fensible in principle. By the law of all modern nations the condition of the child primarily depends on that of the father. But the doctrine of deriving nationality from the locality of birth makes it depend on the accidental situation of the mother; and by this rule a child may become a subject of a country in which his father not only never made his home, but which he never even entered.

The rule of determining nationality by locality of birth was of purely feudal origin, and accordingly in the legislation of modern Europe since the French Revolution it has been discarded as the governing principle amongst continental nations. The Code Napoléon has adopted another principle; viz. that the nationality of the child should follow the nationality of the father, in the absence of any proof of an election on the part of the child to adopt the nationality of the country of his birth. This doctrine seems sound in principle. In the absence of naturalization by the father in the country of the birth of the child, there is no ostensible evidence of the desire of the father to change his domicil or his country. The nationality of the child ought not therefore to be altered whilst that of the father remains unchanged, except by some deliberate act of the child. That this principle is also convenient in its operation is proved by the fact that almost all continental States have in practice adopted the doctrine of the Code Napoléon; and, as has been mentioned above, it has been incorporated into the statute law of England and America in the case of their own subjects born abroad. That the Commissioners do not dissent from this rule is shown by the fact that in section IV. (§ 2) as to persons born of British fathers out of the dominions of the Crown, they recommend that the nationality of the child shall in the first instance be determined by that of the father.

But in the same section (section IV., § 1), in the case of children of foreign parents born within the realm, the Report proposes that the old rule of the locality of birth should primâ facie prevail.

From this latter recommendation I dissent, and that for several reasons.

(1) If it is desirable to recast the doctrine of nationality by such extensive changes as those proposed in the Report, it seems expedient to found the whole system on some intelligible and selfconsistent principle. It would be difficult to suggest any reason for adopting the rule by which the nationality of the father determines that of the child in the case of the children born of British

fathers abroad, which does not equally apply to the case of the children born of foreign fathers in England; and to lay down an opposite rule in the two cases seems not only indefensible in principle, but to be a course which, in respect of policy, is very likely to be misunderstood by foreign governments. If, whilst we assert that the child born of an Englishman abroad is a British subject, we also claim that the child born of a foreigner in England is likewise a British subject, it will be thought that acting for our own advantage on inconsistent principles we are grasping at the combined chances of a double event.

(2) It seems very desirable, as is stated in section VII. of the Report, to lay down some rule in which all or most States are likely to agree. 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 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, 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 primá 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 children 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 doctrine 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 individual 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 connexion 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 fulfil 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, whilst 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 re-enact it would be to give fresh authority to a principle the inconvenience of which is sufficiently apparent. Nothing can be more politically inexpedient 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 or domicil, 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 domicil by some formal act which, whilst 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. 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 connexion 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

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 importance 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 new 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; whilst 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 domicil the governing rule of nationality; for though the presumption of domicil 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 domicil 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 this is more than doubtful) to create a class of persons who shall be capable of all the privileges whilst 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 burthens 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 whilst 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

66

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 born" (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.

1.-AN ACCOUNT OF THE GROSS PUBLIC INCOME OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND, In the Year ended the 31st day of December, 1868, and of the actual Issues within the same period, exclusive of sums applied to the Redemption of Funded or paying off Unfunded Debt, and of the Advances and Repayments for Local Works, &c.

Total Ordinary Expenditure £73,657,280 5 5

Expenses of Fortifications provided for by Money raised per
Acts 28 & 29 Vict. c. 61, and 31 Vict. c. 145

425,000 0 0

Remaining in the Exchequer on the 31st day of December, 1867; the amount of Money raised by additions to the Funded or Unfunded Debt, and the amount applied towards the Redemption of Funded or Paying off Unfunded Debt in the Year ended the 31st day of December, 1868; the total amount of Advances and Repayments on account of Local Works, &c., in the same period; and the Balances in the Exchequer on the 31st day of December, 1868.

1,000 0 0 1,000,000 00

100,000 0 0

100,000 0 0

17,789
UNFUNDED DEBT :-
Exchequer Bonds, as follows:-

Series N., per Act 30 Vict. c. 31, dated 27th March, 1868, and payable 27th March, 1870

Deduct-Amount applied in repayment of Bank Advances for Deficiency

Exchequer Bonds paid off, viz. :

Series M., dated 27th March, 1866

Exchequer Bills paid off in Money

Bank Advances in aid of Ways and Means repaid

Advances for Purchase of Bullion, and for Local Works, &c. 1,413,459 17 1
Advances for New Courts of Justice

Excess of Total Expenditure over Income, in the Year ended 31st December, 1868

Balances in the Exche- (At the Bank of

Advances for Greenwich Hospital

425,000 00

120,000 0 0

England +2,606,084 12 5 quer on the 31st De- At the Bank of cember, 1868

..

Ireland

1,086,684 9 1

3,692,769 1 6

. 1,000,000 00

Series P., per Act 31 & 32 Vict. c. 27, dated 23rd September, 1868, and payable 23rd September, 1869

Bank Advances in aid of Ways and Means, per Act 31 & 32 Vict. c. 85, s. 2, received in the quarter to 31st December, 1868, and repaid in the same quarter Repayments on account of Advances for the Purchase of Bullion, and for Local Works, &c. Repayments on acct. of Advances for New Courts of Justice Repayments on account of Advances for Greenwich Hospital

* No balance remaining of the Money raised for Fortifications. Treasury Chambers, Whitehall, 14th January, 1869.

£9,571,115 14 11

1,000,000 0 0

1,575,801 2 6 85,000 0 0 122,284 3 7

+ No balance remaining of the Money raised for Fortifications.