§ Order of the Day for the Second Reading, read.
THE LORD CHANCELLORMy Lords, the Bill which I am about to ask your Lordships to read a second time is founded in great measure upon an elaborate Report made by Commissioners who were appointed the year before last to inquire into the state of the law as to natural-born subjects, and their condition when in foreign parts on the one hand, and the status of persons who have acquired by the law rights of naturalization in this country on the other. That inquiry, of course, involved a general inquiry into the whole subject of the status of foreigners and of citizens or subjects in this country. Now, in every independent State there exists in the Sovereign power, whatever the form of government may be, the right of controlling the actions of all who reside within its territory; but the exercise of this control binds two distinct classes—on the one hand, those who are its subjects or citizens, and form a part of the nation of which the Sovereign power represents the collective will and on the other those who in like manner are citizens or subjects of some other State, and whose condition both as to rights and duties is, of course, in many respects very different from that of the subjects, or citizens of the State. In respect of duties, the alien owes the same duty to the Sovereign power in the country in which he resides as any citizen of that country; but the moment He quits the territory of that State that power loses all control over him. On the other hand, the State is not bound to exercise any authority with reference to his protection when he has ceased to reside there. As regards citizens or subjects of a State, the Sovereign power of that State to which he belongs controls his actions even when he may be beyond its territory. To use a convenient term, which doubtless had a feudal origin, he owes allegiance to the State of which He is a member, and he cannot commit any 1119 act inconsistent with his duty in respect of that allegiance without being gravely responsible for it; whether it be committed at home or abroad. On the other hand, he is entitled to the ægis of the State for his protection in whatever country he may be residing, if he be treated in a manner inconsistent with the recognized law of nations, and requires the protection of the country to which he belongs. Now, it is easy to say that these two classes of individuals are to be found in almost every territory governed by an independent Power; it is not so easy to say by what criterion you can distinguish each class. Accordingly—as has been shown at length in the Appendix to the Commissioners' Report—there prevail in different countries of Europe and in the United States of America various and differing modes of ascertaining who are and who are not to be regarded in the light of subjects or citizens. It will be most convenient, with reference to the short Bill now before us, that I should state to your Lordships what our own custom of procedure is. In this country we hold everyone born within allegiance—that is to say, with in Her Majesty's dominions—to be a natural-born subject, no matter who his parents were. This, if it stood alone, might seem a logical and reasonable mode of determining who are and who are not subjects of the Crown—for there are difficulties in any mode that can be devised, and the simple fact of birth, being of easy proof, might form a sufficient criterion. I believe it would be found on minute examination that in the early ages nearly all countries held the same doctrine that we do; but that view does not prevail now, at all events, in many foreign countries. In France, for instance, it is held that a person born there of French parents is jure soli a French citizen, but that a child born there of a foreign resident is jure sanguinis a citizen of that country to which his father belongs; unless when of full age he claims French citizenship, which privilege is then granted to him providing his father was residing in that country at the time of his birth. England, moreover, I am afraid, has not been consistent in the doctrine which she has held; for if, on the one hand, she held all persons born within the dominions of the Crown to be British subjects, she ought equally to hold those 1120 born without the allegiance of the Crown to belong to those countries where they were born. But, so far from doing this, from a very early period in our history, and from a variety of motives, Acts of Parliament have been passed enacting that children of British parents born abroad should have the privilege and status of British subjects. These Acts commenced as early as the reign of Edward III.; and there is an Act of Anne by which the child of every British father, whatever was the mother's nationality, acquired all the privileges of a British subject; and other Acts passed in the reign of George II., by which the same privilege is extended to the grandchildren of British subjects. Your Lordships will very easily see the anomalies which must arise from legislation of this description, if carried out to its strict logical results; for instance, having accorded the privilege and the Act being silent in respect to duties, it would seem to follow as a natural consequence, that one who by the law of France or America might well be claimed as a subject of the country, is considered by us, if he be the grandchild of an Englishman who had taken up his residence there, as a man owing allegiance to this country, subject to all the consequences of his acts if they in any way militate against the letter of a law imposed upon him at his birth, without any acquiescence on the part of himself or his parents. We might in consequence be involved in very serious difficulties. Under these circumstances, it cannot be said that we have much to boast of as to any systematic mode of ascertaining who is and who is not a British subject. Another inconvenience, too, has arisen from the well-established doctrine of our law, that a person once a British subject cannot in any way divest himself of that status. The maxim Nemo potest exuere patriam, held not only by us but by many other countries, lays down that a man once a British subject is held to all the duties of that status; but, whilst we hold to this doctrine as regards those made British subjects by Act of Parliament, we have shrunk at all times from following it to its legitimate consequences. No instance, I believe, can be found in our law books of any such person being punished for breach of duty towards this country in respect of acts done by him abroad, such as joining the army of an alien 1121 enemy, which would be treason in any ordinary subject. As I have said, this doctrine of the impossibility of a British subject renouncing his nationality has been found, especially of late years, productive of the most extreme inconvenience. In making this remark, I am speaking chiefly of our own country; but I am afraid I cannot say that the other nations of Europe have exhibited much more consistency in the matter. Some have proceeded on the contrary principle, by regarding the jus sanguinis as well as the jus soli, and in that way have avoided any special legislation; but anyone who investigates the matter will find that we are not alone in our inconsistency. The United States, I believe, until a very recent period, adopted our law, and followed exactly the same doctrine as we ourselves have done, and have, consequently, been subjected to much the same inconvenience. But I shall abstain from entering at any length into the question of the law relating to this double nationality. I shall only repeat that in 1868 a Committee was appointed to inquire into this subject, at the head of which was the noble Earl the present Secretary for Foreign Affairs, the other members being the present Secretary for War, the Judge of the Admiralty Court, the then Attorney General, the then Judge Advocate General, Sir Roundell Palmer, and other gentlemen of eminence at the Bar, and Sir, Baron Bramwell, and they were aided in the preparation of their Appendix by a gentleman of extraordinary ability—Mr. Charles Abbott—who has there collected the law of all the countries of Europe on the subject. Beyond that, too, we have lately had the advantage of a most lucid explanation of the contents of that Appendix, arranged with a clearness which brings home to everybody's mind the exact state and position of the question in a small work, by the Lord Chief Justice of England, on Naturalization. Those, therefore, who are desirous of seeing the various inconsistencies into which different European nations have been led in the course of their legislation may do so by a simple perusal of a few pages of these works. I shall therefore save the time of your Lordships if, after these references, I ask you to take it for granted that great inconveniences do really exist. Now, it might have been thought at first, that the best step to take in legislation would 1122 be to lay down a clear definition of what ought to be held to constitute nationality as regards the subject, and the nationality of an alien as contradistinguished from a subject; but the more this is looked into, and the more we see the inconsistency of different countries, the more clearly appears the impossibility of effectually attaining that object by any Act of Parliament, for we should be legislating in a manner which affects to bind those who are resident in another country, and subject to a totally different jurisdiction, over which we have no control. Consequently, it appears to me that if any definition of that kind is to be laid down, as I hope it will be, it must be by the mode pointed out by the Lord Chief Justice and by the Commissioners—namely, by international accord and treaty, rather than by legislation. In the meantime, however, there is a subject which can be dealt with, and which imperatively demands legislation—the question whether or not a man should be allowed to have a double nationality. The inconvenience of a double nationality began to be felt in the early period of our history, at the time when the Crowns of England and Scotland were first united, it being difficult to determine what should be the nationality of those residing in the two countries; great perplexities arose at that time, but they became much more serious when facilities of transport between nations led to large emigrations and to a desire to break through the maxim which had declared that a man once an Englishman must remain an Englishman for ever. Many thousands of our countrymen from time to time passed over to the United States and accepted naturalization there on the terms on which alone it was granted—namely, of renouncing British nationality. It became, therefore, a question how this country was to deal with men who had affected to renounce—for renounce they could not—British nationality, and who were found acting in any hostile manner to this country in the event of hostilities breaking out between the two nations. The difficulties surrounding this dilemma were well exemplified by the events that led to the War of 1812, when the difficulty reached a fearful height; and it was only by the exercise of great forbearance and temper on both sides that the most disastrous results were averted. 1123 At that time this country exercised what was called "the right of search," and insisted on looking for and seizing our subjects in the vessels of neutral countries; while during the American War we carried the right still further, and insisted on seeing whether such men were guilty of bearing arms against this country, with a view of treating them as traitors. In one case we seized six men who had long resided in the United States, but who proved to be English subjects; and on our threat of proceedings twelve officers and junior officers were seized by the American Government, while we, again, seized a still larger number. Threats of retaliation passed on both sides: it was threatened that if one side put any to death, twice the number would be executed by the other side. Thus there arose the danger of a fierce retaliation, which must in the long run have been disastrous to both sides, and of a system of barbarous reprisals, which have disgraced some other countries in our own time, but never our own. The good sense of both nations obviated this; but the mere fact of such a thing as this double nationality existing necessarily gives rise to complications; and this being the case, your Lordships will at once see the necessity of getting rid as far as possible of this question. The Commission to which I have adverted recommended that the question should be settled on the basis of certain principles which should be adopted, if possible, by all countries. They recommended that when a person had fairly and voluntarily caused himself to be naturalized in one country, he should cease, ipso facto, to be subject to the country which he had quitted, and become the subject of the country he had adopted. They further recommended that, inasmuch as it would be well to make these regulations retrospective, and clear the whole question at once, it might be advisable to allow a period of time within which any person who, at the passing of the Act, has been so naturalized in any foreign country, might, if he thought fit, give up such naturalization, and return to the country of which he was originally a citizen. That is a very important point. They also entered into the question of nationality, and came to a recommendation which, for the reasons I have already given, will not be carried into effect by the Bill, 1124 but will remain a subject for treaty. The question next arises—What is to be done with the wife or child of a person so naturalized? At present an Englishwoman marrying an alien remains an Englishwoman, and does not lose her nationality. But there are great inconveniences in the wife being a citizen of one country and the husband of another. The domicile of the wife, the law by which her property and relations with her husband and family are regulated, is the same as that of her husband—and so with the children of any person domiciled in a foreign country; but with nationality it is different; and the proposal of the Commission, which is carried out in this Act, is that the wife shall acquire the nationality of her husband. The case of the children is, however, different. With regard to them, it is proposed that children who are minors at the time of their father's naturalization shall, if they reside with him in the country of his adoption, become also subjects of that country; but that children who do not reside in the country where the father is naturalized shall not become subjects of that country. The reason for this difference is obvious. Children may have embarked in pursuits in their own country which they prefer to any career open to them in the country of their father's adoption; they may, though under age, be in our Army or Navy, and we should not think of converting them into Frenchmen, Germans, or Americans, because their fathers had chosen to settle and be naturalized in those countries. They, however, will, at the proper time, have the option of claiming their naturalization as a right. Another question which came before the Commission, and has been considered by the Government, is, whether or not the present procedure with regard to naturalization should be retained. The procedure has been changed by various Acts of Parliament; but by the Act 7 & 8 of Her Majesty, c. 66, the Secretary of State may grant a certificate of naturalization, subject to certain conditions, some imposed by statute, and others by the Secretary of State at his, discretion. One of the conditions imposed by the Act is, that no person naturalized shall be eligible for a Privy Councillor, or for a Member of either House of Parliament. Those exceptions, I believe, date from the reign of 1125 William III, when an Act was passed regulating all Naturalization Acts in that respect. At that time there was, doubtless, considerable jealousy of the introduction, by a foreign Monarch, of foreigners who might be his favourites as Privy Councillors or Members of Parliament; but it did not appear to the Commission or to the Government necessary that this limitation should be continued, and we conceive that naturalization should include all the privileges of a British subject. Your Lordships will thus see that the Bill will get rid of many of the difficulties arising out of a double nationality. But if we had merely got rid of that question, we should find that other difficulties would have been created. There will, of course, be countries with whom, unlike the United States, we have made no treaty, and by naturalizing a person from such a country we may find ourselves placed in considerable difficulty in the event of his returning to that country. That complication arose in the American War, and more lately in the Fenian difficulty; and it might arise with reference to persons who might come here, and might procure naturalization, afterwards returning to their original country with purposes hostile to the country to which they originally belonged, and might then claim the protection of this country as having become its citizens; and there would evidently be a difficulty as to protecting them as British subjects while they were acting contrary to their original allegiance in another country. The Commission consequently recommended that naturalization should confer, the privilege of a British subject, and entitle persons to protection as such in every country except that to which the man originally belonged, if he choose to return and place himself in its power, or subject himself to any procedure which that country may adopt with reference to any acts of his. It is not reasonable or right that when we have conferred this privilege for the purpose of allowing such persons to engage in pursuits suitable to their energies they should expect us to protect them against the consequences of their own acts when they return to the country of which they were originally subjects. It is now necessary to call your Lordships' attention to one or two other important points. The first is, that this Bill makes it legal 1126 for an alien to hold land. The first clause provides that a foreigner may acquire and dispose of real and personal property of every description. At present, though He may possess any amount of personal property, he can only hold land on lease for twenty-one years for the single purpose of residence. That exception originated in the supposition that persons came here for mercantile purposes, so that they might have houses or warehouses; but there seems no reason why the full power of holding real property should not be conferred upon them. Some reasons may have existed formerly from jealousy of foreigners acquiring undue influence, at times when we had Monarchs with foreign possessions, or who were of foreign origin, and who might be disposed to parcel out among their favourites large tracts of land—reasons not very strong at the best. These reasons no longer exist, and the sooner we get rid of this invidious distinction the better. In France, since 1819, all foreigners have been allowed to possess property of any kind; and the countries which have followed the Code Napoleon have, in some cases, adopted the same course, from which no evil that I know of has resulted. In some countries there is a clause on which the Lord Chief Justice has commented with his usual perspicuity, that every foreigner shall possess in that country the same privileges as that accorded to him in any other country; whereas, in fact, none of them take the first step of offering any privileges at all. The clause contains a proviso that it shall not confer any right to hold property situated out of the United Kingdom—for we cannot govern the Colonies, having Legislatures of their own—and shall not qualify for any office or municipal, Parliamentary, or other franchise. It is obviously reasonable that, having no permanent interest in the country, they should not enjoy any such privilege. There is also a proviso that the clause shall not affect any existing rights; so that persons who have succeeded to property, in consequence of the incapacity of an alien, shall not be affected. I must now refer to one of the reasons for bringing forward this Bill at the present moment—a reason which was adverted to in Her Majesty's Speech. It is this—that a treaty was entered into with the United States between the appointment of the Commission and their 1127 Report by the Minister for Foreign Affairs, then Lord Stanley (the Earl of Derby), and Mr. Reverdy Johnson, the representative of the United States Government. The Protocol is dated the 9th of October, 1868, and it provides, that such British subjects as have, or, shall become naturalized according to the law within the United States shall, subject to Articles 2 and 4, be held by Great Britain in all respects and for all purposes American citizens, and treated as such. There is a reciprocal clause with regard to American subjects naturalized in this country. The 2nd article, provides that such British or American subjects who, at this moment, are naturalized citizens of the other country, shall be at liberty within two years after the Protocol shall have been carried into effect publicly to renounce their naturalization, as provided by Article 4, and reclaim their original nationality. Article 4 provides that the concurrence of Parliament being necessary for such a revision of our existing laws as the principles embodied in the Protocol involved, the treaty shall not take effect until such legislation has been accomplished. We were bound, therefore, at the earliest opportunity, to introduce a Bill giving effect to the treaty. There is one important provision of the Bill which I have omitted to mention. With regard to repatriation, the plan will be similar to naturalization, and power is given to widows and children to reclaim their original status. The Schedule of the Bill contains the statutes which will be repealed, in the preparation of which great care has been necessary, and I believe the measure which I have now described will put our whole system in a complete state, with the exception—an important one, I admit—of a clear and well understood definition of what shall constitute the status of citizenship, which I hope may be effected by arrangement with the various States with whom we are on friendly terms. There would be great inconvenience in any hasty legislation on that point, for only a year ago; the question was seriously mooted in France by Marshal Niel, as War Minister, whether it was not desirable to repeal the law recognizing the children of foreigners when born in France as foreigners, on account of the loss arising from their exemption from the conscription, and to adopt a principle similar to 1128 our own. If, therefore, we precipitately took France as a model, it might happen that that country would simultaneously be making a change in an inverse direction.
§ Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
§ THE EARL OF DERBYMy Lords, entirely agreeing in the general scope and principle of this Bill, I should not have thought it necessary, after the noble and learned Lord's full and clear exposition of it, to trouble your Lordships with any remarks, but for the fact that the measure has arisen partly out of the inquiry of a Commission presided over by my noble Friend opposite (the Earl of Clarendon), and appointed on the recommendation of a Government of which I was a Member, and partly out of a Protocol which it was my duty, as then representing the Foreign Office, to sign in October, 1868, with Mr. Reverdy Johnson, at that time the Minister of the United States. The effect of that Protocol, putting it in the fewest and clearest words, was to pledge the Government of this country to bring before Parliament the question of naturalization, and on behalf of the Crown, subject, of course, to the sanction of Parliament, to accept as a basis of legislation the principle that Americans naturalized in England, and British subjects naturalized in America, should be reciprocally free on certain conditions from their native allegiance. It is in fulfilment of that pledge that this Bill is now introduced. I do not apprehend that its leading principle, the abrogation of the old legal rule, Nemo protest exuere patriam, will meet with serious objection from any side; for the fact is that this old rule of law, however expedient and useful it may have been in other times and in a different state of society, has become obsolete and is inapplicable in the case of a country which, like England at the present day, encourages emigration on a very large scale. The operation of the ride was to place us in this false and even absurd position—that over hundreds of thousands, perhaps millions, of persons now permanently settled in the United States we had legal rights which it was notoriously impossible to enforce; while they in return had a right to claim from us a protection which it was also notoriously impossible 1129 for us to afford. Now, it seemed to me, and to those who acted with me, that the sooner that state of things was put an end to, the sooner law and fact were brought into accord, the better it would be for all parties. We thought, moreover, that the change which we proposed, and which the Bill is the means of carrying out, was not so much a concession to any American claim or demand as a step taken in our own interest, with a view of relieving ourselves from duties which we had no means of discharging, and of abandoning nominal rights which it was not in our power to make use of. The fact is that from 1796 to the present time this question has been an almost constant subject of dispute and controversy between England and the United States. It led, as the noble and learned Lord explained, to the War of 1812. It was a subject of negotiation in 1815, and again in 1842. It was once more discussed in connection with the Irish disturbances of 1848. It cropped up again on the occasion of the Fenian movement; and I have not the least doubt that if the matter had remained unsettled it would have continued to be heard of year after year, and generally at the most inconvenient times. It seemed to us, therefore, that in cutting the knot at once, and abandoning a right which in the present generation at least we have never attempted seriously to enforce, we at least lessened by one the chances of a rupture between England and the United States. On the main principle of the Bill that is all I have to say. With regard to the abrogation of the jury de medietate linguœ—the principle of mixed juries in the trial of aliens—I look upon it as an unmixed advantage. It is not always easy to find such juries; it is not certain that when found they will be the most intelligent or the most unprejudiced that can be found. Indeed, the probability is rather in a reverse direction, because in general the field of selection is so very small. It seems to me, moreover, that it is stigmatizing ourselves as a nation very unjustly to assume that the prejudice against foreigners is such that an alien on his trial will not have a fair trial before British subjects. If there be one point in the Bill to which, on theoretical grounds, I might entertain objection, it would be to the permission to aliens to hold real property. In 1130 theory a good deal of objection might be taken to that. We can all understand that it would not be a convenient or desirable state of things if any large portion of the soil of this country were in the hands of persons who were citizens of another country, but that is practically not likely to arise. The clause is one which is not likely to be taken advantage of on a large scale, and no withstanding the present prohibition, by means which the ingenuity of lawyers has had no trouble in devising, aliens do manage even as the law now stands to hold real property. It is fair and better, therefore, that they should be entitled to do directly that which at present it is in their power to do indirectly. I will not trouble your Lordships any further. I will only repeat that it is because I am in some sense responsible for this measure, that I have felt myself bound to state thus my approval.
THE EARL OF CLARENDONMy Lords, after the very lucid explanation of my noble and learned Friend on the Woolsack, and the able speech of my noble Friend opposite (the Earl of Derby), I can hardly think myself justified in troubling your Lordships—certainly not at any length. Having, at the request of my noble Friend opposite, presided over the Commission which sat two years ago, I think it right to say that the main object of that Commission was to consider the question of naturalization; that is to say, whether as regards British subjects they should still retain their nationality although they may have acquired naturalization in another country. It is perfectly true, as my noble Friend has stated, that the old common law doctrine which formerly prevailed in the matter has fallen into desuetude, and long since ceased to be put in practice; but it still stood greatly in the way of any legislation with regard to naturalization; and the Commissioners were unanimously of opinion that it ought to be abolished; and I will take the liberty of reading a very few lines to your Lordships as containing the opinions of the Commissioners on the subject. They say—
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 1131 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 connection with it.These were the conclusions of the Commissioners, and I think they will meet with the general concurrence of your Lordships. My noble Friend (the Earl of Derby) has said that while the Commission was sitting he was in negotiation with Mr. Reverdy Johnson on the subject. Mr. Reverdy Johnson had received instructions not to enter into negotiations on any question until that of naturalization had been settled; and my noble Friend, well knowing what the feelings and opinions of the Commissioners would be on the subject—that they must be the feelings and opinions of any man of common sense in these days of constant and repeated intercommunication—my noble Friend took upon himself the responsibility—most properly as I think—of signing the Protocol with Mr. Reverdy Johnson, by which English subjects were permitted to adopt the citizenship of the United States, with, of course, the reciprocal condition that American citizens might be naturalized in this country. This Protocol, as your Lordships have just heard, required, of course, Parliamentary legislation. The labours of the Commission lasted longer than we expected; their Report was not sanctioned until last February twelvemonth, and it was the desire and intention of Her Majesty's Government to bring in a Bill on the subject, founded on their Report, with the smallest possible delay. It was therefore a matter of sincere regret that we found ourselves unable to do so last year, as I explained at the time to Mr. Motley. I am sure your Lordships will recollect how entirely the attention of Parliament was at that time occupied by one great and absorbing subject, and how many matters of domestic legislation we were obliged to postpone. It was therefore impossible for Her Majesty's Government to bring in a Bill. But the delay is of no great importance, because even if we had been able to bring in and pass 1132 a Bill last Session, it would have been impossible to send over the draft of the treaty in time to have it considered by the Senate of the United States. Therefore, not much time has been lost; but I allude to the matter in order to remove any doubt that may exist in the minds of people in the United States as to our being anxious to take the earliest opportunity to fulfil the engagement entered into with their representative by my noble Friend opposite. The Bill now before your Lordships is, as you have heard, for the purpose of giving effect to the Protocol upon which the treaty must be founded. But it is not limited to that. It is of general application, as the noble Lord has said who has already addressed you. I intended to advert to some questions that necessarily came under our consideration; but they have been so fully explained by my noble and learned Friend on the Woolsack, that I do not think it needful to detain your Lordships. I will only advert to one point—that of enabling aliens holding land in this country. I do not think there is any danger to be apprehended from that concession, as my noble Friend opposite seems to suppose. I do not imagine that land would be bought or hold by foreigners to any large extent, and we all know that foreigners do hold land at this moment beyond the twenty-one years which they are allowed to do, by means of legal devises that are open to all. I am very glad that my noble Friend (the Earl of Derby) approves doing away with mixed juries, and for the reasons that he has stated. The principle was adopted in the reign of Edward III., for the purpose of attracting wool merchants to this country, and was renewed from time to time by subsequent legislation. But there is no provision that the aliens on a jury should be of the same nationality as the alien tried; they may each of them speak a different language; and therefore there is no longer any reason I for continuing a system the inconveniences of which are manifest, and have long been experienced. As to the question of the repatriation of persons who have lost their nationality but desire recover it, the plan that we propose is similar to that by which an alien will be able to become naturalized. Upon all these subjects, and upon one or two more touched on by my noble and 1133 learned Friend, the Commissioners were unanimous. But as to the common law principle—that every person born in Great Britain should be a British subject—there was a difference of opinion. The majority desired that every person born in the country, even the son of an alien, should be a British subject, but with power to divest himself of our nationality; the minority, on the other hand, desired that the law should be altered, and that some provision should be made like that of the Code Napoleon by which the children of aliens are considered aliens. But whether the son of an alien shall be considered a British subject, with power to be registered as an alien when he attains his majority, or whether he is to be considered as an alien, it is clear, when we come to deal with other countries, that as English subjects are of all nations and all tongues, it would be extremely difficult in our Colonies to ascertain who is an Englishman; and the vast question of nationality is so interwoven with British interests in so many countries, that any great and sudden change would undoubtedly inflict great hardship. And although it is said that by adopting the principle of the Code Napoleon we should bring ourselves into greater harmony with the legislation of Continental States, when you come to look into the matter very closely you will see that the differences are very great. Moreover, we should by adopting it run the risk of differing from the United States—a country with which, above all others, from our constant intercourse, from our common language, and from our extensive commercial relations, it is most important that we should be in harmony. If we were to adopt the principle of the Code Napoleon—that the son of an alien should be considered an alien—then we should also adopt the converse, that the children of British subjects in the United States should be regarded as British subjects. And when you reflect that ten years ago, in 1860, there were 2,500,000 British-born subjects in the United States, I think it requires no very great stretch of imagination to see what fierce controversies might arise from the adoption of any such principle.
§ LORD WESTBURYwas understood to express his approval of the general principles of the Bill. He had himself used his earnest instances with Lord 1134 Palmerston to be permitted to introduce a measure to enable aliens to take and hold landed property in this country; but his noble Friend, notwithstanding his enlarged views, refused his consent, no (Lord Westbury) thought that the language of some of the clauses required amendment in order to render them more clear. For instance, the clause relating to the admission of aliens ought to be made more comprehensive. The true principle in the case of naturalization he believed to be this—We ought not to accept a man as a subject by naturalization unless it had been previously ascertained that the laws of his own country accorded him the necessary permission. It was undoubtedly true that any agreement with regard to nationality could not be obtained without a general consensus of European States on the subject; and he cordially agreed with his noble Friend who had just sat down (the Earl of Clarendon) in commending the conclusion the Government had arrived at in not attempting to deal with the whole question of nationality until some common European consent had been obtained with regard to the principle to be adopted by all the States. For that agreement we might have some time to wait; but until that consent be obtained, any attempt to deal with the question would result in aggravating instead of diminishing the existing evils. His noble and learned Friend on the Woolsack had referred, with great propriety and force, to the evils resulting from a system of double nationality. It was in truth an evil which they were bound, as far as possible, to remove but he doubted whether the Bill now under consideration would have that effect. The difficulties connected with the subject were apparent throughout the Bill. In the first paragraph, for instance, they would find the system of double nationality. It was limited, undoubtedly, to British subjects who became naturalized in foreign countries; but we gave what might possibly prove a very large class the privilege of being restored to British nationality, and that without the consent of the country which might have adopted them, and in which they might have become naturalized. What it was proposed to do was to tell these persons that they might, if they chose to make a certain declaration, be re- 1135 mitted to their former status, as if it had continued without interruption, with the limitation that within the State where they had been naturalized they should cease to be deemed British subjects unless they had ceased, in pursuance of the laws thereof, to be the subjects of that State. But if they had chosen to go abroad and be naturalized, why should they be at liberty to drop the status they had acquired without the consent of the country from whom it had been obtained? But that was not the only reason for objecting to the mode in which the system of double nationality was treated in this Bill. If their Lordships would turn to the 6th section they would find that an alien who obtained a certificate of naturalization would in the United Kingdom be entitled to all political rights, powers, privileges, and so forth, with the exception that when within the limits of the foreign State of which he was a subject previous to the granting of the certificate, He should not be deemed a British subject unless he had ceased to be a subject of that State in pursuance of the laws thereof. But this would leave open a very fruitful source of controversy. A certificate granted under the existing system carried no powers beyond the British dominions. The status of a British subject which it conferred on an alien dropped from the shoulders of its possessor the moment He quitted our shores, When abroad He had no claim to be regarded as a British subject at all. That precedent had not been followed in this Bill, which, as at present framed, he feared would give rise to complaints on the part of foreign States. He admitted that the whole question was attended with difficulty, and the remarks which he had offered were far from being actuated by any opposition or hostility to the measure, the object of which He cordially approved and which in some respects he would endeavour to promote by Amendments which he would propose.
§ EARL STANHOPEacknowledged that the time had come for legislating on this subject, and was prepared to give his support to the Bill before the House. But he desired to submit to the noble and learned Lord upon the Woolsack a point for his consideration before the Bill reached the stage of Committee. From the real and personal property which hereafter was freely to be held 1136 by an alien, it would be desirable, he thought, to exempt advowsons. With regard to these there were just the same reasons for withholding the privilege which existed in the case of the Parliamentary and municipal franchise, both of which were expressly excluded by this Bill. It was highly improbable, in either case, that the trust would be exercised in the manner most conducive to the public good. The case might be met in one of two ways—either by declaring that the class of property which would entitle an alien to name persons to fill benefices should not be held by him; or, in case such property came into his hands, by declaring that the right exercisable in respect of it should be exercised by some other body, as for example, the two Universities alternately, according to the precedent of the present practice with regard to Roman Catholics. At all events the point was not one which ought to be left in uncertainty.
THE LORD CHANCELLORsaid, he accepted the observations of his noble and learned Friend (Lord Westbury) in the same friendly spirit in which they were made, and promised that they should receive every consideration. The matter had, in fact, already been under consideration, and the reason why the two years' limit had been imposed was that it was thought there would be something harsh in preventing a man from returning to his original allegiance in case he felt disposed to do so within that time. The subject to which the noble Earl (Earl Stanhope) had just alluded had also been considered, though he by no means wished to say that further consideration would not be given to it. The case stood in this way—If the alien happened to be a Roman Catholic, he would not be able to present to a benefice. But Roman Catholics were, as the law stood, the only persons incapable of exercising this right of property; Jews and Dissenters, as the noble Earl was doubtless well aware, could exercise it freely. While, therefore, aliens, if they happened to be Roman Catholics, would fall under the general disability, the framers of the measure had not felt it right to create any fresh and invidious distinctions.
§ Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday next.