Sivut kuvina
[blocks in formation]


s St Enoch Shipping Co. v.

Phosphate Mining Co. 107 St Tudno, The

I20 Salomon v. Salomon & Co. 118 Sampan (Owners) v. Fiume (Owners)

41, 44 Schaffenius v. Goldberg

24, 46, 47, 48, 54, 58, 73, 125 Schmitz v. Van der Veen & Co. 113 Scotland v. South African Territories, Ltd.

50 Scottish Navigation Co. v. Souter & Co.

108 Seligman v. Eagle Insurance Co. 149 Shepeler v. Durant

34, 35 Shipton and Harrison's Arbi

tration Smith, Coney & Barrett v.

Becker, Gray & Co. 153 Soc. An. Belge des Mines v.

Anglo-Belgian Agency 104 Society for Propagation of Gospel v. Wheeler

117 Sparenburgh v. Bannatyne 39 Stahlwerk, etc. Patent, In re 55 Stoomwaart Maatschappij

Sophie H. v. Merchants'

Marine Insurance Co. 148 Sutherland (Mary Duchess

of), In re, Bechoff, David
& Co.v. Bubna and others

49, 54, 57, 59 Sylvester's case

23, 31


97, 160

Watford v. Masham
Watts, Watts & Co. v. Mitsui
& Co.

146 Weber, Ex parte

14, 15, 53 Weiss & Co. and Crédit

Colonial et Commercial's

Wells v. Williams 31, 33, 38, 47
Williams V.

114 Willison v. Patteson

72 Wilson, In re; ex parte Marum 56 Wimble v. Rosenberg 158, 159, 160 Wolf & Sons v. Carr, Parker & Co.

115 Wolff v. Oxholm

63 Wycombe Electric Co. . v.

Chipping Wycombe Cor-


Tamplin (F. A.) Steamship

Co. v. Anglo-Mexican Pe-
troleum Products Co. 82, 86, 87

88, 89, 90, 91, 94, 96, 108, 109 Taylor v. Caldwell 78, 79, 80, 81,

83, 84, 85, 86, 87, 89, 92, 94 Tennants v. Wilson

95 Teutonia, The

20, IIO Theodor Schneider & Co. v. Burgett & Newsam


Y Y.B. Hil. 19 Edw. IV, f. 6 19, 29 Y.B. Hil. 32 Hen. VI, f. 23 29 Y.B. Pasch. 14 Edw. III (Rolls Series, p. 128)

76 Y.B. 17 Edw. IV, 2, pl. 2. 93

Zinc Corporation v. Hirsch

65, 67

[The Trading with the Enemy Proclamation (No. 2) of 9th September, 1914, is reprinted on pp. 131-4 with the permission of the Controller of His Majesty's Stationery Office.]




Reprinted from Law Quarterly Review, xxxv. 213 (July, 1919).

WAR and the atmosphere of war tend to bring into sharp relief questions of nationality—its rights and obligations—which particularly in an island country do not excite much interest in times of peace. The British policy in the past has been, as we shall see, to make it easy for the alien to become one of ourselves, and, even when he has not chosen to take that step, there have been in recent years before the war so few disabilities attaching to the alien who had no desire to take part in public life as to make him almost indistinguishable from the native citizen. But when the clouds were gathering for the present war, we find both Germany and the British Empire overhauling their nationality laws, and we may be certain that for some years to come this subject will demand more than the customary neglect from British legislators and lawyers. In Germany the awakening interest in nationality found expression in the Delbrück Lawl of July 22, 1913, and in Great Britain in the British Nationality and Status of Aliens Act, 1914”, which, though not a war measure, received the Royal Assent on August 7, 1914, and came into force on January 1, 1915. Of both these laws more hereafter.

It is well at the outset to understand clearly what the expressions 'nationality' and 'domicile' mean. We cannot turn to a more reliable source for our definitions than to Professor Dicey's Conflict of Laws. Nationality can best be defined from the point of view of English municipal law by saying in Professor Dicey's wordsl that ‘a British subject means any person who owns permanent allegiance to the Crown' (as distinct from the temporary and local allegiance owed by an alien while, and because, he is within the British dominions); and that'alien' means 'any person who is not a British subject.' We shall see later, however, that a person may be a British subject by English law, and a subject of some other country by some foreign law.

1 Printed as a Parliamentary Paper, together with a Memorandum by H.B.M. Embassy at Berlin, Cd. 7277 of 1915.

2 Printed now as amended by the Act of 1918. The references are to the amended Act.

"The domicile of any person is, in general, the place or country which is in fact his permanent home, but is in some cases the place or country which, whether it be in fact his home or not, is determined to be his home by a rule of law?.' We shall find that mere residence--in the barest se of the word and denoting little more than presence in a particular spot-has important consequences in determining a person's status, and so we must either call it constructive domicile within the second part of Professor Dicey's definition, or add it to nationality and domicile as relevant tests of British, neutral, or enemy character during war.

We shall find it convenient to consider, (1) who are British subjects, and how British nationality may be acquired and lost; (2) who are aliens, and in what respects they differ from British subjects before the law; and (3) the effect of war in dividing aliens into alien enemies and alien friends, neutral and allied, and the change in their status created by the fact of war.


Who then have British nationality ? Who is a British subject ?

The leading common laws authority is Calvin's case a perfect mine of curious learning, a medley of the civil and common laws and of biblical quotations and secular history—where the court was asked to pronounce upon the status of the Postnati, i.e. persons born in Scotland after the accession of James I to the throne of England, but went further and took the opportunity of a lengthy examination of the law of nationality. There are two courses open to us. We might trace the development of the idea of British nationality and the processes of Denization and Naturalization in the law reports and on the statute roll. On the other hand, we might, and shall, go straight to the British Nationality and Status of Aliens Act, 1914 (which is both an amending and a consolidating statute), as amended by a nation smarting under four bitter years' experience of war by a further statute in 1918 (8 & 9 Geo. V. ch. 38).

1 2nd ed., p. 164.

2 Ibid., p. 82. 3 For an exhaustive discussion of the position at common law, see in Journal of Society of Comparative Legislation, N.S., XXXI. 314, an article by Mr F. B. Edwards.

508) 7 Rep. I.

A British subject may be so either by birth or by annexation of territory or by naturalization.

(1) Natural-born British subjects. The Act of 1914 boldly attempts what no previous Act and few judges have ever attempted, namely to give a comprehensive definition of this class. This is contained in section 1, which reads as follows, the 1918 amendments being italicized:

'1. (1) The following persons shall be deemed to be natural-born British subjects, namely:

'(a) Any person born within His Majesty's dominions and allegiance; and

(b) Any person born out of His Majesty's dominions, whose father was a British subject at the time of that person's birth and either was born within His Majesty's allegiance or was a person to whom a certificate of naturalization had been granted, or had become a British subject by reason of any annexation of territory, or was at the time of that person's birth in the service of the Crown; and

'(c) Any person born on board a British ship whether in foreign territorial waters or not:

'Provided that the child of a British subject, whether that child was born before or after the passing of this Act, shall be deemed to have been born within His Majesty's allegiance if born in a place where by treaty, capitulation, grant, usage, sufferance, or other lawful means His Majesty exercises jurisdiction over British subjects.

(2) A person born on board a foreign ship shall not be deemed to be a British subject by reason only that the ship was in British territorial waters at the time of his birth.

(3) Nothing in this section shall, except as otherwise expressly provided, affect the status of any person born before the commencement of this Act.

‘(4) The certificate of a Secretary of State that a person was at any date in the service of the Crown shall for the purposes of this section be conclusive.'

Upon this section it should be noted that:

(a) by sub-section (3) of section 1 the status of any person born before the beginning of the year 1915 is not to be affected by anything in this section except in the not very important cases mentioned in the proviso at the end of sub-section (1), whereby section i may operate to confer the status of naturalborn British subject upon some persons not already having it. Therefore it will still be necessary for some time to come to refer to the ante-1915 law in the case of persons born, and events happening to them, before 1915;

(6) ‘any person born within His Majesty's dominions and allegiance' is a natural-born British subject, even if his parents are aliens. The words 'and allegiance' are probably designed to except from the scope of the definition two previously recognized exceptions from the rule:

(i) Persons born of alien enemy parents in a part of the British dominions then in the occupation of an enemy; and

(ii) Children of a foreign sovereign or of an alien ambassador or other diplomatic agent of a foreign State, not being a British subject.

(c) Sub-section (1) (6) represents a change. Previously a child born out of the British dominions, whose father or paternal grandfather was born in the British dominions, and whose father at the time of the birth had not ceased to be a British subject, was himself a natural-born British subject. Now, however, the paternal grandfather disappears, and the father may be either natural-born or naturalized, but this effect is not retrospective, and the child born abroad of a naturalized British subject before 1915 is not a British subject1.

1 R. v. Albany Street Police Station Superintendent (Carlebach's case) [1915] 3 K. B. 716.

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