, 148.
21
duchy, and settling there within a year. But the
Government may reject the claim whenever the alien
possesses the right of nationality or a fixed abode in
another State.*
The law of Russia is liberal in according nationality
to the children of aliens. While it makes Russian
nationality depend^ in the main, on descent, it
reserves the right of claiming it to the children
of alien parents, not only if born and educated
within Russian territory, but also, though born out of
it, if they have completed their education at a Russian
upper or middle school. In both cases the desire to
become Russian subjects must be declared within a
year after attaining majority."!*
The law of Russian Poland (which is distinct from
that of Russia), acknowledges as Polish subjects
not only the children of Poles, wheresoever born, but
also the children, wheresoever born, of foreigners
domiciled in Poland. It allows the child of a
Pole, who has lost his quality of Polish citizen, to
claim citizenship, on declaring his intention to reside
in Poland, and that he desires to be a subject of the
kingdom.^
By the law of the Ottoman Empire, as declared by a
decree concerning Ottoman nationality, of the 19th of
January, 1869,§ the nationality of the parents, or of
* Badisches Landreeht, § 9, 9 (a),
f Appendix to Beport, p. 26.
X St. Joseph, Concordance, Tit. I. Ch. 1, Art. 9.
§ A French translation of this law and of a circular to the
Governors General of the Provinces, explaining it, has been fur-
c 2
22
the father alone, determines that of the child, irrespec-
tive of the place of birth But a person born of an
alien on Turkish territory rnay, within three years
after coming of age,* claim to become an Ottoman
subject
Section 5. South American States.
The laws of the South American States with refc
rence to nationality of origin remain to be noticed.
Tn those states which were under the Government of
Spain, the old Spanish law prevailed; according to
which law, as stated by a learned French jurist, | birth
within the territory was necessary to citizenship.
Natural subjects were those who were born within the
country, of fathers themselves born therein : the chil-
dren of an alien might however acquire by birth the
status of citizenship, if the father had been domiciled
and had resided in the countiy for ten years.
Since these countries threw off the dominion of
Spain, and established themselves as independent
States, several of them have legislated for themselves
on the subject under consideration
By the constitution of Columbia the oflspring of
Columbian parents born abroad acquire the character
of citizens on being domiciled within the country.)
In Venezuela, by Aiticle 6 of the .Federal Consti-
nished through the favour' of His Hxeellency Muslims Tasha, the
Ambassador of the Ottoman Forte.
* J5y this law the period of majority is made to depend not on
the law of Turkey, but thai of the country of the alien
f Mona, St. Joseph, Concordance des Codes, vol. ii. p. 9.
% Appendix to .Report, p. 65.
23
tution, all persons are declared to be Venezuelans:
1, who are born within the territory of Venezuela,
whatever may be the nationality of their parents;
2, who being the children of a Venezuelan father, or
Venezuelan mother, fix their residence in the country,
and express their desire to be considered as such.*
The modern Code of Bolivia declares to be Boli-
vians : 1, all persons who are born within the territory
of the Republic, of Bolivian parents; 2, all persons
born out of the territory, of Bolivian fathers em-
ployed in the service of the State; 3, persons born
of Bolivian parents, domiciled abroad, but who have
not lost their character of Bolivian subjects, and who
return before the expiration of ten years; 4, persons
born of alien fathers within the Republic, who have
resided in the country, and declare their intention of
fixing their domicile in it; or who, not having
resided in the country, declare, within a year of their
coming of age, their intention of becoming Bolivian
subjects and of fixing their domicile in Bolivia, and
so fix it accordingly. Lastly, the children of Boli-
vians who have lost their nationality may become
Bolivians on complying with the last-mentioned
conditions.!
The Argentine Republic has given to the children
of aliens, born within the territory, the option of
taking Argentine citizenship or of adhering to that
of their fathers.^
* lb. p. 77.
t Civil Code of Bolivia, Arts. 15 & 16. St. Joseph, Concordance,
vol. ii. p. 68.
X Appendix to Beport, p. 61.
21
Tr» Brazil, the law of Portugal originally prevailed;
but by the present Constitution all persons are Brazi-
lian subjects: 1, who are born in Brazil, being either
free or Prccdmen, although the father be a foreigner, if
not resident in the service of his nation; 2, children
of Brazilian parents, though bom in a foreign coun-
try, if they become domiciled in the country; 3,
children born abroad of a Brazilian father in the
service of the Kmperor, even though they do not
afterwards acquire a Brazilian domicile.*
GrccTiON 6. Nationality of Married Women abroad.
Before quitting this branch of the subject, it is nc
ccssary to say a word as to the nationality of married
women in other countries. In eveiy countiy, except
where the Knglish law prevails, the nationality of a
woman on marriage merges in that of the husband: she
loses her own nationality, and acquires his; whereas,
by the law of Kngland, though, as has already been
'pointed out, since the Act of 7 & 8 Vict c. 66, an
alien woman marrying a British subject becomes
naturalized, an Knglish woman marrying an alien
still remains a British subject The law of America
r£ the same An American woman married to a
foreigner retains her American nationality.
Hence, so long as the common law remained un-
altered, arose this singular result, pointed out by Mons.
Demangeatin his notes to Jb'aclix \ While an Knglish
woman, on marrying a Frenchman, became a French-
woman, without ceasing to be a British subject, and
* Constitution of Brazil, Art. 6. Appendix to tteport, pp. 68.
64. t Vol. i. p. 89, note a
25
so acquired a second nationality, a French woman,
on marrying a British subject, while she acquired no
British nationality, by the operation of the French
law, lost her own, and thus ceased to belong to any
nation at all. The latter anomaly has been cured;
the former remains.
On the other hand, provision is made in all the
Continental codes for enabling a woman, whose
nationality of origin has thus been changed into that
of her husband, to resume, if so minded, her original
nationality on becoming a widow; on the condition,
however, if not resident in the country of origin, of
returning to it, for which, in some instances, the
authority of the State is required.
The nationality of a married woman being thus
merged in that of the husband, it follows that where
nationality is made to depend on descent, the
nationality of the father is all that need be looked to,
so far as the case of legitimate children is concerned.
On the other hand, the nationality of natural children
depends on that of the mother, except, indeed, where,
as can be done by the Continental law, as distinguished
from that of England, the father by subsequent mar-
riage, or by formal recognition, legitimizes the off-
spring.
Wherever the parents are unknown, they are pre-
sumed to have belonged to the country in which the
child is found; so that the child of unknown parents
always takes the nationality of the country in which
he is first found.
These provisions are common to all the Continental
codes.
26
C II A TT KK IT
JNATUKAJilZATlOJN.
Section 1. Conflict of Laws respecting it
Tt is obvious that from the variety and conflict of
laws thus shown to exist, serious embarrassment and
difficulty may arise, on the one hand, to individuals, by
their being exposed to conflicting claims on their allc
giance as subjects, on the other to Governments, by
claims being made on them fo.r protection by indivi-
duals desirous of escaping from burdens or liabilities
sought to be imposed on them as the subjects of
some other State, Hut the matter becomes far more
complicated, and far greater difficulty arises from
the practice, in modern times so extensively used, of
one State conferring its nationality on the subjects of
another, and thus allowing a second or acquired
nationality to be, according to the law of some,
substituted for, according to that of others, super-
added to, the nationality of origin a proceeding
known by the name of naturalization. Unfortu-
nately, though the practice is universal, the conflict
existing between the laws of different nations is
very great there being hardly any two which can
be said altogether to agree and this conflict may
easily lead, as it already has led, to misunderstanding
and dispute The mode by which, and the conditions
under which, this second nationality may be acquired,
and its effects when acquired, differ in almost eveiy
country, and the conflict of laws thus arising has
27
been, and is perpetually liable to be attended with
embarrassment and difficulty.
Naturalization is, in every country, attended with
the obligation on the part of the adopted subject of
swearing allegiance to the Sovereign or State which
receives him. In some countries naturalization is cori^"
ditioned on the party seeking it renouncing his original
allegiance; in others it is granted without any regard-
to such a condition, or to whether by the law of the
country of birth the party can get rid of his originaT
nationality or not; or whether, if the consent of the
State is necessary, such consent has been given; and
lastly, without any regard to the position in which it
may leave the party naturalized in relation to the
Government whose subject he originally was.
In some States the subject is allowed to divest him-
self of his nationality of origin with perfect freedom;
in others he can only do so with the consent of the
Government; in others he can only do so after the
fulfilment of certain duties and obligations; in others
his allegiance to the sovereign remains unchangeable,
and cannot under any circumstances be put off by
any means short of a positive Act of legislation.
It is plain that when the subjects of a State in
which the last mentioned law prevails become natu-
ralized elsewhere, a very serious conflict of juris-
diction may easily arise.
Section 2. British Naturalization.
In this country, naturalization has existed from an
early jperiod under two forms. It might be conferred,
1, by the Sovereign by virtue of the prerogative; 2,
by Act of Parliament The first, as distinguished
from the second, is known under the name of deniza-
tion, and persons acquiring the character of subjects
under it are termed denizens. When the status of
a British subject is conferred by ^ct of Parliament
the proceeding is termed naturalization Deni-
zation can only be effected by letters patent from
the Sovereign; naturalization only by, or under, an
Act of the legislature
The difference between the two in point of effect is
of a substantial character. Denization has no retro-
spective operation, while by naturalization, conferred
by Act of Parliament, the alien was placed in exactly
the same position as if he had been born a subject
A denizen is thus in an intermediate position between
an alien and a natural-born subject, and partakes of
both these characters. He may take lands by pur-
chase or devise, which an alien may not; but he can-
not^ take by inheritance: for, his parent, through
whom he must claim, being an alien, had no inherit-
able blood, and therefore could convey none to his
son , And, on account of a like defect of hereditary
blood, the issue of a denizen, born before denization,
cannot inherit to him ; but his issue, born after it, may.
On the other hand the son of a naturalized subject,
though born before the naturalization of the father,
could always derive descent through the father, and
inherit as though the father had been a natural-born
subject *
* 2 Stephens, Cora. p. 497-9.
"J)enization" it is said, "receives a man into the society as a
29
The extent to which the rights of a British subject
were conferred on naturalization by Act of Parlia-
ment depended of course on the will of the legis-
lature. In the earliest Acts the full rights of a
natural-born subject were conferred; no qualification
was necessary, nor were any conditions imposed.
But when the Act of the 12 and 13 Wm. III. c. 2,
the Act for settling the succession to the Crown, was
passed, a jealousy of foreigners and of the followers
who would be likely to accompany a foreign monarch
to this country led to the insertion of a clause by
which it was enacted " that no person born out of
"these kingdoms (although he be naturalized or
"made a denizen) except such as are born of English
u parents, shall be capable to be of the Privy Council
44 or a member of either House of Parliament, or to
44 enjoy any office or place of trust, either civil or
44 military; or to have any grant of lands, tenements
a or hereditaments from the Crown to himself, or any
44 other or others in trust for him."
In like manner, on -the accession of the House of
Hanover, a similar spirit of jealousy led to an enact-
ment that no bill of naturalization should be received
without a clause disabling the alien applying for it
from being a member of the Privy Council, or a
new man, and makes him capable to purchase and transmit lands
by descent, but not inheritable to any other relation; for though
the King by his charter may admit him into the society, yet he
cannot alter the law, which denied him to inherit any relations;
but if he be naturalized by Act of Parliament, then he in all things
inherits like a natural-born subject, because in an Act of Parlia-
ment every man's consent is included."—Bac. Abridgment, Tit.
Alien (B).
30
member of either Mouse of Parliament, or'taking
any office or place of trust either civil or military,
or receiving a grant of Crown lands.*
To test the eligibility of the party seeking to be
naturalized, the House of Lords, by a standing order
of 1807, required a certificate from the Home Secre
taiy respecting the applicant's previous conduct.
This, however, was always granted on the recommen-
dation of any person known to the Secretary of State. |
At a subsequent period, it being found that persons
became naturalized merely to claim the privileges
of British subjects under treaties with foreign powers,
without any intention of taking up their residence in
Great Britain, an Act of the 11 Geo. Til c. 81 was
passed, declaring that no bill of naturalization should
be received which did not contain a proviso that the
person naturalized should not be entitled to any such
privileges or immunities, unless he had resided
within British territoiy for seven years without
having been absent for longer than two months.
The practice of applying to JParliament for Acts of
naturalization has, however, been superseded by the
operation of the Act of the 7 and 8 of her present
Majesty, c 66. | By this statute, on an alien present-
ing a memorial to one of I Icr Majesty's principal Sc
cretarics of State, stating the grounds on which he
* 1 Geo. IV. stat. 2, c. 4 Under this Act it has been held
that a naturalized subject is not eligible to the office of parish
constable K- v. TVherre, 5 Burr. 2788.
I Appendix to Keport, p. 7.
f J Since this statute applications for letters of denization have
also become very rare; but the proceeding is still occasionally
resorted to. Appendix to Jieport, p. 8.
31
desires to be naturalized, the Secretary of State, after
inquiring into the circumstances of the case, is em-
powered, if he thinks fit, to issue a certificate, grant-
ing to the memorialist the rights and privileges of a
British subject, except those of becoming a member
of the Privy Council or of either House of Parlia-
ment, and subject to any other restriction which by
the certificate he may think fit to impose. Upon
obtaining this certificate and upon taking the oath
prescribed by the statute, which is one of allegiance
simply, the party thus naturalized becomes entitled
to the rights of a British subject, save as excepted.
He is not called upon to renounce his natural alle-
giance, nor is any inquiry made whether by the law
of the foreign country such allegiance can be got rid
of: in effect, as we shall see further on^the original
allegiance is only placed in abeyance, and may, so
far as this country is concerned, revive, while that
due to the Crown of England will be lost, if the party j
naturalized should quit the dominions of the Crown, Xf
The following regulations with reference to appli-1
cations for naturalization were issued in 1847. j\
Home Office, Whitehall, August 1, 1847.
Regulations by the Secretary of State with reference to Certifi-
cates of Naturalization, in pursuance of Statute 7 and 8
Vict. c. 66, intituled "An Act to amend the Laws relating
to Aliens."
I. Upon an application to the Secretary of State for the
grant of a Certificate of Naturalization, it will be necessary
that the applicant should present to one of Her Majesty's
Principal Secretaries of State, a Memorial, praying for such
grant, stating:
Of what Friendly State he is a Subject?
32
VIis Age, Profession, Trade, or other Occupation?
Whether he is Married, and has any Children?
Whether he has any settled place of .Residence, and
where situated, and how long he has resided within
the Kingdom?
Whether he intends to continue to reside permanently
within the United Kingdom?
On what grounds he seeks to obtain the Kight and
Capacities of a Natural born British subject.
II That the memorialist should malce a declaration before
a Magistrate, or other person authorized to talce such decla
ration, verifying the statements in his memorial
III That a declaration should be made and signed by four
householders at least, who should state their places of resi-
dence, vouching for the respectability and loyalty of the
memorialist, verifying also the several particulars stated in
the memorial; and that this declaration should be made in
due form, either together or separately, before a magistrate,
or other person authorized by law to receive such declaration,
in pursuance of the Act passed in the 5th and 6th years of
J Us late Majesty King William IV.*
What effect the answers to the foregoing inquiries
may have in influencing the decision of the Secretary
of State, or what may be the considerations with refc
rence to which naturalization is granted or withheld,
is unknown: the matter is entirely in the discretion
of the Secretary of State
A t first these certi ficatcs were given unconditional ly;
but much inconvenience having been experienced from
persons applying for naturalization in order to secure
British protection abroad for political and other pur-
poses, advantage was taken of the power given to
the Secretary of State, to add other exceptions. Since
* A ppendix to Jieport, . 96.
33
1851 j an exception lias been inserted in the certifi-
cate of "any rights and capacities of a natural-bom
u British subject out of and beyond the dominions of
"the British Crown, and the limits thereof."*
Since this regulation, the operation of the certifi-
cate of naturalization being by the express terms of
the grant limited to the dominions of the Crown,
out of the country the naturalized subject is no better
than an alienf: so that, practically, the effect of
naturalization is, not to confer British nationality,
but only to give, in respect of political rights,
the right of voting at parliamentary and municipal
elections, and, in respect of civil rights, the capacity of
an ordinary subject. The foregoing machinery seems
cumbrous for so limited a result.
The effect of naturalization under the 7 & 8 Vic.
c. 66 being prospective, children born abroad before
the naturalization of the parent, though minors, still
remain aliens; and its effect being confined to
this country, children born abroad after the naturali-
zation, if born when the father is out of this country,
liens also.J
Lee 1858, the rights and capacities of a British sub-
ject are granted on the express condition that the party
naturalized shall continue to reside permanently
* Appendix to Beport, p. 9.
f As, by accepting British naturalization, the alien will gene-
rally by the law of his own country, have lost his nationality of
origin, and when abroad is not a British subject, he will, when
there, have no nationality at all, but will be a sort of "casual"
without a settlement.
X See opinion of Law Officers, 1860. Appendix to Beport,
p. 9.
31
within the United Kingdom; and that if he shall at
any time be voluntarily absent from it for a period of
six months, without licence in writing from one of
the Secretaries of State, the certificate shall be
void, and all rights and capacities conferred by it
shall absolutely cease and determine *
It is to be observed, that while, under the English
system, actual residence is necessary after the grant
of naturalization,, no prior residence whatever is now
required in order to obtain it. It will be seen how
materially the Knglish practice differs in this respect
from that of other countries."
The foregoing Act of having repealed the
Acts of 12 & 13 Will 111 c. 2, 1 Geo. IV. c. 1, and
11 Geo. Til c. 81, there is now nothing to prevent an
alien who desires to be naturalized in such a manner
as to acquire, in addition to the ordinary civil rights of
a British subject, the political rights excepted by the
Act of 1811, and to be relieved from any conditions
as to residence, from getting a Bill introduced into
Parliament to effect that purpose Such a Bill was
introduced and passed into a law, in the recent case
of M Mollis Bischoffsheim f
* Appendix to Keport, p. 9.
t Of course, except with the view of obtaining a seat in .Parlia-
ment, or avoiding the restrictions imposed by the Statute, or by
the certificate, no one would now adopt the move expensive process
of getting an Act of naturalization passed, as the certificate may be
had without difficulty, and at the small cost of 17s 6d. .Prior to the
Act of 18M, in the caso of very eminent persons, the practice was
to repeal the Statutes of 19. & 13 Wm 111 and 1 Geo. IV. c 4,
in the particular case This was done on the naturalisation of
his li. H. the late Trince Consort, by 1 & 2 Vic. c. 3 & 4.
35
Besides these established means of conferring and
acquiring naturalization, the character of British sub-
jects has been from time to time exceptionally granted
by different Acts of Parliament, with the view of pro-
moting certain objects of supposed public interests
Thus by the 15 Charles IL c. 15, all foreigners who
shall really and bond fide set up and use certain
trades and manufactures (linen spinning, net weav-
ing, tapestry making) by the spa^e of three years in
England, Wales, or Berwick-upon-Tweed, shall, on
taking the usual oaths, enjoy all privileges what-
soever as the natural born subjects of the kingdom.
By the 13 Geo. IL c. 3, foreign seamen serving for
two years on board English men-of-war or merchant
ships, are naturalized ipso facto.
By the 13 Geo. II. c. 7, all foreigners who have
resided seven years in any of Her Majesty's colonies
in America, without having been absent more than i
two months at any one time, are to be naturalized on
taking the oaths and making the declaration pre-
scribed by the statute, and taking the sacrament.;
By the 22 Geo. IL c. 45, foreign Protestants having
served three years on any ship fitted out as therein
mentioned, and employed in the whale fishery, are
to be naturalized; but the privilege is lost if they
go out of the King's dominions in England, Ireland,
or the American plantations, for more than twelve
months at a time.
The 2 Geo. III. c. 25 naturalized foreign Protes-
tants serving two years in the Royal American
Regiment or as Engineers in America.
s The 26 Geo. III. c. 50 and the 28 Geo. III. c. 20
D
36
provide that every foieigner who has established
himself and his family in Great Britain, and carried
on the Southern Whale fishery, and imported the
produce thereof for five years successively, shall be
entitled to all the privileges of a natuial born subject
The naturalization conferred by all these statutes,
except that of Charles IT, was clogged with the
restriction introduced by the 19 & 13 Wm III c. 9,
and the 1 Geo. I c, 4, that the persons so naturalized
should be incapable of sitting in Parliament, or be
coming members of the Privy Council, or receiving
a grant of Crown lands
Similar Acts, with corresponding icstactions, were
passed by the Parliament of Ireland for the purpose
of inducing foreign manufacturers to settle in Trc
land Later Acts introduced the condition of a prior
residence in Ireland for three years, and of the parly
to be naturalized obtaining a licence from the Lord
Lieutenant Tt is said that these statutes are still in
force with reference to persons so circumstanced,
and that "a residence of three years in Ireland
u and a licence from the Lord Lieutenant would
w qualify any person, taking the oaths, to be ad-
a mitted to all the privileges belonging to a British
iL born subject in the fullest sense of the word "*
It thus appears that this country has not scrupled
to encourage the subjects of other nations to forsake
their natuial allegiance, and to settle in this country
for the purposes of trade or manufacture, or to enter
Jnto our military or naval service. Yet the latter
was one of our principal causes of complaint against
the Americans in the early part of the present century.
* Opinion of Serjeant Stock, Appendix to K-eport, p. 7.
37
Section 3. Naturalization in the Colonies.
The effect of naturalization as a means of adding
to the number of British Subjects is extended by
the power which the local legislatures of our various
colonies have to pass acts or ordinances for naturaliz-
ing aliens, or for authorizing their Governors to do so.
This power is expressly recognized by the declara-
tory Act of the 10 & 11 Vic. c. 83. Each colony
has its own law on this subject, and the conditions
on which naturalization may be obtained vary ex-
ceedingly. In some, prior residence in the colony
is essentia], in others not. In the former the term
of residence required varies from two years to seven.
It would occupy too much space to give the par-
ticulars of these various laws. They will be found
in the Appendix to the Eeport of the Commissioners.*
Suffice it to say that they all require the party natural-
ized to take an oath of allegiance, whereby he takes
on himself all the obligations and duties of a British
subject; and all admit the party naturalized to the
rights of a British subject, as though he had been
born within the Colony.
It is, however, to be observed that the Act of 10
and 11 Vic. c. 83 appears to recognize the power of the
Colonial legislatures to grant naturalization only
within the limits of the respective Colonies. Accord-
ingly in 1863; a circular was issued from the Foreign
# Page 10—12. The law of Natal makes it a condition of na-
turalization that the applicant shall be able to speak one or more
of the languages of Europe, and shall he able to write his name,
lb. p. 11.
D 2
38
Office by -Lord John Kusscll, to the effect that the
rights conferred by Colonial naturalization must be
taken to be limited to the precincts of the Colony. It
appears however that in 1865 the opinion of the Law
Officers of the Crown was taken on this subject, and
'that,, according to their view, a foreigner duty natu-
ralized in a British Colony is entitled, as a subject
of the Queen in that Colony, to the protection of the
British Government in every other State but that in
which he was born and to which he owes a natural
allegiance * And this would seem to be the sounder
view. Had Don Facifico been naturalized at Gibral-
tar^ instead of having been born there, he would not
have been the less entitled to British protection
Section A Naturalization in the United States of
America.
Tn the United States of America, natuialization i$
acquired, under given conditions, by the mere act of
a peison desirous of becoming an American citizen,
independently of any discretion, except as regards the
character of the applicant, in the executive Govern-
ment
By an Act of April 11, 1802, any alien, being a
free white person, may be admitted to become a citi-
zen of the United Stales, or any of them, on the fol-
lowing conditions 1. H e must declare on oath before
one of the Courts specified in the Act, three years
before his admission, his intention to become a citi-
* Appendix to itepoii, p. 96.
39
zen of the United States and to renounce for ever all
allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty whatever, and particularly by
name to the prince, potentate, state, or sovereign
whereof such alien may, at the time, be a citizen or
subject. 2ndly. At the time of his application to be
admitted, he must declare on oath, or affirmation,
before one of such Courts, that he will support the
Constitution of the United States, and that he abso-
lutely and entirely renounces all allegiance and
fidelity to every foreign prince, &c. and particularly,
by name, to the prince, potentate, state, and sove-
reignty whereof he was before a citizen or subject;
which proceedings are to be recorded.
3rd. The Court admitting the alien must be satis-
fied that he has resided five years within the United
States, and one year within the state or territory where
such Court is held; and that during that time he has
behaved as a man of good moral character, attached to
the principles of the constitution of the United States,
and well disposed to the good order and happiness of
the 'same.
The 4th condition is that he shall renounce any
title of nobility.*
By an Act of May 26, 1824, the interval between
the declaration of intention and the application for,
admission is reduced from three years to two.")" By
an Act of March 26, 1802, the widow and children
of an alien who has declared his intention to become
* Appendix to Report, p. 16.
t Appendix to Keport, p. 17, and stat. at large v. ii. p. 809.
10
naturalized, may become citizens on taking the oath
prescribed by law.*
It is admitted by the American authorities that the
declaration of the intention to become an American
citizen, has in itself no effect on the nationality of the
individual; he remains an alien till Anal admission
to citizenship.
----The Army Act of 1862 contains the following, in
these days somewhat remarkable clause, namely, that
any alien of the age of twenty-one years, who has
enlisted, or shall enlist, in either the regular or volun-
teer forces of the United Stales, and who has been, or
shall be honourably discharged, may, upon proof of
such discharge, and of good character, after one
year's residence, be admitted a citizen of the United
States, on his petition, without any previous declara-
tion of intention |
The children of a naturalized alien, if minors at the
time of such naturalization, become citizens through
the natuialization of the father: a fortiori children
born after the father's naturalization |
Once admitted a citizen, the naturalized alien enjoys
all the rights and privileges of a natural born Ameri-
can, save that, by the Constitution of 1 787, no one
can be eligible as a representative who has not been
seven years, or as a senator who has not been nine
years, a citizen of the United States, and that no one
* Appendix to EepoH, p. 17.
f Stat, al large, v. 19, p. 594, Appendix to .Report, p. 17.
J United Stales JNaturalination Act of 1802, § 4, Appendix
to Keport, p. 85.
41
but a natural born citizen is eligible for the office of
President.*
It thus appears that the American law differs from
the English law, 1, in requiring previous residence as
a test of the sincerity of the desire of the alien to be-
come a citizen; 2, in requiring a positive renunciation
of his former allegiance. It agrees with the English
law in disregarding the question whether the alien/
by the law of his original country, can divest himself
of his natural allegiance, and whether, on his un-
dertaking to do so when prevented by such law, a
conflict of duty and jurisdiction may not arise—more
especially when the naturalization is conferred as an
inducement to the alien to enter into the military
service of the country of adoption.
Section 5. Continental Naturalization.
Let us next turn to the nations of continental
Europe; and^firetly, to France. By the old law of
France, naturalization was conferred on aliens, at the
pleasure of the King, by letters under the great seal
of the kingdom, called lettres de naturalite, whereby
the King granted that the alien should be reputed
a subject, and should enjoy all the rights, privileges,
franchises and liberties of a natural born Frenchman,
and should be capable of receiving all civil dignities.
But to give effect to this naturalization, residence in
France was essential. If the naturalized subject
ceased to reside in the country, the character of a
* 1 Kent's Com. 293.
49
■frenchman was lost; and his children, if born out
of the country,could not inherit from him *
The law underwent scveial changes in the course
of Ihe French .Revolution The Constitution of 1793
went so far as to declare French citizens all aliens
aged 21, who had been domiciled in France one year,
and who lived by labour. The Constitution of 1795
superadded the condition that the alien should have
previously declared his intention to domicile himself
nn France. The Constitution of 1801 was more
stringent, It required a residence of ten years consc
cutively. But, by a decree of the Senate of 1801,
passed originally for five years, but made perpetual
by a decree of 17 Feb. 1808, the Government was
authorized to confer French citizenship, after one
year's residence, on any alien who had rendered im-
portant sei vices to France, or brought into it useful
lalen ts, inventions, or manufactures, or who had formed
.any considerable establishment within it. But, on the
restoration, a law of 1811 excluded all naturalized
persons from the Chamber of Peers and the Chamber of
Deputies, unless the letters of naturalization granted
by the King were verified by the two Chambers.
Thus naturalization was distinguished as la grande
naturalisation and la petite naturalisation. ]
This law has been greatly modified by subsequent
legislation By a law of 1849, the President of the
Republic was to decide on applications for natural-
ization, after an inquiry into the character of
# Kepertoire de Jurisprudence, Ton\e p. 481.
t -Faelix, Droit International, vol. i. p. 91.
43
the applicant and on the favourable report ot the
Council of State, But it was necessary that two
conditions should precede the application. The alien
must, after having attained the age of 21 years, have
obtained authorisation to fix his domicile in France,
conformably to the 13th Article of the Code Civil,
and must have resided there ten years. This law
expressly provided that the right of eligibility to the
National Assembly could only be acquired by a special
act of the legislature.*
Thus far the distinction between the greater and
the lesser naturalization was maintained; but by a
decree of 1852, all electors being 25 years of age
are declared eligible to the Senate. Hence, as the
lesser naturalization suffices to give a right of voting
as an elector, Mons. Demangeat, in a note to his
edition of Fselix, maintains that the difference between
the two kinds of naturalization no longer exists, and
that a foreigner naturalized by a simple decree of the
Emperor now acquires the full political rights of a
Frenchman. And he instances the case of Prince
Poniatowski, who having been naturalized by an
Imperial decree of October 1854 was raised to the
dignity of a Senator by a subsequent decree of De-
cember of the same year.f Mons. Demolombe, than
whom there can be no greater authority on French
law, expresses himself to the same effect.^:
The law has been again remodelled by a statute
of 1867, and it now stands thus. An alien, desirous
* Bulletin des Lois, vol. clxvii. p. 545.
t FaBlix, Droit International—par Demangeat, vol. i. p. 92.
J Cours de Code Napoleon, vol. i. § 174, p. 220.
of being natuialized, must in tlie first instance
apply for and obtain from the Minister of Jus line
authority to fix his domicile in Jbrancc which he
can only do after having attained the age of 21.
\/lie must next have resided in France three years
A (instead of ten as required by the former law) from
> Sthe time of being so authorized But this term of
three years may be reduced to one in favour of
foreigners who have rendered important services to
France, or who have introduced a manufacture or
useful invention, or have brought with them dis
tinguished talents, formed great establishments, or
carried on agriculture on an extensive scale *
The grant of naturalisation is effected by a decree
of the Kmperor, founded on a report of the Minister
of Justice, after an inquiry into the character of the
alien, the Conseil d' ftlat having first been heard |
No condition is attached as to the alien having
r renounced his allegiance to his former country, or to
his being in a position to transfer such allegiance to
another.
The law of Belgium is substantially the same as
that of France, but the difference between the
"grande" and the "petite naturalisation" still sub-
sists, and eligibility to the Chambers can only be
acquired by special legislation |
Under the law of the kingdom of Ttaly, naluraliza-
* ttcsidencein a foreign country in the service of .France is put
on the same fooling as residence in Jfrance itself,
t T^oi du 39 Juin, 186'/. Appendix to JttepoH, p. 24
% Tjoi du 3 Mars, 1841, Articles 1 &4.1, Appendix to Keport,
p 27,H6
45
tion may be granted to an alien by a special act of
the legislature or by a decree of the king; but the
latter is not effectual unless the alien thus naturalized
fixes his domicile in the country.*
In Portugal, naturalization may be granted by the
Executive Government. The law on this subject is,
however, somewhat peculiar. While it requires
residence for a year on Portuguese territory, as a con-
dition precedent to naturalization, it makes an ex-
ception in favour of descendants of Portuguese blood
who come to establish their domicile in the kingdom,
dispensing with previous residence in their case, as
also in that of an alien marrying a Portuguese womap^
and of any one who has performed or may beTcalled
upon to perform any important service to the nation/f
Naturalization is freely conceded by the Austrian
law. Not only may it be granted, on application, by
the Government authorities, at their discretion, after
inquiry into the antecedents and circumstances of the
applicant, but it may also be acquired: 1, by any
appointment to a civil office in the public service;
2, by the carrying on of any of the trades for which
by the Austrian law it is necessary that the party
shall be settled in Austria; and 3, by an uninter-
rupted residence in the country for 10 years.J
* Codice Civile, Art. 10, Mazzoni Istituzioni di dritto Civile
Italico, p. 134.
t Civil Code, Articles 19 and 20. Appendix to Eeport, p. 124.
J Allgemeines Burgerliches Gesetzbuch, Arts. 29,30; Ellinger,
Handbuch, p. 35,6.
46
r Tn Prussia, the character and rights of Prussian
subjects may be granted to aliens by the competent
Police authorities, provided such aliens 1, are ca-
pable of receiving them in accordance with the laws
of their former country; 2ndly, have led an irrc
proachable life; 3rdly, have settled in the country,
and have a house or the means of subsistence in the
place in which they have settled, and are in a,
position to maintain themselves and their families in
that place A permission to a foreigner to enter the
service of the Prussian state supersedes the necessity
of any deed of naturalization, and confers at once
the character of a Prussian
The grant of natuialization confers all the rights
and imposes all the duties of a Prussian subject from
the date of the grant.*
Tn Kavaria naturalization is acquired, 1st, by
Poyal decree, under the supervision of the Council
of State; 2ndly, by domicile, on the party affording
proof of having been liberated from personal allc
giance to the country of his birth I
Tn Holland, aliens acquire the rights of subjects,
when the following conditions have been complied
with Pirst they must obtain permission from the
K ing to establish their domici le in the kingdom They
must then establish it in some commune, and make the
* Law of December 31, 1849; Articlos 5, 6, 7, 9. Appendix to
Kepoi't, p. 146.
t Prolix, vol i. p. 99; Moy, J)roit public de Kaviere, vol. ii. s,
159.
47
Communal Administration acquainted with the fact.
They must further retain their domicile in the same
commune for six years; and lastly, must declare to the
administration of the commune their intention to
settle in the kingdom.*
To be naturalized in Russia, a foreigner must,
in general, have been domiciled five years in the
country. But before becoming domiciled, he must
inform the Governor of the province in which he pur-
poses to reside of his desire to do so, stating the
nature of his occupation in his own country, and the
pursuits he purposes to follow in Russia. In special
cases, the period of domicile may be abridged: in the
case of foreigners entering the Russian military or
civil service, or of ecclesiastics of foreign persuasion,
.prior domicile is dispensed with altogether. After
having been domiciled for the required period, the
alien has to apply to the Minister of the Interior to
be admitted to Russian allegiance, an application
which it is in the discretion of the Minister to admit
or refuse. If the application is granted, the alien is
admitted to take an oath of allegiance, and thereupon
becomes a Russian subject.
But the allegiance thus acquired is personal, and
though it extends to children born after the naturali-
zation, does not affect children born before it, though
minors. Children born before the naturalization of
their father, must themselves be admitted in the same
way; unless, indeed, they are born and educated in
* Civile Code, Article 8; St. Joseph, Concordance, vol. ii. p.
349.
48
.Russia, in which case, as we have already seen, they
may be admitted as .Russian subjects on application
within a year after they come of age -
Tn Sweden the King possesses the prerogative of
adopting foreigners as Swedish subjects by act of
naturalization Good repute, means of self support,
and three years prior residence in the kingdom are
necessary conditions; besides which, the applicant
must attest before the proper authorities that he has
ceased to be a subject of the foreign power to which
he formerly belonged, or otherwise must resign in
writing all the political privileges and rights he may
possess in cuch foreign country; lastly, he must take
the oath of allegiance to the King of Sweden Natu-
ralized aliens enjoy the same rights and privileges as
natural-born Swedes, save that they cannot be ap-
pointed members of the Council of State |
In Norway, not only may a foreigner be natura-
lized by the Storthing, but any one who has defini-
tively fixed his domicile in the country, and resided
there for ten years, thereby becomes entitled to all
the rights, political and civil, of a Norwegian subject J
Denmark appears to be one of the few states in
which naturalization cannot be effected otherwise than
by a special Act of the legislatuie. Formerly, in order
to enable an alien to cany on trade in the kingdom,
c .Naturalization Law of 6th March, 1864. Appendix to He
port, p. 26.
f Appendix to KepoH, p. 131.
| St. Joseph, Concordance, vol. iii. p. 4.
49
a grant of citizenship, called a Borger-bref, was re-
quired, to give effect to which it was necessary that
the party should take an oath of allegiance. But
the practice of granting Borger-brefs has been
abolished, without, as it appears, any fresh power
being vested in the Government to grant naturaliza-
tion.
In the Ottoman Empire, by the law of the 19 Jan.
1869, already referred to, the character of a Turkish
subject may be obtained on application to the Minister
for Foreign Affairs, provided the applicant is of age
and has resided five years consecutively within the
Ottoman Empire—though the Government reserves
to itself the power of dispensing with these conditions
in exceptional cases.
As regards the children of a naturalized alien,
children born after the naturalization become Ottoman
subjects; all born before, though minors, remain
aliens.
Prussia and Bavaria appear to be the only Euro-
pean States which pay regard to the important par-

ticular of the capacity of the party seeking to be natu- v^/
ralized to divest himself of his former allegiance.* :'%>
* In Sweden, (see preceding page), the party to be naturalized
is required to prove that he has ceased to be a subject of his original
country, but he is allowed the alternative of giving up all claim on
such country. It does not follow that his original country gives
up all claim on him.
/ - >
50
C II A JPT K K II T
tiXPATKJATlOJN.
Section 1. Expatriation in general.
Thk foregoing outline of the laws relating to natu-
ralization will suffice to shew with what facility the
subjects of one state may procure them selves to be
accepted as the citizens of another, in the great
majority of instances without any inquiry as to their
ability to transfer their allegiance from the country
of origin to that of adoption. Yet it is obvious that,
m the absence of this ability, the nationality of origin
must remain, and with it the possibility of conflict-
^ ing claims to the allegiance of the party natuialized,
as well as of embarrassing claims to protection on his
part No doubt, if the position were universally
adopted that, by becoming the subject of another
State, a person naturalized effectually severed the
political tics which bound him to his original coun try,
and became free from all duty of allegiance to it, the
matter would be extremely simple and no inconvc
nieivce could arise. But, unfortunately, there is no
point on which the public law exhibits greater con-
flict than on this.
Tn some States the subject is left entirely free to
expatriate himself if he pleases, and the mere fact
of his becoming the naturalized subject of another
country has the effect of dissolving the tie which
bound him to the parent state. The advantage to
51
the individual of being a subject or citizen is looked
upon as greater than that which the state derives
from his allegiance, and he that quits his own country
to become the subject of another is held to forfeit the
nationality inherited from his fathers.
In a second class of States, while the right of
expatriation and with it the dissolubility of the alle-
giance of origin is admitted, the consent of the Sove-
reign or State must be obtained before the indivi-
dual can divest himself of the character and duties of
a subject.
Lastly, there are States, in the law of which the
maxim that a man cannot put off his country—nemo
potest exuere patriam—prevails, and the subjects of
which, therefore, if they become naturalized in another
country, still remain subject to their original alle-
giance.
Section 2. Foreign Law.
By the old law of France, a Frenchman who had
quitted his country, " sans aucun esprit de retour,"
was held to lose the quality and rights of a French-
man. The u esprit de retour" was, indeed, always to
be presumed, unless some fact appeared which clearly
manifested the intention of expatriation. But natu-
ralization in a foreign country was deemed to be such
a fact.*
* Repertoire de Jurisprudence, Tit. Efcranger, Vol. vii. p. 117.
A royal ordinance of August, 1669, ruus as follows: "Defendons
a tous nos sujets de s'etablir sans notre permission dans les pays
etrangers^parmariage, acquisition d'imnieubles, transports de
leurs families etTnens, pour y prendre etablissement stable et
sans retour, a peine de confiscation de corps et biens, et d'etre
reputes etrangers."—lb.
E
52
The expatriated subject could, however, if autho-
rized by the King, return to France, and be readmitted
to the status and rights of a subject on taking the oath
of allegiance, but his restoration to the character of
a Frenchman had no retroactive effect. Thus an
inheritance, which, by reason of his incapacity during
the period of his alienage, had devolved on another,
was altogether lost to him lie could only benefit
by rights accruing after the time of his readmission
to the character of a Frenchman *
These principles were adopted in the Code Napo-
leon; by the provisions of -which the quality of a
Frenchman is lost: 1. by naturalization in a foreign
country; 9. by acceptance, unauthorized by the head
of the State, of public functions conferred by a foreign
government; 3. by any establishment in a foreign
country sans esprit de retour. Commercial establish-
ments are, however, never to be considered as.having
been made sans esprit do retour. |
Nevertheless, a Frenchman who has thus lost his
French nationality, may recover it, on returning to
Fiance, with the authorization of the head of the
State, and declaring that he intends to settle there,
and that he renounces every distinction contrary to
* .Repertoire de Jurisprudence, u. a.
t This must probably be taken to mean that an establishment
for commercial purposes must not, per se, be considered as having
been made sang espril de retour. Tf it could be shewn, from other
circu instances, thai the frenchman, though settling in the foreign
country for the purpose of trade, had finally abandoned all inten-
tion of ever returning to his own country, the fact of his having
settled for the purpose of trade, could hardly having the effect of
exempting him from the operation of the general law.
the law of France. But the recovery of tlie character
of Frenchman will only inure to the benefit of the
party so restored in respect of rights accruing poste-
rior to its date.*
The Frenchman who, without being authorized by
the head of the State, takes military service under a
foreign government, or attaches himself to a foreign
military corporation, is in a worse position. He
not only loses his quality as a Frenchman, but cannot
return to France without authorization so to do; and
if he desires to recover French nationality, can only
do so by the same means as would be open to a
foreigner, while, under any circumstances, if he has
borne arms against France, he remains liable to the
penalties pronounced by the penal law against French-
men who have so acted, t
It thus appears that the Code Napoleon throws no
impediment in the way of a French subject becoming
naturalized in a foreign country. If the subject is
content to sacrifice his nationality as a Frenchman,
the law leaves him free to follow his inclination; and,
as the naturalization at once destroys the character
~oF~aT French subject, even if/he should afterwards
bear arms against France, he would not, it^isTappre-
hj3fcted, under the Code, come within the provisions
of the penal law which applies to Frenchmen alone.
But the provisions of the Code on this subject were
* Code Civil, Arts. 17—20.
t Code Civil, Art. 21. By the 75th Article of the Code penal,
"Tout Francais qui aura porte les armes contre la France sera
"puni de inort."
51
materially modified by a decree of the tfmperoi Na-
poleon, of the 26th August, 1811 By this decree, the
naturalization of a Frenchman in a foreign countiy,
unless authorized by the Kmperor, was forbidden Tf
such authorization had been obtained, the party, not-
withstanding his naturalization in a foreign country,
was to have the right of possessing and transmitting,
and of inheriting property in France, even though
the subjects of the countiy in which he might be natu-
ralized did not possess such rights in France The
children of a Frenchman naturalized in a foreign
countiy, and born there, were to be aliens, but they
might recover the quality of Frenchmen on comply-
ing with the formalities prescribed by the 9th and
10th Articles of the Code; they were at all events to
have the benefit of all rights accruing to them within
the period of their majority, and ten years after it.
Rut Frenchmen thus naturalized were * prohibited
from bearing arms against Fiance, under the penalty
of the Article of the Penal Code already referred to.
The position of a Frenchman who became natura-
lized without authorization was far worse. I lis
property was to be confiscated, and he was to be
incapable of inheriting; any succession falling to
him was to devolve on the next heir. Tf found on
French territory, he was to be arrested, and con-
ducted beyond the frontier; if taken a second time,
he was to be condemned to imprisonment for not
less than one year nor more than ten Tfheboie
arms against Fiance, he was punishable with death
It is admitted by French jurists that this decree had
55
originally the force of law: whether it is still in force
is a matter on which there has been much diversity of
opinion. By subsequent legislation, forfeiture of pro-
perty as a punishment has been abolished, and fo-
reigners have been made capable of inheriting in
France; and it has been contended that by this legis-
lation the decree of 1811 relative to Frenchmen na-
turalized without authority has been deprived of its
force. The better opinion seems to be that, while the
abolition of forfeiture would operate, so far as that is
concerned, for the benefit of a party so circumstanced,
the incapacity to succeed to an inheritance, being
intended as a penalty on the Frenchman who deserts
his country without permission, could not be affected
by a law intended merely to improve the position of
foreigners in general.* But, as is pointed out bjT
Mons. Treitt, the Counsel to the English Embassy
at Paris, in a very able letter to Lord Lyons of the
26th of January, 1868,f whether the decree of 1811
is in force or not, it does not in any way derogate
from the enactment of the Code Napoleon, which
gives to naturalization in a foreign country the effect
of dissolving the tie between the subject and his
country; it only attaches penalties to the act of the
subject in accepting such naturalization. And the
result therefore is that a French subject can at any
time by his own act transfer his allegiance to any
country which consents to naturalize him.
* The subject is discussed by Mons. Demolombe with the logic
and learning which distinguish hiin. Cours de Code Napoleon,
vol. i. p. 238-246.
t Appendix to Beport, p. 2L
5G
The States which have followed the Code Napo-
leon Belgium, Greece, and the kingdom of Italy,
are free from any such provision as is contained in the
Imperial decree of 1811.
The new Italian Code varies, however, somewhat
from the French By section 11 of that Code,
Citizenship is lost: 1. On renunciation by declara-
tion before the proper civil authority of the province
wherein the person resides, and subsequent emigra-
tion to a foreign State; 2. by naturalisation in a
foreign country; 3. by accepting employment from
a foreign State without previous permission of the
1 taTian Government, or by entering into the military
service of a foreign .Power.
The wife and minor children of one who has thus
lost citizenship become aliens, unless they continue
to reside within the realm The wife, however,
can re acquire citizenship by returning, and declar-
ing before the proper civil authority her intention to
establish her domicile within the State; and the chil-
dren may do so by a declaration similar to that re-
quired of the children of aliens born within the realm
Loss of citizenship in the cases stated docs not ex-
empt from the obligations of military service, or from
the penalty inflicted on anyone who bears arms
against his native country.
The citizen who has lost his citizenship for any
of the reasons stated, will recover it: 1 By re-
turning to the realm with the special permission
of the Government; 2. by renunciation of the fo-
reign citizenship, employment, or militaiy service
acquired in the foreign country; 3, by declaring be
57
fore the proper civil authority of the State an inten-
tion to establish domicile within the realm, and by
hond fide establishing it accordingly within a year.*
By the Spanish Constitution of 1845, the quality
of a Spaniard is lost by naturalization in a foreign
country, or by admission to the employ of a foreign
country without the Royal license.f But by a
Royal decree of the Spanish Government of
Nov. 1852, a Spaniard naturalized within the
territory of another power without the knowledge
and authority of his Government, shall not exempt
himself from the obligations which were consequent
on his primitive nationality,^: though in other re-
spects he may lose the quality of a Spaniard.
In Portugal, the quality of a natural subject is lost:
1. By naturalization in a foreign country; 2. by
accepting, without permission of the King, an allow-
ance or a decoration from a foreign Government;
3. by a sentence of banishment in cases in which the
law attaches this consequence to the sentence.§
The right of Austrian subjects to expatriate them-
selves depends on authority first obtained from the
Government. The law on this subject is settled by
an Imperial ordinance of 1832,j| which is very full
and explicit, and enacts as follows: —
I. Emigration or Expatriation .—Any Austrian subject who
* Codice Civile, Art. 13.
t Art. 1. See Appendix to Beport, p. 28.
X Appendix to Beport, p. 59.
§ St. Joseph, Concordance, vol. iii. p. 139.
|| Appendix to Beport, p. 92.
68
leaves ln's own country for a foreign State without the inten-
tion of returning is to be considered as an emigrant.
II Lawful Emigration, Those who wish to emigrate
must apply to the proper authority to be released from their
Austrian citizenship. They must prove that they are self-
dependent, and in the free exercise of their rights; they
must state what members of their family are to emigrate
with them; prove that they have all fulfilled their military
liabilities; and show that no hindrances exist in regard to
public duties Should the application be rejected, recourse
may be had to the Privy Council
III Unauthorized Expatriation. Th osc who go to a foreign
country without leave, with the expressed or apparent inten-
tion to return no more, are to be considered as unauthorized
emigrants Such intention is shown by the acceptance of
foreign citizenship, or a foreign, civil, or military office
without special permission; by joining a foreign religious
institution or other association out of the Empire, requiring
personal attendance; by staying abroad for five years with-
out having property or business there requiring such absence,
and if the family and property of the emigrant be withdrawn
from the country; by staying abroad for ten years without
the previous conditions; by n on-obedience to a summons of
recall to the Austrian States, issued by the Authorities Fl1he
five and ten years periods are not applicable to Austrian
subjects residing in States with which Austria has Treaties
of free emigration
IV. The Effects of Emigration. Those who emigrate with
permission lose their character as Austrian subjects and are
treated as foreigners. Those who emigrate without permis-
sion loso their rights of citizenship, and are liable to all the
legal consequences of that loss; they lose the rank and ad-
vantages which they held in Austria, and are struck off the
registers; they can neither acquire nor transfer property
where this law applies; any previous testamentary disposi-
59
tions with regard to such property becomes void; their
inheritances go to the next heir after them. Their property
is sequestered without prejudice to the claims thereon.
Their children or descendants resident in the State are
suitably maintained out of the sequestered property. The
net overplus goes to increase the property, the whole of
which reverts to the heirs at the death of the expatriated
owners. In special cases the Sovereign can allow the chil-
dren to enjoy the sequestrated property.
V. The Children of Unauthorized Emigrants.—Those who
are born before sentence has been passed against the father
do not lose their_ Austrian citizenship or their position during
their minority, nor for ten years after coming of age if the
father be still living; nor for one year after his death, if within
the ten years; nor for three years after coming of age if the
father die before they do so; and they enter upon their full
rights if they return to the Austrian States within those
periods. This favour is also applicable to children sent to
reside abroad by an Austrian subject living himself in the
country. Such children are, however, to be looked upon as
foreigners if they have ucquired citizenship abroad, or if
they do not claim the reserved rights within the prescribed
periods.
VI. Female Subjects married to Foreigners.—These lose the
Austrian citizenship on such marriage, and if they become
widows, can only regain it in the same way as any female
foreigner. Z
t VII. Be-habilitation.—Citizenship can only be re-conferred
on unauthorized emigrants by permission of the Sovereign;
but those who have emigrated with permission may regain
it in the manner prescribed in the General Code of Civil
Law. Such regained citizenship is only available in regard
to subsequently acquired rights.
The right of a Prussian subject to renounce his
GO
natural allegiance and to emigrate to a foreign country
cannot Lake place without a previous discharge by
his own Government; but this discharge cannot be
withheld, or the right to emigrate restricted, except
with reference to the duly of militaiy service.*
Such is the effect of a law of Dec 31, 1849,
concerning the loss of the quality of a Prussian sub-
ject. By this law the quality of a Prussian subject
is lost: 1. by discharge upon the subject's request;
2. by sentence of a competent authority; 3. by living
ten years in a foreign country.
The discharge has to be asked for from the police
authority of the province in which the subject's
domicile is situated, and is effected by a document
made out by that authority.
/ It cannot be granted: (1.) To male subjects who
/ are between seventeen and twenty-five years of age,
Is until they have got a certificate of the military com-
mission of recruitment of their district, proving that
their application for discharge is not made merely
to avoid the fulfilling of their military duty in the
standing army; (2.) to actual soldiers, belonging
either to the standing army or to the reserve; (3.) to
officers of the militia or to public functionaries,
prior to their being discharged from service; (4 ) to
subjects having formerly served as officers in the
standing army or the militia, or having been ap-
pointed military employ6s with the rank of officers,
or civil functionaries, before they have got the con-
sent of their former chief; (5 ) to the persons be -
* Art. 1 of .Prussian Constitution of 1850; and see Appendix
G. annexed to Keport of Commissioners
01
longing to the militia, not being officers, after their
having been convoked for actual service. For other
reasons than those specified, the discharge cannot be
refused in time of peace.
The document of discharge effects, at the moment
of its delivery, the loss of the quality of Prussian
subject. If there is no special exception, the dis-
charge comprehends also the wife and the minor
children who are still under their father's authority.
Subjects living in a foreign country may lose their
quality as Prussians by a declaration of the police
authority of Prussia, if, having been summoned to
return to the country within a fixed time, they fail to
obey within the time.
Subjects who either leave the Prussian States with-
out permission, and do not return within ten years,
or leave with permission, but do not return within
ten years after the expiration of the term granted by
the permission, lose their quality as Prussian subjects.
Subjects who emigrate without having obtained
their discharge, or who enter into the public service
of a foreign State, without having obtained their
discharge or the permission of the King to accept
such service, are to be punished according to the laws
existing in that respect.
In Bavaria, by an edict of May, 1818, annexed to
the constitutional charter, the character of a subject
is lost; 1. by acquiring citizenship in another coun-
try; 2. by actual emigration.*
In Wurtemberg, citizenship is lost, by emigration,
* Moy, Droit public de Baviere, vol. ii. § 159, Art. 6, F®lix,
vol. i, p. 99.
62
if authorized by the Government, or by employment
by a foreign Stale.*
A .Russian subject cannot emigrate or become
naturalized in another country without the permis
sion of the Kiinperor. Jf he docs so, he commits an
offence for which, under article 367 of the Fenal Code,
he will be deprived of all the rights of a Russian
subject and banished for ever from the .Russian do-
minions | Tf having first obtained the necessary per-
mission he becomes naturalized elsewhere, he loses
his Russian nationality, but, the will of the Sovereign
being all powerful, he might of course recover it on
returning with the permission of the Kmperor. j
A. naturalized foreigner is at liberty at any time
to return to his former nationality, and on doing so
may either quit the country or remain in it enjoying
equal rights with other foreigners.§
By the law of Sweden, if a Swedish subject settles
under the dominion of a foreign power, he is to be
treated as a foreigner. || By a law of 1768, inserted
in the law of succession in the Swedish Code^] he
* Weishaart Jlandbuch d Wurtemberg. Jfrivat-rechts 1, § 74
tf&YiK, vol. i. p. 99.
f Sec Appendix to Keport, p. 59.
J This statement of the Jbtussian law is made on information
furnished by the courtesy of the Kussian Authorities in thia
conn try. Tnstanccs of permission being given to a Kussian sub-
ject to become naturalized elsewhere are extremely rare The
author was informed by Mis Excellency Karon llrunnow, that he
had only known of one such instance in the whole of his experience
§ Appendix to KepoH, p. 26,
|| Penal Code of 1869, Chap. 1, § % f Tbid, Chap. 18, § 7.
63
loses his right to any inheritance or succession. If
he returns to the country he recovers his rights, but
prospectively only. Whatever would have otherwise
fallen to him in the interval goes to the next heir.
In Norway, nationality is lost by naturalization in
a foreign country; by any establishment formed in
a foreign country sine animo revertendi; by accept-
ing, without permission from the King, any em-
ployment in a public capacity from a foreign govern-
ment. But the Norwegian nationality may be
recovered by returning to a Norwegian domicile,
followed by a residence of ten years consecutively.*
A subject of the Ottoman Empire cannot divest
himself of his character of Ottoman subject without
the authority of the Imperial Government. If, having
that authority, he becomes naturalized elsewhere, he
is considered an alien. If he accepts a foreign natu-
ralization without being authorized so to do, such
naturalization is considered as of no effect, and he is
still considered and dealt with in all respects as an
Ottoman subject, f
Section 3. Law of England and United States.
At variance in this respect with the laws of all
other civilized nations, the law of England, followed,
as will presently be attempted to be shewn, by that
of the United States, asserts, as an inflexible rule, tEat
no British subject can put off his country or the
natural allegiance which he owes to the Sovereign—
* Sfc. Joseph Concordance, Tome iii. p. 4.
f Law of 19 January, 1869, Art. 5.
64
even with the assent of the Sovereign: in slioi 1^
that natural allegiance cannot be got rid of by any
thing less than an Act of the legislature, of which it
is believed no instance has occurred *
The slate of the American law on this subject has
been the subject of much discussion, and American
jurists appear to be at issue with American statesmen
\in regard to it. Yet that the law of America was
* Calvin's Case, 7 Co. Kep. p. 1, 1 Black si. Com p. 66.
Tn the caso of ^ncas Macdonald, who was tried for high
treason, for having borne arms in the rebellion of 1745, it appeared,
thai the prisoner had been brought up from his early infancy iu
JbYancc, had in his riper years been employed in that country, and
thai he held a commission from the French lung. After a faint
attempt to make out that the prisoner had been born in .France,
his Counsel, despairing of establishing that fact, addressed, the jury
on the great hardship of such a prosecution against a person so
circumstanced, and speaking of the doctrine of natural allegiance,
represented it as a slavish principle, derogating from the princi-
ples of the revolution, Hut the Court interposed, and said it
/ never was doubted that a subject-born, taking a commission from
/ a foreign prince and committing high treason, may be punished as
a subject for such treason, notwithstanding his foreign commission j
that it was not in the power of any private person to shake off his
allegiance and to transfer it to a foreign prince; nor was it in the
power of any foreign prince, by naturalizing or employing a sub-
ject of Great Hritain, lo dissolve the bond of allegiance between
that subject and the Crown And the Tord Chief Justice l>c, in
charging the jury, told them that, the overt acts laid in the indict-
ment having been proved against the prisoner, and admitted by
him, the only fact to be tried by them was whether he was a
subject of Great Britain; as in that case he must be found guilty.
The prisoner was accordingly found guilty, but received a pardon
on condition of banishment. /f<lnea$ Macdonald's Case, .Foster's
Crown Cases, p. 59.
65
originally the same as that of England cannot well be
doubted, it being a settled principle of English Colonial
law that Colonists on the first settlement of a Colony
take with them the common and statute law of the
mother country^ so far as the same is capable of being
applied to the circumstances of the colony. Hence,
the law of the American Colonies having been the
same as that of England immediately previous to the
establishment of American independence, the law
would so remain till altered by legislative enactment.
But no such legislation has taken place. It has,
however, been contended, in the opposite view, that
the separation from Great Britain and the establish-
ment of republican institutions had the effect of vir-
tually abrogating a law founded on feudal principles;
more especially as the doctrine of unalterable alle-
giance is incompatible with the natural freedom and
the welfare of mankind, as well as with the interest
of the United States, to the peopling of whose vast
territories immigration is of essential and paramount
importance. But, however cogent such considera-
tions may be in showing what the law ought to be,
it seems, on legal principles, impossible to say that a
change from monarchical to republican government
coidd carry with it the tacit abrogation of a law pro-
hibiting expatriation and the putting off the allegiance
due to the country of origin; nor can it be conceded
that the public interest and convenience—still less
that of individuals—suffice to alter a subsisting law
without legislative action. Such is the view taken
by Chancellor Kent, one of the greatest jurists whom
66
either this country or America lias produced. After
passing in review the authorities, Chancellor Kent
thus proceeds: u Jb rom this historical review of the
u principal discussions in the federal Courts on this
u interesting subject in American jurisprudence, the
"better opinion would seem to be, that a citizen
u cannot renounce his allegiance to the United States
u without the permission of government, to be de-
u dared by law; and that, as there is no existing
a legislative regulation on the case, the rule of the
"English common law lemains unaltered."*
Tn like manner, another great jurist, Mr. Justice
Giorv, in delivering the judgment of the Supreme Court
* 2 Kent's Com, p. 10. Chancellor Kent adds in a note, " This
rule was admitted in Inglis v. The Trustees of the Sailors' Snug
11 arbour, 3 Peters' U. S. Kep. 99, and expressly declared in Shanks
fV. Hupont, Tbid 24*3, where it was held, by the Supreme Court of
\J the United States, that the marriage of a femme sole with an alien
/ produced no dissolution of her native allegiance; and that it was
J the general doctrine that no person could, by any act of their own,
without the consent of the government, put olT their allegiance and
become aliens The Court of Appeals of Kentucky, in Alsberry
v. Hawkins, 9Dana's Kep l'/8, so late as 1839, did indeed con-
sider expatriation a practical and fundamental American doctrine,
and that, if there be no statute regulation on the subject, a citizen
may, in good faith, abjure his country, and that the assent of the
government was to be presumed, and he be deemed denationalized
Hut from the cases already referred to, the weight of American
authority is in favour of the opposite doctrine, which is founded,
as I apprehend, upon the most safe and practicable principles
I The naturalisation laws of the United Siatcn are, however, incon-
sistent with this general doctrine, for they require the alien who
\is to be naturalized to abjure his former allegiance, without rc
quiring any evidence that his native sovereign has relcasod it."
G7
of the United States, says, "the general doctrine is
that no person can, by any act of their own, without
the consent of the Government, put off their allegi-
ance and become aliens."* Quoting this judgment,
Mr. Justice Sherman, another American judge, says,
441 consider this the law of the United States."
The doctrine of allegiance and expatriation is
elaborately discussed by Mr. Caleb Cushing,
Attorney-General of the United States, in a report
dated October 31, 1856; in which, after reviewing
the cases bearing upon the subject which have come
before the American Courts, and citing the opinions
of the principal legal authorities of the United States,
he thus sums up the result;
"Here the matter stands, unadjudicated as decision, but
not undetermined as opinion. After carefully reviewing
the whole subject, Chancellor Kent pronounces the better
opinion to be, that a citizen cannot renounce his allegiance
to the United States without permission of the Government
to be declared by law. It is a significant fact, at all events,
that, on so many occasions where the question presented
itself, not one of the Judges of the Supreme Court has
affirmed, while others have emphatically denied the unlimited
right of expatriation from the United States."t
This admission should not be lost sight of when
we come, further on, to see the reproaches addressed
to this country by American statesmen on the exist-
ing state of our law of allegiance.
* Shanks r. Dupont, 3 Peters, TJ. S. Eep. p. 242. Appendix
to Eeport, p. 49.
t Appendix to Eeport, p. 82.
F
68
OIIAPTKR IV.
■JJTSPUTKS AK1SING FROM CON DUCTING CLAIMS.
Section 1. Conflict of Laws.
tir is obvious that from the conflict of laws
Which has/thus bcbn shewn to exist in respect of
nationality of origin,' very serious difficulty may
arise, as to allegiance on the one hand, and the
claim to protection on the other. The following^'
case will illustrate the actual state of thin*
man born of .French parents within BritisK^^iT'iioiy
is by the law of France a Frenchman: by the law
t>f this country he is a British subject, and as such
owes allegiance to the Sovereign of these realms.
Let us suppose a child born of French parents during
a temporary residence in this country. On the return
of the parents to France, the child accompanies them,
and is brought up as a Frenchman Being subject
;to the conscription he becomes a soldier. Suppose
that, war taking place between Fngland and France,
the man is-made prisoner, l ie is liable to be con-
demned and punished as a tiaitor- Suppose, on the
contrary, that, his parents having remained domiciled
in this country, he is brought up as a British subject,
and enters the British army or navy; he is liable, by
the French law, to be put to death, for having, being
a Frenchman, borne arms against France The same
state of things would arise, if a child, born of British
09
parents in France, were to claim under the 9 th Article
of the Code Civil, to be acknowledged as a French-
man. He would none the less be a subject of the
Queen; and if taken while serving under the con-
scription and bearing arms against this country, might
find himself exposed to the inconvenient results
already pointed out as possibly arising from a double
allegiance
/But t^e difficulty is not confined to cases where
/there is a conflict of laws between two countries, by
reason of the one making the relation of subject de- \
pend on the place of birth, the other on parentage.
A conflict of jurisdiction may equally arise where the
law of the two countries is identical, if, by the law of
each, the relation of subject may be derived from
both these sources. Thus, suppose a British subject
to have children born to him in the United States.
His offspring to the second generation will be British^^
subjects by reason of their parentage, while they will [J/t/tx,^,. /, > 7
equally be American citizens, as having been born ~ 1 A"'r:-.
within the territory of the States. The converse will ^
of course equally hold of the children of American *.J**^.
citizens born within the dominions of the British <^&£
Crown/7 o^^l^*^ ^
A still more formidable source of embarrassment <r> ^ ^
is to be found in the naturalization by one state
of the subjects of another, when the latter refuses to^^ ^/%^r^
relinquish its hold on their allegiance. This has
been, for more than half a century a cause of discord • ^ ~ * 7?~~-i
between Great Britain and the United States. /i.* ^/ ^ J" *
•., * .r. /- ^- r2- •-- -•":
70
Section 2. Disputes between Great Britain and
the United Stales.
"The questions of naturalization and allegiance,''
say the Commissioners, 44 have been a fruitful
u source of controversy between the two countries,
44 Commencing from the first establishment of the
44 American Union, they have continued with un-
u abated vigour until the present day, when the great
44 increase in the number of persons settled in Amc
"rica has raised them to a position of the utmost im-
"portance." *
The outbreak of the war between this country and
France, after the French revolution, first gave a
practical impoitance to the question Tn those days
impressment was habitually resorted to for manning
the navy, while the severity of the discipline and the
disregard of the comforts of the crews made our
merchant seamen anxious to escape from the service.
Hence considerable numbers enlisted in the American
navy, or sought employment in American merchant
vessels,! and frequently obtained the additional pro-
tection of American naturalization The British
Government, however, set at nought such claims to
protection K\ercismg its right to search the ships
* Appendix to Keport, p. 30.
j- The extent to which, owing^ to these causes, this practice had
bocn earned, may be judged of by the fact that, from an Admiralty
minute of the day, it appears there were supposed to be upwards
of 20,000 British born seamen in the American marine Impress
xnent .Papers, Feb. 21, 1812 Appendix to Keport, p 35.
71
of neutrals for contraband of war, it further proceeded
to impress into the Royal Navy all natural born sea-
men who were found in American vessels, without
paying any regard to their acquired American citizen-
ship. From the year 1796 we find the government of
the United States strongly remonstrating against this
course of proceeding, and strenuously endeavouring to
obtain by negotiation some concession from this country
in respect of its pretensions on this subject. But the
King's government remained inflexible, and asserted
the prerogative of the Crown in the matter of allegiance
and the right of impressment in the most unqualified
manner. In November, 1806, Sir John Nicholl, then
King's Advocate, advises the Government that u His
44 Majesty, by his Royal prerogative, has a right to re-
44 quire the service of all his seafaring subjects against
44 the enemy, and to seize them by force wherever they
44 shall be found. This right is limited by the terri-
(l torial sovereignty of other nations, and therefore
iC His Majesty cannot seize his subjects, because he
a cannot exercise any act of force within the territory
44 of another State. But the high seas are extra-
44 territorial, and merchant vessels navigating upon
44 them are not admitted to possess a territorial juris-
44 diction, so as to protect British subjects from
44 the exercise of His Majesty's prerogative over
44 them. This right has from time immemorial
44 been asserted in practice, and acquiesced in by
44 foreign nations. The pretension appears to be
44 sound in principle, although difficulties may
72
w arise in its exercise, particularly on board vessels
44 of the United States, from the similarity of lan -
44 guage and appearance in British and American sea-
44 men" Sir John Nicholl adds, that if foreign mer-
chants are aggrieved by it, they have only themselves
to blame for engaging British seamen *
Tn 1807, the terms of a treaty for leciprocal rights
of commerce and navigation, regulations as to prize,
privateering, blockade, and contraband of war, and
trade with the enemies' colonics not blockaded, were
agreed on between the Commissioners of the respec-
tive countries; but the British Government having
staled on the subject of impressment that I lis Majesty
could not give up the right of which complaint was
made, the President refused to ratify the treaty, dc
claring that no treaty could be entered into with the
British Government which did not include the sub*
ject of impressment.
Tn the November of 1807, in return for the celc
biated Berlin decree of Napoleon, appeared the
orders in Council declaring all French ports and
ports in the possession of the French to be in a state
of blockade; and with them a proclamation by the
King, evidently directed against America, recalling
all British seamen employed in foreign vessels.
The following passages show the extent to which
the authorities of this country were prepared to
carry the doctrine of allegiance, a Whereas it has
44 been represented unto us that diveis mariners and
* Appendix to Eepori, p. 3*7
73
44 seafaring men, our natural born subjects, have been
44 induced to accept letters of naturalization, or cer-
44 tificates of citizenship, from foreign states, and have
44 been taught to believe that, by such letters or
44 certificates, they are discharged from that duty of
44 allegiance which, as our natural-born subjects,
44 they owe to us: now we do hereby warn all such
44 mariners, seafaring men, and others, our natural-*
44 bom subjects, that no such letters of naturalizationj
44 or certificates of citizenship, do, or can, in any
44 manner, divest our natural-born subjects of the
44 allegiance, or in any degree alter the duty which
u they owe to us, their lawful Sovereign/' After
holding out a promise of free pardon to all such sea-
men as should immediately withdraw themselves from
foreign service and return to their allegiance, it con-
tinues thus: 44 And we do declare that all such our
44 subjects who shall continue in the service of foreign
44 States, in disregard and contempt of this our Royal
44 Proclamation, will not only incur our just displea*
44 sure, but are liable to be proceeded against for such
44 contempt, and shall be proceeded against accord^
"ingly."
The relations with the United States soon assumed
a very unsatisfactory character. Acts of Congress
were passed laying an embargo on vessels trading
with Great Britain in ports of the United States,
and interdicting commercial intercourse with Eng^
land*
# Appendix to Eeport, p. 34.
74
By the middle of 1819, the ill feeling between
Oieat Britain and America, to which the question of
impicssment and nationality had so much contributed,
but which other causes had also tended to aggravate,
44 culminated," to use an expression of the Commis
pionersj in a declaration of war by the United Gtalcs.
In answer to the proclamation of the President, a
declaration of the Prince .Regent, of the 9th of
January, 1813, in dealing with the subject of im-
pressment, so prominently put forward among the
alleged grievances of America against this country,
reasserted in the strongest terms the pretensions of
the British Government
44 His Royal Highness can never admit that in the
44 exercise of the undoubted and hitherto undisputed
44 right of search of neutral merchant-vessels in time
LC of war, the impressment of British seamen when
44 found therein, can be deemed any violation of a
44 neutral flag. Neither can he admit that the taking
44 of such seamen from on board such vessels can be
44 considered by any neutral State as a hostile mea-
"sure or a justifiable cause of war."
44 There is no right more clearly established than
44 the right which a Sovereign has to the allegiance
44 of his subjects, more especially in time of war.
44 Their allegiance is no optional duty, which they
u can decline and resume at pleasure. Tt is a call
v which they are bound to obey: it bepan with
u their birth, and can only terminate with their
44 existence"
75
44 If, to the practice of the United States to har
44 bour British seamen be added their assumed right
44 to transfer the allegiance of British subjects, and
44 thus to cancel the jurisdiction of their legitimate
44 Sovereign, by acts of naturalization and certificates
44 of citizenship, which they pretend to be as valid
44 out of their own territory as within it, it is ob-
44 vious that to abandon this ancient right of Great
44 Britain, and to admit these novel pretensions of
44 the United States, would be to expose to danger
u the very foundation of our maritime strength."
One of the ordinary incidents of war was followed
by proceedings which soon tested the soundness of the
principle asserted by Great Britain. Among the
prisoners taken by the British forces were many who
were natural-born subjects of Great Britain, but who
had been naturalized or long domiciled in America. In
September, 1812, six seamen were taken in the U. S.
ship Nautilus, and sent to England, their exchange
being refused, on the ground that they were British
subjects. Two of them had been naturalized in Ame-
rica. Twelve British sailors, prisoners of war, were
immediately detained as hostages by the American
commander. The like course was adopted on six more
A merican prisoners being sent from Nassau to England
to be tried as traitors. On January 7, 1813, twenty-
three soldiers of the American army, prisoners of
war, some of whom had been naturalized, and all of
whom had been domiciled in the United States, were
sent to England for trial as traitors. A like number
76
of British prisoners, officers and men, were thereupon
placed in strict confinement by the American go-
vernment Double that number of American officers
and non-commissioned officers were foithwith ordered
to be held as hostages for the safe keeping of the
twenty-three British soldiers; and the American
Commander-in-chief was apprized that "if any of the
said British soldiers should suffer death by reason that
the soldiers now under confinement had been found
guilty, and that the known law, not only of Great
Britain, but of every Independent State under similar
circumstances, had been in consequence executed, it
was ordered by the Prince .Regent that there should be
Selected, out of the American officers and non-commis
sioned officers then in strict confinement, as many as
would double the number of British soldiers who
should have been so unwarrantably put to death,
and that such officers and non-commissioned officers
should suffer death immediately and further, that if
the American Government persisted in the policy of
retaliation, the war would be prosecuted with u un-
mitigated severity against all cities, towns, and vil-
lages belonging to the United States "*
The British Government appears, however, to have
shrunk from the horrors of reciprocal and indefinite
retaliation: none of the prisoners were dealt with as
traitors; the sailors taken from the Nautilus and
from the jail at Nassau were exchanged; and in a
* American State Papers, vol. iii. p. 039, and scq.; Appendix to
Jfreport, p. 35.
77
convention of the lGth of July 1814, for the ex-
change of prisoners, a stipulation was inserted for
the exchange of the twenty-three British soldiers,
and the forty-six American commissioned and non-
commissioned officers, as prisoners of war.*
Nevertheless in the course of the same month we
find the British government reiterating the doctrine
of indelible allegiance, and threatening the penalties
of high treason against those who remained in the
service of the enemy, though naturalized, A pro-
clamation by the Prince Regent, of the 24th of July,
specially directed against America, after prohibiting
all natural-born subjects of His Majesty from serving
in the ships and armies of the United States, and
charging ail such persons at once to quit such service,
proceeds as follows:
u And whereas it has been further represented to
u us that divers of our natural born subjects a$
"aforesaid have been induced to accept letters of
44 Naturalization or Certificates of Citizenship from
44 the said United States of America, vainly supposing
u that by such Letters or Certificates they are dis-
"charged from that duty and allegiance which, as
44 our natural born subjects, they owe to us: Now we
44 do hereby warn all such our natural born subjects,
44 that no such Letters of Naturalization or Certificates
44 of Citizenship do, or can, in any manner discharge
44 our natural born subjects of the allegiance, or in any
* American State Papers, vol. iv. p. 738. Appendix to Ke-
port, p. 35.
78
"degree alter the duty which they owe to us, their
"natural Sovereign A pardon is then offered to
those who have so acted under error on immediately
withdrawing from the service of the United States,
and notice is given that any who shall persist in re
maining in that service will subject themselves to be
proceeded against with the utmost rigour; and,
"Moreover,that all such our subjects, as aforesaid,
"who have voluntarily entered, or shall enter, or
u voluntarily continue to serve, on board of any such
"ships of war, or in the land forces of the said United
w States of America, at enmity with us, are, and will
u be guilty of high treason"
The pacification of Europe having, however, prac-
tically put an end to the grievance of search and
impressment, which had given so much cause of
oftence to the United States, and neither party being
disposed to continue the war for the sate of an abstract
principle, negotiations for peace were opened at
Ghent j and before the end of the year, peace between
the two nations was restored with this somewhat
remarkable result, that, all chance of agreement
between the two parties as to the right of impressment
being hopeless, the treaty of peace was wholly silent
as to that which had been the principal cause of the
contest
Tn 1818, while Mr. Hush was Minister of the
United States in this country, negotiations were again
opened for the settlement of this controversy, but
without any result. After much discussion no
79
agreement could be come to as to any terms of
settlement.
Thus matters rested till 1842, when other causes
of difference between this country and the United
States having arisen, Lord Ashburton was sent out
on a special mission, to negotiate for the settlement
of all existing differences between the two countries.
Mr. Webster took advantage of this opportunity to
revive the former controversy, and to urge the im-
portance of coming to some definite understanding in
respect of it. As the case from the American point
of view has never been better put, the substance of
this paper will be here stated.
"England/' he says, a asserts the right of im-
pressing British subjects in time of war, out of
u neutral merchant vessels, and of deciding by her
w visiting officers, who, among the crews of such
u merchant vessels, are British subjects. She asserts
"this as a legal exercise of the prerogative of the
a Crown, which prerogative is alleged to be founded
"on the English law of the perpetual and indissolu-
u ble allegiance of the subject, and his obligation
"under all circumstances, and for his whole life, to
w render military service to the Crown whenever
a required. The claim asserts an extra-territorial
u authority for the law of British prerogative; and
u assumes to exercise this extra-territorial authority
ic to the manifest injury and annoyance of the citizens
"and subjects of other States on board their own
u vessels on the high seas,
80
'44 tivery merchant vessel on the seas is right-
44 fully considered as a pail pf the territory of the
44 country to which it belongs, Knglish soil, English
a territory, Knglish jurisdiction, is the appropriate
u sphere for the operation of the Knglish law. The
44 ocean is the sphere of the law of nations, and by
44 that law every merchant vessel on the seas is
44 under the protection of the laws of her own na-
"tion,"
He then argues that a if this notion of perpetual
allegiance" were the law of the world, and were
usually practised like the right of search for enemies'
goods in time of war7 cit might be admissible, but
that it was an English law, and could only be
exercised of right within Knglish jurisdiction.
He next refers to the great number of emigrants
from Gieat Britain to the United States, "a greater
4/ or less number of whom becoming in time natu-
ralized citizens, enter into the merchant scivice
44 under the flag of their adopted country;" and
urges that nothing could be more unjust than for
England to seek out these persons in time of war,
and compel them to take arms for a country which
has ceased to be their own countiy.
Kor these and other reasons, such as the great in-
convenience to which neutral merchants *veie sub-
jected by the practice, Mr. Webster declares, on
behalf of the American Government, "that the
44 impressment of seamen from American vessels
44 cannot hereafter be allowed to take place, That
81
u practice is founded on principles which it does
u not recognize, and is invariably attended by con-
u sequences so unjust, so injurious, and of such
w formidable magnitude, as cannot be submitted
u to In every regularly documented
"American merchant vessel, the crew who navigate
"it will find their protection in the flag which is
u over them/'
Lord Ashburton declined to enter upon the dis-
cission of this subject, alleging that his instructions
were limited to existing subjects of difference, and
that no differences had, or could have, arisen of late
years with respect to impressment, because the
practice had wholly ceased since the peace, and could
not, consistently with existing laws and regulations
for manning Her Majesty's Navy, be under present
circumstances renewed.*
Hereupon the subject dropped, and did not further
enter into the negociations which terminated in the
Ashburton treaty. It was, however, revived on the
occasion of the troubles in Ireland in the year 1848.
Having reason to believe that a plot had been
organized in America for the purpose of sending
over men to assist the malcontents in Ireland, the
Government issued an order, under the powers
they then possessed, to arrest every American
<or returned emigrant landing in Ireland, which order
was afterwards confined to the arrest of suspicious
* Parliamentary Papers relating to Lord Ashburton's Mission,
p. 59. Appendix tm Eeport, p. 39.
82
persons and the search of American baggage A
Mr. Bergen, a native American, and a Mr. Ryan, a
naturalized Irishman, haying been arrested under
these orders, Mr. Bancroft, the American Minister at
the English Court was instructed to interfere on their
behalf Mr. Bancroft having applied to the Presi-
dent for instructions as to the position of a natural-
ized citizen on his return to his native country for
transient purposes, Mr. Buchanan replied that aliens
were liable in the United States, as well as Great
Britain, to trial for treasonable offences committed
within the jurisdiction of the country; after which
the despatch concludes: a Whenever the occasion
u may require it, you will resist the British doctrine
44 of perpetual allegiance, and maintain the American
44 principle, that British native born subjects, after
44 they have been naturalized under our laws, are,
44 to all intents and purposes, as much American
44 and entitled to the same degree of protection, as
u though they had been born in the United States."
Mr. Bergen and Mr. Kyan were afterwards hbc
rated on condition of leaving the kingdom, but Mr.
Bancroft, by direction of the President, again ad-
dressed l^ord Palmerston, remonstrating against any
distinction being at any time made between natu-
ralized and native Americans.* He argued that, by
permitting emigration, England recognized the right
of expatriation, and that to continue to claim the
* U. S Congress Fapers, Executive documents, 1859 60, vol ii
p. 161,
83
allegiance of those who had left her shores and
taken up their abode in a foreign country was to
endeavour to plant alien colonies within that country,
and to exercise the prerogative of royalty within a
republic.
44 It is quite time/' he concludes, 44 that the two
44 nations should come to an understanding on this
a subject. If the United Kingdom really wishes
44 to retain as subjects all the natives of this realm, let
44 the United Kingdom forbid the emigration of its
44 sons. But if their emigration is permitted, and even
44 stimulated, the land which accepts the anxious re-
44 sponsibility of receiving them must take full power
44 of regulating their political condition."
The answer of Lord Palmerston is interesting, as
showing the views of this distinguished statesman on a
matter of public moment—the position of emigrants
who leave their own country to settle in a foreign one,
and that of subjects who having become naturalized
in another country afterwards return, whether for a
temporary purpose, or otherwise, to their own. Lord
Palmerston begins by stating that—
"He apprehends that the remonstrance contained in Mr.
Bancroft's note has originated in a mistaken notion as to
the doctrine held by Her Majesty's Government upon this
matter; because Mr. Bancroft states that one consequence
of the British doctrine of natural allegiance is, that Great
Britain denies to the United States the right of regulating
the condition of emigrants from Great Britain in such man-
ner 'as may most conduce to the well-being of the emigrants
and the safety of the [American] commonwealth.' Now,
G
01
although by the law of England natural allegiance is a tie
which cannot be severed or altered by anything but the
'united concurrence of the legislature/and although it is
true (as observed by Mr. Justice Story, an eminent American
authority), that 'every nation has hitherto assumed it as
clear that its laws extend to and bind natural-born subjects
at all times and in all places/yet Her Majesty's Govern-
ment did not dissent from the opinion of the same learned
Judge, that 'in speaking of the right of a state to bind its
own native subjects everywhere, we speak only of its own
claim and exercise of sovereignty over them, and not of its
right to compel or require obedience to such laws, on the
pait of other nations/ and Her Majesty's Government
concur with Mr. Justice Story, in maintaining that 'every
nation has an exclusive right to regulate persons and things
icithin its own territory according to its own sovereign will
and polity.'
"The undersigned considers the above exposition of public
law to be perfectly correct, and it appears to him to meet
the objections to the doctrine of Her Majesty's Government
which have been raised in Mr. Bancroft's note.
"With reference to these observations of Mr. Bancroft,
from which it would appear that he assumes that Her Ma-
jesty's Government is disposed to doubt whether the poorer
classes of emigrants who have come from Great Britain to
the United States have a natural right to expatriate them-
selves, the undersigned begs to observe that it has never
been denied by the British Government that those persons
leave this country by virtue of that right, which is asserted
by Mr. Bancroft to be the foundation of all liberty, namely,
€ the right of every reasonable being to seek a new country;
and it is well known that by the laws of Great Britain no
restraint can, except in very special cases, be placed upon
the perfect liberty of every British subject to leave the realm,
85
when and for whatever period of time he chooses. It does
not appear, however, that the passage quoted by Mr. Ban-
croft from Cicero* sanctions expatriation, in the sense of a
voluntary abjuration of natural allegiance, without the assent
of the Sovereign power; nor does an emigrant's departure
from Great Britain debar him from returning thereto, at any
subsequent time, as a natural-born subject. So long as the
emigrant remains in the United States, or in any other
country, he is amenable to the laws of the country in which
he resides; and it cannot therefore be said as suggested in
Mr. Bancroft's note, that the British Crown, by permitting
its subjects to emigrate to the United States, is sending
among the United States not only people to be provided for
by sharing in the opportunities for industry, but€ subjects,'
who may get arms and still serve Her Majesty, or that
England is planting garrisons in all the territories of the
Union.
"The undersigned has also to observe that Mr. Bancroft
has referred generally to the orders issued in Ireland last
year for the arrest of suspected persons, and has alluded to
the distinction drawn by Her Majesty's Government be-
tween native and naturalized American citizens; and, although
Mr. Bancroft's argument does not bear specifically upon that
point, the undersigned begs leave to repeat what he has
stated in his previous correspondence with Mr. Bancroft
respecting this matter, namely: that natural-born subjects
of Great Britain, who may have become naturalized in a
foreign country, but who return to the United Kingdom,
are as amenable as any other of Her Majesty's subjects to
any laws which may be in force, either of a permanent or of
a temporary nature: and the maxim, 'ignorantia legis non
* "Jure enim nostro neque mutare civitatem quisquain invitus
potest, neque, si velit, mutare non potest, modo asciscatur ab ea
civitate, cujus esse se civitatis velit."—-Oralio pro Balbo.
G 2
86
excusal,9 must apply to ll»em as well as to those who may be
permanently resident within the United Kingdom "*
Thus the mailer rested till the Fenian movement
in Ireland gave occasion for ils revival No sooner
had the Act for the suspension of the Habeas Corpus
Act in Ireland passed in Feb. 1866, and aricsts had
taken place under it, than Mr. West, the acting
American Consul at Dublin, was applied to for pro-
tection, on the score of American citizenship, by
persons who had been, or were apprehensive of
being, arrested For the most part the applicants
were native Irishmen, who had become naturalized
in the United States. The inslructions given by Mr.
Adams, the Minister of the United States, to Mr.
West, were 44 to secure a proper share of protection
for innocent peisons, who were citizens of the United
Slalos, without attempting to interfere on behalf of
those who had justly subjected themselves to suspicion
of complicity with treasonable practices."
Mr. Adams was much too clear sighted and jusl-
minded not to sec how the case really stood, and that
the persons arrested and now claiming protection as
American subjecls were, in truth, if riot the instiga-
tors, at all events, the active promoters of an or-
ganized conspiracy to raise a rebellion in Ireland
with a view to overthrow the government Tn ic
porting to Mr. Seward the passing of the Act of
Feb. 7th, 1866, he says, 44 There is some reason to
a believe that many of these people now under ar-
* Appendix to .Report, p. 41
87
44 rest are really more or less implicated in the or-
<4 ganization. . . They are also astute enough to
44 be capable of contriving means of raising a com-
plication between the two nations, out of the
"questions that may follow from any abuse of the
44 extraordinary means of repression now resorted to
"here."
It is due to Mr. Seward to say that he, too, viewed
the matter in the same just and equitable light./In a
despatch to Mr. Adams of the 10th of March, te says, />
I/44 It may be expected that some of our Irish-born
^ "naturalized citizens who are now sojourning or
44 travelling in Ireland will be arrested
44 Americans, whether native-born or naturalized, owe
u submission to the same laws in Great Britain as
44 British subjects, while residing there and enjoying
44 the protection of that Government. We applied
44 the converse of this principle to British subjects
u who were sojourning or travelling in the United
"States during the late rebellion."*
At an interview with Lord Clarendon on the 15th
of March, Mr. Adams declared that, even in the ad-
mitted cases of naturalization, if the Government
had in its hands the proofs of complicity with trea-
sonable designs, he should feel obliged, on being
informed of them, to desist from further interference,
and that his appeals to the Government 44 would be
44 confined to those cases in which there was mere
* Papers relating to Foreign Affairs, part I, p. 1-204. Appen-
dix to Eeport, p. 47-48.
08
u suspicion, or at rnost feeble evidence of actual evil
"and in tent "~ /
The conduct/of these two distinguished American
statesmen is tne more worthy of note by reason of
the very different spirit afterwards manifested in
Congress, when the proceedings relating to the
Kenian arrests came under discussion in that as
scmbly.
To continue the narrative. It appears that on
application being made to the British Government
in favour of naturalized Irishmen who had been
arrested, the old doctrine of allegiance was asserted,
and the admissibility of the intervention of the re
prescntative of the United States, in theory at least,
denied. In a letter of the 2nd of March, speaking
with reference to the arrested persons on whose
behalf applications had been made, Mr, Adams
writes:
u I have received from Mr. West a letter, inclosing the final
answer of the authorities in regard to naturalized citizens,
which goes the whole length of claiming the allegiance."
And in another letter of March 8th
"It is thus Par made clear that the Government claims the
right of dealing as it pleases with native Irishmen, no regard
whatever being paid to the Tact of their naturalization in the
United States"
It appears, however, that, as matter of comity,
applications of Mr. Adams in favour of individuals
thus circumstanced were attended to, and the parties
* Tapers relating to .Foreign Affairs, part 1, p. 83. Appendix
to Report, p. 48.
80
released. At an interview on the 29th of May, Lord
Clarendon informed Mr. Adams that instructions had
been given to remove all unnecessary distinctions
between United States' native and naturalized pri-
soners, though of course the point of allegiance
could not be conceded, and that the Government
were desirous to get rid of those who had been im-
prisoned as quickly as they could consistently with
the public safety. On the 9th of June, Mr, Seward
instructed Mr. Adams u to suggest to Lord Claren-
"don the expediency of the extension of clemency
44 to the extent at least of releasing all the American
u citizens, native or naturalized, then in confinement^
u upon the condition of their returning to the United
"States." On the 2nd of August, Mr. Adams re^
ported that releases were being steadily granted, and
that of those who had been arrested, there was
little doubt in his own mind that nearly all were ,
more or less privy to the a Fenian organization, and
came out to further its designs/' On the 23rd of
August, he reported that no person proved to be a
native or a naturalized citizen of the United States
then remained in Dublin under the Act for sus-
pending the habeas corpus : and on the 29th of Sep-
tember, 18663 that there was then no case before the
Legation cf a proved American citizen being in
custody in Ireland on suspicion of being concerned
in treasonable practices there. With this state of
things the correspondence naturally dropped.*
* Papers relating to Foreign Affairs, part 1, p. 95-204. Ap-
pendix to Beport, p. 48.
90
Tn October, 1867, the effect of American natu-
ralization as affecting; the allegiance of a natural-
born subject came formally before a Court of Law.
On the trial of Warren, before Chief Baron Pigotl
and Mr. Justice Keogh, at Dublin, on the 30th of
October, 1867, on a charge of treason felony, a jury
de wiedielale linguce, as it is technically termed, in
other words a mixed jury, consisting half of subjects
and half of foreigners, having been applied for, on
the ground that Warren, though born in Ireland, was
an American, having been naturalized in America,
the application was refused, the Court ruling that
/44 according to the law of England, a law which has
44 been administered without variation or doubt from
44 the earliest times he who once is under the allc
44 glance of the Knglish Sovereign remains so for
"ever." On the trial of Costello, which toot place
shortly afterwards, a similar application was refused
by Mr. Justice Keogh on the same ground.
Tt was impossible that, administering the law as it
now stands, those learned Judges could take any
other course or sanction any other doctrine. And,
whatever may be the language held by American
politicians it may be asserted with perfect confi-
dence looking to the high estimation for inflexible
uprightness and conscientiousness in which American
judges aie justly held that had a like case occurred
in the United States, and a native American natu-
ralized in England had, when put on his trial for an
pflence committed in America, made a similar appli-
cation, no American judge, as the law of the United
91
States now stands, would have ruled differently as to
the law or acceded to such an application.
It is difficult to see how in the events which have
been stated the public mind in America could find
cause of umbrage or resentment. Nevertheless no
sooner did Congress meet, in the autumn of 1867,
than the proceedings in Ireland were taken up in an
angry and hostile spirit. The President in his Mes-
sage had called the attention of Congress to the sub-
ject of the law of allegiance, and to the discrepancy
between the views of American statesmen and Ame-
rican jurists in respect of it, with the object of having
the law settled, in the following temperate and states-
manlike language:—
"The attention of Congress is respectfully called to a
singular and embarrassing conflict of laws. The Executive
Department of this Government has hitherto uniformly held,
as it now holds, that naturalization in conformity with the
constitution and laws of the United States absolves the reci-
pient from his native allegiance. The Courts of Great
Britain hold that allegiance to the British Crown is inde-
feasible, and is not absolved by our laws of naturalization.
British judges cite courts and law authorities of the United
States in support of that theory against the position held by
the Executive authority of the United States. This conflict
perplexes the public mind concerning the rights of natura-
lized citizens, and impairs the national authority abroad, I
called attention to this subject in my last annual message,
and now again respectfully apply to Congress to declare the
national will unmistakeably upon this important question."
The matter was, however, entered upon by Congress,
not with a view to the settlement of their own law, but
99
with a view to assail the conduct of the'Government
of Great Britain in the arrest of American citizens,
On the 95th of November, Mr. Kobinson, a natural-
ized Irishman, member for New York, moved a leso-
lution in the House of .Representatives, that the Com-
mittee for Foreign Affairs should be instructed to in-
quire into Mr. Adams's conduct with regard to the
protection of naturalized citizens in Great Britain;
that Mr. Adams should be recalled; and that all cor-
respondence for the last two years between the Eng-
lish and American Governments should be at once
submitted to the I louse *
Passing by the angry and menacing speeches made
on the different occasions when this subject was be
fore Congress, the resolutions moved by different
members will sufficiently show the grounds of com-
plaint and the temper in which the subject was
approached Mr. Hobinson insisted on three points;
1, that "no American citizen travelling in Great
44 Britain or elsewhere, on business or pleasure, should
44 be imprisoned without proper charges or sworn
44 information being made against him, and upon
a these charges or information, even under the suspen-
44 sion of habeas corpus, a fair and speedy trial should
44 be secured to him; 2, that no American thus tra-
44 veiling should be ordered to quit the country where
44 he may be, or be escorted to ships going thence, or
44be placed in any position compelling or inducing
44 him to accept that degrading alternative; 3, that
44 the benefit of English law should be fully accorded
uto all American citizens, whether native or adopted,
* Appendix to Keport, p. 49.
93
"the same as to aliens or strangers from other
u countries."
On the 2nd December, Mr. Robinson also moved an
adverse resolution against Mr. West, the United States
Consul at Dublin. On the 19th of December reso-
lutions were presented in the House of Representa-
tives by Mr. Eggerton, of Ohio, protesting against
the treatment of adopted American citizens by foreign
nations. On the 20th of December, Mr. Price, of
Iowa, presented a petition from I. W. Nagle, a native
American, imprisoned on account of the so-called
Jacmel landing, and moved a resolution 44 that
44 the representatives of the people of the United
44 States do hereby declare it to be our determination
44 to submit to no such oppression of our citizens by
44 any power, and that we will, with as little delay
a as possible, adopt such measures as will make it
a safe for an American citizen free from crimes to
44 travel in any part of the world." On the 9th of
January two resolutions were passed unanimously in
the House of Representatives, one requesting the
President to intercede with the Queen of England
for the release of the Canadian prisoners, McMahon
and Lynch; and the other requesting the President
44 to intercede with a view of obtaining the release of
Warren and Nagle, and any other American citizens
who have been arrested in Ireland or elsewhere, and
who are now imprisoned without sufficient grounds to
charge them with the commission of any offence
against the laws of Great Britain.''*
* Appendix to Keport, p. 50.
94
All these resolutions were referred successively to
tlie Committee of the House of Keprcsentativcs on
Foreign Affairs, to be by them considered and re
ported upon On the 27th of January, the Com-
mittee presented their report. It is to be regretted
that a document, admirable in many parts in respect
of research and reasoning, should have been made
the vehicle of unfriendly, and certainly, so far as the
Fenian ariests are concerned, unjust reproach against
this country. After referring to the question of the
right of expatriation as one of the most important
questions of the day, the introductory part of the re
port proceeds:
"At the commencement of the war of 1812, the number
of emigrants in the United Slates did not exceed 120,000.
International difficulties prevented any considerable emigra
turn from 1810 to 1816. The actual returns from 1820 to
1867, added to the estimated emigration from 1790 to 1820,
show that the total emigration to this country from Kurope
since the Declaration of Independence is 6,640,000 persons
No more important question can arise than that which con-
cerns the relations of this portion of the American people to
the governments they have abandoned and that of their
adoption. The English law holds them and their descen-
dants as British subjects, 'at least to the second generation,
'and perhaps for ever/* The theory of a double allegiance
is discarded, and they and their descendants, even though
# This statement is founded on the following passage in Wc»t-
laWs .Private International T^aw, p. ^3, "Unless the British
floTCi'oment consents to their ancestor's expatriation, the same
posterity must be treated as British at least to the second genera
tion, and perhaps for ever.19 There is no foundation whatever for
such a notion as is expressed in the concluding words,
95
born of a foreign mother, are inexorably and for ever held
to the service of native born subjects, incapable of disavow-
ing their allegiance to the mother country or of acquiring a
legal citizenship in another land, and liable to punishment
as traitors if found in a time of war in the army or navy of
their adopted country.
"During a general war in Europe they would be deprived
of the privileges of travel or commerce; and in the event of
participation by this Government in such war, which is not
impossible, they would be liable to punishment as traitors
by European or American governments, whether yielding
compulsory service to one or the other. The execution of
naturalized citizens of the United States when captured in
the American army by the British troops, who claimed them
as British subjects during the late war, was only prevented
by the President's orders for retaliation on British soldiers.
Deprived of recognized citizenship, debarred from the privileges
of travel or commerce in peace, and exposed to punishment in
time of war, they are without safety and without rights. The
commission of public crimes could not more effectually strip
them of privileges which in every age and in all parts of the
world have been the accompaniments of civilization and
freedom. At the opening of our national career, Great
Britain attempted to enforce her claims upon her natural-
born subjects beyond her territorial jurisdiction, arresting
American ships and impressing American seamen under
their own flag. The actual sufferers were few in number.
Now, after the lapse of half a century, a similar claim is en-
forced against a nation of people; not, it is true, as before,
upon their own soil or under their own flag, but wherever
found within the jurisdiction of other nations. In the first
contest their success would have driven American sailors
from the ocean. In this it would deprive masses of the
American people of privileges that were never denied to any
nation, retaining any sense of the value of personal liberty.
96
Tt is scarcely to be supposed that it can be pressed to this
ex Lent; but if the doctrine be inapplicable to masses of
people it is unjust that it should be enforced against indi-
vidual citizens in a manner to disturb the peace of a nation,
"The correspondence transmitted to Congress shows that
naturalised citizens of the United States, being present in
Great Britain, without the commission of any offence, have
been arrested, tried, convicted, sentenced, and punished as
criminals, wpon the ground thai they were natural-born sub-
jects of the Crown; that their allegiance was perpetual and
indefeasible, except by its consent; and that they were
therefore subject to its laws and liable to punishment not
only for offences committed within its jurisdiction, but for
words and acts performed in the United States. They
claim the protection of their adopted country which has
made them citizens and conferred upon them the same rights
both at home and abroad which are enjoyed by native born
Americans. The Government is in duty bound to listen to
their appeal, and to protect them in their rights"
Looting to the language used in the House of Ke
presenlativcs, to the resolutions proposed there, and
to the terms of this report, a person unacquainted
with the facts would be led to imagine that some law
existed in this country, especially directed against
naturalized citizens of the United States, whereby
$uch citizens, innocently travelling on business or
pleasure, and unoffending against the law, had been
causelessly deprived of libetly and exposed to igno-
miny and wrong, and tried and convicted of offences
against the law without proof of guilt Tn the face
of the true facts, impartially and dispassionately
viewed, these accusations fall harmless to the
ground. But since such extraordinaiy charges have
97
been made, a simple statement of the facts may not
be without its use.
A rebellious spirit having manifested itself in parts
of Ireland, and serious disturbance of the public peace
being anticipated, it became necessary, in the opinion;
of Parliament and of the country, at the commence-
ment of 1866, to strengthen the hands of the Execu-
tive, by passing an Act for suspending the Habeas
Corpus Act in Ireland. It being perfectly well known
to the authorities, and indeed notorious to the world,
that an organized plot had been formed for bringing
about insurrection and rebellion in Ireland, with a
view to overthrow the Government in that country,
it became the duty of the Executive to exercise then-
power of arresting persons suspected of designs
against the public peace. It is for this purpose that,
in circumstances of impending danger, the liberty of
the subject, from a sense of imperious necessity, ne quid
detrimenti, respublica capiat, is deprived of its ordi-
nary safeguards. Now, it so happened that the
prime movers in the seditious and treasonable con-
spiracy going on in Ireland were Irishmen, who had
left their native country and had become naturalized
in the United States. Whether the movement had
originated in America or in Ireland it is not worth
while now to inquire. The facts which came out on the
Fenian trials, abundantly proved—and the fact is too
notorious ever to have been denied—that these men,
who, having formally renounced their allegiance to
their native country, had, in the American point of
view, dissolved the ties which originally bound
90
them to the country of their birth, and consequently
had no longer any concern in Tier affairs, were,
if not the original contrivers of this flagitious
enterprise for kindling civil war in Ireland, at
all events, the principal agents in the conspiracy,
and the intended leaders, if they could find men
deluded enough to follow them, of an armed in-
surrectionary movement, which, if successful, must
plunge Ireland into anarchy and confusion, and
which, even if certain to be unsuccessful, must
still, unless crushed in its commencement, entait
consequences of the most lamentable character.
It cannot, assuredly, be contended that the au-
thorities were to hold their hands, and not deprive
these men of the means of doing mischief, by the
exercise of the powers which Parliament had placed
at their disposal, simply because these quondam
subjects had secured the protection of American
naturalization It is a fallacy to put the matter
as turning on the question of continuing allegiance
at all Had the parties arrested been natural born
Americans, instead of Americanized Irishmen (if this
expression may be permitted), they would, if falling
under a reasonable suspicion of complicity in a
traitorous conspiracy, have been liable to be arrcs
ted; and the Government, in the discharge of its
duty, as guardian of the public safety, would have
been bound to cause them to be apprehended No
proposition of international law can be more firmly
settled and in this American jurists and statesmen
fully concur than that the subjects of one counliy.
99
when within the territories of another, owe obedience
to the law of the latter, and are as amenable to its
dispositions as the subjects of the State themselves.
When, in 1862, the President took upon himself to
suspend the Habeas Corpus Act without the sanction
of Congress, and Lord Lyons was instructed to re-
monstrate on the arbitrary arrests of British subjects,
Mr. Seward, in answer, denied the right of Her
Majesty's Government to protest, asserting that in
every case subjects of Her Majesty, residing in the
United States, and under their protection, were
treated, during the then troubles, in the same
manner and with no greater or less rigour than
American citizens.*
American citizens, therefore, whether natural born
or naturalized, who came to Ireland to levy war
against and overthrow the existing government, were
amenable to the penalties of our treason law, or, if
falling under a reasonable suspicion of meditating
such conduct, were as much subject to the repressive
measures placed at the disposal of the Government,
as the subjects of the Queen. If, indeed, the au-
thorities in Ireland had abused their power, and, for
purposes of oppression, had availed themselves of
the opportunity to seize American citizens, without
reasonable cause to suspect them of hostile designs,
and without an honest belief in their guilt, America
would most assuredly have had good cause to com-
plain. But nothing of the kind can with the smallest
show of reason be alleged. That mistakes may have
* Appendix to Keport, p. 42.
H
100
occurred is no doubt possible But al lowance must be
made for the difficulties in which the Government of
Ireland was placed. It was lenown that an organized
conspiracy had been formed for raising a rebellion in
Ireland. It was known that the leaders were to be
looked for from America. Suddenly a swarm of
strangers of American aspect present themselves,
without apparent business or purpose in the island.
Many of them are ascertained to be native Irish, who
had emigrated to the United States. The authorities
are led, not without good reason, to believe that
these suspicious strangers are mixed up with the
Fenian conspiracy, and the suspected persons are
arrested, as a measure deemed absolutely necessary for
the public safety and protection It is possible that in
some few instances the suspicion was unfounded; in
some it may not have been without foundation, but
the proofs may have failed Whenever, on fuller
inquiry, the authorities were satisfied that such was
the case, the prisoners were released Several in-
stances are cited in the Appendix to the Keport of the
Commissioners,* in which, on the intervention of Mr.
Adams, persons who had been arrested were released.
In some of these, the Government, not being without
apprehension of danger from their being at large,
but not wishing longer to detain them, stipulated
that they should leave the country; and this measure,
obviously intended as one of self protection, is treated
as an indignity offered to American citizens.
* p. 48.
101
It must be obvious to every unprejudiced mind that,
as it was the duty of the Irish Government to avail
itself of its powers, in order to suppress a dangerous
conspiracy, against subject and stranger indiscrimi-
nately, and as it is unquestionable that the stranger
is as much subject to our law as the native, the only
question that can be raised with reference to these
transactions is whether the Government honestly
exercised its powers with a view to its own protec-
tion and the preservation of the public safety, or
abused them for the purpose of vexatiously oppressing
American citizens.
And here it must not be forgotten that Mr. Adams,
whose business it was to watch over the interests of
American citizens, expressly declared; in his despatch
to Mr. Seward already referred to, that there was
little doubt in his own mind that of the persons who
had been arrested down to August, 1866, nearly all
were more or less privy to the Fenian organization,
and came out to further its designs; and that Mr.
Seward, far from questioning the good faith of the
British Government, or complaining of its conduct
in the matter of these arrests, or considering the
liberation of the parties imprisoned on condition of
their returning to the United States as an indignity
or "degradation of American citizens/' directed Mr.
Adams to ask this of Lord Clarendon as an exer-
cise of a clemency."
It may be that this country has maintained too
long its ancient rule on the subject of allegiance;
that this rule is no longer suited to the age in which
H 2
102
we live, and that the desire of the United Gtates in
this respect should be met in a spirit of comity
and conciliation But what reasonable man can
contend that the Fenian conspiracy was an occasion
on which to change the established law? Was a
fundamental and undoubted law, existing from the
earliest period of our history, to be abrogated for the
benefit of conspirators and rebels of recreant subjects,
who having abandoned, or affected to abandon, the
country of their birth, came back to it to plunge it into
all the horrors of civil war, intending no doubt if their
guilty enterprise should succeed, and carry them into
power, to abide in it, with the alternative, in case
of failure, of seeking to escape under the plea of
American citizenship?
When in the face of these facts, the conduct of the
Government in arresting Kenian conspirators, or
persons honestly believed to be such, is represented
in Congress as showing the necessity for insisting
against this country that uno American citizen tra-
velling in Great Britain on business or pleasure, shall
be imprisoned without proper charges or sworn in-
formation that a no American citizen so travelling
shall be ordered to quit the country or be placed in
a position to compel him to accept the degrading
alternative;" and that "the benefit of Knglish law
shall be accorded to American citizens as to aliens
of other countries" as if there was the slightest
shadow of pretence for saying that any such dis
tinclion as that suggested had ever been made and
when, in the report of a Committee of the House of
103
Representatives, we find British subjlects naturalized
in the United States described, when in this country,
as u deprived of recognized citizenship, debarred from
u the privileges of travel or commerce in peace, and ex-
44 posed to punishment in time of war, and without
44 safety and without rightsand when, again, in the
same report, we are told that 44 naturalized citizens
u of the United States, being present in Great Britain,
U WITHOUT THE COMMISSION OF ANY OFFENCE, have
a been arrested, tried, convicted, sentenced, and punished
44 as criminals, upon the ground that they were the
44 natural born subjects of the Crown,"—it is impossible
to say whether astonishment or regret predominate
at finding so unjust, ungenerous, and perverted a
view taken of the conduct of Great Britain, at a
most critical and trying conjuncture, when seeking
only the legitimate object of self-protection, without
the remotest thought of doing wrong to American
citizens as such, or of giving offence to the American
people.
It only remains to be added, to complete this part
of the case, that upon the report of the Committee on
Foreign Affairs, a bill was introduced, entitled a
bill concerning the rights of American citizens in
foreign States, by which it was proposed to enact,
first, that: —
"All naturalized citizens of the United States
while in foreign States should be entitled to and re-
ceive from the Government the same protection of
persons and property that is accorded to native born
citizens in like situation and circumstances."
101
Secondly, 44 that whenever any naturalized citizen
of the United States should be arrested and dc
tained by any foreign Government, upon the allega-
tion that naturalization in the United Slates does not
operate to dissolve his allegiance to his native Sovc
reign, or if the release of any citizen so arrested
and detained should be unreasonably delayed or
refused, the President should be empowered to order
the arrest and to detain in custody any subject or
citizen of such foreign Government who may be
found within the jurisdiction of the United States."
The debate which ensued on this bill is not a little
remarkable, from the circumstance that several mem-
bers who took pail in it challenged attention to the
fact that, while the promoters of the measure were
aiming their attacks against Great Britain on account
of its law relating to allegiance, the American law, the
same originally beyond doubt as ours, still remained
unaltered. Thus Mr. Wilson, of Iowa, gave notice
that he should move to strike out the second clause,
because 44 the Government of the United States has
never insisted upon and maintained the doctrine of
the right of expatriation"; and Mr. Woodward pro-
posed to insert a clause providing for the expatria-
tion of Americans becoming domiciled abroad, on
the ground that 44 when we are asking foreign Govern-
ments to make provision in our behalf for the expa-
triation of their citizens, it is quite indispensable that
we should begin by providing for the expatriation
of our own citizens 99
Tn the debate which ensued Mr. Wilson urged
105
that "although the doctrine of indefeasible allegiance
was unreasonable and unjust, there was not to be
found among all the statutes a single affirmative
challenge to this old feudalism of England; that the
implied negation sought to be drawn from the Ame-
rican naturalization laws had no substantial founda-
tion upon which to rest; for England had a system
of naturalization also; that the Judicial Department
of Government had in no case asserted a different
rule; and that the Executive Department had not
advanced beyond an attempt, by negotiation, to in-
duce foreign States to consent to the adoption of a
new rule of public or international law in this regard."
Mr. Pile also urged the adoption of a u distinct sta-
tutory declaration of the right of any citizen of this
or any other Government to remove from the terri-
tory and renounce his allegiance to the Government
where he was born/' and proposed an amendment to
that effect.*
No denial appears to have been given to the state-
ments of these speakers that, whatever might have
been insisted on by the executive, the existing law
of America was the same as that of Great Britain;
nor in truth could any such denial be given.
The bill passed the House of Eepresentatives by
a majority of 101 to 5. On being brought into the
Senate, the principal clause was, however, materially
modified and rendered comparatively inoffensive.
It assumed the following form:—
"And be it further enacted, That whenever it shall be
* Appendix to Keport, p. 51.
106
made known to the President thai any citizen of the United
Gtatcs has been unjustly deprived of his liberty by or
under the authority of any foreign Government,, it shall
be the duty of the President forthwith to demand of that
Government the reasons for such imprisonment, and if it
appears to be wrongful and in violation of the rights of
American citizenship, the President shall forthwith demand
the release of such citizen; and if the release so demanded
is unreasonably delayed or refused, it shall be the duty of
the President to use such means, not amounting to acts of
war, as he may think necessary or proper to obtain or effec-
tuate such release; and all the facts and proceedings relative
thereto, shall, as soon as practicable, be communicated by
the President to Congress."
It cannot be doubted that these disputes on the
subject of allegiance have tended to produce a state
of feeling which certainly ought not to exist between
the two nations.
The legislation of the United States still remains
without any enactment for altering what American
jurists of the highest authority have declared to be
the law of America with reference to allegiance. Let
us hope that the legislature of this country will set the
example of mating the law what it is to the interest
of the old world as well as of the new that it should
become.
Section 3. Claims of Protection.
We have next to consider the converse of the case
that is to say, to what extent the Government of
this country holds itself bound to afford protection,
where, in the case of a twofold nationality, claims are
107
made on its subjects by other Governments, on the
score of a right to their allegiance, to which simply
as British subjects they would not be exposed.
In this respect the Government of this country has
acted, it must be confessed^ in modem times at least,
with extreme forbearance and caution, preferring to
disappoint what might have been thought the reason-
able expectations of its subjects rather than advance
pretensions which might clash with the rights of other
powers. In the case of conflicting claims to the
allegiance of individuals, British statesmen appear to
have applied the legal maxim melior est conditio
possidentis, and to have adopted the convenient doc-
trine that the State in whose dominions the individual
happened to be was entitled to claim him.
The following extract from the Appendix to the
Report of the Commissioners shows how the matter
has been dealt with when a two-fold nationality has
given rise to conflicting claims to allegiance.
"A conflict arises between the principle of the British
doctrine of native allegiance and the statutory enactments
extending that allegiance to the sons and grandsons of Bri-
tish subjects born within the legiance of other countries.
"Such persons, finding that they are declared by statute
to be subjects of the British Sovereign, naturally look to that
Sovereign for protection in return.
"The manner in which this claim is practically dealt with
is shown by the following instructions to Consul Dale, of the
20th December, 1842, based upon an opinion delivered by
Her Majesty's Advocate-General, and which forms the model
on which all subsequent instructions to Her Majesty's Re-
108
prcscntativcs or Consuls abroad upon this subject have been
fi amed:
"' By the statute law of this country, all children born out
of the allegiance of the King, whose fathers or grandfathers
by the father's side were natural-bom subjects, are themselves
deemed to be natural-born subjects, and are therefore en-
titled to enjoy British rights and privileges while they are
within British territory; but the effect of British statute law
cannot extend so far as to take away from the Government
of the country in which those persons may have been born
the right to claim them as natural-born subjects, at least, so
long as they remain in that country.
"' ^y the common law of England, all parsons born within
the King's allegiance, whether the children of British sub-
jects or of foreigners, are deemed to be natural-born subjects
of the Crown of England, and if the law of any foreign State
be the same, by equally admitting to its rights as subjects
persons born within its own territory, that country has the
right to exact the service of a subject from such person, even
if he be the child of a foreigner, at least whilst such child
remains in the country of his birth
"'Therefore the children or grandchildren,by the father's
side, of natural-born subjects born in any other country than
Monte Video* are entitled to be protected in that country as
natural-born subjects of the Crown of Great Britain Bntas
regards the children of British fathers born in Monte Video,
such children cannot be protected against the operations of
the laws affecting the subjects of that country, unless the
laws of that country do not admit the child of a foreigner to
the rights of a subject."f
Tn 1857, a correspondence having arisen rcspect-
* rl"he caso on which the question arose had occurred at Monte
Video t Appendix to Keport, p. 60.
109
ing the protection to be afforded to the children born
of British parents in Buenos Ayres, in the course of
which the French Government had requested to be
informed as to the state of the British law on the
subject, Lord Clarendon in a despatch to Lord Cow-
ley, of December 24, writes thus:—
"The children of British subjects, although born abroad,
if their fathers or their grandfathers by the father's side were
natural-born subjects, are by certain British statutes to be
deemed natural-born subjects themselves to all intents and
purposes in England;* but neither these statutes nor the gene-
ral principles of English or international law, or of recipro-
city or comity so far as Great Britain is concerned, would
justify her in maintaining that such persons are ' British sub-
jects' within the true intent and meaning of a Treaty with a
foreign nation in which their case is not specially provided
for; or of contending that they are, whilst residing in such
foreign country, exempt from the obligations incident to their
status as natural-born subjects or citizens of such foreign
country of their actual birth and residence. Great Britain
may confer upon them any privileges as far as her own ter-
ritories are concerned, but no such privileges can avail as
against or in derogation of their antecedent natural and legal
obligations to the country of their birth."f
Acting on the rule adopted by his predecessor in
office, the Earl of Malmesbury, in a despatch written
shortly afterwards (March 13,1858), to Earl Cowley,
on the same subject, observes: —
"If a person had been born in France, of British parents,
* No such words as those printed in italics occur in the statutes
referred to. The restriction of the operation of the statutes to
England, is, therefore, only his Lordship's interpretation of them.
t Appendix to Beport, p. 67.
110
and Had voluntarily returned to France, he would have been
a British subject in England, but ne would not have been
entitled to British privileges or protection in France, as
against the country of his actual birth and domicil And
this, as it appears to Her Majesty's Government, is precisely
the caso of the children of British subjects, who are born
/find resident in Buenos Ayrcs. rl'hey are British subjects in
/ England, but this cannot prevent their being considered and
treated as Buenos Ayreans in Buenos Ayres.
"It is competent to any country to confer by general or
special legislation the privileges of nationality upon thoso
who are born out of its own territory, but it cannot confer
such privileges upon such persons as against the country of
their birth, when they voluntarily return to and reside thorcin
Those born in the territory of a nation are (as a general
principle) liable when actually therein to the obligations in-
cident to their status by birth, Great Britain considers and
treats such persons as natural-born subjects,and cannot there
fore deny the right of other nations (as Buenos Ayrcs) to do
the same."*
The doctrine thus laid down may be perfectly just
and founded on a proper consideration of what is
due to other States, as well as very convenient in
point of policy; but it seems very difficult to recon-
cile it with the expicss terms of a statute which
positively enacts that children born abroad of British
parents shall be u taken to be natural-born subjects
of the Crown of Great Britain, to all intents, construc-
tions and purposes whatsoever!' | It is difficult to sup-
pose that the Legislature when it used this language,
did not intend to place the sons of subjects, born
* Appendix to .Report, page 6V.
t 4 Geo. I I.e. 21
Ill
abroad, in the same position, to all intents and pur-
poses, as natural-born subjects, and, while it rendered
thein amenable to the consequences of any default
of allegiance, to entitle them in the fullest sense to
the protection of the Crown.* Moreover it is con-
ceded that as against any other power except one to
which allegiance is due by reason of the second na-
tionality, they would be entitled to protection; so that
it cannot be said that their character of British sub-
jects is confined to British territory.
In 1861, a new element, namely that of the domicile
of the parent, appears to have been introduced into
the consideration of the question as to how far the
son of a British subject born in a foreign country
was entitled to claim British protection. A Lieu-
tenant Arguimban having claimed exemption from
military service in Spain, as being the son of a British
subject, Earl Bussell, acting no doubt upon advice,
writes thus to Sir J. Crampton, (July 9, 1862):—
"With respect to the particular cases of Lieutenant
Arguimban and his son Mr. Joseph Arguimban, and to any-
other cases which may come under the same category, I am
advised that they should be determined by the domicil of
the parents at the time of the birth of the children within
the territories of the Crown of Spain. If at the time of the
birth of Lieutenant Arguimban, his father was not only a
natural-born British subject but legally domiciled in the
British dominions, I am of opinion that Lieutenant Arguim-
* It is probable that while Parliament thought only of con-
ferring the benefit of British nationality on children of subjects,
born abroad, the conflict of jurisdiction which might arise was
lost sight of. The subject had not then been ventilated as it has
been since.
11?
ban himself was at Hie time of his birth a British subject,
owing permanent allegiance to the British Crown, and
entitled to British protection Tf, on the contrary, his father
was then domiciled in the dominions of the Spanish Crown,
he became a Spanish subject, and is not entitled to claim
British protection against any obligations resulting from his
Spanish allegiance, although by an English Statute he may
be also entitled to the privileges of a natural-born British
subject in Great Britain
"The same observations apply to the case of Mr. Joseph
Arguimban, whose position is likewise dependent on the
allegiance and domicil of his father at the time of his birth."*
Theie is no authority for the introduction of domi-
cile as an element in determining the question of
nationality, according to the law of England, and it
therefore appears inadmissible. |
The rule adopted by the British Government
may be both politic and just, nevertheless these
cases afford a striking instance of the inconvenience
of a two-fold nationality. The son of a British sub-
ject, though born in a foreign countiy may have
been brought up as an Englishman and led to con-
sider himself as such, and though resident in the
* Appendix to Keport, p. 74,
t Mr. Abbott, the able Secretary to the Commission, startled
at this novel doctrine, says in a note: "The tenor of this dispatch
seems inconsistent with the doctrine previously held by the Bri-
tish Government, as it makes the nationality of the son to depend
on the domicil of his father instead of the place of his own birth
It is to be presumed that the instruction was framed with refer-
ence to the peculiar law and usage of Spain, and was not intended
to lay down any general principle applicable to other countries."
There does not, however, appear to be any peculiarity in the
Spanish law calling for the application of a new principle.
113
country of his birth, possibly for commercial pur-
poses, may have no patriotic sentiments towards it,
yet he may be thus constrained to serve in its armies
and fight its battles.
Take the converse—a very possible case — of a
person born in this country of French parents, who
are domiciled here. At the age of manhood, he goes to
reside in France, but without the intention of becom-
ing a Frenchman, and with the purpose of eventually
returning to England. By the law of this country
he is undoubtedly a British subject. As such, by the
comity of nations, he is entitled to reside in a foreign
country without being liable to military service. But
being born of French parents, he is also a French sub-
ject, and is therefore required to serve under the con-
scription, and refusing to do so, is prosecuted and
punished. He claims the protection of the British
Government. It is refused to him on the ground
that, having placed himself, locally, within the power
of the French law, this country cannot deny the right
of the French Government to claim him as a subject,
and must sink, till he gets back to this side of the Chan-
nel, the right to claim him as her own? Has not
a subject so circumstanced just cause to complain that,
having been taught to consider himself an English-
man, protection is not afforded him? On the other
hand, the French Government cannot be expected to
make its own law of nationality subordinate to ours
in respect of a subject whom it finds within its
own territory? Possibly, in time of peace, the
delicate handling of diplomatic intervention might
find a way out of the difficulty. But what if, unfor-
lid
tunately, war should take place between the two coun-
tries? What will then be the position of our supposed
individual with the double nationality? Is he to be
French or English? "Under which King" is our
u Bezonian" to fight? Tf taken prisoner is he to be
shot, as a Frenchman, for having borne arms against
France; or to be hanged as an Englishman for hav-
ing been guilty of treason against the Queen? Doubt-
less, in these humane days, if a man, having, under
these conflicting laws, both a British and a foreign
nationality, had all his life acted as the subject of one
of the two countries, no Government would think of
visiting him with the consequences of treason for ad-
hering to the country he has habitually treated as his
own. But there might be many instances in which
it might be very difficult to say to which of two coun-
tries an individual having perhaps connections and
attachments in both residing sometimes in the one,
sometimes in the other principally belonged, and a
person so circumstanced, taking service in the one
country, or the other, might find himself placed in a
position of jeopardy. Tf the matter once came before
a military tribunal or a court of law, the law
must prevail No opportunity would be afforded
for diplomatic adjustment. It is surely full time
that such an anomalous state of things should be
put an end to.
Tn respect of naturalization, the Government
has effectually precluded the possibility of con-
flict, by placing British naturalization on a
different footing from that of every other na-
tion By the law of every other country, natu-
115
ralization, if valid at all, carries with it a new
nationality, and invests the party naturalized not
only with the status of a subject, but also with
the rights, political and civil, (barring in some
instances the higher political rights) which attach to
that status, including the full extent of pro-
tection to which a subject can be entitled in return
for the allegiance he owes to the State. In this
country, on the contrary, since 1851, the Govern-
ment, with a view to prevent claims for protection
being made abroad by persons naturalized in Great
Britain, has taken care, by the terms of the grant,
to limit the effect of naturalization to the dominions
of the Crown, On the 8th of January, 1851, the
following circular was issued from the Foreign Office
to Her Majesty's Diplomatic and Consular Agents:
"Foreign Office, January 8, 1851.
"Cases having occurred in which the holders of certificates
of naturalization, issued by the Secretary of State under the
Act 7 & 8 Vict. cap. 66, have put forward claims to receive
from Her Majesty's Diplomatic and Consular Agents abroad
the same degree of protection to which the natural-born sub-
jects of Her Majesty are entitled. I have to inform you that Her
Majesty's Government have deemed it expedient to insert a
new clause in the certificates in question, which are now
drawn up as follows:—" I hereby grant to (A. B.) all the
"rights and capacities of a natural born British subject,
"except the capacity of being a member of the Privy
"Council, or a member of either House of Parliament, and
"except any rights and capacities of a natural-born British
"subject out of and beyond tlie dominions of the British
"Crown and the limits thereof>J
"I transmit herewith, for your information and guidance,
I
110
copies of the new form of certificates now in use, and of the
Act 7 & 8 Vict. cap. 66; and I have to add that the holders
of these new certificates are not entitled to demand British
passports, nor to claim in foreign countries British protec-
tion for mercantile firms abroad with which their houses of
business in this country may be connected,"*
Thus restricted, it is plain that the effect of natu-
ralization 111 Great Britain is only to remove the legal
disabilities of the alien; and to place him, as to cer tain
minor political rights and as to civil rights, on the same
footing as the natural subject j and further, that the
oath of allegiance taken by him amounts to no more
than a promise of that allegiance which every alien,
while residing in the realm, is bound to render, and
must be taken to can y with it the implied reservation,
that it is to operate no longer than while the party rc
mains within the Queen's dominions. When abroad he
is no longer a subject. On his return to his own coun-
try, his nationality of origin, so far as this country is
concerned, would revive, and, in case of war between
the two countries, he might bear arms against Her
Majesty without incurring, legally or morally, the
guilt of treason Tf the recommendation of the Com-
missioners that aliens shall be placed in respect of
. capacity for civil rights on the same footing as native
subjects be adopted, this anomalous form of naturali-
zation will become useless, and it is to be hoped will
be discontinued.
* The latter clause was, however, modified as to passports, in
1854, by the addition, after the words "limits thereof," of the
words "other than such as may be conferred upon him by the
"grant of a passport from the Secretary of State to enable him to
u tra\el in foreign parts." Appendix to lieport, p. 96
117
Section 4. Disputes between the United States and
other Countries.
Looking upon naturalization, not as confined to
the negative and inert effect given to it in this
country, but as conferring the rights of citizenship
not only in name but in reality, the Government of
the United States has never hesitated to interfere on
behalf of naturalized citizens in foreign countries,
when circumstances have appeared to call for it.
The disputes with this country have already been
narrated. The instances in which disputes have oc-
curred with other powers have been cases in which
the naturalized citizen, prior to quitting his original
country, had committed some offence against its laws,
or had omitted to perform military service, which by
law he was bound to render, or had left with the ob-
ject of evading it, and after having been naturalized,
had again returned to his former country, and had
been sought to be made amenable for infringing the
law. None of these cases have, however, led to any
unpleasant consequences. The discussion, in all in-
stances, appears to have been conducted with temper
and moderation,* and the result has been to place in
a striking light some of the questions of international
law which arise upon naturalization, and has been
the means of settling some of the more important
of them. A few details will not therefore be im-
material to the present purpose.
* It is only when dealing with the old country that our Trans-
atlantic friends appear always to lose their temper, and to be
determined to see things in an odious and unfriendly light.
I 2
118
To bepin with Austria: One case, that of Martin
Kozta, at first appeared to wear a threatening aspect.
The facts, as detailed in the appendix to the report
of the Commissioners, vveie these.
Kozla was a Hungarian, and one of the refugees
of 1818-9. He went to Turkey, where he was
arrested and imprisoned at Kutanieh, but released on
condition of leaving the country. He went to the
United States and made the usual declaration of an
Intention to become natmalized Tn 1853 he returned
to Turkey, and went to Smyrna on commercial
business, and there obtained from the United
States' Consul a travelling pass, stating that he
was entitled to American protection On the 21st
of June, 1853, he was seized by some persons in the
pay of the Austrian Consulate and taken out into the
harbour in a boat; he was then thrown into the sea,
and was picked up by a boat from the Austrian man-
of-war 44 I lussar." The United States' Consul went
on board to remonstrate, but the Captain of the
44 IIussar" persisted in retaining Kozta Thereupon
the United States' Charg6 d'Affaires at Constanti-
nople requested the Captain of the United States'
ship of war 44 St Louis " to demand Kozta's release,
and, if necessary, to have recourse to force The
44 St. ^ouis,, accordingly went to Smyrna, and the
Captain, in pursuance of his instructions, stated to the
Commander of the 44 I lussar" that unless Kozta was at
once delivered to him he should take him by force of
arms Asa conflict between the two ships of war
would have been attended with great danger to the
119
shipping in the port and to the town, the French
Consul offered his mediation, and Kozta was then
given over to his care to be kept until the decision of
the respective Governments was ascertained.
On the 29th of August, 1853, the Austrian Charge
d'Affaires at Washington presented a formal remon-
strance to the United States Government; protesting
against the claim of the United States to afford pro-
tection to Kozta, and calling on them to disavow the
conduct of their agents and to grant reparation for
the insult offered to the Austrian flag.
Mr. Marcy replied on the 26 th of September, 1853,
contending, first, for the general right of every citizen
or subject, 44 having faithfully performed the past and
44 present duties resulting from his relation to the
44 Sovereign Power, to release himself at any time
a from the obligation of allegiance, freely quit the
44 land of his birth and adoption, seek through all
a countries a home, or select anywhere that which
44 offers him the fairest prospect of happiness for him-
i( self and his posteritysecondly, that Kozta was
not an Austrian subject, as by a 44 decree of the
44 Emperor of Austria of the 24th of March, 1832,
44 Austrian subjects leaving the dominions of the
44 Emperor without permission of the magistrate and
44 a release of Austrian citizenship, and with an in-
44 tention never to return, become 4 unlawful emi-
a grants/ and lose all their civil and political rights
44 at home." Thirdly, Mr. Marcy put forward the
somewhat startling proposition that although Kozta
had not yet been naturalized and become a citizen of
15>0
the United Stales, yet that having become domiciled
in the latter country, he was entitled to be treated in
all respects as a citizen of the United Slates. In
snppoil of this proposition Mr. Marcy writes as
follows:
u Tt is an error to assume that a nation can properly ex-
tend its protection only to native born or naturalized citizens.
This is nol the doctrine of international, law, nor is the prac-
tice of nations circumscribed within such narrow limits. This
law docs not, as has been before remarked, complicate ques-
tions of this nature by respect for municipal codes. Tn rela-
tion to this subject it has clear and distinct rules of its own.
It gives the national character of the country, not only to
native born and naturalized citizens, but to all residents in it
who are there with, or even without, an intention to become
citizens, provided they have a domicil therein, foreigners
may, and often do, acquire a domicil in a country, even
though they have entered it with the avowed intention not
to become naturalized citizens, but to return to their native
land at some remote and uncertain period, and whenever they
acquire a domicil, international law at once impresses upon
them the national character of the country of that domicil
It is a maxim of international law that domicil confers a na-
tional character; it does not allow anyone who has a domicil
to decline the national character thus conferred; it forces
it upon him often very much against his will, and to his great
detriment. International law looks only to the national
character in determining what country has the right to pro-
tect If a person goes from this country abroad, with the
nationality of the United States, this law enjoins upon other
nations to respect him, in regard to protection, as an A me
rican citizen It concedes to every country the right to pro-
tect any and all who may be clothed with its nationality."
Mr. Marcy then proceeds to contend that
121
c' As the national character, according to the law of nations,
depends upon the domicil, it remains as long as the domicil
is retained, and is changed with it. Kozta was vested with
the nationality of an American citizen at Smyrna, if he, in
contemplation of law, had a domicil in the United States."
"There may be," he continues, 'a reluctance in
some quarters to adopt the views herein presented relative
to the doctrine of domicil and consequent nationality, lest
the practical assertion of it might in some instances give a
right of protection to those who do not deserve it. Fears
are entertained that this doctrine offers a facility for acquir-
ing a national character which will lead to alarming abuses;
that under the shadow of it political agitators, intent upon
disturbing the repose of their own or other countries, might
come to the United States with a view to acquire a claim to
their protection, and then return to their former scenes
of action, to carry on, under a changed national character,
their ulterior designs with greater security and better success.
This apprehension is believed to be wholly unfounded. The
first distinct act done by them towards the accomplishment
of these designs would disclose their fraudulent purpose in
coming to and seeking a domicil in this country. Such a
development would effectually disprove the fact that they
acquired a domicil here and with it our nationality."*
The matter was eventually compromised by an
arrangement between the Austrian Internuncio and
the United States minister at Constantinople, that
Kozta should be shipped off to the United States,
# State Papers, vol. xliv. p. 990-8. Appendix to Eeport,
pp. 56-7. The best answer to this assertion and reasoning is to
be found in the part taken by Irishmen settled in the United
States in the Fenian movement in Canada and Ireland, and the
sympathy, as we have shown in the last section but one, exhibited
in their behalf.
122
the Austrians formally reserving the empty right of
proceeding against him if he should return to Turkey.*
The reasoning of Mr. Marcy, which is remarkable
for its boldness in carrying the doctrine of acquired
nationality further than it ever has been carried, and
in which the effect of doipiV^e w rGspeotof civil con-
sequences is confounded with its effect as to political
consequences, is altogether inadmissible Domicile,
and even residence, in a particular countiy entitles
the party to the protection of that country only so
long as he is within it; and the effect of such a rule
as that contended for by Mr. Marcy would be to in-
troduce the most lamentable confusion into this branch
of the public law. Naturalization is generally, and
should be always, accompanied by some authentic act,
which can be referred to, and which speaks authori-
tatively. But if mere domicile were to give the rights
of citizenship, every case would necessitate a judicial
inquiry upon a matter which eveiy lawyer Tknows to
be, depending as it does on intention, a question often
most difficult of solution
It is therefore satisfactory to find that in the sub-
* Hoth parties were equally in the wrong. The Austrians had
no pretence of right for seizing Koztaon Turkish territory. The
arguments of Mr. Marcy on that point, which are to be found in
Lawrence's note to Wheaton relative to this case, but which are
too long to be inserted here, seem conclusive on this point. On
the other hand, the American authorities had no right to claim
KoUa as an American subject, as he had not become naturalized
The party really entitled to complain was the Ottoman Govern-
ment, which refused the application of the Austrians for leave to
arrest Ko/la, and protested against the outrage offered to their
authority, but whose protest does not appear to have been heeded.
123
sequent case of Simon Tousig,* Mr. Marcy no longer
held the same language. Tousig, a native of Austria,
had acquired a domicile in the United States, but had
not become naturalized. He returned to Austria,
with an American State passport, and was arrested
on the charge of offences committed before leav-
ing Austria. He appealed to the United States'
Minister for protection, and the latter having brought
the case before the State department, Mr. Marcy on the
10th January, 1854, writes as follows :—44 I have care-
w fully examined your despatches relating to the case
44 of Simon Tousig, and regret to find that it is one
a which will not authorize a more effective inter-
44 ference than that which you have already made in
44 his behalf. It is true he left the country with a
44 passport issued from this department; but as he
u was neither a native born nor naturalized citizen,
u he was not entitled to it. It is only to citizens that
44 passports are issued." It is true that there was, as
is afterwards pointed out by Mr. Marcy, the distin-
guishing feature in this case, that44 Tousig had volun-
44 tarily returned to his original country, and had
44 placed himself in the power of the Austrian autho-
"rities but the language cited seems to show that
Mr. Marcy had abandoned the theory that domicile
affords a right to protection beyond the territory in
which the domicile is situate. Mr. Marcy fully
assents to the position that naturalization can give
no immunity in respect of offences committed before
* Appendix to Eeport, p. 57. Lawrence, Appendix to Whea-
ton, Ed. 1863, p. 929.
191
leaving the countiy of origin I le goes on to say:
"Assuming all that could possibly belong to Tousig's
case that he had a domicil here, and was actually clothed
with the nationality of the United Slates there is a feature
in it which distinguishes it from that of Kozla. Tousig vo-
luntarily relumed to Austria, and placed himself within the
reach of her municipal laws. He went by his free act under
their jurisdiction, and thereby subjected himself to them. Tf
he had incurred penalties or assumed duties while under these
laws, he might have expected they would have been enforced
against him, and should have known that the new political
relation he had acquired, if indeed he had acquired any,
could not operate as a release from these penalties. I laving
been once subject to the municipal laws of Austria, and
while under her jurisdiction violated those laws, his with-
drawal from that jurisdiction, and acquiring a different na
tional character, would not exempt him from their operation
whenever he again chose to place himself under them"
In the case of De Sandt, a Prussian by birth, who
had gone to the United States, and had there declared
his intention of becoming a United Slates citizen, but
had letumed to Prussia prior to natuialization, and had
thereupon been ordered by the authorities to leave the
country, Mr. Barnard, the United States minister at
the Court of Berlin, on being appealed to by De
Gandt, at once admitted that under such circumstances
the claim could not be insisted on; and that 44 as
44 Sandt had quilted his residence in the United Slates
44 before perfecting his naturalization, and had again
44 talcen up his abode in Prussia, it was impossible to
44 claim him as an American citizen "*
* United Stales Documents, 1S59-G0, vol. ii. pp. 9 13.
Appendix to Keport, pp. 52, 3.
125
Mr. Wheaton, one of the most distinguished of
American jurists, had, on a former occasion, when
United States Minister at Berlin, held similar lan-
guage, on being applied to for his official interference
on behalf of one Johann Knocke, a Prussian by birth,
who, at the age of 21, had emigrated to America, and
become naturalized there, but, having returned to
Prussia, had been required to do military duty.
"It is not in my power," said Mr. Wheaton, in reply, " to
interfere in the manner you desire. Had you remained in
the United States, or visited any other foreign country (ex-
cept Prussia), on your lawful business, you would have been
protected by the American authorities, at home and abroad,
in the enjoyment of all your rights and privileges as a natu-
ralized citizen of the United States. But, having returned
to the country of your birth, your native domicil and natural
character revert (so long as you remain in the Prussian do-
minions), and you are bound in all respects to obey the laws
exactly as if you had never emigrated."*
In like manner, in 1852, the application of a Dr.
Gutowski for the intervention of the American Mi-
nister to protect him from military service was re-
jected on the ground that, as he had " voluntarily
returned to the country of his birth, had purchased a
farm there and taken up his residence, the Prussian
Government had a right to regard him as a subject,
and so to treat him in all respects."!
Several other conscription cases having occurred,
* United States Senate Documents, 1859-60, vol. ii. p. 6.
Appendix to Export, p. 52.
t United States Documents, vol. iv. p. 43. Appendix to Eeport,
p. 53.
126
Mr. Kveielt, on the 13th of January, 1853, furnished
Mr. Barnard with instructions characterized by mode
ration and good sense
"The doctrine of inalienable allegiance is, no doubt, at-
tended with great practical difficulties It has been affirmed
by the Supreme Court of the United States, and by more
than one of the State Courts; but the naturalization laws of
the United States certainly assume that a person can, by his
own acts divest himself of the allegiance under which he was
born and contract a new allegiance to a foreign power. Hut,
until this new allegiance is contracted, he must be considered
as bound by his allegiance to the Government under which
he was born, and subject to its laws; and this undoubted
principle seems to have its direct application in the pro
sent cases . . . Tf a Prussian subject, born and living
under this state of the law (of military service) chooses to
emigrate to a foreign country without obtaining the s certifi-
cate* which alone can discharge him from the obligation of
military service, he docs so at his Own risk . . . .For
these reasons, and without entering into any discussion of
the question of perpetual allegiance, the Trc'sident is of
opinion, that if a subject of Prussia lying under a legal obli-
gation in that country to perform a certain amount of military
duty, leaves his native land, and without performing that
duty or obtaining the prescribed 'certificate of emigration/
comes to the United States and is naturalised, and afterwards,
for any purposes whatever, goc3 back to .Prussia, it is not
competent for the United States to protect him from the
operation of the Prussian law."
Tn communicating the views of his Government to
Baron Manteuflfel, Mr, Barnard writes:
"The Government of the United States considers that the
laws of Prussia, which require a certain amount of military
127
service of its subjects, and which prescribe the conditions in
reference to this military service on which emigration is per-
mitted, are a matter of domestic policy, in which no foreign
Government has a right to interfere. It considers also that,
if a Prussian subject, born and living under this state of the
law, emigrates to a foreign country without a compliance
with those conditions which alone can discharge him from
the obligation of military service, he does so at his own per-
sonal risk. Going abroad under the burden of a duty still
due to his native Sovereign, his unauthorized emigration is
in the nature of an escape from that duty and from the laws
which prescribe and enforce it, and he remains liable, in spite
of any contract he may enter into in the meantime of new
allegiance to a foreign Power, to have these laws executed
against him whenever he returns within the territorial limits
and jurisdiction of his native country."*
In 1858-59, Mr. Wright, who had succeeded Mr.
Barnard as the United States Minister at Berlin,
finding the cases continue in which naturalized Ame-
ricans who had returned to Prussia were subjected
to the conscription law, urged on the American
Government the necessity of taking steps to protect
the interests of United States naturalized citizens,
suggesting that "if a firm and decided stand were
taken during the present peculiar position of affairs
in Prussia, it would lead to good results, and was
certainly well worthy of a trial."
We accordingly find Mr. Cass, in his instructions
to Mr. Wright at this period, assuming a bolder tone,
and pushing the doctrine concerning the effect of
* United States Senate dooumente, 1859-60, vol. ii. 53. Ap-
pendix to Beport, p. 52.
198
naturalization in superseding native allegiance further
than his predecessors had previously gone He writes
thus:
"The right of expatriation cannot at this day be doubted
or denied in the United States. The idea has been repudia-
ted ever since the origin of our Government, that a man is
bound to remain for ever in the country of his birth, and that
he has no right to exercise his free will and consult his own
happiness by selecting a new home. The most eminent
writers on public law recognize the right of expatriation
/ This can only be contested by those who, in the nineteenth
'l century, are still devoted to the ancient feudal law with all
its oppression. The doctrine of perpetual allegiance is a
~ relic of barbarism, which has been gradually disappearing
from Christendom during the last century.
;y "The moment a foreigner becomes naturalized, his alle
/ giance to his native country is severed for ever, lie ex-
\* perienccs a new political birth A broad and impassable
line separates him from his native country. He is no more
responsible for anything he may say or do, or omit to say or
do, after assuming his new character, than if he had been
born in the United States. Should he return to his native
[ country, he returns as an American citizen, and in no other
\ character. Tn order to entitle his original Government to
punish him for an offence, this must have been committed
while he was a subject and owed allegiance to that Govern-
ment. The offence must have been committed before his
expatriation It must have been of such a character that he
might have been tried and punished for it at the moment of
his departure. A future liability to serve in the army will
not be sufficient, because before the time can arrive for such
service he has changed his allegiance, and become a citizen
of the United States. .... I confine the foreign
jurisdiction, in regard to our naturalized citizens, to such of
129
them as 'were in the army or actually called into it' at the
time they left Prussia, that is, to the case of actual desertion
or a refusal to enter the army after having been regularly
drafted and called into it by the Government to which at the
time they owed allegiance."*
On the breaking out of the civil war in America,
many instances occurred in which naturalized sub-
jects, in order to avoid military service, quitted
America, and returned to their native country. In
March, 1863, Mr. Seward, preferring to sacrifice the
cherished doctrine of the effect of naturalization to
asserting it on behalf of such unworthy subjects,
writes to Mr. Judd, the United States Minister at
Berlin:—
"Instances have occurred where Europeans who have
become naturalized citizens of the United States have left
the country when their services were required, and returned
to Europe to avoid needful duty here, and then have invoked
the protection of the United States to screen them from
military duty there. Henceforth you will make no further
applications in these military cases without specific instruc-
tions.^
, In 1865, the civil war having come to an end,
! many persons—according to the report of the Ame-
rican Minister, not less than 500 in number—who had
become naturalized in America, many of them by
1 serving for the prescribed period in the American
arrnjr, having returned to Prussia, were now threatened
with compulsory conscription. Mr. Wright, who
* United States Diplomatic Correspondence, vol. iii. Ap-
pendix to Report, p. 53.
f Appendix to Report, p. 53.
130
in the meantime had been reappointed Minister at
Berlin, endeavoured to effect an arrangement in
their favour; and the United fllatcs Government,
now relieved from the pressure of the feaiful
struggle it had gone through, resumed its cherished
purpose of obtaining a recognition of the rights of its
natuialized citizens, and of their entire immunity from
liability to their former Governments. On the 2nd of
December, Mr. Seward thus instructs Mr. Wright:
"Considerations of ease and policy prevailed with this
department to allow the subject to rest during the continu-
ance of the war. We became even less anxious upon the
subject when it was seen that worthless naturalized citizens
fled before the requirement of military service by their
adopted Government here, and not only took refuge from
such service in their native land, but impertinently demanded
that the United States should interpose to procure their ex-
emption from military service exacted there Those circum-
stances, however, have passed away and the question presents
itself in its original form The United States have accepted
and established a Government upon the principle of the
right of men who have committed no crime to choose the
State in which they will live, and to incorporate themselves
as members of that State, and to enjoy henceforth its privi-
leges and benefits, among which is included protection This
principle is recommended by sentiments of humanity and
abstract justice It is a principle which we cannot waive."*
A long negotiation ensued, which it would be
foreign to the present purpose to pursue through its
* United States Diplomatic Correspondence, 1865, vol. iii.
p. 65. Appendix to KepoH, p. 54.
details. It ended in a treaty between the United
States and Prussia, on behalf of the North German
Confederation, of the 22nd of February, 1868. By
this treaty, which is to remain in force for ten years
from its date:—
t€ Citizens of the North German Confederation who have
become naturalized citizens of the United States of America,
and shall have resided uninterruptedly within the United
States five years, shall be held by the North German Con-
federation to be American citizens, and shall be treated as
such.
u Reciprocally: citizens of the United States of America
who become naturalized citizens of the North German Con-
federation, and shall have resided uninterruptedly within
North Germany five years, shall be held by the United States
to be North German citizens, and shall be treated as such.
"The declaration of an intention to become a citizen of
the one or the other country has not for either party the
effect of naturalization*
"A naturalized citizen of the one party, on return to the
territory of the other party, remains liable to trial and
punishment for an action punishable by the laws of his
original country and committed before his emigration; saving
always the limitation established by the laws of his original
country.
"If a German naturalized in America renews his residence*^
in North Germany without the intent to return to America, j
he shall be held to have renounced his naturalization in the;
United States. ^
"Reciprocally: if an American naturalized in North Ger-
many renews his residence in the United States without the
intent to return to North Germany, he shall be held to have
renounced his naturalization in North Germany.
"The intent not to return may be held to exist when the
K
132
person naturalized in the one country resides more than two
years in the other country."*
This treaty is ambiguous and open to difficulty on
two points: 1st. it is left uncertain whether the
five years residence required by the first article,
is to run from the time of the naturalization, or
whether prior residence will be available to satisfy
the condition; 2ndly, it is left in doubt whether on
naturalized subjects quitting the country of adop-
tion sine ammo revertendi, and returning to their
native country, and thereby losing the citizenship of
the former, the original nationality would revert. The
Prussian law makes naturalization in a foreign coun-
try carry with it the absolute loss of Prussian nation-
ality, without any provision as to the right reviving in
the event of a return to the country of birth It would,
however, seem, from the number of cases in which
the Prussian authorities have sought to enforce the
Conscription T^aws against Prussians naturalized in
America and afterwards returning to Prussia, that
they are content to take back these repentant subjects
at all events if fit for military service without
seeking to enforce against them the law which dc
clarcs them no longer Prussian subjects
The discussions which have taken place between
the Government of the United States and that of
France have, as in the case of Prussia, all turned on
the liability of native frenchmen, naturalized in Amc
ri^a and afterwards returning to Prance, to serve
* A ipendix to Report, p. 149
133
under the Conscription, or to undergo the penalties
imposed by the law for having quitted France to
avoid military service* The language of Mr. Cass in
1859, on instructing the United States Minister at
Paris to procure information on the French law of
naturalization, shows the extent to which the United
States Government were prepared to maintain the
efficacy of American naturalization :—
u This Government maintains the right of expatriation and
naturalization, and maintains also that if a foreign-born ci-
tizen, naturalized here, returns to his native country, he is
not liable to military duty, except such as was actually due
and which he had been called upon to perform before his emi-
gration. In any communication you may have with the
Minister for Foreign Affairs you will make known to him
these views of the United States."*
In 1860, on the occurrence of the case of Michel
Zeiter, who was prosecuted for having evaded
service under the Conscription, Mr. Faulkner, the
United States Minister, thus addresses Monsieur
Thouvenel:—
"Our doctrine is that the naturalized emigrant cannot be
held responsible upon his return to his native country for
any military duty, the performance of which has not been
actually demanded of him prior to his emigration. A pros-
pective liability to service in the army is not sufficient. The
obligation of contingent duties depending upon time, sorti-
tion, or events thereafter to occur, is not recognized. To
subject him to such responsibility, it should be a case of
actual desertion or refusal to enter the army^ after having
* Senate Documents, 1859-60, vol. ii. p. 198. Appendix to
Report, p. 58.
K 2
131
bocn actually drafted into the service of the Government to
which he, at the time, owed allegiance."
The case of Zeiter just referred to, as well as the
cases of A liber t and others, referred to in detail in
the Appendix to the Keport of the Commissioners*,
and commented upon in the ably reasoned Kepoi t of
Monsieur Treitt to the British Embassy, | together
with the judgment of the Court of the Tribunal de
premiere instance of the arrondisscment of Wissem-
bourg,given in the Appendix,-)- establish, on the one
hand that, inasmuch as, by the law of France, none
but Frenchmen can serve in the French army, and by
the naturalization of a Frenchman in a foreign coun
try French nationality is at once destroyed, a French-
man who has bcon naturalized in a foreign country
cannot be called upon to serve under the Conscription
or punished for refusing to serve: on the other hand,
inasmuch as the omission to serve when called
upon is an offence to which the law of France
attaches penalties, and as an oftence once committed
against the law of the native country is not, and
cannot be, pinged by subsequent naturalization else
where, but remains punishable if the offender shall
afterwards be found within the jurisdiction just as
an offence committed by the natural-born subject
of another stale would do, if the offender should leave
the country for a time and afterwards return to it
whenever a Frenchman bound to serve under the
Conscription leaves his country in order to avoid the
* Fage 57. f Appendix, p. 21, J Appendix O. p. 87.
135
service, the offence being complete, lie still remains
amenable to the French law, notwithstanding sub-
sequent naturalization, if found on French territory.
The French tribunals, however, hold that the French
law of limitations in penal matters, which in such a
case would be three years, begins to run from the
time the offence is complete, which would be from
the time of leaving France, and that, consequently,
an absence of three years from France protects the
offender from all further pursuit.
Whether leaving the country before being actually
called upon to serve, but on the eve of becoming
liable to be so called upon, with a view to avoid it,
will suffice to constitute the offence, or whether, as
contended by the American authorities, the service
must have been actually due and demanded prior to
emigration, is a question which does not appear to
have been decided by the French tribunals, and on
which, in the absence of decision, it would be rash
to offer an opinion.
Section 5. Results of foregoing Discussions.
The following propositions as to the effect of natu-
ralization, in the view of other nations than our own,
may be stated as evolved from the laws which have
been set forth and the discussions which have been
detailed:—
1. That naturalization, as occurring in other coun-
tries, and as distinguished from the incomplete and
inefficacious form of it known in this, has the effect—
136
at all events where the preliminary conditions, if any,
by which the pai ty to be naturalized could denation-
alize himself and divest himself of his former alio
glance, have been ful filled of conferring to al 1 inten ts
and purposes, a new nationality, and at the same time
of destroying the old of placing the party nalin alized
in the position of a natural-born subject or citizen in
relation to the State which adopts him, and at the
time of dissolving the tics which bound him to the
parent State and freeing him fvom all obligations of
allegiance or duty to its Sovereign or Government
2. That nothing short of actual naturalization, car-
ried out by such solemn and formal Act as the law
of the particular country may require, will have this
effect. Domicile, residence preliminary to natu-
ralization, declaration of intention, with renuncia-
tion of former allegiance or rights,will not suffice to
give the character of citizen or subject of the country
of adoption, which can be acquired only by the act
of naturalization itself
3. That the effect of naturalization is prospective
only, and has no retroactive operation Therefore
if a subject, on expatriating himself, leaves public
duties unfulfilled, the n on -performance of which ren-
ders him liable to legal consequences, or by the act
of emigration itself commits an offence against the law
of the country he abandons, naturalization will afford
him no protection, if found within the territory of the
latter, and called upon to answer before the law.
4. On the other hand, naturalization will entitle
him to immunity, though found again on the soil of his
137
native country, against any fiiture claims made on him
as its citizen or subject, unless lie lias returned to it with
the intention of abandoning the country of naturali-
zation, and such abandonment by the law of the latter
has the effect of destroying the character and status
of naturalized subject.
138
CllAPTKK V.
AL1KJNS-
Section 1. Mights and Disabilities in general.
It has been pointed out lliat the efleet of naturali-
zation in this country is little else than to remove
the civil disabilities which attach to the position of
an alien This being so7 a question presents itself
which it is important to dispose of before consider-
ing; how Tar the present system of naturalization may
require amendment namely, whether the civil disab-
ilities of aliens should be continued Political disa-
bilities may be put out of the question By the
common law of nations, the exercise of political
rights in other words, the capacity to take a part in
legislation or government, or the means of influ-
encing the action of the legislature or of the govern-
ment in matters relating to the general interests of the
particular political community is reserved to such as
are members of the community, to the exclusion of
those, who, though residing within its territory,
belong to another Slate which may have different or
perhaps hostile interests to promote.
By the general comity of nations, aliens are al-
lowed to travel and reside in other countries subject
in some to special regulations of police so long as the
e spectiye nations are at peace.* At the same time, by
the law of many countries a power is vested in the
* In modern times aliens are often permitted to remain, even
in time oP war; but tills is entirely at the discretion of the Go-
vernment and forms no part of the law of nations,
139
Government, either for cause, or at discretion, to
direct the removal of the alien.
By the same comity of nations, an alien is entitled
to the protection of the country in which he may be;
and in return for this protection owes obedience to
the law, and temporary allegiance to the Sovereign
or State; so as to be liable, like the natural born sub-
ject, to the penalties which attach to the violation of
the law, and this to the extent of being punishable for
treason for any attempt against the State, even though
his own country should be at war with it, if he has
been permitted to reside during time of war.
Aliens are everywhere allowed to intermarry with
the subject; to possess personal property; to trade,
and to enforce contracts made with them: beyond
this their capacity differs exceedingly in different
countries. But the tendency of modern legislation has
been to relieve them from disability. Let us first see
in what position aliens are placed by the law of this
country.
Section 2. Position of Aliens in this country.
By the common law, an alien could not hold landed
property : he could not even take the lease of a house.
Till the end of the 13th century, foreign merchants re-
siding here lived in lodgings, and their landlords acted
as their brokers and sold their merchandize for them.
The jealousy of foreigners appears to have dated
from the earliest times. It is stated by Lord Coke,
that by the antient Kings, amongst whom King
Alfred was one, it was forbidden that any alien mer-
chant should make his haunt in England, except at
110
the four fails, or sojourn in the land above forty
days.* Till upwards of two centuries after the
Conquest, it appears that strangers were not per-
mitted to reside here, even on account of trade,
beyond a limited time, except by special warrant.
They were considered only as sojourners, coming to a
fair or market, and were obliged to employ their land-
lords as brokers to buy and sell their commodities;
and one stranger was often arrested for the debt, or
punished for the misdemeanour, of another. | An-
derson, in his History of Commerce, states that, as
late as 1276, it was a general rule in England, that
the aggregate body of every particular nation of
foreigners residing here was obliged to answer for the
misdemeanours of every individual belonging to it. |
The gross impositions and exactions practised by
King John on foreign merchants had, however, occa-
sioned a provision to be made in Magna Charta for
their protection "All merchants" which Lord Coke
shows to have meant merchant strangers in amity
44 if they were not publicly prohibited before, were to
44 have safe and suie conduct, 1, to depart out of Kng-
a land; 2, to come into England; 3, to tany here; 1,
44 to go in and through Kngland, as well by land as by
44 water; 5, to buy and to sell; 6, without any manner
44 of evil tolls; 7, by the old rightful customs "§
Tn the reign of Kdward T. aliens were enabled to
proceed summarily for their debts,|| and, by Charter,
* 2 Tn*L. b'/. t Chilty, Com. Law, vol. i. p. 131
X I list. Com. vol. i. p. 237-4?
§ 2 Inst. 57. || 11 Kdw. T.
141
were permitted to hire houses of their own, and to
dispose of their goods themselves.* But the citizens
of London, irritated at the loss of their brokerage and
the favours thus shown to foreigners, speedily took
alarm. In the Parliament Boll of the 18th Edw. I.
appears the following petition: u Gives London petunt
a quod atienigence mercatores expellantur a civztate,
a quia dztantur ad depauperationem Civium, &c."
To which the King makes this pertinent answer:
a Besponsio: Hex intendit quod mercatores extranet
u sunt idonei, et utiles magnatibus, et non habet
a consilium eos expellandV'f
This relaxation of the ancient rigour in allowing
merchant strangers to hire houses for their residence,
while aliens in general could not take leases of lands
or houses, appears to have been made for the en-
couragement of commerce. u For/' as it is pithily-
said by a learned author, u if an alien trade here, he
must have an abode among us." Nevertheless, if
such merchant departed the kingdom—at least with-
out leaving servants in his house during his absence,^
—or died, the lease would go to the King; the reason
of the latter being, it was said, that it was only a per-
sonal privilege annexed to the alien for the encourage-
ment of commerce, and must therefore expire with him,
instead of going to his executors or administrators.§
* Bymer, vol. iv. p. 361. 1 And. Hist. Com. 268.
t 2 Inst. 741. % Dyer, 2, 6.
§ Co. Litt. 2, 6. Com. Dig. Alien B. Bac. Abr. Alien C. The
privilege was confined to merchant strangers, and even a mer-
chant could not take land unnecessary to his habitation. Co. Litt.
2 b, 1 Eoll. 19Jr. Com. Dig. u. s. Well might it be asked by Mr.
112
Narrower views appear to have prevailed in thor
reign of Henry VIII than those entertained in the
days of the Kd wards hor, by the 32nd I len. Vlll
c 16, § 83, it is enacted that all leases of any dwelling
house or shop within the realm or any of the King's
dominions made to any stranger artificer or handi-
craftsman, born out of the King's obeisance, not being
denizen, shall be void and of no effect; and the per-
son so talcing such lease shall foifeit £100, and the
person letting £100 more, one moiety to the King,
the other to him that will sue for the same.
It is certainly a remarkable thing that no amendment
of this harsh and impolitic law should have been
made prior to the statute of the 7 and 8 Vic. c 66.
However, by the 4th section of that Act, " every alien,
u being the subject of a friendly state, is empowered
"to late and hold every species of personal property,
"except chattels real, as fully and effectually as if he
iC were a natinal born subject. And every alien re
Margrave, " Tf this be the common law, ought not its severity to
be corrected by the legislature? To deny the right of talking a
housofor habitation to aliens not being merchants is like forbidding
all other foreigners to come and reside here." It is true Mr, Mar-
grave throws some doubt as to such being the law by referring to
Calvin's Caso, 7 Co. R. 17, observing that there Lord Coke,
speaking of the right to take a house for habitation as an excep-
tion to the general rules as to the incapacity to hold real pro-
perty, seems to express himself without distinguishing between
aliens being merchants and others Hargrave, Co. L. 2 b, n 7.
But on reference to the passage in the report, and to the reason
given by Lord Coke for the exception, viz., that "if aliens should
be disabled to acquire and maintain these things, it were in effect
to deny them trade and traffic, which is the life of every island,"
it would seem that Lord Coke had traders only in view.
143
44 siding in this kingdom may (by any mode of acqui-
u sition) take and hold any lands, or houses, or other
44 tenements for the purpose of residence, or of occu-
"pation by himself, or his servants, for the purpose of
44 any business, trade, or manufacture, for any term of
44 years not exceeding twenty-one, as fully and effectu-
44 ally, except the right to vote at elections for Members
44 of Parliament, as if he were a natural born subject."
Beyond the right thus given of taking a lease of
real property for the purpose of residence or busi-
ness for the term of twenty-one years, the incapacity
of aliens as to holding real estate, whether in fee, or
for life, or for years, remains as before. An alien
may, it is true, purchase landed estate, but if free-
hold, the Sovereign will be entitled to it, and on
office found it will vest in the Crown; if copyhold it
will escheat to the lord.*
Being incapable of holding real estate, an alien is >
incapable of inheriting it. By the common law he
was incapable of transmitting an estate by descent;
so that wherever it was necessary to trace descent
through an alien, it was not possible to inherit: in
other words, no one who derived his blood or relation-
ship through an alien, could inherit from another; so
that a nephew could not inherit from an uncle, nor an
uncle from a nephew, where the father was an alien;
nor could the son of an alien, though born within
the realm, inherit from his grandfather, for he must
inherit mediante patre.'f This cruel law was, however,
* Ventris, 413, 416, 418, Com. Dig. Alien C (1), C (2).
+ Ventris, lb. Com. Dig. Alien, lb.
\r-. / HI
\ J/ %
veered, in favour of natural born subjects, by the 11
and 12 Will Hi c 6. by which it is provided that
they may derive title by descent through an alien
ancestor.
Any attempt to evade the law by having landed
estate conveyed to a trustee for the benefit of an
alien would be useless The trustee would be held
in equity to be seized of the property for the benefit
of the Crown *
And as an alien cannot be seized of or hold real
estate, it seems that he cannot be a trustee of real
estate for the use or benefit of another, or as such
mate a good conveyance of it to a pui chaser. |
It should, however, be obsci ved, that if an alien
purchase landed estate, as he theieby becomes seized,
it is only on proceedings being taken by the Crown,
or as it is termed on office found, that the estate vests
in the latter. Tf therefore no such proceedings are
taken, there is nothing to prevent the alien from pos
scssing and enjoying it, or as it seems from disposing
of it But as land cannot be inherited from an alien
it seems that on his death the freehold and inheritance
will vest in the Crown by 1a\v, without office found. |
An alien has consequently no power to devise real
estate
* Com, 1% Alien C. (3.)
t lb. C. (4.) Gilb. on Uses, p. 43, .Fish v. Klein, 2 Mer. K. 431
A Court of Kquity would not, however, allow the trust to fail
on thai, account, as the rule there is that a trust shall nevei* fail
for want of a trustee Lewin on Trusts, c. 95
% Com Dig Alien C. (9 )
Tf an alien purchase lands or tenements to him and his heirs,
he takes the fee simple, but on office found it goes to the King,
145
An alien husband cannot be tenant by the courtesy
of the estate of his wife being a subject.* An alien
woman married to an Englishman was not entitled to
dower at the common law; | but by an Act of Par-
liament, not printed (Rot. Pari. 8 Hen. 5, n. 15.)
"All women aliens, who henceforth should be mar-
w ried to Englishmen by license of the king, are
u enabled to demand their dower after the death of
"their husbands, to whom they should come in time
44 to be married, in the same manner as English-
u women/' ^
This statute applied only to alien women married
to subjects with the license of the king; but the
7 and 8 Vict. c. 66, has, as we have seen, removed
every disability of alien women married to subjects.
As regards personal property, an alien is under no
disability. An alien might at the common law
acquire property in goods, money, or other personal
estate, 44 An alien friend/' says Lord Coke, u may by
u the common law have, acquire and get within the
44 realm, by gift, trade, or other lawful means, any
44 treasure, or goods personal whatsoever, as well as
44 any Englishman, and may maintain an action for
44 the same §
wV.o shall have it by his prerogative, of whomsoever the lands
are holden. Ce. Litfc. 2, b.
If an alien purchase to him and the heirs of his body, he is
tenant in tail; and if he suffer a recovery and afterwards an
office is found, the recovery is good to bar the remainders. Com.
Dig. C. (2).
* Calvin's Case, 7 Eep. 25 a. t Com. Dig. Alien. C. (1.)
% Hargrave, Co. Lit. 31 b. n. 9.
§ Calvin's Case, 7 Co E. 17 a. The 4th section of the 7 & 8
116
Being capable of acquiring personal properly, an
alien is equally capable of disposing; of it by any
means by which such propei Ly may be transferred,
including testamentary disposition * He may be an
executor or administrator,] and, as to personal pro-
perty, may be a trustee like anybody else
As regards trade and manufactures, the wise and
liberal policy of Kdward the First, was followed by
enactments conceived in the like spirit in the reign
of Kdward ML By a statute of 9 Kdw. Til st. 1, c. 1,
it was enacted "That all merchants, strangers, and
"others might deal in all things vendible within the
iC realm, and sell to any but the king's enemies,nolwith-
u standing any franchises or usages to the contrary,
"save the king's customs/' And peisons disturbing
alien merchants in the protection given by this statute,
are subjected to double damages. To this enactment,
however, was added an exception, forbidding aliens
to cany wine out of the realm. By the statute of the
Staple, 27 Kdw. 111 st. 2, c. 17, the practice of arrest-
ing one alien for another's debt was put an end to, and
time was allowed for aliens, in case of war, to remove
Vic. c. 166, which enacts that "tivery alien, being the subject of
a friendly state, shall and may take and hold, by purchase, gift,
bequest, representation, or otherwise, every species of personal
properly, except chattels real, as fully and effectually to all in-
tents and purposes, and with the same rights, remedies, exemp-
tions, privileges, and capacities, as if he were a natural-born
Rubjecl of the United Kingdom," adds nothing to the Common
Tjaw, and ma) be taken as declaratory only.
* Williams on Kxecutors, p. 11,
f Com, Dig Admin 11 (6.) Williams on K\ecutors, pp. 9^09
415.
147
with their effects. There is an honesty of purpose
and a simplicity in the quaint language of this noble
statute, which make it pleasant to read.
"Merchants of enemies' countries shall sell their goods
in convenient time and depart; no merchant stranger shall
be impeached for another's debt, whereof he is not debtor,
pledge, nor mainpernor: Provided always, that if our
liege people, merchants, or others, be endamaged by any
lords of strange lands, or their subjects, and the said lords
duly required fail of right to our said subjects, we shall have
the law of marque, and of taking them again, as hath been
used in times past, without fraud or deceit; and in case that
debate do arise (which God defend) betwixt us and any lords
of strange lands, we will not that the people and merchants
of the said lands be suddenly subdued in our said realm and
lands because of such debate, but that they be warned, and
proclamation thereof published, that they shall void the said
realm and lands, with their goods, freely, within forty days
after the warning and proclamation so made; and that in
the meantime they be not impeached, nor let of their passage,
or of making their profits of the same merchandizes, if they
will seek them. And in case that for default of wind, or of
ship, or for sickness, or for other evident cause, they cannot
avoid our said realm and lands within so short a time, then
they shall have other forty days, or more, if need be, within
which they may pass conveniently with selling their mer-
chandize as aforesaid."
By 36 Edw. Ill, c. 7, a court was constituted,
composed partly of foreigners, to try mercantile
causes, and other regulations in favour of alien mer-
chants were made. In the succeeding reign of
Richard II, the statutes of his predecessor in favour
of aliens were explained and confirmed; and in 14
Richard II, it was expressly enacted u that merchant
118
strangers repairing into the realm of England shall be
well and com teously and rightfully used and governed
in the said realm, to the intent that they shall have
the greater courage to repair into the same."
But in the latter part of this reign a retrograde
policy toot the place of the wiser legislation which
had preceded it; and, fiom this period till compara-
tively recent times, a scries of statutes placed restric-
tions on the freedom of merchants to tr ade within the
realm It would be beyond the limits of the present
treatise, as well as beyond the scope of the present
purpose, to trace the various provisions of this fluc-
tuating but generally mischievous legislation * Guf
fice it to say that these enactments have gradually
disappeared from the statute book, and that now the
foreigner can carry on trade or industry within the
dominions of the crown as freely as the subject. The
law gives also the same rights in respect of copyright,
patents for inventions, trade marks, and the like, to
the foreigner as to the subject.
To this general position there is one exception; but
it is one which is founded on general policy rather
than on any restraint on trade or intended preference
of the subject over the foreigner. None save a
British subject, either by birth, denization, or natu-
* A summary of these statutes, which is by no means without
interest as exhibiting the fatal errors of past ages, the spirit of
which has only been finally subdued in our own day, will be found
in Tucker's able treatise on the .Naturalization Hill, as also in
Chitty's Commercial T,aw, Vol. 131< 10, a \*ork which docs infi-
nite credit to its indefatigable author, as exhibiting sound views of
commercial policy, combined with extensive legal and historical
research.
149
ralization, can be owner of a British ship, so as to be
entitled to the protection of the British flag, or to
satisfy the Registry Act.* It is obviously one thing
to give perfect freedom of trade or industry to
foreigners within the limits of the Queen's dominions,
and another to afford the national character and the
protection of the British flag to those who, once beyond
the limits of British territory, are no longer subject
to our laws, and who might compromise us with
other nations without being amenable to our juris-
diction."f"
In respect of personal rights, the alien, so long as
he remains on British soil, is in the same position as
the Queen's subjects. The Courts of this country
are open to him—as against foreigners, in respect of
wrongs for causes of action arising within the juris-
diction, and in respect of breach of contract for causes
of action arising either in this country or abroad—
as against British subjects, in respect of any cause of
action wheresoever arising.
Thus far we have been speaking of aliens who are
* "The Register,'' says Mr. Machlachlan, in his excellent
treatise on Merchant Shipping (p. 27, n. 1), " serves a municipal
purpose and contemplates an international object. It ascertains
the ownership of property, for the convenience of Her Majesty's
subjects, and it reserves for them the protection and honour of
the British flag."
f Even a British subject is incapacitated from owning British
shipping, if he has taken an oath of allegiance to a foreign sove-
reign or state, unless he afterwards takes the oath of allegiance
to the Queen, and continues resident in Her Majesty's dominions,
or is a member of a British factory, or partner in a house actually
carrying on business within Her Majesty's dominions.—17 and 18
Vic. c. 104, § 18.
L 2
150
subjects of States at peace with Great Britain; but a
distinction is to be observed between what is called
an alien friend and an alien enemy, or one with
whose country this kingdom is at war. An alien
enemy has no civil rights in this country, unless he
is here under a safe conduct or license from the
Crown Tn modern times, however, on declaring
war, the Sovereign usually, in the proclamation of
war, qualifies it by permitting the subjects of the
enemy resident here to continue, so long as they
peaceably demean themselves; and without doubt
such persons are to be deemed alien friends. An
alien enemy cannot trade with the subjects of the
realm A contract made by or with him is void,
and cannot be enforced heie even after peace is
restored But the right of an alien enemy to sue in
respect of a cause of action arising before war is only
suspended while the war lasts, and will revive on
peace being restored A British subject, and a
fortiori a neutral, residing in an enemy's country
during time of war, is looted upon as an alien enemy,
and as under the same disabilities *
When plaintiff, a foreigner may be cal led on to give
security for costs; when defendant in an action
brought to recover 1^0 or upwards, if there is
reasonable cause to believe he is about to quit the
country, he is liable, on an order being made by a
judge, to be arrested before judgment: but herein
he is only in the same position as the subjects of the
realm
* Mcfonnell v. Hector, 3 Bos. & L\ 113; Omealy i?. Wilson,
1 Camp. 481; Deluneville v. Jfhillips, 1 .New K. 97*
151
An alien is subject to the bankrupt laws,, and is
entitled to the benefit of them.*
It thus appears that the incapacity of aliens
consists in three things.
1. They are incapable of any political rights, inclu-
ding that of holding any office of trust.
2. They cannot hold landed estate except for a term
not exceeding twenty-one years.
3. They cannot own British ships.f
The incapacity to hold landed estate is said by some
to have arisen from the feudal law, according to which
no one could purchase lands without being obliged to
fealty to the lord of whom they were holden; so that
an alien, who owed a previous faith to another prince*:
could not take an oath of fidelity in another so-
vereign's dominions.};
But the true reason for such a law, or at all
events for its continuance, is rather to be found in
the narrow spirit which led men to look with jea-
lousy and dislike on all who were not members of
the same community, political, commercial, or indus-
trial, as themselves—a spirit which has exercised a
mischievous influence even to our own times, and
which, in some parts of the world, can hardly yet be
said to be finally laid. This jealousy and the laws
relating to foreigners engendered by it were once
* 6 Geo. IV. c. 16, § 135.
f The incapacity to sit on juries can scarcely be considered as
the denial of a civil right; it is rather an exemption from an
onerous duty.
J Spelman tit. Ligeantia, p. 368.
152
common to the world; but many nations have seen
the impolicy of such restrictions, and have amended
their laws.
Section 3. Position of Aliens in other Countries
To the French nation belongs the merit of having
been Ihe first to set the example of a more liberal and
enlightened legislation Yet nowhere had the exclu-
sion of stiangers from civil rights been carried to a
greater length
Under the ancient law of France strangers were
described under two names, Aubains (alibi nati), if
the country of their birth was known, Hpaves* if
they came from a distance and it was unknown to
what country they belonged.
The condition of both in point of civil rights was
little better than that of seifs. They were liable to pay
an annual toll They could not marry with a French
subject unless with the consent of the seigneur, under
the penalty of a fine; and even when such consent
had been obtained, they were subject to what was
called the for-mariage, which consisted of the for-
feiture to the lord of one third, or one half, according
to the custom, of the property of the subject thus
intermarrying with the foreigner. Aliens might, in-
deed, acquire and dispose of propei ty in France by
acts enire vifs, but they were incapable of inheriting
or of acquiring property by testamentary disposition,
* tipave signifies the same as our word "waif or "stray."
"On appele ainsi les choscs egarees, dorit on ne connoit pas le
proprietaire. KepeHoire de Jurisprudence ad verb."
153
or of bequeathing their property to above the value-
of five sols; nor could any persons inherit from them,
except their children born within the territories of
France.*
The law relating to foreigners was designated by
the well known term of Droit d? Aubaine; though
that term is generally used in the more restricted
sense, in which it designates the right, exercised by
the State, of taking the property of foreigners dying
in France without leaving children born within
the kingdom.")" As the foreigner was incapable of
bequeathing his property by will, and no other rela-
tions, though subjects and living in the kingdom,
except children born within it, could succeed, on
failure of the latter the property became bonum
vacans, and as such, as a necessary consequence, fell
to the lord, which in most cases would be the King.J
Besides the disability stated, foreigners were also
* Pothier, des personnes, part I. tit. I., sect. 2, Bepertoire de
Jurisprudence ad. v. Etranger. It is stated in the latter work that
if the alien had any children born within the kingdom, this ren-
dered other children, born out of it, capable of inheriting from
him. But this seems doubtful.
t It is said that the Droit d'Aubaine applied to the succession
of a foreigner dying out of France only in the case of a French-
man naturalized in a foreign country.—Merlin, Bepertoire de droit
Verb. Aubaine.
X The Droit d'Aubaine was discontinued as regards British
subjects from the year 1713. By the 13th article of the Treaty
of Navigation and Commerce entered into between Great Britain
and France at the Peace of Utrecht, and the Ordinance of the King
of France which followed it, the property of British subjects dying
in France became exempted from the law.—Cole on the Domicile
of British subjects in France, p. 2^
151
incapable of holding any office or exercising any
public function within the kingdom, or of holding
any ecclesiastical benefice without the licence of the
ting. Any benefice conferred on a foreigner without
such licence became ipso facto vacant *
The rigour of the droit d'aubaine, had however,
been mitigated in one important particular prior to the
devolution The succession to a foreigner dying in
France, instead of falling to the crown, was allowed
to go to his relations if domiciled in France \
Thus the law remained till the Revolution, when
larger and more cosmopolitan views prevailed By a
law of 1790 the droit d'aubaine was abolished By
a law of 1791, foreigners were rendered capable of
succeeding to the property of their relations in
France, though such relations might not be Kiench,
and of acquiring and disposing of propei ty by all
means authorized by the law.
In passing these laws the Constituent Assembly had
been actuated by the expectation that the example
thus set would be followed by reciprocity on the part
of other nations in relaxing the rigour of laws re
stricting the capacity of foreigners; but the general
aversion produced by the excesses of the revolu-
tionary period were anything but favourable for the
adoption of changes emanating from such a quarter,
and the European wars which broke out shortly after-
wards diverted attention from the subject of legal
reforms The framers of the Code, therefore, finding
* Tepevloire de Jurisprudence, u- a.
t Merlin, itepert. de druit. Verb. Aubaine
155
that the great concessions made by France in favour
of foreigners had not been followed by corre-
sponding concessions on the part of other nations,
receded somewhat from the liberality which had
characterized the legislation of the preceding period.
They enacted that the enjoyment of civil rights by a
foreigner should be co-extensive only with the rights
accorded to Frenchmen by treaties between the
nation of the foreigner and France.*
Carrying out this principle, the 726th article of
the Code Civil provided that a foreigner should suc-
ceed to the property which a relation, whether
foreigner or Frenchman, possessed in France, only
where a Frenchman would in like manner succeed to
the property of a relation in the country of the
foreigner—a rule equally applicable to moveable
and immoveable property, and whether the succes-
sion was testamentary or ah intestate.^
In like manner, Article 912 provided that a dispo-
sition of property in favour of a foreigner could only
be made where the foreigner in his own country could
in like manner make a disposition in favour of a
Frenchman.
It is to be observed, however, that the framers of
the code by no means re-established the droit d'au-
* Code Civil, Art. II. By the terms of this article, recipro-
city afforded by the law of the foreign country would not suffice;
it must result from treaty: the reason, it is said, being that the
rights of foreigners in France would otherwise have been made to
depend on legislation to which France was not a party. Eogron,
Code Civil, note to Art. II. Deraolombe, § 241, vol. i. p. 357.
t Eogron, Code Civil, note to Art. 726.
156
baine as regards the right of the State. The effect
of Art 726 was only that, if the foreigner was in-
capable of inheriting, the properly went to the next
heir capable of taking; neither docs the Code any-
where deprive the foreigner of the right to make a
will On the other hand the 912th article increased
the rigour of the antient law by making the foreigner
incapable of acquiring, except in case of reciprocity,
by act entre vifs, which by the old law he could
always have done.*
But both the 726th and 912th articles of the Code
were abrogated by a law of the 14th July, 1819; and
the result is that as regards the acquisition and dis
posal of property of every description in J? ranee, the
foreigner now stands in all respects on the same
footing as the Frenchman, |
foreigners have further been rendered capable, by
express laws, of holding shares in the Bank of
Hrance; of obtaining concessions with respect to
mines; of possessing liteiary property; of obtaining
patents |
* The old maxim was Feregrinus liber vivit, moritur scrvus.
Merlin, Kepertoire de Droit, Verb. Aubaine
f Demolombe, Cours de Code JNapoleon, § 2^4, vol. i. p. 399,
X Demolombe, Cours de Code JNap. § 249, vol. i. p. 387.
Monsieur rlYeitt thus sums up the result of the existing legisla-
tion:
"Tons les elrangers, sans la moindre restriction, out, en JbYance,
le droit de succeder, de disposer, de recevoir; il n'y a aucune dis
tinction entre les biens meublcs et les biens immobiliers; l'egalite
entre les nationaxix et les etrangers est alsolue, que les etrangers
soient en .France ou hors de France. Cet etat de choscs existe
depuis la loi du 14 Juillet 1819, qui a abroge les Articles 7 69 et
157
Foreigners may have recourse to the French tri-
bunals, against a Frenchman for a cause of action
wheresoever arising; but against another foreigner
only where the cause of action arises out of or relates
to commerce or trade; or where the object of the de-
mand is situate in France; or where the suit is insti-
tuted to obtain reparation for a personal wrong ; and
generally where any treaty with the country of the
foreigner confers the right. It seems, indeed, that
912 du Code Napoleon, et aboli tous les droits qui frappaient les
étrangers, tels que droits d'aubaine, &c. Cependant cette loi con-
tient une seule restriction qui est toute d'équité: 'Dans le cas
de partage d'une même succession entre des cohéritiers étrangers
et Français, ceux-ci prélèveront sur les biens situés en France
une portion égale à la valeur des biens situés en pays étranger,
dont ils seraient exclus, à quelque titre que se soit, en vertu des
lois et coutumes locales.'
"Les étrangers comme les Français peuvent acquérir des biens
en France, les hypothéquer, les aliéner, et faire à leur égard tous
les contrats permis par la loi. Ils ont le droit de prescription.
"Le commerce et l'industrie sont absolument libres pour les
étrangers; ils exercent le droit industriel à l'égal des regnicoles,
et peuvent obtenir toutes espèces de concessions; même celle de
mines.
"La propriété industrielle, artistique et littéraire a été l'objet
des traités internationaux.
"Das les communes ou les étrangers résident, ils participent à
certaines jouissances communales, telles que la vaine pâture, la
distribution du bois des forêts appartenant aux communes, &c.
"En un mot, on peut dire que, en ce qui concerne le statut
réel, le droit de propriété, les étrangers sont dans une condition
identique à celle des Français.
"Quant au statut personnel, ils jouissent de tous les droits de
famille comme père, fils, et époux."
Appendix to Eeport, p. 117.
158
the .French tribunals are competent to en lei lain suits
between one foreigner and another, but they are
not bound to do so.*
YYhen a foreigner is plaintiff, be may be called
upon to give the cautio judicatum solvi.
Tn case of bankruptcy, foreigners have the same
rigbls as Frenchmen, with the exception that, a
foreigner cannot have the benefit of a cessio bonorum
to free himself from his debts, the reason for which
is said to be that the liability to arrest in case of
debt, to which a foieigner is subject, would be thereby
superseded Till the recent alteration of the law,
foreigners were liable to be arresled on what would
be called by us mesne process; but to this they are
no longer exposed
There are, however, still some incapacities under
which foreigners labour; but of these the principal
may perhaps be said to parlate of a political character.
Thus they are excluded fi om al I public functions They
cannot be judges, or discharge any office or calling for
which an oath of allegiance^lo the head of the Glateis
required; for which reason they cannot be advocates,
nolarics, or avoucs They cannot act as arbitrators,
as this, under the French syslem of w arbitrage"
would clothe them temporarily with the chaiacleis
of judges They cannot serve in the army, or in the
* The law aa lo the right of one foreigner to sue another in
Jfrance, and whether the right does not extend to all causes of
action arising in prance, appears by no means settled. Sec note
to /*achai'ia>, Droit Civil tfrancais, Tome i. p. 87, n, 19, by the
very learned editors Mcaors Ma«rjc et Verge
159
national guard, or serve on juries. They cannot be
witnesses in certain authentic acts, as for instance, in
notarial acts. Lastly, they cannot exercise the pro-
fession of physicians or surgeons, or the business of
chemists, without a special authorization.*
By a law of the 3rd of December, 1849, a foreigner
sojourning or residing in France, may at any time be V
expelled the country at the absolute discretion and
pleasure of the Government.
What has been thus far said applies to the case of
foreigners under ordinary circumstances; but there
is a class of foreigners who, with very trifling ex-
ceptions, are relieved from the disabilities of foreigners
in general. These are foreigners domiciled in France
with the authorization of the Head of the State.
By the 13th Article of the Code Civil,f a foreigner j
thus domiciled enjoys all civil rights; but only so f
long as he resides in France; being herein dis- )
fmguished from the Frenchman, who of course (/
carries the national character with him wherever
he may go.
"Sauf les droits politiques," says Mons. Treitt, "l'etranger
domicilii jouit des droits civils comme le regnicole; cepen-
dant comme il est toujours Stranger, il ne peut 6tre temoin
dans certains actes authentiques, ni &tre arbitre, puisque
^arbitrage estune juridiction."
* Report of Mons. Treitt to Lord Lyons of June 29,1868.
Appendix to Report, p. 117.
f According to Mons. Eogron, this provision was made in
favour of strangers intending to become Frenchmen, during the
period of residence required preliminary to naturalization. Code
Civil, note to Art. 13.
160
"Tje domicile acquis en France," he adds, " ne delie pas
l'etranger des obligations que le slatut personnel de son pays
lui impose, ni de scs devoirs en vers sa mere palrle"
The only other distinction to be noticed between
the domiciled foreigner and the frenchman is that,
under the law of 184 9, the former may at any time be
expelled from the country at the discretion of the
Government, even though the authority to reside may
not have been revoked, which, however, it always
may be, should this be deemed necessary.
The law of France on the subject of aliens has been
dwelt upon at some length, partly because France was
the first country to break through ancient prejudices
in respect of foreigners, but more so because her
example has been followed by other nations, cs
pecially by those who have framed their codes on the
model of the Code Napoleon
Belgium has followed, though somewhat tardily,
the example of Fiance Till April 1865, foreigners
were not entitled to hold landed property in Belgium
But by a law then passed they are in that respect
placed on the same footing as Belgians. As to other
civil rights, the Belgian code in all material par-
ticulars follows the French * The same distinction
exists between strangers in general and strangers
domiciled with authorization from the king. The
latter, except as to political rights, are admitted to a
perfect equality with the Belgian citizen The
Government possesses the power of expelling a
stranger not authorized to establish his domicile in
* Code Civil, Articles 10, 11
1G1
the country, except in the case of one who has married
a Belgian woman, and has had children by her born
in Belgium during his residence there, or in the case
of a foreigner having the decoration of the iron cross.
But these exceptions cease to be of avail in case of
war between the nation of the foreigner and Belgium.*
In Greece foreigners may become owners of im-
moveable property as well as of personalty; they
can be owners of Greek vessels, but cannot act as
captains or masters. They are precluded from the
exercise of all public functions, and cannot be advo-
cates or serve on juries. The tribunals of the
country are open to them whether against a stranger
or a Greek, even in respect of contracts made out of
the country ;f but when plaintiffs, they maybe com-
pelled to give security, except when they possess
sufficient moveable property in the country, or when
the cause of action arises out of matter of commerce,
or, lastly, when there is some stipulation to the con-
trary in a treaty with the country of the foreigner. J
By Article 26 of the Portuguese Code, all foreigners
residing or travelling in Portugal possess the same
rights and are subject to the same civil duties as Por-
tuguese citizens, so far as regards any acts which are
to be carried into effect in the country, except in
cases in which either an express law or a special
treaty shall provide otherwise.
* See Appendix to Beport, p. 115—16.
f Code de procedure Civile, Article 28.
% Code de procedure Civile, Art. 78, 79. Appendix to Eepcrfc
118-19.
162
But of/the codes which have been framed on
the nnoijtel of the French, that of the new kingdom
of Italy has best given effect to the principle of
placing citizens and foreigners on the same footing
in respect of civil rights Tn one short sentence
uthe foreigner is admitted to all the civil rights of
the citizen/' unaccompanied by restriction, condition,
or qualification What a step in the march of civili-
sation, and towards the fraternity of nations ! *
* "To straniero è ammcsso a godere dei diritti civili attribuiti
ai cHladini," Codice Civile Italiano, Articolo 3.
Tf Italian unity had produced no other result than this ad-
mirable Code, which is in all respects a great improvement on the
Code JNapoleon, and which is strongly recommended to the at-
tention of those who, in spile of* the example and experience of
so many other nations, persist in maintaining; that codifi-
cation is not a thing to be desired Italian unity would have
brought a great gain to the Italian people
Monsieur Hue, in his highly esteemed work, " Tie Code Civil
Italien et le Code JNapoléon," makes the following observations
on the Article in question .
"Tie nouveau Code admet libéralement les étrangers à la jouis
sance de tous les droits civils attribues aux Italiens. T^a loi est
rédigée à cet égard d'une manière générale et ne requiert aucune
condition de domicile ni de réciprocité, On ne saurait assez
I louer cette disposition, qui est tout à fait en harmonie avec le?
tendances les plus légitimes de l'humanité. De plus, elle a pour
effet de simplifier singulièrement la loi en lui ôtant l'embarras de
choisir entre des système» divers dont aucun n'cf3t satisfaisant.
On sait toutes les difficultés qu' éprouvent les jurisconsultes pour
établir quelle est, sur le point qui nous occupe, la véritable
théorie du Code JNapoléon Cependant, d'après l'interprétation
qui prévaut en général, on peut dire qu'il n'y a pas, en définitive,
une bien grande différence entre 1' étranger et le .Français, suHout
163
The German States have not been backward in
adopting the wiser and more liberal views of modem
times in respect of the capacity of foreigners.
In Austria their rights are regulated by the 33rd N
section of the Code. According to this law foreigners \
enjoy the same civil rights as Austrian citizens, ex- j
cept where the qualifications of an Austrian citizen /
are expressly required. These exceptions relate only ^
to offices and the exercise of professions and trades.
Foreigners, not naturalized, cannot be public func-
tionaries; they cannot be admitted to the military
service, or be superiors of religious orders; they
cannot be advocates, notaries or public agents, or
sworn brokers; they cannot be appointed guardians
or committees of Austrian minors or Austrian subjects
depuis la suppression récente de la contrainte par corps en matière
civile. Nous n' hésitons pas à croire, en effet, que P étranger
est, en principe, admis à jouir en France des mêmes droits que.
le Français; qu'il est seulement privé des droits qu'une disposé
tîon spéciale lui retire, et que, même pour ces derniers droits»
il en jouit, s 'il y a lieu d'appliquer la réciprocité diplomatique
dont parle 1* article II. Mais quelle difficulté pour arriver à la
démonstration de cette solution, et combien la décision du Code
Italien est plus libéral et plus sage!
Il était temps de voir enfin disparaitre des codes modernes ce
principe déjà suranné de la réciprocité, conception paradoxale qui
assigne à une nation comme règle de conduite, non pas 1' idée de
justice, mais Y adhésion douteuse d'une autre nation plus attardée
dans la voie du progrés. Désormais, en Italie, l'étranger sera tout
à fait assimilé à un Italien, sauf dans un cas unique prévu par
l'article 788, aux termes duquel l'étranger qui ne réside pas dans
le royaume ne pent figurer comme témoin instrumentale dans
un testament public."
M
161
under committee; they cannot be directors of public
schools or educational establishments, or professors
at a university or at any public institute Tf a
foreigner wishes to commence a public trade, a
special concession from the Minister of the Interior
is required,
Tn Prussia aliens are permitted to acquire l>oth
/ personal and real property. As participators in an
I inheritance they possess equal rights with natives.
V No deduction is made from an inheritance falling to
I an alien, unless the Government of the alien raises
y a like tax on inheritances accruing to aliens/*
With reference to the acquisition of property by
aliens, the three following limitations are in force:
1. Donations, inheritances, and legacies cannot be
left to foreign corporations or public institutions
without royal permission | 2. Foreign corporations
and other authorised peisons, especially joint stock
companies, are not permitted to acquire real property
without royal permission | 3. ^states and manor
houses belonging to the nobility cannot be acquired
by foreigners without the permission of the Minister
of the Interior. §
Aliens enjoy all the rights of Prussian subjects in
the carrying on of business duly authorized, when-
ever the respective foreign State has not, to the dis
advantage of aliens geneially, or of the Prussian
* Koyal order of April 11th, 18*3. Legal Code, p. 186.
f Law or "May 13. Collection of Laws, p. 49.
% Law of May 4, 1846. Collection of Laws, p. ?35.
§ Koyal Decree of March 98, 1809.
165
State in particular, imposed burdensome regulations,
in which case retorsion may occur. Nevertheless,
to the general right to carry on business there are
the following exceptions:—
1. By a law of Oct, 28, 1867, the right of owners
of mercantile ships to hoist the flag of the North
German Confederation is confined to those foreigners
who are naturalized; 2. by a law of May 14, 1853,
aliens must obtain permission of the minister in order
to carry on in Prussia insurances and emigration un-
dertakings through agents;* 3. foreign agents, in
the absence of an international treaty, can only
carry on a permanent trade with the permission of
the Minister of Commerce.
In civil suits, aliens have the same rights as
natives in asserting their private claims as plaintiffs
before the courts of justice. But according to the
regulations of the general statute respecting tribunals,
natives as well as aliens are bound to give security
to the defendants in cases where the matter cannot
be at once settled. In a suit with a foreigner, the
defendant can only refuse to go into court, or to allow
the suit to continue, if the plaintiff cannot find secu-
rity. An alien can only obtain the arrest of another
alien when the summons has reference to a contract
concluded or to be carried out in the country; or
when the debtor in the deed by virtue of which the
arrest is sought has made himself liable either to
payment, or to arrest in any place; or when the sum-
mons originates in a bill of exchange which has
* Collection of Laws, p. 293.
M 2
166
fallen due, and the drawer is a merchant who visits
the fairs and markets of this country.*
Tn Bavaria, the general rule is that a foreigner
enjoys equal civil rights with a native of the countiy,
save only where an exception is made by legal
enactment, or when a royal ordinance applies the
principle of retaliation on account of disadvantages
to which Bavarian subjects are liable abroad, as
compared with persons belonging to the country which
imposes such disadvantages. The capacity to acquire
real property is conditioned on reciprocity in the
country of the foreigner.
The Trade T.aw of the 18th of January 1868
reserves the sanction of the State for foreign joint-
stock companies, branch establishments, and other
companies established for trading purposes, so far
as the provisions of State treaties do not determine
otherwise. .Foreign medical men receive from the
piovincial governments or from the Minister of State
for the Interior the permission to practise in the
country. Medical men who are only staying tempo-
ran ly in Bavaria, and who are entitled to practise in
their own country only, have the right of giving con-
sultations, but not that of ordinary practice. |
* Sec Despatch of Karon Thile to Tjord A, Loftus, of Oct. 7,
18G8, containing a summary of the privileges applicable to
foreigners as regards their legal status in the Trussian territory,
with reference to the various laws. Appendix to Keport, p. 1^4
and scq
t § Ordinance of the 99th of January, 1865, concerning
the medical art.
167
Article 10, of tlie military law of the 30th of
January of this year prohibits the permanent resi-
dence in the kingdom, as foreigners, of emigrants
who have not yet attained their 32nd year.
Foreigners are permitted to reside in any com^
mune of the kingdom when they can bring sufficient
proof of their nationality and place of legal settle-
ment, and when there is no legal impediment to their
residence. The expulsion of a foreigner from a com-
mune is only admissible on the same legal grounds
as would justify the expulsion of a Bavarian subject
not having a right of settlement in the locality.*
The Minister of the Interior is empowered to expel a
foreigner from the country on grounds connected
with the internal or external security of the State."}"
The law of Saxony as to the right to hold real
property is peculiar, and apparently based on no
very sound or intelligible principle. Every foreigner,
who desires to become possessed of landed property
in town or country, with personal residence, must first
be naturalized; but naturalization is not required—
15 for such as hold landed property in Saxony on
which they are not domiciled and which is under
foreign management; 2, for foreigners who acquire
landed property in Saxony with habitual residence
but who usually reside abroad, so long as they con-
* Article 45 of the Law of Settlement of the 16th April of this
year.
t Dispatch of Prince Hohenlohe to Sir Henry Howard of July
5, 1868. Appendix to Eeport, p. 111.
160
tinue abroad; 3, when a wholesale business or manu-
facture is established in the country by a foreigner
residing abroad Tn the two latter cases there is a
condition that the obligations of citizenship which
attach to a property or undertaking shall be fulfilled
by a proper native representative.
And in all these cases foreigners participate in the
privileges and duties of a Saxon subject only so far
as the nature of their property or trade may admit or
may be sanctioned by the law.*
Tn Wui temberg the law is based on the principle of
reciprocity. From a despatch from Mr. Gordon to
Lord Stanley, of the 21th of June, 1868, it appears
that
"The Wurtemberg Legislation on this subject is ex-
tremely liberal and is based entirely on reciprocity. An alien
establishing himself in the country can claim by law every
advantage and liberty possessed by a Wurtemberg subject
desirous of settling himself in a commune to which by birth
he docs not belong, if a similar liberty be granted to Wur-
temberg subjects in the country of the alien Tn the
contrary case the law reserves to the authorities the
right of refusing to aliens privileges which would not be
finjoyed by Wurtembergers in the foreign country in qucs
tion, but the exercise of this right by the authorities is very
seldom practised, and would be so only under special cir-
cumstances.
"Tn the case of an alien purposing to practise any trade
or industry in Wurtemberg all that is required is that he shall
establish his nationality and furnish proof, if called upon to
* Code Civil, art. 10. Appendix to KepoH, p. 1*9.
169
do so, (and this last does not often occur), of the right of
Wurtembergers to do the like in the alien's own country."*
The law of Baden, with respect to the rights of
foreigners, is stated in the following written commu-
nication from Count Freydorf to the British legation
at Stuttgart, f
"Within the whole compass of private rights, especially in
respect to the right of acquiring and possessing property of
. --every kind, landed property included, aliens stand accord-
ing to Baden law upon a footing of complete equality with
native subjects.
"As regards the right of settlement and of engaging in
trade or industry, the Baden Government are entitled, if
they please, to demand reciprocity as the condition of ad-
mission to such rights. They have, however, never as yet
taken any advantage of their authority in this respect, so that
in point of fact aliens residing in Baden are subject to no
disabilities in regard to the right of settlement, or of engag-
ing in trade or industry.
"On the other hand, aliens are of course excluded from
political rights, from offices in Church and State, and from
such rights as appertain to persons as members of a corpo-
rate community"
Practically, therefore, as regards civil rights, aliens
in Baden are subject to no disabilities whatsoever.
From a communication from Count Frijs to Sir
Charles Wyke, it appears that as regards private
rights, foreigners domiciled in Denmark are in pre-
cisely the same condition as native subjects.^
* Appendix to Report, p. 136.
t Appendix to Report, p. 114.
% Appendix to Report, p. 116.
r/o
The legislation of the Netherlands is less satisfac-
tory, the right of foreigneis being based on the
uncertain criterion of reciprocity. Foreigners are
indeed assimilated to native subjects generally, but
by the 881th and 957th articles of the Code Civil,
they can only succeed either by testament, or ab
mteslalo, or acquire by donation, where by the law
~5f the country of the foreigner the same rights are
secured to the subject of the Netherlands.
The law is, however, favourable to foreigners with
regard to admissibility to public employment, a long
list of offices being specified in which they are ca-
pable of being employed.*
11 ere, also, a distinction is made between foreigners
who are domiciled and those who are not. Wrth
regard to the latter the law of procedure is
harsh Aliens not domiciled within the Nether-
lands are liable to imprisonment for debt for any
debt contracted with a Netherlands subject. | They
may, without sentence in a cour t of justice, be seized
for debts due to a Netherlands subject on an order of
the justices of the arrondissement | They are liable
to seizure for debt, if payment of a debt on applica-
tion is not made within eight days. Hail, however, or
security for debt and costs will be accepted,§ When
not domiciled they are excluded from participating
in the advantages of a cessio bonorum.\\
Domiciled aliens are not subject to these disad-
* T,aw of June 4,1858, Appendix to E,epoH,p. 1?3.
t Code of Civ. Proceed. § 5S5.
X lb. § 768. § lb. § 769-7/0. || Tb. 710.
171
vantages, being assimilated in respect of civil matters
to the native subject.
Aliens are considered to be domiciled, and are
assimilated to natives—when, by virtue of permis-
sion from the King, they have established their
domicile in the kingdom, and have made the communal
administration acquainted with such permission; and
when, after having established their domicile in a
commune of the kingdom, and retained it in the same
commune for six years, they have announced to the
communal administration their intention to settle in
the kingdom.* Besides these two classes those aliens
also are admitted to Netherlands citizenship who are \.
domiciled within the kingdom having married Nether- /
lands women, or who having married Netherlands
women have had issue by them bom within the king-
dom.f
In Kussia the position of foreigners has been greatly
improved by recent legislation. From the state-
ment of Mr. Eoebuck, the consulting advocate of the
British Empire at St. Petersbugh,! it appears that
several of the restrictions which existed in Eussia
with regard to the rights allowed to foreigners have,
since 1860, been abolished, and their rights greatly
, extended.
i They can now hold landed property as well as
j personal, and as landholders are eligible to be mem-
V Code Civil, § 8.
t Law of August 13, 1849, § 19. Appendix to Beport, p. 123.
X Appendix to Beport, p. 128.
172
bers of the rural provincial assemblies They are
allowed to trade without being naturalized They
may hold commissions in the Russian army, and late
the several ranks in it, and having the rank of lieu-
tenant General or full General, or of Field Marshal,
maybe appointed Senatois and members of theCoimcil
of the ftmpire
But they cannot hold the offices of judge, magistrate,
or justice of the peace; they cannot be advocates, or
serve on juries They are not allowed to enter the
civil service, though an exception is herein made in
favour of professional and scientific men, such as phy-
sicians, surgeons, apothecaries, architects, engineers,
and professors and teachers of the arts and sciences.
Lastly, foreigners cannot acquire the right of here
ditary nobility.
The law of Sweden as to aliens is based on the
principle of reciprocity. Foreigners belonging to
countries in which Swedish subjects are entitled to
inherit property possess the same right in Sweden,
so that they may thus become the holders of real
and personal estate in this kingdom * Tn the
kbsence of such reciprocity, foreigners may not hold
real and personal estate without the special per-
mission of the King; but there appeals lo be no
legal hindrance to their possessing the usufruct of
real and personal estate on lease or otherwise. |
Offices of trust under the Government can, as a
* Statute of Inheritance (Arfda TCalken), ch. 1.5, § 2.
f .Royal reclamation of 3rd Oct. 18?9.
173
rule, be filled only by natural-bom Swedish men.
But foreigners may be appointed professors or teach-
ers at the Universities, with the exception of posts
for theological instruction, or as teachers, or in any
other capacity, at other scientific, industrial, and
artistic institutions, and also to the medical profession.
They may be appointed to military posts, except the
command of a fortress.*
Foreigners are permitted to be part owners of
vessels registered either for home or foreign trade;
but they may not possess more than one-third of the
tonnage of Swedish vessels, or be the managing
owners. Those who have obtained the permission of
the King to dwell in the kingdom may also, after
special inquiry in each case, obtain permission to exer-
cise trade, manufactures, mechanical employments, or
any other calling.")"
In Norway foreigners are, in substance, placed, in
respect of civil rights, on the same footing as Norwe-
gians.;):
If we turn to America, though aliens were origi-
nally subject to the disabilities of the common law,
we shall find that, so far as the law concerning the
rights of aliens is within the authority of the Federal
Legislature, the modern view of the subject has pre-
vailed. By recent Acts of Congress, public lands may
be purchased by aliens, though they can be granted
* Regerings Eormen, § 28.
f Royal Statute of 18th June, 1864. App. to Rep. p. 130.
X St. Joseph, Concordaace, vol. iii. p. 4, § 6.
171
gratuitously to citizens only, or to aliens who have
declared their intention to become such Aliens have
also been made capable of talcing out patents for
inventions on the same terms as native citizens,
But as regards shipping, no vessel is entitled to be
registered as a vessel of the United States, or to have
any privilege as such, unless wholly owned by citizens
of the United States, and commanded by a citizen
^^C^'Vhe right of aliens to hold lands, other than public
land belonging to the Union, being, as is always the
case with regard to really, part of the lex loci rei
sitce, depends on the law of the State in which the
land is situate; and as each individual State has its
own legislature and its own municipal law, consider-
able variety of legislation in respect of the right of
aliens to hold real estate has been the result.*
Tn fourteen States of the Unicfcu raamfly, the dis
trict of Columbia^ Jblorida^illiffois, Iowa, Kansas^
Maine, JVTassachuscts, ]Vh#n(/so.ta;, Nebrasca, New
Hampshire, New Jersey, t)hio, Oregon, and Wis
consin, the common law as to the disability of aliens
to hold landed property has been abrogated^and no
distinction any longer exists between them and native
citizens
. In Pennsylvania, the capacity of an alien to acquire
landed property is limited to 5000 acres.
/ Tn Louisiana, the common law docs not pre
vail7 and there appears to be no incapacity in
aliens to require real estate. In the case of Phillips
* See Appendix to ReporJ,, pv13? 136.
175
n; ;- /
v. Kogers the supreme Court of Louisiana awarded
to the plaintiff, an alien, residing in Ireland, the
whole estate real and personal of his deceased brother,
a resident in that state.^. ^ ^
/ In six States, Connecticut, Kentucky, Michigan, P*~
[ is
Nevada, Virginia, and West Virginia, while aliens
are not prohibited from acquiring and holding landed
property, bond fide residence is made the condition of
their capacity.| /In California, the mode of acquiring
is limited to inheritance, but a period of five years is
allowed before the rule as to residence comes into
force. If at the end of five years the party has not
come to reside, the estate is to be sold by the State
for the benefit of the alien or his legal representa-
tives.
L
Ten States, Arkansas, Delaware, Maryland, Mis
souri, New York,vRhode Island, South Carolina,^
Tennessee, Texas, and Virginia, concede the right
only to resident aliens who have declared their inten-
tion to become citizens of the United States, as re-
quired for the purpose of being naturalized. ^
The States of Texas, and Tennessee, however,
adopt the principle of reciprocity also, and, indepen-
^dently of residence, allow an alien to acquire and hold
real estate where by the law of, or treaty with, the
countrj^of the ttlien,- a^imilar-advantage4&-aHewed
to American citizens. "A '"' ^' 1 '" , ^
Missouri allows aliens acquiring real estate by
* 5 Marten Eep. 752.
f Nevertheless, in Connecticut, a non-resident alien is allowed
to acquire real estate for the purpose of mining or quarrying.
176
descent or devise, and who are incapable of holding
the same by reason of being aliens, to sell or convey
it within three years from the settlement of the
affairs of the deceased;*
Tn our own colon><5s^great difference of legislation
exists. Tn a few of them the local legislatures
have outstripped that of the Mother country in adopt-
ing a liberal policy. Tn Canada and Nova Scotia,
I' in British Columbia, and at the Cape of Good Nope,
in Victoria, Nevis, St. Kitts, by recent statutes, aliens
have the same power of acquiring, holding and dc
vising lands as natural born subjects. Tn Tndia, legis
lation is going on in the same direction Tn Bengal
all restrictions on foreigners as to holding lands
were done away with by an Act of 1868; and it is
understood that the Governments of Madras and
.Bombay have similar Bills under consideration |
In New South Wales, Queensland, New Zealand,
Bermuda, the Bahamas, Jamaica, Barbadocs, and
Honduras, aliens are by local statutes placed on the
same footing as aliens in Great Britain; that is they
are enabled to take landed property on lease for 9.\
years.
Tn other Colonics naturalisation in each individual
case is necessary to enable an alien to hold lands.
* Tn Oregon and Texas the privilege granted to aliens is ex-
pressly limited to while aliens
t Appendix to Keporl, p. 139.
177
CHAPTER VI.
AMENDMENT OP THE LAW,
Section 1. As to Bights of Aliens.
On proceeding to consider the alterations which
are called for under present circumstances and in
the existing relations between nations, the first
question which it will be desirable to dispose of,
with a view to clear the ground for the consideration
of the important subject of naturalization, is that
which relates to the removal of the disability of
aliens.
We have seen that Great Britain stands almost
alone in maintaining the incapacity of aliens to hold
real estate. So many enlightened nations having
done away with the restraints upon the stranger,
which idle fears and an illiberal jealousy suggested
in a less enlightened age, ought this country to hesi-
tate to follow their example?
The reasons given for this law by Lord Coke in
Calvin's case* are conceived in the narrow spirit of
exclusion before referred to, and while they can
hardly fail to provoke a smile, may serve as an exam-
ple of the curious reasoning with which our antient
sages sometimes satisfied themselves in expounding
the law. 44 The reasons," he says, 44 wherefore an
alien-bom is not capable of inheritance within Eng-
land are three:
* 7 Co. E*p. p. 17.
170
"1. The secrets of the realm might thereby be discovered
2. The revenues of the realm (the sinews of war, and orna-
ment of peace), should be taken and enjoyed by strangers
born 3. It should tend to the destruction of the realm
Which three reasons do appear in the Statute of 2 II 5 cap.
and 4 11 5, cap. ultimo.
"Hut it may be demanded, wherein doth that destruction
consist; whereunto it is answered: first, it tends to destruc-
tion tempore belli; for then strangers might fortify them-
selves in the heart of the realm, and be ready to set fire on
the commonwealth, as was excellently shadowed by the
Trojan horse in VirgiPs second book of his /lOneid, where a
few men in the heart of the city did more mischief in a few
hours, than ten thousand men without the walls in ten years.
"Secondly, tempore pacis, for so might many aliens born
get a great part of the inheritance and freehold of the realm,
whereof there should follow a failure of justice (the supporter
of the commonwealth) for that aliens born cannot be returned
of juries for the trial of issues between the Icing and the
subject, or between subject and subject."
Blackslone, who, however great may be his merits,
is ever ready, it must be acknowledged, with an
apology for a bad law, says, in justification of
this:
"Tf an alien could acquire a permanent property in lands,
he must owe an allegiance, equally permanent with that pro-
perty, to the King of England; which would probably be
inconsistent with that which he owes to his liege lord;
besides that thereby the nation might in time be subject
to foreign influence, and feel many other inconveniences
Wherefore, by the civil law such contracts were also made
void; but the prince had no such advantage of forfeiture
thereby, as with us in England Among other reasons
179
which might be given for our constitution, it seems to be
intended for the alien's presumption in attempting to acquire
any landed property; for the vendor is not affected by it, he
having resigned his right, and received an equivalent in
exchange."*
It must be admitted that the reasons thus given
are of a most shadowy and unsatisfactory character,
and such as altogether fail to justify the law. No
one can seriously believe that foreigners would ever
acquire real property in this country in such numbers
as to endanger the safety of the State, or to inter-
fere with the administration of justice by lessening
the number of persons qualified to act as jurymen.
Landed property would still continue to contribute
to the burdens of the State, though in the hands of
foreigners.
All that would happen would be that individual
foreigners, settling in this country for the purpose
of trade or residence, or on marriage, or to whom
landed estate might devolve hy inheritance, would
not be under the necessity of procuring themselves
to be naturalized in order to be capable of acquir-
ing realty.
If it be asked what advantage is to be gained by
thus assimilating foreigners to natural born subjects,
the answer is that looking to the present state of the
traffic and intercourse of nations, the frequency of mar-
riages between foreigners and natives, and the claims
to property and other rights thence arising, it is for
the common convenience that by the common under*
* 1 Com. 372.
N
180
slanding and comity of nations, the inhabitants of
each particular State shall enjoy, in other countries,
in respect of civil rights, the same advantages as the
native, without the necessity of sacrificing their na-
tionality to obtain them; and that even in time of
war the rights thus conceded to the alien shall be
respected
The recommendation of Her Majesty's Commis
sioners u that the present disabilities of alienage, in
respect of the holding and inheritance of land, shall
be abolished altogether," will, therefore, it is hoped,
be readily assented to. The Commissioners add:
u It has been suggested that, in time of war, danger
might occasionally arise from the possession of land
by aliens. We thinlc it sufficient to say that this is
a danger against which, should it be deemed serious
enough to demand special legislation," the Commis
sioners do well to put this doubtingly u it would not
be difficult to guard-"*
The report of the Commissioners appears to assume
that the removal of the incapacity to hold land is the
sole motive with aliens for seeking to become natural-
ized It docs not notice another, and perhaps still
more important, head of the incapacity of aliens,
namely, that of being unable to own British ships. |
Should the law in this respect be relaxed? The
answer will be readily in the negative, so far as
aliens in general are concerned An alien who owes
no allegiance to the State, and who, when on the
seas, is no longer amenable to our laws, can have no
* .Report, p. 7. t Sec ante, p. 149.
181
claim to the pi-otection of the British flag, in respect
of a species of property, which, unlike real estate,
may, at any moment, be withdrawn from British
dominion altogether. But whether a foreigner settled
and domiciled in this country, under circumstances
which would entitle him, according to the usual
course, to a certificate of naturalization, might not
be permitted to be an owner of British shipping,
so as to supersede the necessity of a naturalization
which, in reality, gives no British nationality, is
another, and a very different question.
By the 18th section of the Merchant Shipping
Act,* persons made denizens or naturalized can only
be owners of British shipping, provided that during
the whole period of their being so, they are and con-
tinue to be resident in some place within Her Majesty's
dominions, or, if not so resident, members of a British
factory, or partners in a house actually carrying on
business in the United Kingdom or some other place
within Her Majesty's dominions, and have taken the
oath of allegiance to Her Majesty.
The condition of continued residence, or of being
a member of a British factory, or of a firm established
within the British dominions, thus required in addi-
tion to naturalization, affords a material security for
the naturalized owner continuing within the jurisdic-
tion of the State and remaining amenable to its
authority. With this security, naturalization it is
submitted might well be dispensed with, seeing that
it now becomes inoperative as soon as residence
• 17 and 18 Vic. c. 134.
n2
182
"1
ceases; or, if any fuither security were required,
a license from the Board of Trade, after satisfactory
proof that the foreigner was bond Jide settled in the
country, might be required as a condition of the right.
Tf aliens were under such circumstances enabled to
own British shipping, as well as to hold real pro-
perty, all further necessity for naturalization, except
with the object of a change of nationality would cease
to exist.
It has been shewn that, in dealing with the capacity
of aliens, many countries hav e based the concession of
civil rights to the subjects of other nations on the
condition of reciprocity. But the principle is an
unsound one, as it proceeds on the notion that, in
j conceding civil rights to foreigners, a nation derives
! no advantage except such as accrues to its own sub-
/ jects from the capacity for civil rights in other
• countries But the foreigner who brings capital, in-
/ dustry;or intelligence into the countiy, gives good con-
sideration for the benefit he receives. I le adds a useful
and profitable member to the social, though not to
the political community. Her Majesty's Commis
sioners have, therefore, done wisely in recommend-
ing that an alien shall enjoy the same civil rights
as the subject, without any reference to a corrc
sponding provision in his own country.*
u * Some countries have contented themselves with sunp]y grant-
ing, in general terms, the same rights to aliens as their subjects
enjoy in the countries of such aliens. Hat an enactment couched
in such general terms is inexpedient, as if it be met by a similar
_ law on the part of another nation, no practical result is obtained,
The two negatives fail to make an affirmative.
183
Section 2. As to double Nationality.
We have seen the inconvenience and embarrass-
ment which may arise—more especially in case of
war—from a twofold nationality, in giving rise to
conflicting claims to the allegiance of the same in-
dividual, or to inconvenient claims of protection.
And we have seen that such twofold nationality
arises, either from a conflict of laws relating to
nationality of origin, whereby an individual becomes
the subject of two states at once, or from an acquired
nationality being added to, without doing away with,
that of origin.
Ought, then, this twofold source of nationality to
be left? The question appears to answer itself.
No man can satisfy a double claim on his alle-
giance made by two nations which are in conflict.
So long as the two nations are at peace, the
man of two nations, by obeying the laws of the
country in which he happens to be, may find
himself involved in no difficulty. Yet the con-
trary may happen. Take first the nationality of
origin. An individual being in fact a subject of State
A, and conceiving himself to be so, but residing for
purposes of business in State B, finds himself called
upon to discharge duties, or bear burdens, incidental
to the character of a subject of the latter. He
claims exemption as a subject of State A., and
calls on the Government of A to protect him. He
is told in answer that he is a subject of both States,
and that though, if in the territory of A, he would
be treated as the subject of A, yet having placed him-
181
self within the jurisdiction and power of B, however
he may have deluded himself with the notion of being
a subject of A and under the scgis of its protec-
tion, he is quite as much a subject of B, and must
fight the battles and contribute to the burdens of the
latter.
But what if as in the case already put war should
lake place between the two nations? To which is
he to adhere? Which allegiance is to prevail? Is
this, again, to depend on whether State A or State B
happens to have him within the grasp of its authority?
It should be remembered that allegiance is matter
of solemn obligation; and that so long as a man is
clothed with a given nationality, allegiance to the
State, in the person of its ruler or government, is
matter not of option but of duty, and, what is of
by no means indifferent, that the breach of such duty
may involve a man in no small danger.
It may be said, indeed, that no civilized country
would think, now-a-days, of holding a man responsi-
ble as a traitor to his allegiance, for being found in
arms in the service of a country in which he was
settled and to which he honestly believed himself to
belong. Such an application of the law of treason
would obviously be so cruel and unjust, that, probably
no government would be disposed to enforce it in
such a case, or even if so disposed, would incur
the odium of such a proceeding; to say nothing
of the danger of provoking reprisals on its own
prisoners. It is probable, that no government would
think, in our days, of putting a man circumstanced
like Apneas Macdonald on his trial But the fact
185
that conflicting laws relating to nationality and alle-
giance can in the present state of things no longer be
applied, and that in a case of divided allegiance, the
question now must be to what State the individual
belongs—not theoretically and in contemplation of
law, but practically and in reality—is in itself a very
cogent reason for placing the law, not only of this
country, but, if possible, the law of nations also, on a
uniform and more enlightened footing. And even
though it may be true that no Government in these
times would enforce the law of treason against a man,
who, owing a double allegiance, had attached him-
self to one country exclusively, yet, as has been
before pointed out, cases may well be imagined
in which a man's connections and intercourse with
both countries might have been so equally divided as
to expose him to be deemed a traitor to the one
against which he might be found serving.
The same observations apply to a double nation-
ality arising from naturalization in a second country,
when that of the country of origin continues, though
here, no doubt, it may be said that it is the fault of
the person himself who has voluntarily placed him-
self in this position of difficulty.
But there is another and a still more important
point of view in which the question must be looked
at, and in which it is indifferent whether the double
nationality arises from origin or from naturaliza-
tion. The matter must be looked at not only with
reference to the interests of individuals, who may find
themselves in the embarrassing position of having to
choose between two masters, each of whom may hold
186
out the penalties of treason as the alternative of obedi-
ence, but also with reference to the interest of the
State It must be remembered that the obligations
of sovereign and subject, of state and citizen, are
reciprocal, and that, where the one owes allegiance,
the other owes protection. And though it may
be true that practically an individual subject may
have no means of enforcing this right against
the Slate, yet no government can be wanting in
the discharge of this obligation, and fail to afford
protection, according to ils ability and means, to a
subject suffering a wrong at the hands of a foreign
power, and thus disappoint just and legitimate ex-
pectations, without seriously compromising its own
character and dignity. It is therefore manifestly the
interest of every government not to be exposed to
having its protection claimed, and to becoming in-
volved in disputes with other powers, on behalf of
persons, who, though nominally and in contempla-
tion of law its subjects, are but unprofitable sub-
jects, being in fact settled elsewhere, and contribu-
ting nothing to its wealth or strength It is
equally to its interest not to be compelled to re
fuse protection to undoubted subjects lest by inter-
fering in their behalf it should do violence to the
rights of other powers. That governments may be
exposed to claims of this sort, and that embarrass
ment may ensue therefrom, experience has abundantly
shewn Nor has the course taken on such occasions,
in order to avoid collision with other powers, always
been, as we have seen, of a character altogether dig-
nified or satisfactory.
187
It is obvious that the evil would be remedied if, by
a law common to all nations, the rule as to national-
ity of origin were everywhere the same, and natu-
ralization by a second country had the effect of super-
seding the allegiance due to that of birth. It seems,
then, impossible to doubt that it would be for the
common advantage of governments and subjects if
a uniform rule were everywhere adopted. But then
what should that rule be? And, first as to nationality
of origin. Should descent or place of birth be the
determining cause? The nations of Continental
Europe have decided in favour of descent. "Na-
tionality/' says Dr. Bar, in his profound and learned
work on International Law, w is by the law of all
nations''—he should have excepted that of this
country—u primarily dependant on descent. Almost
everywhere the nationality of the parent decides
without reference to the place of birth; and this must
be acknowledged to be the right rule, seeing that
nationality essentially springs from descent!'*
Everything no doubt turns on the position that na-
tionality springs from descent—which may perhaps be
best tested by the question, whether, if the nationality
of a child born in a different country from that of his
father were not determined by positive law, and it
were left to his own choice to select the country to
which he should belong, he would prefer the country
of his father or that of his place of birth. It can not
be doubted that, in the vast majority of instances,
he would select that of the father. And the reason
is obvious. Personal attachments are stronger than
* Bar, Internationales Privat und Strafrecht, p. 91, § 32.
188
local ones The place of birth is an accident; the
associations connected with it are fleeting and uncer-
tain; while the domestic tics and the relations of
family and kindred are powerful and enduring. The
child, as soon as he can think and feel on the sub-
ject, learns to associate the idea of his own nationality
with that of his father. It would be a source of pain to
him to be told that by reason of having been born in
another country he was to be of a different nation from
his father. The impression thus produced in early
youth remains, and strengthening with advancing
years develops itself into the national attachment
which we designate by the term of patriotism
Descent, therefore, affords the true rule for deter-
mining nationality. This being so, it is obvious, that
in adapting our law to this principle, there would
be the two-fold advantage, first, that we should be
placing the law on the right foundation, secondly,
that we should accomplish the all-important object
of bringing it into unison with the law of other
countries; a result which cannot otherwise be ob-
tained, inasmuch as it would be at once idle and
presumptuous to propose to other nations to adopt
a false principle in order to adapt their law to ours
To the general rule that nationality should spring
from descent there should however, by general agree
ment, be two exceptions. There are cases where,
the father having settled and become domiciled in
a foreign country, the child has been born and
brought up in it, and purposing to remain in it per-
manently all his associations and expectations
being centered there has learned to consider himself
189
as belonging to the country of his birth. It may be
well to enable a person under such circumstances to
claim citizenship in the country of birth.
Again, where for two generations the ancestors of
a person have been domiciled in a foreign country,
an opposite presumption may fairly be made to that
which arises in the first generation, and it may be
assumed, in the absence of a positive declaration to
the contrary, that the descendant of the foreigner has
become so identified with the country of birth as to
prefer its citizenship to that of his forefathers. He
may therefore be treated as belonging to the country
of birth, subject however to his being at liberty to
elect to belong to the former, and declaring accord-
ingly within a given time, as is provided by the law
of France and other countries which have followed
the French code.
But it is plain that to make these exceptions work
harmoniously, there should be, what in the present
state of international law does not exist, an under-
standing among nations—and effect should be given
to this understanding by law—that, on the election
of the country of birth in the one case, and on the
absence of the rejection of it in the other, the nation-
ality by descent should entirely cease. Without such
an understanding, there must necessarily be a conflict
of jurisdiction between the country of descent and
the country of birth. The exceptions to the general
law should therefore be based on reciprocity in the
country of the parents ; and where no such recipro-
city exists, as would be the case, for instance, with
190
Austria or Prussia, the exception ought not to be
allowed
Tf the views thus propounded as to the principles
on which the law relating to the nationality of origin
and the exceptions to it should be founded are right,
the recommendations of Mer Majesty's Commis
sioneis are certainly open to considerable exception.
The Commissioners propose in the first place that
"All persons born within the dominions of the Crown
should be regarded by British law as British subjects by
birth, except children born of alien fathers and registered as
aliens.
"That provision should be made for enabling children,
born within the dominions of the Crown, of alien fathers, to
be registered as aliens; and children so registered should be
thenceforth regarded as aliens The child, if not so regis-
tered on his birth or during his minority by his father or
guardian, should be permitted to register himself as an alien
at any time before he has exercised or claimed any right or
privilege as a British subject."
Tn other words birth within the British dominions,
irrespective of parentage, is still to constitute a
British subject; with a reservation however, in the
case of the child of an alien parent, of a right of the
parent to register the child as an alien, and of the
right of the child to reject the character of a British
subject within a year after attaining majority by a
like registration thus reversing the rule of the
foreign law which makes it incumbent on the child
of the foreigner to claim nationality. To a limited
extent, no doubt, the proposed alteration would
be an improvement on the present law, inasmuch
191
as it would enable a person wlio did not wish
to be a British subject to divest himself of that cha-
racter. But practically the result would be to per-
petuate the present law with all its attendant confu-
sion. As is pointed out by Mr. Vernon Harcourt,
in many instances the foreigner would omit, from
inattention or indifference, especially if he quitted the
country at an early age, to take the necessary steps
to avoid becoming a British subject. But a still more
serious objection is to be found in the conflict with
the law of other countries which must arise from
permitting British nationality to follow on birth
within British dominions, a conflict which it is
agreed on all hands that it is desirable if possible to
remove.
And, with all possible respect for the distinguished
persons of whom the Commission was composed be
it said, the reasons assigned by them appear any-
thing but conclusive. The following is the language
of the Report:—
"The rule which impresses on persons born within Tour
Majesty's dominions the character of British subjects is open
to some theoretical and some practical objections, of the
force of which we are aware. But it has, on the other hand,
solid advantages. It selects as the test a fact readily prove-
able ; and this, in questions of nationality and allegiance, is
a point of material consequence. It prevents troublesome
questions in cases, (numerous in some parts of the British
empire,) where the father's nationality is uncertain; and it
has the effect of obliterating speedily and effectually disabili-
ties of race, the existence of which within any community is
generally an evil, though to some extent a necessary evil.
Lastly, we believe that of the children of foreign parents,
192
born within the dominions of the Crown, a large majority
would, if they were called upon to choose, elect British na-
tionality. The balance of convenience, therefore, is in favour
of treating them as British subjects unless they disclaim that
character, rather than of treating them as aliens unless they
claim it. The former course is, of the two, the less likely to
inflict needless trouble and disappoint natural expectations"
Of the four grounds thus given, the first and last, it
is apprehended, are alone applicable to this country.
With regard to the second and third grounds, namely,
that the present rule with respect to the place of birth
a prevents troublesome questions in cases, numerous
in some parts of the British empire, where the father's
nationality is uncertain," and uhas the effect of obli-
terating speedily and effectually disabilities of race"
as the .Report affords no explanation of what is hereby
meant, or what class of fathers are referred to as being
of an u uncertain nationality," or what are the u disabi-
lities " of race which are to begot rid of, it is difficult
to appreciate the force of the argument. But, if it may
be assumed that these grounds have no reference
to our relations with foreign countries, and are only
applicable to some particular portions of 11 erMajesty's
dominions, the answer would appear to be that the
advantages referred to might be attained by special
legislation, without interfering with the adoption of a
rule which would be convenient here and which
would remove the conflict of law existing between
this and other nations
The first ground assigned by the Commissioners,
namely, the readiness of proof arising from taking the
place of bhth as the test of nationalUy, is no doubt
193
entitled to some weight. But the advantage cannot,
surely, be such as to outweigh that of removing the
existing conflict of laws and the confusion arising from
it, and of bringing our own law into harmony with
that of other nations. Other countries have not so
deemed, nor do they appear to have found any practi-
cal inconvenience from the adoption of a different rule.
The last ground taken by the Commissioners, namely,
that the majority of children born of aliens in this
country would prefer to be British subjects, to the
exclusion of the nationality of their parents, is a gra-
tuitous assumption, as to which, no proof of the
assertion being offered, a contrary opinion may with-
out presumption be entertained. It is more pro-
bable, as is asserted by Mr. Harcoui t, that such a
rule would rather have the effect of imposing the
quality of British subjects on a number of persons
who neither seek nor desire it. But even if the fact
were as assumed, where would be the hardship of
calling upon such persons, at all events for the first
generation, to declare, as is required by the Con-
tinental law, their election to become British sub-
jects on attaining their majority? Ought the trifling
inconvenience which would thus be occasioned to be
put in competition with the object which the Com-
missioners themselves profess a desire to promote,
that of doing away with double nationality? More-
over, as is observed by two of the Commissioners,
Baron Bramwell and Mr. Bernard, such a law is in-
consistent in principle with the recommendation that
the child born abroad of a British father should be
regarded by British law as a British subject.
191
The recommendation of the Commissioners is the
more open to objection that it docs not even mate the
domicile of the alien parent a condition of the British
nationality of the child. A merely casual birth in
the country is to have the effect of conferring the
character of a British subject. A person thus born
within British territory might leave the country at an
early age, and claim at any time the rights and pri-
vileges of a subject. It is a fact worthy of note that,
strict as is our law with reference to the ownership
of British shipping, a person born in Kngland of alien
parents, or one born of British parents in a country
where birth gives a right of citizenship, though domi-
ciled in the foreign country, may, if he happens
never to have had occasion to take an oath of allc
giance to a foreign power, be an owner of British
ships, and sail underhand be entitled to; the protection
of the British flag.
As two of the Commissioners, Baron Bramwell
and Mr. Bernard, well observe:
"None of the duties of a British subject could practically be
enforced against a person who, though born here, had always
resided in the foreign country to which his father belonged.
I le could not, if he happened to be here, be justly made amen-
able to any duties other than such as the law imposes on all
foreigners, .But he would, nevertheless, possess the common
rights of a subject, without having any real title to them
Me might renounce indeed, if he pleased, his British allegi-
ance. .But why should he renounce that which might be a
benefit to him and could not be a burthen? Tf, on the
other hand, he were regarded as alien by birth, he could
(provided he were resident here) obtain the advantages of
British nationality by undertaking its obligations,"
195
Mr. Vernon Harcourt, also a dissentient from the
views of the majority of the Commission on this point
argues powerfully as follows:—
"If it is desirable to recast the doctrine of nationality by
such extensive changes as those proposed in the Report, it
seems expedient to found the whole system on some intelli-
gible and self-consistent principle. It would be difficult to
suggest any reason for adopting the rule by which the
nationality of the father determines that of the child in the
case of the children born of British fathers abroad, which does
not equally apply to the case of the children born of
foreign fathers in England; and to lay down an opposite
rule in the two cases seems not only indefensible in principle,
but to be a course which, in respect of policy, is very likely
to be misunderstood by foreign governments. If, whilst we
assert that the child born of an Englishman abroad is a Brit-
ish subject, we also claim that the child born of a foreigner in
England is likewise a British subject, it will be thought that
acting for our own advantage on inconsistent principles we
are grasping at the combined chances of a double event.
"It seems very desirable, as is stated in Section VTL of
the Report, to lay down some rule in which all or most
States are likely to agree. Now the rule of determining the
nationality of the child 'prima facie by that of the father is
adopted by all States as regards the children born of their
own subjects abroad. As regards the children of foreigners
born in the realm, it is adopted by all States except England J
and America. It is obvious, therefore, that this is the rule j
by the adoption of which will be most readily obtained that |
consent of nations which on such a subject is of capital j
importance. It is stated in Section VII. of the Report that
'we have endeavoured to diminish the number of cases in
'which one who by British law is a British subject is re-
i garded by foreign law as a foreign subject, and to obviate
O
196
'as far as possible the difficulties and inconveniences arising
r from a doable allegiance/ Tn that object I entirely con-
cur; but it seems to me that it is not accomplished but
rather defeated by laying down the rule that the child born
of a foreigner in Kngland is prima facie a British subject,
a Hy this rule persons are clothed with the character of
British subjects, and become entitled to all its benefits, who
have no real connexion with the community, and who ought
to have no claims upon it. Tt is not probable that any
foreigner accidentally resident in this country would dis
claim the citizenship for his child which the law would con-
fer, for the simple reason that the child would be enabled to
take all the benefits, but could in no case be really made to
fulfil the obligations of a British subject. Under this rule
thft child of a foreigner born here might return to his own
country in his infancy, and he would thereafter possess, when-
ever he chose to claim them, not only for himself, but (since
he is a natural-born British subject) for his children also, all
the benefits of the character of a British subject, whilst it is
abundantly clear that neither he nor his children could ever
be called upon to perform any of its duties This is the
practical mischief of the present rule, and to re enact it
would be to give fresh authority to a principle the inconvc
nience of which is sufficiently apparent Nothing can be
more politically inexpedient than that this country should
be exposed to the claims of a class of persons who have no
interest in its welfare, and who, neither by origin or
domicil, have any community with its affairs, On the other
hand, in the case of foreigners and their children who really
desire to incorporate themselves and their interests in the
common stock of this country, and to embark their fortunes
with onrs, there seems neither hardship nor inconvenience
in requiring that they should evidence their intention to
change their nationality and adopt a new domicil by some
formal act which, whilst it would establish their British
197
nationality, would at the same time terminate their foreign
allegiance."
Nothing more seems to be needed to show that,
whether with reference to principle, or to the impor-
tant object of establishing a uniformity of system with
other nations, or to the "balance of convenience,"*
descent, and not locality of birth should be accepted^
as the primary source of nationality. /
A few words remain to be said as to the recom-
mendation of the Commissioners that u every child
"born out of the dominions of the Crown, whose
44 father at the time of the birth was a British subject,
"should be regarded by British law as by birth a
41 British subject, provided the father were bom
"within the dominions of the Crown, but not other-
ic wise"*—in other words that where two generations
have been born out of the dominions of Great Britain,
British nationality shall be lost. This position
can only be admitted where both generations have
been settled in the country of birth. And this,
probably, is what the Commissioners intend, as
in another part of the report they say that u the
44 transmission of British nationality in families settled
a abroad should be limited to the first generation/'
As has been shewn, it is only w-hen, by reason of a
family having become permanently settled in a
foreign country, the presumption in favour of the
nationality of descent being preferred fails, that it is
justifiable to treat the descendant of a natural sub-
ject as other than a subject. And, even in the second
# Report, p. 9.
o 2
198
generation^ the opposite presumption arising from
continued domicile should be open to be rebutted by
the declaration of the parly, and an opportunity
should be afforded to him to insist on the nationality of
his fathers. The proposal of the Commissioners as it
now stands would exclude the child of a British
subject where, without any settlement in a foreign
country, the child and grandchild of a British sub-
ject had been born out of the country during merely
temporary residences abroad, or from merely acci-
dental circumstances, without any intention on the
pait of either grandfather or father to abandon his
country or cease to be a subject. It is plain that
such a result ought not to be sanctioned.
Section 3. Amendment as to Law of Allegiance.
We have seen that^ by the law of England, al-
legiance is indelible, and cannot be done away
with, even with the assent of the Sovereign to whom
it is due. We have seen that by the present law of
every other European state, the nationality of origin
way be put an end to; although in some countries the
authorization of the Government may be required to
prevent the act of the individual in denationalizing
himself from being an offence against the State It
seems impossible that the present law of England can
any longer be maintained. It is inconsistent with a
due regard to the happiness and welfare of mankind
to deny to every man the right of seeking a home
where he may find readier and more profitable em-
ployment for his industry, or ampler scope for enter-
199
prise, or even institutions more congenial to his opi-
nions or tastes. Independently of this consideration,
the extent of emigration now constantly going on, if
not with the actual encouragement, at all events with
the tacit sanction of Governments, carries with it as a
necessary consequence the right to sever the original
relation of sovereign and subject, and to adopt a new
nationality. It is computed that from 1816 to 1868,
little more than half a century, six millions and a half
of people have emigrated from Europe to the terri-
tories of the United States; and the stream of emi-
gration still flows incessantly on.* Of the numbers
whom the crowded state of the population of the old
countries induces annually to seek new homes and fresh
fields of enterprise in distant lands, a considerable por-
tion find their way to North America, and of these a
large proportion are emigrants from this country.
Finding a home in the territory of the United States,
these settlers owe allegiance to the country which re-
ceives and protects them, and which has a right to insist
in return that they shall become its citizens, and be
ready to defend its territories andupholdits institutions.
It is in the highest degree unjust to refuse to persons
so circumstanced the right of complete expatriation,
and to withhold from them the right of severing
the political ties which bind them to this country,
and of transferring their allegiance to the State with
which their own interests and those of their posterity
are henceforth to be inseparably connected. Her
* Eeport of Committee of House of Representatives. Appen-
dix to Eeport, p. 99.
900
Majesty'& Commissioners are, therefore, well war-
ranted in saying that u the doctrine of the common
law is neither reasonable nor convenient," and in re
commending that the law shall be placed on a dif-
ferent footing. The arguments on the subject are well
summed up by the Commissioners, in the following
passage of the Keporl, in which, speaking of the rule
of the English law, they say:
"Tt is at variance with thoso principles on which the
rights and duties of a subject should be deemed to rest; ft
conflicts with that freedom of action which is now recognized
as most conducive to the general good as well as to indivi-
dual happiness and prosperity; and it is especially inconsis-
tent with the practice of a State which allows to its subjects
absolute freedom of emigration It is inexpedient that
British law should maintain In theory, or should by foreign
nations be supposed to maintain in practice, any obligations
which it cannot enforce and ought not to enforce if it could;
and it is unfit that a country should remain subject to claims
for protection on the part of persons who, so far as in them
lies, have severed their connexion with it."
The position that a subject can throw off his alle-
giance and become the subject of another State must,
however, be taken with some qualification There
are circumstances under which the right can-
not be exercised without committing a crime against
the law of the country which is abandoned There
are duties which a subject owes to his country, in
return for the protection which it has so far afforded
him To violate these duties, or to abandon his own
country in order to evade performance of them, should
always constitute an offence for which, if found
201
within the jurisdiction and power of the original
country, the expatriated subject should be liable to
its law7 and in respect of which naturalization by
another State should afford no defence. Thus, where
the subject, on attaining a certain age, is bound to
military service, and leaves the country to avoid it—
where a soldier on actual service deserts to the enemy
—or where expatriation takes place in time of war to
the enemy's country—offences are committed against
the law of the country of origin, which cannot be
purged by subsequent naturalization elsewhere. The
Committee of the House of Representatives, in their
report already referred to, vehemently as they uphold
the doctrine of the dissolubility of allegiance, fully
admit this doctrine.
"A subject/' they say, "may justly be held to the com-
plete performance of all obligations actually due to the
Government at the time of separation. In a period of war,
or when public peace is threatened, every form of political
society is justified by natural as well as by municipal law in
holding its members to the fulfilment of their duties until
the crisis is past. In moments of public peril it might with
justice forbid emigration so long as the common danger con-
tinued.^
But ought this to have the effect of vitiating the
naturalization which may ensue? Different opinions
are entertained. The principle of the French law is
at once dignified and wise. Far from holding to his
allegiance the man who under such circumstances
abandons his country, it treats him as unworthy to be
numbered amongst its citizens, and as one whom it is
undesirable to retain, while it punishes the delinquent
202
who is thus wanting in his duty to his country, if it
afterwards finds him in its power, as it would punish
a stranger who had committed an offence within its
territory.
Another question presents itself before we pass away
from this subject We have seen that several States
require prior residence, and some a declaration of
intention to become a citizen, as a condition of
naturalization Shall a person who quits his own
country, to take up his abode in a foreign one, with
the intention of becoming a citizen of the latter,
and of finally and for ever renouncing his own,
still continue to be a subject of the old country during
the probationary period which must elapse before he
can be admitted as a subject of the new? The
answer should unhesitatingly be in the negative, at
all events so long as the expatriated subject remains
in the country to which he has" voluntarily trans
ferred himself Some jurists, indeed, applying to
nationality the principles of the law of domicile,
contend that the old nationality is not put off till the
new one is acquired V5ut it should be borne in mind,
that the subject, who thus quits his country, "sans
esprit de retour," and declares his intention to become
the citizen of another State, has done all that in him
lay to sever the tics that bound him to his original
country; has removed himself from the sphere of its
laws and its authority; has become in every sense,
a useless and unprofitable subject It seems unrea-
sonable to say that, even in theory, a person so cir-
cumstanced can claim the protection to which, it must
203
be remembered, a subject is only entitled as the
corresponding obligation to that of allegiance.
Section 4. Amendments as to Naturalization.
In considering what alteration is required in the
law as to naturalization, it is necessary to consider
first, the mode by which and the circumstances under
which it may be acquired; secondly, what should be
its effects. As to the first, assuredly nothing short of a
public and authentic act, duly recorded and capable of
being proved, ought to have the effect of changing
nationality.*
Domicile,—which, in legal phraseology, is neither
more nor less than a name for home, and the establish-
ing of which may be said to be the settling in a given
locality with a present intention of permanently abiding
there,—has been suggested by some writers as sufficient
to constitute a person a citizen of the country in which
* Publicity and ready means of proof of a change of nationality
are of course most important in preventing disputes. "Wherever,
therefore, an option is afforded under given circumstances of
electing between two nationalities, the individual exercising the
option, should be bound to make a declaration before a Magistrate
or other appointed authority, which declaration should be duly re-
corded. In this country such a declaration might be made before
a Justice of Peace, and afterwards recorded at the Quarter Sessions,
and a return might be made periodically to the Home Office.
If nationality should become, as it ought, matter of international
concern, it would be highly expedient that an arrangement should
be made for communicating the names of persons naturalized, or
electing between two nationalities, to the agents of the States con-
cerned, to be by them transmitted to their governments, so that
no dispute as to the fact could afterwards arise.
It is established; and we have seen that, in some
countries, the being1 domiciled for a ceitain period
gives the right of citizenship. But this position is
altogether inadmissible, and the Commissioners have
done wisely to reject it f^or, not only, as has been
pointed out, is domicile a matter of judicial, and
often of difficult inquiry, and therefore an element not
to be introduced if it can be avoided, but it is quite
possible for a person to have two domiciles, as where
he divides his time so equally between two places
of residence, that it is impossible to say that
either of them is his principal residence.* More
over, it by no means follows that because a person
changes his domicile, even without any animus
revertendt, he intends also to divest himself of his
original nationality, and to transfer his allegiance to
another country. Jbrom considerations of health or
convenience, or predilection for a particular climate or
locality, a man may quit his own country, intending to
spend the rest of his life in a foreign land, and yet not
have the remotest in ten tion of changing his nationali ty.
Jurists have for convenience, in determining a man's
personal status or capacity, or in administering his
effects, or in matters of tcstamentaiy disposition, looted
to domicile as determining by what law a man's rights
and liabilities should be ascertained Hut it is a very
different thing to mate domicile determine the qucs
tion of nationality. Indeed, it may be doubted
* Sco fhillimore on Domicile, ch 3, p. 15. Slory, Conflict of
Tiaws, chap 3
205
whether jurists have not gone too far in giving weight
to the fact of domicile, even in matters of personal
property. In a recent case in the House of Lords,*
Lord Cranworth and Lord Kingsdown held that, even
for testamentary purposes, in order to lose a domicile
of origin, and acquire a new one, a man must intend
to change his nationality as well as his abode, or to
use a phrase adopted by Lord Cranworth, quatenus in
illo exuere patriam.^
"It is not enough/' said Lord Cranworth, u that
you merely mean to take another house in some other
place, and that on account of your health, or for some
reason, you think it tolerably certain that you had
better remain there all the days of your life. That
does not signify j you do not lose your domicile of
origin, or your resumed domicile, merely because you
go to some other place that suits your health better;
unless, indeed, you mean either on account of your
health, or from some other motive, to cease to be a
Scotchman and become an Englishman, or a French-
man, or a German. In that case, if you give up every-
thing you left behind you and establish yourself else-
where, you may change your domicile. But it would
be a most dangerous thing in this age, when persons
are so much in the habit of going to a better climate
on account of health, or to another country for a
variety of reasons, for the education of their children,
or from caprice, or for enjoyment, to say that by
# Moorhou8e v. Lord, 10 Ho. of Lords Cases, 272.
-f Lord CraQWorth had previously held the same language in
the prior case of Whicker v. Hume, 8 Ho. of Lords Cases, p. 159.
206
going; and living elsewhere, still retaining all your
possessions here, and keeping up your house in the
country, you make yourself a foreigner instead of a
native. Tt is quite clear that that is quite inconsistent
with all the modern improved views of domicile 19
Tf this doctrine applies to civil rights, it will ob-
viously apply with still greater force to the matter of
nationality and the political rights which are in-
volved therein
Lastly, a reason for not permitting domicile of
itself to confer nationality is that this has the effect of
excluding the exercise of that judgment which ought
always to be exercised by the proper State authority
as to whether a person applying to be naturalized is,
with reference to character and other circumstances,
one who ought to be admitted to the status of a
subject
Yet, though domicile may not be sufficient to confer
nationality, there can be little doubt that it ought to
be a preliminary condition to naturalisation, as no
one can have any claim to be admitted, or ought to
be admitted, to the status of a subject, who docs not
settle permanently in the country and identify his
own interests with those of the community.
But while it may be right to insist on actual
domicile as a condition of naturalisation, the question
whether any period of prior residence should also
be required admits of a different consideration Her
Majesty's Commissioners have recommended that in
order to be naturalized a person shall have resided
for two years. Prior residence is no doubt exacted in
207
most of the foreign States; but the tendency of recent
legislation has been materially to reduce the time; and
whether such residence should be made an absolute
condition precedent is open to considerable doubt. The
value of prior residence is only that it affords a test of
the sincerity of the intention to settle permanently in
the country; and in this point of view, it is, no doubt, a
circumstance material to be taken into account in
ordinary cases, in determining whether naturali-
zation should be granted. But instances may
frequently occur in which the intention on the
part of a person seeking to be naturalized to
remain permanently in the country may be abun-
dantly manifest, notwithstanding his settlement in it
may have been recent. The acquisition of real estate,
by purchase, inheritance, or marriage, the establish-
ment of a manufacture or trade, coupled with willing-
ness to submit to the loss of the nationality of origin,'
which ought always, under any sound system, to attend
on naturalization, may be sufficient to satisfy the Officer
of State, to whom the authority to grant naturalization
is intrusted, of the propriety of admitting the party to
the status of a subject, notwithstanding the absence of
prior residence. In such cases the condition of
prior residence would seem to be superfluous, and
the expediency of the recommendation of the Com-
missioners that a prior residence of two years should
be uniformly required appears more than doubtful.
At all events, there should be a discretionary power
to dispense with it in certain cases.
The condition of continuing residence, such as is
208
now required on natuialization in this country, is
equally unnecessary, so long as the acquired nation-
ality continues and is not superseded by a return
to that of origin or by naturalization elsewhere. A
naturalized subject may have the same motives for
changing his residence as the natural born subject,
and ought to be treated in all respects on the same
footing. To insist, therefore, on continuing residence,
would be to treat the adopted subject in a harsh and
illiberal spirit, and appears wholly uncalled for. It
is not recommended by the Commissioners that this
condition shall be retained
We have next to consider what should be the
effect of naturalization, and this with reference to
its operation, fust, as to the former nationality, and
secondly, as to that to be acquired And as to both
the effect must be considered with reference not only
to the individual himself, but also to the members of
his family if he has one
Assuming that it shall be competent to every one
to transfer his allegiance from his parent country to
another willing to receive him, the effect of natuiali-
zation ought, by the common law of nations, to be
everywhere to supersede and entirely put an end to
\ the nationality of origin, even where by expatriating
»/ himself the subject has offended against the law of
i/ the original country and may remain amenable to
punishment should he return to it. It is only by a
comity of legislation in this respect that the desir-
able object of preventing a double nationality can be
accomplished
209
Next, as to the status and rights acquired. We
have seen that while, in all other countries, full
nationality is acquired by naturalization, though* in
some the higher political rights are withheld, by the
present practice in this country, the character of a
British subject fails to accompany the naturalized
subject beyond the confines of the realm; so that,
with the exception of being capable of voting at
parliamentary and municipal elections, the effect is
limited to the removal of civil disabilities.
But why, when other nations are liberally inviting
foreigners to become subjects and citizens, should
Great Britain decline to receive, on the same footing
as other nations receive foreigners into their ranks,
persons from other countries, who desire to place
their fortunes, their capital, their industry among us,
and who may become profitable and creditable
members of the community? Why say to the
subject whom you naturalize 44 We cannot trust you
with the character of a British subject beyond our
own shores, lest you should involve us in trouble or
controversy?"
If the restrictions in respect of civil rights, which
now operate to the prejudice of the foreigner, shall be
removed, and naturalization be granted only to such
aliens as really intend to become permanently, and
to all intents and purposes, British subjects, citizen-
ship in the full sense of the term should be conferred
by naturalization, as it used to be conferred by Act of
Parliament, before an idle jealousy of foreigners in-
troduced unnecessary restrictions, and a timid appre-
210
hensionof the embariassment which a double nation-
ality might give rise to, led to tin's singular species of
naturalisation, which, while it causes the original
nationality of the alien to be forfeited, fails to give
him, in substance and reality, that of this country in
return Her Majesty's Commissioners have recom-
mended that the present practice shall be discon-
tinued, and that in future all the rights of a British
subject shall follow on naturalization; audit is to be
hoped that this recommendation will be carried into
effect. K\em as regards political rights it would be
difficult to suggest any ground why a naturalized
subject should not enjoy the same rights as the
natural born subject. Tf a naturalized subject should
occupy such a social position, or exhibit such capacity
for public business as to mate a parliamentary consti-
tuency desire him for its representative, or that Mer
Majesty should be pleased to appoint him a member
of the Privy Council or to an office of trust, it may
be presumed that his presence will be an accession
to the public councils, or that his services will be
useful to the State. Kven if any ground existed for
a distrust of naturalized aliens as members of the
national councils or as holding offices of trust, it is
impossible that the number thus returned to Par-
liament or employed in the public service can ever be
sufficiently large to have the slightest effect on the
national interests. On the other hand, it is dcsiiable
to attach the newly admitted subject as much aspos
sible to the country of adoption, and not to leave
room for any feeling of hardship or wrong arising
211
from a sense of illiberal jealousy or ungenerous dis-
trust
The difference between denization and naturaliza-
tion has already been pointed out. It appears that,
though denization has fallen into comparative desue-
tude, it is still occasionally resorted to. Should it be
deemed expedient to continue to employ this process
for conferring the status and rights of a subject, the
same effects should in all respects follow from it
as will result from naturalization.
Next as to the family of the party naturalized.
And first as to the wife. Jurists are divided as to
whether the wife should lose her former nationality
when the husband changes his. Monsieur Fselix
asserts the affirmative. His learned editor, Mon-
sieur Demangeat, citing several French jurists,
maintains the reverse.* The question, however
seems scarcely to admit of serious discussion. The
identity of interest which exists between husband and
wife, and which leads in the foreign law to the
general rule—a rule which ought to be adopted in
our own—that the nationality of the wife shall follow
that of the husband, must apply as much to a substi-
tuted nationality as to that of origin. The consent
* Droit International, vol. i. p. 93, n. (a). On the discussion
of Article 214 of the Code Civil in the Council of State, Napo-
leon is reported to have said on this subject, " II j a une grande
difference entre une Franchise qui epouse un etranger et une
Francaise qui, ayant epouse un Francais, suit son mari lorsqu'il
s'expatrie: la premiere par son mariage a renonce a ses droits
civils; l'autre ne les perdrait que pour avoir fait son devoir."
V
212
given by the wife on marriage to exchange her na-
tionality for that of the husband may be taken as
equally applying to any nationality which he may
afterwards acquire in the place of the former one
Besides which, it may fairly be assumed that, in
the vast majority of instances, the wife is as much a
party to the expatriation as the husband
As regards the children, those born after the natu-
ralization should of course follow the nationality of
the father. Of those born before, a distinction should
be made between those who accompany the father
to the new country and those who do not The
latter should retain their nationality of origin As
regards the former, a distinction is again to be
made between those who have attained their ma-
jority and those who have not. Those who are
still minors, and who as such are still subject to
the authority of the father and form part of his
family, must be taken, at all events for the time, to
follow his nationality; and as it may fairly be pre
sumed that they will in the future remain in the
new country and desire to become its citizens, they
should be deemed to be such in the absence of any
declaration to the contrary. Hut, inasmuch as by
their biUh they have acquired a right to the nation-
ality of the country of bii th; it ought not to be in
the power of the parent to deprive them of it, if, on
arriving at full age, they desire to retain it j and a
reasonable time should be allowed them to reject the
nationality acquired by the father, and to claim that
the former country, without being subjected to the
213
necessity of becoming naturalized in it. The pro-
posal of the Commissioners that, on the naturaliza-
tion of the father, the children, if minors, shall ne-
cessarily assume the new nationality, ignores this
right, which should, it is submitted, be respected so
far as to afford the option above suggested.
Children who, at the time of the father's naturali-
zation, have attained their majority, being sui juris,
and capable of exercising their own judgment, and
at the same time capable of being themselves natu-
ralized, should be left free to follow their own course;
unless, indeed, it should be thought that, if still con-
tinuing to form part of the father's family, they
should be allowed (as is provided by the law of
France) within a certain period after the naturaliza-
tion of the father, to claim to become subjects of the
new country on settling themselves therein, without
the necessity of being naturalized. Thus the distinc-
tion between the children forming part of the father's
family who are minors, and those who are not, would
be that the former would have to declare their rejection
of the citizenship of the new country if they desired
to retain that of the old; the latter would have to
declare their election to adopt that of the new, if
they desired to acquire it.
When a woman by the death of her husband
becomes the head of the family, her naturalization
should carry with it the same consequences, as regards
the children, as would have attended that of the father
had he been living.
211
C II A Jp T K R V I T
COJSCT.USTOJN.
Thk results at which we appear to have arrived
are these:
1. That under a sound system of international law
such a thing as a double nationality should not be
suffered to exist.
2. That nationali ty of origin should be deri ved from
descent alone; except in the case of children born of
foreigners domiciled in the countiy of such childrens'
birth in the first generation, on a claim being made
within a fixed period after attaining majority in the
sccondinthe absence of a declaration that they desire
not to become subjects. Hut in both these instances,
in order to avoid the evil of a double nationality, the
right should be given only where a corresponding
law exists in the countiy of the foreign parent
3. That it should be free to every one to expatriate
and denationalize himself, and to tiansfer his allc
giance to another country.
A That the effect of naturalization should be to
do away altogether with the prior nationality.
5. That emigration with the intention of expatria-
tion and of becoming a citizen of another State should
have the effect of putting an end to the relation of
subject, unless, prior to naturalization, the party
should abandon the intention of becoming naturalized
215
in the foreign country and return to the country of
origin with the intention of remaining in it and of
resuming the character and status of subject.
6. That, though prior residence may properly form
an element in the consideration whether a person
should be admitted to be naturalized, no absolute
condition should be attached to naturalization, except
that of actual bond Jide domicile at the time of ad-
mission.
7. That, in respect of civil rights, with the single
exception of the ownership of British shipping, for
which settled residence, or even a license, should
be required, aliens should be placed on the same
footing as subjects, without any reference to the
principle of reciprocity.
8. That, as no one should be admitted to be natu-
ralized except such persons as intend to settle finally
in the country and to identify themselves with its
interests, it is advisable to admit the naturalized
alien to full political as well as civil rights, on the
footing of an ordinary subject, making no distinction
between his status as a subject at home and abroad.
9. That the nationality of the children of a per-
son thus changing his country, if born after his
naturalization, should follow that of the father. If
born before, and minors, they should be subjects
of the new country, with a right, however, of dis*
claiming its citizenship within a given period. If of
age, but still forming part of the father's family, they
should be at liberty, on declaring their desire, to
participate in the newly acquired nationality.
216
10. That the nationality of a married woman should
always follow that of the husband, whether original
or acquired, but on widowhood a woman should
be entitled to resume her original nationality on
returning and sctlling in her former country.
By a system of law, founded upon and giving effect
to these principles, aliens would be placed on the
footing which a generous comily should dictate; the
inconvenience of a double nationality would be pre
venled; every one would know where his allegiance
was due, without being exposed to the danger of
having conflicting claims made on it, and if in need
of protection, would know where to look for it;
governments would not be troubled by claims for
protection involving doubtful and embarrassing ques
tions of nationality; everyone would be at liberty
to act upon the maxim ubi bene, ibi patria, and to
seek fortune and happiness where he thought he was
most likely to /md it; and Governments might re
ceive eligible citizens into the community without
the fear of troublesome disputes or collision with
other powers
Much of what is here proposed, looking to what is
now the law of other nations, might be efleeted by
our own legislation; and the comity which should
exist among nations, not merely in the administration
of the law, but, as to matters of common interest and
concern, in legislation also, would probably induce
other States to meet in a corresponding spirit the
efforts which Her Majesty's Commissioners wisely
217
recommend to be made to settle this department of
international law on principles of reciprocity, and
would lead them to assist in bringing uniformity and
order into it, so as to prevent the possibility of future
dispute or conflict on questions of nationality.
THE END.
G. XOBMAN PBIKTEE, MAIDEN LANE, COYENT OXIDES.
UNIVERSITY OF MICHIGAN
3 9015 03340 2655
*