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. That concept was elaborated in Calvin’s Case, the essence of the decision in which was « One King, one allegiance ». 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. 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. Yet in view of the departure from the common law rules as to the descent of the Crown made in the Acts of Settlement the English and Scottish crowns might! have divided again — and in [*4] fact nearly did so. Coke clearly regarded this possibility as « less than a dream of a shadow, or a shadow of a dream », 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 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?. 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, 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, 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, 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 Mareof 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 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 centurybut as was denied by both Parliament and Courts upon the Act of Anne in the century following?
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... . And if he was right, why in De Geer v Stone 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 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 » 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 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.
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