The Dominion. MONDAY, NOVEMBER 26, 1917. NATIONALITY & NATURALISATION

Dominion, Volume 11, Issue 53, 26 November 1917, Page 4

The Dominion. MONDAY, NOVEMBER 26, 1917. NATIONALITY & NATURALISATION

One of the most neglected subjects of Imperial interest, not only at the outbreak of the war, but, literally,, for several hundreds of years proviausly, was that of nationality, with its corollary, naturalisation. Aa a result, the best interests of the Empire have suffered much sinco August, 1914, and are still suffering. For the authorities have been, and are, seriously handicapped in dealing with those who in truth are either pseudo-Englishmen or naturalised enemies. But it may bo that even if our law in 1914 had.been more in conformity with commonsense and Continental usage it would still havo failed to grapple completely with the conditions created by such a war as the present and such an inhuman foe. This fact is now recognised at Home, and probably also by President Wilson, whose legal position in this matter does 'not differ greatly from our own. The existence of the German vote was, doubtless, one' of the causes, though not the only one, which forced him to f.teer such a perplexing course during tho first two and a half years ot the war. The ■ question of' naturalisation 13 of much greater importance to the Empire than the averago "man in the street" as yet realises, and after the war the existing law must bo recast very thoroughly. Nationality is fixed by one of two things, jus soli (place of birth), or jus sanguinis (nationality of father). England has, so far, pinned her faith to tho former qualification. Other countries of the first rank, -with the ono exception of tho United States, prefer the second. But the latter qualification iswithout doubt the sounder of tho two, and has been so for at least tho last three hundred'years. Subject to some minor statutory alterations, English law on this subject rests on tho common (i.e., the unwritten or non-statute) law of England—that is to say, it dates back to Saxon times. At that time, and for some centuries afterwards, it doubtless answered all purposes. The then population would have been of genuine British nationality under cither rule. As Lord Chief Justice Cockburn said: This rule, when originally established, was not unsnitcd to the isolated position of this island (Britain) and the absence of intorooureo with foreign nations in Saxon times. No children of English parents being born abroad, or children of foreign (parents being born within tho realm, the simplo rule that to bo bom within tho Dominions of tho Crown constituted an Englishman answered every purpose. But when the foroiyii possessions of our Kings and tho increase of commerce led to greater intercourse with tho Continent, and children of English parents wore sometimes born abroad, tho inconvenience of tho rulo which made the place of birth tho nolo criterion of nationality soon Ikcumo felt. Obviously, when tho two factors mentioned by his Lordship existed to a material extent, the old law should have been' abandoned aa being out of date au<i injurious, and tho alternative rule adopted into our law. ft is bccttftino no such step has yet been t--\li<v<i that we say this important subject has been neglected. The modern drawbacks of tho English rulo aro numerous. It will

suffice- to montion two of them Prior to January 1, 1015, the third and subsequent generations of Englishmen born in. foreign countries ceased to be Englishmen, and, in some cases, could not easily acquire . ai 7 ° th ?. r nationality. They were not linghsh under the English rule noitlicv were they French or Italian or torman, as tho case might be under the foreign rule. They were a sort of nobody's child. For instance, thoy liad no Consul to whom Jhcy could appeal in time of trouble tor no nation recognised them. And in some cases, wo believe, they could not own land. On the other hand m the case of unnaturalised foreigners who had issue born within the British Empire, that issue became at birth of full English nationality, whether they or their parents wished it or not. And they cannot even now disclaim that nationality until they attain the ago of twenty-ono years. Thus, then, many who would be Englishmen cannot be, and many who do not wish to be are. The mere statement of these two facts snou.y be enough to bring home to "is die abounding folly of the preset law. On August 7, 1914, His Majesty assented to tho latest amendment of the law, under the title of tho British Nationality and Status of Aliens Act, 1914, taking effect as from January 1, 1915. Substantially, all that it does in this connection is to lessen, under certain conditions, the first of the above evils to the extent of one further generation (the third). But it leaves the other, and probably even moro serious, evil quite untouched. It may be urged that tho Bill was only introduced in fulfilment of a pledge to the colonies that the naturalisa-tion-laws of the Empire should bo made uniform. This is probably true The Act certainly redeems the Pledge, and tho dangerously short term of residence after which some of the colonies allowed naturalisation can now be extended to a five years' minimum. As tho matter now atandsj one of the effects of past failure to place the law on a'sound footing may .'bo, and probably has been, that some suspected German spy may legally avoid internment on the ground that his mother bore him in England, and that therefore in law he is -an Englishman, German though he may be in evory other respect. Last yeaT, in the Kino v. Halliday case, it was held that a naturalised enemy could be interned under certain special war legislation. But it would be a rather long step further to hold that a person of foreign extraction, though English by birth, could be interned when neither, treason nor sedition could be proved against him. ' The amendment of the law generally thought to be required is that the Empire shall abandon tho jus soh, or place of birth qualification, once and for all, and adopt the jus sanguinis. Consideration of this proposed amendment raises a further question, viz.: how far, if at all, it should bo retrospective. It should certainly bo made retrospective in regard to 'all issue now under twenty-one years of age born to amnaturalised aliens within the bounds of tho Empire. Public opinion to-day is strong on matters affecting our relations with some other nations. It will bo still stronger when our soldiers and our interned fellow-countrymen have returned to their homes and told their experiences of the iunspeakable Boche. It will probably require that all such issuo of whatever age, and the descendants of such issuo, shall bo denationalised, -with all its consequences, or such denationalisation may be limited to the issue of alien enemies other than the Slav, Italian, and Rumanian subjects of Austria and the Polish subjects of (Austria and Germany, Tho Bounder course, certainly, would be to make no distinction between any classes of aliens._ It may bo urged, of courso, that it would not be good policy to mako such a measure applicablo to alien friends who have fought'shoulder to shoulder with Ms in this war. It is quito likely, however, that no nation in the first rank will object. Continental nations in particular havo always shown themselves extremely unwilling to lose any legitimate citizens as, according to their laws, this issuo is. They may even wclcomo such a measure as we have just discussed. Again, it may be said, and indeed is demanded, that all persons of alien enemy extraction snail be denationalised, irrespective of whether they are British subjects _ by birth ' or by naturalisation. Provided that it is not carried _ back over an unreasonable period, this proposal is likely to be supported by a very largo number of people.