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ornaments of the church and of the ministers thereof, at all times of their ministration, shall be retained and be in use as were in this Church of England, by the authority of Parliament, in the second year of the reign of King Edward VI.' The construction of this Rubric was very fully considered by this Court in the case of Westerton v. Liddell' already referred to; and the propositions which their Lordships understand to have been established by the judgment in that case may thus be settled :-1. The words ' authority of Parliament,' in the Rubric, refer to and mean the Act of Parliament 2nd and 3rd Edward VI., c. 1, giving Parliamentary effect to the first Prayer Book of Edward VI., and do not refer to or mean canons or royal injunctions, having the authority of Parliament, made at an earlier period (Moore, p. 160). 2. The term 'ornaments' in the Rubric means those articles the use of which in the services and ministrations of the Church is prescribed by that Prayer Book (Ibid. p. 156). 3. The term * ornaments’ is confined to these articles (Ibid. p. 156). 4. Though there may be articles not expressly mentioned in the Rubric the use of which would not be restrained, they must be articles which are consistent with and subsidiary to the services, as an organ for the singing, a Credence-table from which to take the sacramental bread and wine, cushions, hassocks, &c. (Ibid.) In these conclusions, and in this construction of the Rubric, their Lordships entirely concur, and they go far, in their Lordships' opinion, to decide this part of the case.

The lighted candles are clearly not ornaments' within the words of the Rubric, for they are not prescribed by the authority of Parliament therein mentioned-namely, the first Prayer Book ; nor is the injunction of 1547 the authority of Parliament within the meaning of the Rubric. They are not subsidiary to the service, for they do not aid or facilitate-much less are they necessary to the service; nor can a separate and independent ornament previously in use be said to be consistent with a Rubric which is silent as to it, and which by necessary implication abolishes what it does not retain. It was strongly pressed by the respondent's counsel that the use of lighted candles up to the time of the issue of the first Prayer Book was clearly legal; that the lighted candles were in use in the Church in the second year of Edward VI., and that there was nothing in the Prayer Book of that year making it unlawful to continue them. All this may be conceded, but it is in reality beside the question. The Rubric of our Prayer Book might have said, those ornaments shall be retained which were lawful, or which were in use in the second year of Edward VI., and the argument as to actual use at the time, and as to the weight of the injunction of 1547, might in that case have been material. But the Rubric, speaking in 1661, more than 100 years subsequently, has, for reasons which it is not the province of a judicial tribunal to criticize, defined the class of ornaments to be retained by a reference, not to what was in use de facto, or to what was lawful in 1549, but to what was in the Church by authority of Parliament in that year: and in the Parliamentary authority which this Committee has held, and which their Lordships hold to be indicated by these words, the ornaments in question are not found to be included. Their Lordships have not referred to the usage as to lights during the last 300 years; but they are of opinion that the very general disuse of lights after the Reformation (whatever exceptional cases to the contrary might be produced), contrasted with their normal and prescribed use previously, affords a very strong contemporaneous and continuous exposition of the law upon the subject. Their Lordships will, therefore, humbly advise her Majesty that the charge as to lights also has been sustained, and that the respondent should be admonished for the future to abstain from the use of them, as pleaded in these articles. All the charges against the respondent having been thus established, their Lordships see no reason why the usual consequence as to costs should not follow ; and they will advise her Majesty that the respondent should pay to the appellant the costs in the court below and of this appeal.”




Report of the Royal Commissioners for inquiring into the Laws of Naturalization

and Allegiance.

TO THE QUEEN'S MOST EXCELLENT MAJESTY. WE, Your Majesty's Commissioners ap

1. pointed to inquire into the Laws of Naturalization and Allegiance, have to There are two classes of persons who by state that, in compliance with the terms our law are deemed to be natural-born of your Majesty's Commission, we have British subjects :inquired into the legal condition of natural- 1. Those who are such from the fact of born British subjects who may depart from

their having been born within the and resido beyond the realin in foreign

dominion of the British Crown; countries, and have considered how and 2. Those who, though born out of the in what manner, having regard to the

dominion of the British Crown, laws and practice of other States, it may

are by various general Acts of be expedient to alter and amend the laws

Parliament declared to be natural. relating to such natural-born subjects,

born British subjects. their wives, children, descendants, or re- The allegiance of a natural-born British latives. We have also inquired into the subject is regarded by the Common Law legal condition of persons, being aliens, as indelible. entering into or residing within the realm We are of opinion that this doctrine of and becoming naturalized as subjects of the Common Law is neither reasonable the Crown, and have considered how far nor convenient. It is nt variance with and in what manner it may be expedient, those principles on which the rights and having regard to the laws and practice of duties of a subject should be deemed to this country, of Foreign States, or other. rest; it conflicts with that freedom of wise, to alter or amend the laws relating action which is now recognized as most to such persons, or persons claiming rights conducive to the general good as well as or privileges through or under them. to individual happiness and prosperity;

We bave found it necessary, in order to and it is especially inconsistent with the deal satisfactorily with the matters re- practice of a State which allows to its ferred to us, to enter into some others subjects absolute freedom of emigration. bearing closely on them but not embraced It is inexpedient that British law should within

the express terms of your Majesty's maintain in theory, or should by foreign Commission; and on these latter, as well nations be supposed to maintain in pracas on the former, we have thought it right tice, any obligations which it cannot to subinit to your Majesty the conclusions enforce and ought not to enforce if it to which we have been led.

could; and it is unfit that a country We now humbly lay before your Majesty should remain subject to claims for prothe following report :

tection on the part of persons who, so far


as in them lies, have severed their con. might declare his desire to remain a British nexion with it.

subject. The mode in which this should We accordingly submit to your Majesty be done might be settled reciprocally by the following Recommendations for an Treaty or otherwise with such foreigu amendment of the law in this respect. Governments as were willing to permit it

1. Any British subject, who, being to operate as an extinguishment of the resident in a foreign country, shall be acquired allegiance. In the absence of naturalized therein and shall undertake, such an agreement, the naturalized person according to its laws, the duty of allegiance might make a formal declaration of sach to the Foreign State as a subject or citizen his desire, if resident abroad, before a thereof, should, upon such naturalization, British Minister or consul, or, if within cease to be a British subject.

your Majesty's dominions, before a Justice 2. The principle of this rule should be of Peace, such declaration to be registered applied to a woman who, being a British or recorded in such manner as might be subject, shall become by marriage with an judged expedient, in the United Kingdom alien the subject or citizen of a Foreign by the Secretary of State for the Home State.

Department, in a colony by the Governor 3. The wife of a British subject who shall or other chief officer of the Government. become naturalized abroad, and his chil. Any person thus electing within the predren, if under the age of twenty-one years scribed period to remain a British subject at the date of his naturalization, should should be deemed to retain his British likewise cease to be British subjects from nationality, and the benefit of this election that date ; but this rule should not in- should extend to his wife, and to his clude a wife or child who has not emigrated children if under age at the time; but the to the country of naturalization, nor should election should not (unless permitted by it operate unless, according to the local the State of his naturalization to exlaw, the naturalization of the husband or tinguish his acquired allegiance) entitle father has naturalized also the wife or him or them to claim any British privileges child.

when within the territories of that State. 4. Naturalization in a foreign country, These provisions should be deemed to though operating from the time of its apply to women already naturalized abroad completion as an extinguishment of the by marriage with an alien or by the foreign original citizenship, should not carry with naturalization of their husbands, and to it discharge from responsibility for acts children already naturalized abroad by done before the new allegiance was ac- the foreign naturalization of their fathers. quired.

Such women, becoming or having become Provision should be made for applying widows, and such children, attaining or the same principles to the case of British having attained the age of twenty-one subjects who have become so by naturali. years, should be enabled to retain their zation.

British nationality by exercising a like We have considered the question whe- option at any time before the expiration ther the acquisition of a foreign domicil, of the period to be limited as aforesaid. or a certain length of residence abroad, Persons already naturalized abroad who should divest a person of British nation- might not exercise this option within the ality. We have not been able to satisfy prescribed period would be able at any ourselves that either continued residence

time afterwards to regain British nation. or domicil could be practically adopted as ality in the mode pointed out in a subsea rule to determine the allegiance of the quent part of this report. subject, having regard to the difficulties which attend the definition of domicil and

III. proof of the fact, and also to the great diversity of circumstances under which The above recommendations, if carried men reside in foreign countries.

into effect, would impose the condition of

aliens upon many persons who have II.

hitherto enjoyed the legal rights proper

to British subjects. It was necessary, It is expedient that the foregoing re therefore, to consider what effect the commendations should be applied to British deprivation of such rights would have subjects already naturalized in foreign upon those affected by the change. And countries, as well as to those who may here it was impossible to overlook the hereafter become so. A certain period, serious question raised by the existence of however, not less than two years, should those disabilities which (subject to certain be allowed, within which any person limitations) attach by law to aliens in already so naturalized (that is, before the respect to the holding and inheritance of proposed alteration of the law is made) real estate in the United Kingdom.

Those disabilities have hitherto only lands, houses, or other tenements, for the affected persons who had never been purpose of residence or of occupation by regarded by the law as natural-born him or her, or his or her servants, or for British subjects, such persons alone coming the purpose of any business, trade, or within the legal definitions of aliens. But manufacture, for any term of years not when it is proposed to bring within the exceeding twenty-one years, as fully and same category a new class of persons who, effectually, to all intents and purposes, having been originally British subjects, and with the same rights, remedies, ex. are for the future to lose that character, emptions, and privileges, except the right different considerations arise. To deprive to vote at elections for members of Par. persons, already naturalized abroad, who liament, as if he were a natural-born now enjoy the right of holding and in- subject of the United Kingdom.” heriting lands, of that right, might be This term of twenty-one years may, of thought harsh, if not unjust. In the case course, be renewed. of those who may become so naturalized We have arrived at the conclusion that hereafter, the same objection would not the grounds formerly assigned for the rule arise ; but even here the penalty of exclu. are either untenable in themselves or bave sion from possible rights of inheritance ceased to be applicable; and we are preappears to be an impolitic restriction on pared therefore, instead of making any the liberty of emigration.

distinction between the two classes of We have to choose, then, between two aliens, to recommend that the present courses; one is, to maintain the existing disabilities of alienage in respect of the disabilities, making special provision for holding and inheritance of land should be the new class of cases to which our recom- abolished altogether. mendations would give rise; the other, to It has been suggested that, in time of abrogate the disabilities altogether in re- war, danger might occasionally arise from spect of all classes of aliens.

the possession of land by aliens. We think The first course, viz. that of making it sufficient to say that this is a danger special provision for expatriated British against which, should it be deemed serious subjects who will now become aliens, enough to demand special legislation, it whilst it would break in upon the general would not be difficult to guard. principle, might in practice be productive of embarrassment and litigation. We have

IV. accordingly considered the other course. The question whether aliens ought any In considering whether the character of longer to be prohibited by our law from a natural-born British subject should be holding landed property within the realm regarded as indelible, and, if not, how it has not, indeed, been expressly referred to

should be lost, we have found it necessary us by the terms of your Majesty's Com- to consider also whether any changes mission ; but we have found it impossible should be made in the laws which deterto deal with the position of those who, mine what classes of persons should be under the terms of our previous Recom- deemed to possess that character. mendations, will cease to be British sub- There are two classes with respect to jects, without forming an opinion as to the whom this question may be raised. They position of aliens generally in this respect. are

We think it right to point out that not 1. Persons of foreign parentage born only can aliens hold real estate in 'rance

within the dominions of the Crown; and many other European countries, but Persons of British parentage born they are also enabled by colonial enact

abroad. ments to hold real estate in the Dominion All persons, of whatever parentage, born of Canada (except New Brunswick), Bri. within the dominions and allegiance of the tish Columbia, Cape of Good Hope, Natal, Crown, are by the Common Law natural. Queensland, Victoria, South Australia, St. born British subjects. All persons, on the Kitts, and Hong Kong, while the regula- other hand, of whatever parentage, born tions prohibiting aliens from possessing beyond its dominions and out of its allereal estate have recently been repealed in giance, were by the Common Law regarded Bengal, and are now under revision in as aliens. Madras and Bombay.

By various statutes it has been enacted By the Act of 1844 (7 & 8 Vict. c. 66), as follows: every alien now residing in, or who 25 Edw. III. stat. 2: “All children in. shall hereafter come to reside in, any part heritors, which henceforth shall be born of the United Kingdom, and being the out of the legeance of the king, whose subject of a friendly State, may, by grant, fathers and mothers at the time of their lease, demise, assignment, bequest, repre- birth be and shall be at the faith and sentation, or otherwise, take and hold any legeance of the king of England, shall

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