§ MR. W. E. FORSTERsaid, he rose for the purpose of calling the attention of the 1984 House to the effect of the Law regulating the allegiance of subjects of the Queen who have emigrated to Foreign countries, and especially to the United States of America, and to ask the Secretary of State for Foreign Affairs, Whether he does not think that the time is opportune for attempting to arrive at a mutual understanding between Her Majesty's Government and the Government of the United States respecting the right of expatriation? He felt that, as he was not a lawyer, he ought, perhaps, to apologize to the House for introducing this Question to its notice. He believed that the claims made by this country in connection with this subject had operated greatly to our disadvantage in our intercourse with foreign nations, and the time had now arrived when we might properly inquire whether it would not be for our interest to modify those claims to some extent. The present state of the law had caused ill-blood between us and the United States, and there was danger of its doing so again. In order to bring the subject fully before the House it would be necessary for him to refer briefly to the law upon this question as it stood at present. As far as he could make it out, there appeared to be two classes of British subjects—those who were so by the common law, and those who were so by the statute law. By the common law all persons born within the dominions of the Queen were British subjects, notwithstanding the fact that their parents might be foreigners who were within those dominions merely on a visit. The child of French parents who was born in this country, or of American parents who was born in Canada, was a British subject, and must be so to the end of his life. There were two ways by which persons might become British subjects under the statute law—firstly, by being naturalized, under certain conditions, by Act of Parliament; and secondly, under the provisions of two Acts, one passed in the reign of George II., which enacted that all children of British subjects who might be born out of Her Majesty's dominions were entitled to the privileges of British subjects, and the other in the reign of George III., which extended those privileges to the grandchildren of British subjects born abroad, even though the fathers had never been in the King's dominions. There was, however, this difference between the natural-born subject and the children and grandchildren of British subjects born abroad, that allegiance was claimed from 1985 the former alone. It had been stated by a very able writer in The Times, who wrote under the name of "Historicus," that it was a question whether we did not claim allegiance from the children and grandchildren of British-born subjects, even although their parents had been all their lives abroad. Well, if we did, we should claim at least half the population of the United States. A similar opinion as to our claims appeared to be prevalent in America, and a portion of the excitement in that country was, doubtless, owing to that notion. He thought that was an erroneous opinion, as the statutes appeared to be enabling rather than compulsory. The noble Lord the Secretary of State for Foreign Affairs would correct him if he were wrong when he said that the British Government had never attempted to claim allegiance from those persons. The law, however, upon the point was far from clear, and it would be well for Parliament to define the extent of our claims, so that there could be no doubt upon this branch of the subject. The law respecting the British-born subject was, however, perfectly clear, and it asserted that by no act of his own could the British-born subject get rid of his allegiance to the Crown. He might go to other countries—he might enter the French army and become a French field-marshal—he might become a citizen of the United States and a member of the United States Congress—but still his allegiance was claimed by the British Crown. Upon this point Blackstone, in defining the conditions of allegiance, said—
National allegiance is such as is due from all men born within the King's dominions immediately upon their birth. It cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance, nor by anything but the united concurrence of the Legislature. An Englishman who removes to France or to China owes the same allegiance to the King of England there as at home, and twenty years hence as well as now. For it is a principle of universal law that the natural-born subject of one Prince cannot by any act of his own—no, not by swearing allegiance to another—put off or discharge his natural allegiance to the former.It was rather remarkable that this was the only country which carried its claims to allegiance to this extent. On the Continent they treated the matter not so much as the claim of the Sovereign to the allegiance of the subject, which never could be broken; but rather as the right of the citizen to assistance and to privileges which, under certain circumstances, he might forfeit. Thus the Code Napoléon, cap. 1, 1986 laid down "That the quality of a Frenchman is lost by naturalization in a foreign country," the French principle being that "personne ne peut avoir deux patries;" although it was true that Napoleon in 1811 declared that all Frenchmen who should change their nationality without the consent of the State should be liable to certain penalties. Prussia went almost as far in the other direction as we stopped short of it, and adopted a principle which he trusted would never be accepted in a commercial country like this—that a citizen lost his privileges not only by his own request, or by sentence of a competent authority, but also by residing ten years in a foreign country. But the matter was set upon what he regarded as the proper footing by the Italian Code, which was said to be the newest and the best edition of the Code Napoléon. By that code the rights of citizenship were lost by declaration of renunciation made before a civil authority and subsequent residence in a foreign country; by accepting employment from a foreign State, or entering into its military service, without the consent of the Italian Government; or, finally, by becoming naturalized in a foreign country. The doctrine which was upheld by this country was upheld by ourselves alone, and this was the more astonishing, inasmuch as no country furnished such a number of emigrants to all parts of the world. But there was also this remarkable fact, that we had been compelled to give up the principle on which it was founded. Originally that principle was, that while we claimed the allegiance of all British subjects we in return afforded them protection. Blackstone distinctly stated in his Commentaries that such was the case—Local allegiance is such as is due from an alien or stranger born, for so long a time as he continues within the King's dominion and protection, and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is perpetual, local allegiance is only temporary; and that for this reason, evidently founded upon the nature of government, that allegiance is a debt due from the subject, upon an implied contract with the Prince, that so long as the one affords protection, so long will the other demean himself faithfully.But we had found it impossible to carry out that principle, and a curious proof of the fact was furnished during the course of the late American civil war. Thousands upon thousands of English and Irish emigrants in America endeavoured to claim exemption from the conscription and from 1987 enrolment during that war; but we found it impossible to assert their right to exemption, after they had taken any step towards renouncing their allegiance to the English Crown. Consequently we gave up all idea of affording them protection, but we still claimed to regard them as subjects of the Queen. Now, by the United States' Census of 1860, it appeared that at that time about 4,100,000 persons in the United States were born abroad. Of these about 2,450,000 were subjects of the Queen; no less than 1,600,000 of them having been born in Ireland. Yet most of these persons were citizens of the United States; nearly all intended to be. The House was perhaps aware of the oath that was taken by an alien desiring to become a citizen of the United States. It ran us follows:—I, A B, do declare on oath that I will support the Constitution of the United States, and that I do entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, State, or sovereignty whatever, particularly (here came the name of the Sovereign of the country in which the person was born) to Victoria, Queen of Great Britain and Ireland.The oath could not be taken before the person had resided in America for five years. But some time before taking this oath another was necessary, as follows:—I do declare my intention to become a citizen of the United States, and to renounce for ever all allegiance and fidelity to every," &c.Those were the oaths that were taken by a vast number of emigrants, and it would be useless to attempt to disguise the fact that, in the case of a great number of the emigrants, the oaths were taken with a full cognizance of their meaning, with a full intention of keeping them and never returning to our shores, and that a large number were very glad to have the opportunity of renouncing their allegiance to the Queen of England. But, by the law of England, their right to attach themselves to America was denied. The question was, whether it was desirable for England, when no other country in Europe put forward such a claim to insist upon such a law with reference to a notion so nearly connected with us as the United States? What had been the result of this claim upon the relation of England to the United States? There were many persons in America who undoubtedly wished to make it work as badly as possible, and they were somewhat encouraged in this by the way in which the law had worked in times past; for it was this conflict of allegiance that gave rise to the war between ourselves and 1988 the United States in 1812, which resulted from our claiming to take British seamen out of American ships. The Americans had a great deal to say for themselves in this matter. That that was really the ground was evident from the Prince Regent's declaration in reply to the President's proclamation of war—There is no right more clearly established than the right which a Sovereign has to the allegiance of his subjects, more especially in time of war. Their allegiance is no optional duty, which they can decline and resume at pleasure. It is a call which they are bound to obey—it began with their birth and can only terminate with their existence.That certainly appeared to be an argument that we were still asserting abroad. We were now in this difficulty:—Some of the Irish emigrants to America, who having joined the Fenian organization, had returned to Ireland, were arrested there. They claimed the rights of American citizens; and those rights were, as must be the case under the present state of the law, refused to them, because by law they were British subjects. The House was doubtless aware of two or three cases where the difficulty had recently arisen. There was, for instance, the case of Captain Warren, the leader of the Jacmel expedition, in whose trial Chief Baron Pigott refused a mixed jury, stating that he was still a British subject, and that—According to the law of England—a law which has been administered without any variation or doubt from the very earliest times—he who once is under the allegiance of the English Sovereign remains so for ever.The result of these cases had been considerable excitement in America. Numbers of meetings had been held, and the matter had been brought before Congress. He was perfectly aware that the excitement had been increased by interested parties—by agents of the Fenian conspiracy—and that there had been great exaggeration. It had been stated that American citizens had been arrested in England on account of acts committed in America, and other statements equally devoid of foundation had been spread abroad. But still the excitement had been considerable. One doctrine, among others, that had been brought forward in the American House of Representatives, but brought forward, he was glad to say, only to be denounced by all present who possessed any influence, was that, if we persisted in our claims, our action should be met by reprisals. It was 1989 only due to America to say that though such a doctrine had been mooted it had found no favour. But to show what the feeling of the Americans on the subject really was he did not think he could do better than read the letter written by Mr. Webster to Lord Ashburton, in 1842—A question of such serious importance ought now to be put to rest. If the United States give shelter and protection to those whom the policy of England annually casts upon their shores—if by the benign influences of their government and institutions, and by the happy condition of the country, those emigrants become raised from poverty to comfort, finding it easy even to become landholders, and being allowed to partake in the enjoyment of all civil rights—if all this may be done (and all this is done under the countenance and encouragement of England herself), is it not high time, my Lord, that yielding that, which had its origin in feudal ideas as inconsistent with the present state of society, and especially with the intercourse and relations subsisting between the Old World and the New, England should at length formally disclaim all right to the services of such persons, and renounce all control over their conduct?He would now briefly refer to the objections which might be urged to our giving up this right. In the first place, it might be said that by so doing we should place ourselves in a worse position for dealing with those engaged in the Fenian conspiracy. He thought not. It was true that if the Fenians were treated as aliens they would have the power under the existing law to demand a mixed jury; but the question immediately arose, whether it was wise to continue in operation a law which had been passed centuries ago to meet the necessities of a totally different state of society from the present; nations were not now separated as in former times, and less cause for fear existed that foreigners in any country would be treated with injustice. This law could at least be dispensed with as far as America was concerned; no such law, he was informed, was in operation in the United States, though, of course, American citizens were justified in applying for a mixed jury in England as long as the law was in operation. It was also true that if Fenians were regarded as aliens they would have the right of claiming the protection of the Minister representing the country from whence they had come; but although no Minister would refuse to entertain a demand for protection by any of his country's subjects, it was quite open for him to refuse to respond to that demand on making sufficient inquiry. True, it was necessary to remember, as an element in the calculation, that all foreign Ambassadors 1990 did not possess so remarkable a mixture of prudence and moderation, coupled with a determination to maintain the rights of his own country, as distinguished the present United States' Minister; but as these returned emigrants from America were not now considered by the American Government as British subjects, they did, in fact, claim protection from the American Minister, and, therefore, he did not think we should lose anything by the change. One advantage, however, these men would gain. There was a distinction drawn by our law between British subjects and aliens, and that was that a British subject could be tried in England for treasonable practices committed abroad, and an alien could not; but, in both cases, acts committed abroad might be alleged in our Courts as evidence of intent regarding treason at home, for which either might be tried. By making these men aliens we should give up the right to try them for treason committed abroad. But he presumed no Government would think of prosecuting a man in England for treasonable speeches made in New York. The feeling which would be excited in the States by such a proceeding might easily be estimated by imagining what would be our own feelings if a Pole, naturalized in England, having made a strong speech in London against the Russian Government, was afterwards arrested in Russia, and tried for treason. Our feelings would undoubtedly be strongly excited by such a circumstance. "Historicus" recommended that we should enlarge the principle of our law, and make agreements with foreign countries to try aliens as well as subjects for all illegal acts, including treason, whether committed at home or abroad; but he thought that our lawyers would hardly consider that an advisable course, and he was sure our Foreign Ministers would be sorry to have the settlement of the complications which would arise if this suggestion were adopted. Another objection which it was necessary to meet had originally presented itself to him with some force, and that was the necessity we were under to be careful not to shake the principle on which patriotism was founded. But on examining this question more closely he found that it formed a strong argument the other way. To allow a man to play fast and loose with his country, to permit him to go to the United States and commit acts offensive alike to our Sovereign and our country, and then to return here and claim the rights of a British citizen, was sapping 1991 the very foundation of patriotism. Those persons who, in swearing allegiance to a foreign State, renounced their allegiance to our Queen, deserved no consideration; those only who desired to owe temporary allegiance to a foreign State, with the full and honest intention of returning to this country at a future time should have an opportunity of again obtaining the rights and privileges of a British subject. The case of these persons might be met by some such agreement as that come to on the 22nd of February last between Prussia, as representing the North German Confederation, and the United States. Prussia admitted the principle of lost citizenship more fully than any other country, yet she claimed that every emigrant should perform his services to the State after his return. There were a great many instances of Prussians who, having become citizens of the United States, before serving in the Landwehr, and having afterwards returned home, were compelled to fulfil their military service. This being so, a long negotiation took place between the two countries, and it ended in a treaty, the terms of which he believed to be as follows:—1. Every subject of the North German Confederation naturalized in the United States of America and having resided there during five years shall be considered by the North German Confederation as an American subject, and treated as such, and vice versâ as regards an emigrant from America.On his return to the United States he would enjoy all the rights of American citizenship, and during any stay in Prussia no attempt would be made to force his service in the Landwehr. The Convention further provided that—2. Every naturalized subject of either State who may return to the land of his birth cannot be prosecuted for any criminal offences, unless they shall have been committed by him previously to his expatriation. 4. Every naturalized subject, who having no intention of returning to the country of his adoption, resides continuously during two years in his former country is presumed to have renounced his naturalization.He did not say that this was precisely the agreement which we ought to come to; but he alluded to it as showing what had been the result of a long negotiation between those two countries; and he asked the House to consider whether we should not aim to replace our absolute denial of the right of expatriation by some definitions of how that right should be exercised, and also by enabling persons under certain conditions—if he might use an obsolete 1992 word—to repatriate themselves. He left the matter in the hands of the noble Lord, confident that, if the noble Lord were convinced that something should be done, he would find the best possible way of doing it. A Congress of Nations had been suggested, and in favour of this suggestion was the fact that the matter did not seem to be so much a subject for treaty as for mutual understanding. He noticed also that "Historicus" recommended it, and without doubt this subject was one which could with great propriety have been submitted to that quintennial or decennial Congress of Nations stated to have been proposed by the Emperor of the French, if that proposal had been carried out. But if, with reference to this suggestion of a Congress, it was said that questions might arise, such as extradition and criminal jurisdiction, which it would not be well to discuss in a Congress partly composed of despotic Powers, no such argument could be adduced in opposition to a proposal to come to an understanding on the matter with the United States, and for this purpose he suggested the appointment of a Joint Commission of subjects of the two countries. A Commission might be appointed, composed of some of the ablest and best men of both countries, who would carry with them the confidence of their own nation, and very likely also that of the other. The American law required almost as much alteration as ours. America was the only other great country besides England that denied the right of expatriation. On that matter there had been a curious conflict between American law and American diplomacy. The American Government had found it necessary to protect the men who emigrated to their shores; yet their jurists had always stuck to the doctrine of perpetual allegiance, which was part of the common law of England; and America had shared our own difficulty in getting rid of these old principles of law, In his last General Message to Congress, in December, 1867, President Johnson, alluding to the negotiation with Prussia, said—In connection with this subject, the attention of Congress is respectfully called to a singular and embarrassing conflict of laws. The Executive Department of this Government has hitherto uniformly held, as it now holds, that naturalization in conformity with the Constitution and laws of the United States absolves the recipient from his native allegiance. The Courts of Great Britain hold that allegiance to the British Crown is indefeasible, and is not absolved by our laws of naturalization. British Judges cite Courts and law 1993 authorities of the United States in support of that theory against the position held by the Executive Authority of the United States. This conflict perplexes the public mind concerning the rights of naturalized citizens, and impairs the national authority abroad.Mr. Johnson was perfectly justified in that statement; because the highest authority among the Americans, Chancellor Kent, said—From this historical review of the principal discussions in the Federal Courts on this interesting subject in American jurisprudence, the better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of Government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered.Their next best authority, Justice Storey, gave the same opinion. Therefore a Joint Commission might do a useful work for both countries, and define what was a British subject and what an American citizen. The questions of naturalization, and that of the position of aliens, might also come before it. England and America seemed to be behind other civilized nations in their treatment of aliens. France, he believed, did not make it impossible for aliens to own land; but England and America did. England allowed naturalization without any term of previous residence; while America required five years' residence. In the United States naturalized citizens might, after seven years' residence, become Members of the House of Representatives, and after nine years' residence Members of the Senate; whereas in England, notwithstanding the facilities afforded by an Act of 1844, naturalized subjects could not sit in the Legislature. But for the accident of the Act of Geo. III. coming to his rescue, the hon. Member for Banbury (Mr. Samuelson) could not now be a Member of that House. He really did not see why constituencies should not be at liberty in such cases to elect whom they thought fit. In considering the subject of expatriation and repatriation various legal difficulties would probably arise. One of those difficulties would relate to the position of children; and it would be well to look at the French mode of meeting it. In France, instead of the child of every French subject abroad becoming necessarily a French subject also, the option was given to the child of choosing his country within one year after he became of age. That appeared to him a principle which had much justice to recommend it. Or, possibly, this rule might be 1994 adopted—namely, that every child of a British subject might at any time, after a certain term of residence, be entitled to claim the full rights of citizenship. But the rather absurd Act passed in the reign of George III., although it had certainly been of great advantage in the hon. Member for Banbury's case, could scarcely be maintained. If an Englishman went to France or America, lived there, died there, had a son who also lived and died there, and had a grandchild who happened to come to England, he did not see how he should then be deemed a British subject. In conclusion, if the Joint Commission, which he advocated as the best mode of settling these questions, were fairly tried, and proved, as he hoped it would, successful, he believed such a result would lead to its adoption in regard to other matters of dispute between this country and America, so as almost to make the occurrence of war between the two nations impossible.
§ SIR ROBERT COLLIERsaid, the question to which the hon. Gentleman who had spoken last had called attention was one of very great importance, and he trusted it would form the subject of discussion, and amicable discussion, between this country and the United States. His hon. Friend had referred to two descriptions of citizenship—the one arising by birth, and the other by the operation of the statute law; and what he had said with regard to the first was quite correct, though what he had said as to the second was not so. If it were true that this country claimed allegiance not only from natural-born British subjects, but from the sons and grandsons of natural-born British subjects, in pursuance of the Acts which had been referred to, although they had been long resident in foreign countries, that might involve us in the greatest difficulties. He believed, however, that that was not the true state of the case. He trusted he should have the concurrence of the noble Lord, and of the Law Officers of the Crown, in the statement—that the true construction of those Acts which attached British citizenship to the grandsons of British subjects was that they were only enabling Acts, giving to the persons named in them certain rights of citizenship when they came to England, but not entailing upon us in any way the duty of protecting them abroad—not requiring us to insist that foreign Governments should treat them as British citi- 1995 zens, and not giving us any rights as against themselves. The 13 Geo. III., c. 21, said this—
Whereas divers natural-born subjects of Great Britain who profess and exercise the Protestant religion, through various lawful causes, especially for the better carrying on of commerce, have been and are obliged to reside in several trading cities and other foreign places, where they have contracted marriage and brought up families; and whereas it is equally just and expedient that the kingdom should not be deprived of such subjects, nor lose the benefit of the wealth which they have acquired,.…all persons whose fathers were (by previous Acts) entitled to all the lights and privileges of natural-born subjects shall be adjudged.…natural-born subjects for all intents and purposes.But the words "for all intents and purposes" in that Act must depend for their interpretation upon the object of that statute, and also upon that of the previous statutes in question, which was to give these persons certain rights if they came to this country, in order to encourage them to come. The next question was, whether the extent to which we carried the doctrine of allegiance was one which could be maintained, or which it was expedient to maintain? His hon. Friend had read a passage from Blackstone. What would be the consequence if the doctrine there laid down were carried out logically? It must come to this, that a man born in England, but who only remained in this country for a week, and was then taken away abroad and educated, became to all purposes a citizen of a foreign country, held land, served public offices, and enlisted in the army of that foreign State, might still be deemed a British subject, and if we went to war with that country and he happened to be taken prisoner by us might be dealt with as a traitor. Upon one occasion, in fact, a man named Æneas M'Donnell, born in this country, but who had lived all his life abroad, was taken prisoner while serving with the French army, tried, and convicted; but it was found impossible to carry out the sentence, and he was acquitted on condition of residing abroad. It was perfectly true that the Americans had no right to complain, their law being the same as our own in this respect; but the question remained whether it was not desirable to come to some understanding with a view of obtaining some modification of the law as it now stood in both countries. He was unable to see why the mere accident of a man being born in a particular country should fix upon him an unalterable and inalienable allegiance with 1996 which during his whole life he should be bound to comply. Various writers of authority, moreover, had disapproved the extent to which the legal principle was carried. Bynkershoek maintained that—Without a special law prohibiting, it is permissible for any man to put off his condition of subject and to change his country. All the writers on public law agree in this; but in the opinion of the Chinese and the English, more than once publicly expressed, this is not allowable.Wheaton said that—In all countries where the English common law does not prevail, the presumption, in accordance with the uniform doctrine of the publicists, is in favour of the existence of the right of expatriation.And Dr. Twiss, an able writer, now Queen's Advocate, laid it down that—Natural allegiance, or the obligation of perpetual allegiance to the Government of a country wherein a man may happen to have been born, which he cannot forfeit or cancel or vary by any change of time or place or circumstance, is a creature of the civil law, and finds no countenance in the Law of Nations, as it is in direct conflict with the incontestable rules of that law.He ventured to think that an arrangement might be made with America somewhat to this effect:—Where a man had resided in that country for a certain time, had been naturalized, had served public offices, or otherwise shown an intention to make himself an American citizen, we ought to treat him as no longer a citizen of this country. If, however, he should return from America, and reside for a certain time in England, his rights as a native of this country might then be suffered to revive. During the American civil war it was found practically impossible to give protection to all persons who claimed to be British subjects, but had for years acted as citizens of their adopted country; and this principle of action ought to receive due recognition. He trusted that the House would hear that the noble Lord the Secretary of State for Foreign Affairs had considered this subject, and was prepared to take some steps with the view of inducing both nations, if possible, to modify to some extent the extreme rigour of the existing law of perpetual allegiance.
LORD STANLEYI think the hon. Member for Bradford (Mr. W. E. Forster) has done good service in bringing this question forward. And, while reserving my opinion upon some points of detail which it is hardly necessary to discuss, and upon some legal matters as to which I do not feel that my judgment would be of any value, I will at once say that I do not see 1997 any reason to dissent from the general tendency of the views expressed by the hon. Member. He stated, and stated truly, that as long as the United States' law remains, as practically I believe it is, identical with ours, we have a very fair reply in any controversy which may arise. But that is no reason why we should not agree to amend anything in the laws of both countries which may be unsuited to the times in which we live. From the first I have carefully guarded myself, when speaking in the name of Her Majesty's Government, against even the appearance of a wish to stand up for the maintenance of that doctrine of indefeasible natural allegiance which seems to be so entirely unsuited to the case of emigrants, and still more to the descendants of emigrants. Putting aside the extreme application of the law to the descendants of emigrants, on which I believe some doubt exists, and confining it to the case of the emigrants themselves, it seems hardly defensible in theory and it is certainly unworkable in practice. It is indefensible in theory because, in any country where emigration is sanctioned, authorized, and even encouraged, and where such emigration notoriously takes place to a foreign country, the Government which sanctions such emigration must be held to concede not only to the descendants, but to the emigrants themselves, the right to sever themselves permanently from the country of their birth, and therefore from allegiance to the Sovereign or the Government of that country. It is unworkable in practice, because it is obvious that if we attempted to make good practically the claim which we have theoretically on all British subjects who have expatriated themselves, we should be obliged to apply, or rather to endeavour to apply, that law to the many thousands who have scattered themselves all over the States of America, and who have become quite undistinguishable from the native citizens, and over whom even if we wished it, we could exercise no control whatever. I think a good deal of misunderstanding exists as to the bearing of this question upon the status of persons engaged in a conspiracy against the Government of this country who may be brought to trial here. A great deal has been said about men being tried and punished here for acts done in America. I apprehend that is not practically the case. It would not happen once in a hundred times. Then much is said about the claims 1998 of persons over whom we exercise no national rights, to be tried by a mixed jury. But it is perfectly clear that the right to be so tried is not a matter of international obligation; it is only a regulation of our own municipal law, which we should have a right to abolish to-morrow if we thought fit, without any foreign Government having reason to complain. That consideration, therefore, we may put out of the question. The only other advantage that I can see which an alien tried, say for some Fenian offence here, would have over a British subject would be in the power of appealing to his own Government for interference and protection. I apprehend that that power would not be of any practical importance in a state of civilization such as that which exists in England and the United States, though in a ruder state of society it may have some value. If a person born in England were, on returning from America to this country, tried for a political offence, and if he claimed to be an American citizen, and declined to be regarded as a British subject, he would be in some respects in a worse position if, through the alteration of the law, his claim were admitted, than if no alteration were made. It is some palliation of the acts of a political offender, however misguided his conduct may have been, to say that he was endeavouring to redress the wrongs of his country; but if he severs himself altogether from his native country and settles in another, becoming a citizen of that other country, then his locus standi for interference in the affairs of his native country is absolutely gone. He is no longer a patriot with a grievance to redress, but a cosmopolitan revolutionist. I may perhaps say that I have directed the British Minister at Washington to express to the Government of the United States our willingness to take this whole question into consideration; and if they act in the same spirit with us, we are willing to meet them half-way. I hope, therefore, that so far as diplomatic difficulties are concerned, there is no prospect of any arising. But when we come to consider the details, the matter is not quite so simple. The political difficulties are practically unimportant, but there are legal difficulties which demand a great deal of consideration. There are involved questions affecting the status of the children of emigrants, and the settlement of property in this country in the event of persons who have emigrated and become citizens of a foreign country coming back to their native land 1999 and resuming their allegiance. There are many points of this kind which require much careful and minute examination before they can be satisfactorily dealt with. It is quite true that a treaty which deals with this question has been concluded between Prussia and the United States. I have seen confidentially a copy of that treaty, and I must say that it contains no provision for meeting these difficulties—difficulties which I do not think can be ignored by this country, either in legislation or negotiation. If it were a question of expatriation only, the matter would be simple; but it is also a question of repatriation, and in connection with this latter question many difficulties arise. Another point is, that any alteration made in the status of British subjects will affect not only those who emigrate from England, but also those who may leave the British colonies. Many of those colonies have independent Legislatures, and we must consider them in making any alteration in our municipal law. I am in communication with the Government of the United States on this subject, and although I should be unwilling to give any absolute pledge to the House, I think it likely before anything can be concluded, that it will be necessary, or at least desirable, to have an inquiry by competent legal authorities. I do not think that, in a matter of this kind, we ought to act with too much haste. The first thing is, that the two countries should arrive at an understanding as to the principle on which they are prepared to treat; and when that agreement is come to, the questions of detail may be safely left for that full and deliberate consideration which they will necessarily require. Whether the inquiry which I have suggested should be national or international, is a matter on which I am not at present prepared to give an opinion, and which I think the House will not be unwilling to leave to the consideration and decision of the Executive.
MR. BUXTONsaid, he rose only to say a few words in favour of the suggestion of an International Conference. He thought that Her Majesty's Government should not throw away this excellent opportunity of inviting the other Powers of Christendom to such a conference, with a view to the settlement both of that and of some other international questions that had cropped up during the last few years. He believed the advantage would be very great of having from time to time an International Conference, with the view of entering into 2000 agreements on the multitude of questions that were continually pushing their way up regarding the relations and conduct of different Nations to each other. It appeared to him that there was scarcely anything more worthy of the attention of Statesmen than the gradual creation of an International Council, in which the questions bearing on the relation of different countries to each other should be brought forward and examined, and suitable regulations be framed with regard to them, as an authoritative guide to each Government in its behaviour to the rest. It certainly must strike any thinking man as most strange, and at the same time as little creditable to the statesmanship of Christendom, that to this day International Law, instead of being the result of careful debate and deliberate judgment and solemn acceptance by the different Nations concerned, was left wholly to grow up as the merest chance in the world might direct, and to get what authority it might be able to pick up without external aid. Surely, the time had at length come—surely, Christendom had at length reached a point of civilization at which it would be possible to frame some organization by which international questions could be taken up as they rose into prominence and be fully debated, and agreements be entered into as to the conduct in such cases of civilized Governments? They had in that case before them a signal example of the want of some such organization. Millions of men had been transplanted from Europe to America and to other parts of the world, and yet the ancient and morally obsolete law still held its own, that each of these men, though he had expatriated himself and desired to forsake his own country and become a citizen of a new one, yet was compelled against his will to remain a subject of his former Sovereign, and though he was liable to all the duties and burdens that the Government of his new country might impose upon him, yet if he ever returned, even on a mere visit to his friends, he became subjected to all those of the land he had abandoned for ever. Such a state of things was manifestly absurd and cruel. But was it not also manifest, in that case as well as in a hundred others, how desirable it was that from time to time some conference or council of nations should be called together for the ventilation and settlement of questions such as these that gradually pushed their way upwards? Only a few days ago another even more striking ex- 2001 ample of the very same thing had been afforded them. That day fortnight the debate took place on the questions relating to the Alabama, and it had been pointed out since, what he did not think was noticed during the discussion in that House, that, in reality, the difficulty arose from the fact that, by degrees, a new regulation with regard to the treatment of belligerents by neutrals had become almost essential to the peace of Christendom; and yet that the old and morally obsolete regulations, instead of being swept off the ground and making way for those more suited to the spirit of the age, still remained in force; in so much that, but from the admirable temper and wisdom, he was going to say of the noble Lord the Foreign Secretary, but he thought he ought to say of the two countries, England and the United States—had it not been for the moderation of feeling happily prevailing at the moment, this clashing between the old International Law or practice and the necessities of the time might have involved us in a bitter and perhaps deadly quarrel. Now, surely a new law of this kind ought not to struggle up higgledy-piggledy, by mere rule of thumb, among nations with any pretensions to high civilization? Surely, there ought to be some power of having a very important change like that deliberately proposed, deliberately examined, and, if found desirable, solemnly decided upon and agreed to by all the nations concerned. Then, again, there were the important and difficult questions regarding the extradition of criminals, which remained at present in a state of chaotic confusion, and which ought to be authoritatively settled upon a fixed and permanent basis. He feared he should wander too far away from the topic of the evening were he to give other illustrations, though abundance of them might be found, of the inconvenience and even danger that arose from their being no arrangement made among Christian Nations for the settlement of questions of that kind. Such questions necessarily became far more numerous, and far more important, as the intercommunion of nations became more incessant. In days gone by, when each nation thought that her interest lay in putting restrictions upon trade and making herself independent of her neighbours, it did not so much matter whether sound and wise regulations were or were not agreed upon as to the conduct of nation to nation, though in truth it was but too easy to recall some 2002 terrible wars in which various countries became involved for the want of wiser and better defined International Laws; but, at the present day, questions of that kind were continually pressing more and more for an authoritative decision. He was well aware that one grand objection was always made to any suggestion of that kind. It was said to be of no use to hold any Congress and lay down rules, because, after all, there was no power of enforcing them; there was no penalty that could be inflicted on those who afterwards disobeyed them. His reply to that objection was that actual experience showed it to be a delusion. As a matter of fact, nothing could have been more remarkable than the almost absolute submission of the great Powers even to that International Law which had grown up in so rude and rough a fashion, without any deliberation or solemn agreement among those Governments. The actual fact was that International Law had just as much authority over the great civilized Powers as any municipal law had over their subjects. They saw that in the debate of that day fortnight. Did a single speaker, or did a single newspaper, in commenting upon that debate, dream of denying for one moment that we were absolutely bound by International Law? Look at the despatches between Lord Russell and Mr. Seward, and again between the noble Lord opposite and Mr. Seward. Did not each of those Statesmen appeal to International Law and precedent as being entirely conclusive, though, of course, they differed on the question how far those precedents bore upon the case before them? He said, then, that actual experience annihilated the force of that objection, and proved to them that, if the law did but exist, entire obedience to it might be anticipated, even though there were no hangman at hand to execute justice upon those who broke it. If it were asked how that came about, the answer was not far to seek. Nations were, except, indeed, in their quarrels, under the sway of much plain common sense, and they felt that it would be an outrage on common sense to dash to pieces a wholesome rule the moment it appeared to produce some temporary inconvenience to themselves. But more than that; had they such a Council of Nations as that which he ventured to suggest, then those International Laws would have the sanction of a solemn agreement of all the Powers, and it was mere calumny to sup- 2003 pose that any one of them would ever think of breaking loose from a pledge deliberately given—from an agreement solemnly entered into with her sister Nations. Experience did not give the slightest justification for any such scandalous surmise. Experience demonstrated that they would submit themselves to the laws on which they had deliberately determined. The only objection, then, that, so far as he was aware, had ever been made against such a plan had no validity at all. The advantages of it were, he thought, beyond dispute. He had already dwelt on the serious inconvenience, and even danger to the peace of Christendom, actually arising from the want of some such organization. But, more than that, he believed that if Nations were to form the habit of thus meeting together in conference upon the questions of their international relations, the good effect of their so doing would not be simply measured by the direct and immediate results of their discussions. He thought the influence of such International Conferences would be very powerful in favour of peace and progress. The fact that Nations, instead of remaining isolated from each other as they now did, were wont to meet together in council to discuss and provide in unison for their common interests, would draw them more closely together, and would accustom them to look to a peaceful settlement of their disputes, instead of fighting them out with the edge of the sword. The tendency of such an International Council would assuredly be towards the gradual organization of Christendom as one great federal community, instead of its remaining, as it was now, a mere congeries of perfectly disconnected nations. Possibly in due time other fruits—such, for example, as a mutual disarmament—of inestimable value, might arise; but without extending their view to such splendid possibilities, it was, he thought, undeniable that great, immediate, practical advantage would be found in calling together a Conference of the great Powers for the settlement of those international questions that were now pressing for solution.
§ MR. O'REILLYsaid, he would not trespass on the attention of the House; but must express the satisfaction he felt at the statement which had been made by the noble Lord. He believed it would do an immensity of good in clearing away much misunderstanding and ill-feeling both in Ireland and among the Irish population in the United States. Exaggerated state- 2004 ments of the claims of England on her expatriated subjects had been made, and the state of the law had been used most largely by expatriated Irishmen and Americans in America, who desired, through the prejudices of his countrymen, and in the name of Fenianism, to levy contributions on then) for their own purposes. He would, however, propose one or two modifications in the scheme of the hon. Member for Bradford (Mr. W. E. Forster). Whatever was done in this matter should be done by municipal legislation, and it was desirable, in any investigation that might take place, to inquire into the laws affecting our relations with other countries as well as the United States. It would not do to look entirely to our relations with the United States, because whatever was done must necessarily affect our relations with all other countries. It was a peculiarity of the English law, to which attention must be directed, that it took cognizance only of crime committed by persons within its jurisdiction, and therefore the difficulty would be in cases of expatriation to be sure as to what nation the criminal belonged. He objected to the proposal to submit to a general Congress the whole subject of International Law, because it was too extensive, and generations might pass before anything practical might result. It would be far better for them to direct their attention for the present to the points on which a speedy settlement was required, especially that of naturalization. The question was, whether a subject of the Queen who had been naturalized in the United States became an American citizen or continued to be a British subject?
§ MR. SAMUELSONsaid, he agreed in all that had fallen from the hon. Member for Bradford (Mr. W. E. Forster) with respect to expatriation, and he was also happy to hear the noble Lord's (Lord Stanley's) announcement that he was prepared to take steps which were absolutely necessary for the maintenance of amicable relations between this country and America. The hon. and learned Member for Plymouth (Sir Robert Collier) had rather understated the case in reference to the descendants of British subjects born abroad. Although there might be some qualifications in respect to the obligations of the grandsons of British subjects under the Act of Geo. III., he understood that the sons were by the Act of Geo. II. entitled to all the privileges and subject to all the obligations of British subjects—in fact, 2005 were deemed to be natural-born subjects of the Crown to all intents and purposes, and they could not get rid of their allegiance. The law was the same in the United States, and the question affected him (Mr. Samuelson) personally. His father was born in the United States, and if he (Mr. Samuelson) had been in the United States during the late civil war, he would have been liable—although a Member of the British Parliament—to have been drawn in the conscription. At the same time he would have been at liberty to run for the Presisidency. Though the Act of Geo. III. had enabled him to obtain a seat in that House, he thought it an anomalous one. That Act, as well as the Act of Geo. II. upon this subject must be revised. With regard to aliens the law also required alteration; for, whilst the certificate of the Secretary of State in England did not confer all the lights and privileges of a British-born subject, that of the Lord Lieutenant did. By an Act of Will. III., naturalized subjects were prevented from sitting in that House, and becoming Privy Councillors. He believed the restrictions were imposed merely from jealousy of the Dutch followers of that King; yet, strange to say, out of three Naturalization Bills passed last year, two were in favour of Dutch gentlemen, who were thus invested with all the rights of citizenship without any restriction. One of them, too, was in favour of a director of the Suez Canal—an enterprize which had excited the utmost jealousy in the minds of Members of that House, and of successive Governments of this country. These facts showed how rapidly circumstances changed, and how unsuited to these days laws might be which were reasonable enough in former days. By law aliens were not permitted to hold real estate in this country; but he was at a loss to see why they should not. In 1844 the late Sir James Graham said he thought it was necessary for the dignity of the realm that foreigners should not be allowed to hold land; but, considering the complication of international engagements, it was now doubtful whether it was wise to retain that exception. For instance, by a recent treaty with Switzerland, we had granted to Swiss subjects all the full civil lights of citizens, and that country had granted similar rights to Englishmen. If full effect were given to that treaty the Swiss were entitled to hold land in this country, and he did not see how the same privilege could be denied to other foreigners. 2006 The whole subject of the status of aliens required the fullest consideration; but as the matter had been brought before the House by his hon. Friend the Member for Bradford he should leave it in his hands, instead of moving for a Select Committee, as he had intended to do on the first opportunity.
§ SIR ROUNDELL PALMERsaid, he did not rise to disturb the general concord of opinion which appeared to prevail in this debate. He quite agreed with what had fallen from the noble Lord that we should review the law of the country, to see whether any reasonable and wise arrangement could be made to prevent misunderstanding, and to facilitate that interchange between country and country which was so convenient in the present times. But there were some questions of principle easily decided, as to which it was desirable that the misunderstanding which did prevail to some extent should be dissipated. The principle always applied in construing general words in the legislative Acts of a particular country was that they were to be understood as applying solely to those persons and things which were properly and de jure the objects of that national legislation. Thus, Great Britain could not be supposed by any Acts to be imposing burdens upon the subjects of the United States or of other countries. This country might confer privileges upon the subjects of those countries; but she could not impose burdens upon them without their consent. Not only was that the general rule of interpretation, but he should have thought it impossible to read the two Acts of 4 Geo. II. and 13 Geo. III. together, without seeing that the Legislature as good as declared that all they intended by those Acts was to confer benefits, and not to impose burdens upon the foreign-born children and grandchildren of natural-born British subjects. Had the extravagant and absurd construction which some persons sought to put upon the words of the first Act been correct, and all foreign-born children of British-born subjects been thereby placed, in the view of British law, in the same position in every respect as if they had themselves been actually natural-born subjects, it would have been unnecessary to pass the second Act, as it would then have followed from the provisions of the first Act that the foreign-born grandchildren of the British-born subjects would have been equally subject to those burdens and privileges with their foreign-born fathers. The language of the second Act, 2007 however, showed clearly that such a construction of the first Act was wrong, as it was merely passed to continue those privileges to the foreign-born grandchildren which were extended by the first Act to the foreign born children of British-born subjects, there being no intention to fasten upon such persons, without their own concurrence, any burdens whatsoever. That was the first branch of this question, and he was glad of having had an opportunity of stating his distinct and deliberate opinion upon it. The next point to which he wished to direct the attention of the House was also one of principle. Many persons, when speaking or writing upon this question, appeared to forget that, as long as a British subject, whether natural-born or not, was resident in a foreign country, he was to all intents and purposes a subject of that country and bound to pay obedience to its laws. Such a foreign Government had a right to say to the British resident, "We have nothing to do with your former allegiance. Whatever our laws require from you, that we have a right to exact from you during your residence here." And, except in cases of mere travellers, the British Government had no right to say, "We will pass a law which will extend an exceptional protection to you during your residence in a foreign country, to whose laws you shall not be subject." We had no right to say that Englishmen should be entitled to hold an exceptional position in the United States because they owed us allegiance. The United States might well reply to such a proposition that while British subjects were in America they must be subject to the laws of that country; that those who remained there for temporary purposes, though they could not justly be made subject to the burdens of a permanent domicil and perfect citizenship, must nevertheless acknowledge the supremacy of the Government under which they were actually living; and that when they had taken the oath of naturalization the American Government had a right to treat them upon the same footing as if they were natural-born American subjects. This construction of the law, he submitted, was quite consistent with the right of this country to exact from such foreign residents the obligations of their natural allegiance when they returned here. Whether we went too far in making certain acts committed abroad cognizable by the laws of this country was a question for discussion; but it was not one which involved any fundamental principle 2008 that ought to lead to any difficulty. Speaking with due deference to the opinions of those who differed from him upon the matter, his study of the laws of foreign nations had led him to believe that there was not such a very great difference between those laws and that of England upon the principle of expatriation. It was true that the laws of some foreign countries declared that the quality of citizenship should be taken away from those who did certain acts; but this he understood to mean that by doing certain acts such persons should lose not the burdens, but the privileges of citizenship. For instance, if a person thus deprived of his citizenship were to bear arms against his original country, he might still be called to account for his conduct in the event of his return, and the excuse that he had forfeited his citizenship would not protect him from the penalties attached to his offence. He did not believe that the laws of any European nation affirmed that a native of a country was at liberty at his own mere will and pleasure to divest himself of the obligations of his allegiance—to act as an enemy of his Sovereign, and then to return home and excuse himself on the ground that he had changed his nationality. He agreed with the hon. Member for Plymouth (Sir Robert Collier) that our law went rather too far in treating British-born children of foreign parents, who might be merely passing through this country, as British-born subjects, and he thought some alteration should be made in our legislation upon that point in the case of persons not bonâ fide domiciled in Great Britain. The domicil of the child should follow the domicil of the parents at least for the purposes of obligation. It might be quite possible to introduce some other alterations in our laws respecting persons who emigrate, and who intend to reside abroad permanently; but such a change should still be accompanied by provisions which would render such persons subject, as before, to the burdens of their allegiance in the event of their returning to live in this country.
THE ATTORNEY GENERALsaid, that the observations which had just fallen from the hon. and learned Member for Richmond (Sir Roundell Palmer) showed conclusively the justice of the remark made by the noble Lord the Secretary for Foreign Affairs, that this subject was not so perfectly clear as it appeared to be at first sight. The noble Lord said that he viewed, with no unwillingness to gratify it, the desire on the part of the United Sates that 2009 some new arrangement should be come to with regard to persons who had naturalized themselves in that country. It was doubtless very pleasing and very easy to say that, but it was difficult to legislate in such a direction. On the one hand, the natural-born subjects of this country—including those who were born during the temporary residence here of their parents—who went to the United States, were claimed by us as British-born subjects, who could not throw off their allegiance; while, on the other hand, the United Sates enjoined on such persons, when they chose to become citizens of that country, that they should cease to owe allegiance to their native country. That was not the case here, because the statute 7 & 8 Vict, enacted that when any person became naturalized in this country he should not be asked to abandon his native allegiance, but merely to bear allegiance to the Sovereign during his residence here; and by the tenor of the certificate, if he is absent from this country without permission for more than six months he loses his rights of naturalization, while, at the same time, our laws declared that a natural-born subject could not cast of his allegiance by any means. It was, however, now proposed that we should pass a law by which the British-born subject naturalized in America should become to all intents and purpose an American citizen. He repeated that it was very easy to make that proposal, but before such a law could be passed it would be necessary to look carefully through the statute book, to see what consequences might flow from such legislation affecting the interests in real property in this country, and the rights of those persons who went to America and were there naturalized, and of their children. Another most material question to consider was the subject of repatriation. The hon. Member for Bradford (Mr. W. E. Forster) had said that, by the Prussian treaty, it was provided that a Prussian subject who had been naturalized in America, and who then returned to Prussia or the German Confederation without intending to return to America, would be deemed to have renounced his rights to American citizenship. [Mr. W. E. FORSTER: After residence for two years.] He did not, however, understand what were to be the rights of a man who had so returned to the country of his birth, or what was the effect of his temporary expatriation.
§ MR. W. E. FORSTERUpon his re- 2010 turn he is treated as an American citizen until the expiration of the two years.
THE ATTORNEY GENERALunderstood the hon. Gentleman to say that after that time he was no longer to be regarded as an American citizen or to be treated as such. But this was one of those cases in which there was a great deal of difficulty in entering into an arrangement. He could not help thinking that before any treaty or arrangement was made upon this subject, however willing we might be to enter into such an arrangement, the rights of our countrymen who went to America, and were naturalized ought to be fully considered, and the effect that any proposals would have upon some of our laws—the laws of inheritance, for instance, also considered. He did not wish at the present moment to enlarge upon that subject. It should be remembered that our municipal law had been to a great extent copied in the United States, and that a child born in this country, of a citizen of the United States, was claimed to be a citizen of the United States. He was not going to discuss the construction which the hon. Member had put upon the statutes, but it was quite clear that before this matter was determined by treaty or any arrangement was entered into, great care should be taken to see how far the law of this country would be affected, and how far the rights of British citizens would be compromised by interference with the statute law.