« AnteriorContinuar »
to the declaration asked for, it was not necessary to deal with that point, although he did not think that the court was bound to make a declaratory' order that it thought improper merely because the point that the case was not one in which a declaratory order should be made was not taken by way of defence.
His Lordship then reviewed the facts down to the decision of the Divisional Court, at the same time stating that for the purpose of the present case he was going to assume, without deciding it, that the appellant had at all material times ceased to be of German or Prussian nationality. Continuing, his Lordship said that the argument for the appellant was that as the result of the certificate of naturalization obtained in Australia by itself, or else as the result of the certificate coupled with the oath of allegiance taken in order to obtain it, or else, perhaps, as the result of both the certificate and the oath the appellant had ceased to be an alien within Great Britain. What it was said that he had become was not quite clear. It was said that he was no alien and perhaps a liege man of the King. In order to see what the position was it was necessary to examine the legislation.
By section 7 of the Naturalization Act, 1870 (33 Vict., c. 14), it was provided that an alien who fulfilled certain conditions might apply for naturalization and that the Secretary of State, if he were satisfied with the evidence adduced, might give or withhold the certificate as he thought most conducive to the public good, but that the certificate was not to take effect till the oath of allegiance had been taken. The section then went on:
An alien to whom a certificate of naturalization is granted shall in the United Kingdom be entitled to all political and other rights, powers, and privileges, and be subject to all obligations to which a natural-born British subject is entitled or subject in the United Kingdom. ..
In section 16 of the same Act there was this provision :
All laws, statutes, and ordinances which may be duly made by the legisla. ture of any British possession for imparting to any person the privileges, or any of the privileges, of naturalization, to be enjoyed by such person within the limits of such possession, shall within such limits have the authority of law, but shall be subject to be confirmed or disallowed by her Majesty in the same manner, and subject to the same rules in and subject to which her Majesty has power to confirm or disallow any other laws, statutes, or ordinances in that possession.
Therefore the scheme was that the Secretary of State might grant certificates of naturalization which would give the rights, powers, and privileges of a natural-born British subject within the United Kingdom and that a British possession might make laws by which the same rights, powers, and privileges might be conferred within that possession.
In 1900 there was passed the Commonwealth of Australia Constitution Act, 1900 (63 and 64 Vict., c. 12), and in 1903 there was passed in Australia the Naturalization Act, 1903. The latter Act provided by section 5 that a "person resident in the Commonwealth, not being a British subject, and not being an aboriginal native of Asia, Africa, or the islands of the Pacific, excepting New Zealand, who intends to settle in the Commonwealth, and who" possessed certain specified qualifications, "may apply to the Governor-General for a certificate of naturalization.” Section 7 provided that "the Governor-General in Council, if satisfied with the evidence adduced, shall consider the application, and may
in his discretion grant or withhold a certificate of naturalization, as he thinks most conducive to the public good.” Then in section 8 the effect of a certificate of naturalization was stated :
A person to whom a certificate of naturalization is granted shall, in the Commonwealth, be entitled to all political and other rights, powers, and privileges, and be subject to all obligations to which a natural-born British subject is entitled or subject in the Commonwealth.
But it was provided in the latter part of section 7 that in the case of an applicant who had not obtained in the United Kingdom a certificate of naturalization he should first take an oath or affirmation in the form in the schedule to the Constitution. That oath was in the ordinary form of the oath of allegiance. Some doubts had been raised here whether the appellant had taken the oath of allegiance in Australia, but he (his Lordship) would take it that he had. It was upon these facts that the arguments which he (his Lordship) had already mentioned arose.
It was clear that the appellant had not ceased to be an alien here by virtue of the Australian certificate of naturalization; indeed, the argument that he had had not been strongly pressed. It was contrary to the scheme of the Naturalization Acts before that of 1914. In addition, the wording of section 8 of the Act of 1903 was as clear as possible, and the certificate itself only gave "all political and other rights, powers and privileges
to which a natural-born. British subject is entitled or subject in the Commonwealth"; and although it did not add and not elsewhere,” that was clearly the meaning of it.
The greatest stress had been laid, however, on the oath of allegiance which was required in order to obtain the certificate of naturalization. It was said that the appellant, by taking that oath, became the King's liege man wherever he might be, and that he therefore ceased to be an alien not only in Australia but throughout the King's Kingdom and Dominions. In answer to that the Divisional Court had held that the oath of allegiance did not necessarily have that effect. Then Mr. Justice Darling, after commenting on Calvin's Case (7 Co. Rep., la), said ( 1 K. B., at p. 622):
Be that as it may, I am of opinion that a man by virtue of such a certificate of naturalization as was granted here and of the oath of allegiance may become the liege subject of the King in some part of his Dominions, yet not in all; and wherever he is not a subject he is an alien.
Mr. Justice Bray said:
The certificate of naturalization contained the same limitations (that was, the same limitations as section 8 of the Act of 1903), it affected only the rights and obligations in the Commonwealth; yet it is said that inasmuch as this man had taken the oath of allegiance which every person who is naturalized has to take, his status in the United Kingdom was immediately altered, and he became a British subject there in defiance of these restrictions. This is an impossible result. I see no difficulty in a man becoming a British subject in the Commonwealth and not in the United Kingdom if an Act of a State, acting within its powers, so enacts; and that is what, in my opinion, the Commonwealth Act of 1903 did enact.
Mr. Justice A. T. Lawrence said:
Before this limited naturalization he was an alien. Nothing but naturalization under powers conferred by Act of Parliament of the United Kingdom can make him other than an alien in the United Kingdom. If this certificate of naturalization had purported to confer upon him the rights of a British subject within the United Kingdom, it would have been ultra vires. It does not, of course, purport to do anything of the sort. It is limited in its application to rights and duties within the Commonwealth. And the oath of allegiance which was relied upon by Sir Ernest Pollock does not appear to me to extend the limits of the applicant's naturalization. It is quite true that allegiance creates reciprocal rights and duties. Allegiance is not created by the oath; it exists apart from it; and before any oath has been taken, as in the case of the naturalborn subject, so also in the case of the foreigner resident within this country or within the Dominions of the King. The oath of allegiance does but consecrate the allegiance already existing.
These passages contained the gist of the reasoning challenged in this appeal. He (his Lordship) thought them substantially correct. The intention of the Legislature was to confer rights and powers only within the State or Dominion granting the certificate. As a condition of getting those rights the applicant was required to take the oath of allegiance. It was a person who was not a natural-born subject but an alien who was making the application, and the oath of allegiance was taken by a person who was not a natural-born subject but an alien for the purpose of getting the limited rights conferred by the certificate. What was required, therefore, was an oath of allegiance co-extensive with the rights as a condition of which the oath was required.
Reliance was placed on Calvin's case (supra). That case showed that in the case of a natural-born subject the allegiance to a lord who was lord of more than one dominion was not allegiance for the one dominion but an allegiance personal to the lord throughout his dominions. But it also showed that there might be a local allegiance in the case of a person who was not a natural-born subject, and left the court here at liberty to inquire what the intention was in requiring the oath of allegiance. Was the intention here that the appellant should have to take an oath of allegiance throughout the whole of the realm? He (his Lordship) thought that was not the intention of the oath of allegiance, and he did not think that Calvin's case (supra) or the cases there cited prevented them from so deciding. The decision of Mr. Justice Astbury was, therefore, right.
Another point was taken by the Attorney-General that, by the British Nationality and Status of Aliens Act, 1914 (4 and 5 Geo. V., c. 17), the appellant was an alien whatever he might have been before the Act was passed. For this purpose section 27, subsection 1, was relied upon. That defined “certificate of naturalization” as meaning “a certificate of naturalization granted under this Act or under any Act repealed by this or any other Act”; “British subject” as meaning “a person who is a natural-born British subject, or a person to whom a certificate of naturalization has been granted"; and “alien” as meaning “a person who is not a British subject." By virtue of these definitions the appellant did seem to be an alien by virtue of the Act, but it must be remembered that section 27, subsection 1, began with the words, “In this Act, unless the context otherwise requires,” and he (his Lordship) thought that having regard to this qualification he preferred to base his decision on the point already decided without arriving at any conclusion as to the effect in this connection of the Act of 1914. The appeal must be dismissed.