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§ 194. “Naturalization.”

Naturalization is the process, defined by law, by which an alien renounces his original allegiance and is converted into a subject or citizen, entitled to all the rights and privileges of natural-born subjects and citizens in the country in which he domiciled. Formerly the only mode of obtaining naturalization was by a special Act of Parliament passed for each individual seeking to be naturalized; but by the Act 7 and 8 Vict. c. 66, the British Parliament provided a general procedure by which approved aliens could acquire the status of natural-born subjects of the Queen. It was enacted that the Home Secretary might, if he thought fit, grant a certificate of naturalization to any alien applying for it, on receiving such evidence (with regard to his intention to remain in the country, his trade, &c.) as might seem necessary. This certificate conveyed to the alien all the rights and privileges of natural-born British subjects, except the right to become a member of Parliament or a Privy Councillor. This Act was amended and enlarged by the Naturalization Act, 1870, (33 and 34 Vic. c. 14), which declared that an alien resident in the United Kingdom for a term of not less than five years, or who has been in the service of the Crown for not less than five years and intends to reside in the Kingdom or to serve the British Crown, may apply to the Home Secretary for a certificate of naturalization, and on giving evidence of particulars may obtain it. Having obtained this certificate, he is, in the United Kingdom, entitled to all the political and other rights, powers and privileges, and subject to all the obligations of a natural-born British subject. When within the limits of the foreign State of which he was formerly a subject, he is not deemed a British subject, unless he has ceased to be a subject of that State. Section 16 of this Act conferred upon colonial legislatures the power of legislation in respect to the naturalization of aliens, and in the exercise of this power the English naturalization laws, with minor variations, have been generally adopted in the colonies. Letters of naturalization granted by the Government of a colony are, however, operative only within that colony.

“No question of naturalization arises in connection with the emigration of British subjects to British colonies. Settling therein makes no more change in this respect than a removal from York, Glasgow, Swansea, or Dublin, to London, and a new arrival has all the privileges of a fellow-subject. This is very important when compared with the position of a person who contemplates emigration from the United Kingdom to the United States. For example:—It is required that everyone from the British Islands who desires to become an American citizen shall take two oaths, one of intention and one of facts, the latter after five years' residence. The effect of these oaths is pointedly and specifically to renounce allegiance to the Queen, to give up one's British birthright, and, in the event of war, to become an enemy to the land of one's birth. In some of the States—the great State of New York, for instance—a British subject cannot hold real estate without taking such oaths, and cannot in any of the States exercise any of the political rights of American citizens without so doing.” (Canadian Official Hand-book, p. 7; Wheeler, C.C. p. 770.)

NATURALIZATION IN THE UNITED STATES.—“The power to establish a single statute of naturalization for the whole United States is, of course, an exclusive power of the Congress. The States could not do that even though the Congress should not regulate the subject at all. It is, indeed, conceivable that every State might pass exactly the same statute of naturalization, and that the courts of every State might give to the statutes of the respective States exactly the same interpretation, and an uniform rule be attained in this manner. It is not, however, at all likely that they would. Moreover, the State naturalization could not give the full rights and privileges of citizenship. It could only give such as pertain to the individual as a resident of the particular State. The purposes of naturalization, viz., to gain the full rights and privileges of citizenship, could not thus be attained.” (Burgess, Political Sci. II. p. 144.)

The American States individually have still a concurrent authority as to naturalization, but they cannot exercise it so as to contravene the rules established by Congress. The true reason for empowering Congress to establish a uniform rule was to guard against a too narrow—not against a too liberal—mode of granting rights of citizenship. A State cannot exclude citizens who have been adopted by the United States; but it can adopt citizens upon easier terms than those imposed by Congress. (Collet v. Collet, 2 Dall. 294. Baker, Annot. Const. p. 43.)




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“I am not aware of any instance in which the Courts have spoken of the grant of power to the general Government as excluding all State power over the subject, unless they were deciding a case where the power had been exercised by Congress and a State law came in conflict with it. In cases of this kind the power of Congress undoubtedly excludes and displaces that of the State, because whenever there is a collision between them the law of Congress is supreme; and it is in this sense only, in my judgment, that it has been spoken of as exclusive in the opinions of the court to which I have referred.” (Per Taney, C.J., License Cases, 5 How. 585.)

No State can make a foreigner a citizen of the United States. It may put a foreigner upon a footing with its own citizens as to all rights and privileges enjoyed by them within its dominion and under its laws. But that will not make him a citizen of the United States nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State. (Dred Scott v. Sandford, 19 How. 393. Baker, Annot. Const. p. 43.)

A State cannot make a subject of a foreign government a citizen of the United States. Citizenship and the right to vote are neither identical nor inseparable. (Lanz v. Randalls, 4 Dill. 425. Id.)

An alien who has been duly naturalized under the federal law becomes thereby a citizen of the United States, and is a citizen of any State of the Union in which he may reside. (Gassies v. Ballon, 6 Pet. 761. Id.)

Under the power to “prescribe a uniform rule of naturalization,” Congress has no power to regulate or prescribe the capacities of a naturalized citizen. A naturalized citizen is on the footing of a native citizen, except so far as the Constitution itself distinguishes him. (Osborn v. Bank of United States, 9 Wheat. 827.)

CANADIAN CASES ON ALIENS.—“The point decided in Low v. Routledge (1865, L.R. 1 Ch. 42), is that a colonial legislature cannot affect an alien's rights beyond the limits of the colony. There, the plaintiff, an alien, temporarily resident in Montreal, claimed to be entitled to copyright under the Imperial Copyright Act, 5–6 Vic. c. 45, in respect to a book she was publishing in England, and it was unsuccessfully contended that she could not be so entitled because by a Canadian statute an alien coming into Canada for the purpose of publishing a work, as the plaintiff had done, and publishing his book there, would not be entitled to copyright in the work so published, and because an alien coming into Canada could acquire only such rights as were given by the law of Canada. Sir G. J. Turner, L.J., however, delivering the judgment of the Court, says:— “This argument on the part of the defendants is, in truth, founded on a confusion between the rights of an alien as a subject of a colony, and his rights as a subject of the Crown. Every alien coming into a British Colony becomes temporarily a subject of the Crown—bound by, subject to, and entitled to the benefit of the laws which affect all British subjects. He has obligations and rights both within and beyond the colony into which he comes. As to his rights within the colony, he may well be bound by its laws; but as to his rights beyond the colony, he cannot be affected by these laws; for the laws of a colony cannot extend beyond its territorial limits.” (Lefroy, Leg. Pow. in Canada, p. 328.)

“This expression, ‘subject of the colony,’ is significant and important. In an article in 31 Can. L.J. 7, entitled ‘Can a Colonial legislature affix a criminal character to acts committed beyond its territorial limits?’ the writer says that ‘there is no such thing as a Canadian, Australian or Indian subject’; and in an international sense no doubt this is so; but the above dicta, and other authorities … show that in connection with the matters under discussion there is a sense in which it is proper to speak of a man as a subject of a particular colony, and that legal distinctions hinge upon his position as such.” (See the dictum of Boyd, C., in Regina v. Brierly, 14 Ont. Rep. 533; Lefroy, Leg. Pow. in Can., p. 329.)

The Dominion Parliament has exclusive jurisdiction over naturalization and aliens. The Ontario legislature passed an Act, 51 Vic. c. 70, providing that the railway company therein incorporated might become a party to promissory notes and bills of exchange, and how such notes and bills might be made, accepted, or endorsed so as to be binding on the company. Section 12 of the Act provided that aliens as well as British subjects, whether resident in the province or elsewhere, might be shareholders in the company, and that all such shareholders should be entitled to vote on their shares and be eligible as directors. The Canadian Minister of Justice objected to this section as infringing on the exclusive Dominion power to make laws in respect to aliens. In reply, Mr. Mowat, the Provincial Attorney-General, contended that this power was not intended to give and did not give the Dominion Parliament jurisdiction in respect to such matters as that in question, which he submitted related not to naturalization and aliens within the meaning


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of the British North America Act, but to property and civil rights. In support of this view he cited Todd's Parliamentary Government in the Colonies (2nd ed., p. 299).

A British Columbia Act of 1890, incorporating a certain company, forbade under severe penalties the employment of Chinese. The Canadian Minister of Justice objected to this provision, which he said “seems open to question on the ground that it is for the Parliament of Canada to legislate respecting aliens and therefore to prescribe their rights and disabilities.”

In 1890 the legislature of British Columbia passed the Coal Mines Regulation Act, sec. 4 of which provided that no boy under the age of 12 years, no woman or girl, and no Chinaman, should be employed underground in any mine to which the Act applied. The Union Colliery Company of British Columbia employed Chinamen in its mines in defiance of this prohibition. In 1898, Mr. Bryden, a shareholder, brought a suit against the Company in the Supreme Court of the Province, claiming an injunction restraining the Company from employing Chinamen. The Company pleaded that the Act, so far as it prohibited the employment of Chinamen, was void as being ultra vires of the legislature of the Province. Mr. Justice Drake upheld the validity of the Act and granted the injunction. The Full Court of the Province sustained his decision, holding that the Act came within the power of the Province to legislate concerning “property and civil rights.” The Company appealed to the Privy Council. In support of the appeal it was argued that the Parliament of Canada had, under the British North America Act, sec. 91 (25), exclusive authority to legislate concerning “naturalization and aliens.”

The Privy Council, per Lord Watson, held that the Provincial Act was ultra vires, and reversed the decision of the Provincial Courts. Every alien when naturalized in Canada became, ipso facto, a Canadian subject of the Queen, and his children were not aliens requiring to be naturalized, but natural-born Canadians. It could hardly have been intended to give the Dominion Parliament the exclusive right to legislate for the latter class of persons resident in Canada, but section 91 (25) might possibly be construed as conferring that power in the case of naturalized aliens after naturalization. The subject of “naturalization” seemed prima facie to include the power of enacting what should be the consequences of naturalization, or, in other words, what should be the rights and privileges pertaining to residents in Canada after they had been naturalized. It seemed clear that the expression “aliens” in that section referred to, and at least included, all aliens who had not yet been naturalized, and the words “no Chinaman” in the Provincial Act certainly included every adult Chinaman who had not been naturalized. The leading feature of the prohibition in the Provincial Act was that it could have no application except to Chinamen who were aliens or naturalized subjects, and that it established no rule or regulation, except that those aliens or naturalized subjects should not work in underground coal mines within the Province. Their Lordships saw no reason to doubt that, by virtue of section 91 (25), the Legislature of the Dominion was invested with exclusive authority in all matters which directly concerned the rights, privileges, and disabilities of the class of Chinamen who were resident in the Provinces of Canada. They were also of opinion that the whole pith and substance of sec. 4 of the Provincial Act, in so far as objected to by appellant company, consisted in establishing a statutory prohibition which affected aliens or naturalized subjects, and therefore trenched upon the exclusive authority of the Parliament of Canada. (Per Lord Watson, in The Union Colliery Company of British Columbia, Ltd., v. Bryden [1899], App. Ca. 580.)

Under the Constitution of the Commonwealth, sec. 51—xix., the Federal Parliament will be able to prohibit Chinamen, whether naturalized or not, from working in mines, or to permit them to work in mines. In the absence of Federal legislation State laws relating to such subjects would, under sec. 108, prevail.

ALIENS NATURALIZED BY COLONIAL LAWS.—“The continued inconveniences and disabilities to which German emigrants to Canada are exposed by reason of the partial benefits afforded to them by naturalization under the colonial law, which leaves them


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still liable to be claimed as German subjects when travelling abroad or on a return to their native country, induced the Canadian Privy Council to request the Governor-General to write to the Secretary of State for the Colonies and represent this grievance... Accordingly, on April 21, 1873, the Canadian House of Commons passed an address to the Queen, praying that, pursuant to the provisions of the Imperial Naturalization Act of 1870. Her Majesty would be pleased to negotiate naturalization treaties with the German and other foreign States, under which legally naturalized foreigners in Canada may no longer be subject to the disabilities of a divided allegiance, but, on formally renouncing their native allegiance, may become entitled to all the privileges of native-born British subjects. A despatch, in reply to this address, dated September 3, 1873, was transmitted by the Governor-General to the House of Commons, on May 6, 1874. It inclosed a memorandum from Her Majesty's Secretary of State for Foreign Affairs, which stated that the Imperial government were prepared to place aliens naturalized in any British colony, out of Europe, on the same footing, so far as passports and protection in foreign countries are concerned, as aliens naturalized in England under the Act of 1870. But it suggested that a compliance with the request for the negotiation of naturalization treaties would prove less advantageous to aliens naturalized in the colonies than the existing practice—inasmuch as no treaties could be negotiated, except upon the basis of a five years' residence in the colony of the alien who desired to be allowed to change his allegiance. The only way in which the objections urged could be satisfactorily overcome would be by an extension of Imperial naturalization to the colonies, the expediency of which is under the consideration of Her Majesty's government. .. And in March, 1881, the Canadian Commons were informed that negotiations had been entered into between the Imperial and the German governments, with a view, by treaty, to enable German settlers in Canada to obtain complete naturalization.” (Todd's Parl. Gov. in Col. 2nd ed. pp. 296–9.)

“Legislation with regard to aliens is entrusted to the Dominion Parliament. The Manitoba Assembly passed an Act dealing with the holding of land; and declared that the existing disqualifications against aliens debarred them from serving as jurors. The Minister of Justice, 21 February, 1874, following the ruling of the Chief Justice, under the English laws in force in Manitoba, recommended that the Act be sanctioned. (Prov. Leg. 1887.) If the Provinces attempt to effect the naturalization of a person who is a citizen of a foreign State, this would be objected to, as this is one of the subjects left exclusively to the Dominion Parliament, and Acts have been passed accordingly.” (Wheeler, C.C., p. 101.)

51. (xx.) Foreign corporations195, and trading196 or financial corporations197 formed198 within the limits of the Commonwealth199:

HISTORICAL NOTE.—“Status of corporations and joint stock companies in other colonies than that in which they have been constituted” was a subject which might be referred to the Federal Council under the Act of 1885.

In the Bill of 1891 the sub-clause was worded, “The status in the Commonwealth of foreign corporations, and of corporations formed in any State or part of the Commonwealth.” In Committee Mr. Munro and Mr. Bray suggested that there should be power to prescribe a uniform law for the incorporation of all trading corporations; but Sir Samuel Griffith thought it unnecessary. (Conv. Deb. Syd., 1891, pp. 685–6.)

At Adelaide the sub-clause was drawn as follows:—“Foreign corporations and trading corporations formed in any State or part of the Commonwealth.” In Committee the words “or financial” were added. (Conv. Deb., Adel., pp 793–4.) At Melbourne, after the fourth report, the words “within the limits of the Commonwealth” were substituted for the words “in any State or part of the Commonwealth.”

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