have and enjoy the same benefit and advantage, to have and bear inheritance within the same legeance as the other inheritors aforesaid in time to come: so always that the mothers of such children passed the sea by the licence and will of their husbands."

7 Anne, c. 5: "The children of all natural-born subjects, born out of the legeance of her Majesty, her heirs and successors, shall be deemed, adjudged, and taken to be natural-born subjects of this kingdom, to all intents, constructions, and purposes whatsoever."

4 Geo. II. c. 21: " And whereas some doubts have arisen upon the construction of the said recited clause in the said Act of the seventh year of her late Majesty's reign: now for the explaining the said recited clause in the said Act, relating to children of natural-born subjects, and to prevent any disputes touching the true intent and meaning thereof, be it enacted, that all children born out of the legeance of the Crown of England or of Great Britain, or which shall hereafter be born out of such legeance, 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 be adjudged and taken to be natural-born subjects of the Crown of Great Britain, to all intents, constructions, and purposes whatsoever."

13 Geo. III. cap. 21: "All persons born, or who hereafter shall be born, out of the legeance of the Crown of England or of Great Britain, whose fathers were or shall be by virtue of a statute made in the fourth year of King George II. to explain a clause in an Act made in the seventh year of the reign of her Majesty Queen Anne, for naturalizing foreign Protestants, which relates to the natural-born subjects of the Crown of England or of Great Britain, entitled to all the rights and privileges of natural-born subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, naturalborn subjects of the Crown of Great Britain, to all intents, constructions, and purposes whatsoever, as if he and they had been and were born in this kingdom."

Without entering into any discussion on the construction of these statutes, we think it right to state that, so far as we are aware, no attempt has ever been made on the part of the British Government (unless in Eastern countries where special jurisdiction is conceded by Treaty), to enforce claims upon, or to assert rights in respect of, persons born abroad as against the country of their birth whilst they were resident therein, and when by

its law they were invested with its nationality.

A rule corresponding to that of the English Common Law has been retained by the United States. Every person born within the limits and jurisdiction of the United States is an American citizen by American law. But it is also provided by an Act of Congress passed in 1855 that, "Persons heretofore born, or hereafter to be born, out of the limits of the jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be citizens of the United States: provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States."

By the Code Napoléon (Art. 10), "Tout Français né d'un Français en pays étranger est Français." As to children born in France, they were under the Code French if their fathers were French, aliens if their fathers were aliens, but with a right in the latter case to claim French citizenship on making a declaration and fixing their domicil in France. An exception has been introduced, however, by a law passed in 1851, by which, if the alien father were also born in France, the child is deemed French, but is at liberty to claim the status of an alien on attaining twenty-one years of age.

The Prussian law of 1842 declares that "Every legitimate child of a Prussian subject is by birth a Prussian subject, even though born in a foreign country.”

Of these two tests of nationality-the place of birth and the nationality of the father-neither is at present adopted without qualification by British, French, or American law. The laws of these countries exhibit, in fact, different combinations of the two, Great Britain and the United States laying chief stress on the place of birth, whilst in France the father's nationality determines, though not absolutely and in all cases, that of the child; and this latter theory has found acceptance among other European nations.

The rule which impresses on persons born within your 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 provable; 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 disabilities 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, born within the dominions of the Crown, a large majority would, if they were called upon to choose, elect British nationality. 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.

We do not therefore recommend the abandonment of this rule of the common law, but we are clearly of opinion that it ought not to be, as it now is, absolute and unbending. In the case of children of foreign parentage, it should operate only where a foreign nationality has not been chosen. Where such a choice has been made, it should give way.

As to the second class-persons of British parentage born abroad-we think it expedient that the statutes now in force should be repealed, in order to introduce some limitations, and place the law on a clearer and more satisfactory basis. Birth abroad is often merely accidental, while of those British subjects who go to reside in foreign countries a great number certainly prize British nationality for themselves, and wish that it should be enjoyed by their children. The law, as it stands, concedes this benefit to their children born abroad; and we do not recommend that it should be withdrawn; but we think that the transmission of British nationality in families settled abroad should be limited to the first generation.

The following recommendations embody the conclusions which we have formed on this branch of the subject:

1. As to persons born within the dominions of the Crown:

(a) 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. (b) 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 registered 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.

(c) If the father, being an alien when the child was born, becomes during the child's minority naturalized as a British subject, the child, though registered as an alien, should follow the condition of the father.

2. As to persons born out of the dominions of the Crown:

(a) Every child born out of the dominions of the Crown whose father at the time of the birth was a British subject, should be regarded by British law as by birth a British subject, provided the father were born within the dominions of the Crown, but not otherwise.

(b) Provided that any such person as aforesaid who according to the law of a foreign country is a subject or citizen of that country, and who has never exercised or claimed any right or privilege as a British subject, should in the administration of British criminal law be treated as a subject of the country in which he was born.

(c) And if any such person, charged with a criminal offence for which an alien would not be liable to be tried, should successfully defend himself on the ground that he was not, in respect of the act alleged, amenable as a British subject to the criminal law of this country, he should be thenceforth to all intents and purposes an alien.

(d) If before the child's birth the father had become naturalized in the foreign country he would, under our previous recommendations, have ceased to be a British subject. If he should become so naturalized during the child's minority, the child born abroad should follow the condition of the father. (e) By the Statute 12 and 13 Vict. c. 68, provision is now made for the registration at British consulates abroad of marriages of British subjects celebrated abroad; and official copies of such registers are made evidence in the courts of this country. We think that a similar system of registry, with the like legal effect, should be adopted for the purpose of procuring evidence (as far as prac ticable) of births and deaths of British subjects abroad, due provision being made for securing the accuracy of such registration; and we futher recommend that such registries should be established in all British legations as well as consulates.

The above recommendations, in so far

as they may be inconsistent with the present law or practice of this country, are not intended to apply to children born of British fathers within the dominions of the Ottoman Porte, China, Japan, or other countries with which Great Britain may have special Treaties for exclusive jurisdiction, nor any part of Asia or Africa not the possession of some civilized State. As to such children we contemplate no alteration in the existing law.

V.

We have considered the present practice of naturalization under the Act 7 and 8 Vict. c. 66. In dealing with this question we have desired to give effect to our opinion, that to be a British subject is a valuable privilege to be considerately imparted to those who desire its advantages, and are willing to undertake its duties. If aliens are, as we recommend, made capable of holding real estate, the considerations applicable to the question will be simplified; the inducement which now most commonly leads foreigners to apply for naturalization will be removed; the rights conferred by it will be political rights; and we think, on the one hand, that these rights should in no case be granted without the security which previous residence affords, and on the other, that when granted they should be full and complete. We recommend, therefore, that the Act should be amended so as to make a certain length of residence in the United Kingdom, or of service under the British Crown, to be proved to the satisfaction of the Secretary of State, a necessary condition of obtaining the privilege of naturalization; that, subject to this condition, the privilege should continue to be granted at the discretion of the Secretary of State; and that a person so naturalized should be thereupon entitled to all the rights and privileges of a natural-born British subject within the United Kingdom.

This alteration of the law, if made, will be incompatible with the continuance of the practice of issuing certificates of naturalization revocable or determinable if the naturalized person resides abroad for six months without the permission of the Secretary of State, a practice which in other respects appears to us to be open to serious objections.

VI.

We have previously stated our opinion that British-born subjects who have already been naturalized in foreign countries, should be allowed a period of not less than two years within which to resume their original nationality.

We further recommend that provision should be made to enable British-born subjects, who may at any time have lost their British nationality, to be readmitted to the privileges of British subjects by a system similar to that by which aliens are naturalized in this country, and on the same condition of a previous term of residence. Such persons should only be readmitted to British nationality at the discretion of one of her Majesty's principal Secretaries of State on addressing a memorial to the Secretary of State, setting forth the grounds on which they seek readmission, and their intention thenceforth to reside and settle within the British dominions. The Secretary of State might then, if he saw fit, and on being satisfied that the prescribed conditions were complied with, grant certificates readmitting the applicants to the rights and capacities of natural-born British subjects on their taking an oath of allegiance; but such certificates should not entitle the holders to British privileges within the country of their foreign naturalization, should they return thereto, unless according to its law they had ceased to be subjects or citizens of that country.

The wives, or children under twenty-one years of age, of persons so readmitted to British nationality, should also, if resident within the British dominions, be considered and taken to be British subjects from the date of that readmission, subject to the above reservation.

The same rule as to readmission should apply to women of British birth whose British nationality had been lost by marriage with an alien, on their becoming widows; but the children of such women born of an alien father should not by the readmission of the mother become naturalized as British subjects.

The foregoing provision will apply to the case of persons who shall desire to be readmitted within the United Kingdom to the privileges of British subjects.

It seems also desirable to make provision for the case of persons who, having lost their British character, may desire to be readmitted within the colonial dominions of the Crown to the advantages of British nationality.

In the case of an alien born, naturalization in the United Kingdom under the Act of 1844 does not confer any rights of nationality within the colonies (10 and 11 Vict. c. 83). On the other hand, colonial naturalization confers no rights of nationality beyond the limits of the colony granting naturalization.

The case of persons, however, who have lost their British nationality by force of such enactments as those which we recom

mend will stand upon a different footing. When they are readmitted to British nationality within the United Kingdom they will also recover it in the colonies, since no colonial law has deprived them of their nationality.

We think it advisable that the Governors or chief officers in the colonies should have a similar power to readmit such persons to British nationality upon the same conditions as to residence and otherwise as those prescribed for readmission in the United Kingdom. Persons so readmitted will thereupon revert to their former rights, as in the case of readmission within the United Kingdom.

VII.

In the foregoing recommendations we have endeavoured 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 or citizen, and to obviate, as far as possible, the difficulties and inconveniences arising from such a double allegiance. But this, we are aware, cannot be done, otherwise than imperfectly, by British legislation alone; it requires the co-operation of foreign Governments and Legislatures.

If Great Britain renounces the doctrine of indelible allegiance, and acknowledges that British subjects can divest themselves of their nationality by foreign naturalization, it may be hoped that the same principles will be recognized by other countries with respect to aliens naturalized within the British dominions; and we accordingly recommend that efforts should be made to procure that reciprocity, as well as to secure to the children of British subjects born abroad, the same power of choosing their nationality, which it is proposed to confer on the children of alien parents born within British territory.

This might be effected by agreements or conventions concluded with different States separately; or better, perhaps, by means of a general understanding arrived at, in conference or otherwise, by the Powers most interested in the subject.

VIII.

Among other matters which have been brought under our notice, we have had occasion to remark the unsatisfactory results of the operation of the law enabling aliens to claim a jury de medietate linguæ.

The mixed jury was instituted by Edward III. as an encouragement to foreign woollen merchants to resort to the English market (27 Edw. III. stat. 2. c. 3, and 28 Edw. III. c. 13).

The clauses of the statutes enacting it were confirmed by the Act 8 Hen. VI. c. 29, and by the last Act for consolidating and amending the laws relating to jurors and juries (6 Geo. IV. c. 50).

It is settled law that those members of a mixed jury who are foreigners need not be of the same nationality as the alien; they need not even speak the same language, but may each of them belong to a different nation and speak a different tongue.

We see no advantage in the maintenance of such a system, whilst the inconveniences which may arise from it are obvious; and we accordingly recommend that the statutes authorizing trials by mixed juries should be repealed.

We have not thought it necessary, in making these recommendations to enter into any general review of the subjects referred to us; as a full account of British and foreign laws, and of the diplomatic correspondence which has passed between your Majesty's Government, the Government of the United States, and other Governments is contained in the Memorandum by our secretary, Mr. Abott, and other papers annexed to our Report.

* We concur, except on one point, with the recommendations of the Report. As that point is important, we think it right to express our dissent, and to state, very briefly, the reasons on which it is founded.

The Report recommends (section IV., recommendations 1, a. b.) that the child born within the dominions of the British Crown of an alien father, should be regarded by British law as a British subject. This is the subsisting rule of the common law. A majority of the Commissioners think that it should be retained, but that provisions should be engrafted on it, which would enable such persons during minority or at any time afterwards to assume, by simple registration, the condition of aliens. We think otherwise, for the following reasons:-Such a law tends to produce, and must produce in many cases, that double allegiance which we all hold it desirable, as far as possible, to extinguish

(Report, section VII.). It is inconsistent in principle with the recommendation that the child born abroad of a British father, should be regarded by British law as a British subject. It is at variance with the law and practice of other European States. It agrees indeed with those of the United States of America; but this very agreement, if examined, will be found to be such as to make a conflict of claims between the two countries more probable. 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. He could not, if he happened to be here, be justly made amenable to any duties other than such as the law imposes on all commorant foreigners. But he would, nevertheless, possess the rights of a subject, without having any real title to them. He might renounce indeed, if he pleased, his British allegiance. But why should he renounce that which might be a benefit to him, and could not be a burthen? If, on the other hand, he were regarded as an alien by birth, he could (provided he were resident here) obtain the advantages of British nationality by undertaking its obligations.

We do not dispute that the common law rule, which impresses British nationality at the moment of birth on all persons born on British soil, has arguments of some weight in its favour, nor that the substitution of a different rule would be attended by some inconveniences. But these inconveniences, which would rapidly diminish as the new rule became known and understood, do not in our judgment constitute a sufficient reason why, in deliberately revising our law on a matter which concerns foreigners as well as Englishmen, we should forego the great advantage of legislating on a consistent and generally accepted principle, and that principle one which is intrinsically reasonable and sound.

The qualification that, where the father, though an alien, was born here, the child, likewise born here, should be deemed a British subject, appears to us to limit conveniently the application of the principle, without substantially breaking in upon it. An analagous provision has been adopted in French law.

GEORGE W. W. BRAMWELL.
MOUNTAGUE BERNARD.

+ Concurring as I do in the fundamental recommendation of the Report contained in its first section, I have thought it right to sign the Report.

I feel compelled, however, after the best

consideration I have been able to give to the subject, to dissent from the scheme contained in section IV. of the Report, for determining the nationality of children of foreign parents born within the realm.

Most persons will probably agree that the true rule for determining nationality, if it were practicable, would be found in the principle of domicil, i. e. that the home of a man's choice should also be the country of his allegiance; and indeed the Report asserts the soundness of this principle. The difficulty, however, of ascer taining the true domicil of a person resident in a foreign country, in the legal acceptation of that term, is a bar to itsadoption in a case where it is requisite that the rule should be simple and obvious. Of all questions of law those which concern domicil are the most complicated and obscure, because they ultimately depend upon intention, which is necessarily of all things the most difficult to determine. We are driven, therefore, to adopt some less accurate but more practical rule, which shall approximate to, though it may not reach the same result.

In the case of persons born within British territory, of British parents, the presumption of British nationality and British domicil is of course conclusive. In the case of persons of British origin who have formally accepted a foreign naturalization, the presumption of change of domicil, and therefore of nationality, is sufficiently evidenced by the overt act of naturalization; and to such a condition of things the provisions of section I. of the Report apply themselves. Here the nationality follows distinctly the domicil which is clearly ascertained.

But there exist, further, two classes of cases with which section IV. of the Report deals, viz. (1) that of the children born of British parents abroad, and (2) that of the children of foreigners born in the dominions of the Crown. In these cases the real domicil may be said to be indeterminate, or at least ambiguous. For the British subject resident abroad or the foreigner resident in England may in either case desire to adhere to the domicil of his origin.

Hitherto, as is well known, by the common law of England, inherited rather than adopted by the United States, the nationality of such children has been determined solely by the locality of their birth. The inconveniences of this princi ple, where rigorously applied, have been universally recognized. The statute law of England and America has made provision to remedy its operation in the case of the children of their own subjects born abroad. Indeed the rule is wholly inde