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Government, to be declared by law; and that, as there is no existing regulation on the case, the rule of the English common law remains unaltered” (1).
Another distinguished American lawyer, the late Attorney-General Black (formerly one of the Justices of the Supreme Court of the State of Pennsylvania), said, in 1859, in an official opinion, “the executive government have always claimed an unlimited right of expatriation for the subjects of all other countries, but when, within the last few years, the question presented itself in the Supreme Court, not one of the Judges affirmed, while several denied the right for its own citizens” (m). .
And it would seem that the Executive gave practical effect to such denial in the case of Elijah Clarke, mentioned in a note to Sir F. Baker's edition of General Halleck's book "as a native of the United States who was hanged by the Americans as a traitor in 1812, though he set up the defence that he was an alien, having been domiciled in Canada" (n).
(f) After the conclusion of the Treaty of Ghent and general pacification of Europe, those British subjects who had been taken prisoners in the impressment from American ships in the war of 1812, and sent to England to be tried as traitors, were liberated; and it does not appear that the British Government has practically enforced the legal rule of indelible allegiance since that time, or indeed laid claim to the allegiance of any one who has practically expatriated himself (0).
(1) Kent's Comm. 12th ed. vol. ii. p. 49. (m) Op. Atty-Gen. vol. ix. p. 356; and see Halleck's Int. Law, edition by Sir S. Baker, p. 195.
(n) Halleck's Int. Law, p. 359, citing Bracken. Miscell. 409. (0) Cockb. 30.
The learned Chief Justice Draper, in the case of Reg. v. McMahon (p), already referred to, takes notice of the relaxation of the rule as follows :-“It might have been objected that the more liberal views of modern times seem to recognize a right in every freeman to elect, not merely his place of domicile, but his sovereign, or government, and with his person transfer his allegiance also, and that the Court should not fetter such right with the antiquated doctrine of allegiance by birth being indestructible by the act of the subject."
The Royal Commission were unanimous as to the expediency of establishing the new principle of modern times, allowing a man to change his nationality, Earl Clarendon, the chairman, stating, in the House, that the main object of the commission had been to consider whether, as regards British subjects, they should still retain their nationality, although they may have acquired naturalization in another country. It was perfectly true, he said, that the old common law doctrine had fallen into desuetude, and long since ceased to be put in practice; but it stood greatly in the way of any legislation with regard to naturalization; and the commisioners were unanimously of opinion that it ought to be abolished. They say, he continued, quoting from the Report, that, “The allegiance of a natural born British subject is regarded by the common law as indelible. We are of opinion that this doctrine of the common law is neither reasonable nor convenient. It is at variance with those principles on which the rights and duties of a subject should be deemed to rest; it conflicts with that freedom of action which is now recognized as most conducive to the general good, as well as to individual happiness and prosperity; and it is especially inconsistent with the practice of a state which allows to its subjects absolute freedom of
(b) 26 U. C. R. 195.
emigration. It is inexpedient that British law should maintain in theory or should by foreign nations be supposed to maintain in practice, any obligations which it cannot enforce, and ought not to enforce if it could; and it is unfit that a country should remain subject to claims for protection on the part of persons who, so far as in them lies, have severed their connection with it" (q).
Lord Stanley speaking of the steps which had been taken by the previous government of which he had been a member, said, “We thought moreover that the change which we proposed, and which the bill is the means of carrying out, was not so much a concession to any American claim or demand as a step taken in our own interest, with a view of relieving ourselves from duties which we had no means of discharging, and of abandoning nominal rights which it was not in our power to make use of. The fact was that from 1796 to the present time this question has been an almost constant subject of dispute and controversy between England and the United States ” (r).
Lord Chief Justice Cockburn, in 1868, in the treatise already referred to, reviewing and summing up the results of the labours of Her Majesty's Commissioners as set forth in their report and appendix, and referring to the naturalization by one State of the subjects of another when the latter refuses to relinquish its hold on their allegiance, remarked that this was for more than half a century a cause of discord between Great Britain and the United States, and led to controversies as to which Her Majesty's Commissioners say, “Commencing from the first establishment of the American Union, they continued with unabated vigor until the present day (1868), when the great increase in the number of persons settled in the United States had raised them to a position of the utmost importance” (s).
(9) Parl. Deb. 1870.
As to the numbers referred to it is stated in Mr. Wheaton's Treatise (t), that it was estimated in 1868 that upwards of six millions had emigrated to the United States since 1790, and that they and their descendants numbered more than twenty millions ; and upon this it is remarked by that learned author that “the position of the government was therefore most anomalous, if that number of its subjects owed allegiance to foreign states.” It may be mentioned that from that time up to the present the numbers have constantly increased. The census of 1880 and other statistical reports show that the United States have been receiving from European countries an average immigration of half a million per annum. By that census it appears that there were over six and a half millions of persons of foreign birth then settled in the United States; and of these vast hosts, about two and three quarter millions were born in the United Kingdom, and 717,157 in Canada.
During the American civil war, 1861-1865, when conscription Acts were passed by Congress, difficult questions frequently arose by reason of persons residing there claiming exemption from military service on the ground that they were British subjects, and invoking the protection of the British Government.
As to this, Earl Carnarvon remarked that "experience of the late civil war in the United States had shown that under the present law persons who had acquired a double nationality would desire to obtain the advantages of both, while accepting the burdens of neither”(u).
(s) Wheaton's Int. Law, 2nd ed. p. 206.
The inconvenience of the rule was further exemplified when the protection of the United States Government was demanded by Europeans who had emigrated to the United States and become naturalized according to the laws in force there, and then returned to their native country and became amenable for acts committed against its laws. Other causes of controversy are referred to more fully in Sir F. Baker's edition of Gen. Halleck's Work on International Law, and Boyd's edition of Wheaton, and in Cockburn on Nationality.
Lord Chancellor Hatherley, in introducing the Imperial Bill in the House of Lords, was careful to point out the distinction between Naturalization and Nationality, saying as to the latter," it could only be dealt with by treaty, when we had brought ourselves so completely en rapport with other nations that we could agree upon some common system of legislation. All that Great Britain could do meanwhile was to take a step in the right direction in the direction proposed by the Bill--and thus induce other nations to act similarly” (v).
The controversy, so far as Great Britain and the United States were concerned, was settled in the most amicable
A Protocol, dated 9th October, 1868, was signed by the Minister of Foreign Affairs, Earl Derby, and Mr. Reverdy Johnson, the American Minister in London, the effect of which was to pledge the Government of the country to bring before Parliament the question of naturalization, and on behalf of the Crown, and subject to the sanction of Parliament, to accept as a basis of legislation the principle that citizens of the United States naturalized in England, and British subjects naturalized in the United States, should be reciprocally free, on certain conditions, from their
(v) Parl. Deb. 1870.