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native allegiance” (w). Upon the Bill being passed,—i.e., the Naturalization Act, 1870,-a treaty was signed, viz., the
Treaty of Naturalization between the British Government and the United States, of May 13, 1870," embodying the principle above referred to, establishing reciprocal relations upon the subject in question between the two nations. This was followed by a supplemental treaty, signed 23rd February, 1871 (2).
The question of expatriation occupied the attention of the United States Congress in 1868. Sir Alex. Cockburn (pp. 104, 105) observes that during the debate several members (Messrs. Wilson, Woodward and Pile), who took part in it, challenged attention to the fact that while the promoters of the measure were aiming their attacks against Great Britain on account of its law relating to allegiance, the American law remained unaltered ; Mr. Woodward proposing to insert a clause providing for the expatriation of Americans becoming domiciled abroad, on the ground that when they (the American people) were asking foreign governments to make provisions in their behalf for expatriation of their citizens, it was quite indispensable that they should begin by providing for the expatriation of their own citizens.
On the 27th July of that year, an Act of Congress was passed with a preamble containing the following declaration :“Whereas the right of expatriation is a natural and inherent right of all people indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign States, owing allegiance to the Governments
(w) Parl. Deb. 1870.
thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disallowed : therefore any declaration, instruction, opinion, order or decision of any officer of the United States which denies, restricts, impairs or questions the rights of expatriation is declared inconsistent with the fundamental principles of the Republic :"-as to which declaration Sir R. Phillimore observes that it “cannot, of course, be considered as one of international law, because one State has thought proper to incorporate it into its own law” (y).
It, however, defines very clearly the views of Congress on the subject. And an official opinion has been given by Hon. G. H. Williams, Attorney-General of the United States, upon this declaration, to the effect that it comprehends citizens of the United States as well as those of other countries ; and where a citizen of the United States emigrates to a foreign country, and there, in the mode provided by its laws, formally renounces his American citizenship, with a view to become a citizen or subject of such country, this should be regarded by the United States' Government as an act of expatriation (3).
As between Great Britain, with her dominions, and the United States, however, expatriation is governed by the treaties above mentioned, taken in conjunction with provisions in the Naturalization Act.
Section 8 of the Canadian Act (sec. 6, Imp. Act), authorises expatriation. A British subject may, whenever he thinks proper, by complying with this Act, cease to be a British subject, and the fact will be recognized by his own government.
by) Phill. Int. Law, 2nd. ed. vol. iv. p. 30. (2) Opin. Att'y-Gen. vol. xiv. p. 295 (1873).
And to prevent persons being taken by surprise by the change in the law the right is given to any who have been naturalized abroad previous to the passing of the Act, and who, according to the previous law, were then still British subjects, to choose within two years whether they would remain foreign subjects or reclaim their citizenship in this country (sec. 9, 8-s. 1, and see Convention, App).
The Act contains provisions for other special cases, made in pursuance of the same principle, viz., in secs. 5 and 7; also a provision for “ Repatriation ” (secs. 20, 23), whereby a British subject, who has become an alien by virtue of the Act, called a “ Statutory Alien,” may resume his original character, and obtain a certificate of re-admission to British Nationality through as many alternations of nationality as the person may desire. Upon the debate already referred to, Earl Carnarvon “doubted whether, if the citizenship of a great country like that was really a precious possession, a man should be able to take it on and put it off as if it were an old garment toties quoties according as suited his convenience; and suggested that a man should not be at liberty to return to his original nationality more than once" (a). This suggestion, however, was not adopted; the
Statutory Alien ” being entitled under the provision just mentioned to apply upon the same terms and subject to the same conditions as required in the case of an alien by birth.
In making this provision, however, as in the provision of sec. 9, 8-ss. 1 and 2, above referred to, regard is had to international law, and the rights of foreign governments over acquired subjects are respected by the qualification that “ within the limits of the foreign state of which the person became a subject he shall not be deemed to be a British
(a) Parl. Deb. 1870.
subject within Canada, unless he has ceased to be a subject of that foreign State according to the laws thereof, or in pursuance of a treaty or convention to that effect. The claims of international law are also respected in making the provision for conferring the quality of a British subject upon an alien, the qualification being added that “he shall not when within the limits of the foreign State of which he was a subject previously to obtaining his certificate of naturalization, be deemed to be a British subject, unless he has ceased to be a subject of that State in pursuance of the laws thereof, or in pursuance of a treaty or convention to that effect (sec. 17), evidently because the British Government will not assume responsibility for the conduct of any acquired subjects within their country of origin unless they have been expatriated with the consent of the government of that country. But as between the United States and Great Britain provision has been made for the re-admission of citizens as subjects, as well as for their expatriation, in the treaties set forth in the Appendix.
In speaking of the national character of persons, whether native or acquired, and their right to government protection, it should not be overlooked that no distinction is to be made between subjects or citizens and aliens as to their amenability to the laws of the country in which they may be. Every nation possesses an exclusive sovereignty and jurisdiction within its own territory, and its laws affect and bind all persons who are resident within it, whether naturalborn subjects or aliens (b). By the comity of nations, an alien is entitled to the protection of the country in which he may be; and in return for this protection owes obedience to the law, and temporary allegiance to the Sovereign or State; so as to be liable, like the natural-born subject, to the penalties which attach to the violation of the law; and
(6) Story on Conflict of Laws, 8th ed., 21; Kent, 12th ed., vol. ii., 64.
this to the extent of being punishable for treason for any attempt against the State, even though his own country should be at war with it, if he has been permitted to reside during time of war. In the United States, as well as in Great Britain, aliens are liable to trial for treasonable offences committed within the jurisdiction of the country (c).
In the case of some of the prisoners tried by court martial in Montreal, of which Major-General Clitherow was president, in 1838, for offences committed in furtherance of the rebellion in the Province of Lower Canada, it was urged by the Judge-Advocate that the cases fell clearly within the jurisdiction of the Court, whether the persons charged were subjects of the British Crown or citizens of a foreign State, and it appears to have been so held (Mott's Case, Montreal State Trials. Pub. Mont., 1839, Vol. II. 500).
(c) Cockb. 82, 139.