British Nationality law
The principle of the ius sanguinis was at all times reluctantly admitted in English or British nationality law and practice and imperfectly understood. The statute De Natis was never entirely forgotten[560], but frequently ignored[561]. Even after its replacement by the Act of Anne there was considerable doubt as to the situation of foreign-born children
BRITISH NATIONALITY LAW
AND THE HISTORY
OF NATURALISATION
MILANO — GIUFFRÈ — 1954
[*2] ESTRATTO DAL VOLUME V DELLA RACCOLTA
« COMUNICAZIONI E STUDI » DELL’ISTITUTO
DI DIRITTO INTERNAZIONALE E STRANIERO
DELLA UNIVERSITÀ DI MILANO
[*3]
I. — Introduction.
The history of the law of British, or English nationality offers many curious and puzzling problems. In the first place, much difficulty arises in connection with the concept of allegiance, which remained the basis of the law even after the introduction of a more or less complete statutory scheme of nationality and which may still influence the interpretation of the latest statutory formulation, though in that the concept has been formally abandoned[1]. That concept was elaborated in Calvin’s Case[2], the essence of the decision in which was « One King, one allegiance » [3]. The application of this doctrine resulted, perhaps paradoxically, in the holding that the Scots antenati were not subjects, though the postnati were. But the paradox is explained if account is taken of the further rule that a man’s allegiance is determined for all time at his birth[4]. This was why the English and the Scots postnati had to be fellow-subjects: they were born under the allegiance of the same King. It was also why both English and Scots antenati could not be fellow-subjects to each other: they had been born under different allegiances. It seems to have involved the assumption, as a principle of politics if not of law, that the Scottish personal union could never be dissolved[5]. Yet in view of the departure from the common law rules as to the descent of the Crown made in the Acts of Settlement[6] the English and Scottish crowns might! have divided again — and in [*4] fact nearly did so[7]. Coke clearly regarded this possibility as « less than a dream of a shadow, or a shadow of a dream »[8], and was therefore prepared to apply uncritically to such an academic situation a rule of Bracton’s, designed for the quite different case of a tenant by military service with two warring feudal lords. Such a man would be ad fidem utriusque[9] and so Coke would have had a Scot after the division of the crowns a double national. Was he not snatching at any argument which would have the desireable effect of nullifying the refusal of Parliament to weld the two Kingdoms into one by legislative means?[10]. His thesis was in any event suitable only to an age in which the sovereign had something of a monopoly of government and in which a personal union of crowns therefore did produce a virtual merger of Kingdoms and governments. It would have been intolerable in modern time in the event, for instance that the constitutional crown of the Netherlands should descend to the wearer of the constitutional crown of Britain. Dutch and British government would remain in such a case distinct and the fortuitous coincidence of royal titles would afford no justification for a merger of nation[*5]alities. The upshot of the decision in Isaacson v. Durant[11], in which it was held that Hanoverians born before the dissolution of the union of the British and Hanoverian crowns in one person were not thereafter British subjects, that allegiance is owed to the sovereign « in his politic capacity », is therefore to be approved. The reasoning behind that decision is, however, open to criticism. For the main consideration was that, if the union of nationalities was to depend on the fortuitous union of crowns, no man would, as it were, know where he stood from hour to hour. But that, it has been said[12], is exactly the case where annexation or cession of territory is involved: an inhabitant of the territory affected becomes or ceases to he a subject on the instant save insofar as an Order in Council or a treaty may make some concession to his convenience. A distinction may indeed be held to exist here: the annexation of territory necessarily brings that territory under the sway of the legislative, or at least of the executive power and a union of nationalities is therefore justifiable if not necessary[13], whereas a casual personal union of crowns implies no such result. But perhaps the assumptions of the debate are in any event unsound. How is it that the question of the status of Hanoverians never arose until 1886?
But the transmutation of the concept of allegiance is not the only problem of this part of the law. Another, equally curious, is that of the status of the ius sanguinis. Was the statute De Natis ultra Mare[14] of 1351 declaratory of the common law or was it enacting? In either case why, if that statute confirmed or provided that foreign-born children of English parents were subjects, was it necessary for another enactment in 1708[15] to go over the same ground? And what did the two statutes mean? Did they cover the case where only one parent was a subject as was thought upon De Natis in the seventeenth century[16] [*6] but as was denied by both Parliament and Courts upon the Act of Anne in the century following?[17]
Further in connection with the jus sanguinis, did the statute operate to the uttermost generation, as Bacon thought upon De Natis when he said « Nay, if a man look narrowly into the law on this point, he shall find a consequence that may seem at first strange, but yet cannot well be avoided; which is, that if divers families of English men and women plant themselves at Middleborough or at Roan [Rouen], or at Lisbon, and have issue, and their issue do intermarry among themselves, without intermixture of foreign blood, such descendents are naturalised to all generations; for every generation is of liege parents… [18]). And if he was right, why in De Geer v Stone[19] was there accepted the concept of the statutory subject, a mule-like creature who was yet a subject but who had no hope of posterity? Did the British Nationality Act of 1772[20] extend the concession of nationality to the second foreign-born generation in the male line or did the eighteenth century legislation cut down an earlier and more liberal rule? How is it that « a sort of hereditary doubt »[21] surrounds the question of acquisition of nationality by descent?
In the final analysis the question in any nationality case is whether a person is a subject or an alien. He may be the former because born within the dominions of the sovereign or Crown in virtue, that is to say, of the general presumption that the allegiance is co-extensive with those dominions, or in virtue of the jus soli. Or he may be such by descent — because born of liege parents, or iure sanguinis. And the principles of the jus soli and the jus sanguinis do not stand opposed to one another. In most legal systems they are to be found intertwined, each supplying the limitations of the other. But the degree to which one or the other has been emphasised at any time may well have varied. Considering the complexity of the problems described, this would seem to have been very likely the case and to account for the difficulty which exists in finding ready solutions for them. There [*7] exists, however, one approach to them which has not hitherto been much employed but which, though it has its limitations, is an obviously useful one. This is to test the rules relating to the acquisition and loss of the status of a subject by reference to the categories of persons who sought to have that status conferred upon them by ad hoc legislative or executive action and who therefore must have been looked on as not already being subjects. Let it be seen, in short, who was naturalised or endenized from time to time; from that enquiry it should emerge e contrario who was taken to be a subject. It is the main purpose of this paper to push such an enquiry as far as it can be taken on the basis of the records already printed or calendared. A subsidiary purpose is to attempt to throw some light on the history of naturalization considered by itself, and to revive some forgotten learning on the law of nationality in general.
II. — The origin and development of nationality
and naturalisation in England
a) Difficulties of the Enquiry. — Sir Alexander Cockburn averred that in Saxon times the jus soil ruled a principle well-suited to « the isolated position of this island, and the absence of intercourse with foreign nations »[22]. The process of reasoning involved here has been criticised on the ground that the same principle, which indeed came later to be known as the « rule of Europe»[23], seems to have applied both then and later in France, the least isolated country of the mediaeval world[24]. Similarly, with respect to the acquisition of nationality after birth, Coke said « …it appeareth.., out of the laws of King W[illiam]. I of what antiquity the making of denizens by the King of England hath been », and a nineteenth century writer has sought to trace denization back to a pre-Conquest Norman institution[25]. It may be doubted whether any of these views is correct. The concept of nationality has not developed as a self-contained legal insti[*8]tution in any system. Nationality as a status is unknown in primitive law.[26] The idea has rather grown up in specific connections, as for instance in connection with the inheritance of land or the right to sue. And, taking these two concepts, which are incidentally those in which the distinction between subject and alien came principally to concern the King’s courts, it is clear that they cannot be expected to provide any evidence with respect to times before there was any restriction upon the holding of land by what later came to be called aliens or before the royal courts were generally open to the subject. But, though it is thus correct to halt the retrospective search for a coherent law of nationality at the date of the loss of Normandy, it perhaps does not altogether follow that anything which went before is altogether irrelevant. It is true that « a King of the English who was but duke of the Normans was interested in obliterating a distinction which stood in his way if he was to be King of England »[27], and that it is therefore unprofitable to look for seeds of the law of nationality in the racial distinction between conqueror and conquered in Norman England. The frankpledge system, which, since Englishry was proved by the testimony of kinfolk, might be thought to suggest the early existence of some notion of the jus sanguinis, may be neglected and admitted to have been perverted from its original purpose into a convenient source of royal revenue by means of the presumption that every slain man was French unless the contrary could be shewn. And it is equally true that, at the time when the empire of Henry II incorporated Ireland, intermittently Scotland, and stretched southwards in continental Europe to the Pyrenees, and when a man might hold land two Kings, it is useless to look for a distinction between subject and alien either in the facts of the case or in the rules developed to resolve conflicting military tenures. No man cared to remember on which side of the border a Baliol was born; and Bracton’s « amphibious baron » who, if he served one warring lord in person, must send his due contingent of knights to the enemy, was not a double national. But is it clear that these were the only sets of circumstances in which the conception of nationality was, or could have been, important? [*9]
The difficulty outlined is but an aspect of a problem inherent in the whole enquiry undertaken here. If it be sought to show what were the rules defining who was a subject and who not by determining what sorts of persons were artificially converted into subjects and must therefore have previously been aliens, where is attention to be directed? Are not the only guides inevitably the rules defining subjects and aliens respectively? An alien, in other words, was a person under a disability, and unless it is known what particular disability he laboured under, it is impossible to begin to look for a grant to him of exemption from such disability. At least, this will be the case in the earliest times though later, as the concept of nationality as a status developes, the grant will take the form of a concession of a status, in short of naturalisation or denization. But it would be a mistake to confine the enquiry to the ease where some such specific, technical term is used. The later grants, which contain terms of this sort, roust be traced hack to their innominate forerunners. And the yard-stick provided by the commonly known disabilities of aliens must he comparatively considered in order to see if there were not other restrictions, concessions of relief from which will constitute what amounted contemporarily to the conferment of the status of a subject.
b) The General Law of Nationality before Calvin’s Case. — Dismissing the suggestions of Cockburn, Coke and Daly[28] as unsupported, it may be admitted that the general works on legal history make out a sufficiently good case to show that curial law of nationality is not to be traced back beyond the loss of Normandy by John. Upon that event it was thought appropriate to seize the English lands of those barons who adhered to Philip. And that measure, which was primarily a step taken against traitors rather than aliens, constituted one of the foundations of the later rule that an alien could not hold land in England[29]. Another contributory to that rule was the development, during the wars with France of the thirteenth century, of the « odious plea » of alien enmity, but only so as to delay suits by Frenchmen until such time as the King should regain his French territories. Both [*10] the possibility that the Norman traitors should ever return to their allegiance — upon which happening, the re-grants of their English lands were careful to stipulate, such re-grants were to stand void — and that the King should ever corne into his own again in France became in time of course mere theoretical possibilites. And, by « an exaggerated generalisation of a royal right », the rule regarding traitors and that regarding enemies became applicable to all aliens[30].
Who was an alien is less clear than that there thus developed a distinction between subject and alien. It is generally taken to be a necessary implication of the case of Eiyas de Rabayn (1290) that the jus soli alone applied. De Rabayn had the wardship and marriage of two sisters. One he married himself and the other he sent to be married beyond the seas. The son of the latter, however, successfully claimed his mother’s share, though it was judicially declared that the case was not to be a precedent in favour of other aliens[31]. But it may be doubted whether the case shows more than that one born out of England was not a subject; it is no necessary authority for the proposition that anyone born in England was not an alien. The same may be said with respect to the Parliamentary debate of 1343, referred to in De Geer v. Stone[32], wherein it was resolved that children of the King born abroad were not aliens, and that the same rule applied to children born abroad of parents in the King’s service[33]. The value of these precedents, even for the negative proposition that the ordinary child, who was child neither of the King nor of a father in the King’s service, if born abroad was an alien, is dependent on the question whether the statute De Natis[34] was or was not declaratory of the common law. For that statute is the next step in the story. It contains language which can be construed either as enacting or as declaratory, according to taste, and it contains three distinct clauses. Thus it provides first that « the law of the Crown of England is, and always hath been such, [*11] that the children of the Kings of England, in whatsoever parts they be bornÉ be able and ought to bear the inheritance after the death of their ancestors ». On this point it is conceded on all sides to he declaratory. But it is provided in the second place that the Royal Council, assembled in Parliament, « … in the Right of other children born out of the Ligeance of England in the Time of our Lord the King… be of one Mind accorded, that Henry Son of John de Beaumont, Elizabeth Daughter of Guy de Bryan, and Giles Son of Ralph Daubeny, and others which the King will name, which were born beyond the Sea, out of the Ligeance of England, shall be from henceforth able to have and enjoy their Inheritance after the Death of their Ancestors, in all parts within the Ligeance of England, as well as those that should be born within the same Ligeance ». This is fraught with difficulties. For, whilst its language is on balance enacting rather than declaratory, it appears to refer to the same category of persons children of persons in the King’s service — who were thought in 1343 to he subjects without any legislation. Moreover, it raises the question as to what, both before and after the statute, was the position concerning maternal inheritances, For Henry de Beaumont’s inheritance seems to have been maternal: his mother was probably English since his father, John de Beaumont, a younger brother of the Earl of Hainault, father of Edward III’s Queen Philippa, who brought her uncle with her from abroad, was an alien; alternatively, although born in England, Henry must have been considered an alien and thus incapable of taking by descent whatever grant of lands his father received[35]. And, thirdly, difficulty arises over the words «and others which the King will name ». Does this imply the grant to the King of the power to naturalise or, as is more likely, merely that the King is judge of those who are in his service?
The third clause of De Natis is the most general, namely that providing that « … all Children Inheritors, which from henceforth shall be born without the Ligeance of the King, whose Fathers and Mothers at the Time of their Birth he and shall he at the Faith and Ligeance of the King of England, shall have and hear…the Inheritance within the same Ligeance, as the other Inheritors [*12] aforesaid in Time to come; so always that the Mothers of such Children do pass the Sea by the License and Wills of their Husbands ». This of course raises almost every possible problem of nationality law. Is the clause declaratory only or enacting — as its language would imply? If it be enacting, does not the reference back to the second clause imply that the rule it lays down applied to maternal as well as paternal inheritances? Does it operate in favour of the first generation born abroad only, or of Bacon’s « endless generations »? Is the implied use of the term « ligeance » in both the territorial and the personal sense of any significance? What is meant by the requirement that the parents shall be « at the Faith and Ligeance of the King »?
The statute had a curiously chequered history. Hussey, C.J. so loved it that he pronounced it to be declaratory of the common law[36], thereby beginning a dispute on this point which has lasted until this century[37]. If it meant that all foreign-born children of subjects were subjects themselves it seems a matter for some surprise that it appears to have been necessary only seventeen years later at least to recite, if not to enact, in another statute that, the Commons having petitioned that children born within the seignories of Calais, Gascony, Guienne « and elsewhere within the lands seignories that pertain to the King beyond the seas » might inherit in England in the same manner as children there born, « est accorde et assenta et ta commune icy et le statut sur le Point autre foiz faitz soient tenuz et gardez »[38]. The explanation here may he that the pronouncement of 1368 was not so much a statute as a memorandum of the statute of 1351, and of the common law, or that, as was suggested in Calvin’s Case, what was here in question was the jus soli, not the jus sanguinis[39]. However this may be, De Natis was certainly given a [*13] liberal construction in later days and interpreted as a part of nationality law rather than of the mere law of inheritance, and in Calvin’s Case both it and the enactment of 1368 were referred to, the latter being considered to « overrule » that case[40].
The judges in Calvin’s Case were aware also of earlier decisions. The most notable of these last was Cobledike’s Case, which seemed to support the rule that allegiance was due to the King personally, and not to the Kingdom[41]. The Prior of Chelsea’s Case was also relied upon heavily to show that a Gascon was no alien[42]. This was one of a group of precedents of mixed utility which tended to show that persons were not aliens merely because born in possessions of the King outside England and relating to Calais, Gascony, Acquitaine, Guienne, the Channel Islands, the Isle of Man, Ireland, Wales, and even Scotland. The most useful group of cases, either relied on in Calvin’s Case or not, is to be found in Broke’s Abridgement. These indicate, for instance, that De Natis was probably already construed, as it was to he in the seventeenth century, so that the foreignborn child of an English father and an alien mother was within it; and yet that an alien spouse could have neither dower nor curtesy[43]. But the evidence is [*14] very scanty. Thus, though it is possible to agree that the rule was that allegiance, and therefore nationality, was attributed at birth[44], it may be doubted whether it has been established that, prior to the seventeenth century, such attribution was either exclusively jure soli or jure sanguinis, or that allegiance was necessarily indelible. Coke’s exception of children born in a castle or fort within the realm but in hostile occupation indicates that something more than mere birth within the realm was required[45]. The parents had to be in actual obedience. This requirement corresponded to that of the statute De Natis that the parents should be at the faith and ligeance of the King. And this should not be surprising. For, when the parallel history of French law is examined, it is seen that it is oversimplification to say that in France there was a period, before the extension of the kingdom to the whole country, when the Romanesque or barbaric jus sanguinius held sway, followed by a period when the jus soli alone ruled until its reign was ended by the Revolution. The supposition is a false deduction from the rule that originally no one born out of France was a subject. The antithesis of that was not, however, that anyone born in France was such. In the early sixteenth century it was further required that at least one of his parents should he French. Somewhat earlier it was probably required that both parents should be French. And even later there were such curious intermediate rules as that birth in France of parents married in France sufficed, or that, though birth in France of alien parents would exclude the droit d’aubaine if the heirs were descendants, it could not do so if they were ascendants. It was also required, at the time when both French birth and French parentage were demanded of a claimant of nationality, that he should further be a réngicole — in effect a resident[46].
If any warning against the drawing of hasty deductions from the scanty precedents down to the seventeenth century is required, it is provided by the entirely misleading picture of the law of alienage given by Littleton. The mediaeval lawyers followed up the implications of the alien’s inability to hold land by denying him a real action. This led Littleton, following the natural [*15] instinct of the property lawyer to regard his department as the whole law, to deny him both real and personal actions. But it is doubtful if this ever was the law. And, even if it were the common law, it was not the whole law. To maintain otherwise would be to ignore the long history of the foreign merchants in England. That history does not merely begin with the Caria Mercatoria of 1303, as the provisions for free entry and exit in Magna Carta sufficiently indicate [47]». And when account is taken of it, it is seen that the date when the distinction between subject and alien first emerged must be put very considerably earlier than that of the crystallisation of the rules derived from the consequences of the loss of Normandy. For the consolidation of aliens’ customs in 1303 and 1305 marked rather the end than the beginning of a long regulatory process the basis of which was a differentiation between alien and liege merchants from the point of view of customs rates[48]. It is to this differentiation, and to the practice of the Crown of granting individuals exemption from the higher, or aliens’, rates, that the institution of denization is to he traced.
The true position is that the assertions of exclusive jurisdiction of the boroughs, in which they naturally lived, largely kept the alien merchants out of the common law courts and forced them to rely on courts of the law merchant and on the King’s extraordinary jurisdiction. They were essentially royal favourites and the direct grantees of royal benefits. So also were the boroughs. Any common law litigation in which they indulged thus presented the aspect of a contest between privilege and privilege. Their grants were frequently nugatory because of prior grants to the boroughs. And the jealousy of the latter procured the imposition of statutory restrictions upon them, concerning their abilities to lease lands and take apprentices or pursue certain trades[49]. Rivalry between the common law courts on the one hand and the Council and Chancery on the other ultimately, however, pro[*16]duced n amelioration of their condition, and by the sixteenth century an alien merchant could have leases of land and dispose of them by will and be a tenant by statute staple or merchant. These privileges came, in the following century, to be extended to all aliens, merchants or not[50]. But the disparity in the customs rates remained, as did also the disability to hold real property at common law. In the second of these matters the average foreign merchant was not necessarily very interested. He came primarily to trade, not to acquire immovables. But he frequently sought exemption from aliens’ customs. This could he accorded him by the Crown acting alone, since the national customs were of royal rather than parliamentary or common law origin[51]. This distinction no doubt had considerable influence on the divergence between the processes of denization and naturalisation which is later to be observed. It may be suggested that it also influenced the notion that naturalisation or denization lay in grant and was not to be had for nothing as of right.
The distinction between aliens’ and subjects’ customs contributed, too, to a greater precision of the law of nationality insofar as concerned the status of persons coming from the overseas dominions of the Crown. No doubt it was natural enough for the customs officers to levy at the aliens’ rate on any merchant coming from overseas, whether from a foreign country on from some other royal possession such as Jersey or Calais. This, it may be seen resulted in protests from the lieges overseas and parliamentary intervention[52], which strengthened the hand of the judges in Calvin’s Case when the time came to consider the condition of the Scots. But the very frequency of enactments on this subject points perhaps to an uncertainty of opinion concerning it. In this connection it is important to consider in especial the status of Wales and Ireland. Coke took the view that the Statute of Wales of 1384 incorporated Wales and England but that even those born in Wales before that date were capable and inheritable of lands in England » because the country was a fee of the Crown[53]. If this be correct, the cases of denizations of Welshmen [*17] are not true denizations. Thfs [sic] is a tenable view[54]. For these cases must be understood against the background of statutory restrictions upon Welshmen from which individual exemption was given[55]. It is clear that the test of being a Welshman is one of blood and has no relation to place of birth; as might be expected if the Welsh were considered aliens. On the other hand, it is arguable that the very fact that the Welsh were distinguished by blood points to the virtual absence of any fixed criterion of alienage.
As to Ireland, only the English conquerors and settlers of that country apparently carried their law with them and though there were attempts to assimilate the conditions of their Irish-born descendants to that of aliens, they were in general defeated. Indeed the Statute of Kilkenny (1366) prescribed that the English in Ireland and the English born in England by calling them English hobbe or Irish dog but that all [shall] be called by one name the in Ireland and the English born in England by calling them hobbe or Irish dog but that all [shall] be called by one name the English lieges of our lord the King ». But the native Irish were excluded from these privileges[56]. Coke’s assertion[57] that the Irish were subjects thus does not, it is thought, represent the earlier law. Just because different laws applied to them, they were not subjects and when under James I the repressive legislation concerning them was partially repealed it was thought necessary to explain that the purpose was to abolish distinctions between subjects of the King[58]. The legislation in question begins with the Statute of Ireland of Edward III, which forbade marriages between the English and Irish and continues as late as the reign of Elizabeth I[59]. The basis of the distinction it establishes is, as in the case of the legislation against the Welsh, clearly race rather than place. [*18]
c) The Origins of Naturalisation and Denization. — The earliest known instance of naturalisation is commonly taken to be that of Elyas Daubeny in 1295. The Roll of the Parliament recites that because of the meritorious service of Dauheny and his ancestors to the King and his progenitors, the King of his special grace grants to the said Daubeny the right to he heard in all the royal courts, ut Anglicus, and that none shall answer him per illam excetionem quod alien igena est, et natus in partibus transmarinis, and that the King wills that he shall he reputed and taken to be Anglicum purum[60]. But more than a century is to elapse before another such grant is to be found in the Parliament Roll. Nor are any intervening grants to be found in Rymer’s Foedera, It is, however, perfectly clear that any conclusion that Daubeny’s case constitued an exception and that naturalisation did not develop until the fifteenth century would ignore the available materials. The most cursory examination of the Calendar of Patent Rolls reveals that there were numerous instances of denization in the fourteenth century. And the objection that these are cases of denization and not naturalisation may be met at this stage of the argument by the brief statement that the distinction, if any, between the two processes was quite unclear and probably non-existent as late as the reign of Elizabeth I[61] Daubeny’s case is thus remarkable only in that it is recorded in the Parliament Roll. Yet it may he accepted that the form of letters patent of denization did not become stereotyped until the early part of the fifteenth century[62] and that there are certain puzzling features about the earlier grants. As to the fourteenth century, even where reliance is placed only on the indifferent indexes of the Calendars, these may be seen to he frequent enough. And they may be traced back into previous century at least as far as 1240[63]. A closer examination of the patent and charter rolls would perhaps show that they were not exceptions even at that early date. The difficulty of discovering the truth of the matter from the printed sources results from the circumstance [*19] that, as has been said, in this period the grants were innominate. They consisted in the concession of commercial privileges and, in especial, in a statement of the rate at which customs saould [sic] be paid. Only in the latter part of the fourteenth century is there any mention of the right to sue in the royal courts and of the right to hold land. The grant, in other words, expanded as the restrictions upon aliens grew. Beyond the point in the first years of the fourteenth century at which it was first definitely established that the customs payable by aliens were higher than those paid by subjects[64], it thus becomes less and less easy to trace because of uncertainty as to the nature of the benefit it bestows.
The major obscurity of the later history of the matter lies in the fact that the grants of the early fourteenth century and before seem to have been made only to merchants. Later in the century alien priories are among the grantees and there thus emerges the curious phenomenon of naturalisation of bodies corporate and of their members as such. The earlier restriction to merchants has led commentators to suggest that non-commercial aliens had means other than letters patent of securing the same privilege. Two alternative means have been put forward: the doing of homage[65] and naturalisation or denization by the boroughs under, as it were, delegated powers[66]. No actual evidence that either of these methods was employed has, however, been produced. Yet a certain interconnection between both the doing of homage and the status of a subject and between homage and naturalisation can certainly be discerned. Likewise the obtaining of naturalisation or denization and the securing of admission as freeman of a borough were both sought by the alien merchant settler, though his achievement of the one did not necessarily imply the other.
Looking to the question of homage first, it is a tenable view that the whole. origin of the distinction between subject and alien is to be found in the nature of homage[67]. Homage was of course the reciprocal of allegiance. But to say that is to speak of feudal allegiance rather than of that sort of allegiance which became [*20] the basis of nationality. And, as was pointed out in Calvin’s Case, the swearing of allegiance in a court leet worked no naturalisation at least at that late date[68]. Earlier, however, the case may not have been the same. It is clear that in the fourteenth century a Frenchman is still in effect the only alien. And, as the King was de jure king of most of France, the return to his true allegiance of a repented traitorous baron and his doing of homage may indeed have been in Maitland’s phrase « naturalisation enough »[69]. But, homage being that which characterised rather than that which made the subject, it would surely have been of the essence that there should have existed a royal title or claim to the place of origin of the alien availing himself of this method. Perhaps, however, this distinction was immaterial at a time when the only aliens likely to be encountered were those coming from the lost empire. Nevertheless, it appears to be borne out by the fact that the letters of denization proper, when their form became settled, insisted that the grantees should do homage[70]. Failure to perform the duty did not, it is to be noted, avoid the grant[71]. It appears implicit also in the delegation in 1452 to Richard, Duke of Gloucester, Warden of the West Marches against Scotland, of power to endenize such Scots as might do homage[72] Homage would be already due from them in view of the King’s assertion of a suzerainty over Scotland. By contrast, aliens from parts never claimed by the King could avail themselves nothing by doing homage[73].
As to the interconnection of admission as freeman of a borough [*21] with naturalisation, it may be suspected that the later and most curious history of this matter is responsible for the conjectures which have been made that in the later middle ages a borough could endenize aliens. Alarm at the discovery that admission as a freeman of Dublin or Drogheda connoted naturalisation was largely responsible for the restrictive Aliens Act of 1813[74]. But the powers of these corporations to make subjects of aliens were granted under statute as part of a policy of colonial settlement. They are to be likened to the similar statutory concessions made to encourage naval and merchant sea service, the whale fisheries, and the settlement and garrisoning of the American colonies[75]. Or, again, they are like the concessions in the colonial charters to proprietors of colonies to recruit aliens, which are equally susceptible of a somewhat dubious construction as comprehending power to naturalise[76]. Occasional directions of an earlier date to the Lord Mayor of London to endenize particular aliens are also to he found[77]. Yet, just because these relate to specific persons, they argue against the existence of any general power of endenization in London or any other city. They date, moreover, from a time when what amounted to block grants of denizations in blank were issued to entrepreneurs, the latter filling in the names of such aliens as they recruited for their purposes, which were usually the establishment of new industries[78]. No trace is to he found of earlier, explicit concessions of a similar sort to the towns. And the view of Coke that endenization was a matter of « so high a point of prerogative » that it had never been usurped[79] is to be respected. On the other hand it is clear enough that, without admission as a freeman of a town, mere denization must often have been virtually valueless to the alien grantee. The King or some great man might recommend the admission of an endenized alien as a freeman. But the answer might well he as in a case at Cork in the early years of the thirteenth century. There the individual concerned, John, son of Thadeus Donat of [*22] Cork, had in fact been born in Ireland and had a house ill the city. Nevertheless the authorities refused to recognise him as either denizen or burgess because his father was an alien and no alien had ever been received into the liberty of the city since its foundation[80]. And of course such a proceeding is only consonant with the general attitude of the boroughs towards aliens, naturalised or not, as competitors for royal favour. Where their interests temporarily coincided a city or borough might be found admitting aliens as freemen irrespective of denization, but the tendency was overwhelmingly the other way[81].
A word should be said here concerning the endenization of alien priories, a curious proceeding analogous to the later « naturalisation » in effect of foreign ships[82]. The parallel is in fact a very close one. For just as the prohibition of the Navigation Acts against trade in foreign bottoms and the ascription thereunder to vessels of the nationality of their place of building called for the making of exceptions by private Acts, so the general statutory restrictions upon foreign religious foundations called for the making of exceptions by endenization of particular institutions. The restrictions in question were more in the nature of penalties upon alien enemies-than upon mere aliens and the grants take the form of relief from forfeiture or assessment in lieu of forfeiture. The first case concerning these restrictions seems to be that of the Prior of Chelsea (1353), which was relied on in Calvin’s Case, for there the Prior recovered his lands because lie was a Gascon and therefore no alien[83]. The Patent Rolls yield several instances of grants of exemption later in the same century: e.g. those of the priory of Barnstable (1381) and the Convent of Eye (1384)[84]; and the priories of Wangeford (1393), Stoke (1395) and Sele (1395)[85]. The priory of Barnet was similarly endcnized in 1403[86]. The Parliament Roll affords the additional cases of the priories of Montagu and St. Neots (1414), and of St. Trinity, [*23] York (1425)[87]. But there do not seem to be any cases after that.
d) The Fourteenth and Fifteenth Centuries: the Appearance of Forms. — The commonly accepted view is that the form of the actual grant of naturalisation or denization begins to become stereotyped shortly after the beginning of the fifteenth century[88], though it has been said that in fact the form which is then fixed form is traceable back to the reign of Richard II[89]. A work specifically on the subject lists « such… cases of early denization as are discoverable », finding thirty-four cases, of which four are not cases of individuals, between 1406 and 1484[90]. By mere reference to the Patent Roll, however, the present writer has been able to find more than 243 other cases (some of them pertaining to more than one individual). The same source has revealed twenty-four cases from the fourteenth century, the earliest occurring in 1352 and thus only slightly more than fifty years after Daubeny’s case. In the light of this ample material some reconsideration of the general picture is desirable.
The first un mistakeable [sic] grant the writer has been able to trace is that dated 1352, which is for the term of his life to John Adam, citizen and apothecary of London, born beyond the seas. It is expressed to be made in consideration of his having dwelt within the realm from his youth up, of his having a permanent domicile there with wife and children, and of his having been of good service to the Ring and the royal household. And it is to the effect that a) he shall enjoy and use all the liberties which the citizens of London have therein so long as he be a citizen and b) that he shall be quit of the 3d in the pound and other prests and customs payable by aliens[91]. This has to he understood in the light of the circumstance that innominate grants to the same effect are to he found earlier in the fourteenth century, and indeed before that[92]. It is followed by similar grants during the rest [*24] of the century. The form of these is variable. Thus that to Adam
Hill, Chaplain, a Scotsman who has long lived in England, dated 1384, recuLes that he is willing to become the King’s liege and has done homage and fealty. This grant is also for life, but is in the form of a licence to dwell within the realm[93]. So is that to John de Hill, a Scotsman aged only 16 years. His grant, dated 1355, is identical except that his license to remain is available only during good behaviour[94]. That of Edmond Arnaud, a Gascon long resident in Dartmouth, dated 1389, is more technical in wording. He is enabled to acquire lands as a denizen (i.e. native) and is in all things to be reputed a denizen and liege of the King[95]. Henry Shafot, a Fleming endenized the following year at the supplication of the Bishop of Aire (?), has licence to trade, acquire, sell and buy in all respects as a denizen, the King having accepted him as his liege[96]. John Moner, a Frenchman who has taken an oath of allegiance, has a grant confirmatory of an earlier concession that he is to be reputed and treated as a denizen, and, specifically, that he may sue and maintain actions for debts, accounts and trespasses and further acquire lands in all respects as any other liege of the King[97]. Between 1390 and the end of the century there is a series of grants to foreign merchants, mostly Italian which comprehend (1) capacity to acquire land as a subject (2) capacity to sue and be sued as a subject, provided that the grantee (a) do homage and (b) is not of any company of foreign merchants nor exports wool or other merchandise other than his own. Most of these grants extend to the heirs of the named grantees[98].
Finally a standard form emerges, though it is not quite stereotyped. Thus the grant to Sir John Haukwode (1406) is as follows:
Rex Omnibus, ad quos & c. Salutem.
Sciatis quid (de Gratia nostra speciali) Concessimus, dilecto nobis, Johanni Filio Johannis Hauhwode Militis defuncti, [*25]
Qui quidem Johannes Filius in Partibus Italiac Natus & Procreatus extitit,
Quod ipse de caetero Homo Ligeus noster & Indigena existat, & pro tali in omnibus tractetur,
Et quod ipse Mancria, Terras, Tenementa, Redditus, Servitia, Feoda, Advocationes, Franchesias, Libertates, & alias Possessiones quascumque, infra Regnum nostrum Angliae, de quibuscumque Personis, & de tanto Valore, prout sibi placuerit, in Feodo Simplici, seu in Feodo Talliato, ad terminum Vitae, vel aliter adquirere, Ac etiam Irnplacitare in quibuscumque Curiis nostris, & alibi infra Regnum nostrum praedictum,
Ac Haereditatem & alia Emolumenta quaecumque, taliter & eodem modo sicut aliqui Ligeorum nostrorum, infra Regnum noftrum praedictum oriundorum, habere possit,
Eo quod pracdictus Johannes Filius & Domina Mater sua infra dictum non extiterunt, aut aliquo alio Statuto scu Ordinatione, in contrarium factis, non obstantibus,
In cujus & c.
Teste Rege apud Westmonasterium Tertio die Novembris.
Per Breve de Privato Sigillo pro Quadraginta Soldis solutis in Handperio[99].
Significant features of this grant are that it is a) for life only and b) that it recites that the grantee was not only born but conceived beyond the seas. The latter recital is common in later grants and is, it is hazarded of no little significance. The importance of the place of conception in connection with legitimation in English law is well-known. It may be suggested that the place of conception had some importance also in nationality law. This is not impossible when the parallel development of French law is taken into account[100]. With Haukwode’s grant may be compared that of David de Nigarellis, the royal physician (1411-12) — royal physicians are frequent grantees of denization in this and the following centuries: — [*26]
Rex Omnibus, ad quos & c. Salutem.
Sciatis quod, de Gratia nostra speciali, & pro eo quod, dilectus nobis, David de Nigarellis de Luca, Physicus noster, Homagium Ligeum nobis fecit, Concessimus & Liecntiam Dedimus, pro nobis & Haeredibus Nostris, quantum in nobis est, praefato David, quod ipse & Haeredes sui ex nunc sint Indigenae, ac Tractati, Tenuti, & in omnibus Reputati, sicut veri & fideles Ligei infra Regnuum noftrum oriundi,
Et quod idem David & Haeredes sui praedicti sint Personae habiles ad Percipiendum & Impetrandum, Dandum, Cuncedendum, Alienandum, Gaudendum, & Haeredi tandum, infra Regnum nostrum praeclictum, Terras, Tenementa, Redditus, Advocationes, Servita, Reversiones, & alias Possessiones quascumque, adeo libere sicut aliquis alius Ligeorum nostrorum infra Regnum nostrum praedictum oriundorum, Habenda & Tenenda Terras, Tenementa, Reditus, Advocationes, Servitia, Reversiones, & alias Possessiones, sibi, Haeredihus, & Assignatis suis, vel alio modo quocumque, Impertum,
Ac etiam quod ipse, & Haeredes sui praedicti, omnimodas Actiones & Querelas, tam Reales, quam Personales, in omnibus Curiis & Placeis nostris, ac alus Curiis quibuscumque, tam infra Regnum nostrum praedictum, quam alibi, habere & prosequi, & Actiones & Querelas praedictas Placitare & in eisdem Responderi Possint, eisdem modo & forma, adeo libere & integre, sicut aliquis Ligeorum nostrorum, infra Regnum nostrum praedictum oriundorum,
Proviso semper quod praedictus David Lotto & Scotto contribuat, necnon Taxas, Talliagia, Custumas, Subsidia, & alia Deveria quaecumque solvat, modo quo alii,
Fideles nostri, infra Regnum nostrum praedictum oriundi, facient. In cujus & C.
Teste Rege apud Westmonasterium decimo octavo, die Februarii[101].
It is to be noted that this grant extends to the heirs of the named grantee.
These two examples illustrate the form of letters of denization, [*27] which did not change materially for several centuries. As to the grantees of the fifteenth century, they appear to fall into the following categories: — (1) officers of the royal household such as David de Nigarellis, another royal physician, Louis Recouchez (1405), the King’s Knight, Francis de Court (1406)[102]; his esquire, James Hoget, a Frenchman (1408), his servant, John de Riche, a Lombard (1410), another esquire John Peryan, a Breton (1411) whose wife Joan is also endenized (1412)[103]; another servant, John Reynel (1433)[104]; his secretary, Master Gervase de Vuire and wife, born in France (1441)[105]; another servant and another doctor, Dedericus Pile, a Dutchman, and Michael Belwell, a Frenchman (1443)[106]; another physician, James Friis, a Friesian (1,473) and another esquire, Ciprian de Furnariis from Genoa (1475)[107]; (2) Churchmen and other professional men such as Magnus Hemminghi, a Swede (1419)[108]; John Gele, a Saxon (i43q), Vincent Clement, from Valencia (1438)[109]; Robert Dunoff, a Norman (1446)[110] all chaplains; Odo de Ulmis, a Norman prior of Carisbrooke (1417)[111]; Thomas Franc, Master of Medicine, a Greek (1436)[112]; John de Geran, a doctor of decrees from Aragon (1475)[113]; and John de Giglis, doctor of either law (1477)[114]; Craftsmen such as Warimbald Harlan, Dutch and a freeman of York (1403)[115]; Matthew Spicer from Cologne (1406), Albert de Andernaco, (1406)[116]; Giles Heddin, from Mons (1437), all goldsmiths, also John Ishrond, a tailor (1438)[117]; John Stykklthorn, a Flemish weaver (1413) [*28][118] ; and Godfrey Sperying, (1475)[119] and Paul Godfrey (1485)[120], both Dutch brewers; and (4) Merchants, such as Louis de Port, from Lucca (1409), Richard Garner, also an Italian (1409), Mark Marcadeli, from Venice (1412)[121]; Jerome Danulo, also from Venice (1442)[122] and Raphael de Vyvaldys, a Genoese (1481)[123]. And no doubt many of the Brahanters or other Flemings who are to be found were also weavers, and the quite numerous immigrants from Italy and Portugal also merchants though their callings are not specified. Over and above these categories there may he noted certain other groups of cases of interest from the point of view of nationality law.
In the first place there are many cases of Scots. Thus in 1408 Thomas Browne of Petcox, Scotland, who had become the King’s liegeman and taken the oath he would be faithful, was admitted to the King’s allegiance and obedience[124]. In 1431 occurred the curious case of John Erthe, a chaplain, who was born under the ligeance of Richard « in Old Rokeshurgh in Tyvydale » and when a minor taken by his mother across the water of the « Forthe » into Scotland. But as soon as he had understanding lie came back to England and resided at the schools here until made a chaplain, when he took an oath to be a true liegenian. In consideration of this he was granted denization on the advice of the Lords of the Council[125]. The case of John Grey, doctor of both laws (1451), is also interesting. He was born at Gedwerd (? Jedburgh), at the time of his birth in England but which afterwards came into the power of the Scots[126]. John Blanc, born in Scotland, was also endenized in 1441[127], he having sworn allegiance under the auspices of Richard, Earl of Salisbury, who had delegated powers in the matter of the Scottish border similar [*29] to those of Richard, Duke of Gloucester, referred to already[128]. William Gibbeson and his children (1443) were apparently straightforward Scottish immigrants. There were other such cases about the same time[129]. Robert Sygyn had been born at Kymballock in Ireland but, because he had been brought to England at the age of 14 by Sir William de Wyndesore and had dwelt here 40 years; his messuage was in 1410 spared from forfeiture during his life[130]. Magoin Macdouchide, described as the King’s liegeman born in Ireland, was in 1440 given letters of denization and a licence to enjoy ecclesiastical benefices[131]. The following year John Alysaunder, also born in Ireland, was endenized[132]. No other cases of Irishmen have been encoun-
tered though there is a suggestion that denization in Ireland was common: whether this operated in England also does not appear[133]. As to Wales, in 1432 Owen Fitz Meredith received letters patent pursuant to an Act of Parliament, the legislation against the Welsh notwithstanding. John Butte, alias John Hore, a Welshman long resident in Dorset, received the same grant under the same authority in 1437, as did another Meredith in 1441[134]. Richard Vacher, alias Richard ap Robert ap Jevan Vaghan (1484) comes within the category of the King’s servants[135].
Calais yields some curious cases during the century. That of James Knyght, citizen and brewer of London, who was born in Calais of an English father, Wiliam Knyght of the county of Lincoln, and one Katherine, his wife, born in Flanders (1415) perhaps suggests that he sought denization less because of his place of birth than because of the alienage of his mother[136]. The grant in 1412 to Nicholas Bruker, a Dutch merchant, of [*30] denization for life as fully as the burgesses of the town of Calais suggests perhaps the existence of a separate citizenship for Calais though, if the inhabitants of the town were subjects in England, the form of the grant is a mere circumlocution attributable to the grantee’s place of residence[137]. But in 1430 Gisbert Groote receives an identical grant[138]. In 1432, pursuant to an Act of Parliament, Ingelrarn alias Ram Siumpart, who had been born in Calais, and his heirs, are endenized[139]. So, in 1440, is Adrian Grenebough, also born in Calais[140]. And in 1477-8 there are similar cases[141]. In yet other cases it is clear that the grantees are foreign merchants settled at Calais. In 1458, on the advice of the Council, several persons born within the castle at Guysnes, Picardy are endenized[142].
There are too, some odd cases of denization of women. That of Gertrude, wife of William de Limes, citizen and merchant of London, (1440) is noteworthy because she is expressly made capable of dower[143]. But why in 1449 seven apparently unmarried women, including Mary Bastard, daughter of Charles of Anjou, all born in various parts of France, should have been endenized together is inexplicable unless they were ladies of the royal household[144]. Nor is it clear why between 1453 and 1455 there was a sudden and unusual spate of denizations of wives. Throughout the century there are occasional cases of denizations of widows.
Of the cases already reviewed some are most significant from the point of view of the law of nationality in general, notably those of John Erthe, whose English birth seems to have been nullified by his Scottish upbringing[145], John Grey, whose English residence does not seem to have discounted the alienation of his place of birth[146], James Knyght, endenized despite both [*31] an English father and a place of birth in Calais[147], and the other cases concerning Calais. There are other equally significant cases during the period under review. That of John, son of John Asger, citizen of Norwich, who was born in Zealand and endenized pursuant to Act of Parliament in 1431 might indicate that the statute De Ncdis did not operate[148]. The case of John Gerard, born of an English mother in Norwich (1441)[149], is more puzzling still. That of Bartholomew James, born of an English father in Lusshebon [Lisbon] (1445) is noteworthy[150]. So also is that of John Swolle, born at Yernemouth [Yarmouth], England, son of William Swolle, born at Utrecht (1437)[151].
In order to appreciate the meaning of these cases it is necessary to see to what extent they can be considered exceptional. In the first decade of the century (1401-11) there were twenty-two discoverable denizations; 1411-21, fourteen; 1421-31, seventeen; 1431-41, fifty-one; 1441-51, sixty-five; 1451-61, nineteen; 1461-71, seventeen; 1471-81, thirty-seven. Few are traceable after 1485, nor any between 1461 and 1467. The figures for some decades are rendered exceptional by special events, such as the license of 1437 to a party of fourteen persons of unstated origin to remain within the realm as denizens[152], and an influx of French ladies in 1449[153]. The records were clearly not kept with great accuracy since on occasion there are two grants to the same person under different dates, though such errors are usually corrected. The general picture thus is of about four grants annually; there is seldom no grant at all and seldom more than five. It follows that letters of denization were relatively uncommon documents and it is therefore assumed that they would be neither sought nor granted unnecessarily. They were expensive enough; though the fee varies — one mark, half a mark, 5 marks, 20 shillings, 6/8d, [*32] 13/4d, 33/4d, 40/-, L. 8, L. 40, etc.; it is only rarely that the fee is altogether waived. It is therefore to be assumed that the cases which are encountered are important cases and that the conclusions to he drawn from them concerning the general state of nationality law are material.
Concerning the general features of the fifteenth century grants, it is to be noted that they are occasionally for life only. In Calvin’s Case[154] Coke remarked on this feature of the grant to John Reynel[155]. Coke refers also to grants to individuals and their heirs male[156]. A few such cases been found[157] but usually the grant extends to the heirs general. Without giving examples, Coke further refers to grants subject to a condition. In this century there are not, as in the fourteenth century[158], restrictions upon joining companies of foreign merchants. But, at least in the first decades of the century, the duty to pay aliens’ customs is expressly reserved. This was clearly a common form clause since, in the case of Thomas Franc (1436), there is endorsed a memorandum that the clause that he should pay alien’s customs and subsidies was written in but erased by the King’s command on information of the chancellor and treasurer of England[159]. If it can be called a condition, the proviso that the grantee shall do homage is frequent in the first part of the century and becomes common form. Occasionally, it is replaced by a recital that the grantee has already done homage or has become the King’s liegeman. In one early case the homage is respited until the next feast of the Purification[160]; in another a record of the doing of homage is endorsed on the letters patent[161].
e) Parliamentary Denizations. — Though in the century under review a stereotyped form of denization appeared, the [*33] actual manner of the grant — under the great seal, privy seal, or signet varied constantly. So too did the manner of making the application. It has been incidentally mentioned in discussing the run of cases that occasionally the grant was made in pursuance of Act of Parliament or on the advice of the Council. In these cases, however, the letters patent ultimately issued assumed the ordinary form. There are indeed to be found in the Parliament Roll a few cases where denization is authorized or ordered but no corresponding entry is to be found in the Patent Roll. Conversely, there are entries in the Patent Roll which speak of an Act or of the advice of the Council without there being any corresponding reference in the Parliament Roll. It is submitted, however, that these discrepancies are not, considering the state of the records as a whole, of any necessary significance.
Coke, indeed, asserted a distinction between absolute and limited denization[162]. This, and the intervention of Parliament in some, but not in other, cases during the period under review, raises the question as to the origin of the distinction between naturalisation and denization. Coke’s language indicates that it was familiar to him, though his use of the word « naturalise » is to be discounted since to him a union of Corwns [sic] or annexation of territory or a statute such as De Natis effected a « naturalisation »; the terms implied no more than the conferment of nationality[163]. A decision of 3 Henry 6 (1424) has been cited to show that the distinction dates back to the beginning of the fifteenth century[164]. There it was said « dison nous que meme cel Alice vient en Angleterre ove Beatrice Comtesse D’Arundel… et puis nous disons que en le Parlement tenu en tiel an en temps le Roy H. 4 la dit Alice per autorité del dit Parliament fuit fait person able a purchaser terre et tenements enheritances come chescun auter legal home que fait deins le Royaume… ». Now the statute referred to is dated not in the reign of Henry IV but of Henry V (1421) and its principal purpose was to secure the Countess’s dower. Thus, though it is true that the grantee is declared to be placed in the position « come ele eust estee nee [*34] & engendre vostre liege femme deinz vostre Roialme d’Engleterre »[165], the case has to be compared with that of the more humble Gertrude Limes, who had no Act of Parliament but was none the less granted letters patent in 1440 expressly stating lier to be dowable[166]. Moreover, when the case is examined closely, it is seen to say no more than that an enactment can assimilate an alien to the condition of a subject; not that letters potent cannot.
So far as the fifteenth century is concerned, no distinction in effect is to be seen between parliamentary and royal denization. The latter is indeed expressed often, if not usually, to be prospective. But the form of parliamentary denization is insufficiently settled for it to be said whether it is always retroactive. It is submitted, moreover, that the terminology employed indicates that there was no distinction between « naturalisation » and « denization ». For « denizen », it is not to be forgotten, was originally the common term for a subject as distinguished from an alien. This is made abundantly clear by the course of legislation. The term is so used, for instance in 34 Edw. 3 c. 18 and 38 Edw. 3 c. 2. Only later, as for instance in 1 Ric. 3 c. 9, is the distinction between « subjects » and « persons not born under the King’s obeisance s, the latter being subdivisible into those made « denizens » and those not so made.
Further, the so-called « statutes »of the period frequently provide no more than that letters patent shall be granted. In the case of the Countess of Arundel the return made to her petition was indeed « Le Roi, de l’assent des Seigneurs en cest Parlement exteanz, declarast overtement et ordinast en mesme le Parlement, par la suppliante nomez en mesme la Petition, sicome ele desira par la mesme »[167]. But, as has been seen, the Patent Roll contains grants specifically reciting that they are pursuant to Acts of Parliament. And the reply to the petition of the men of Guienne, reciting that they are treated as aliens in England and asking that they may « estres desclarez, reputes, recordes et publies… pur voz foialx lieges et loiaulx s is that they shall have « Lettres Patentes & Briefs de temps en temps, tanz & tidy come serront [*35] besoignables en le cas[168]. In 1423 Ann, Duchess of Bedford petitioned « qu’ele soit faite deniseine et que de come deniseine et… Liege Femme, si bien deinz le Roiaume d’Engleterre, come ailleurs deinz [les] Poairs & Seignories, soit euz, tenuz, tretez & reputez, selonc la forme & affect d’une Cedule annexe a ycestes ». Then follows what is a form of letters patent, though expressed to be granted not only de gratia nostra speciali but also (ac) de avisamento & assensu Dominorum Spiritualium & Temporalium, ac Communitatis Regni nostri Anglie. The responsio is « soient faitz lettres Patentes desouz le grande seal du Roy en due forme selonc la tenue du Cedule… »[169]. This has been interpreted as a case of a statute confirming letters patent[170], but this construction is to be doubted. The petition of Res ap Thomas, a Welshman, in 1423 requests the »tres reverentz Seigneurs de cest present Parlement » in their « sage discretion » to entreat « le Roy en ycest present Parlement » to modify the statute 2 Hen. 4 c. 20 whereby no Welshman might buy lands or tenements in England[171]. The responsio was Le Roi le voet[172]. This enacting formula was used also in response to the similar petition of Griffith Donne, dated 1421[173]. A petition of 1414 by three other Welshmen was granted « en toutz points, selonc l’effect et la contenue d’icell »[174]. It might he possible to distinguish this sort of case on the ground that what was sought was exemption from a statute and that it was coming to be recognized that another statute could alone remove the bar[175]. But in the later cases of David ap Thomas (1427)[176] and Rys ap Madok (1430)[177] [*36] the answer is that letters patent shall be prepared and in the latter case the form to be used is set out. The Welsh petitions are thus no different from those of other applicants, unmistakable aliens, such as Henry Hansforth, a Prussian (1430)[178], John Lucas, a Picard and Dame jeune Pelham, a Norman (1425)[179] and Jehan de Sigorellis, the Duke of Gloucester’s Italian physician (1433)[180] wherein the already time-honoured formula of expression of Royal favour, « Soit fait come il est desire », is marred by the reservation of aliens’ customs or of «tin resonable fyne ent a faire en la Chauncellerie du Roi ». The general conclusion must therefore be that these early examples of « statutory naturalisation » are merely cases in which the favour of denization has been sought in a petition addressed to the Parliament. Their significance is far outweighed by the more numerous cases of direct denization to which attention is drawn in this paper and to which, in view of the manner of disposition of such petitions, they are to be completely assimilated.
f) The Tudor Period. — The materials on naturalisation and denization in the early Tudor period are such that it is not entirely easy to appreciate what the exact position was. As respects the reign of Henry VII the calendaring of the Patent Rolls is uninformative: there appear to be no grants of letters patent. Other sources indicate, however, that denization was frequent enough[181], The statute book shows, too, that there was a large alien population in England and that measures were taken to control and restrict it. In the very first year of the reign, for instance, it was enacted that strangers made denizens should continue to pay aliens’ customs, statutes or letters patent to the contrary notwithstanding[182]. But in the same year the repressive statute, 1 Ric. 3 c. 9, which was especially directed against the Italian merchants and which excluded aliens from being householders, from engaging in retail trade, and from having alien appren[*37]tices[183], was so amended as to leave only the King able to sue for the penalties prescribed[184]. It may he suggested that the motive for this change was a financial one. The same motive is to be discerned behind the requirement that strangers made denizen should pay aliens’ customs which has been mentioned and which was reaffirmed by a further statute in 1496[185]. The only exclusively! political measure which is to be found is the statute of 1492 requiring all Scots to withdraw from the realm within forty days unless made denizens[186].
Denization was again frequent enough during the reign of Henry VIII, though the actual grants are similarly difficult to locate, so far as the earlier years are concerned. From 1509 to 1534 there is never less than one grant annually and there are never more than twenty[187]. During this time there is some restrictive legislation, principally, of financial and economic inspiration. Thus in 1524 aliens’ customs are imposed on Englishmen sworn to foreign princes[188]. This statute provides, incidentally, evidence of the early acknowledgment of the possibility of at least partial expatriation. In 1531 there is a further statutory declaration of the liability of endenized persons to pay aliens’ customs[189] and a measure excluding aliens from such callings as those of bakers and surgeons[190]. The later years of the reign are characterized both by an increase in the numbers of denizations and by increasingly severe legislation against aliens. There are 172 grants in 1535, and though thereafter, apart from the year 1541 in which there are 421 denizations, the number sinks again, it rises to the huge total of 2965 in 1544[191]. The explanation is of course that the Reformation had begun and [*38] that England was becoming the refuge of foreign Protestants[192]. It would not seem that this last development was encouraged, at least at first. For the immediate reaction was the promulgation of a species of aliens code in the form of the Act concerning Strangers of 1541[193]. The preamble thereto recites the statutes of 1 Ric. 3 c. 9, 14 & 15 Hen. 8 c. 2 and 21 Hen. 8 c. 16 and their evasion and requires that for the future all aliens born, whether denizens or not, shall obey them. It is further laid down that all letters patent of denization are to contain specific stipulations that the various legal restrictions upon aliens are to continue binding upon the grantee save insofar as the King may expressly dispense him. And finally the limitations upon the taking of apprentices by aliens and the numbers of aliens who may be taken into households are renewed. In particular leases to non-denizens are declared void. It has been suggested that the purpose of this Act was less to drive out aliens already settled than to deter fresh immigrants[194]. Those already settled could, it seems, purchase exemption at a price. There was always, it has been shewn, a distinctly financial element in the transaction of denization and it is a tenable view that at least for a time under the Tudors the privilege was to be had as a right for a price. Various things point to the validity of this conclusion. Thus with very few exceptions grants of this century are for life only; further, the reservation to the sovereign of aliens, customs is almost invariable. Then, again, the power of making denizens is habitually farmed out. The Chancellor usually has the concession: Sir Thomas Audeley has it in 1535[195]; Wolsey had had it in 1518[196]; and there are similar delegations under Edward VI and Mary[197]. Finally, [*39] there is the curious case of Hector Nunez in 1576 in which the Lords of the Council declared that « … by the rule of Civil Law, he having remained here above twenty years, was reputed a natural subject of the realm… »[198]. This declaration was made in connection with the question as to whether an English resident of Portuguese origin could qualify for the release of his goods, seized in Spain, under an arrangement for the benefit of English subjects. It may he taken, therefore, to refer to the question of nationality of claims rather than to the nationality of individuals. And there are to be set against it, moreover, cases where aliens who had been settled for as long as even sixty years applied for and were granted letters of denization. But it is submitted that the conclusion to be drawn is not that different rules governed what may be called the internal and the external aspects of nationality. The case, taken together with the other circumstances mentioned, would seem rather to show that residence gave a more or less absolute right to denization. In other words, though denization still lay in grant, it was always to be had at a price.
A notable feature of the century is the seeming abundance of grants of denization. to inhabitants of the Channel Islands and, so long as it remained an English possession, of Calais. But these documents are misdescribed as grants of denization. There are rather documents addressed to public officers, especially customs officials, making it clear that the persons named therein, notwithstanding their overseas origin, are nevertheless subjects[199]. Indeed there was less uncertainty at this time as to the status of the overseas dominions of the Crown than there appears from Calvin’s Case to have existed immediately after the accession of James I[200]. Thus there is even to he found a decision refusing a Scot a jury tie mediatate linguae on the ground that he was no alien[201]. [*40]
In the Tudor period denization by Act of Parliament is not so frequent. But in 1542 there is a Public Act « for the making free of certain Children born beyond the Sea and to put the same Children in the Nature of English Men »[202]. Despite its public character, this enactment relates only to the children of three named persons, Thomas Points, William Casselin and John Dimmock. These were presumably Englishmen, so that the Act implies that statute De Natis was not considered to be in force. The following year there are three private Acts « to make Denizens » the children of other named persons, who also seem to be Englishmen[203]. Two similar private Acts are to be found for the reign of Edward VI[204] and one for the reign of Mary[205]. It is noteworthy that all these enactments speak in terms of « denizens ». But the normal method of endenization is still by letters patent, as is shewn by a public Act of Philip and Mary « to enquire into the Behavior of Frenchmen, being Denizens », which provides for the repeal by proclamation of letters patent issued since 32 Henry 8 upon proof of misdemeanour[206]. Twelve private Acts are to be found for the reign of Elizabeth I. About half of these provide for the making of the person named « a free denizen »[207]. But in the others the formula is varied, provision being made, for instance, « that Garsome Wroth, born in Germany, shall be taken and reputed the Queen’s natural-born subject »[208]; « that the Lady Jane Sibilla, wife to the Lord of Wilton, born beyond the Seas, shall be reputed and taken the Queen’s natural subject »[209]; « that certain Persons born beyond the Seas may he deemed and reputed as mere English »[210]; « for the Natural[*41]izing » of the grantees[211], or for their« Naturalizing and making Free »[212]. It is submitted, however, that nothing is to he collected from this sort of variation. In particular, it does not by itself imply any distinction between e naturalisation e by statute and « endenization » by means of the royal prerogative. Simply because « denizen » originally connoted native-born[213], endenization conveyed full rights. And by using the term « denizen » as Act of Parliament necessarily could imply no more than endenization by letters patent implied. Up at least to the time of Calvin’s Case, the choice between enactment and letters patent is dictated solely by chance and convenience. In times when the prerogative is exalted above the power of Parliament, as under the Tudors, it is natural that letters patent should be more frequently encountered than are private Acts. Equally, as Parliament resumes its prominence, as for instance towards the end of the reign of Elizabeth I, enactments reappear. Perhaps, as has been suggested, the financial motive a double one since denization was to he had only for a price and, once granted, might affect the royal customs revenue — the sovereign preferred the device of letters patent. For if denizens were created by that means control was retained over the proviso that the grantee should continue to pay aliens’ customs[214].
Against this suggestion is to be set the case in Broke’s Abridgment, dated 1545, in which it was held to be law that « ou alien nee vient en Angleterre et amesna son fitz ove luy que fuit nee ultra mare, et est alien come son pere est, la le roy per ses lettres patentes ne poet faire le fitz heyre a son pere, ne a chescum auter, car il ne poet alterer sen ley per ses letters patents nec aliter nisi per parliament, car il ne peit disinheriter le droit heire ne disapeynt le seignior de son eschete »[215]. But it is submitted that this does net involve that there was any difference in effect between letters patent and the common form naturalisation Bill. Parliament could, of course, vary the law of inheritance, and only Parliament could do so. If, however, Parliament merely declared [*42] the parties to be denizens, this alone did not involve that the son could necessarily inherit to the father. Two positions must he distinguished here: the case where the grantee has issue born abroad before the grant; and that where he has issue born in England before the grant. This case was dealing with the former position. And, in relation to that, it would seem clear that the bare passing of an act respecting the father could not affect the status of the son.
If of course the Act extended to the son also, the case might be different. But so also it might if the grant of denization by letters patent included the heirs of the named grantee, as was often the case in previous times but, was as has been seen, infrequent in the sixteenth century. The result would partly depend on how the term « heirs » in an Act or in letters patent was interpreted: whether as including children born before the grant or only those born thereafter. The answer here would not seem to be clear. Insofar, however, as there is a question, it is one as to the law of inheritance and therefore connected with the similar problem as to whether the English born child of an alien father later naturalised or endenized could inherit lands of the latter[216]. But both questions are related to that as to whether the foreign-born child of an English born father could inherit from his father. And that is of course the great question of the time, if not of the whole history of nationality law up to the end of the eighteenth century. The statute De Natis was still known in the sixteenth century[217]. But, again as has been shown, it seems to have been ignored in the course of naturalisation and denization[218]. It remains, in reviewing the period, but to add that in 1580 a Bill was introduced in the Commons the effect of which, had it passed into law, would have been to render the English-born children of aliens not made denizens themselves aliens[219]. The [*43] bill was lost. It was clearly a product of the reaction against the Protestant refugees. This provoked, also in 1588, a bill which would have excluded aliens from all retail trade arid which was also lost[220], besides less regular measures such as apprentices’ riots in London[221]. But it is important not to lose sight, in exploring the origins of the Bill of 1580, or the fact that its effect would have been to do no more than confirm a theory already held, if only a minority theory. There was still considerable uncertainty as to whether nationality could be acquired exclusively litre soil[222]. The status of the jus sanguinis was no less dubious[223].
III. — From Calvin’s Case to the Act of Anne.
a) The General Development of Nationality Law. — An ex post facto view of Calvin’s Case regards it as having effected a restatement of the law[224]. Whilst this implies that the decision confirmed rather than changed the earlier position it suggests also that the decision put matters beyond doubt so far as the future was Concerned. It will be shewn that this was not the case in every respect. But Calvin’s Case was certainly the principal event of the seventeenth century in this sphere, so far as the metropolitan possessions of the Crown were concerned. Some further clarification of the effect of marriage on nationality, and as to the descendibility of nationality and the effect of alienage upon inheritance was, however, achieved. There were signs, too, of the growth or revival of the theory that allegiance was due to the Kingdom rather than the King — the exact reverse of the view which prevailed in Calvin’s Case[225]. And at the end of the century came the Dutch Union. As to the first matter, Calvin’s Case, if it partially revived memories of the statute De [*44] Natis[226], of course left unresolved its interpretation since the statute did not « overrule « the case. But in R v. Eaton[227] in 1627 the question arose as to whether the children of an English merchant and his Polish wife, born in Poland, could take a devise of copyhold. Reference was made in argument to the statute 24 Eliz. 3[228] as having endenized only those « whose father and mother are English s, as well as to numerous mediaeval and Tudor precedents. The decision of the King’s Bench is of extraordinary interest as a commentary on Calvin’s Case. For it was to the effect that the issue were « ad fidem utriusque juris, de Angleterre et de Poland ». Several judges held that the words « Fathers and Mothers » in De Natis « serra prise distributive non copulative, Fathers or Mothers ». But apparently five years later Littleton’s recollection of the decision was doubted and he himself at that time concurred in advising a client similarly placed to procure denization, « de avoder question »[229]. It is not expressly stated that the ground of the decision was partus sequitur patrein, a maxim discussed in argument. In Bacon v. Bacon (1641), however[230], the maxim was expressly adopted. There the question was whether the plaintiff, born posthumously in Poland, where her father had been an English merchant, could inherit. Although it was held « not material although his Wife be an Alien, for she is… sub potestate viri, and quasi under the Allegiance of our Kings, it does not appear that the mother was an alien. She is described as « Elizabeth the daughter of Francis Cockley, an English man, who erected the Trade of a Merchant in partibus transmarinis s. In Collingwood v Pace (1664)[231] the whole question was elaborately argued. There the issue was who inherited the estates of the Earl of Holderness. The founder of the family was Robert Ramsey, Scot and therefore an alien, who had four Scots alien sons temp. Elizabeth. The eldest, Robert, had three daughters; the second, Nicholas, two sous, Patrick and William; the third, Sir John, later the Earl, left no issue; the [*45] fourth, Sir George, one son, John. The Earl and his brother, Sir John, had both been naturalised before the birth of the latter’s son John and the contention was that John could inherit from his uncle, which the descendants of Nicholas, who were natural born subjects (presumably because born after the Union) opposed. The Earl and Sir George had both been naturalized by Act of Parliament and, though the grant was expressed to place them in the same position as if they had been natural born, Hale C.B. held that in a sense it had « only respect to what shall be hereafter ». It could not be applied to a collateral purpose « and meddles not with the disability of [their] Father, and the consequences thereof », nor did it « cure any disability of Transmission Hereditary between the Brothers, resulting from the disability of the Father… »[232]. Nevertheless, Lord Hale held further that John could inherit because the inheritance of one brother to another «tho it be a Collateral Diseent, yet it is an Immediate Discent, and consequently… no Impediment in another Ancestor will hinder the Discent between them »[233].
The interest of the case — apart from the suggestion that the wording of an act of naturalisation governs its effect upon inheritance lies in the disposition of the suggestion, made arguendo, that if Robert’s wife had been an Englishwoman there would be no difficulty since heirship of Sir George to the Earl could be traced through her. This was countered by the argument that she could not have been English since her sons were aliens. Lord Hale said that « … it is without question that if an English woman go beyond the Seas, the Issue are Aliens; for the Wife was sub potestate viri … »[234]. Thus the fact that the sons were aliens did not mean that the mother was such. However, there was no evidence that she was English, so that tracing inheritance through her would not assist the claim. In the converse case, De Natis had, it was true, been construed in the sense that « tho’ an English Merchant marries a foreigner, and hath issue by her beyond the Sea, that Issue is a Natural born Subject ». But this « gentle Interpretation of the Law s upon which the Report in Calvin’s Case was grounded, was in Hale’s opinion attributable [*46] less to any such rule as that a wife is sub potestatc viri or that Partis sequitur atrem, but rather to considerations of public policy: the desireahility of noble families of Scottish extraction enjoying their inheritances in peace[235].
These cases thus did not entirely dispose of the question as to the construction of De Natis. So far as concerns the tracing of descent through aliens, however, the law was clarified in 1700 by statute. In Collingwood v. Pace, Hale dissented from Coke’s opinion that « if an Alien have two Sons born in England) and one dye, without Issue, the other shall not inherit him »[236] because of the view he took of the nature of collateral inheritance. The difference of opinion relates only to the interpretation of the rule. The rule itself is clear at this time: it is descent cannot be traced through an alien for purposes of inheritance. This situation was, however, altered by the statute 11 & 12 Gul. 3 c. 6, which swept away the objection to making title on the basis of alien descent for all purposes, including inheritance of honours and dignities.
b) Nationality Law outside England. — When the seventeenth century is reached, it becomes necessary to consider what was the law of nationality in dominions of the sovereign other than England. Before the accession of James I the state of the law of Scotland is immaterial, for that country was generally speaking a foreign country[237], though in fact its law seems to have been much the same as the law of England[238], But Ireland, though an English possession, appears also to have had something in the nature of a separate nationality law at an earlier date. For, on the one hand, as has been seen, the native Irish laboured under disabilities in England[239]. There seems, too, to have been a disposition on the part of English officials to treat [*47] even the English settled in Ireland as aliens[240] much as they treated inhabitants of the other possessions of the Crown overseas[241]. Further, it is suggested that the Irish executive and the Irish legislature granted denization and « naturalisation » in the same manner as the English executive and legislature from earliest times[242]. The seventeenth century, however, saw an end of discrimination between Irish and English[243]. But this development did not put an end to distinct Irish and English denization and naturalisation. On the contrary, it is further suggested, the century is the period in which the concept of a separate Irish nationality came to full flower.[244] The English Parliament would not naturalise the Scots antenati. But the Irish Parliament did so, and apparently also the postnati, somewhat belatedly, in 1635. This was construed in Craw v. Ramsey not to have any effect in England, though it was there said that, following Calvin’s Case any person born liege man to the King (i.e. in any of the King’s possessions) was « inheritable in England; as well as native Englishmen »[245]. There was thus a common nationality law in general, but there were distinct naturalisation laws. This construction is not based on the Act of 1635 alone, which might be regarded as an aberration. There were also distinct naturalisation statutes in the modern sense in Ireland already in this century[246]. In short, though the principle that allegiance is coterminous with dominion may have operated in Ireland, as in England, up to the time of the Act of 1635, thereafter there grew up insensibly a conception of Ireland as a separate Kingdom[247]. Trade rivalry no doubt accounted in part for [*48] this[248]. And it may be suggested that a further cause was the different courses the Civil War and the Great Rebellion took in the two countries.
This development in Ireland suggests an inquiry as to whether or not any similar trend is traceable in Scotland. Upon the occurrence of the personal union, a provisional statute was made naturalising all Englishmen born since the death of Elizabeth. But this seems not to have gone into effect[249]. It is unclear what was the status of English antenati, Possibly they were left aliens, as in England. Possibly also Calvin’s Case was regarded as settling the position of osinati in Scotland as much as in England. Nevertheless, there are, it seems, some cases of both parliamentary naturalisation and of endenization in Scotland after the accession of James I[250]. And in 1669 there was passed a general naturalisation Act for the encouragement of foreign Protestant settlers[251] very much like the Irish Act of seven years earlier[252]. The Act of 1695 setting up the Bank of Scotland also contained a final clause, which was to cause a furore a hundred years later, to the effect that « all Foreigners who shall joyn as Partners of this Bank shall thereby be and become naturalized Scotsmen to all intents and purposes whatsoever »[253]. The two enactments last mentioned have in strictness to do with naturalisation rather than nationality in general. But they require mention here to shew that there was an incipient separate law of nationality in Scotland, which in turn provides support for the thesis that there was such a separate law for Ireland. However, insofar as Scotland was concerned, the development proceeded only so far as the paper threat of 1704[254] that Scots and English nationality would divide.
It would appear that, from earliest times, all save Manx and [*49] English were aliens in the Isle of Man, but that, in 1696, under a Utopian local law, there were admitted also to the status of subjects not only Scots and Irish but also the subjects of any other Kingdom or nation in amity the Crown[255]. Naturalisation was apparently granted locally in Guernsey from early times. In r66i an Order in Council extended to the Channel Islands, the requirement that grantees should take the oath of allegiance and supremacy[256]. The Lords’ Bill or Order of the Commonwealth « for making the Planters that are born in New England free denizens of England », which was introduced in 1648 but lapsed, has been interpreted as indicating that there was a tacit assumption that an Englishman in the Plantations was an Englishman in England[257].
But it is of course susceptible of exactly the opposite interpretation: that it was called for just because a native Colonial was not considered a subject in England. However that may be, it is certain that the American and West Indian Plantations were, during the seventeenth century, considered English rather than British possessions. Indeed the desire for a share in the Plantation trade was one of the prime motives for acquiescing in the Act of Union so far as the Scots were concerned[258]. In Craw v. Ramsey, the dictum as to the co-extensiveness of allegiance or nationality with the King’s dominions specifically included the Plantations as much as Scotland and Ireland[259]. Colonial-built ships were considered to be ships of subjects for purposes of the Navigation Acts. Thus, as between England and the Plantations or Colonies there seems to have been no distinction of nationality in general. This is borne out by the absence of any general nationality law in the Colonies: the law of England was presumed to apply. But, with naturalisation, it was a different story. Already in this century the several Colonies had or assumed powers both to pass naturalisation Acts and to endenize aliens [*50] by executive means. Such local naturalisation or endenizatiort may have had some inter-Colonial effect. Its effect in England was a matter of controversy[260].
c) Naturalisation legislation and the course of naturalisation. With the seventeenth century there is encountered for the first time naturalisation legislation of a general sort. By that is meant not legislation merely regulating the grant of naturalisation by other and traditional methods but legislation directly providing for grants with respect to a prescribed class of persons. A measure of the former sort was passed in the previous century — the statute 32 Hen. 8 c. 16, requiring the insertion in letters patent of recitals to the effect that grantees are hound by the laws against aliens save insofar as they may be expressly dispensed in any particular[261]. And a similar Act was passed in 1608 requiring any person naturalised by private Bill to take the oaths of supremacy and allegiance[262]. This enactment is incidentally most interesting in two respects: firstly, because of its preamble, wherein it is said that naturalisation had ever been a matter of mere grace and favour, and also because it marks the beginning of the restriction of naturalisation to Protestants which was so conspicuous a feature of the eighteenth century[263]. But more remarkable than this are the Acts of 1663 and 1678. The former provided that foreigners might exercise the three trades of hemp and flax dressing, net-making, and tapestry-weaving, and in the case of their bona fide engaging in any of them for three years, that they should be entitled to all the privileges of natural-born subjects[264]. It did not, it is to he noted, say in terms that the person qualifying should be a subject, but that can be construed to he the intent as the oaths of allegiance and supremacy are required of beneficiaries. The Act of 1678 naturalised the children of certain named persons prominent in the restored King’s cause and also all other persons who were, at any time [*51] between June 14, 1641 and March 24, 166o-1, born out of the King’s dominions and whose « fathers or mothers » were natural-born subjects[265]. But benefiting under the Act was made conditional upon the taking of the oaths of allegiance and supremacy. At first sight the making of this provision would seem to indicate that the statute De Natis was not considered to be of any effect. Some evidence has been adduced already[266], and more will be adduced[267], to shew that there was indeed considerable public doubt as to the continued effectiveness of that statute. However, as its preamble indicates, the Act 1678 was drafted to cure a somewhat different type of doubt. This was the doubt as to the nature of the foreign residence, during the Civil War and the Commonwealth, of Royalists. The Act proceeded on the theory that, if a subject resided abroad without official consent, he was guilty of a breach of allegiance[268].
The Act thus has probably no particular significance with respect to the question as to whether the jus sanguinis was recognized at the time of its enactment. On the whole it suggests that De Natis would have been held to operate if there were no question as to the licensed quality of the parents’ residence abroad. The similar Act of 1699[269] points more surely to the conclusion that De Natis had been forgotten. This dealt with the similar problem of children born abroad of parents in the King’s service during the wars at the end of the century. The Preamble recites that such Ü Children, notwithstanding they have been born of English Parents, yet by reason of their being born in Parts out of his Majesties’ Dominions, may be interpreted to be incapable [*52] of taking, receiving or enjoying, any … lands… ». It is therefore enacted that certain named children « and all other Persons who at any time since [1688], or at any time since the beginning of the… late War with France, and before [1698] which are.., born out of his Majestie’s Dominions, and whose Fathers or Mothers were Natural Born Subjects of this Realm, and were then actually in the service of his Majesty… are hereby declared.., to be and to have been the King’s Natural Born Subjects of this Kingdom « for all purposes exactly as if they had been born in England. The oaths and sacraments are, however, required of the beneficiaries. This latter Act is incidental evidence against the theory that at common law a foreign-born child of a subject in the King’s service was himself, without more, a subject[270]. But both Acts confirm the disjunctive interpretation of the expression « fathers and mothers » in De Natis or at least establish a « parity of reasoning »[271] for its construction, to be taken account of along with the « parliamentary exposition » of the eighteenth century statutes[272].
The Acts referred to of course applied to restricted classes of persons. Neither was a general naturalisation Act. But they may be regarded as in some sense precedents for the general naturalisation provision in the Act of Anne. The latter enactment was talled [sic] for by the great influx of Protestant refugees, especially the Hugenots. A simplified system of endenization had already been instituted to cope with this invasion. Charles II had by proclamation promised free denization to the distressed Protestants and an Order in Council, dated July 28, 1681, directed that a « kind reception » was to be given them at the ports, that charitable collections for their relief were to be organised throughout the land, and that they were to have letters of denization[273]. These promises were performed most punctiliously. The poor refugees were well received by the local authorities. For many years church collections and other subscriptions, both Parliamentary and public were made for their relief, enormous sums [*53] being devoted to this purpose[274]. And they were endenized literally by the thousand both before and after the revocation of the Edict of Nantes, in 1685[275].
The Order in Council of 1681 discloses that Charles II had also promised the refugees that he would « recommend it to his Parliament at their next meeting to passe an Act for ye Generall Naturalisation of all such Protestants as shall come over.., and for ye further enlarging their Libertys and Franchises granted to them by His Matie as reasonably may be necessary for them »[276]. This suggestion, which incidentally indicates that already some difference in effect was attributed to naturalisation as distinct from mere denization, came to nothing at the time. But Bills were introduced in 1679, several times between 1680 and 1690, and also between 1693 and 1698. In truth « the disjected members of these abortive bills are strewn over hundreds of pages of the journals of both Houses »[277]. The most celebrated Bill was that of 1693, the history of which Macaulay has set out. It aroused opposition of the most vituperative sort, especially from Sir John Knight, the Member from Bristol, « a coarse-minded and spiteful Jacobite »[278], whose speech was reprinted more than half a century later to serve in a similar cause[279]. This speech throws a sidelight on the effects of the Dutch Union which is of high interest. For Knight’s complaint was that the Bill was meant for the benefit, not of French Protestants, but of Dutchmen. As to them, « Already one of the most noisome plagues of Egypt was upon us. Frogs had made their appearance even in the royal chambers. Nobody could go to Saint James’s without being disgusted by hearing the reptiles of the Batavian marshes croaking all round him »[280]. Now of course « Batavian reptiles » old enough to frequent the Palace would be antenati, but it is strange [*54] that there is no mention of their « spawn » having the status of Englishmen, if indeed they had it. The innuendo is clear: that the personal union was not regarded as affecting nationality.
As to the course of individual naturalisations and denizations of the seventeenth century, since Calvin’s Case was not decided until the personal union of England and Scotland was seven years old, and since it did not in any event affect the situation of the antenati, it is only to be expected that the first decades of the century will reveal numerous instances of grants to Scotsmen. This expectation is amply borne out. Scottish nobles and clerks are both naturalised and endenized in considerable numbers. There is even a preferential rate: the clerks of the signet office are paid 30 — for preparing the letters patent of an alien, nothing for those of a pauper, and again nothing for those of a Scot[281]. But what is difficult to explain is that very often, in the first years, the same individuals are first endenized by letters patent and then, later, their status is confirmed by Act of Parliament[282]. There is even a case where an alien endenized under Elizabeth is later « naturalised » in this way[283]. Does this imply a distinction between « naturalisation » and « denization »? If so, what is the meaning of a « naturalisation » Act which purports to make subjects not only of the named grantees but also of their children « at any tyme heretofore since yot Maiesties most happy raigne over this Realme of England lawfully begotten or at any tyme hereafter lawfullie to be begotten and borne within either of yor said Realmes of England or Scotland or within any other of yor Hignes Realmes or dominions? »[284]. This form, it is to be noted is exceptional: usually the grant comprehends only children later born. Either form seems curious, since, at least according to the more modern understanding of the common law, a child born in England or elsewhere in the dominions of the Crown would be a subject even if his parent had not been naturalised. What, in short, is the difference between naturalisation and denization? Up to the end of Elizabeth’s reign, it has been sub[*55]mitted, there was no difference[285]. In much later times there was held to be a difference. The Royal Commission on Naturalisation found it in 1869 to be « not very clear s what the difference was, but added « denization did not confer the privileges of foreign factories, the sons of denizens born before denization could not inherit real property; and it had been held that denizens themselves were incapable of inheriting lands, as that privilege could only be conferred by Parliament ».[286]
Cockburn said « denization had no retrospective operation, while by naturalization, conferred by Act of Parliament, the alien was placed in exactly the same position as if he had been born a subject. A denizen is thus in an intermediate position between an alien and a natural-born subject and partakes of both of these characters. He may take lands by purchase or devise, which an alien may not; but he cannot take by inheritance; for, his parent, through whom he must claim, being an alien, had no inheritable blood, and therefore could convey none to his son. And, on account of a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him; but his issue, born after it, may. On the other hand the son of a naturalized subject, though born before the naturalisation of the father, could always derive descent through the father, and inherit as though the father had been a natural-born subject »[287]. The Select Committee of the Commons of 1843 expressed the view that: « By obtaining from the Crown letters patent of denization, foreigners are relieved from [the] disabilities [of aliens] so far, that they can hold and transmit all kinds of real and personal property, but they can only transmit real property to such of their children as may have been born subsequent to their denization… By obtaining from Parliament an Act of naturalization, foreigners acquire all the privileges of denization, and a slight addition to them. Naturalised foreigners may inherit real property, and may transmit it to any of their children, without distinction as to the time of their birth… »[288]. Hansard described denization as conferring [*56] « a kind of middle state between that of an alien and natural born subject » and said that a denizen « is enabled to take lands of purchase or devise, but not by inheritance; for his parent, through whom he must claim, being an alien, had no inheritable blood in him »[289]. But Cockburn goes on to say: « The extent to which the rights of a British subject were conferred on naturalisation by Act of Parliament depended of course on the will of the legislature » — referring especially to the eighteenth century limitations on capacity to hold office or Crown grants. And Hansard adds: « But although the alien by the Act of denization is enabled to make purchases of lands or to take them by devise, still the letters patent would not, unless the letters patent are sufficiently extensive for that purpose, confirm purchases made by him previous to the letters of denization, and does not enable his children to inherit to him unless such children are born after the date of the letters patent, for the letters patent have not a retrospective operation »[290].
The upshot of these passages is (1) that naturalisation, unlike denization, is retrospective to the birth of the grantee and therefore (2) that only a naturalised person, and not a denizen can (a) inherit land from an ancestor and (b) transmit title to land by descent to a child born before the grant to him, the grantee of the status of subject. But there is also a suggestion (3) that (a) Parliament may cut down the capacities of a naturalised person to, for instance, those of a denizen, and that (b) the capacities of a denizen may vary according to the tenor of his letters patent. The question arises, therefore, as to what is the source of these distinctions: Do they follow merely from the differences between the common form naturalisation Bill and the common forn letters patent of denization, or are they more substantial? Can Parliament in fact concede to a naturalised person no more than the status of a denizen, and can the executive in fact enlarge the grant to a denizen so that it comprehends what naturalisation would ordinarily give him? Or does « naturalisation » necessarily carry « inheritable blood » and is denization necessarily merely prospective and not retrospective? There are indeed suggestions already in the seventeenth century that naturalisation has a [*57] necessary content: it must carry exemption from aliens’ customs.
But these are negatived[291] and certainly in the eighteenth century clogs on naturalisation are imposed ad hoc[292]. On the other hand, the suggestion that the rights connoted by denization, though they can be restricted in a particular case, cannot he enlarged seems to have more substance in it. It is not, however, to be collected from what Cockhurn says: only natural-born subjects have inheritable blood and only Parliament can cause a person to be deemed to be a natural-born subject. The defect of the argument is that the first step in it is a false one: letters patent can also cause a person to be deemed to he a natural-born subject as from their date. So far as concerns his subsequently born children the denizen is in exactly the same position as the naturalised person. And, if the former can he deemed by executive act a natural-born subject prospectively, why should he not be so deemed retrospectively? The answer may be that a descent already cast would thereby be upset. But it is difficult to see how this can be the case. Suppose A is an alien and has a son, B, born before his (A’s) naturalisation or denization, and another son, C, born thereafter. Before his naturalisation or endenization A can take land neither by descent nor by purchase. And before 1700 neither B nor C can trace descent through him so long as he remains an alien; after iyoo either may do so[293]. When he is naturalised, he may take by descent or purchase, but so may he do if he is merely endenized. Whether either B or C may take by descent from him depends not merely on his quality but on the quality of the taker also. If neither B nor C is also a subject the question cannot arise. The problem is thus narrowed down to one of the following positions, depending on whether B or C, or either of them, was born in England. If B was not born in England he does not become a subject merely because A does so; the case may be otherwise with C. Alternatively, if B and C were born in England they are both subjects; but C may be able to succeed A to the exclusion of B because the latter cannot show that he traces descent from a father who was a natural born subject at the date decisive of such descent, [*58] namely that of his birth. Now these are distinct questions. The first relates to the effect, if any, of the naturalisation or endenization of a father upon his children. However, there is no distinction here: neither naturalisation nor endenization extends to children already born unless the grant so specifies[294]. The second relates to the law of inheritance exclusively; the child is a subject by reason of his own birth in England; the difference between a native-born B and a native-born C is that the latter alone can show that his father was (or rather was deemed to be) a natural born subject at the time of his (C’s) birth. If, however, this was all there was in the difference between naturalisation and denization it was surely obliterated by the Act of 1700, whereby the former rule against the tracing of, descent through aliens was abolished[295].
If this view he correct the naturalisation of Scots following upon their endenization in the early seventeenth century is explicable: the old rule against the tracing of descent through aliens still applying, that procedure was necessary to enable such antenati as might acquire land in England or Ireland to transmit it to their children already born. But it is clear that the doctrine of the distinction between naturalisation and endenization was then of fairly recent growth: the terminology of Elizabethan grants belies its earlier existence[296]. Its sway was, equally, of short duration, for its main point was exploded by the Act of 1700, though it was to persist in virtue of a somewhat different distinction introduced in the eighteenth century[297]. But, [*59] whilst it persisted, it is not entirely correct to say, as has in fact been said, that the processes of naturalisation and denization diverged for reasons of mere convenience or economic policy. Naturalisation which was prospective only could not cure the defect that descent could not he traced through aliens. And naturalisation which was retrospective in the sense that it cured that defect could only proceed from Parliament because it involved a change in the law[298].
Looking more generally to the course of naturalisation and denization, several interesting things emerge. Naturalisation or denization of Scots is very frequent, as has been said, immediately after the personal union occurs. Amongst the grantees are the Scottish undertakers of the Ulster plantation[299]. As respects denizations, what is noteworthy is that very often the exemption from aliens’ customs is expressly excluded even with respect to Scots. What is also curious is that the denization of Scots persists until very late in the century. It would seem almost impossible that John Thomason, who sought denization in 1661 and was a Scot by birth and an active merchant, should have been born before 1601[300]. Nor does it seem likely that Robert Creighton, the Dean of Wells, whose name was included in a naturalisation Act in 1663, was an antenatus, though a Scot. The possibility seems even more remote in the cases of John Poston or Paston, a mariner of Fife, endenized in 1668[301], and John Dicksone, whose grant in 1674 reserved aliens’ customs[302]. And it does not follow that they were the only cases of this period since very often the origin of the grantee is not recorded. Another interesting feature is the prevalence of block grants, especially in the earlier years of the century. These were usually made to encourage the setting up of new industries. One John Styward had a grant in respect of 11 persons, apparently weavers, in 1606 and a further grant in respect of another 18 the following year[303]. John Suderland got a grant for four persons in 1607 [*60] also, and used it to import painters, one of whom was Droesbout[304]. In 1608 warrants were issued to the Lord Chancellor to endenize 30 persons to be selected by Robert Menegeis and 30 to be named by David Jumeau[305]. There is even an echo of James’ silk experiment in the endenization, in 1616, of John Bonnail and John Laurien, keepers of His Majesty’s silkworms[306], and, in 1618, of Anthony Barbatier, to whom a license to plant and sell mulberry trees was granted[307]. But the English proved resistant to the cosmopolitanism of James and, as a result of representations by city companies, an Order in Council called in 1618 for a return of strangers dwelling in London. In 1621 a commission was appointed to review the laws respecting aliens and a further census was taken, extending to other towns. Numerous of the arrivals at this date were Hugenot refugees and church collections for their support were a feature of this period, as of later periods[308].
There are several cases indicating some uncertainty as to the operation of the jus sanguinis. The three children of Sir William Browne, Lieutenant Governor of the cautionary town of Flushing, naturalised in 1604, were born at Flushing of an alien mother[309]: this would imply a failure to rely in this instance on the disjunctive interpretation of the words « fathers and mothers » in the statute [*61] De Natis. The same may be said of the case of Thomas Glover, son of Thomas Glover of Coventry and Theodora his wife, stranger born, who was born in Livonia, and several persons in a like position naturalised in the same year[310]. In the case of the Vincent children, again the same year, it is not expressly stated that the mother was alien born[311]. But the Conwaie children, whose father was governor of another cautionary town, Brill, and who were naturalised in 1606, clearly had an English mother[312]. And again, whilst in the next years there were several more cases in which the origin of the mother is alien or does not appear[313]. Margaret Clarke, a petitioner in x6og-io, is specifically stated to have been born in Poland of parents « both English »[314]. Likewise the daughters of Sir Horace Vere, another governor of Briil who had been born in Colchester, and Dame Mary his wife, herself born in Gloucestershire, were naturalised in 1624, a previous bill having been lost in 1621[315]. In the case of Samuel Wentworth and others naturalised in 1628 and thus after the decision in R. v. Eaton[316] — the parents are likewise stated to be both English. Nor does the hesitation seem to cease with the disjunctive interpretation of De Natis in that and other cases. Thus in 1697-8 there is naturalised « Charles May, of English parents, but born out of your Majesty’s allegiance »[317]. The explanation here may be that the parents lacked license to be abroad[318]. Finally, in the case of Captain John Meoles, naturalised in the same year, there is a specific reference to De Natis in the petition, which recites that notwithstanding that his father and grandfather were natural-born subjects, « Yet, his mother being a Dutch woman, he cannot have the benefit of the statute of King Edward the III… »[319]. [*62] Some of the foregoing cases indicate equally that the circumstance that the father of a foreign-born child was in crown service was not held to avail the child anything. Indeed, there is a whole series of naturalisation acts relating to the children of the governors of the cautionary towns and of other military officers[320]. Even more remarkable than these cases are those concerning the children of ambassadors. In 1614-15 there was endenized « with cautions and provisoes usual » William Copley, « son of his Majesty’s subject William Copley but born in Spain during his father’s negotiating in those parts[321]. In 1628 there were naturalised the children of « William Trumball, agent for divers years together to yor Royall father of blessed memory at Bruxells, in the Lowe Counties, and nowe one of the Clarks of Yor Maties most Noble Privy Councell, and Deborah, an Englishwoman, his wife »[322]. In 1661 there was similarly naturalised Anna Ferrers, daughter of Sir Dudley Carleton, « Resident for his late Maiesty in Holland »[323]. In 1666 the name of Sir Richard Fanshawe was included in a Lords’ naturalisation Bill. Viscount Saye and Sele reported from the Committee that « finding it was the desire and direction of his father Sir Richard Fanshawe upon his deathbed, that his son should be naturalised, their Lordships thought fit to continue his name in the said Bill, though they were not fully satisfied whether this may not in future be argued to the prejudice of children of Ambassadors, born in foreign countries, and therefore are of opinion that rather the judges’ opinions might he had in the case, or else that the particular cause of his being naturalised might be entered into the journal of this House, to the end that it may not be brought in precedent to the prejudice of other ». The judges, being consulted, expressed the view that the children of ambassadors employed by the King, born in foreign parts, were not aliens. Nevertheless the petitioner’s name [*63] was retained in the Bill and a note of the judges’ Opinion entered in the journal of the House[324]. But notwithstanding this case in 1676 there was endenized Philadelphia, daughter of Sir George Downing, ambassador to The Hague[325]. At the beginning of the century aliens’ customs are, as has been seen, usually reserved in grants of denization, even to Scots[326]. But this is not invariable. In the case of Giles Vandeputt, naturalised in 1624, it was objected that the King would lose his customs by the Bill, but he « did satisfy the Committee and Mr. Attorney General did acknowledge it that the King hath already by his letters patent granted unto him that he shall pay no other customs than English merchants do pay »[327]. Such exemptions are even rarer later in the century. Economic considerations account also for the proviso, which appears some times, that the grantee shall not trade in merchandise[328]. The effect of the Navigation Acts is first seen in this context in the grant in 1660 to Henry Peterson who had « for 16 years been a trader between Denmark and London, but the late Act of Navigation makes him a stranger and incapable of his trade [»?][329]. The Dane was, however, fortunate. In the cases of the Dutch settlers encouraged to come over in 1672-5, it was usually required not only that they should within 6 months bring over their families also, but also often that if the grantee should prove to he [*64] a master of a ship or a mariner, the grant should stand void[330]. These requirements were applied also to the recipients of mass denization under the Order in Council of 1681[331]. In some cases they were reinforced by the further proviso that the grantees should not trade within the limits of the charter of any corporation of merchants[332]. But in 1693 Job Cornelissen is endenized « notwithstanding his being master of a ship or any order in Council heretofore made to the contrary » the latter part of this nonobstante clause indicating that the prohibition had been made common form by general order[333]. In the case of the Bill relating to Johanna D’Oferrell, 1694, it appears that amendments in the Commons resulted in the addition of the names of other persons, as had been usual throughout the century. The farmer of the City of London customs (which were distinct from the national or royal customs) thereupon petitioned the Commons that the addition of merchants and traders would cause the duties to be « greatly lessened, if not totally destroyed ». Counsel on the petition said « This man is undone if these men he naturalised, and put in as amendments at the House of Commons. They will colour others’ as well as their own impositions ». Sir Thomas Powys, for the persons added to the Bill, replied « These are fit aliens. If not to receive the advantages of home-born, in the City of London he is a foreigner. No Bill of Naturalisation had ever such a clog ». Notwithstanding this protest, which throws most interesting light on the practice of the matter, the petition was dismissed and the Bill, as amended, passed[334].
Other aspects of the practice and technique of naturalisation and denization which are noteworthy are as follows: Firstly, naturalisation bills de not always pass. Sir Daniel Delingne’s Bill, one for a person already a denizen, passed only at the fourth attempt in 1628[335], and in many cases two attempts are neces[*65]nary[336]. But the reason seems usually to be lack of Parliamentary time rather than objection to the tenor of the Bill. In general Parliamentary naturalisation, once the machinery is put in motion, is automatic. In some cases the petitioners seem to have been contented with denization by letters patent instead[337]. Again, the forms of both naturalisation Bills and letters patent of naturalisation seem to have been well settled. The clauses are common form; the only question is which of them shall he included[338]. Thirdly, it may be noted, though the interest is more sentimental than technical, that from about 1628, grants to infants alone became common. The grantees are foreign-born orphan children and their appearance in the lists testifies to the expansion of English trade and English interests generally[339]. It is possibly of interest to note that during the Commonwealth there are some naturalisation Bills which pass, many which do not, and same denizations[340]. Things seem to have gene on much as usual. Apparently, Commonwealth grants were considered void after the Restoration for, in the case of Phillip Le Pein, a Fleming who had a grant of denization in 1670, it is recited that he « obtained letters patent of denization 15 years ago, now invalid »[341].
Very little evidence concerning the effect of the Dutch union upon nationality is to be collected from the course of naturalisation and denization. There are numerous naturalisation Acts under William and Mary beginning with those for the Prince of Denmark, husband of the later Queen Anne, and the Duke of [*66] Schomberg, the hero of the campaign[342]. And Dutch followers of the House of Orange are endenized as well as naturalised in large numbers. But these were of course all antenati. And the period of the union was too short for many cases of postnati to have arisen. But that of Phillip Babington, an infant aged years born at The Hague, naturalised in 1698-9, is suggestive[343]. That of Sarah Gouge, « an infant under the age of nine years, born at Amsterdam », naturalised alone (i.e. not with her parents, who were possibly English) in 1700 seems conclusive: birth in the Netherlands did not make a subject[344].
The interrelation of British, Irish and colonial naturalisation is difficult to piece together from the English grants alone[345]. Occasionally an English grant is expressed to extend beyond England and Scotland. In 1624 Patrick Hannaye (Hannay) receives a grant making him a free denizen of England and Ireland, with the reversion of the office of clerk to the Council in Ireland[346]. In the same year Giles de Beaumont, a Frenchman, is made denizen of England and Virginia[347]. Two Scottish brothers named Hume are likewise made denizens in England and Ireland in 1630[348] as is also Michael Crake, one of His Majesty’s footmen in ordinary, in 1634[349]. In some later cases the grantees are expressed to be inhabiting Barbados[350], Antigua[351], or Jamaica[352], but they are either explicitly or [*67] implicitly alien merchants who have settled in these colonies. In one or two cases it is directed that they shall take the necessary oaths before the colonial governor[353].
d) Naturalisation outside England. — The Irish Parliament, as has been seen, purported to naturalise the Scots in 1635[354]. The records reveal that immediately after the accession of James I there were some Irish endenizations of Scots. At the same time some persons who were more clearly aliens, notably immigrants from the Low Countries, were also endenized[355]. Amongst the Scots were a number who were connected with the Ulster plantation. This is to be discovered because, prior to their Irish grants, they all seem to have taken English grants in which the circumstances is specifically recorded and they are expressly made capable of inheriting land in Ireland and are sometimes given grants of land there. But suddenly this technique of double grants is abandoned, and the Scots appear to proceed directly to Ireland and to be endenized there only. This could be construed to mean that an English grant was ineffective in Ireland, just as an Irish grant was ineffective in England, even at the beginning of the century. The view has, however, been expressed that this development did not take place until later in the century, that is, after the Act of 1633[356]. Certainly the Irish grants to Scots cease after 1634. A thin stream of grants to others continues and there are some Irish private naturalisation Acts under Charles I [*68] and the Commonwealth.[357] But the records appear always to have been badly kept and it is not possible in many cases to determine the origin of the grantee. So far as forms are concerned, though there were differences earlier, in this century the Irish form fairly faithfully reproduces the English[358].
In 1662 the Irish Parliament enacted a naturalisation Act in the modern sense, applying to every foreign Protestant artisan settling in Ireland and taking before a judge and enrolling the oaths of allegiance and supremacy. It further provided « Both Protestant strangers and aliens and his Majesty’s Subjects, being traders, artisans [etc.] coming into any city, borough and incorporated town or place of this Kingdom to settle shall on paying 20s to the magistrate thereof be admitted freemen of such city [etc.]… and that every such person… shall from henceforth be deemed, esteemed, and taken to be denizen within this Kingdom, he first taking the oaths of allegiance and supremacy and the usual oaths of freemen… »[359]. The purpose was to give to settlers the additional rights of freemen, such as were denied them in much earlier times[360]. But it is noteworthy that the clause applied to « his Majesty’s subjects » as well as aliens. The view has been taken that, the Scots being already « naturalised » by the Act of 1635, this must have referred to Englishmen. And there is adduced in support of it the fact that 145 Englishmen from all parts of England, one Jerseyman and a Maxman took the oaths under the Act, and it is concluded « Clearly therefore in the minds of the Irish legislators Englishmen were aliens in Ireland »[361]. But this is not wholly convincing. Why is it that some Irishmen appear to have taken the oaths likewise?[362].
Even an occasional Scot is to be found doing so[363]. Be this [*69] as it may, the Act of 1662, which was expressed to be effective for seven years, was revived for a further seven years, then for five years, and was finally made perpetual in 1718[364]. The acquisition of nationality through admission as a freeman in either Dublin or Drogheda, which was to cause a Parliamentary storm at the beginning of the nineteenth century, was not authorized directly by statute but by the Irish Orders in Council regulating the corporations of these cities. The relevant Orders were made in 1675 under statutory powers. They provided that every person admitted as a freeman should « from thenceforth be deemed, esteemed, and taken, and be denizen… within this Kingdom: any law, statute, charter, usage or custom of this Kingdom or of the said city, to the contrary notwithstanding »[365]. What is their status and significance? Are they to be interpreted as mere regulations laying down how the Act of 1662 was to be applied? Or are they instances of delegation of the executive power of endenization?[366]. Or, again, are they mere directions as to how alien persons are to be treated for such purposes as the levy of customs duties?[367]. It would not seem material to decide between these constructions.
As to the Plantations, as has been seen the grant of nationality in the Americas begins already in this century, though the practice did not become developed until that following. There was thus a general naturalisation Act in Virginia in 1671. In Maryland an Act for the naturalisation of Dutch immigrants and French Protestants was passed in 1666. South Carolina achieved a similar enactment in 1693 after some years of dispute. New York naturalised all alien Christian inhabitants in 1683, the proprietors having authorized a general provision for naturalisation as early as 1664. Delaware and Pennsylvania made similar general provision in 1700. And, in the West Indies, Jamaica enacted a [*70] naturalisation Act in 1683 and Antigua in 1702. The advance to general naturalisation legislation was thus parallel with, if not slightly ahead of, that in the mother country. Executive endenization was not, either, unknown. Thus in Virginia, the Act of 1671 having in effect authorized naturalisation by private Bill, of which there were five instances before the Revolution, a further Act of 1783 empowered the Governor to make grants to individuals, and an Act of 1705 imposed a test oath on grantees. The Delaware Act of 1700, whilst declaring all Swedes and Dutch and. others settled before the English to be subjects, similarly empowered the Governor to make a national of any individual alien. But it will be noted that the list of colonies so far is not complete. When attention is turned to Massachusetts, it is found that there is no legislation at this date and that the charter of the Province is silent on the question. But it is conjectured that executive naturalisation by the Governor was practised. The commissions of the Governors of New Hampshire are likewise silent. However, the charters granted by Charles II to Rhode Island and Connecticut permitted the recruitment of alien settlers. This was permitted also to the Duke of York by letters patent with respect to New York, and to the proprietors of New Jersey by their grant. Possibly a distinction should be drawn between developments in the proprietary colonies and the others, but on the whole the power to make subjects, at least for local purposes, seems to have been universally assumed in the last third of the century[368].
Possibly no more than local effect was intended by these local measures, legislative or executive. But very soon the question of their extraterritorial scope arose. In the case of Henry Brunet, a Frenchman « naturalised » by the Governor of Virginia in 1682, North, CJ advised the Lords of Trade that he could not lawfully trade in or to other parts of the King’s dominions within the Navigation Acts. In 1699 his Barbadian endenization was held, however, to render the trade of one Dr. de la Rouse legitimate. The following year the question of the effect of Maryland private Bill naturalisations and of New York endenizations was referred to the Attorney-General. The latter pointed out that the Maryland Bills contained clauses excluding the beneficiaries [*71] from officeholding and that nothing in the commission of the Governor of New York authorized him to grant letters of denization. An Order of Council was accordingly made, laying it down that endenization should be by local private Act, that executive letters of denization should not be issued by Governors, and that local Acts would not qualify any person to be a master of a ship repugnantly to an English statute. Governors were advised of this by circular letter. The Governor of Barbados in reply disclaimed that he had ever made any denizens. The Governor of New York pointed out that large numbers of aliens were continually arriving and recommended a general naturalisation Act. The final incident of the century is the reprimanding of the Governor of Antigua for having given his assent to an Act which purported to place the beneficiary in the same position as if he had been born in the island or any other of His Majesty’s dominions, which was considered to be « too general and by no means fit to be allowed »[369].
To sum the matter up, it would seem clear that there was great need for some means of naturalisation in the Colonies almost from their first foundation. During the seventeenth century a partially satisfactory means evolved itself. This consisted in the main in action by local private Act. There was some uncertainty as to the extraterritorial effect of measures of this sort, but the possibilities of collision with the law of the mother country were at this early date in the nature of things remote. No question as to the status of English in the Colonies seems ever to have arisen: they were clearly subjects. With the Scots the case seems to have been more doubtful; at least it appears to have been necessary to ask the question whether they had the same rights as English[370]. The status of native-born Colonials in England does not seem to have ever been seriously questioned[371]; that of persons naturalised in the Colonies was more disputed[372]. [*72]
IV. — The Eighteenth Century
a) The General Development of Nationality Law. — The main political and social events of the eighteenth century which might be expected to influence the law as to nationality were, in rough chronological order, as follows: the dissolution of the personal union with the Netherlands; the recrudescence of religious persecution abroad, especially in France and the Palatinate, with a resulting flood of fresh Protestant immigrants; the establishment of the Union of Kingdoms, as distinct from the personal union, with Scotland; the occurrence of the personal union with Hanover; the further acquisition and settlement of colonies overseas; the waging of long colonial wars punctuated by the frequent gain and loss of minor colonial possessions, especially in the West Indies; the conquest of Canada, with a large French population; the loss of the American colonies; and, finally the termination of the century in a protracted war of which marked characteristics were the taking of refuge from the enemy by large numbers of his subjects and very active espionage. Most of these events did in fact influence the law materially. A notable exception is that first mentioned. As has been shewn, the evidence is very slight that the Dutch were treated as subjects under William and Mary or William III. In fact, there is some evidence the other way[373]. Equally, there is no evidence that the dissolution of the personal union had any effect on nationality. In Isaacson v Durant, nearly two centuries later, Lord Coleridge, CJ was to say: « The case must have arisen when William III was at once King of this country and Stadtholder of Holland. Yet of any claim of Dutchmen resident in this country after the death of King William to be anything but alien there is no trace to be found in any of the books »[374]. This is true. But there is not, either, any trace of any claim of Dutchmen to be anything but alien, unless naturalised or endenized, even during the reign of William III. Nor is there much direct evidence that the personal union with Hanover made subjects of the Hanoverian postnati. Again, if anything, the evi[*73]dence is the other way[375]. But there may be some trace of the theory, advanced arguendo in Isaacson v Durant[376] that the Hanoverians were « subjects with maimed rights ». This, however, is doubtful. That theory has been discounted on the ground that the common law knows only the categories of full subjects and alien[377]. This may be true, but looking to the constitutional law of the Crown as a whole, different sorts of subjects of the same personal sovereign may be seen to have been tolerated. Such a conception was indeed implicit in the doctrine of personal allegiance enunciated in Calvin’s Case: The Scots antenati, though aliens in England, were still subjects of the man James; indeed it was because they were born such, and because allegiance once acquired was indelible, that they had to be aliens in England[378]. The doctrine of allegiance to the King « in his politic capacity », which finally triumphed in Isaacson v Durant, is even more favourable to the notion, which does not of course imply that the different categories are not aliens to each other. And it is thought that the political, as distinct from the personal, conception of allegiance prevailed very much earlier than that case. If so, this would explain why both the dissolution of the Dutch Union and the creation of the Hanoverian produced no apparent effects in English nationality law. But any arguments applicable to the Dutch and Hanoverian personal unions ought to apply equally to the first union with Scotland unless a different theory prevailed when that arose. The earlier Scottish Union is commonly described as the Union of crowns rather than kingdoms. The phrase is permissible if it be clearly understood that it means merely that the two crowns were united in the saine physical person, not that there was a single crown. For the crown is no less and indeed more a corporate concept than the kingdom. And if William III was merely concurrently King and Stadtholder, and George I King and [*74] Elector, without their different categories of subjects ceasing to be aliens to each other, then the same ought to have been true of the English and Scots from the accession of James I to the Act of Union. As has been seen, there were traces of a separate Scottish nationality after Elisabeth, and cases of endenization in England of Scots who can hardly have been antenati[379]. But the culminating event of this sort of separatism was the English Parliament’s threat that the Scots should become aliens in England from Christmas day; 1705[380]. This assumes that they were not aliens before that day[381]. The general conclusion must therefore be that the doctrine of political allegiance was of slow growth arid irregular and illogical application. Perhaps the Scots only escaped the effects of its full implications because of the Act of Union. That certainly should have put an end to all question of a separate Scots nationality. But it will be shewn that, most curiously, it did not[382]. This only goes to confirm that the transition from one notion of allegiance to the other was gradual. The settlement of further large numbers of Protestant émigrés as the occasion of the statute of 1708 « for naturalising foreign protestants »[383]. The true naturalising provisions of that statute, which were speedily repealed, are dealt with in a later section of this paper[384]. It contained also a general and more permanent provision which seems to cover the same ground as the ancient statute De Natis. This is in itself a piece of evidence for the view that latter enactment had gone out of mind by the beginning of the eighteenth century. But, in assessing whether or not this was the case, it is necessary to take into account a further circumstance which will be shewn to have existed: the continuance even after 1708 of eases of naturalisation or denization of the foreign-born children of English parents[385]. The general clause of the Act of Anne provided « that the [*75] children of all natural-born subjects born out of the ligeance of Her Majesty her Heirs and Successors shall be deemed and adjudged to be natural-born subjects of this Kingdom to all intents, constructions and purposes whatsoever «. There thus arose upon it the same question as arose upon the words « fathers and mothers » in the Statute De Natis: was it sufficient that one parent alone should be a subject?[386]. That question had been resolved in the affirmative with reference to De Natis in the seventeenth century cases[387] and the construction adopted seemed to be confirmed by the adoption of the clearly disjunctive words « fathers or mothers » in the naturalisation Acts of 1678 and 1699[388]. It was now reopened. But it has, since Doe dem Duroure v Jones[389] (1791), been considered to have been answered again, and in the opposite sense, by the British Nationality Act, 1730[390]. That was confessedly « An Act to explain a clause in the [Act of Anne] » and it provided that « All children born out of the ligeanee of the Crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the Crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said [clause in the Act of Anne] and of this present Act, be adjudged and taken to he, and all such children are hereby declared to be natural-born subjects of the Crown of Great Britain to all intents, constructions, and purposes whatsoever ». When this is examined to see what precise effect it has, two amendments are seen to have been made: (1) it is provided that the child of a native-born father is to be deemed native-born instead of that the child of native-born parents is to be so deemed; and (2) such father may be a natural-born subject of « the Crown of England or of Great Britain » instead of that such parents must be natural-born subjects « of this Kingdom t, It would seem, therefore, that the amendment was designed to serve either or both of the following purposes: (a) to cover the ease of a foreign-[*76]born child with only one native-born parent; and (b) to cover the case of a child whose subject parent was not a subject of this Kingdom » (i.e. England) but merely « of the Crown of Great Britain » — in other words a Scot[391]. If the Act was directed partly or solely to the first purpose, it may be remarked that it does not in terms cover every possible case. There are three possible cases: that both parents were subjects; that the father only was a subject; and that the mother only was a subject. All that is in fact said is that the second case is within the original Act, as the first is of course on the unamended wording of the latter. Does this mean that the third case is by implication excluded? If so, this raises the further question as to whether De Natis and its disjunctive interpretation still held good, in parallel as it were with the Act of Anne. Could the foreign-born child of an alien father and a subject mother, if he failed under the Act of Anne, as amended, still make good his claim to be a subject in virtue of De Natis, as interpreted generously in the seventeenth century? The first of these questions was answered affirmatively in Duronre’s case[392]. There what was involved was the exact problem as to whether the foreign-born child whose mother alone was a subject was a subject also. And it was held that he was not such under the Act of Anne. It was also held that he was not such under De Natis, For the effect of the Act of 1730 was not only to cut down the operation of the Act of Anne to cases where either both parents were subjects or at least the father was a subject, but also to reverse the disjunctive interpretation of the words « fathers and mothers » in De Natis. The latter statute was, it was implied however, still in force and moreover it conferred, where it operated, the full status of a subject and not merely rights of inheritance. But it operated only where both parents were subjects. Unfortunately, in the judgment of Lord Kenvon, these two issues are somewhat confused, though the upshot is plain. Thus, referring to the doubt Hale raised in Collingwood v Pace[393] as to whether the foreign-born issue of an English woman and her alien husband were not aliens, he [*77] says: « I do not think we are driven to the necessity of opposing the opinion of Lord Hale to the other cases, or of deciding upon either; because, considering the series of acts of parliament which have been passed since that time, 7 Ann. c. 5 [the Act of Annel, to Ann. c. 5 and 4 Geo. 2 c. 21 [the Act of 1730], we are in possession of a parliamentary exposition of this law »[394]. In other words, the Act of Anne went over the same ground as De Natis and the Act of 1730 narrowed the Act of Anne down to descent through males.
If the Act of 1730 was directed, alternatively or in addition, to the question of the status of Scots thereunder, other considerations must be taken account of. The Act of Anne was internally inconsistent as to the concept of allegiance[395]. For it spoke of children « born out of the ligieance of Her Majesty », thus implying an endorsement of the doctrine in Calvin’s Case that allegiance is to the sovereign in his (or her) personal capacity, a doctrine incidentally followed also in Craw v Ramsey[396], the other great case of the seventeenth century. But it went on to say that such children, if born of subject parents, were to be deemed « natural-born subjects of this Kingdom », thereby reverting to the « damnable and damned opinion »[397] that allegiance was due to the Kingdom, not to the King. If the latter doctrine prevailed, then indeed the foreign-born child of a native-born Scot could not have come within the Act: for his father would not have been « a natural-born subject of this Kingdom ». The question, therefore, is whether Coke’s views of the personal nature of allegiance prevailed. Here it may be necessary to draw a distinction between the law of the courts and the practice of the matter, Calvin’s Case ought to have excluded the possibility of a separate Scots nationality, or Irish or colonial nationality, save with respect to the Scots antenati. But, as has been seen[398], insofar as concerned nationality acquired by naturalisation, a surprising amount of separatism continued, the reality and therefore the possibility of which was acknowledgment by the courts [*78] themselves in Craw v Ramsey. Moreover, the course of naturalisation during the seventeenth century does not entirely confirm that Scots postnati were invariably regarded as subjects in England. Beyond this, it is not, however, possible to go very far. Assuming that the doctrine of allegiance to the Kingdom as distinct from the King in fact partly prevailed and that there were recognised to exist separate Scots and English nationalities, what would have been the effect of the change made in 1730? Would it have covered the case of the Scottish father? Would he have been « a natural-born subject of the Crown of… Great Britain » if born before the Act of Union? It is only possible to concede this on some theory that the Crown of Great Britain incorporated the Crown of Scotland. Of course it did. But equally it incorporated the Crown of England. Why then was it considered necessary still to leave the case of a child of « a natural-born subject of the Crown of England » provided for?
It is, however, possible to collect some idea of what the Act of 1730 was intended to strike at from the circumstances of its enactment[399]. These reveal that it was a strictly ad hominem. motive which produced it. It seems that George Pitt, afterwards the first Lord Rivers, son of a leading member of the opposition, had married a Swiss wife and that their child had been born abroad. He was advised that the child was doubtfully within the Act of Anne because of the alienage of its mother. Accordingly a private naturalisation Bill was sought and the Government approached to facilitate its passage. Sir Robert Walpole, always accomniodating in matters of detail, agreed to the Bill, but pointed out that the effect of the Act of Settlement and of the statute 1 Geo. 1 Sess. 2, c. 4 was to disentitle naturalised subjects from being of the Privy Council so that « [t]hus would the political influence of the next generation of the Pitt family be lost to the party ». The relevant clause of the Act of 1730 was therefore enacted instead and the Government took advantage of the occasion to tack on to it a further clause which would enable it to keep in its hands the Derwentwater estates[400]. In short, the whole [*79] Act was dictated by considerations arising out of very particular cases. It this be correct, then, though it may be concluded that there was indeed doubt whether a foreign-born child with one alien parent was Ôwithin the original wording of the Act of Anne, it may also be suggested that the intent of the Act of 1730 was only to cover the case of the child of an alien mother and that the exclusion of the child of an alien father is not be presumed. On this basis Plowden[401] censured the decision in Duroure’s case, pointing out also that Lord Kenyon’s survey of the « parliamentary exposition »[402] of the question was incomplete, in particular because it ignored the Acts of 1678 and 1699[403].
The Act of Anne revived another problem originally created by De Natis. Did it apply only to the first foreign-born generation or did it extend to Bacon’s « endless generations »[404] of Englishmen born abroad? And, if the former, did De Natis still apply, if it ever applied, in the latter sense? The Act did not say in terms hat the foreign-born child of natural born parents, or in virtue of the amendment of 1730 as construed in Duroure’s case of a natural born father, was himself a natural born subject. It said that he was to be « deemed and adjudged » to be such, albeit « to all intents, constructions and purposes whatsoever ». Was there any difference between a natural born subject in fact and a person « deemed » to be such? Or was the latter so « deemed » to the ultimate « intent, construction and purpose » that if he in turn had a child born abroad that child also would be a subject? It was not actually decided until De Geer v Stone[405] that neither by statute nor at common law could the foreign-born subject transmit his status to his foreign-born children save insofar as the British Nationality Act, 1772 permitted. That case was complicated by the circumstances that the claimants’ ancestor had been in crown service at the time of the birth of that ancestor’s immediate descendant and that the claimant’s ancestors had all married alien wives. There thus arose also a question as to the effect of the second clause of the statute De Natis[406], as well as the old [*80] question of the disjunctive constructions of both De Natis and the Act of Anne, besides the main question of the number of generations through which nationality may descend. But the decision is largely coloured by the Act of 1772, which provided that foreign-born children « whose fathers were or shall be, by virtue of [the Act of 1730] …entitled to all the rights and privileges of natural-born subjects… [should be taken to be’ natural-born subjects… as if he and they had been born in this king dom[407]. The implication of this wording, by itself, is of course that the second generation was not so entitled before its enactment. It does not necessarily imply that that generation, being thus invested with the status of natural-born subjects, cannot transmit that status farther. With respect to his question, there is involved the same problem as arises in regard to the first generation on the Act of Anne: is there any difference between a natural-born subject and a deemed subject? The answer is clear if the Act of 1772 is construed to extend the range of the jus sanguinis. But in this connection it is interesting to consider the circumstances of its enactment. It was apparently called Wedderburn’s Act, because it was promoted by Wedderhurn, A. G., afterwards Lord Rosslyn, who was counsel in the protracted Leslie litigation, the immediate cause of its enactment. This, which involved five hearings by the House of Lords, culminated in an unanimous decision that Count Antonius Leslie, born in Germany, son of Count Catejan Leslie, born also in Germany and before the Act of Anne, could not succeed to the estates in Scotland of his Scottish born grandfather on account of alienage[408]. The claim was complicated by the fact that Count Catejan had been a Papist. It was argued first that by the common law of Scotland, as of England, the child of a natural born subject was -a natural born subject wheresoever born. This being negatived on the familiar ground that De Natis was enacting and not declaratory, it was conceded that the claimant could not bring himself within De Natis because his father was not « at the faith and ligeance of the King ». It may incidentally be remarked that, if that were the ease, the fault lay not with the Leslies but with the Kings who had abandoned their ancient faith. But, according [*81] to Lord Hardwicke’s notes, the view of the judges was not so much that the religion of his father excluded the claimant as that the words « at the faith and ligeance of the King » in the statute meant « going abroad in the service of the King, or with licence », and that a subject going abroad without licence animo remanendi is not at the faith of the King. And, upon the argument that the Act of Anne would alternatively benefit the claimant, it was held that if Parliament had intended it to extend beyond the first foreign-born generation, this would have been expressed more clearly; the Act would have said « posterity » rather than « children »; but it could not have been meant to say that since « this would undermine the act of settlement; for if natural-born subjects, …then they will be capable of offices and grants of lands from the Crown… »[409]. This case is of absorbing interest because of the evidence it provides as to how in the eigteenth century De Natis and the Act of Anne were considered to interact. But its main interest in relation to the Act of 1772 lies in the fact that, following its decision, Wedderburn apparently undertook by parliamentary action to clear the title and the Act was the result. There are several gaps in the explanation. Thus Wedderburn appears to have been counsel for the respondent and not the claimant. Moreover, the Act of 1772[410] has a lengthy preamble concerning the settlement of Protestants abroad which would not seem appropriate to the Leslies even if Count Antonius had abandoned the faith of his fathers. But a fair case has been made out[411] to show that this piece of legislation, like the Act of 1730, was drafted strictly ad hominem. It may thus doubted whether it is conclusive against either the interpretation of De Natis as extending to the first generation only or of that of both De Natis and the Act of Anne as contemplating descent to that generation in the female, as well as the male, line. It is also possible to agree [*82] with the stricture upon all the eighteenth century legislation that it was designed to take « the native rights of British subjects into the service of the established religion » and that it has no coherent relation to the pre-Reformation law[412]. Because it is mentioned in De Geer v Stone[413] it is desireable also to record that in the Athlone Peerage Case (1795)[414] the Irish House of Lords permitted to take his seat as 7th Earl a quite remote descendant of the original patentee, General Godard de Ginkel (Gingell), notwithstanding that the latter had retired to Holland on the Parliamentary reversal of his grant of Irish lands in 1693 and that the family had remained abroad for more than a century. Kay J. following Westlake[415], regarded the case of doubtful authority[416]. But it is interesting to note that the Royal Commission of 1869, summing up the whole question, would say no more than that «Lord Bacon’s doctrine as to the transmission of British nationality was not undisputed… »[417].
Looking beyond the Act of Anne[418] as amended and extended in 1730 and 1772, it is next necessary to consider the effect of the acquisition of Canada. This involved what is probably the most considerable transfer of a population which had taken place up to that date. ÔWhen the capitulation of Montreal was being negotiated the Marquis de Vaudreuil proposed to General Amherst that the inhabitants of the country who did not withdraw should not be compelled to take up arms against France. Amherst minuted shortly « They become subjects of the king »[419] and, in accordance with this view, they were referred in the Proclamation of October 7, 1763 as « His Majesty’s Roman Catholic Subjects »[420]. But, though the Treaty of Paris, 1763 referred [*83] to them also as « His Majesty’s subjects », article IV thereof, in conformity with the terms of the capitulation, gave them eighteen months within which to withdraw from the country and renounce their new allegiance in favor of the old[421]. And this early important example of a treaty option of nationality evidently gave rise to a view that not cession, but only treaty, could affect the nationality of inhabitants of ceded territory. This was expressed in an opinion given by Sir Fletcher Norton to the Commissioners of Trade and Plantations in 1764[422].
India was of course acquired and goverened [sic] through the chartered company, whose original negotiations appear to have put the Crown in the position of a vassal to the Great Mogul rather than the reverse[423]. But the question of the effect of the interposition of the Company upon acquisition of nationality jure soli does not seem to have ever arisen directly, though cases of naturalisation of children born in India are to be found[424]. The reverse side of the medal, however, the question of the effect upon nationality of cession by the Crown, came into great prominence with the Arnerican revolution. The independence of the United States was recognised internationally by the Treaty of Versailles and was acknowledged domestically by the statute 22 Geo. 3 c. 46. Vet the opinion was widely held that the successful revolutionaries remained British subjects. Chahners was strongly of the opposite view, which of course ultimately prevailed[425], and conducted a wordy debate with Reeves, the legal historian, on the subject[426]. Plowden shared Reeves’ view and so, according to him, did Pitt. For, when he represented to the latter that some reprisal ought to be made to the Americans’ refusal [*84] to allow British subjects to hold land (the right to do which depended on possession of the status of a national), Pitt « drily replied that we had a character to keep up; the colonists had none »[427].It is a characteristic of the century so far that the development of the law is episodic. There is no advance unless the pressure of events brings it, as the Hugenot invasion brought the Act of Anne, difficult individual cases the Acts of 1730 and 1772, and the acquisition of Canada and the loss of America the rules they implied. There is no attempt at systematisation. But at the very end of the century the climate changed. The arrival during the Revolutionary and Napoleonic Wars of large numbers of French Royalists and prisoners of war and the resort of both sides during those wars to the extensive employment of secret agents called for a comprehensive control of aliens[428]. This paved the way to the modern law.
b) Nationality Law outside England. — The somewhat re markable survival of a distinct law of nationality in Scotland has been touched on already[429]. In connection with what has been said on that topic and on nationality law in Ireland[430], there should be taken into consideration the tendency, also observed already[431], of the eighteenth century legislation to distinguish between the Kingdoms of England, or Great Britain, and Ireland, The Act of Settlement had purported to dispose of a single crown of « the Kingdoms of England, France and Ireland and the dominions thereunto belonging »[432], leaving the Scottish parliament to act separately in the matter of the crown of Scotland. The second and third Acts of Settlement spoke in similar terms[433]. The references to France were not, of course, very [*85] serious ones, but the disability from offices and grants was applied to any person « born out of the Kingdom of England, Scotland, and Ireland, or the dominions thereunto belonging (although he be naturalised or made denizen, except such as are born of English parents) »[434]. The innuendo here is that there was some distinction between the foreign-born child of English, and that of Scottish or Irish parentage unless the phrase was used very loosely. The statute 1 Geo. 1 Sess. 2 c. 4, which required the disabling clause to go into every private naturalisation Bill, repeated the phrase exactly and so possibly perpetuated the distinction[435]. Insofar as concerned the acquisition of nationality jure sanguinis by foreign-born children — a possibility which the two enactments last-mentioned seem incidentally to ignore — the Act of Anne made a similar distinction: it applied, as has been seen[436], to the « children of all natural born subjects of this Kingdom » (i.e. England) only, and, even after its amendment in 1730, only to the children of fathers being natural born subjects « of the Crown of Great Britain or of England[437] ». If, therefore, the Act of Union put an end to Scots separatism with respect to nationality law in general — though not with respect to naturalisation in one peculiar context[438] — the same was not the case in relation to Ireland. Moreover, the final clause of the Act of Anne purported to introduce for Ireland a general provision for naturalisation proper parallel to that inaugurated in England for the foreign Protestants which was repealed three years later[439]. This enacted that persons qualifying thereunder should be deemed « her Majesty’s natural-born subjects of the… Kingdom of Ireland… as if they… had been… born within the said Kingdom of Irelan », just as, under the repealed clause, persons qualifying in England were to be deemed « her Majesty’s natural-born subjects of this Kingdom » (i.e. England). And, as has been seen, the original Irish naturalisation statute, which was several times revived, was finally made perpetual in 1718[440] [*86] In 1779 the Irish Parliament passed a new naturalisation Act of the same character as the old Act of 1662, giving Protestant traders etc. who took advantage of it the status of « free and natural subjects of this Kingdom » (i.e. Ireland), but providing that the necessary oaths, though they had to be enrolled in. the Chancery, could be administered by the mayor of any town and that beneficiaries should be excluded from the Privy Council, Parliament and crown office[441]. This was subsequently extended to all traders alien etc. save Jews[442], and later, declared to apply to settlers not being traders but subject to their obtaining license of naturalisation from the Chief Governor in Council before taking the oaths[443]. In 1783 special legislative provision was made for the naturalisation of Genevese and others settling in County Waterford[444]. In legislative theory at least, a distinct Irish naturalisation thus persisted throughout the eighteenth century. The distinction between British and Irish nationality acquired at birth was less marked. As to the Colonies and Plantations, there is likewise no development in the law of nationality in general, as distinguished from that of naturalisation, save insofar as the Act of Settlement and the statute, Geo. 1 Sess. 2 c. 4, on the one hand, and the Act of Anne on the other imply distinctions between persons of English parentage and others and between natural-born subjects of England, or Great Britain, and other natural-born subjects. As respects naturalisation, however, the case is otherwise, and the expressed effects of the statutory schemes of naturalisation set up in connection with the Colonies go to negative the distinctions that are possibly to be drawn from the earlier legislation. For in 1740 it is provided that any alien residing in any of the American colonies for 7 years without being absent from the colony concerned more than two months and making the declaration concerning the succession (or, being Quakers[445], affirming) and that concerning profession of the Christian faith (save [*87] in the case of Jews) is to be deemed to be one of « his Majesty’s natural-born subjects of this Kingdom » (i.e. Great Britain) upon payment of two shillings. That this conferment on persons naturalised in the Colonies of the status of subjects of Great Britain was no oversight is made clear by the fact that secretaries of Colonies are required under penalty to send annual lists of such persons to the Commissioners of Trade and Plantations, and that these persons were subject to the disabilities of the Act of Settlement and the statute 1 Geo. 1 Sess. 2 c. 4, in both England and Ireland[446]. These disabilities were, however, removed in 1773 insofar as they were construed to relate to the councils and legislatures of the Colonies and to crown offices and grants there[447]. In the middle of the century the Crown was authorized to commission foreign Protestants for service as officers or engineers in the Americas[448], and the Royal American Regiment was formed. In 1762 it was provided that alien officers or soldiers of this regiment, or engineers in America, with two years service were to be deemed natural-born subjects of Great Britain on taking the usual oaths, declarations and sacraments and that any estates that they had previously acquired should be exempt from seizure as the property of aliens[449]. A disability from membership of Parliament or the Privy Council or from Crown office or grant in Great Britain and Ireland was, however, imposed on them. By other Acts, the whale fisheries were sought to be encouraged through the offer of naturalisation, likewise carrying save for the usual disabilities the status of a natural-born subject of Great Britain, to persons serving three years aboard a whaler and taking the oaths, declaration and sacraments[450]. It is thus possible to agree that « The modern legislation on the subject of colonial naturalisation marks a return to the separatist and disruptive spirit of the 17th century »[451]. In the eighteenth century the tendency was the other way: towards a [*88] common imperial status, at least insofar as the American colonies were concerned. Ireland remains the great exception.
c) Naturalisation Legislation and the Course of Naturalisation. — The eighteenth century is characterized by the increase in the incidence of naturalisation by or under statute as compared with that of denization. There was, however, no general naturalisation under statute in England itself except for a very short time at the beginning of the century. Despite this, the making of nationals becomes primarily a legislative rather than an executive concern. No doubt the regularity with which Parliaments were held in comparison with the previous century largely accounts for this. It is an incident of the reduction of the sovereign to the position of constitutional monarch. The process of statutory naturalisation becomes increasingly stereotyped and the names of fresh petitioners are habitually added to Bills already in train, so that Bills relating to a single individual are uncommon, especially during the first half of the century. Naturalisation under statute in the modern fashion, as distinct from naturalisation by statute, was practiced for the short period of three years under the true naturalising clause of the Act of Anne[452]. This provided that a person making and subscribing the oaths of allegiance and supremacy and the declaration, concerning the succession as prescribed in the Act of Settlement should be deemed a natural born subject on taking the sacraments. The oaths and declarations could be taken in any of the High Courts or a Court of Quarter Sessions in England, or in the corresponding courts in Scotland or Ireland — the effect in Ireland being, however, to transform the applicant into a subject not of « this Kingdom » (i.e. England) but of the Kingdom of Ireland. No oath rolls are apparently available for Scotland, nor indeed for any English courts save the Queen’s Bench, the Exchequer, and the Middlesex Quarter Sessions, so that it is not possible to determine how many took advantage of this easy and inexpensive means of naturalisation. But it is apparent that the provision was originally urged by the Lords out of pity for the Protestant refugees from the Principality of Orange, the judges having been [*89] ordered to bring in a Bill for their naturalisation in 1703-4[453]. The Commons, however, took no action on the Bill and the measure which ultimately passed into law was even wider in scope and was seemingly inspired also by an economic motive, the effect of growth of population on national wealth being stressed in the preamble. Incidentally, the Commons were clearly generally more hostile to naturalisation than the Lords. Thus in 1704 they introduced into a Lords’ Bill for the naturalisation of numerous named French émigrés a general proviso that no person other than a natural born subject of England or a person one or both of whose parents was born within the realm should have the parliamentary franchise despite his naturalisation. In one of the two conferences between the Houses which followed the deadlock over this proviso the Lords represented that the result would he a divorce of the franchise from landowning, but the Commons were obdurate and the Bill was lost[454].
The effects of the provision of the Act of Anne for general naturalisation proved to be not as beneficial as had been hoped. After a violent outbreak of pamphleteering[455], and some incidents of a more serious sort[456], the provision was repealed in three years by an enactment which recited the « mischiefs and [*90] inconveniences it had occasioned[457], the repeal not extending, however, to the part of the original Act relating to the jus sanguinis[458]. Naturalisation under statute thus gave way again to naturalisation by statute. But in 1714 the facilities of the Act of Anne were revived in favour of 213 families of Protestants from the Palatinate, settled in Ireland. Apart from this, a more restrictive aliens’ policy tended now to be followed, of which another aspect was an Act of 1719 expatriating artificers and manufacturers settling in foreign countries and disobeying ambassadorial orders to return, disabling them from inheritance and rendering their property forfeit[459]. In 1714 also the prohibitions of the Act of Settlement against the holding of Crown offices or taking of Crown grants or being of the Privy Council or either House of Parliament by any person born out of England, Scotland, or Ireland, whether naturalized or endenized or not unless born of English parents, were reinforced by a provision that a clause to this effect was to go into every naturalisation Bill[460]. This contributed materially to the standardization of such Bills, and also to the definition of the status of aliens[461]. There was, however, another provision, though of a limited sort, for naturalisation under statute. For the Prize Act, 1707 introduced a scheme whereunder any foreign seaman serving two years aboard any English man of war or merchantman was to be deemed a natural-born subject[462]. This provision was re-enacted [*91] in 1740[463]. But apparently the re-enactment came to be considered to have lapsed, for in 1780 it was specifically declared that it had not[464]. This scheme was associated with the policy of the Navigation Acts with respect to the ownership of British ships and their manning by a proportion of British subjects[465]. That the Act of Settlement, in providing that naturalised persons should be disabled from Crown offices and grants, and from membership of the Privy Council or of Parliament unless born of English parents should apparently contemplate that persons born of English parents should be naturalised[466] is not surprising if the existence of the statute De Nails had been forgotten at the time 0f its enactment; yet it is known to have been not wholly forgotten[467]. It is more surprising that the statute 1 Geo. 1 Sess. 2 c. 4 should contemplate the same thing considering the enactment meanwhile of the Act of Anne. Nevertheless, though it is not always possible to determine absolutely the parentage of the persons concerned, it seems fairly clear that there still occurred some cases of naturalisation of foreign-born children whose parents were English. In some cases there may have been one alien parent, but in others a consideration of names and the like makes it fairly certain that both parents were English. [*92] In yet others, it is possible to be absolutely certain. And this is as true for the period after the Act of Anne as it is for that between the Act of Settlement and the latter Act[468], though after 1708 such cases are far less frequent. Thus in 1714 there is naturalised Daniel (? John) Burr, son of Nathaniel Burr, by Sophie his wife, who are described in the petition as both English, born in Amsterdam[469]. In 1755 there were naturalised the five infant children, born abroad, of James Fremeau, a naturalised subject, by Margaret his wife, a natural born subject[470]. If here the naturalisation of the father took place after the birth of the children of course the case would be otherwise explicable[471]. So also would that of the naturalisation in 1777 of Francis Popham, son of Francis Popham and Martha Clarke, born in France, if his parents were unmarried[472]. And in any [*93] case arising before the Act of 1730 made it clear that the Act of Anne was satisfied if the father alone was a natural born subject, the naturalisation of the foreign-born child of a British subject might be explicable on the thesis that there was doubt as to the interpretation of the original Act[473]. But this cannot be the explanation of the naturalisation, in 1765, along with his alien mother, of Gregory Wale, four-year old son of Thomas Wale[474]. But again Thomas Wale may only have been a statutory subject, so that his foreign-born child would not have been a subject also because born before the Act of 1772[475].
It is, however, an impossible conjecture that there was some excluding circumstance, such as posthumous birth, illegitimacy, or birth of a father who was but a statutory subject in every one of the cases of George Madrass, born at Madras (1768), William Billers, an infant of 14, born in Bengal (1773), the Chandler children, aged 9 and 14 and born in Lucknow and Maidapore respectively (1787), Richard Walker, born in Bengal (1792), and the Howard children, born in Lucknow (1796), all naturalised at the dates indicated[476]. Indeed in some of these cases, the births must have been at places within the dominions of the East India Company, so that it is a matter of some surprise that the jus soil was not considered to cover them. An alternative explanation of some of these cases, which appear to point to a failure in the eighteenth century to acknowledge the application of the jus sanguinis despite the Act of Anne and the Acts of 1730 and 1772, is that the names of the parties concerned were included with the lengthy naturalisation Bills of the period either ex abundanti cautela or by error. That may be true in some of them but not, it is thought, in all. The list is too long. But it may explain the unnecessary naturalisation of John Hastings, son of John Hastings by Margaret his wife, born at Presstown (Preston) in Scotland, by a very long Bill introduced in the Commons in 1703-4 in favor of a large number of French [*94] émigrés[477]. Yet, as has been seen from Sir Richard Fanshawe’s case[478], the scrutiny of Bills was close enough even at this date. It would not, however, seem reasonable to seek the reason for Hastings’ naturalisation in the thesis that Scots were aliens in 1703, despite the curious enactment of the following year[479]. With the Irish the case is somewhat stronger, as has been seen[480]. Yet naturalisations of Irish are so infrequent as to discount altogether any argument on the basis of the theory of separatism of the Kingdoms on which the legislature seems to have at times proceeded. There are perhaps no more than two naturalisations of Irish of which the explanation is not immediately obvious: those in 1708 of Henry Power, son of John, Lord Power of the Kingdom of Ireland, by Katherine, Lady Power his. wife, born in France and of James King, son of John, Lord Kingston of the Kingdom of Ireland, by Margaret, Lady Kingston his wife, also born in France[481].
The accession of George I did not produce, as might have been expected, a flood of naturalisations or endenizations of Hanoverians. But of course its absence is no argument that the personal union was considered to effect a union of nationality for this would only have applied in relation to and the earlier cases would in the nature of things have been those of persons who were antenati and in need of naturalisation. Possibly the prohibitions against office-holders discouraged fortune-hunters as they were intended to do. But they could only have operated with respect to ostnati on the basis that the latter would also stand in need of naturalisation: if a Hanoverian had been a subject without naturalisation he would not have been a « subject with maimed rights » because the disabilities followed only upon naturalisation, The question, therefore, is whether the Act of Settlement and the statute 1 Geo. 1 Sess. 2 c. 4 were intended to affect postnati as well as antenati. It would be not unreasonable to take the view that this was not the case and that it was conceived of as permissible that someone born under George the Elector [*95] and King might first see the light and grow up in one part of his sovereign’s dominions to serve him in the other. The evidence from the fairly long tale of Hanoverian naturalisations is not very conclusive. There is one such clear case in each of the years 1720, 1720-21, 1724, 1731-32, 1735-36, 1739-40, 1741, 1752, 1769, 1771 and 1776; in 1778 there were two; in 1783 and 1792 one each; in 1793 again two; in 1794 one; in 1795 what appears to have been a complete German band was endenized, as well as one « gentleman »; and in 1798 and 1799, there were at least seven cases[482]. It is possible that, over the whole period, the number may have been somewhat greater as the titles of the naturalisation Acts, which are unprinted, do not always indicate the country of origin of the person affected, nor the patents of denization in many cases any place of origin at all. In any case, it is thought, the frequency of later grants to persons who must in the nature of things have been postnati is sufficient to raise very considerable doubt as to whether it was accepted in this century, as was assumed in Isaacson v Durant, that Hanoverian postnati were subjects. It it be correct this conclusion is important enough. And it may be said that it is incidentally confirmed to some extent by what is to he collected from the course of naturalisation and endenization with respect to the Dutch union. For there again the beginning and ending of the rign in England of William III appear to have produced not the slightest effects[483].
The conclusion that the Dutch were not subjects under William III nor the Hanoverians under the Georges is essentially a negative one. So indeed must be any other relating to the law of nationality in general which can be collected from the practice of the eighteenth century. Whether rightly or wrongly, an almost complete Parliamentary exposition of the law has been achieved: there is in principle one common nationality for the United Kingdom and its overseas dependencies, though Ireland may stand somewhat apart and the King’s continental dominions are utterly foreign. Allegiance is coterminous with dominion, but it is already allegiance to the King in his politic, and not his personal capacity. Nationality is acquired by birth within the allegiance. It is also [*96] acquired, by descent, but only in the male line and only to the second foreign-born generation. Naturalisation is largely by statute; but, save in Ireland, it places the naturalised subject in the same position as the natural born subject save only for the disqualifications from offices and grants from the Crown. All this, it is submitted, is clear enough, though a certain amount of « hereditary doubt » as to the jus sanguinis persists to the end of the century — indeed the position described is that which was reached only at the end of the century. What is less clear is whether naturalisation still remained, as had been asserted under James I but as was probably untrue half a century earlier and even when so asserted[484], a matter of mere grace and favour. At the beginning of the seventeenth century, as has been seen, naturalisation Bills frequently do not pass, or do not pass at the first attempt. In this century that is much more rare. And it is difficult, reading the long list of Bills that do pass, and the much longer lists of names to which they relate, to resist the conjecture that, once a Bill was properly presented, its passing was a matter of course. The impression that was so is strengthened when regard is had to the extreme formality of the Bills. Naturalisation under statute does not involve that there is no discretion in its grant or refusal. Indeed there is only one part of the Commonwealth where the applicant for naturalisation, once he has shown he has satisfied the statutory requirements, has a right to his statutory certificate[485]. But clearly naturalisation under the Act of Anne, during the short period the naturalising provision of that Act was in force, was to be had more or less as of right[486]. And the same was true with respect to denization under the Order in Council of 1681[487]. It was also true of naturalisation in the Colonies under the Act of 1740[488], of naturalisation in Ireland under the Irish Acts[489], [*97] and of naturalisation after military service in the Americas or service in the whale fisheries or Navy or merchant marine[490]. Nor did there exist much possibility of control over naturalisation through immigration restrictions such as is common later; immigration restrictions were largely non-existent in the Colonies and at home[491]. After the brief experiment of the Act of Anne, apart from restricted cases of seamen, naturalisation under statute gave way again to naturalisation by statute, so far as Great Britain was concerned[492]. But the latter was so regular and so frequent that it is thought to he very probable that it, too, was in effect to be had as of right. This would explain the phenomenon of what may he termed statutory regulation of statutory naturalisation. This stems from the Act of 1608 requiring the oaths of allegiance and supremacy of persons naturalised by private Bill[493]. It was added to by the statute Geo. 1 Sess. 2 c. 4, which required the disabilities imposed by the Act of Settlement to go into each Bill[494]. And it was added to further by the Act of 1774[495] requiring every Bill to contain also a clause disentitling the beneficiary from claiming « within any foreign country any of the immunities and indulgences in trade which [were] or [might] he enjoyed or claimed therein by natural born British subjects, by virtue of any treaty or otherwise » unless such person continued resident within the realm for the seven years following his naturalisation. This proviso which is clearly the ancestor of the modern rule that a naturalised person can be deprived of his certificate if he stays abroad for seven years[496] and which has nothing to do, as might be thought, with the rule of international law that a State cannot necessarily protect a naturalised national against the State of [*98] which he was previously a national if he returns to the former[497] as first inserted by the Lords into particular private Bills. For in 1752, in consequence of a Commons debate on the participation of aliens in the Russian Company, there was stipulated in the case of John Meijbohm that he was to lose the benefit of his naturalisation if he were to reside abroad for three years[498]. Such provisos sometimes went further than the statute required. Thus in the cases of Haeseler, Erich, Eggers, Hoffham and Hane, all of German origin, and in those of two Swiss, Burnand and Baumgartner, all naturalised severally in 1774 the year of the Act it was provided that they should lose « English nationality » during residence at any time in Russia[499]. Another example of general rules affecting statutory naturalisations is the Lords’ resolution of 1798 that any applicant born in enemy territory or territory occupied by the enemy must produce a certificate from the Secretary of State certifying that he was well-affected towards the Crown[500], a requirement subsequently broadened in the sense that every applicant had to produce such a certificate as to his good conduct and loyalty[501]. It is submitted, however, that if the applicant could satisfy these general safeguards and would accept the common form limitations, he could have his Bill always when he could pay for it[502]. He could not, it would appear, introduce variations into it[503].
d) Naturalisation outside England — The Irish naturalisation records for the eighteenth century are sparse and inconclusive[504]. There was distinct Irish legislation and the naturali[*99]sation provision of the Act of Anne extended to Ireland as has been seen[505]. A few cases can be found in which Englishmen were endenized in this century in Ireland under the revived Act of 1662. Thus in 1704 William Moe, native of Barrington, Lancs. William Cooper, native of Hull, and John Twist, native of Leeds, all bricklayers, were so naturalised. But as on the same date two other bricklayers who were Irish natives were similarly endenized it would appear that the whole transaction relates to acquisition of the status of freemen rather than of nationality[506]. The whole of the rest of the century yields only one more inconclusive case: that of Sophie Charlotte, Countess Platen who was made a denizen in Ireland on September 9, 1721, and who may have been the same Sophie Charlotte, Countess Platen who was made a denizen in Britain on July 31 of the same year along with her daughter Caroline[507]. It would thus appear that there was no doubt that Britons were subjects in Ireland. Correspondingly the Irish must have been subjects in Great Britain. But whether this would have been the case with persons naturalised in Ireland is open to question[508]. In view of the terms of the Act of 1740[509], it is surprising that one of the counts in the indictment of George III contained in the Declaration of Independence was that he endeavoured to prevent the population of the Colonies by obstructing laws for the naturalisation of foreigners. For that Act provided a cheap and easy method of naturalisation: the process cost only two shillings and the requirement of seven years residence was not unreasonable[510]. Despite the Act, however, naturalisation by private Bill persisted in the several colonies just as it had done, despite the instructions of 1700[511]. The forms of such Bills vary as between the Colonies, but they become stereotyped in each Colony. But no complete picture of the situation can be obtained because of the incompleteness of the records. Notwith[*100]standing the penalties laid on them by the Act[512], the Secretaries of only six of the thirteen American Colonies and of only one in the West Indies made returns of naturalisations effected in accordance with it. Thus, of the names transmitted, eight-ninths came from Pennsylvania and one third of these are of persons naturalised in the single month September-October, 1765. In New York 490 individuals were naturalised between 1761 and 1773, but only 320 under the British Act between 1740 and 1770[513]. Pennsylvania’s exclusive use of the latter, coupled with the absence of any information at all as to New Jersey[514], may indicate that naturalisation in one proprietary Colony was considered effective in another. As between the Crown Colonies, occasional cases of naturalisation in one of a person coming from another one are to he found. The charter of Georgia (1732) impliedly authorized the Trustees to naturalise aliens and a further clause declared that all persons born in Georgia were to enjoy the liberties of free denizens in all the dominions of the Crown[515]. As been seen, in 1747 the liberty of affirming given to the Quakers by the original Act was extended to the Moravians and like sects[516]. The continued exclusion of the Roman Catholics from Maryland no doubt accounted for the continuance of private Bills despite this further concession[517]. The concession was in fact anticipated in Pennsylvania by a local Act in 1742-43[518]. And, as has been also seen, in 1773 the disabilities laid on persons naturalised under the original Act were declared not to apply in relation to membership of Colonial councils and legislatures, nor to Colonial offices and grants[519]. This again was anticipated [*101] by local Act in Maryland in 1771, the measure in question being found ultra vires[520].
The general conclusion must be that the Colonies tended towards the mutual recognition of naturalisation and that the doctrine of a common imperial nationality largely prevailed.
V. — Supplementary
In the twentieth century the law of nationality and naturalisation becomes largely statutory and the old ground of the statute De Natis, and of the Act of Anne and Acts of 1730 and 1772 is gone over again, with results productive of a fresh lot of problems. The starting point of the study of the modern law can thus be, for most purposes, the Naturalization Act, 1870[521]. But the problems of the old law were not resolved by the latter enactment, which touched only the nationality of married women, naturalisation and the status of aliens. And, as has already been seen, the decisions in Isaacson v. Durant[522] and De Geer v. Stone[523], by which the courts sought, perhaps in somewhat summary fashion, to still the major uncertainties as to the interrelation of the eighteenth century with the mediaeval legislation, were not given until late in the nineteenth century. It is not, therefore, possible to leave the matters developed in this paper without adding a certain amount of supplementary information. This relates, however, not to the general course of development of nationality law, the later stages of which are sufficiently well-known, but to naturalisation alone.
It thus must be recorded that the Scots Bank Act of 1695[524] and the provisions in the constitutions of the Irish cities with respect to the admission of aliens as freemen with the status of denizens[525], instead of falling into disuse with the successive Acts of Union, came into sudden, if possibly unnecessary, prom[*102]minence again in 1818. During the revolutionary and Napoleonic Wars a comprehensive aliens regime, of which the requirement of certificates of loyalty from applicants for naturalisation by private Bill was a part[526], had been gradually built up. This was continued in force from time to time, particularly insofar as concerned the registration of aliens, and the absolute power of deportation, even after the wars were concluded[527]. When a further prolongation came in question in 1818 it was said in the House of Commons that some aliens had discovered a way of avoiding the operation of the restrictive legislation — by procuring for themselves naturalisation as a result of the purchase of stock in the Bank of Scotland under the Act of 1695 or by securing admission as freemen of Dublin or Drogheda[528]. Thereupon the Government immediately obtained legislation, passed in a single day, suspending all naturalisation or denization otherwise than by Act of the Parliament of the United Kingdom (which now included Ireland) or by direct letters patent from the Crown, pending a review of the situation[529]. The opinion seems to be right that this was unduly precipitate and that it should have been realised that, in accordance with the decision in Craw v Ramsey[530], a person naturalised or endenized under the Scots or Irish Acts would have had no rights in England[531]. The incident thus proves no more than the uncertainty of the understanding of the law. But the Act of 1818 was several times renewed and lapsed only in 1823[532]. It is well known that general naturalisation under statute, after the abortive experiment of the Act of Anne[533], was not reintroduced in England until the Aliens Act, 1344[534]. Until then, the course of naturalisation and denization continued much as it had done in the eighteenth century. The Select Committee [*103] of 1343 said that the expenses of a naturalisation Bill were about £. 100 and that the number naturalised was about eight annually[535]. Some 409 Acts are traceable from 1800 to 1843; there were none in 18180, 1814, 1821, and 1827; the highest number in any year was 23 (1800, 1802)[536]. The Committee also said that denization was whollv in the hands of the Home Office and cost not less than £. 120. But to spare so heavy an expense to individuals it vas the practice to include the names of not exceeding seven parties in the same instrument[537]. It was added that for neither process was s any very careful examination.., instituted into the circumstances or intents of the applicant. A statement, signed by any person when the Secretary of State considered respectable, alleging that the foreigner seeking to he naturalised was a man of character, would be deemed a testimonial sufficient to warrant the official certificate[538], and letters of denization are granted with. even less formality »[539]. This goes to confirm the thesis advanced above[540] that in the eighteenth century naturalisation, and by the same token denization, was to be had virtually as of right. But this thesis must not be taken to imply too much. In no country and at no epoch, virtually, is naturalisation refused to a desireable applicant. Fndcsireables, and indeed many desireable would-be applicants, are, as it were, often prevented from acquiring the qualifications requisite, such as a certain period of residence, through controls over immigration. But in a time when ingress to the country vas free[541] and when little or no inquiry was made as to « circumstances or intents, what was before and afterwards a matter of grace and favour must have approximated very closely to a matter of right. [*104] The Act of 1844[542], which incidentally relieved aliens in part from the disability to hold land, provided for a statutory certificate of naturalisation, to be granted by the executive on presentation of a memorial by a resident alien, who was required to take the oath of allegiance. It apparently created a doubt it is submitted an unjustified one as to whether naturalisation by private Bill was still possible[543]. Neverthless, a thin stream of private Bills continued, the last one being, it is believed, that passed in favour of Lord Acton in 1911. The Act of 1844 also repealed the provisions of the Act of Settlement and of the statute 1 Geo. 1 Sess. 2 c. 4 with respect to the disability of naturalised persons to be members of either Parliament or the Privy Council or to hold Crown offices or grants[544]. As respects grantees of naturalisation under the Act itself, they could be dispensed from the disabilities respecting offices, or grants, but from these only, in the discretion of the Secretary of State. Mention of this raises the question whether there was any discretion in the executive to refuse to grant a certificate under the Act. This seems to have been the opinion of the Royal Commission of 1869[545]. But at first certificates were granted unconditionally at least in the sense that no exceptions were made in those which were granted. In 1850, however, the practice was instituted of inserting in such certificates a clause excepting « any rights and capacities of a natural-born British subject, out of and beyond the dominions of the British Crown and the limits thereof », which clause was, from 1854, qualified by the addition of the words, « other than such as may be conferred upon him by the grant of a passport from the Secretary of State to enable him to travel in foreign parts », and, from 1858, by the further addition of the words:
« Provided always… that all the before-mentioned rights and capacities of a natural-born British subject are granted… upon the [*105] condition that (the grantee) shall continue to reside permanently within the United Kingdom… ». Thereafter naturalised persons were given only passports « good for six months s, absence for longer without license in writing from a Secretary of State creating a presumption of cessation of permanent residence. The law officers advised in i86o that the foreign-born child of a naturalised subject holding a certificate so qualified was not a British subject jure sanguinis[546]. The Crown’s power to make denizens was not mentioned by the Act of 1844. It was invoked exceptionally thereafter e.g.: to enable an alien to be trustee of freehold lands occupied by a Dutch chapel, and, the Act not permitting service under the Crown to serve as an alternative to residence as a qualification for naturalisation, to cover the case of an interpreter in a Consulate abroad[547]. The power was expressly saved by the Naturalization Act, 1870[548], but is stated not to have been exercised since 1872[549]. Doubts having arisen as to whether the Act of 1844 extended to the colonies, it was declared not so to extend by the Act of 1847, which also declared that colonial legislatures had power to impart all or any of the privileges of naturalisation to be « exercised and enjoyed within the respective limits of such colonies or possessions respectively »[550]. The effect was both to confirm and to encourage local naturalisation, quite contrary to the tendency in the eighteenth century[551]. In the case of Canada, and no doubt elsewhere, such local naturalisation was granted very freely and without any serious enquiry[552]. From 1852 the Foreign Office issued passports to e local British subjects ». [*106]
But in 1863 consuls abroad were circularized to the effect that they were not entitled to protection outside the colony concerned nor to passports. The law officers, however, advised in 1865 that, as subjects in that colony, they were entitled to the protection of the British government in every other State but that to which they owed natural allegiance, and the instructions were accordingly reversed[553]. The question of protection abroad was thus disentangled from that of the extraterritorial effect of naturalisation[554]. The latter question was settled in Markwald v A-G in the sense that colonial certificates had no such effect[555]. And despite the introduction of the Imperial naturalisation certificate in 1914[556], the Act of that year saved the power of colonies etc, to issue local certificates[557]. All « local British subjects « were, however, transformed into citizens of the United Kingdom and Colonies by the British Nationality Act, 1948[558]. The latter Act does not, however, repeal local naturalisation legislation and the most recent development is a recrudescence of separatism in the shape of the evolution of Malayan citizenship[559].
VI. — Conclusion.
It cannot he pretended that this study is anything but a preliminary survey of a very complicated subject, though it may be claimed that the survey reveals sufficiently the ample potentialities of that subject. Any conclusions which are offered at the end of it must therefore be regarded as no more than tentative. [*107] But it is submitted that the following propositions concerning the law, of British nationality emerge from a consideration of the course of naturalisation and denization.
1) The principle of the ius sanguinis was at all times reluctantly admitted in English or British nationality law and practice and imperfectly understood. The statute De Natis was never entirely forgotten[560], but frequently ignored[561]. Even after its replacement by the Act of Anne there was considerable doubt as to the situation of foreign-born children[562].
2) The confinement of acquisition of nationality by descent to descent in the male line to the second generation was largely fortuitous[563].
3) The principle that allegiance is to the sovereign in his politic rather than his personal capacity was, despite Calvin’s Case[564], evolved very much earlier than is commonly supposed[565] and there would not seem to be any positive evidence either that the Dutch were treated as subjects during the reigns of William and Mary and William III[566] or the. Hanoverians as subjects from the accession of George I to that of Victoria[567].
4) Prior to the nineteenth century the obtaining of denization or naturalisation was much nearer to a matter of right than it later came to be[568]. There was no distinction originally between naturalisation by statute and denization by executive grant[569]. Such distinction as later emerged resulted from the law of inheritance rather than the law of nationality[570] and was imperfectly understood and possibly in reality non-existent after 1700[571] .
[1] See the British Nationality Act, 1948, 11 & 12 Geo 6 c. 56. As to the continuing relevance of the common law and thus of the concept of allegiance see the writer’s British Nationality, (1951) c. sp. 163 n. 52. As to the room for historical research on nationality see Mervyn Jones, British Nationality, (1947) IX.
[2] 7 Co. Rep. la; s St. Tr. 559 (1608).
[3] Per Lord Ellesmere, 2 St. Tr. 559, 684; see Mervyn Jones, op. cit., 31.
[4] Holdsworth, History of English Law, vol. 9, 76.
[5] 2 St. Tv, 559, 66, 696.
[6] 1 W & M Sess 2 c. 2 (1688); 12 & 53 Gul. 3 c. 2 (1700).
[7] See the curious incident of the enactment of 3 & 4 Ann. c. 6, repealed by 4 Ann. c. 3, purporting to make all Scots aliens from December 25, 1705. This was a reply to the Scots’ threat to depart from the settlement of the succession. See Letters of Denization and Acts of Naturalization for Aliens in England and Ireland, 1602-1700, ed. Shaw, Publications of the Hugenot Society of London, vol. XVIII (1911), (hereinafter referred to as Shaw, op. cit., vol. I, XI; Dicey and Rait, Thoughts on the Scottish Union (1920), 169-573.
[8] Calvin’s Case, 2 St. Tr. 559, 66.
[9] Ibid, 66; Bracton, De Legibus, f. 427 b. See Mervyn Jones, op. cit., 60-63, following Pollock & Maitland, History of English Law, vol. I, 443-446, for a very clear exposition of the inapplicability of Bracton’s rule, which refers to feudal duties, to a question of nationality.
[10] Calvin’s Case was of course a fictitious action, set on foot because of the tardiness of the English Parliament in taking action to regularize the status of the Scots, King James, in a Proclamation of 1604 had recited that « Wee have receaved from those that be skillfull in the Lawes of this Lande, That, ymmediatelie uppon our Succession, diverse of the auncient Lawes of this Realme are ipso facto expired; As namelie, That of… the Naturalisation of the Subjectes… »; Rymer, Foedera, vol. 16, 603. The commissioners of each kingdom proposed that, as to the postnati the law as later established in Calvin’s Case should he declared, and the antenati naturalised by statute. The Commons could not, however, agree to last suggestion and thought the proclamation had tended to prejudge the matter. The principal point of dispute was the question of the position of the postnati, which the judgment of the Exchequer Chamber settled.
[11] 17 Q. B. D. 54 (1886).
[12] Mervyn Jones, op. cit., 6.
[13] It does not follow that the inhabitants of the annexed territory necessarily become citizens of the annexing state in every respect, but they must become nationals. The American annexation of the Philippine Islands and of Puerto Rico in 1899 sufficiently illustrates this.
[14] 25 Ed. St. s; infra p. so.
[15] 5 Ann. c. 8; infra p. 88.
[16] Infra p. 44.
[17] Infra p. 76.
[18] Calvin’s Case, 2 St. Tr. 559, 585. It is to be noted that Bacon thought the statute required both parents to be subjects.
[19] 22 Ch. D. 243.
[20] 13 Geo. 3 C. 21; infra p. 75.
[21] The phrase is Plowden’s.
[22] Nationality, (1890), 7.
[23] Ibid., 13.
[24] Randall, 40 Law Quarterly Review. (1924) 18, 24.
[25] Calvin’s Case, 2 St. Tr. 559, 639.
[26] Cf. Makarov, Allgemeine Lehren des Staatsangehoerigkeitsrechts (1946).
Part I.
[27] Pollock & Maitland, op. cit. vol. I, 91.
[28] Supra, pp. 7-8.
[29] Pollock & Maitland, op. cit., vol. I, 461.
[30] Ibid., vol. I, 461-463.
[31] Bracton, f. 427 b; Pollock & Maitland, op. cit., vol. I, 463; Holdsworth, op. cit., vol. 9, 75.
[32] 22 Cl. D. 243, 245.
[33] ARot. Parl., vol I, 139.
[34] 25 Ed. 3 St. 1.
[35] Plowden, A Disquisition, Concerning the Law of alienage and Naturalization, (Paris, 1818), 41.
[36] Fitz., Tit. Tryal, 29.
[37] Coke said that this clause made new law, Calvin’s Case, 2 St. Tr. 559, 572. Plowden took the sameview ofthe statute as a whole save insofar as concerned the children of the King: A Disquisition etc., 16 Cockburn followed Plowden, op. cit., 8-9; Piggott was more doubtful: Nationality, (1907), Part I, 41. The attitude of the court in De Geer v Stone was perhapsambiguous: see Piggott, op. cit., Part I, 43; MervynJones, op. cit., 70-72. The court in R. v Superintenent of theAlbany St. Police Station, (1915), 3 K.B. 716 took Cockburn’s view.
[38] 42 Edw 3 c. 10. See thereon generally Dunham in 26 New York University Law Review (1951), 41, 48-49.
[39] 2 St. Tr. 559, 572.
[40] Ibid.
[41] Constance de N. had brought aid against Roger de Cobledike (variously Cobledicke), shewing descent as daughter and heir of Gilbert, son of Roger, who had the seisin. Defendant pleaded « qu el est Francois et neint de la ligeance ne de la toy Dengliterre. » Bereford, C. J. disallowed the pica as insufficient. Sutton, counsel for Cobledike, thereupon said: s Sir, nous voilomus averre, que cl ne est ny do la ligeance Dengliterre ne a la foy le roy, et demand jugment s, and this sufficed. This was seized on as governing the issue in Calvin’s Case, as showing that allegiance is due to the King rather than the Kingdom. Coke referred in this connection to the « damnable and damned » doctrine to the contrary upon which the Despencers in the time of Edward II « inferred execrable and detestable consequences »: 2 St. Tr. 559, 623, 620-627. (Just what the counter-thesis implied at that time is unclear, but it seems to have been a favourite accusation to bring against traitors that they inclined to it: Holdsworth, op. cit., vol. 3, 290; Bacon, arguendo, was even more explicit: « There is no trope of speech more familiar than to use the place of addition for the person… So we see earls sign, Salisbury, Northampton, for the Earls of Salisbury or Northampton. So that it is manifest by this indifferent and promiscuous use of both phrases (i.e., « legiance of England » and « legiance of the King of England » in the statute De Natis) the one proper, the other improper, that no man can ground any inference upon these words, without danger of cavillation »: 2 St. Tr. 539, 585.
[42] 2 St. Tr. 559, 588, 641.
[43] See infra, p. 33.
[44] Holdsworth, op. cit., vol. 9, 76.
[45] 2 St. Tr. 559, 640.
[46] Vanel, Histoire de la nationalité fran_aise d’origine, (1945), passim.
[47] Pollock & Maitland, op. cit., vol. 1, 464-467.
[48] Gras, the Early English Customs System, (1918), 66 ff.
[49] The statute 7 Ric. 2 c. 12, confirmed by 1 Hen. 5 c. 5, excluded aliens from ecclesiastical benefices. 5 Hen. 4 c. 9, confirmed by 4 Hen. 5 c. 5, set up a system whereunder alien merchants had to live with English « hosts ». 1 Ric. 3 c. 9 reinforced this system and also excluded aliens from retail trade, from cloth-making, and from taking alien apprentices As to the Tudor legislation soc infra. p. 36.
[50] Cf. Pollock & Maitland, op. cit., vol. I, 465-467.
[51] Gras, op. cit., 14.
[52] See infra, p. 34.
[53] 2 St. Tr. 559, 646.
[54] Cf. the Tudor grants to inhabitants of Calais and the Channel Islands, infra, p. 39.
[55] See infra, p. 35.
[56] Cf. shaw, op. cit., vol. I, XVII-XXI.
[57] 2 St. Tr. 669, 648.
[58] 11, 12 & 13 Jac. I c. 5. See also 10 & 11 Car I c. 6.
[59] 31 Edw. 3 St. 4. See also the Irish statutes 40 Edw. 3 cc. 2, 3, 4, 10, 25 Hen. 6c. 4, 28 Hen 8, cc. 15, 28, 11 Eliz. Sess. I c. 6.
[60] Rot. Parl., vol. I, 138 a; cf. Pollock & Maitland, op. cit., vol. I, 463; Holdsworth, op cit., vol. 9, 77.
[61] See infra, p. 33.
[62] See infra, p. 23.
[63] See Calendar of Charter Rolls,m 1226-57, 407.
[64] See supra, p. 15.
[65] Beardwood, Alien Merchants in England, 1350-1377, (1931), 65.
[66] Page, Letters of Denization and Acts of Naturalization for Aliens in England 1509-1603. Publications of the Hugenot Society of London, vol. VIII, (1893), 11.-
[67] Hansard, Law of Aliens, (1844), 1.
[68] 2 St. Tr. 559, 614.
[69] Pollock & Maitland, op. cit., vol. I, 463.
[70] A distinction must be drawn between the requirement of the doing of homage and the recital of its having been done. Beardwood, op. cit., 68, suggests that the oath taken on admission as a freeman of a city was accepted as the equivalent of homage and that its recital was s the forerunner of the clause in later letters of denization which stated that the alien had done liege homage ». But that clause is not nearly so frequent as one requiring homage to be done: See infra, p. 32.
[71] Bac. Abr. Tit., Alien, B.
[72] Rot. Parl., vol. VI, 204. That this was not the first such delegation is clear from the case of John Diane (1441), infra, p. 28 a Scott who made his peace with Richard, Earl of Salisbury, an earlier Warden of the Scottish marches.
[73] This would presumably have been the case with John de Beaumont, whose son is mentioned in the statute De Natis; see supra, p. 11.
[74] Infra, p. 102.
[75] Infra, p. 87.
[76] Infra., p. 69.
[77] Cf. the letter from the Privy Council to the Lord Mayor, dated 1552, calling on him to make « denizen » Martin Allemayne, quoted by Page, op. cit., II.
[78] Infra, p. 38.
[79] Calvin’s Case, 2 St. Tr. 559.
[80] Quoted by Beardwood, op. cit., 67-68.
[81] See generally Beardwood, op. cit., ch. IV.
[82] Infra, p. 91.
[83] 2 St. Tr. 559, 565, 572, 642.
[84] Calendar of Patent Rolls, 1381-1385, 18, 491.
[85] Calendar of Patent Rolls, 1391-1396, 330. 640, 721.
[86] Calendar of Patent Rolls, 1401-1405, 251.
[87] Rot. Parl., vol. IV, 27, 42, 302.
[88] Shaw, op. cit., vol. I, IV.
[89] Beardwood, op. cit., 65.
[90] Shaw, op. cit. vol. I, IV.
[91] Calendar of Patent Rolls, 1350-1354, 196.
[92] See in especial the case of the year 1240 referred to p. 19-20, supra.
[93] Calendar of Patent Rolls, 1381-1384, 413.
[94] Calendar of Patent Rolls, 1388-1392, 53.
[95] Calendar of Patent Rolls, 1388-1392, 23.
[96] Ibid, 361.
[97] Ibid, 361.
[98] Calendar of Patent Rolls, 1391-1396, 9, 285; Calendar of Patent Rolls, 1396-1399, 84, 176, 463..
[99] Rymer, Foedera, vol. 8, 457.
[100] See supra, p. 14. Cf. also the otherwise inexplicable Joseph Colt’s Case (2. Jac.) — of the child begotten in Calais and born in Flanders and yet held a subject: 2 Dyer 224 b, notel Mervyn Jones, op. cit., 36, n. 4.
[101] Rymer, Foedera, vol. 8, 725.
[102] Calendar of Patent Rolls, 1405-1408, 22, 231.
[103] Calendar of Patent Rolls, 1408-1413, 51, 163, 368, 460.
[104] Calendar of Patent Rolls, 1429-1436, 258.
[105] Calendar of Patent Rolls, 1436-1441, 555.
[106] Calendar of Patent Rolls, 1441-1446, 153, 173.
[107] Calendar of Patent Rolls, 1467-1477, 396, 518.
[108] Calendar of Patent Rolls, 1413-1416, 159.
[109] Calendar of Patent Rolls, 1436-1441, 302, 312.
[110] Calendar of Patent Rolls, 1446-1452, 5.
[111] Calendar of Patent Rolls, 1416-1422, 66.
[112] Calendar of Patent Rolls, 1436-1441, 45. See also Calendar of Patent Rolls, 1429-1436, 604; and see Rymer, Foedera, vol. 10, 650.
[113] Calendar of Patent Rolls, 1467-1477, 510.
[114] Calendar of Patent Rolls, 1476-1485, 74.
[115] Calendar of Patent Rolls, 1401-1405, 204.
[116] Calendar of Patent Rolls, 1467-1477, 396, 518.
[117] Calendar of Patent Rolls, 1436-1441, 95, 478.
[118] Calendar of Patent Rolls, 1413-1416, 134.
[119] Calendar of Patent Rolls, 1413-1416, 134.
[120] Calendar of Patent Rolls, 1476-1485, 552.
[121] Calendar of Patent Rolls, 1408-1413, 26, 155, 362.
[122] Calendar of Patent Rolls, 1441-1446, 34.
[123] Calendar of Patent Rolls, 1476-1485, 275.
[124] Calendar of Patent Rolls, 1408-1413, 40
[125] Calendar of Patent Rolls, 1476-1485, 389.
[126] Calendar of Patent Rolls, 1436-1441, 564.
[127] Calendar of Patent Rolls, 1429-1436, 188.
[128] See supra, p.20.
[129] Calendar of Patent Rolls, 1441-1446, 219. See also Calendar of Patent Rolls, 1446-1450, 37, 79, 217, 222, 232, 240, 261, 303, 505.
[130] Calendar of Patent Rolls, 1408-1413, 186.
[131] Calendar of Patent Rolls, 1436-1441, 384.
[132] Calendar of Patent Rolls, 1441-1436, 36.
[133] Shaw, op. cit., vol. I, XXI. As to the later history of the matter see infra, p. 47.
[134] Calendar of Patent Rolls, 1436-1441, 62, 560.
[135] Calendar of Patent Rolls, 1476-1485, 389.
[136] Calendar of Patent Rolls, 1413-1416, 288.
[137] Calendar of Patent Rolls, 1408-1413, 389.
[138] Calendar of Patent Rolls, 1429-1436, 101.
[139] Ibid, 214
[140] Calendar of Patent Rolls, 1436-1441, 528.
[141] Calendar of Patent Rolls, 1476-1485, 42, 100.
[142] Calendar of Patent Rolls, 1452-1461, 419, 434.
[143] Calendar of Patent Rolls, 1436-1441, 430.
[144] Calendar of Patent Rolls, 1446-1452, 240.
[145] Supra, p. 28.
[146] Supra, p. 28
[147] Ibid.
[148] Rot. Parl., vol. IV, 387. The mother was alien. But there is some evidence that the Norwich community was habitually treated as alien. Cf. the literature on the Hugenot refugees referred to infra, note 196 passim, from which it appears that as late as the early Seventeenth century membership of the foreign congregation was considered to connote alienage despte [sic] native birth.
[149] Calendar of Patent Rolls, 1436-1441, 549.
[150] Calendar of Patent Rolls, 1441-1446, 435.
[151] Calendar of Patent Rolls, 1436-1441, 47.
[152] Ibid, 36-37.
[153] See supra, p. 30.
[154] 2 St. Tr. 559, 616.
[155] Supra, p. 27.
[156] 2 St. Tr. 559, 616.
[157] Eg: to John Baptiste Gentill born in Genoa (1484), Calendar of Patent Rolls, 1476-1485, 507.
[158] See supra, p. 24.
[159] Calendar of Patent Rolls, 1429-1436, 604.
[160] Case of John Stykklthorn, supra, p. 27.
[161] Case of PeterBusseby, a Breton (1406), Calendar of Patent Rolls, 1405-1408, 122.
[162] Co. Lit. 129 a, 129 b.
[163] Cf Mervyn Jones, op. cit., 29 and note.
[164] Holdsworth, History of English Law, vol. 9, 76. Moleyns v. Fiennes (1365) also cited by Holdsworth, loc. cit. is even less convincing.
[165] Rot. Parl., vol. IV, 27.
[166] _Supra,
[167] Rot. Parl., vol. IV 27.
[168] Ibid, vol. III, 656.
[169] Ibid, vol. IV, 242; Cf. Rymer, Foedera, vol. 10, 312.
[170] Shaw, op. cit., vol. I, IV, note.
[171] See note 175 infra.
[172] Rot. Parl, vol. IV, 6.
[173] Ibid, vol. IV, 131.
[174] Ibid, vol. IV, 44.
[175] See p. 16 supra. In addition to 2 Hen. 4 c. 20 the following statutes discriminated against Welshmen: 2 Hen. 4 c. 12 (not to purchase lands or bear office); 4 Hen. 4 c. 26 (English not to marry Welsh women) c. 31 (Welsh not to have the keeping of castles in Wales), c. 22 (nor to bear certain offices), c. 33 (Welsh castles to be kept by English), c. 34 (English married to Welsh women not to bear office in Wales, 25 H. 7 st. 1 (confirming earlier acts).
[176] Rot. Parl., vol. IV, 325.
[177] Ibid, vol. IV, 372.
[178] Ibid, vol. IV, 386.
[179] Ibid, vol. IV, 314.
[180] Ibid, vol. IV, 473.
[181] 11 Hen. 7 c. 14.
[182] 1 Hen. 7 c. 2.
[183] Supra, p. 34.
[184] 1 Hen. 7 c. 10.
[185] 11 Hen. 7 c. 14.
[186] 7 Hen. 7 cé 7. On all this legislation cf. Dunham, l. c. 41, 53-54.
[187] See the table in Page, op. cit., LII, LIII.For a translation of a typical grant by Henry VIII, see ibid., II-III.
[188] 14 & 15 Hen. 8 c. 4. The unpopularity of aliens is indicated by the recurrent xenophobe outbreaks of which the most notorious is the Evil May Day Riot, 1517.
[189] 22 Hen. 8 c. 8
[190] 22 Hen. 8 c. 13.
[191] See the table in Page, op. cit. LII, LIII.
[192] The long and fascinating story of the Hugenot and other Protestant refugees in Englandis well-chronicled. In addition ot the works of Page and Shaw already referred to, see Burn, the History of the French, Walloon, Dutch and other Foreign Protestant Refugees settled in England, (1846); Smiles, The Hugenots, (1868); Smiles, Lives of the Engineers, (1874); Baird, History of the Hugenots and the Revocation of the Edict of Nantes, (1895); Poole, History of the Hugenots of the Dispersion, (1880); Cunningham, Alien Immigrants to England, (1897) and the works of Agnew and Cooper referred to infra passim.
[193] 32 Hen. 8 c. 16.
[194] Page, op. cit., XXIV.
[195] Page, op. cit., XX, sets out the writ.
[196] Rymer, Foedera, vol. 13, 605.
[197] Eg: to Stephen, Biushop of Winchester, in 1553 and to Richie, the Lord Chancellor in 1554. Rymer, Foedera, vol. 15, 202, 366. The case of Martin Allemayne referred to p. 21, note 77 supra may indicate a similar delegation to the Lord Mayor of London. See further infra note 305.
[198] Ciated in Page, op. cit., II.
[199] See the form set out in Page, op. cit., V. Cf. the original licenses to dwell within the realm, supra, p. 24.
[200] See p. 47, infra.
[201] Dyer, f. 304 (a) (51).
[202] 33 Hen. 8 c. 25.
[203] 34 & 35 Hen. 8 Nos. 3, 5, 6. As to the naturalisation of Anne of Cleves, see Rymer, Foedera, vol. 14, 709. This was the earliest Act Hansard could find: op. cit., 14.
[204] 5 & 6 Edw. 7 No. 7, 7 Edw. 6 No. 3. If the mothes [sic] of the children affected by these enactments were aliens other considerations might enter in: see infra p. 60.
[205] 1 Mar. Sess. 2 No. 10.
[206] 4 & 5 P. & M. c. 6
[207] 5 Eliz. No. 20, 8 Eliz. No. 9, 13 Eliz. No. 2, 23 Eliz. No. 3, 43 Eliz. No. 3.
[208] 1 Eliz. No. 6.
[209] 18 Eliz. No. 7.
[210] 18 Eliz. No. 11.
[211] 31 Eliz. No. 2, 35 Eliz. No. 13, 39 Eliz. No. 6.
[212] 35 Eliz. No. 7.
[213] Supra, p. 34.
[214] Shaw, op. cit., vol. I , VI-VII.
[215] Bro. Abr. Denizen, pl. 9. This was relied on by Coke in Calvin’s Case.
[216] See further p. 46, infra.
[217] Thus there exists an unpublished discourse between Serjeants Fairfax and brown, temp. Henry VIII, on the statute: Lincoln’s Inn, Hale MS. 75. This was known to Plowden: See his An Investigation of the Native Rights of British Subjects (1784), 13.
[218] See p. 40, supra.
[219] Lords Journal, II, 34, 38; Commons Journal, 122, 123, 127. Apparently the Bill passed the Commons and was read twice in the Lords; it was seemingly killed by the adjournment.
[220] Agnew, Protestant Exiles from France, vol. I (1880), 12, where a speech agaisnt the bilis reproduced.
[221] Ibid, 14.
[222] See p. 29, supra. Cf. also the question of the liability of native children of aliens to aliens’ customs, infra note 333.
[223] See p. 39 supra and p. 44 infra.
[224] Holdsworth, op. cit., vol. 9, 79-86.
[225] Infra, p. 73.
[226] Supra p. 11.
[227] Lit. Rep. 23.
[228] Seil. 23 Eliz. No. 3, supra p. 41.
[229] Lit. Rep. 23, 28-29.
[230] Cr. Car. 601.
[231] 1 Vent. 413.
[232] Ibid. 419, 424.
[233] Ibid. 422.
[234] Ibid, 422.
[235] Ibid, 427-428. Cf. Holdsworth, op. cit., vo. 9, 88.
[236] Co. Lit., 8a.
[237] See, however, supra, p. 8 and p. 39.
[238] As to the naturalisation of the French in Scotland upon the marriage of Mary Queen of Scots with the Dauphin of France, which was referred to in Calvin’s Case 2 St. Tr. 559, 565, see Erskine, Institutes of the Law of Scotland, vol. 2 (1837 ed.), 972; Gibb, International Private Law in Scotland (1928), 23.
[239] See p. 17 supra.
[240] Shaw, op. cit., vol. 1, XVII.
[241] See p. 39 supra.
[242] The forms, however, differed. Shaw, op. cit., vol. I, XXI.
[243] See p. 17 supra.
[244] 10 Car. 1. c. 4 (Ireland). The enacting clause applied not only to the antenati but also to « all and whatsoever other person or persons of the Scottish Bloud and Nation hereafter, whensoever and wheresoever, to be born, within any your Highness… Realms and Dominions… and the Heires, Issues and Posterities of them, as well begotten, as to be begotten ». But the Preamble indicates that the prime, if not theonly, concern was with antenati. It is interesting to note that the Scots are defined by reference to the jus sanguinis.
[245] Vaugh, 274, 279 (1669).
[246] Shaw, op. cit., vol. I, XXVI-XXVII.
[247] See p. 67, infra.
[248] Cf. Shaw, op. cit., vol. I, XVII.
[249] The (Scottish) Act of Union (Jas. VI Par. 19 c. 1, repealed by 6 Edw. 7 c. 38) contemplated this provision. So also did an unprinted Act: Erskine, op. cit., vol. 2, 972.
[250] E.g. Viscount Falkland, 1627; Erskine, op. cit., vol. 2, 973. No doubt the beneficiaries were antenati.
[251] Car.II, Par. 2, Sess. 1, c. 7.
[252] See p. 68 infra.
[253] Gul. III, Par. 1m, c. 89. See p. 101, infra.
[254] I.e. the (English) Act 3 & 4 Ann. c.. 6 repealed by 4 Ann. c. 3; infra p. 74.
[255] Shaw, op. cit., vol. I, XXXII.
[256] Ibid. As to the later history of naturalisation in the Channel Islands, see the Report of the Interdepartmental Committee on Naturalisation Acts, 1901, (Cmd. 723), 71. See also the British Nationality Act, 1948, 11 & 12 Geo. 6, s. 33.
[257] Shaw, op. cit., vol. I, XXVII.
[258] Dicey and Rait, op. cit., 240.
[259] Vaugh, 274, 279 (1669); supra p. 47.
[260] Infra, p. 71.
[261] Infra p. 71.
[262] 7 Jac. 1, c. 2.
[263] See p. 74 infra.
[264] 15 Car. 2 c. 15.
[265] 29 Car. 2 c. 6.
[266] See p. 42 supra.
[267] See p. 61 supra.
[268] The Act would seem to have been, strictly, unnecessary except on the thesis that the Royalists had no standing at all in England during their voluntary exile. The statute 5 Ric. 2 St. 1 c. 2 prohibited all save great men of the realm, rue and notable merchants, and the King’s soldiers from going out of the realm without licence on pain of forfeiture. And, in the view of Plowden, this cut down the operation of De Natis somewhat: Native Rights etc., 32-33. But this was repealed by 4 Jac. 1 c. 1 and thereafter egress from the country was for more than a century unfettered. See p. 90, infra. This repeal should have rendered obsolete the old learning on the point referred to in Leslie v. Grant 2 Paton 63, 78 (1763) inrra p. 79.
[269] 9 & 10 Gul. 3 c. 20.
[270] See p. 10 supra.
[271] Plowden, A Disquisition etc. 45.
[272] See p. 10 supra and p. 61 infra.
[273] Shaw, op. cit., vol. I, 124-125, setting out the Order.
[274] See Cunningham, op. cit., 227, 231 and the other literature on the Hugenots listed note 192.
[275] E.g. nearly 1200 in 1681-2; Shaw, op. cit., vol. I, 126-214; Cooper, Lists of Foreign Protestants and Aliens Resident in England, 1618-1688, Cadenm Society Publications, No. 82 (O. S.) (1862) setting out the names of the grantees.
[276] Shaw, op. cit., vol. 1, 124-125.
[277] Ibid, IX.
[278] Macaulay, History of England, vol. IV (1855), 486.
[279] See note 461, infra.
[280] Macaulay, op. cit., 485.
[281] Shaw, op. cit., vol. I, 8, note.
[282] E.g. the Earl of Mar (endenized Sept. 13, 1603, naturalised June 27, 1604). Ibid, 1, 2. There are many other examples.
[283] Peter Baron, Henry Hammett is similarly endemnized a second time. Ibid.9.
[284] Martinus Shonerus et al. (1610). Ibid. 15-16.
[285] Supra p. 39.
[286] Report of the Royal Commission for inquiring into the Laws of Naturalization and Allegiance, 1869, 8.
[287] Op. cit., 28.
[288] Report, printed in Hansard, op. cit., 203, 204.
[289] Op. cit., 193, 194.
[290] Op. cit., 195.
[291] See the debate on the D’Oferrel Bill (1694) infra p. 64.
[292] Infra p. 96.
[293] See, as to the statute 11 & 12 Gul. 3 c. 6, supra p. 46.
[294] A reverse argument was later erected on the basis of the passage in Co. Lit. 129 on which the accounts of Hansard and Cockburn are clearly founded, which reads: « For if (a denizen) had issue in England before his denization, that issue is not inheritable to his father, but if his father is naturalised by Parliament, such issue shall inherit ». From this it was sought to be extracted that the foreign-born child of an alien subsequently naturalised became a British subject along with his father even if not expressly mentioned in the naturalisation Act. But this construction ignores that Coke is discussing issue born in England and is dealing not with the acquisition of nationality but with the tracing of descent from an alien: Henriques, Law of Aliens and Naturalization (1906), 118.
[295] Supra, p. 46.
[296] Supra, p. 41. Cf. the earlier question as to what was the effect of a grant of denization (or, for the matter of that of naturalisation) to the named grantee « and his heirs ».
[297] Infra, p. 97.
[298] Shaw, op. cit., vol. I, VI.
[299] Concerning the double grants to these, see p. 67 infra.
[300] Shaw, op. cit., vol. I, 88.
[301] Ibid, 101.
[302] Ibid, 110.
[303] Ibid, 11, 12.
[304] Ibid, 12.
[305] Ibid, 13. Block grants of this sort reappear later. In 1622 John Gasper Wolfen, one of the gentlemen of the Privy Chamber, had a grant for 9 persons; Philip Burlamaqui, an Italian merchant, himself endenized in 1621, and naturalised in 1624, one for 40 persons in 1624; in 1636 Gottschalke Beare one for 20 persons; the same year David Alexander one for 20 persons, in 1637 Jacob Breames, « customer » of Dover, one for fifty persons: Shaw, op. cit., vol. I, 27, 31, 32, 42, 56-64. In 1638 various fishermen « to be employed in the fishing undertaken by the Lord Chamberlain and his associates » were simultaneously endenized; Ibid, 58-9. In 1631 Vernatty and Vermuyden secured the denization of 18 persons in connection with the draining of the Fens: Ibid, 44-5. In 1672 a party of Dutch merchants settling in pursuance of a public invitatio are endenized: Ibid, 108. Shaw would relate the seventeenth century block grants to the sixteenth century deleghations, as to which see supra p. 37.
[306] Ibid, 23.
[307] Ibid, 25.
[308] See Cooper, op. cit. Introduction; Cunningham, op. cit., esp. 157, 174-5; Brewer, Church Briefs (1897); and t he other literature on the Hugenot refugees referred to note 192.
[309] Shaw, op. cit., vol. I, 4.
[310] Ibid, loc. cit.
[311] Ibid, 5.
[312] Ibid, 7.
[313] E.g.: Smith, Ramsden (1607), Ibid, 10; Boyle, Bladwell, et. al. (1610), Ibid, 14, 15; Samborne (1633), Ibid, 48.
[314] Ibid, 15. The grantee subsequently petitioned for the royal assent to the Bill and seems to have received letters of denization instead: Ibid, 40.
[315] Ibid, 34, 29, cf. the case of Powell (naturalisation, 1628), Ibid, 40.
[316] (1627) Lit. Rep. 23; supra p. 44.
[317] Shaw, op. cit., vol. I, 251.
[318] See p. 51, supra.
[319] Shaw, op. cit., vol. I, 257. For further cases just before the Act of Anne and as to the significance of the Act of Settlement, see p. 93, infra.
[320] E.g.: The cases of the Browne, Conwaie and Vere children discussed supra; two more Browne (Brown) children (abortive Bill, 1621, denization, 1622), Shaw, op. cit., vol. I, 27, 31; Prowde (abortive Bill, 1621), Ibid, 28; Cecil (denization, 1624), Ibid, 38 (see also 27, 35); Wentworth (naturalisation 1635), Ibid, 51.
[321] Shaw, op. cit., vol. I, 22.
[322] Ibid, 40.
[323] Ibid, 81. It would seem to follow that the residency preceded the Civil War.
[324] Ibid, 98.
[325] Ibid, 119. The date of her birthis, however, undertain.
[326] Supra, p. 59. Scots grants are occasionally not in common form, eg.: Lord Fivye (1604-5), power to purchase lands specifically stated), Lord Ochiltree (1631), aliens’ customs reserved), Ibid, 6, 46.
[327] Ibid, 32. There is a curious passage in Hale’s Treatise Concerning the Customs concerning aliens’ customs in the 17th century. He says « If an alien come into England and have issue here, he is a natural-born subject. Yet (I know not by what law) such a natural-born subject hath been decreed heretofore to pay aliens’ duties… Possibly it may be from a reason of state, because he is as in the next degree to an alien, and the relation so near, that he is presumed more to favour them than the English ». Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native members of the foreign Protestant congregations as aliens, supra, note 148. The statute 12 & 14 Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade.
[328] E.g: Garrett, a silk weaver and others of the same date, (1621). Ibid, 30, 31; Vernatti and others (1634), Shaw, op. cit., vol. I
[329] Ibid, 80.
[330] Ibid, 114-116, 119, 123.
[331] Ibid, 126, 160, 161.
[332] Ibid, 163, 176.
[333] Ibid, 232, where it is said that this is the first such discoverable clause « so opposed to the whole trend of English shipping protection ». In 1698 a large batch of French refugees were endenized with permission to be masters of ships so long as they continued resident, as they were required to, this concession ot constitute nop precedent: Ibid, 288-293.
[334] Ibid, 232-233.
[335] Ibid, 27, 37, 38, 41.
[336] Eg: Burlamaqui, Ibid, 27, 32; Vere, Ibid, 29, 34l Asteley, Ibid., 38. 40.
[337] Eg: Cecil, Ibid, 27, 38,
[338] See the clauses referred to supra. Cf. also the case of Sir Robert Douglas (abortive Bill, 1620-21) wherein there was caused to be inserted in the Lords’ Jounal « Memorandum — That whereas in the said bill there is a clause to make Sir R. Douglas capable of any office in the Church or Commonwealth, it is advised that all bills of Naturalisation shall from henceforth observe the usual words in the form thereof, and the words to be capable of any office in the Church be omitted »: Shaw, op. cit., vol. I, 27.
[339] Eg: Powell Trumball, Vere, Wentworth (1628): Ibid, 40; Astley (1660): Ibid 79, 92.
[340] Ibid, 64-74.
[341] Ibid, 106.
[342] Ibid, 215. Another notable case is that of Godart de Ginkel, Earl of Athlone (1691), Ibid., 227; see p. 82 infra. Upon the disbandment of the Guards and Grenadiers in 1698-9, numerous officers were naturalised, but they were mostly French Protestants: Ibid, 271-286. Incidentally, a question which has never apparently been rasied is that of the possible importance in regard to nationality of the republican character of William’s Dutch territories.
[343] Ibid, 267. Cf. also that of Sarah Haskinstiles, an infant under 18, naturalised in 1699-1700: Ibid, 293.
[344] Ibid, 297.
[345] See further p. 67, infra.
[346] Shaw, op. cit., vol. I, 37.
[347] Ibid, loc. cit.
[348] Ibid, 44.
[349] Ibid, 53.
[350] Eg: Namias, Rezio and others (1662), Cordozo (1663), Serrano (1664), Ibid, 89, 92, 93, 96.
[351] Eg: De Leere (1663), Ibid, 93.
[352] Mesquito (1664), Mendes (1670), Torres (1671), Ibid, 96, 106, 107.
[353] Eg: Rezio (1662), Foussier (1669), Ibid, 92, 103.
[354] 10 Car. 1 c. 4 (Ireland); see p. 47 supra. As to Scots naturalisations after 1601, see p. 48 supra.
[355] Shaw, op. cit. vol. I, 319.
[356] Ibid, XXIV, where, however, it is ignored that the same persons take both English and Irish grants. If, at the inception of the scheme, the undertakers had taken English grants only and then, later, further settlers had taken Irish grants only, the view would be tenable that the Plantation was first of all directed from England and that, as it got under way, more settlers were imported directly from Scotland. But in fact the undertakers themselves frequently took both English and Irish grants, eg: Michael, Lord Burghley, Sir William Stewart, William Stewart of Dundaff, 1610; Ibid, 17, 320. The Patrik Hannay, who has already been noted as having been made, in England, « a free denizen of England and Ireland » (supra p. 66) (July 22, 1624) may be the same who was endenized in Ireland previously (July 31, 1610), Ibid, 37, 331.
[357] Ibid, 49-52, 65-6. See also 14 & 15 Car. 2 c 3 (Ireland), Shaw, op. cit., vol. I, 337.
[358] Ibid, XXII.
[359] 14 & 15 Car 2 c. 13 (Ireland). See p. 97 infra.
[360] See p. 21 supra.
[361] Shaw, op cit., vol. I, XXIII; See also Ibid, 338-346.
[362] Eg: Robert Roch, « a native of the city of Waterford », Gerald Colley, « native of Dublin » (1667), John Williamson, « native of Conner » (1668), Samel Pressick, « native of Athlone », Ibid, 340, 341, 343.
[363] Eg: William Allerdice, « native of Aberdeene in the Kingdom of Scotland » (1670), Ibid, 344.
[364] 4 W & M c. 2, 7 Ann. c. 14, 4 Geo. 1 c. 9 (Ireland).
[365] Statutes of Ireland (1794 ed.), vol. 2, 200, 206, 209, 210-211 (Dublin and Drogheda); 213, 216 (Limerick); 219, 222 (Galway); 225, 227-8 (Cork and other towns); 231, 232-3 (yet others).
[366] This construction raises of course the question of the possibility of delegation of the power to make denizens, as to which see p. 20 supra.
[367] This construction is confirmed by the cross-headings in the collected edition of the Irish Statutes, which reads « Foreigners etc. to be free during residence: And deemed denizens »; loc. cit.
[368] See Daly, op. cit.; Willard, Naturalization in the American Colonies (1859); Shaw, op. cit., vol. I, XXVII-XXX; Mervyn Jones, op. cit., passim.
[369] Shaw, op. cit., vol. I, XXVIII-XXX.
[370] Chalmers, Political Annals, 239. In 1699 the Colonial Governors were circularised not to assist the Scottish Company engaged in the Darien Scheme in any way: Dicey & Rait, op. cit., 150. This is symptomatic of the treatment of Scots in the Colonies.
[371] But see p. 49 supra.
[372] As to endenization in England expressed to extend to the Colonies, see p. 66 supra.
[373] Supra p. 53, 65.
[374] 17 Q. B. D. 54, 56 (1880).
[375] Infra p. 94.
[376] 17 Q. B. D. 54, 56. Avariety of this theory is that of Piggott, to the effect that the Hanovarians were not subjects but merely non-aliens: op. cit., Part I, 82-84.
[377] Mervyn Jones, op. cit., 65. As to the statutory status of Irish citizens as non-aliens see the British Nationality Act, 1948, 11 & 12 Geo. 6 c. 56, S. 3 (2), and the Ireland Act, 1949, 12 & 13 Geo. 6 c. 41, ss. 2-5.
[378] 7 Co. Rep. 1 a, 2 St. Tr. 559; supra p. 1.
[379] Supra p. 59.
[380] Yet the law officers seem to have felt compelled to affirm this in 1701: Chalmers. Colonial Opinions, 643-644.
[381] Supra p. 48.
[382] Infra p. 101.
[383] 5 Ann. c. 8.
[384] Infra p. 83.
[385] Infra p. 91.
[386] Supra p. 11.
[387] Supra p. 44.
[388] Supra p. 52.
[389] 4 T. R. 300.
[390] 4 Geo. 2 c. 21.
[391] M. S. A. in 44 Law Quarterly Review (1928), 151, 152.
[392] 4 T. R. 300.
[393] 1 Vent. 413; See p. 44 supra.
[394] 4 T. R. 300,309.
[395] As to the similar inconsistencies of the statute De Natis see p. 11 supra.
[396] Vaugh, 274; see p. 47 supra.
[397] Calvin’s Case, 2 St. Tr. 559, 627. See note 41 supra.
[398] Supra, p. 47.
[399] Plowden, A Disquisition etc., 49 f.
[400] Ibid, 51 f. The further relates to the effect of attainder on inheritance and, incidentally, on nationality, concerning which a separate study could be made and has indeed been made: see Plowden, Native Rights, etc.
[401] A Disquisition etc., 54 f.
[402] 4 T. R. 300, 309, see p. 77 supra.
[403] See p. 75 supra.
[404] Calvin’s Case, 2 St. Tr. 559, 585; see p. 6 supra.
[405] 22 Ch., D. 243.
[406] Supra p. 11,
[407] 13 Geo. 3 c. 21
[408] Leslie v Grant 2 Paton 68 (1763).
[409] 2 Paton, 68, 76, 77.
[410] 13 Geo. 3 c. 21. The Act is entitled « An Act to extend the provisions of (the Act of 1730) », which in turn was « An Act to explain a Clause in (the Act of Anne) », « the Act for naturalising Foreign Protestants ».
[411] Plowden, A Disquisition etc., 56-58. A caveat should be entered here that the reliability of this work is possibly open to doubt insofar as concerns matters of detail. The author was a man of great experience, but he seems to have been writing away from his books and his work is in the nature of an opinion given upon a set of papers actually before him.
[412] Ibid, 63.
[413] 22 Ch. D. 243, 248, 249, 253.
[414] See Westlake, Private International Law (1st ed., 1858), 13.
[415] See the preceding note. Westlake was counsel in De Geer v Stone.
[416] De Geer v Stone, 22 Ch. D. 243, 253.
[417] Report, 7.
[418] As to the clogs upon naturalisation imposed by the Act of Settlement and the statute 1 Geo. 1 Sess. 2 c. 4, see infra, p. 96.
[419] Articles of the Capitulation of Montreal, 1759. Art. XLI, printed in Kennedy, Statutes, Treaties and Documents of the Canadian Constitution (1930), 24, 28-9.
[420] Printed in Ibid, 35.
[421] Printed in Ibid, 31, 32.
[422] Chalmers, Opinions of Eminent Lawyers, vol. 2, 364. This opinion was referred to, and dissented from, in Mayor of Lyons v East Indian Co. 1 Moo. P. C. 175, 259, 262, 287.
[423] Cambridge History of the British Empire, vol. IV, Ch. XXXII.
[424] Infra p. 93.
[425] Doe d. Thomas v Acklam 2 B & C 779 (1824) 1; Doe d. stansberry v Arkwright 5 C & P 575 (1836); Doe d. Auchmuty v Mulcaster 5 B & C 771.
[426] See Of the legal effects resulting from the acknowledged independence of the United States (Cahlmers) [sic] and Discussions on the question « whether inhabitants of the United States… are… to be considered as natural-born subjects », by a Barrister (Reeves), Chalmers, Colonial Opinions, 648, 672. This work contains several other opinions in the same subject.
[427] A Disquisition etc., 34-35. As to the effect of the frequent cessions to and from the Crown of the various West Indian islands, see generally Chalmers, Colonial Opinions.
[428] See the statutes 33 Geo. 3 c. 4; 35 Geo. 3 c. 24; 37 Geo. 3 c. 92; 38 Geo. 3 cc. 50, 77; 42 Geo. 3 c. 92. Also 54 Geo. 3 c. 155; 55 Geo. 3 c. 54; as to which see further infra p. 102.
[429] Supra p. 46.
[430] Supra p. 66.
[431] Supra p. 77.
[432] 1 W & M Sess. 2 c. 1 (1688).
[433] 12 & 13 Gul. 3 c. 2 (1700); 112 & 13 Gul. 3 c. 6 (1700).
[434] 12 & 13 Gul. 3 c. 2 s. 2.
[435] See infra p. 97.
[436] 7 Ann. c. 5; supra p. 75.
[437] 4 Geo. 2 c. 21; supra p. 75.
[438] As to the Scots Actof 1695 see supra p. 48 and infra p. 101.
[439] Infra p. 89.
[440] 4 Geo. 1 c. 9 (Ireland), supra p. 69.
[441] 19 & 20 Geo. 3 c. 29 (Ireland).
[442] 23 & 24 Geo. 3 c. 29 (Ireland).
[443] 36 Geo. 3 c. 48 (Ireland); see also infra note 489.
[444] 23 & 24 Geo. 3 c. 29 (Ireland).
[445] This concession was extended to the Moravians and other like sects by 20 Geo. 2 c. 44.
[446] 13 Geo. 2 c. 7; as to the neglect of the requirement to transmit lists see infra p. 99.
[447] 13 Geo. 3 c. 25; see p. 100 infra.
[448] 29 Geo. 2 c. 5.
[449] 2 Geo. 3 c. 25.
[450] 22 Geo. 2 c. 45; 35 Geo. 3 c. 92 (Southern fishery).
[451] Shaw, op. cit., vol. I, XXXI.
[452] 7 Ann. c. 5, ss. 1-2, repealed by 10 Ann. c. 5.
[453] Shaw, Letters of Denization and Acts of Naturalisation for Aliens in England and Ireland 1701-1800. Pubblicaions [sic] of the Hugenot Society of London, vol. XXVII (1923) (hereinafter referred to as Shaw, op. cit., vol. 2), 38-39.
[454] Ibid, 40-41.
[455] There was thus a pamphlet entitled « A Brief and Summary Narrative of the Many Mischiefs and Inconveniences in Former Times as well as of late Years, 1710. Another is entitled A View of the Queen’s and Kingdoms Enemies in the Case of the Poor Palatines (1711) The former contains an interesting survey of the ages and trades of 1278 men with families and 1234 wives landed May-June, 1708. In general it is alleged that the refugees suffered no more than « what is natural to the meaner sort of people of all countries and nations — i.e. poverty ». For these and other pamphlets see the Goldsmiths Collection of the University of London Library and the Kress Library, Harvard University. Some of the documents in these collections are believed by the writer to relate to the debates of the previous century, as to which see supra p. 53.
[456] As to the mysterious episode of the « gentleman with a servant who came over in the packet boat » and distributed printed tickets among the Palatines desirous of emigrating to the American colonies in 1709, whose activities were the subject of Parliamentary enquiry, see Cunningham, op. cit., 252.
[457] 10 Ann. c. 9.
[458] Supra p. 74
[459] 5 Geo. 1 c. 27. See also 23, Geo. 2 c. 13.
[460] 1 Geo. 1, Sess. 2 c. 4.
[461] It must be recorded, however, that in the middle of the centuryt there was a strong movement in favour of a general naturalisation statute again. A feature of this was renewed pamphleteering. See in especial Tucker (Anglo-Nativus) A Letter to a Friend concerning Naturalisations (1753). A second Letter to a Friend. Tucker had in 1747 reprinted Knight’s speech of 1694 (supra p. 53) in A Letter to Sir John Phillips Burt occasioned by a Bill brought into Parliament Naturalising Foreign Protestants. Anonymous pamphlets of the same period are to be found in the Goldsmith and Kress Collections referred to supra note 455. The movement was characterized by a division of opinion on the question of admitting naturalised persons to the Russia Company, as to which see infra p. 98. Another question was that of relieving Jews from the obligation of the sacraments. This obligation was actually removed by 26 Geo. 2 c. 26 which, however, was repealed by 27 Geo. 2 c. 1 because of popular indignation.
[462] 6 Ann. c. 37.
[463] 13 Geo. 2 c. 3.
[464] 20 Geo. 3 c. 20. The Select Commitee of 1847 advised the consolidation and revision of these scattered enactments Report, Hansard, op. cit., 203, 219, but the last of them was not in fact repealed until the Statute Law Revision Act, 1871. An interesting aftermath of them was the special form of application for naturalisation prescribed for aliens serving in British ships under the Naturalisation Act, 1870: See Piggott, op. cit., Part I, 314-316. But that form, which appears to have been discontinued, assumed such service to be the equivalent of residence, despite that the assimilation of ships to territory for the purpose of the jus soli was not effected by statute until the enactment of the British Nationality and Status of Aliens Act, 1914, 4 & 5 Geo. 5 c. 17, €€ 1 (1), (c), 27 though Marshall v Murgatroyd (1870) 6 Q. B. 31, indicates the common law rule to have been the same.
[465] The same is the case with the private Acts of the reign of Anne to make ships taken as prize or foreign-built « free ships ». There were apparently fifteen such Acts. See Salt, Index to the Private Acts of Parliament passed in the Reign of Queen Anne (1863). They are in a sense examples of the naturalisation of inanimate objects, comparable to the mediaeval endenization of alien priories, as to which see p. 22 supra.
[466] 12 & 13 Gul. 3 c. 2.
[467] See the case of Captain John Meoles, 1697, supra p. 61.
[468] E.g.: Immediately before the Act of Anne: Archibald Arthur « of English parents, but born out of the King’s allegiance ». naturalised, 1701, by 13 Gul. 3 No. 38; David Nowett (Nowet, Nowit) Bennett, born at Rochelle of English parents, naturalised, 1702, by 1 Ann. No. 111; Charlotte Boscawen, daughter of Charles Godfrey Esquire, by Arabella his wife, born at Paris naturslised 1701, Shaw, op. cit., vol. 1, 11; Thomas Levingston, Viscount Teviott in the Kingdom of Scotland, son of Sir Thomas Levingston, Knight and Baronet, by Gertret (? Gertrude) his wife, born at Delft, naturalised 1704; Ibid, 39; Henry Bowman, son of Henry Bowman, by Elizabeth his wife, born in Hamburg, naturalised 1705-5, Ibid, 40; Gilbert Affleck, son of John Affleck, by Nealtie his wife, born at Fort St. George, East Indies, naturalised 1704-5; Ibid, 44; Thomas Pearce, son of Thomas Pearce by Rebeccah his wife, born « in the Kinghdom of the Great Mogul », naturalised 1704-5, Ibid, 44; John Donaldson, by Margery his wife, born at Rotterdam, and Jane Jeffreys, daughter of Sir James Jeffreys, by Anne his wife, born in Sweden, naturalised 1705, Ibid, 47; Paul, Francis and Catherine Risley, children of Captain Henry Risley, late of Chitley in the County of Bucks Esquire, deceased, by Elizabeth Duncombe his wife, born in Holland, naturalised 1705-6, Ibid, 48; Katherine Clarke, daughter of Sir William Clarke, of Shabington in the County of Bucks, Baronet, and Dame Katherine his wife, born at Paris, naturalised 1708; Ibid, 61. These cases are inserted here rather than in an earlier section of this paper because they follow the Act of Settlement.
[469] Ibid, 120-121. His children, aged 14 and 12, also foreign-born, were naturalised along with their alien mother in 1722-3; Ibid, 124.
[470] Ibid, 156.
[471] The father was naturalised in 1752; Ibid, 152. It is therefore probable that some, if not all, the five children were born before that event.
[472] Ibid, 184. But illegitimates are usually so described, e. g.: Josiah Child (1763), James Mainwaring (1792), Emily de Visne (1793), Ibid, 164, 197, 209.
[473] See p. 76, supra.
[474] Shaw, op. cit., vol. 2, 168. Two other Wale children were naturalised in 1783; i.e. after the Act of 1772, Ibid, 188.
[475] See p. 80 supra.
[476] I.e. after the Act of 1772 in all cases some the first; Ibid, 172, 178, 191. 196, 204.
[477] Ibid, 27.
[478] Supra, p. 62.
[479] 3 & 4 Ann. c. 6, supra p. 48.
[480] Supra, p. 85.
[481] Shaw, op. cit., vol. 2, 62, 63.
[482] Ibid, 124, 126, 130, 137, 140, 143, 144, 173, 175, 182, 184, 189, 197, 198, 199, 200, 202-203, 208, 211-213.
[483] Supra p. 65.
[484] Supra, p. 50.
[485] Southern Rhodesia: see the Southern Rhodesia Citizenship and British Nationality Act, 1949. (No. 13 of 1949), s. 9. As to the law of the United Kingdom now see the British Nationality Act, 1948 11 &12 Geo. 6 c. 56, ss. 10, 26.
[486] Supra, p. 89.
[487] Supra p. 53.
[488] Supra 86.
[489] Supra p. 85. But it is to be noted that under 36 Geo. 3 c. 48 (Ireland) applicants had to produce a licence of naturalisation from the Chief Governor [*97] in Council before taking the oaths prescribed by 19 & 20 Geo. 3 c. 29 (Ireland). This requirement appears to have applied only to such settlers as were not within the latter Act because they were not traders or the like and does not, therefore, imply a general executive dicretion.
[490] Supra, p. 87.
[491] Infra, p. 103.
[492] Supra, p. 88.
[493] 7 Jac. 1 c. 2, supra, p. 50.
[494] Supra, p. 90.
[495] 14Geo. 3 c. 84.
[496] British Nationality Act, 1948, 11 & 12 Geo. 6 c. 56, s. 20 (4).
[497] As to the extraterritorial effect of naturalisation, see further p. 106 infra.
[498] Shaw, op. cit., vol. 2, 153.
[499] Ibid, 178-179. [note: misnumbered 599 in original]
[500] Ibid, 209.
[501] Hansard, op. cit., 199, note (d).
[502] The Select Committee of 1843 reported that it had been informed « that Bills for naturalising foreigners are never impeded in their progress through Parliament by opposition », Report, printed in Hansard, op. cit., 203, 206.
[503] This seems to follow from Fish v Klein 2 Mer. 432, note (a), where the parties had been unsuccessful in having retrospective words introduced into a Bill, confirming conveyances already made.
[504] See Shaw, op. cit., vol. 2, 235 ff.
[505] Supra, p. 85.
[506] Shaw, op. cit., vol. 2, 235.
[507] Ibid, 237, 126. But there were many Countesses Platen, most of them named Sophie Charlotte: cf. Ibid, 124, 127, 128.
[508] Craw v Ramsey, Vaugh, 274; supra, p. 47.
[509] 13 Geo. 2 c. 7; supra, p. 86.
[510] Contra, Daly, op. cit., 17.
[511] Supra, p. 71.
[512] Supra, p. 87.
[513] In 1715 a New York Act naturalised all foreigners settling after 1683 who had purchased estates and conveyed or died seised of them and all Protestant inhabitants taking the oaths within 9 months: Willard, op. cit., 13.
[514] Cf. the Opinion of the Law Officers of July 21, 1749, printed in Chalmers, Opinions of Eminent Lawyers, vol. 2, 121. But see Ibid, vol. I, 332.
[515] Giuseppi, Naturalisations of Foreign Protestants in the American and West Indian Colonies, Pubblications of the Hugenot Society of London, vol. XXIV (1921) IX-XIS. A Virginian Act of 1738 naturalised the Roanoke Settlers. A Massachusetts Act of 1731 embraced 11 persons: Willard op. cit., 14, 15.
[516] 20 Geo. 2 c. 44; supra note 445.
[517] Daly, op. cit., XVI
[518] Giuseppi, op. cit., XVI.
[519] 13 Geo. 3 c. 25; supra, p. 87.
[520] Giuseppi, op. cit., XVI-XIX.
[521] 33 Vict. c. 14.
[522] 17 Q.B.D. 54 (1886); supra p. 72.
[523] 22 Ch. 243 (1882); supra p. 79.
[524] Gul. III, Par. 1, c. 89; supra p. 48.
[525] Supra, p. 68
[526] Supra, p. 98.
[527] See especially 56 Geo. 3 c. 86, 58 Geo. 3, c. 96 1 Geo. 4 c. 105, 3 Geo. 4., c. 97, 5 Geo. 4 c. 37.
[528] Hansard, Parliamentary Debates, vol. 38, col. 1307
[529] 58 Geo. 3 c. 97.
[530] Vaugh, 74; supra, p. 47,
[531] Plowden, A Disquisition etc., 31-32.
[532] 59 Geo. 3, c. 8; 1 Geo. 4 c. 18; 3 Geo. 4 c. 15.
[533] Supra, p. 88.
[534] 7 & 8 Vict. c. 66.
[535] Report, Hansard, op. cit., 203, 207.
[536] This calculation has been made on thebasis of the index to Local and Personal Acts (1949).
[537] Report, Hansard, op. cit., 203, 207. Daly, op. cit., 29, says there were about 25 denizations annually before 1844.
[538] I.e. the certificate required by the Lords from a petitioner; see p. 98, supra.
[539] Report, Hansard, op. cit., 203, 208.
[540] Supra, p. 97.
[541] 4 & 5 Gul. 4 c. 3 required every foreigner to register himself on arrival at a port but the Select Committee of 1843 said that in 1842, of the numbers landing at London, less than half did so, of the 794 landing at Hull, only one, at Liverpool, none. Report, Hansard, op. cit., 203, 215.
[542] 7 & 8 Vict. c. 66.
[543] Hansard, op. cit., Supplement (1846), 18.
[544] Accordingly the beneficiary of an earlier private Act introduced in 1845 a Bill to relieve him of the disabling clause: Ibid, 19 note (c). The Act of 1867 in favour of Henri Louis Bischoffsheim, conferred on him « all the rights, privileges and capacities whatsoever » of a natural-born subject: Report of the Royal Commissioners for inquiring into the Laws of Naturalisation and Allegiance, 1868, 8.
[545] Ibid, 8.
[546] Ibid, 9-10.
[547] 33 Vict. c. 14, S. 13. See also the British Nationality and Status of Aliens Act, 1914, 4 & 5 Geo. 5 c. 12, S. 25. Presumably the British Nationality Actr, 1948, 11 & 12 Geo. 6 c. 56, leaves it untouched.
[548] Fraser, Control of Aliens in the British Commonwealth of Nations (1940), 55.
[549] Ibid, 8-9.
[550] 11 & 12 Vict. c. 83.
[551] Supra, p. 88. A remarkable feature of the 19th century development was the local naturalisation of aliens in protectorates, which were not, formally, British territory. Cf. the question of nationality law in mandates, as to which see R v Ketter (1940) 1 KB 787.
[552] See Re Cimonian (1915) 23 D.L.R. 363 per Meredith, 25 C. P. at 368.
[553] Report of the Royal Commissioners, etc. 1869, 13-14.
[554] The two questions are of course quite separate and the opinion of the Law Officers referred to is thus to be approved — save insofar as it suggests that the subject has any right to demand protection. Because the questions are wholly separate and yet because there was a tendency to confuse them it is submitted that no support for the view that the Hanoverians were subjects before the accession of Victoria is to be extracted from the fact that in 1851 Lord Palmerston directed British diplomatic officials abroad to continue to extend British protection to Hanoverians in places where there was no Hanoverian mission: Mervyn Jones, op. cit., 63, note 2.
[555] (1920) 1 Ch. 348.
[556] 4 & 5 Geo. 5 c. 12, §§ 2, 8.
[557] Ibid, S. 26.
[558] 11 & 12 Geo. 6 c. 56, €€ 12 (1) (a), 32 (b).
[559] See the Federation of Malaya Order, 1948, S. 1, 108; see also Carnell, in International and Comparative Law Quarterly, 4th Series, (1952) 504.
[560] Supra, p. 13, 43, 60-61.
[561] Supra, p. 74.
[562] Supra, p. 30-31, 40, 41, 51, 60, 91.
[563] Supra, p. 77.
[564] 2 St. Tr. 559, 7 Co. Rep. 1 a; supra, p. 1.
[565] Supra, p. 59.
[566] Supra, p. 53, 65, 72.
[567] Supra, p. 72, 94.
[568] Supra, p. 96-97 103.
[569] Supra, p. 34.
[570] Supra, p. 55.
[571] Ibid. An additional minor conclusion is that there is no evidence that birth abroad of a parent in Crown service imported the status of a subject either at common law or under De Natis unless the father was an ambassador: supra, p. 61.
CLIVE PARRY M.A., LL.B. Fellow and Tutor of Dowling College and Lecturer in the University of Cambridge
