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44 VICT., CAP. 13.

An Act respecting Naturalization and

Aliens.

[Assented to 21st March, 1881.*]

Preamble.

HER MAJESTY, by and with the

advice and consent of the Senate and House of Commons of Canada, enacts as follows:- +

INTERPRETATION CLAUSE.

Interpretation.

1. In this Act, if not inconsistent with the context or subject-matter thereof,

Disability” means the status of being an infant, lunatic, idiot, or married

Disability.

woman:

* In force 4th July, 1883. See sec. 2, and note.

t By the Imperial Act it is provided that :-“ All laws, statutes and ordinances which may be duly made by the legislature of any British possession for imparting to any person the privileges of naturalization, to be enjoyed by such person within the limits of such possession, shall within such limits have the authority of law, but shall be subject to be confirmed or disallowed by Her Majesty in the same manner, and subject to the same rules in and subject to which Her Majesty has power to confirm or disallow any other laws, statutes or ordinances in that possession. British possession' shall mean any colony, plantation, island, territory or settlement within Her Majesty's dominions, and not within the United Kingdom, and all territories and places under one legislature are deemed to be one British possession for the purposes of this Act." (The Naturalisation Act, 1870, (Imp.) sec. 16.)

H.M.

" Officer in the Diplomatic Service of Officer in Her Majesty” means any Ambassador, service of Minister or Chargé d'Affaires, or Secretary of Legation, or any person appointed by such Ambassador, Chargé d'Affaires, or Secretary of Legation to execute any duties imposed by The Naturalization Act, 1870, (Imperial) on an officer in the Diplomatic Service of Her Majesty :

" Officer in the Consular Service of Her Officer in

consular serMajesty

means and includes Consul- vice of H.M. General, Consul, Vice-Consul and Consular Agent, and any person for the time being discharging the duties of ConsulGeneral, Consul, Vice-Consul or Consular Agent:

" Oath" includes affirmation in the Oath. case of a person allowed by law to affirm in judicial cases :

County” includes a union of counties County. and a judicial district or other judicial division :

“Alien" includes a statutory alien : *

Alien.

“Subject” includes a citizen when the subject. foreign country referred to is a republic.

* 1. e., one who has become an alien in pursuance of the Act.

When this Act shall be in force.

2. This Act shall not come into force until on, from and after a day to be appointed in that behalf by proclamation of the Governor published in the Canada Gazette. *

Short title.

3. This Act may be cited for all purposes as The Naturalization Act, Canada, 1881."

STATUS OF ALIENS IN CANADA.

Aliens may

hold and

4. Real and personal property of every transmit pro- description may be taken, acquired, held pinty of any and disposed of by an alien in the same

manner in all respects as by a naturalborn British subject; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject: Provided,-(a)

(a). Upon the corresponding provision of the English Act, Lord Chancellor Hatherley observed that some reasons may have existed formerly from jealousy of foreigners acquiring undue influence at times, when we had monarchs with foreign possessions, or who were of foreign origin, and who might be disposed to parcel out among their favorites large tracts of land,

these reasons no longer

*

* See Proclamation Canada Gazette of July, 1883, declaring Act in force on, from and after 4th July, 1883.

existed, and the sooner they got rid of this invidious distinction the better. *

And the object of the provisoes, as the Solicitor-General in the Commons, in reply to objections, said, was to preserve the distinction between the rights which an alien would acquire under this clause, and those further rights which he would acquire by naturalization. If the provisoes were not inserted, the very fact of empowering aliens to hold real property might be taken as a qualification for municipal and other offices and franchises, and then there would be no need of a Naturalization Act.

The question of suspending the operation of the Act with regard to enjoyment of property by aliens subjects of any State at war with Her Majesty during the continuance of such hostilities was left to the discretion of the Secretary of State. I

While, prior to 1849, the law of England introduced by the Act of 1792, which incapacitated aliens from holding or transmitting real estate, prevailed in Upper Canada, in Lower Canada an alien could hold real estate, but at his death it would go to the Crown (The Mayor of Lyons v. The East India Co. 1 Moo. P. C. 267, 284); and when the fact of alienage was established according to English law, the civil consequences of it were determinable by the local law (Donegani v. D., 3 Knapp P. C. 84). A collective naturalization of certain classes of aliens in Lower Canada was effected by 1 W. 4 c. 53 (L. C.), conferring upon them the capacities of British subjects with regard to real estate. But the Act of the Parliament of Canada of 1849 (12 Vic. cap. 197, sec. 12; C. S. C. cap. 8); together with the Act of 1865 (29 Vic. cap. 16), set the whole question at rest,

* Hansard (Imp.) 1870.

t Ibid.

Ibid,

H.N.A.

4

placing aliens on the same footing as to taking, holding, and disposing of real estate as British subjects in both Upper and Lower Canada. (See Corse v. C., 4 L. C. Rep. 310, 318).

The local law of Ontario is the same as that of the Dominion in this respect (R. S. O. cap. 97).

The Naturalization Act (Imp.), sec. 2, corresponding with the above provision of the Act of Canada, has been held not retrospective, and that the Court of Chancery will enforce in favour of the Crown a trust of land for an alien created prior to the Act: (Sharp v. St. Sauveur, L. R. 7 Chy. App. 343). The Ontario Act, however, is expressly made retrospective to 1849.

Not to vote

on it.

1. That this section shall not qualify an alien for any office, or for any municipal, parliamentary, or other franchise (6);

(6) Aliens cannot be elected members of Parliament. (May's Parl. Prac. 9th ed., p. 31; Lex Parliamentaria, 182; and see Form of Writ for general election ; Todd's Parl. Law, App. xv; and Whitelock, vol. I, p. 2).

Aliens are disqualified from voting at elections. (See cases collected in Hodgins' Voters' List, 100).

It is not sufficient in case of a contested election, to swear that certain voters are aliens without giving particular evidence to show that they are aliens, and how, as by having been born in a certain place named out of the allegiance of the British Crown. (Regina v. Beckwith, 1 Pr. R. 278, 284).

Imp. Stat. 7 Geo. IV, (1826) c. 68, enabled persons naturalized in Upper Canada to be summoned to the Legislative Council of the Province and to vote at elections.

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