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 and America. It is obvious, therefore, that this is the rule by the adoption of which will be most readily obtained that consent of nations which on such a subject is of capital importance. It is stated in Section VII of the report that "we have endeavored to diminish the number of cases in which one who by British law is a British subject is regarded by foreign law as a foreign subject, and to obviate as far as possible the difficulties and inconveniences arising from a double allegiance." In that object I entirely concur; 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 England is prima facie a British subject. In the view of every state (including the United States, so far as regards the children of born Americans in England) such person is a subject of the state of his father's origin; and therefore the proposed rule necessarily creates all the difficulties and inconveniences of a double allegiance. Assume, on the other hand, the rule adopted by the report in the case of the chil dren born of British parents abroad, to be applied consistently to the case of the children born of foreign parents in England, it will be seen that the desired object will be completely accomplished. If the child B, of a foreigner A, is born in England, he would then be regarded by the English law as a foreigner; and so he would be regarded by all the world; and thus there would be no conflict of allegiance. Suppose A, the father, to become naturalized in England, then B, the child, would be by English law a British subject, and cease to be the subject of the country of his father's origin-and so he would be regarded by all the world-assuming the United States to adopt (as we have reason to believe they would adopt) the principle laid down in Section I of the report, viz, that foreign naturalization extinguishes the native allegiance. The same thing would occur if B were himself naturalized. And thus, by the adoption of a simple and consistent rule, we should lay the foundation of a general harmony in the dectrine and practice of nations which is not only of theoretical value but of great practical consequence; for nothing would more solidly conduce to the peace of the world than that the same allegiance should be predicated of the same person by all governments.

(3.) I am by no means insensible of the practical conveniences which may result in some cases from the adoption of the rule of the locality of birth, which are set forth in Section IV of the report, but there appear to be grave disadvantages attendant on the rule which more than counteract them. Such a rule, as has been shown above, will have the effect of imposing the quality of British subjects on a number of persons who neither seek nor desire it. It is true that the report makes provision in the case of such persons for a machinery by which they may divest themselves of that character. Upon this it may be observed that a foreigner in transitu may, through ignorance or carelessness, omit to take measures which shall have the intended effect. But it is not necessary to urge this point, because in fact it would be as impossible in the future as it has proved in the past, to insist against the will of the indi vidual on his British character thus imposed by the mere accident of birth. The real evil to this country is of an exactly opposite character, viz, that by this rule persons are clothed with the character of British subjects, and become entitled to all its benefits, who have no real connection with the community, and who ought to have no claims upon it.

It is not probable that any foreigner accidentally resident in this country would disclaim the citizenship for his child which the law would confer, for the simple reason that the child would be enabled to take all the benefits but could in no case be really made to fulfill the obligations of a British subject. Under this rule the child of a foreigner born here might return to his own country in his infancy, and he would thereafter possess whenever 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, while 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 reenact it would be to give fresh authority to a principle the inconvenience of which is sufficiently apparent. Nothing can be more politically inexpe dient 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, nor domicile, 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 ours, there seems neither hardship nor inconvenience in requiring that they should evidence their intention to change their nationality and adopt a new domicile by some formal act which, while it would establish their British nationality, would at the same time terminate their foreign allegiance. They would then no longer be able to blow hot and cold, and adopt in turn such nationality as happened for the moment to suit their interests. If the alien father is domiciled in England, and intends to cast in his lot and that of his family with this country, why should he object to naturalize himself or his child? But if he is unwilling by such an act to sever his connection or that of his family with the country of his origin, why should we embarrass our relations with foreign states by conferring our nationality on such a person-to his advantage, it may be, but certainly not in any respect to our own?

If the father and the child are really domiciled in this country, the process of naturalization would be simple and easy, and having regard to the recommendation in Section V of the report it will be seen that a person so naturalized will enjoy all the advantages which belong to a natural-born subject; if they are not so domiciled I venture to think the child ought not to acquire the privilege of British nationality by the simple accident of birth. The great importauce of insisting on naturalization in such cases is, that it is by this means alone that the double allegiance can be avoided. For this purpose it is essential that the act which confers the nationality should in itself openly and unambiguously terminate the old allegiance. This the rule which requires naturalization of a foreigner born in England as a condition of British nationality would do; while the rule conferring nationality by the mere fact of birth would give the new nationality without dissolving the old allegiance.

I should therefore propose that in the case of the children of foreigners born within the realm, the following rule should be adopted:

"Children born within the realm of alien fathers who have been themselves born abroad shall be deemed aliens. But such children shall become British subjects (1) upon the naturalization of their fathers, or (2) upon their being themselves naturalized either by their fathers during their minority or by themselves at full age."

This rule would make the child born in this country, of an alien father also born in this country, a British subject by birth, and in this respect

it accords with the French law. Though apparently somewhat in conflict with the general principle, it is in fact in strict conformity with the principle which makes domicile the governing rule of nationality; for though the presumption of domicile is very small from the mere fact of the place of birth of a single individual in one generation, it becomes very strong when the birth both of the father and the child takes place in the same country. Such a condition of things may be safely taken as a sufficient proof of permanent change of domicile and of the election of a new nationality, which could not be inferred from a solitary and isolated instance.

There is another point affecting the latter part of Section IV of the report, on which I feel great difficulty. Though I concur in the principle laid down in Section IV (§ 2 a) of the report, by which it is declared that the children born of British fathers abroad "should be regarded by British law as British subjects," I greatly doubt the expediency of the declaration in the same section (§ 2 b) that "in the administration of British criminal law" such children are under certain conditions not to be treated as British subjects. The word "subject," in my understanding of the term, involves of necessity subjection to the laws of the state of which such person is a subject, and above all subjection to its criminal law. If it is necessary (though I think that is more than doubtful) to create a class of persons who shall be capable of all the privileges while they are liable to none of the obligations of citizens, it would be desirable to discover for such a class some more appropriate title than that of "subjects." What is no doubt intended is that such persons should have the capacity of becoming at their election British subjects, and that till they have exercised the option to enjoy the benefits, they shall not be called upon to bear the burdens of that character, but that after they have claimed the advantages they shall not be able to decline the obligations of subjects. But surely if this be the view which it is intended to present, it should be distinctly asserted that while the person is not amenable to the law of England he is not yet a British subject, and that as soon as he becomes a British subject he is at once amenable to that law. I cannot, therefore, assent to a definition which speaks of a person as "regarded by British law as by birth a British subject," (Section IV, § 2 a) and of the same person, at the same time, under certain conditions, as a person "who in the administration of British criminal law should be treated as a subject of the country in which he was boru," (Section IV, § 2 b.) The question of whether a particular individual who is thus declared a British subject is or is not amenable to our criminal law is made to turn upon the point of whether he has or not "ever exercised or claimed any right or privilege as a British subject." I confess that in terms so general and vague there seems to me to lurk a dangerous ambiguity very intractable in the administration of criminal law. What are these "rights and privileges;" what is to be the extent of the "exercise" or the nature of the "claim" which by their absence or their presence are to sustain or to defeat the jurisdiction of the Crown over persons who are nominally British subjects? This distinction seems to constitute the same person a British subject by birth in the view of the English civil law, and to leave him an alien in the eye of the English criminal law. There may be persons against whom it is inexpedient that the rights of the Crown should be actually enforced in particular cases. But this is a very different thing from a formal declaration that there exist persons legally called "British subjects" who are not justiciable in the courts of the Queen.

W. VERNON HARCOURT.

APPENDIX NO. I.-NATURALIZATION AND ALLEGIANCE.

Observations to accompany memorandum on naturalization and allegiance

The practical question at the present time is, whether Great Britain shall adopt the principle of expatriation, advocated by the Government of the United States and incorporated in the recent treaty between that country and Prussia?

In order fully to understand the position occupied by the United States and Great Britain on this matter, it is necessary to consider the principles on which naturalization and expatriation are carried out by different countries.

There are five main systems of naturalization:

1. By taking an oath of allegiance and obtaining a certificate, granted at the discretion of the government, as in England.

2. By certificate from a court of law, granted on proving residence for a stated period and taking oath of allegiance, as in Canada.

3. By residence for a stated period, and certificate from the government, without oath, as in France.

4. By employment in the public service, or certificate from the government, as in Prussia.

5. By residence for a stated period, renunciation of native allegiance, and by taking an oath of allegiance to adopted country, as in the United States.

Provision is also made by many countries for the exceptional naturalization of aliens, as in England, by two years' naval service during war, and in the United States by service in the army with one year's residence.

There are three distinct doctrines of expatriation:

1. The continental, as embodied in the Code Napoléon, by which an emigrant incurs the loss of civil rights in his native country, ("privation des droits civils par la perte de la qualité de Français ;" "perdita della cittadinanza.") Should the emigrant return to his native country, this loss of civil rights may be accompanied by penal conse quences, as in Austria, when the emigration has taken place without the permission of the government.

Looking to the circumstances under which the Code Napoléon was framed, and to the continental practice of conscription, it is obvious that expatriation, as provided for in that code, and in the laws subsequently founded on it, was intended to punish, and not to encourage, emigration.

2. The American, or theoretical. The American doctrine has varied from Mr. Wheaton's axiom, when minister to Berlin in 1840, that native nationality reverted on return to the native land, to Mr. Cass's in 1858, that, should a naturalized foreigner “return to his native country, he returns as an American citizen, and in no other character." While American politicians argue that "perpetual allegiance is a doctrine of barbarism," no provision is made in the statutes of that country for the expatriation of Americans. This anomaly has been frequently pointed out, and was remarked upon in the recent debates in the House of Representatives, when one of the speakers urged that, before asking other countries to alter their laws, the United States should set the example by altering their own.

3. The English. Originating in the feudal idea of native and indelible allegiance to the prince of the country in which the subject was born, the English doctrine has been gradually modernized into a system of native nationality adapted to a commercial people.

It is in this latter spirit, with a view to retaining the connection between British subjects residing for mercantile purposes in foreign countries and their native land, that the statutes declaring the sons and grandsons of British subjects born abroad to be British subjects must now be regarded.

There are, therefore, two conflicting principles of expatriation; the continental, which punishes emigration by loss of civil rights, but does not necessarily admit that such emigration can free the emigrant from the obligations of his native nationality: and the American doctrine, which claims for the subjects of other countries (but does not grant by law to Americans) the right of free expatriation.

That this right is denied by most continental countries is shown by the fact that a Frenchman, whose certificate of foreign naturalization is not of three years' date, is liable to the French conscription; a Russian, naturalized abroad, may be expelled foven Russia; even a Prussian, under the new treaty with the United States, must reside uninterruptedly in America for five years, as well as be naturalized, before he can change his nationality. Each country hampers expatriation with such restrictions as it thinks fit, and this must probably continue to be the case so long as the present conscription laws are retained."

There does not seem any evident reason why such restrictions should be imposed by Great Britain if the principle of expatriation were adopted.

In the Prince Regent's declaration of 1813, the necessity for maintaining the doctrine of indissoluble allegiance is based upon the right of the Crown to the services of its subjects, specially seamen, in time of war.

A similar argument was urged by Lord Stowell and at the negotiations for the treaty

of Ghent.

In fact, in those days, Great Britain stood toward the United States, as regards maritime conscription, much in the same position as the continental countries now stand with regard to their military conscription.

But the practice of impressment has now fallen into desuetude and is not likely ever to be revived.

The further claim to punish as traitors British subjects found in arms against their native country, was practically abandoned when the prisoners taken in the United States service were unconditionally exchanged in 1814, without having been brought to trial as threatened.

It must be remembered that the theory of treason is the same in England and in the United States. The law of France punishes with death a Frenchman (whether naturalized abroad or not) who is taken in arms against France.

The right of impressment having been given up, and the doctrine of treason thus modified by practice, there does not now remain any claim which Great Britain need seek to maintain upon the allegiance of British subjects emigrating to foreign countries. Moreover, the interest of the British colonies in urging the right of free expatriation is only second to that of the United States. Indeed, any privileges or rights which may be accorded to Germans, or others, becoming naturalized in the United States, and which may not be secured equally for emigrants to the colonies, more especially Canada, would offer a direct premium on emigration to the former, to the manifest disadvantage, and probably discontent, of the latter.

The importance of this view of the subject will be seen from the following statistics, taken from the census of 1861:

It is stated that Germany affords 7 per cent. of the immigrants to this colony.

It is to be presumed that if treaties could be agreed upon which would be practicable in operation and acceptable to foreign nations, a corresponding alteration in the law, at all events of this country, would have to be made; and it must be a matter of consideration how such an alteration can be carried out, affecting, as it will do, the rights of property in the colonies as well as in England, and altering the whole system on which the hitherto received doctrine of British protection to British subjects resident abroad rests.

While it seems perfectly fair to expatriate a person who willfully severs his connection with his native country, care should be taken to make a distinction between persons residing temporarily abroad for commercial purposes, and compelled by local laws to take an oath of allegiance in order to carry on their trade or profession, as was formerly the case in Russia and Denmark, and persons permanently incorporating themselves and their interests in a foreign country.

Thus it would be a hardship on British merchants that a person who had taken out a burgher license to enable him to carry on a broker's agency in Denmark, should be thereby absolutely expatriated and disabled from inheriting real property in England.