No. CCCCLXIVOctober 1915
The Ligeance of the King
A Study of Nationality and Naturalization
F. T. Piggott
We are citizens of no mean country, and yet I wonder how many of us could give a definition of a word which we believe stands for so much in the world-Englishman? Outside the lawyers are there any? And how many know that with this year there came a change which greatly affected its meaning? The Frenchman is in the better case, for his law is clear-cut, and in one of the early articles of the Civil Code there is the curt declaration Sont français, after which come the different categories of French citizens. Faire son droit is part of a French gentlemans University education. The Codes, of course, make it a much easier task than going in for Law in England; and all Frenchmen have a natural aptitude for picking up condensed information, acquired after a centurys experience of Code-language; so the great majority of Frenchmen would he able to give you the reason for the national faith which is in themDame! parce que mon père était français! [*730]
But until the beginning of this year 1915 such a simple expression of faith was denied to Englishmen. It was not the canon of our nationality that the son of an Englishman should necessarily be an Englishman. The third and fourth generations of those who traded in foreign parts might well not only not be Englishmen, but have no nationality at all-that is, to put it practically, might have no Consulate in those parts where to lay their grievances. This singular state of things has at last been altered by the British Nationality and Status of Aliens Act, 1914, which was passed on the 7th of August, 1914, and came into force on the 1st of January of this year. Not pride of race but pride of country was the keynote of our common law of nationality; accident of birth its governing principle. The land of my birth was the poetic version of the common law; with truer instinct as to what should bean instinct, if I may say so, very much alive in the present daythe Welshman sang The land of my fathers.
British nationality by the common law was conferred by birth within the British dominions, with the result that many who would not be were Englishmen, and many who would be were not. The latter category has been gradually diminishing in numbers by the operation of certain statutes, and now the new Act has prevented any further additions to it; but it has not relieved from the burden of British nationality those whose fathers are foreigners but who themselves happen to be born in British dominions. Thus our law blindly laid the foundation of future trouble for the individual; it deliberately created for some the absence of national status involved in no nationality; for others it deliberately imposed, and still imposes, the complications of double nationality. If trouble to the individual were the only consequence the law might drift along placidly for another fifty years; but there is lurking trouble to the State. In the second part of this article we shall see what difficulties a law of naturalization, drawn with a complete disregard of consequences, has brought in its train. It is hoped that these may be remedied. But the difficulties which a law dealing with nationality left untouched, for traditions sake but for no other conceivable reason, are past praying for; not even the omnipotence of Parliament would be invoked by the boldest legislator to kill the evil. What is this imaginary evil? Wait till some German spy claims his liberty from internment by habeas corpus on the ground that his mother happened to be in England when she bore him
The traditional spirit of British legislation is to remedy grievances as they arise, never, except under dire compulsion, to consecrate a principle for all time; and it has dealt in this way with the subject of nationality. As far back as the reign of Edward [*731] the Third protests began to be heard and demands made for the modification of the stringent old rule in so far as it affected children of Englishmen born abroad; for commerce followed the conquests of our Kings in France, and there were many such including not merely children of merchants but children of the Kings fighting menHenry son of John de Beaumond, Elizabeth daughter of Guy de Bryan, and Giles son of Ralph Daubiny, and others which the King will nameand children of our Lord the King himself. The matter was brought, more than once, so it seems, before the Lords and Commons, who recommended that a law should be passed on the subject. But Parliament was about to be prorogued; and as ceste besoigne demand grant avisement et bone deliberation coment ele se purra mieltz faire, et plus surement, further consideration was deferred. This was in the seventeenth of Edward the Third. And then the plague came necessitating further postponement; till the twenty-fifth year of that King, when A Statute for those that be born beyond the sea was passed declaring that children born abroad are inheritable to the estates of their ancestors in the same way as those born within the realm. Thus all doubts and ambiguities whether they could inherit were put away; but the cardinal question, whether they were British subjects, was left unresolved. The better opinion is that they were not. So the common law of nationality remained untouched till a first inroad was made by 7 Anne, c. 5, explained by 4 George II., c. 21, in favour of children born abroad of a. British father. The question seems to have got mixed up with naturalizing foreign protestants, and this probably prevented a fuller consideration of the vital question. Later, a second inroad was made by 13 George III., c. 21, in favour of children born abroad whose fathers owed their British nationality to the earlier statute. For a hundred years afterwards nothing more was done. Children born abroad whose fathers owed their British nationality to the latter statute were the only persons who could be affected by the. common law; it was a case which probably did not often arse; and even then only some most untoward circumstance might bring it, and the consequences, to light; so the rule that the statement of general principles must be avoided in legislation whenever possible prevailed. Yet it must be noted that an Inter-Departmental Committee, in 1901, proposed to increase the no-nationality class by repealing the statute of George the Third. Why, no one has ever been able to understand. The fact that the Royal Commission which sat prior to the passing of the Act. of 1870 had made the same recommendation is hardly a sufficient reason, for the passage of the years is supposed to bring wisdom. But we have attained to wisdom at last; and one thing which [*732] stands to the credit of the Act of 1914 is that it has brushed aside these anomalous provisions; the son of a British father is now a British subject irrespective of the place of his birth if he be born after the 1st of January, 1915. For some reason which does not too clearly appear this provision was not made retroactive; and no relief has been given to those whom the accident of birth abroad had up to that date deprived of citizenship. As to the case of those who were British subjects against their will, it has not been touched; the Act of 1914 has reaffirmed in regard to them the doctrine of the common law.
In 1870, as the result of much inquiry into our own and foreign law of nationality, the Naturalization Bill was brought before Parliament, and a strong effort was made in the House of Lords to deal with the doctrine as it affected children of foreigners born in the British dominions, and to get rid of the double nationality which resulted from it. But the Bill was brought forward avowedly to deal with the question of naturalization in the United States of the multitude of emigrants who, in flagrant violation of another cardinal principle of our common law, had cast off their British nationality. The Government had given an undertaking to Reverdy Johnson, the United States Minister in London, that the matter should be put straight; and put straight it was in the most crooked way imaginable. There is an atmosphere of hurry on the part of the Government throughout the debate: assuredly double-nationality was a great evil, but ceste besoigne demand grant avisement. et bone deliberation coment ele se purra mieltz faire, et plus surement: procrastination prevailed and the consideration of the question was deferred. There were both avisement and deliberation in 1901 by the Inter-Departmental Committee; but thirty years had, as we have seen, produced no sounder views, and no recommendation was made to mitigate the difficulty. And yet the great lawyers had spoken with no uncertain voice; Sir Alexander Cockburn, greatest of them all, was as a voice crying in the wilderness. Thirteen years later the subject was taken up by Parliament. Naturalization had got tangled into an appalling muddle, for the Act of 1870 was, by common consent, the worst drafted piece of legislation that had ever found its way on to the Statute Book. The imperial side of this question had been entirely neglected; the great Dependencies were crying for some broader doctrine than the old Act sanctioned, and their cry was to be answered. The main object for introducing the Bill was to make colonial naturalization effective throughout the Empire. This question of double-nationality must. I imagine, have been discussed upstairs, but I can find no trace in Hansard of any allusion to it. Its urgency seems to have impressed no one, and [*733] the old common law found itself reaffirmed without difficulty or even protest. Perhaps it is not. surprising, seeing that the patent defects in the law of naturalization equally escaped attention.
Will my readers bear with me while I talk law? I cannot promise that it shall be only for a little space. But, after all, the topic is not an uninteresting one; it should not be a dull one even in peace-time-to what country does a man belong? One would imagine the principles governing it to be commonly accepted by all countries, but I have said enough already to indicate that this is not so that there is such a state as double nationality, the consequence of which in war-time must be to make the question Under which king, Bezonian? a very serious one; for the unhappy victim will not have the benefit of the alternative 'speak, or die'; he will die as a traitor whichever way he answer should he fall prisoner into the hands of the other side. There is no common principle. There are, indeed, two absolutely conflicting ones, known as the jus sanguinis, the nationality of the son following that of his father, and the jus soli, the nationality of a child being a personal right acquired by birth in a country. The common law of England was based on the jus soli, and, as we have seen, it was found to work so much mischief that exceptions based on jus sanguinis were grafted on to it. And the jus sanguinis, the rule adopted, I believe, in all other countries except the United States, was equally insufficient, for it left in the lurch children whose fathers are unknown. So we find in the French law exceptions based on the jus soli grafted on to it the definition of français includes tout individu né en France de parents inconnus ou dont la nationalité est inconnue, as well as 'tout individu n&eacuate; en France dun étranger qui lui-même y est né.
There can be no question that the natural law is that the child's nationality should follow that of his father. But there was a reason for the English adherence to the jus soli which was explained by Sir Alexander Cockburn.
This rule [he said], when originally established was not unsuited to the isolated position of this island and the absence of intercourse with foreign nations in Saxon times. No children of English parents being born abroad or children of foreign parents being born within the realm, the simple rule that to be born within the dominions of the Crown constituted an Englishman answered every purpose. But [he added] when the foreign possessions of our Kings and the increase of commerce had led to greater intercourse with the Continent, and children of English parents were sometimes born abroad, the inconvenience of the rule which made the place of birth the sole criterion of nationality soon became felt.
But the great law reformers have spoken in vain, and this branch of the law even to-day remains untouched. International relations are still complicated by the fact that English law claims [*734] for the King the allegiance of people who are neither in spirit no: in fact his subjects. That this is a blunder in ethical jurisprudence is admitted by the law itself for it allows persons whom the accident of birth has made British subjects against their will to cast it off by a declaration of alienage on attaining their majority. The provisions of the Act of 1870 in this respect have been preserved, and the protests raised, when that Act was before Parliament, against this cumbersome procedure, which virtually stultified the common-law principle, have had no more effect now than they had then. Stultified, because if a person is allowed to throw off the nationality which British law has imposed on him merely because he is by the law of another country a subject of it no regard being paid to British law, one of two things follows either British nationality ought never to have been imposed upon him, or he, or some one on his behalf-his father, for example-should be allowed to declare alienage immediately. Why should a wait of twenty-one years be imposed before a right, an admitted right., can be claimed? A great many things may happen in twenty-one years. Parents may die, and the child be in ignorance of the place of his birth; and perhaps the knowledge may come to him at a most inconvenient time-inconvenient, it may be, for the State, should his rightful country be at war with England.
Let me insist for a moment on the surpassing folly of our law. The Courts have recently had before them a case which involved the reductio ad absurdum of our ancient principles. A man had, by the express provision of his national law, lost his German nationality, but he had not been naturalized, although he had been long resident, in England. He had, therefore, no nationality. He protested that he was not an alien enemy, and could not be interned. A whole vista of constitutional law, terrifying in its complexity, opened out before the Court. But the Judges, with rare acumen as I read the judgment, cut the knot it did not follow that he could therefore claim the rights of a British subject. The argument revealed, what alas is so often revealed and not always in emergency legislation, an omission in the law; express power to intern alien enemies had not been taken, and it was therefore necessary to suggest that the missing power was to be found in the prerogative. A thousand other such cases must exist, though they may never gild their way into the Courts. We have been so accustomed to peace; there are many to whom war is a thing with which alone history, and not to-days hard fact, deals; they will not realise that the enemy is in spirit already on our shores. Fighting in Flanders is for them the traditional occupation of our army. It has not been yet borne in upon their minds that, were it not for that supreme arid audacious courage [*735] which by sea and land is keeping the barbarian hordes at bay, there may yet be (which Almighty God of His infinite Goodness and Mercy divert) a second Battle of Hastings which shall at last burn facts into their souls. I write this, not for the sake of a little patch of purple, but in the hope that I may impress upon those who have the fate of our country in their hands, that there are problems of constitutional law of infinite importance, hinted at in arguments, but which the Judges rightly avoid if any other means can be found of disposing of the case before them, which have been consistently put aside, shelved for years, but which are now clamouring for settlement, which must be settled, because unknown peril waits on their continuance in their present uncertain state. It is appalling I think that questions which depend on the King's prerogative in time of war should be waiting now for settlement when war is upon us, when instant action and not ponderous argument is essential to the countrys safety.
It is the frequent gibe of the foreigner against our race that we are not, endowed by Nature with imagination, that our thoughts run in insular grooves. I would rather put it thusthat the tendency of our public mind is, on the one hand, to avoid the enunciation of broad general principles, and, on the other, to ignore the importance of dealing with the individual case, preferring the comfortable Way of the Rule to the trouble of dealing with the exception. The War has taught us many things: not the least, the potency for harm of the individual: his power of getting secret information, of transmitting it to the enemy. What if some vital secret were thus divulged, some projected movement of the Fleet, the sailing of some transports, and it were the work of a German who, owing to the accident of his birth in sonic part of the British dominions, has had British nationality indelibly stamped upon him, and had claimed his right to be at large. It seems to need some tragedy to seal the doom of the common-law principle.
Let me get back to the calm regions of legal thought. This principle of making aliens British subjects whether they will or not, and this law as to declarations of alienage which theoretically admits their right to claim their true nationality but in practice puts difficulties in the way of doing it, are in diametric opposition to a fundamental principle of the law, that nationality is a personal status; for personal status is entitled to recognition all the world over. The declaration of alienage was, however, part of a larger policy. The common law, though it was hopelessly unsound, was very consistent. Those whom it bound it would by no means let go free. Nemo potest exuere patriam the bond of nationality once forged could never he broken. But facts, not an ounce of them but whole ship-loads, had demonstrated that it was not a practical theory. The crowds of [*736] emigrants to the United States had, in fact, cast off their country; they had torn the old maxim to tatters, and in 1870, from force of circumstances, it was definitely abandoned. Naturalization of British subjects in foreign countries was formally recognized; thenceforth the emigrant who had become naturalized was deemed to have ceased to be a British subject. And if the pure-blooded Briton was allowed to do this, a fortiori those who were British subjects of impure blood, who were merely British by the accident of birth, must he allowed to do the same. Hence the invention for them of the declaration of alienage. And yet we could not avoid being illogical. A man of purest Saxon race, who and whose ancestors had lived time out of mind in England, was allowed to go free by merely complying with the conditions of a foreign law as to assuming its citizenship. But a Frenchman of lineage traced back to Charlemagne, if his mother had been so negligent as not to flee this island in time, would find the heavy hand of the law fallen upon him, and at. least for twenty-one years he must remain, so far as our law is concerned, an Englishman. Nor even yet has illogic done its worst. Assume the twenty-one years delay before action can be taken to be advisable, what is the position of the unfortunate mans affairs when he comes of age, or, as the law puts it, when he ceases to be under disability to act for himself? In the first place, he would run up against a hitherto unsolved problem-when does such a man come of age? The answer would vary according to the country in which the question was raised. But assume this settled, after much legal argument, how could he cast off his bond of a double nationality? Should he desire to remain a Frenchman, he could by English law make his declaration of alienage; and he must count himself fortunate, for he could not be naturalized in France, seeing that he is already by French law a Frenchman. But suppose he should desire to remain purely English? He could not be naturalized in England, seeing that he is already by English law an Englishman, and the French law has not adopted the procedure of declaration of alienage. This anomaly, sad to relate, the new Act has perpetuated in all its details.
These questions are important enough to merit more than the fleeting attention which Parliament has given to them; but they pale in national importance before the question of naturalization of aliens into England. The War has forced public attention to the subject, and the public has expressed very strong views about it. But the public lacked guidance; and while betraying a singular lack of knowledge and going hopelessly astray, it was in one respect quite right. It discerned that something was wrong with the law; it knew that infinite harm might flow from [*737] it; it believed that much harm had already been done and that more was likely to follow; so it proceeded on occasion to take the law into its own hands.
The law, the statute law and not the common law this time, was singularly inconsistent; although British subjects could not, previously to 1870, cast off their allegiance, vet it allowed aliens to assume that allegiance without paying ny regard to their own national law! That law might or might not allow them exuere patriam; it was a question with which England did not concern itself. Before 1844, however, aliens could only be naturalized by express permission of Parliament; in other words, by private Act in the case of each individual. But these Acts seem to have been very imperfectly drafted, often causing, as the Inter-Departmental Committee reported, much disappointment, especially by the absence of provisions for the naturalization of the children of the naturalized person. The first general Act was passed in 1844. It is worthy of record, however, that the Colony of Jamaica had passed a general Act as far back as 1638, conferring national rights in the island on foreigners who were already settled, or who intended to settle and plant in it. It is singular that legislation was so long delayed in England, in view of the invitation extended by Magna Carta to foreign merchants to come into England, to tarry in, and go through England possibly, however, the prerogative right of the Sovereign to grant to such as desired to tarry for good and all 'letters of denization, was considered sufficient. Yet so uncertain and variable is the expression of the will of Parliament, that in 1710 a general Act was passed (13 George II., c. 7) in order to naturalize such foreign protestants, and others therein mentioned, as are settled, or shell settle, in any of His Majestys Colonies in America. The preamble is interesting, because it shows that the means of populating a new country which tradition ascribes to Romulus was actually adopted by England for increasing the population of the Colonies. It explains the existence of the early Jamaican law just referred to. Here is the preamble it might have been written by Romulus himself:
Whereas the increase of the people is the means of advancing the wealth and strength of any nation or country; and whereas many foreigners and strangers from the lenity of our Government, the purity of our religion, the benefit of our laws, the advantages of our trade, and the security of our property, might be induced to come and settle in some of His Majesty's Colonies in America, if they were made partakers of the advantages and privileges which the natural-born subjects of this realm do enjoy:
Then, if they had inhabited or resided in any of the Colonies for the space of seven veers or more, and had not been absent for a longer space than two months at any one time: if they took [*738] and subscribed the oath of allegiance: and if they also made and subscribed the profession of their Christian belief, in token of which they had taken the Sacrament, within three months before taking the oath, in some protestant and reformed congregation, in Great Britain or in one of the Colonies, they were to be deemed and taken. to be natural-born subjects of Great Britain, and as such shall be allowed in every Court within the kingdom or the said Colonies.
Nevertheless, as I have said, before the Alien Act of 1844, naturalization as a general feature of the law was unknown in the United Kingdom. In 1870, the Naturalization Act attempted, with singular unsuccess, to put the subject, together with the kindred subject of naturalization of British subjects into foreign countries, on a sound basis. This Act continued, with slight modifications, till the Act of 1914 came into force, which, however, perpetuated the failure of its predecessor to deal satisfactorily with the admission of aliens to the privileges of British nationality. It is of greatest interest to note that the German law of nationality and naturalization was also revised in 1870; and was recast with important modifications in 1913, because, as we learn from the memorandum drawn up on the subject by the British Embassy in Berlin, printed in a White Paper and presented to Parliament in March 1914, the old law had long been considered inadequate to meet modern conditions arising out of the economic and national development of the Empire.
1913! What a strange synchrony of dates! The fact that both England and Germany amended their laws in 1870 was probably nothing more than a curious coincidence. England was compelled to settle a little difference on the question with the United States. But Germany, judging by the fact that it. then allowed its subjects to lose their nationality rather easily, can hardly have been influenced by her relations with France and, moreover, world-policy had not then come into being. But in 1913 the scheme of world-Empire was, as we now, know, almost complete; and naturalization enters largely into, is an essential detail of, world-policy; how essential I shall presently show. And so the necessary amendment of the law was made. And England about the same time was busying herself with her own law, but in her usual calm and somewhat unsophisticated fashion. The Dominions had for long been insistent that it should become more imperial in its outlook, and the Mother Country agreed. Early in 1914 the Bill passed through all its stages. In July the question of the nationality of married women was minutely discussed while the shadow of the War was already darkening the world. There was no sign of its being [*739] rushed through Parliament: discussion was ended; all parties were satisfied; it was a mere accident apparently that the Royal Assent should have been given to the measure on the 7th of August, three days after War broke out. As it was assented to, so it remained, until the date appointed for its coming into force, the 1st of January, 1915; and although, in the interval, fresh difficulties had been found in working the Act of 1870, advantage was not taken of the breathing space to meet at least one of them which I shall presently explain.
One ought not to be over-critical of what was done and what left undone in times like those early months of the War. The Government was overwhelmed with problems of the gravest nature; the Departments were working time and over-time; it was rumoured that the Foreign Office was, as we do in the East, working in its shirt-sleeves! And yet it would be unwise not to note, while things are fresh in memory, the very serious mistake which was made by the Government in not taking the bull by the horns and dealing with the trouble by a short amending Act. The reasons for inaction were, I think, three. First, I am not sure that the case was accurately diagnosed. Secondly, the new Act had been expressly designed to meet the wishes of the great Dominions in the matter of Colonial naturalization, and the Secretary of State for the Colonies stated expressly that it was not intended to touch the law of naturalization as it was being enforced under the Act of 1870, but only to represent in statutory form the existing practice, the existing common law, sand existing statute law. The Act is so drafted, indeed the nature of the subject is such, that practice must have a very large share in its administration. There is always a very natural departmental unwillingness to touch a carefully-reared edifice of practice; but I think that the Departments clung too long to it after a drastic change had been demonstrated to be necessary. But, thirdly, and most important, a statement was made in the House of Lords by Lord Haldane, then Lord Chancellor, which revealed an extraordinary misconception of the basis of the whole la of naturalization, and which, if it is the basis of departmental policy, accounts for everything. Lord Haldane declared, as one of the reasons for not touching the law of naturalization, which seemed to many to be urgently necessary, that it was a question of international law, and therefore demanded the greatest circumspection in dealing with it! Lord Haldane is a Jove among the lawyers; but the records of Olympus tell us that once Jove nodded. It is difficult to understand how such a statement came to be made on such authority, unless what used to be said at the Bar in old days of another famous lawyer, that Davey [*740] had forgotten more law than any other man ever knew, is true of the late Lord Chancellor. But what perhaps is more astonishing is that the Law Lords, if any were present during the debate, should have allowed the opinion to go forth to the world unchallenged. Where was that valiant veteran, defender of our faith in the Laws of England? In the spirit of that old formula of the Courts which, precluding criticism, sanctions it even of the highest with deference, my Lord I venture, though many months have passed since it was made, to challenge the statement. I do so, because if it is still adhered to, the necessary amendment of the Act can never be made, and the law never be put straight. Neither nationality nor naturalization is a question of international law; both essentially appertain to municipal law. No further proof of this is wanted than these three facts: that the English common law of nationality is directly at variance with the laws of practically all continental States, and does, as the Act of 1870 declared, claim as British subjects persons who by those laws are subject to other Sovereigns; that the English law of naturalization does, by immemorial tradition, as has already appeared, invite persons to become British subjects in defiance of, and without any regard to, the law of nationality which naturally binds them; and, finally, that English law is not alone in sanctioning either of these things, but proceeds on a principle which is common, and which our law tacitly recognises as common, to all other countries.
That the provisions of the laws of all States on these important questions should be made after discussion and with some regard to mutual rights and prejudices is another matter, the consideration of which is reserved for the millennium which is due to come after the Peace, when time can be found to deal with it. When time can be found! Will time ever be found to do anything any more? With all the public offices clogged with work resulting from the War it must be confessed that the outlook for a mere legal question is not very hopeful. I can only express a hope that, as these months of war have shown the uncertainty of the law of naturalization to have been fraught with danger to the State, it will, for the safety of the future, be put among the questions which are pressing for settlement, and marked with the green paper of urgency.
The public professes no great love for lawyers; their capacity for dealing with administrative affairs is often very rudely challenged. I shall defend my order by a retaliatory criticism of our critics. I have already referred to the prevalence of the Legal Idea among Frenchmen; it is singularly absent among Englishmen. Yet their distaste for the law does not prevent [*741] them discussing legal subjects when they become of public importance; and discussing them with a singular display of ignorance. What was recently said and written on contraband of war and blockade was a remarkable example. Even more serious was the clamour about naturalization, because it led to wrong-headed action. There was bandied to and fro a term which had no meaning in the connexion in which it was usedNaturalized German. And when this was pointed out people cried the more loudly Once a German always a German. This formula expressed the public grievance in a nutshell, and, curiously enough, it had, though they knew it not, a substratum of fact which went far to justify it. The Naturalization Act was at fault, and a clear statement from the Government would have been useful in clearing the air. But no statement of the law could have been clear, and an elaborate and complicated one would only have made matters worse: an opinion I will now justify.
Listen once more to the concise wisdom of the French Civil Code:
Art. 8. -Tout français jouira des droits civils:
. . . . .
les étrangers naturalisés.
then follow the categories of persons who peuvent être naturalisés.
And now listen to the words in which the effect of a certificate of naturalization was described in the English Act of 1870:
An alien to whom a certificate of naturalization is granted shall in the United Kingdom be entitled to all political and other rights, powers and privileges, and is subject to all obligations, to which a natural-born British subject is entitled or subject in the United Kingdom, with this qualification,
that he shall not, when within the limits of the foreign State, of which he was subject previously to obtaining his certificate of naturalization, be deemed to be a British subject unless be has ceased to be a subject of that State in pursuance of the laws thereof, or in pursuance of a treaty to that effect.
This complicated sentence apparently meant something; but when the grammatical construction was analysed this something began to fade away, and the closer the analysis was pressed, the more the double use of the words in the United Kingdom became unintelligible, till the original something disappeared, giving place to something quite different. It would be impossible within the limits of this article to discuss the full meaning of the [*742] Provision, and it would be irrelevant to the issue in hand; for the aliens who had become naturalized and about whose alleged traitorous misdeeds so much tumult arose were in the United Kingdom, and this much at least is clear, that in the circumstances they were rightly to be deemed to be British subjects.
But in order that the muddle-headedness of the old Act should be fully realised, it is important to note the surprising consequence of the confused wording of the provision. The Law Officers in 1874 advised that a certificate of naturalization confers upon an alien no rights or privileges in a British Colony, and a circular despatch was sent to the Colonies drawing their attention to this opinion. It was a surprising opinion, based on the narrowest possible construction of the language, and I know that at least one very eminent Law Officer of modern times did not agree with it. His opinion must have prevailed for Mr. Harcourt informed the Committee of the House when the new Act was tinder consideration that British naturalization has been valid throughout the Dominions and throughout the world: and further that the Bill did not purport to amend the existing aw of naturalization. As a matter of fact a very important amendment of the law was effected by the omission of the words in the United Kingdom altogether in the definition of the effect of naturalization which, as I venture to think, had led the Law Officers in 1874 astray. It also omitted the curious qualification in the old definition in favour of the law of the aliens original country, to which I shall refer presently. It is possible that the reduction of the practice into statutory form which Mr. Harcourt alluded to is responsible for these modifications of old opinions. Practice, however, could not have eliminated this qualification from the statute.
The new definition is clear and explicit and reads as follows
A person to whom a certificate of naturalization is granted by a Secretary of State shall, subject to the provisions of this Act, be entitled to all political and other rights. powers, and privileges, and be subject to all obligations, duties, and liabilities, to which a natural-born British subject is entitled or subject, and, as from the date of his naturalization, have to all intents and purposes the status of a natural-born British subject.
But the Act of 1914 was charged with an imperial mission; it dealt not merely with certificates granted in the United Kingdom but also with those granted in other parts of the Dominions under the different colonial naturalization laws. A to these there was no doubt.; their effect had been riidJv limited to the Colony in which they were granted, so that an alien naturalized in South Australia became a British subject there, but ceased [*743] to be a British subject if he went to New Zealand, or even to the United Kingdom; probably also when he went to sea. In two successive Colonial Conferences the desire had been expressed by the delegates that this anomaly should be swept away by a general imperial law of naturalization. Their desire was given effect to by the Act, and the broad principle was established that a British subject anywhere is a British subject everywhere. But I cannot help thinking that the glamour of this imperial doctrine blinded those who worked the system by which aliens were accorded the privileges of British nationality to its latent defects, to some of which I shall now draw attention. I have said that in the autumn of last year people were in sore need of a lead. They persisted in talking about naturalized Germans, refusing to speak of them correctly as naturalized British subjects. Yet those who acted on the idea which their words conveyed could easily have got the lead they wanted from any solicitor. He would have pointed out the one thing which was clear in the old definition-that a certificate of naturalization entitled the holder of it while he was in the United Kingdom to all the rights, and subjected him to all the obligations, to which a natural-born British subject is entitled or subject in the United Kingdom; and that, therefore, to deprive such a person of his rights or privileges, for example, as a member of a club, except for good cause or under the club rules, was a violation of his legal rights, to which losing ones head, whether public or private, would have been no defence in law; and, further, that the expedient resorted to in some cases, of an intimation from the committee not to use the club, would not have stood the test of a legal scrutiny. Yet although the voice of the people was certainly not the voice of God in His legal attributes, it certainly was inspired, as it so often is, and went straight to the root of the evil that it believed to exist. Once a German always a German did hit off exactly the short-sighted blunder which the legislators of other countries besides our own had committed in 1870, and still perpetuate, in dealing with naturalization.
What is naturalization? The French Code very neatly answers the question, arid we have now accepted that answer as the true onethe admission of a foreigner to share the rights and burdens of citizenship, in token of which he swears allegiance to a new King. Now it is a curious thing that though we boast an imperial democracy, though we preserve, not merely as a pious memory but as an active principle of our national life, as the Judges in Calvins Case declared, that ancient formula the ligeance of the King, our law pays little regard to nationality when it creates [*744] rights and duties. The French Codes are intensely national in spirit; their common formula when creating duties is Tout français. The law applies to resident foreigners in virtue of an exoteric doctrine winch the Courts have created. With us the common legislative formula in such a case is Any person, which, also in virtue of an exoteric doctrine created by the Courts, means Any person within the realm. The door is open, and those who enter assume, without the necessity of express permission, not only the legal duties but also the legal rights of subjects. The resident alien, and in many cases even the non-resident alien, unless residence is made the condition of their enjoyment, has in England the same rights as British subjects under our law. The ownership of British ships is the well-known exception; yet even here there is a loophole in the Merchant Shipping Act which may let the alien in. But, as I have said, in spite of the impersonal nature of English law, allegiance is still a vital principle. The Statute Book itself is the Statute of Allegiance, and statutory obedience has taken the place of that unwritten bond which tied the subject to his Sovereign. Yet the name remains, and there is still attached to it the personal feeling of respect and loyal devotion which is the modern substitute for knightly service: a feeling which the alien naturalized is expected to share, for a certificate of his loyalty is required before he can be admitted subject.
And so I come back to the question, now to be answered more fully, what is naturalization? It rests, to be effective, on the taking of a new oath of allegiance. Now, seeing that ligeance is a quality of the mind further, seeing power and protection draweth ligeance seeing, further, that ligeance of the subject was of as great an extent and latitude as the royal power and protection of the King, it follows that there cannot be several ligeances, and that the swearing of a new allegiance must mean and must carry with it, even though it is not so expressed in terms, an abandonment of the old allegiance. For as the ligatures or strings do knit together the joints of all parts of the body, so is the bond of allegiance which bindeth a man ad fidem Regis. If any stronger reason were wanted than the natural obedience which the word implies, it is to be found in the higher duty that all must share in safeguarding the real, which implies that the subjects of the King are bound by their ligeance to go with him in his wars as well within the realm as without, that they may be commanded to make their swords good against [*745] either rebel or enemy, as occasion shall be offered. This is the very essence, the nature and quality of natural ligeance, as it was laid down in the judgment in Calvins Case, which was in this, as in the other matters with which it dealt, rather a renovation of the judgments . . . in so many ages past, than any innovation.
Such being the high privilege and the great duty involved in allegiance, it would seem to be obvious that before an alien is admitted to share the birthright of the subject he should prove his worthiness. Granted that the naturalization of aliens is essential to well-being of nations (not in the Romuleian sense, but in view of modern conditions of social and commercial existence): knowing, though in the years that are gone of peace and plenty it seems almost to have slumbered, that men still have the national spirit strong Within them, this does at least seem clear, that the Chose publique must be sacredly guarded, lest by the careless admission of aliens to its benefits the devil of treason be unwarily introduced and breed a whole family of devils, treason, stratagems, and spoils. Now, if anyone of ordinary intelligence were asked to indicate what. should be the condition precedent to admission into the family of a nation, I imagine he would say, not merely a promise to bear true allegiance to its Chief but a clear and explicit renunciation of his allegiance to his former Chief. If the domestic tie of marriage requires a forsaking of father and mother and a cleaving to the husband, who as the woman's true protector is entitled to her heart-whole allegiance, surely, to put it no higher than analogy, the adoption of new ties of public life must require a forsaking of the old protector lest the cleaving to the new be not quite heart-whole. But there is far more than mere analogy involved; the public bond is forged of stronger metal than the family bond. Nationality is not a thing of transitory personal likes and dislikes. Unless allegiance has become merely a medieval idea, just as it cannot be assumed without express acquiescence of the King to be, so it ought not to be cast off without the express permission of the King that is. Unless the one is complementary of the other; unless courtesy mutually demands both as essential to an alteration of the natural law, what guarantee can either King have that swords shall be made good in time of need? The French family law, which is the quintessential appreciation of family life in its relation to national life, requires an acte respectueux et formel to be rendered by the son to his father requesting his advice before marriage, and this is not dispensed with till the son himself becomes head of the family. Yet not only is express permission to relinquish allegiance not [*746] required from the former Sovereign, but not even formal notification of intention is required of a man before he is naturalized into another State. The violation of the natural law of allegiance, blatantly proclaimed in the preamble of our Act of 1740, pollutes the modern law of nations, and retribution has at length followed. The imagined necessities of commercial relations have been allowed to assume a higher place than the exigencies of national life; ploughshares have been preferred to trusty blades, and we pay the penalty daily. The intuitive good sense of the French nation seized at once on the danger, the elasticity of mental action which characterises it has already indicated that one of the things essential to a lasting peace is a re-casting of the law of naturalization.
I invoke my friend of ordinary intelligence once more, and lay the simple facts before him. Can there be any doubt as to what he would say? You deliberately naturalize an alien without being sure that his former State has loosened the bond of his allegiance; nay more, you do not require of him an express renunciation of his old allegiance before he swears allegiance to your King: you have taken for granted everything about which you should have been so wary; you have presumed too much on the goodness of mankind. What if he is tricking you for his own purposes? What if his former State still hold him bound? What if the natural law should prevail over your artificial law, and he still give a willing obedience to its commands? You have yourself swept and garnished the room; how can you be surprised that the devil of treason should have entered in? To the indictment that the naturalization laws amount to a deliberate invitation to the alien to play fast and loose with citizenship, we, as the other nations, must plead guilty.
And now to come back to the prosaic clamouring of the people, which seemed to denote so great an ignorance of law: we can see now how, with sure instinct, it went straight to the root of the trouble, and what truth of meaning there was in their cry Once a German always a German. There was more truth in it, as I shall presently show, than even now appears; but the case against the law is not yet complete. I have still to show how little the true ideal of naturalization has ever been realised by English law. The conditions attached to the grant of the certificate by the Act of 1870 were these (i) residence in the United Kingdom for not less than five years within (under the Home Office regulations) eight years prior to the application (ii) an intention to reside in the United Kingdom. The Act allowed these fragile and wholly illusory conditions to be supplemented by regulations made by the Home Secretary, who was [*747] invested with an absolute discretion, without appeal, to grant or withhold the certificate as he should think most conducive to the public good. The evidence required under these regulations in support of the application is to be directed to the applicants residence, age and occupation, whether he is married or single, and whether he has any children under age residing with him. Further, his respectability and loyalty must be vouched for, by statutory declaration, by four householders, British-born subjects, each of whom is required to state the period during which he has personally known the applicant. The penalty for wilfully and corruptly making a false declaration is imprisonment, with or without hard labour, not exceeding twelve months. These conditions have been supplemented under the new Act by the following: the five-year period of residence must include one year immediately preceding the application and the Secretary of State must be satisfied that the applicant is of good character and has an adequate knowledge of the English language. And that is all!! Nothing more is required of the alien who desires to become a British subject. The questions rise in ones mind at once What if that be not his real desire? What if he should evade the vigilance of the departmental scrutiny? What if the application be made in bad faith? What if there be some sinister motive behind it?
Nine years ago, when studying the question of naturalization, without arrière pensée, without suspicion that it might conceivably be true, but only acting on the pernicious habit of putting hypothetical cases, I suggested this possibilitythat a mans real object in becoming naturalized might be to gain the right to vote, the intention to reside never really existing that the statements in the declarations of the householders might be false, (to take an extreme case) that they were not themselves British subjects: that the whole proceedings were part of a scheme of disloyalty. It seemed almost fantastic, even for a hypothetical case. We know now, as yet probably in part only, though day by day fuller knowledge is coming to us, of what the German with his dream of world-power is capable. We have begun, and only begun, to realise the full extent and meaning of his world-policy; to understand that interference with the internal affairs of a friendly State, influencing it in subtle ways towards pro-Germanism, was, in spite of honourable tradition to the contrary, considered to be fair game.
Imagine this. Some English constituency; a candidate with proclivities, which the War has revealed to be existent in some Englishmen, towards preaching humility to his countrymen, to[*748]wards reminding them that the foundation-stones of our Empire have not always been well and truly laid, with strong views on the tardy virtue ofshall we say?letting Germany have Gibraltar as a salve for wounded pride; it is considered that a dozen votes or so might turn the scale in his favour at the next election. Time to the far-plotting German counts for nothing, so that he ultimately achieve his end. Under the naturalization law, as it stands, those dozen votes could, with some deft manipulation and a certain amount of fraudulent misrepresentation, be secured to the innocent victim of the plot, by getting naturalized Germans (the term is useful on this occasion) on to the register. An extravagant idea! The improbable has become the possible to the German. We have come to the time when the blindest bluffs hold good . . . and the wildest tales are true. The Teuton has invented a new canon of international honour; dulce et decorum est pro patria is no longer the praise awarded only to the soldiers death, the civilian can earn it with much more ease and comparative safety by treachery to the foe.
But Lord Haldane gravely assured the Lords that naturalization is an international question, and cannot be touched without great circumspection! Where have the international principles of nationality or of naturalization ever been laid down? Certainly not in the preamble to 13 George II. c. 7. Or is it that they are questions which must be regulated by international agreement? The records of the Royal Commission which sat in 1869, the Report of the Inter-Departmental Committee published in 1901, show no signs of foreign Governments having been consulted. Was there an exchange of diplomatic notes prior to the drafting of the Act of 1914? Poser la question cest la résoudre. Of course there were no such things. We, like all other countries, just shaped our law as seemed to us best for the national interests, and in the naïve belief that comity, those rules of courteous intercourse which prevail among nations, would prevent one trying to get the better of another. This comity, to which our blind faith was pinned, has been shown to be less than a dream of a shadow or the shadow of a dream. And, to put the matter very crudely, if such a consultation were conceivable, the conditions now obtaining for becoming naturalized in England, the conditions now obtaining in France, are precisely those which Germany would most cheerfully have assented to.
But if the law showed a strange unconcern as to whether the allegiance which the alien swore on becoming naturalized were whole-hearted or not, once it was decided to abandon the old doctrine of the immutability of British nationality, it displayed a callous indifference to the abandonment of their allegiance by [*749] British subjects. In this it followed the laws of all States in their strange consistency; thenceforward British subjects were free to go as and when they pleased. A British subject, so the provision ran, who, when in any foreign State and not under any disability, may voluntarily become naturalized in such State, shall be deemed to have ceased to be a British subject and be regarded as an alien. And, lest there should be any technical difficulties in the way of his complete renunciation, the new Act has removed them. His naturalization in the foreign State my be effected by obtaining a certificate of naturalization, or by any other voluntary and formal act. Rarely, I imagine, has there been so great and so sudden a revolt from the immemorial tradition of the common law the fetters which bound subjects to their allegiance were struck off at a blow. The debates in the House of Lords in 1870 are not particularly edifying; there was a great deal of loose and inaccurate talk, but Lord Westbury struggled manfully for some clearer exposition of principles. The emigration to the United States had forced the hands of the Government, and principles were postponed to a more convenient season. But the laxity which treated citizenship as a matter of private concern, in which the State had no interest, was, as I say, prevalent in other countries. In Article 17 of the French Civil Code the same principle is adopted
Perdent la qualité de français,
1°. Le français naturalisé à létranger ou celui qui acquiert sur sa demande la nationalité étrangère par leffet de la loi.
And even the Germans showed the same strange insouciance to the vital principle of national life. They deliberately invented the class of heimathslosen, and cast into its eternal perdition Germans who have left the federal territory and who remain outside thereof for an uninterrupted period of ten years, unless they were registered in some German Consulate abroad. Even in 1897 this principle was considered sound, for it was expressly declared to extend to the wife of the person concerned, and to such of his children as are under his parental power who reside with him. Thus (as I have shown in a previous article in this Review), the excellent von Bernhardi lamented, some of the best and most enterprising citizens were lost to the Fatherland.
Those were the primitive days of innocence: the days before the world-plot came to its hatching. But afterwards a change. [*750] In the words of the memorandum of the British Embassy at Berlin, which I must again quote for emphasis, the old law (of 1870) had long been considered inadequate to meet modern conditions arising out of the economic and national development of the Empire. The new law was passed, and the Kaisers signature given at Balboim on board My yacht Hohenzollern, the 22nd July 1913. The changes in the law, introduced as a means for assisting the economic and national development of the Empire were these. The forfeiture of nationality for non-residence ceased to be automatic; it is to be declared by a decision of the central authorities if the absent one does not obey a summons to return issued by the Emperor in case of war or of a danger of war. Further, the naturalization of Germans in foreign countries was recognised, in accordance with the time-honoured principle, as a voluntary act requiring no sanction from. the home Government; but a new principle was introduced:
A person does not lose his nationality if, before acquiring a foreign nationality, he has applied for, and received, the written permission of the competent authorities of his home State to retain his nationality. Before the grant of such permission the German Consul is to be consulted.
Is it only a perfervid imagination that sees too late in these provisions the shadow, of the thing which was to come, which was then only a year off? With regard to the voluntary expatriation of Germans, the ten years of grace have been eliminated; the summons to return, made more imperative by being the Kaisers summons, might be issued though there had been but a few months residence abroad, if there were danger of war. Was this the last button in the elaborate mobilisation machine which had taken so many years to construct? Was there not danger of war in 1913? And what of the written permission to retain German nationality in spite of naturalization in a foreign country? Was it nut the rounding off of the super-elaborate scheme of espionage in 1913 must have been almost complete: the well-sworn spies posted far and near at their points of duty? We do not know what plots against the world's peace were hatched on board My yacht Hohenzollern lying at anchor in the peaceful Norwegian fiords; but this is certain, that there was a serious hiatus in the naturalization laws of the world in their deliberate disregard of the natural bond of allegiance which is involved in nationality, facilitating their voluntary expatriation; it is equally certain that this hiatus practically invited the new provision allowing a German expressly to retain his allegiance to the Fatherland while he assumed a new nationality, so that expatriation should no [*751] longer be the inevitable consequence of naturalization; it is still more certain that this would salve the conscience of many a docile German, enabling them to do with a light heart the spy work which was theirs to do. Indeed our law then met them half way, for, as I have pointed out, the Act of 1870 contained a provision which expressly recognised them to be Germans when they were in Germany! But there was more in the provision even than this. These alien-born would still become entitled in the United Kingdom, in virtue of their certificates of naturalization, to all the rights and privileges of natural-born British subjects. Among their privileges is this-that they would not be, in the event of war with Germany, subject to internment or expulsion from the United Kingdom; and among their rights thisthe right to trial by jury should they be accused of treason. What a pretty plot! How cunningly conceived! How deftly carried out! How successful it has been! Was it hatched in the brain of Wilhelm or of Delbrück? Did they christen their signatures with one more toast to The Day? Read the debates on the Defence of the Realm Acts; you will see how the Government was hampered at every step, and how it loyally strove to preserve the traditions of our race for doing justice, even to an enemy who had overreached us. Insight has come too late.
When Germany took the last step in the increase of her army, France, believing that an augmentation in the striking force of her enemy was a clear indication of an intention to strike with that force at some not far-distant time, countered it by a reversion to three years service with the Colours. But this little legal move, made not in the dark but quite openly, passed, so it seems, unnoticed either by France or England; at least outwardly both fulfilled their expected parts of guileless nations. Once more then let me say that, although popular indignation found its vent in the inarticulate cry Once a German always a German, it had a deeper meaning than those who used it could possibly have imagined, in many cases it must have been a fact. Yet there was one counter-move which, if it had been made, would have simplified some of the difficulties with which both the French and English Governments were faced at the time when what was called the spy mania was at its height: to take power to cancel certificates of naturalization.
Let us see exactly what the trouble was. I will not adopt the lurid accounts which were prevalent during the closing months of last year; but state the case baldly as a mere legal proposition. There were spies in England in the pay of the German Government. Whether they were few or many is immaterial: whether [*752] they flashed signals to the German cruisers from their lairs in the East Coast villages, or whether these were merely the dancing lights of a stolid British imagination over-wrought by the presence of an unimagined war, is also quite immaterial. There were some spies in England, and they were potential of evil. And if, as was probable, they had taken advantage of our complaisant naturalization law, they were, in the terms of their guardian statute, entitled to all political and other rights, powers, and privileges to which a natural-born British subject is entitled. To hold communication with the enemy, to aid and comfort him, is treason; and a British subject may be hanged for treason, or, where martial law is in force, may be shot: but hanged or shot, as the case may be, by decree of a Court which gravely listens to the evidence and gives sentence according to it; and, as we know, his ancient right of trial by jury was after much debate preserved to him. But if there were no more than suspicion he must go free. An alien enemy may be interned or expelled the country on suspicion. But aliens naturalized, even though they had received permission to retain their German nationality in virtue of the German law of 1913, were not alien enemies, but in all respects British subjects. The facts simply clamoured for instant action, such action as would enable the Secretary of State to strike away their British privileges.
But cancellation of certificates of naturalization was contrary to the Act of 1370. The alien who had fraudulently obtained one, and his confederates, could be punished for their fraud, hot he remained a British subject. The Act was silent on the point: it was a curiously nice question, and perhaps open to argument; but the Secretary of State was advised by the Law Officers, soon after the Act of 1870 was passed, that a certificate of naturalization is not revocable on the ground of having been obtained by fraud, and that it is not competent for him to annex any condition, as to residence or otherwise, providing for the avoidance of the certificate for breach of the condition. The Act of 1914 his altered this, and the Secretary of State may now revoke a certificate obtained by false representations or fraud. How far this provision goes, whether an act of treason could be construed as, not merely a violation of the oath of allegiance, but as evidence of false representation of the implied intention to remain loyal, is a question which may, conceivably, come up before the Courts and I will not discuss it. But there is one question of supreme importance which I confess does not seem to me to be clear: does this new power of cancellation extend to certificates granted under the Act of 1870? It is, indeed, part of the larger question-what is the effect of the Act of 1914 on existing certificates? 1 have talked [*753] so much law already that my readers must be wearied of it; it would moreover be manifestly improper for me to express a definite opinion even if I had formed one. But this article is designed to draw attention to grave deficiencies in the law in the hope of their speedy amendment, and I therefore put the position as it occurs to me.
So far as British nationality is concerned the Act of 1914. speaking broadly, is not retroactive. So far as naturalization is concerned it is expressly provided, by section 6, that persons who have been previously naturalized may apply for a certificate under the new Act; which would seem to show that the effect of a certificate, as it is described in section 3, is limited to certificates granted under it. The effect of a certificate granted under the Act of 1870 would then remain what it was under that Act, for rights and liabilities dependent on a repealed statute are preserved by the common form introduced for all legislation by the Interpretation Act of 1889. But, by the definition clause of the Act of 1914, the expression certificate. of naturalization means a certificate granted under that Act or under the repealed Act of 1870. This seems to point to the extension of the new power of cancellation created by section 7 to old certificates. But it also seems to show that the provisions of section 6 are superfluous. It appears from the statement of the Secretary of State to have been introduced in order to enable those who held colonial certificates to apply for certificates under the new Act, and so by a simple process to make them citizens of the Empire which they were not before. But the section was loosely drafted, and its effect does not appear to have been fully considered.
But whether this power of cancellation of old certificates has now been taken or not, there can, I think, with deference, he little doubt that the power was sadly needed in the autumn of 1914 before the new Act came into operation, and that if an emergency Act had been passed giving this power to the Secretary of State, many of the difficulties with which the Government. was faced would have disappeared. Even now it would seem advisable to make the meaning of the new Act on this question of cancellation clearer than it is.
I have dwelt, I trust with not more insistence than the subject demands, on the defects of the law as it exists, not in England alone but in all countries; they are so palpable that it is no longer a counsel of perfection to recommend that, after the Peace, efforts should he made to bring into harmony the laws of the friendly nations on the question of nationality, and of its sister subject, [*754] naturalization, and the predatory doctrine abandoned. Some see as the outcome of the Peace the map of Europe redrawn on what they call the principles of nationality. where is for this a necessary preliminary-that, these nations should agree as to what they mean by nationality.
F. T. Piggott*.
 I have ventured, with much diffidence, to quote occasionally from my book on Nationality; in this instance from the Introduction to Part I. [This is the first footnote in the article, albeit numbered 2, (ed., June 2004)]
 Nationality, Part I. p. 103.
 The German Imperial-Colonial Blunder, Nineteenth Ccntury and After, November 1915.