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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."

APPENDIX.

PUBLIC DOCUMENTS AND STATE PAPERS.

LAWS OF NATURALIZATION AND ALLEGIANCE.

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 appointed to inquire into the Laws of Naturalization and Allegiance, have to state that, in compliance with the terms of your Majesty's Commission, we have inquired into the legal condition of naturalborn British subjects who may depart from and reside beyond the realm in foreign countries, and have considered how and in what manner, having regard to the laws and practice of other States, it may be expedient to alter and amend the laws relating to such natural-born subjects, their wives, children, descendants, or relatives. We have also inquired into the legal condition of persons, being aliens, entering into or residing within the realm and becoming naturalized as subjects of the Crown, and have considered how far and in what manner it may be expedient, having regard to the laws and practice of this country, of Foreign States, or otherwise, to alter or amend the laws relating to such persons, or persons claiming rights or privileges through or under them.

We have found it necessary, in order to deal satisfactorily with the matters referred to us, to enter into some others bearing closely on them but not embraced within the express terms of your Majesty's Commission; and on these latter, as well as on the former, we have thought it right to submit to your Majesty the conclusions to which we have been led.

We now humbly lay before your Majesty the following report :

1.

There are two classes of persons who by our law are deemed to be natural-born British subjects:

1. Those who are such from the fact of their having been born within the dominion of the British Crown;

2. Those who, though born out of the dominion of the British Crown, are by various general Acts of Parliament declared to be naturalborn British subjects.

The allegiance of a natural-born British subject is regarded by the Common Law as indelible.

We are of opinion that this doctrine of the Common Law is neither reasonable nor convenient. It is at variance with those principles on which the rights and duties of a subject should be deemed to rest; it conflicts with that freedom of action which is now recognized as most conducive to the general good as well as to individual happiness and prosperity; and it is especially inconsistent 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.

We accordingly submit to your Majesty the following Recommendations for an amendment of the law in this respect.

1. Any British subject, who, being resident in a foreign country, shall be naturalized therein and shall undertake, according to its laws, the duty of allegiance to the Foreign State as a subject or citizen thereof, should, upon such naturalization, cease to be a British subject.

2. The principle of this rule should be applied to a woman who, being a British subject, shall become by marriage with an alien the subject or citizen of a Foreign State.

3. The wife of a British subject who shall become naturalized abroad, and his children, if under the age of twenty-one years at the date of his naturalization, should likewise cease to be British subjects from that date; but this rule should not include a wife or child who has not emigrated to the country of naturalization, nor should it operate unless, according to the local law, the naturalization of the husband or father has naturalized also the wife or child.

4. Naturalization in a foreign country, though operating from the time of its completion as an extinguishment of the original citizenship, should not carry with it discharge from responsibility for acts done before the new allegiance was acquired.

Provision should be made for applying the same principles to the case of British subjects who have become so by naturali

zation.

We have considered the question whether the acquisition of a foreign domicil, or a certain length of residence abroad, should divest a person of British nationality. We have not been able to satisfy ourselves that either continued residence or domicil could be practically adopted as a rule to determine the allegiance of the subject, having regard to the difficulties which attend the definition of domicil and proof of the fact, and also to the great diversity of circumstances under which men reside in foreign countries.

II.

It is expedient that the foregoing recommendations should be applied to British subjects already naturalized in foreign countries, as well as to those who may hereafter become so. A certain period, however, not less than two years, should be allowed, within which any person already so naturalized (that is, before the proposed alteration of the law is made)

might declare his desire to remain a British subject. The mode in which this should be done might be settled reciprocally by Treaty or otherwise with such foreign Governments as were willing to permit it to operate as an extinguishment of the acquired allegiance. In the absence of such an agreement, the naturalized person might make a formal declaration of such his desire, if resident abroad, before a British Minister or consul, or, if within your Majesty's dominions, before a Justice of Peace, such declaration to be registered or recorded in such manner as might be judged expedient, in the United Kingdom by the Secretary of State for the Home Department, in a colony by the Governor or other chief officer of the Government. Any person thus electing within the prescribed period to remain a British subject should be deemed to retain his British nationality, and the benefit of this election should extend to his wife, and to his children if under age at the time; but the election should not (unless permitted by the State of his naturalization to extinguish his acquired allegiance) entitle him or them to claim any British privileges when within the territories of that State.

These provisions should be deemed to apply to women already naturalized abroad by marriage with an alien or by the foreign naturalization of their husbands, and to children already naturalized abroad by the foreign naturalization of their fathers. Such women, becoming or having become widows, and such children, attaining or having attained the age of twenty-one years, should be enabled to retain their British nationality by exercising a like option at any time before the expiration of the period to be limited as aforesaid.

Persons already naturalized abroad who might not exercise this option within the prescribed period would be able at any time afterwards to regain British nationality in the mode pointed out in a subsequent part of this report.

III.

The above recommendations, if carried into effect, would impose the condition of aliens upon many persons who have hitherto enjoyed the legal rights proper to British subjects. It was necessary, therefore, to consider what effect the deprivation of such rights would have upon those affected by the change. And here it was impossible to overlook the serious question raised by the existence of those disabilities which (subject to certain limitations) attach by law to aliens in respect to the holding and inheritance of real estate in the United Kingdom.

Those disabilities have hitherto only affected persons who had never been regarded by the law as natural-born British subjects, such persons alone coming within the legal definitions of aliens. But when it is proposed to bring within the same category a new class of persons who, having been originally British subjects, are for the future to lose that character, different considerations arise. To deprive persons, already naturalized abroad, who now enjoy the right of holding and inheriting lands, of that right, might be thought harsh, if not unjust. In the case of those who may become so naturalized hereafter, the same objection would not arise; but even here the penalty of exclusion from possible rights of inheritance appears to be an impolitic restriction on the liberty of emigration.

We have to choose, then, between two courses; one is, to maintain the existing disabilities, making special provision for the new class of cases to which our recommendations would give rise; the other, to abrogate the disabilities altogether in respect of all classes of aliens.

The first course, viz. that of making special provision for expatriated British subjects who will now become aliens, whilst it would break in upon the general principle, might in practice be productive of embarrassment and litigation. We have accordingly considered the other course. The question whether aliens ought any longer to be prohibited by our law from holding landed property within the realm has not, indeed, been expressly referred to us by the terms of your Majesty's Commission; but we have found it impossible to deal with the position of those who, under the terms of our previous Recommendations, will cease to be British subjects, without forming an opinion as to the position of aliens generally in this respect.

We think it right to point out that not only can aliens hold real estate in France and many other European countries, but they are also enabled by colonial enactments to hold real estate in the Dominion of Canada (except New Brunswick), British Columbia, Cape of Good Hope, Natal, Queensland, Victoria, South Australia, St. Kitts, and Hong Kong, while the regulations prohibiting aliens from possessing real estate have recently been repealed in Bengal, and are now under revision in Madras and Bombay.

By the Act of 1844 (7 & 8 Vict. c. 66), "every alien now residing in, or who shall hereafter come to reside in, any part of the United Kingdom, and being the subject of a friendly State, may, by grant, lease, demise, assignment, bequest, representation, or otherwise, take and hold any

lands, houses, or other tenements, for the purpose of residence or of occupation by him or her, or his or her servants, or for the purpose of any business, trade, or manufacture, for any term of years not exceeding twenty-one years, as fully and effectually, to all intents and purposes, and with the same rights, remedies, exemptions, and privileges, except the right to vote at elections for members of Parliament, as if he were a natural-born subject of the United Kingdom."

This term of twenty-one years may, of course, be renewed.

We have arrived at the conclusion that the grounds formerly assigned for the rule are either untenable in themselves or have ceased to be applicable; and we are prepared therefore, instead of making any distinction between the two classes of aliens, to recommend that the present disabilities of alienage in respect of the holding and inheritance of land should be abolished altogether.

It has been suggested that, in time of war, danger might occasionally arise from the possession of land by aliens. We think it sufficient to say that this is a danger against which, should it be deemed serious enough to demand special legislation, it would not be difficult to guard.

IV.

In considering whether the character of a natural-born British subject should be regarded as indelible, and, if not, how it should be lost, we have found it necessary to consider also whether any changes should be made in the laws which determine what classes of persons should be deemed to possess that character.

There are two classes with respect to whom this question may be raised. They

are

1. Persons of foreign parentage born within the dominions of the Crown; 2. Persons of British parentage born abroad.

All persons, of whatever parentage, born within the dominions and allegiance of the Crown, are by the Common Law naturalborn British subjects. All persons, on the other hand, of whatever parentage, born beyond its dominions and out of its allegiance, were by the Common Law regarded as aliens.

By various statutes it has been enacted as follows::

25 Edw. III. stat. 2: "All children inheritors, which henceforth shall be born out of the legeance of the king, whose fathers and mothers at the time of their birth be and shall be at the faith and legeance of the king of England, shall

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