THE LORD CHIEF JUSTICE ON NATURALIZATION.* THE marvellous power of
summing up lucidly and cogently which Sir Alexander Cockburn is famed for bestowing on juries is here exercised for the benefit of the public and of our legislators. Taking the information conveyed in the appendix to "The Report of the Royal Commission on Naturalization and Allegiance" as his notes of the evidence, and the Report itself as the speech of the counsel for the plaintiff, the Lord Chief Justice brings us entirely round to his view that the plaintiff ought to have more than has been claimed for him, and that the defendant, who is represented only by Coke, Blackstone, and "inveterate usage," has not a leg to stand on. In other words, the conclusion arrived at by Sir Alexander Cockburn is that the English law of nationality ought to be changed, and assimilated to that of the Continental nations. The Report of the Royal Commission recommended that the ancient maxim of the common law which rendered it impossible for any British subject to divest himself of his alle- giance should be abrogated, but it proposed that nationality should still depend on birth and not on descent, and that the sons of aliens should, if born in England, be British subjects, unless they took certain formal steps to renounce that character. Here Sir Alexander is at issue with the majority of the Commissioners. But he has with him Baron Bramwell, Professor Bernard, and Mr. Vernon Harcourt, whom he calls one of the ablest public writers of the present day. We think, too, that the public will find strong reasons for adopting Sir Alexander Cockburn's view, in preference to that of the majority of the Commissioners. If the accident of being born in a country is, without anything else, to decide the question of nationality, the point must always be attended with uncertainty. But in almost all other countries, descent, and not birth, forms the criterion. Therefore, as one great object of inquiring into the present state of the English law is to put an end to conflicts between it and the laws of other nations, there can be the less reason for adhering to the ancient British custom, at the expense of both uniformity and consistency.
From a very early period it has been held in England that every British subject must be born within the dominions of the Crown, and that every one born within the dominions of the Crown was a British subject. A statute of Edward III. extended the privilege to children inheriting from parents who were British subjects, and after "children inheritors" had been turned into "all children" by statutes of Anne and George II., an Act of George III. included the second generation. But though the benefit of birth has thus been extended, the burden of birth remains unchanged, and this, in almost every instance of the child of a foreigner being born in England, leads to a double nationality. The child of a Frenchman is French by nation, whether born in France or elsewhere. But if such a child is born in England, it is English as well. It may divest itself of its French nationality if it pleases, but it cannot by any possibility put off its allegiance to the English Crown. That allegiance, as the Prince Regent declared in 1813, "is no optional duty which subjects can decline and resume at pleasure. It is a call which they are bound to obey ; it began with their birth, and can only terminate with their existence." In most Continental countries, an alien born within their territories has the option of taking their nationality. A child born of foreign parents in France may claim the quality of a Frenchman ; the grandchild of a foreigner, whose father was born in France, must disclaim that quality, unless be would rank as a French subject. This, at all events, is consistent. The child who is born in a country and wishes to settle in it, may fairly ask to be accepted as a citizen ; the child whose father has been born and has settled in a country, may be presumed to be already a native. But what object can there be in saying that the child who happened to be born rather suddenly at Dover during a few days' trip taken by the mother shall ever afterwards be claimed as an English subject, and shall be reckoned as a traitor if forced by the conscription to serve in a war against England ? One thing shows that the English theory has been virtually abandoned for some time past by the Government, and that is the laxity with which protection is accorded to those who are still called on for allegiance. It is evident that these two things are correlative (as Blackstone says, protection and subjection are reciprocal), and that the country which neglects one gives up its legal claim on the other. The use therefore of the following words as far back as 1842 is doubly significant :— "'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 • Nationality; or, the Law relating to Sat/eels and Aliens, considered with a View to Future Legislation. By Right Hon_ Sir Alexander Cockburn, Loll Chief Justice of England. London: Ridgway. 1869.
side were natural-born subjects, are themselves deemed to be natural- born subjects, and are therefore entitled 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.'"
Acting on this view of the law, the British Government held in 1842 that "the children of British fathers in Monte Video cannot be protected against the operations of the laws affecting the sub- jects of that country, unless the laws of that country do not admit the child of a foreigner to the rights of a subject." It held again in 1857 that neither the statutes passed on the subject of nation- ality, nor the general principles of English law would justify Great Britain in maintaining that the children of British subjects, if born abroad, were "British subjects within the true intent and meaning of a treaty with a foreign nation in which their case is not specially provided for." A year later, Lord Malmesbury wrote that such persons "are British subjects in England, but this cannot prevent their being considered and treated as Buenos Ayreans in Buenos Ayres." If this be so, then, what becomes of the case of a man who is a grandson of a natural-born English subject, but whose father, as well as himself, was born in France? By the English law he is a natural-born subject of England to all intents and purposes whatsoever. But if within a year after coming of age he does not formally declare before the prescribed authority his desire not to become a Frenchman, he is also a French subject. "Being subject to the conscription," as Sir Alexander Cockburn says, taking, indeed, another illustration, "he becomes a soldier. Suppose that, war taking place between England and France, the man is made prisoner. He is liable to be condemned and punished as a traitor." And yet how can that be, if "the effect of British statute law cannot extend so far as to take away from the Government of the country in which persons have been born the right to claim them as natural-born subjects, and if the same people may be British subjects in England and Buenos Ayreans in Buenos Ayres? This seems to us a puzzle beyond even those stated by Sir Alexander Cockburn. The legal theory is certainly bad enough, but it is beaten by its interpreters.
What Sir Alexander Cockburn proposes is that descent instead of birth shall be taken as the test of nationality, but that when the child of foreign parents is born in England, he shall have the option of choosing between the two countries. He argues further that English subjects should be allowed to divest themselves of their allegiance by being naturalized in any other state ; that the civil disabilities of aliens should be put an end to, save as regards the ownership of British vessels ; and that the nationality of wives and children should follow that of husbands and fathers. Of course, none of these proposed changes are as important as the great innovation in regard to nationality. But they will all tend to simplify our system, and will do away with the reproach of keeping up feudal customs centuries after they have ceased to have any meaning. What can be worse than our retention of the law that forbids aliens to hold real property ? The very arguments in defence of that law which are quoted by Sir Alexander Cockburn from Lord Coke are sufficient to demolish it :—
"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 example of the curious reasoning with which our antiont sages sometimes satisfied themselves in expounding the law. 'The reasons,' he says, ,vherefore an alien-born is not capable of inheritance within England are three :— '1. The secrets of the realm might thereby be discovered. 2. The revenues of the realm (the sinews of war, and ornament 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 H. 5 cap. and 4 H. 5, cap. ultimo. But it may be demanded, wherein doth that destruction consist ; whereunto it is answered ; first, it tends to destruction tempore ; for then strangers might fortify themselves in the heart of the realm, and be ready to set fire on the commonwealth, as was excellently shadowed by the Trojan horse in Virgil's second book of his "E'neid, 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 king and the subject, or between subject and subject."
Yet, whatever we may think of the logical validity of these reasons, our Courts are bound to act upon them till they are swept away by statute. The Americans, who have inherited much of our common law, have endeavoured to get rid of its feudal elements by contend- ing that they cannot exist in a republic. But this contention of states- men is not sanctioned by the great American jurists. Chancellor Kent andMr. Justice Story both admit that the English common-law
principle of unalterable allegiance is equally the law of the United States. We do not find, indeed, that this law has ever been acted upon. America has consistently granted protection to naturalized citizens against the claims of allegiance advanced by their native countries. This principle has more than once been carried too far, as in the case of the Fenians in Ireland, and in that of the Hungarian Kozta, who claimed the protection of the United States on the ground that he had declared his intention of being natur- alized. Yet if the law and practice of the United States are at variance, the practice at least is uniform. Our fault is that we keep up an antiquated theory, and depart from it at our pleasure. We proclaim in the most positive manner that English subjects can never divest themselves of their allegiance, and we refuse to protect them against the claims of other countries which are inconsistent with that principle. We are so indignant with the Americans for enticing away our citizens, that we threaten the most barbarous reprisals, yet we encourage the subjects of other nations to forsake their own allegiance and to enter our service. After the Report of the Royal Commission, and still more after this lucid exposure of our errors from the Lord Chief Justice, we have little doubt that they will be remedied. It is something that we are most in fault, and that by this time we must be aware of it.