The Order of Adjournment is read. The Proceedings of Tuesday last are read. The following witness is called in and examined (vide Minutes of Evidence): -Sir Robert Younger, K.B.E. Ordered, That the Committee be adjourned to Thursday next at Two o'clock. Ordered, That the Committee be adjourned to Tuesday, the 10th of July next, at Half-past Ten o'clock. The Viscount CHELMSFORD in the Chair. The Order of Adjournment is read. The Proceedings of Thursday, the 28th June last, are read. The Course of Proceedings is again considered. Ordered, That the Committee be adjourned until Tuesday next, at Two o'clock. Die Martis 170 Julii, 1923. PRESENT: Dowson, 3. Dowson, 4. Dowson, 4. The Viscount CHELMSFORD in the Chair. The Order of Adjournment is read. The Proceedings of Tuesday last are read. The following Draft Report is laid before the Committeee by the Lord in the Chair: That the Committee were appointed "to consider in their legal and practical aspects the questions involved in the possession by husband "and wife of the same or of different nationalities; and with due regard thereto, and to the operation of the laws of foreign countries, to report "what, if any, alteration of the British law is desirable." 1. The Committee have examined ten witnesses comprising representatives of the Home Office, Colonial Office, and Foreign Office; Messrs. Bellot, Schuster, and Wyndham Bewes of the Nationality Committee of the International Law Association: the Right Hon. Sir Willoughby Dickinson, and the Right Hon. Lord Justice Younger; and Miss Chrystal Macmillan, who gave evidence on behalf of the National Council of Women of Great Britain and Ireland and of the International Women Suffrage Alliance. 2. It will be convenient first to summarise the law as to the Nationality of Married Women in Great Britain, the Dominions and Colonies, and Foreign Countries. 3. The history of the British law is as follows: By the Common Law of England the nationality of a woman was not affected by her marriage. If a British woman subject married an alien, she remained British. If an alien woman married a British subject, she remained an alien. The position was governed by two principles at Common Law. First, that British nationality could, broadly speaking, only be conferred by birth within the legiance of the Crown. Secondly, that no British subject could be discharged from the obligations and privileges imposed by birth within the legiance the old maxim "Nemo potest exuere patriam.” The first Act to modify the Common Law position was the Naturalisation Act, 1844, 7 & 8 Vict. c. 66. By S. 16 of that Act it was enacted "that any woman married or who shall be married to a natural-born subject or person naturalised shall be deemed and taken to be herself naturalised "and have all the rights and privileges of a natural-born subject." 66 Dowson, 4. It may be noted that prior to this enactment an alien woman was more or less in practice treated as a British subject, if at or after her marriage Appendix A. with a British subject, she became resident in Great Britain, so as to be within the legiance of the Crown, and prior to the Act of 1870, it appears that although at Common Law a woman retained her British nationality after marriage with a foreigner, the practice of the British Government was to consider an Englishwoman married to an alien as an alien, if resident in her husband's country during coverture, but to give her British protection subsequently in any country other than that of her husband. Dowson, 9. The position of a British woman married to an alien was first dealt with by Statute of Naturalisation Act of 1870, 33 Vict., c 15. By Section 10 (1) of that Act it was enacted that a "married woman "shall be deemed to be a subject of the State of which her husband is for "the time being a subject." Dowson, 159-164. It is not easy at this distance of time to lay down with any precision the considerations which actuated the legislature in enacting this important deviation from the Common Law. During the passage of the Bill of 1870 through Parliament, there was little discussion in either House on the alteration of the law as to the nationality of married women. The Bill was introduced in the Lords, and in moving the second reading of the Bill the Lord Chancellor simply referred to the fact that the change was propose in accordance with the recommendation of the Royal Commission of 1869 on the Laws of Naturalisation and Allegiance. No other speaker referred to the subject, nor was it referred to on the Committee or subsequent stages of the Bill. The second reading of the Bill was carried in the House of Commons without discussion. There was a short discussion on this particular subject in Committee. It would appear from that discussion that what was in the mind of Parliament was that our law ought Dowson, to be amended so as to make it conform more nearly with the Private 165-169. International Law and the principles governing nationality laws of other States; secondly, that nationality, as distinct from the right to hold property was not considered at that time of great practical importance; and thirdly, except sentimentally, the legal status of the wife would not be altered by taking the nationality of her husband on marriage. The law remained in this state until the passing of the British Nationality and Status of Aliens Act, 1914, 4 & 5 Geo. 5, c. 17, which was a consolidating and amending Act. It will be convenient in dealing with this, the principal Act, to Dowson, 18. incorporate with it the germane provisions from the Act of 1918 to amend the British Nationality and Status of Aliens Act, 1914. The law then as it stands to-day is as follows: By S. 10 of the Act of 1914 "the wife of a British subject shall be "deemed to be a British subject, and the wife of an alien be deemed to be "an alien." To this general rule, four exceptions were made by the Act of 1914 as amended by the Act of 1918, in favour of the wife who was up to the time of her marriage a British subject. First, under S. 10 of the Act of 1914, the wife of a British subject shall, if the husband ceases to be a British subject while he is married to her, be able to make a declaration that she desires to retain her nationality, and if she makes such a declaration she is deemed to remain a British subject. Secondly, under S. 2 (5) of the Act of 1914, a British woman, on the death of her alien husband or on the dissolution of her marriage with him may obtain a certificate of naturalisation without complying with the ordinary condition as to residence. Thirdly, under S. 10 of the Act of 1914, as amended, "where an alien "is the subject of a state of war with His Majesty, it shall be lawful for "his wife, if she was at birth a British subject, to make a declaration that "she desires to resume British nationality, and thereupon the Secretary of "State, if he is satisfied that it is desirable that she should be permitted "to do so, may grant her a certificate of naturalisation.” Fourthly, under S. 7A of the Act of 1914 as amended, provision is made for the denaturalisation by order of the Secretary of State of the wife and minor children of a naturalised British subject whose certificate is revoked under S. 7. But in the absence of any express words in the Order of Revocation, the wife and minor children (unless within six months after the date of the order the wife makes a declaration of alienage) are unaffected by the revocation of her husband's certificate, and they remain British subjects. 5. The law in the Empire, generally speaking, follows the British law. Risley, 312. In the case of the Dominions, Australia, Canada and Newfoundland have Appendix B. Appendix B, adopted Part II of the British Nationality and Status of Aliens Act, 1914, which includes S. 10; the Union of South Africa follows S. 10 of the Act of 1870. New Zealand, by S. 11 of the New Zealand Aliens Act, 1908, has enacted that " any alien woman married to a natural-born or naturalised "subject of His Majesty shall be deemed to be herself naturalised and shall "have all the rights and privileges of a natural-born subject." (Cf. S. 16 of the Naturalisation Act, 1844.) There is no provision in the Statute Law of New Zealand analogous to S. 10 (1) of the Act of 1870. It would appear therefore that in New Zealand the status of a British-born woman married to an alien, not being governed by any statute, either Imperial or local, is determined by the common law as existing before the English Act of 1870. In the case of Colonies, which have not Dominion status, the British law applies. 6. In making their Report the Committee were instructed to have due regard to the operations of the laws of Foreign Countries. The ComAppendix A. mittee received very full evidence on this point and the position may be stated generally as follows :— Appendix A. Appendix A, In the vast majority of civilised countries the status of a wife depends in all matters on that of her husband; and it consequently follows that the principle that the nationality of a married woman depends on that of her husband has been adopted by all States, with very few exceptions. In the case where a foreign woman marries a national of the Country, States which do not adopt this principle of the wife taking the nationality of her husband either wholly or in part, are the United States, Argentina, and Chile. In the converse case where a woman who is a national of the country marries a foreigner, all States adopt the principle above stated, with the exception of the United States, Argentina, Belgium, Brazil, Chile, and possibly Uruguay and Venezuela. In France there is a qualification to this general principle; if a French woman marries a foreigner she does not lose her own nationality unless, according to the law of the Foreign State concerned, she acquires the nationality of that Foreign State by virtue of her marriage. In Italy, Portugal, Serbia and Sweden, to take only the European States, there is a similar provision. In Belgium the position is as follows: By a law of 1922 a Belgian woman who marries a foreigner of determined nationality loses her Belgian nationality, if her husband's nationality is acquired by her according to the law of his country, but she may retain her Belgian nationality, if she is of Belgian origin, by making a declaration within six months of her marriage, and a Belgian woman who marries a foreigner of no fixed nationality remains Belgian. 7. Before leaving the subject of Foreign Law allusion must be made to the history of the law in the United States. Prior to 1855 the law in the United States was the same as the Common Law in Great Britain, i.e., the nationality of a woman was not affected by her marriage. In that year an enactment provided that any woman who is now or may hereafter be married to a citizen of the United States and who might herself be lawfully naturalised shall be deemed a citizen, but it was not until 1907 that the converse position was established, viz., that an American woman on marrying an alien became an alien through her marriage. It appears, however, from the cases that though the American Appendix A. nationality of an American woman married to an alien survived in theory after marriage, it was, unless she continued to reside in the United States limited in practice to the retention of the right to hold or inherit property in the United States. In 1907 the Act of 2nd March provided that an American woman who.. marries a foreigner shall take the nationality of her husband. From 1907 to 1922 then the law of the United States was the same as that of Great Britain, viz., that a woman on marriage acquired the nationality of her husband. In 1922 an Act, commonly called the "Cable Act," was passed, and became law in September of that year. It enacted that " a woman citizen "of the United States shall not cease to be a citizen by reason of her "marriage unless she makes a formal renunciation of her citizenship "before a Court having jurisdiction over naturalisation of aliens." It further enacted that "any woman who marries a citizen of the Unite "States shall not become a citizen by reason of such marriage; but if "eligible to citizenship she may be naturalised upon full and complete compliance with all the requirements of the Naturalisation Laws," with certain exceptions in favour of speedier naturalisation 8. The issue may now be stated. It lies between two conflicting principles. 1. That the nationality of a woman depends on that of her husband, i.e., in the words of the Act of 1914, "the wife of a British subject shall be "deemed a British subject and the wife of an alien shall be deemed to be an alien." 2. That nationality is independent of marriage, i.e., a woman who is a British subject shall not lose her British nationality by reason solely of her marriage with an alien, and an alien woman shall, on her marriage to a British subject, remain an alien. 9. The advocates of the second principle, i.e., of a change in the law urge that a woman's citizenship should be determined, not by the qualifications of her husband, but by her own. (a) They point to the fact that by the Common Law the nationality of a woman was not affected by her marriage; that the debates in Parliament in 1870 show that at that time, apart from questions of rights of property, nationality was regarded largely as a matter of sentiment. There was then little or no indication of opinion that the high privilege of British nationality should be carefully guarded for reasons wholly apart from property. Their view is that the position is now entirely altered. Nationality has assumed greater importance than it had in 1870. It is now realised that British Nationality is a high privilege not to be lightly lost or to be lightly acquired. 66 Dowson, 3. Hurst and 426. (b) The position of married women as regards their civil rights and status has profoundly altered since 1870. The old Common law doctrine that husband and wife were one has, for all practical purposes, been Hurst and abolished, and the civil rights and qualifications of married women have Mounsey, been largely extended by legislation in this country. By the Married 388-392. Women's Property Act 1882 the right of a married woman to acquire and hold property in her own right has been completely established. By the Franchise Act of 1918 married and single women have been given the Parliamentary franchise under certain conditions. By the Sex Disqualification Removal Act of 1919 it is enacted that a person shall not "be disqualified by sex or marriage from the exercise of any public "function or from being appointed to or holding any civil or judicial "office or post or from entering or assuming or carrying on any civil profession or vocation or from admission to any incorporated Society "(whether incorporated by Royal Charter or otherwise) and a person "shall not be exempted by sex or marriage from the liability to serve on a jury." Again, by the Naturalisation Act of 1914 as amended by the Act of 1918 four qualifications have been introduced, as already pointed out, to the general principle laid down in the Naturalisation Act of 1870 that a British wife on marriage to an alien takes the nationality of her alien husband. 66 |