NATURALIZATION OF ALIENS.

INTRODUCTION.

AMONG the enumerated classes of subjects, which in the

distribution of legislative powers by the British North America Act, (sec. 91), were assigned to the authority of the Dominion Parliament, we find as class 25, "NATURALIZATION AND ALIENS."

"THE NATURALIZATION ACT, CANADA, 1881," is the same in principle as the Imperial Act, entitled "The Naturalization Act, 1870," which having been amended by two subsequent Acts, is now to be cited as "The Naturalization Acts, 1870 and 1872;" the leading principle of the English Act being the recognition of the right of expatriation, or in other words, the abrogation of the old legal rule—that no one can disclaim the country of his nativity, or abjure the bond of allegiance. Not only are the two statutes the same in principle, but those sections of the Canadian Act, relating to the new features of the law are copied from the Imperial Act with such changes only as were necessary to adapt it to the Dominion of Canada.

As to that part of the Act (which, however, does not necessarily belong to a naturalization law) conferring on aliens the same capacities with regard to real estate which are enjoyed by British subjects, Canadian legislation has been in advance of the English, the latter having been first introduced by the Act referred to of 1870, while in Canada a similar law has existed since 1849, (12 Vict. cap. 197). (a).

(a) Murray v. Heron, 7 Gr. 177.

H.N.A.

1

Public attention had frequently been more or less forcibly directed to the inconvenience arising out of double nationality, and the practical difficulties attending the doctrine of indelible allegiance, but never with greater urgency than during the American civil war, shortly after which the agitation resulted in the subject being taken up in both the U. S. Congress and the Parliament of Great Britain. A Royal Commission was appointed in England to inquire and report on the Laws of Naturalization and Allegiance, which in due time presented an elaborate report covering the whole field, together with an Appendix, in which was collected a mass of information as to the laws of different nations and all other matters pertinent to the inquiry, with recommendations looking to a practical solution of the question, which report became the foundation of the Bill afterwards introduced into Parliament. The light thus thrown on the subject was increased when Sir Alex. Cockburn, Lord Chief Justice of England, gave to the public a treatise, published between the date of the report and the introduction of the Bill into Parliament, in which he specially dealt with the matter of the Report and Appendix, and also gave his own opinion and suggestions as to the requisite legislation-a treatise the great value of which was acknowledged by Lord Chancellor Hatherly in speaking on the measure in the House of Lords. When, in addition to this, we refer to the speeches made by the high authority just mentioned, and by other eminent jurists and statesmen, upon the Bill during its progress through Parliament, we have a volume of light by which to read our Canadian statute which, in the absence of judicial decisions expressly construing a statute, is seldom to be obtained.

In the following pages, therefore, will be found quotations, from the speeches referred to, as well as from other authorities bearing on the subject; which have been made under the impression that when English legislation is extended to

this country through our own Legislatures, not only for the utility of the law itself, but partly, it may be, in pursuance of a policy to establish uniformity of law throughout the Empire, we are, in a sense, justified in drawing from the original source of those laws such aid towards their interpretation as may be obtainble from that source.

As to the Act itself, providing a simple and inexpensive method of naturalization applicable to the whole Dominion and opening wide the door of British citizenship to persons of foreign birth who come to settle in Canada, without, at the same time, requiring them to abjure the country of their nativity,-leaving them free to throw off the acquired, and resume their original nationality, at their option,—such a law is exceedingly opportune at a time when emigration has set in, and is continuing in a constant stream from all other nations to the British half of North America.

The Act, though assented to on the 21st March, 1881, did not come into force until 4th July, 1883, by Proclamation of the Governor-General, in pursuance of sec. 2 of the Act.

Proceedings were taken under it in Manitoba before that date on the erroneous impression that it was already in force. These proceedings were legalized by the Act of 46 Vict. cap. 31, (Can.) enacting that, all proceedings in a number of cases in Manitoba taken under the "Naturalization Act, Canada, 1881," under a misapprehension that said Act was then in force, upon which certificates of naturalization had been issued, and all certificates issued upon such proceedings were legalized, and made as valid and effectual as though the said Act had been in force.

The controversy arising out of the naturalization by one state of the subjects or citizens of another when the latter refused to relinquish its hold on their allegiance and out of

the frequent claims for protection made to governments by such persons extended over many years, but the question was at last thoroughly investigated, more especially as it related to Great Britain and the United States in 1868-70, developing much learning and research. On the part of the United States it was urged through their executive and ambassadors that the right of expatriation is the natural and inherent right of all people, and that there should be no distinction as regards the right to protection between naturalized and native born citizens; while on the part of the British government the original contract between sovereign and people was referred to, and it was insisted that the act of a foreign government in naturalizing a person was not sufficient without the consent of his own government to sever the relations between a man and his sovereign, or to divest him of his nationality of origin. To the American objections to the old rule of the English common law as to indelible allegiance it was pointed out that the same rule was law in the United States, and so recognized by the Supreme Court (b). Among other arguments the law of the Romans (c) was cited by Mr. Bancroft, United States Minister at London, as showing that the right of the individual to change his country was recognized by that law. To this Lord Palmerston rejoined that it did not appear that the passage quoted sanctioned expatriation in the sense of a voluntary abjuration of natural allegiance without the assent of the sovereign power. In the convention which was eventually entered into the right of expatriation was recognized, and the consent of the respective governments necessary to validate or perfect the act of the subject or citizen in severing his allegiance and changing his nationality was incorporated in legislative enactment, as will be seen in the subsequent pages.

(b) See Art. Expatriation, 3 Can. Law Times, p. 511. (c) Cic. Orat. pro Balbo.

EXPLANATION OF TECHNICAL TERMS USED IN OR IN REFERENCE TO THE NATURALIZATION ACT AND OBSERVATIONS ON SAME.

ALIEN.-One born in a strange country, under the obedience of a strange prince or country. (Co. Litt. 128 b. Bracton 427 b.) One born out of the allegiance of the Queen-; in the United States, one born out of the jurisdiction of the United States and who has not been naturalized under their constitution and laws (a).

In the United States an alien, even after being naturalized, is ineligible to the office of President or Vice-president of the United States, and in some states to that of Governor. He cannot be a Member of Congress until after the expiration of seven years from naturalization. An alien can exercise no political rights whatever; he cannot vote at any political election, fill any office, or serve as a juror (b). He cannot in general acquire title to real estate by descent; and if he purchase land he may be divested of the fee, upon inquest of office found; but until this is done he may sell, convey or devise the lands and pass a good title. The disability of aliens in respect to holding lands are removed by statute in many of the states (c).

A person born in the United States before the Revolution, and remaining there was regarded here as an alien, and not entitled to maintain ejectment in this Province; nor could a person who voluntarily left the province in 1812, and came under the operation of 54 Geo. III. cap. 9 (d).

(a) 2 Kent. Com. 50.

(b) Bouvier's Law Dic. Cit. 6 Johns. 332.

(c) Ibid.

(d) Doe dem Patterson v. De Witt, 5 O. S. 494; Wallace. v. Adamson, 10 C. P. 338; Wallace v. Hewitt, 20 Q. B. 87; Montgomery v. Graham, 31 Q. B. 57.