Macmillan, 1596. Dickinson, 652, 677, 679, 680, 792-796. Appendix D. Macmillan, 1655, 1670, 1679, 1719. Macmillan, 1596. Dickinson, 652. Macmillan, 1728. (c) When the Act of 1870 was passed, no consideration appears to have been paid to the views of the women themselves. There is now a worldwide demand by women for a change in the law of the nationality of married women. Women's Societies in this country and throughout the Empire support the view that, uniformly throughout the Empire, the laws should provide that a woman shall not on marriage with an alien be deprived of her British nationality against her will; but that she shall be given the same choice of nationality as a man. A list of these Societies i given in Appendix B. Finally, the International Women's Suffrage Alliance have in June, 1923, met in Rome and passed (inter alia) a resolution to the following effect: "That this meeting declares that a married woman should be "given the same right as a man to retain or to change her nationality." And the International Council of Women has been working on these lines since 1905. It has been pointed out that a woman is as much attached to her nationality and her allegiance as man is. She considers nationality quite as important a personal right as does a man and it is a very serious thing to deprive her of a privilege of this kind without her specific consent. (d) The British Nationality Act of 1914 was introduced for the purpose of consolidating the British law and applying it uniformly to the whole of the British Empire. It is true it had been prepared in consultation with the Governments of the Dominions, but no Dominion Parliament had considered it, nor had the subject been investigated by the British Parliament or by any Parliamentary Commission. Moreover, the Dominions now are being prevented from improving the position of their married women under the nationality laws by reason of the fact that the Imperial Parliament does not act. (e) The present law imposes hardships on British women who marry aliens and thereby lose their nationality through marriage. They are deprived, if they reside in this country, of many municipal rights and Dowson, 147. privileges, e.g. the franchise, the right to serve in the British Civil Service, the right to Teacher's Superannuation and others. All these could be preserved to them by a change such as that proposed. Dickinson, 677. Appendix A. Appendix A. Bewes, 1551. (f) During the war the whole question assumed a different aspect. The world-wide war brought to light the real significance of nationality, and the recognition of the rights and status of women underwent a great development. The result was that women became very much alive to this problem and international women's societies took it up. In these circles strong conviction grew up that the compulsory change of nationality upon marriage was unjust and unnecessary, and attempts were made in almost every country to alter the law. (g) Since the war there have been important changes in the laws of foreign countries in the direction of recognising the right of married women to choose their own nationality on marriage. In Belgium, by a law of 1922, a Belgian woman has the right to remain Belgian, if within six months after marriage to a foreigner she makes a declaration that such is her desire. In the United States, as above mentioned, the "Cabell Act" was passed in 1922, whereby the legislation of 1855-1907 was repealed, and an American woman marrying a foreigner remains American unless she renounces her American nationality. Moreover, in France since 1889, in Italy since 1912, and in some other countries there has been legislation by which, while retaining the general principle that the national-born wife of an alien acquires his nationality on marriage, the national-born wife does not lose her nationality unless by the law of her husband's country she acquires his nationality. (h) It is contended from the facts stated above that the whole trend Schuster, of opinion is towards a change in the law, and that, if only Great Britain 1052-1054, would follow the example of the United States, other countries would 1129-1137. follow suit. It might be possible then to frame a convention embodying a common principle on the subject of the nationality of married women. Schuster, 10. The advocates of adherence to the present position, i.e., that the nationality of a woman depends on that of her husband advanced the following arguments : 1106-1110. (a) They regarded this last contention with scepticism and said that, Hurst and if such a convention was arrived at, it should precede, rather than follow Mounsey, a change in the law of Great Britain. The Foreign Office representative 506. said that at present they had no evidence of any such tendency, but it is, Bewes, of course, difficult to say. 1383-1393. 1990. (b) The broad point taken against the proposed change was that the Hurst and principle embodied in the present law is the sounder principle, and it Mounsey, was pointed out that Lord Chief Justice Cockburn, in his Memorandum on 336. Nationality, 1869, treated it as if it was not open to argument that it is Younger, right that the nationality of the husband and wife should be the same, if possible. On page 211 of that Memorandum he said: "The identity Younger, "of interest which exists between husband and wife and which leads, in 1741, 1837. "the foreign law, to the general rule-a rule which ought to be adopted "in our own-that the nationality of the wife shall follow that of her "husband must apply as much to a substituted nationality as that of ፡፡ origin." (c) The importance of identity of nationality between husband and wife was pressed upon the Committee with great force in the interests of the family. It was urged that if it was to be the normal rule, where mixed marriages took place, that the nationality of the husband was to be one, and the nationality of the wife was to be another, that that would, in a great many cases, produce domestic unhappiness both for the wife, the man, and children, when but for that artificial distinction such unhappiness might not be expected. It was a mistake to suppose that in 1870, when the change was introduced, it was introduced by people who did not understand it. They understood and adopted the change because it had universally been regarded as right by the laws of the other countries of Europe at that time. (d) Passing on from this basic principle, the representatives of the Foreign Office and Home Office impressed on the Committee the grave inconveniences which would attend such a drastic change in the law, involving a return to the Common law position prior to 1870. They pointed out that the principle at present recognised in English law is in accord with that accepted by nearly all other countries, and consequently avoids conflicts of jurisdiction with the laws of those countries. (e) A change in the British law, such as that proposed, would result in many women having a double nationality, and in others having no nationality at all; to take a concrete illustration:-A British woman marrying a German would retain her British nationality, and under German law would take the nationality of her German husband; conversely, a German woman marrying an Englishman would, under German law, lose her German nationality, and under the proposed British law would not, by her marriage, obtain British nationality. The Foreign Office representative deprecated, therefore, a change in the law which would result in varying nationalities within the same family, and he was apprehensive that such a change would inevitably lead to a demand for a change in regard to the nationality of the children, which at present universally follows the nationality of the father. Hurst and Mounsey, 434, 439. Younger. 1741. Hurst and 100-101. Hurst and Mounsey, 494, 495. Dowson, 106, 107 and 108. Bewes, 1179, 1181. Hurst and Mounsey, 536. Appendix A. Dowson, 76, 77. Younger, 1732. Risley, 314. Hurst and Mounsey, 542. (f) The Foreign Office representative summed up the matter thus: He says it may be concluded from the general consensus of the municipal laws of the majority of countries that the State has found it convenient to recognise the family rather than the individual, as the unit of nationality for the reason that, from the point of view of internal administration and of the difficulties involved in the protection of its subjects resident abroad, it is to the obvious advantage of the State that the resident inhabitants of the country which it governs should be of the nationality of the country. The British (g) A further point was pressed upon the Committee. A large Empire stands in a unique position in regard to the world. number of more or less self-contained communities of a British character have been established in various countries, as for instance, Japan, Italy, The British Spain, Portugal and, in particular, South America. Nationality Act of 1922 was passed to enable the members of these communities to retain their British nationality through succeeding generations by a process of registration and voluntary action on their part showing a desire to retain their nationality. Their demand was that they did not want divided nationalities, but wished to be able to maintain their British character. If the proposed alteration in the law takes place the alien woman who marries a British husband in such communities will not acquire British nationality, and if she remains abroad will not be able to A perqualify by residence in the British Empire for naturalisation. manent division of nationality would thus be introduced in the family. (h) As an example of inconveniences which may arise from divergence of the law on the subject of nationality among the nations, the promulgation of the "Cable Act" in the United States, though only dating from September, 1922, had already caused serious embarrassment to His Majesty's Government in the matter of passport facilities. In general, the operation of the principle embodied in the "Cable Act," in countries with strict immigration regulations, such as the United States, was likely to give rise to serious difficulties both from the point of view of the foreign States whose nationality was originally possessed by the wives of those citizens, and from that of those citizens themselves whose families are in danger of permanent division and separation. (i) It may be that there are disabilities which affect British women who marry aliens, but these should be specifically dealt with by special legislation. The method proposed, viz., a change of the whole principle burning your suggests governing the nationality of married women, house to roast your pig.' (k) Finally the Foreign Office, the Colonial Office and the Home Office representatives urged the great desirability of consulting and acting in concert with the self-governing Dominions in this matter. No substantial amendment of the British law should be made without previous consultation with them and their concurrence. 11. The Committee as a result of this inquiry have come to the conclusion that a case is not made out for a complete reversal of the principle governing the present law. They recognise the growing demand of many women and of organised women's societies for equal rights with men in every respect, but they cannot overlook the fact that by marriage a woman 16 merged in the unit of the family, and that within the family it is at present the husband who is head, who bears its legal responsibilities such as the maintenance of the wife, the children and the home, and whose occupation in most cases is the decisive factor as to where that home is to be established, and who among other things gives his nationality to the children. It is their opinion therefore that in this important sphere of family life the nationality of the husband should be the governing factor and determine the nationality of the wife. If two ride a horse one must Iride in front. They are fortified in this conclusion by the past history of this matter both in Great Britain and in the United States. The Common Law rule that the nationality of a woman was not affected by her marriage prevailed in Great Britain as regards alien women until 1844 and as regards naturalborn women until 1870; and in the United States it prevailed as regards alien women until 1855, and as regards natural-born women until 1907. And yet in both countries it appears to have been more or less the practice to regard native-born women married to aliens as having acquired their husbands' nationality during the period of their joint married life when residing in their husbands' country; and as regards alien women married to nationals it was the practice in Great Britain prior to 1844 to regard them as British subjects. A practice the converse of the legal position cannot have come into being in two countries so wedded to observance of the law as Great Britain and the United States except on the condition of its practical necessity, and the suggestion made in the course of the inquiry, that there were no inconveniences, when the Common Law principle prevailed prior to 1870, is disposed of by the fact that the practice, as distinct from the law on the subject, was in the main that of the present law. The Committee feel that they cannot ignore the lesson to be derived from past experience. The Royal Commission, appointed 21st May, 1868, for inquiring into the Laws of Naturalisation and Allegiance put the following paragraph into their Report signed February 20th, 1869: "There are two classes of persons who by our law are deemed to be natural-born British subjects: "1. Those who are such from the fact of their having been born within the dominion of the British Crown; "2. Those who, though born out of the dominion of the British Crown, are by various general Acts of Parliament declared to be natural-born British subjects. "The allegiance of a natural-born British subject is regarded by the Common Law as indelible. "We are of opinion that this doctrine of the Common Law is neither. reasonable nor convenient. It is at variance with those principles on which the rights and duties of a subject should be deemed to rest; it conflicts with that freedom of action which is now recognised as most conducive to the general good as well as to individual happiness and prosperity; and it is especially inconsistent with the practice of a State which allows to its subjects absolute freedom of emigration. It is inexpedient that British law should maintain in theory, or should by foreign nations be supposed to maintain in practice, any obligations which it cannot enforce and ought not to enforce if it could; and it is unfit that a country should remain subject to claims for protection on the part of persons who, so far as in them lies, have severed their connection with it. "We accordingly submit to Your Majesty the following Recommendations for an amendment of the law in this respect. "1. Any British subject, who, being resident in a foreign country, shall be naturalised therein and shall undertake, according to its laws, the duty of allegiance to the Foreign State as a subject or citizen thereof, should upon such naturalisation cease to be a British subject. "2. The principle of this rule should be applied to a woman who, being a British subject, shall become by marriage with an alien the subject or citizen of a Foreign State." The Commissioners were the Earl of Clarendon, the Rt. Hon. E. Cardwell, the Rt. Hon. Sir Robert J. Phillimore, D.C.L., Judge of High Court of Admiralty, Mr. Baron Bramwell, Sir John Karslake, AttorneyGeneral, Sir Travers Twiss, D.C.L., Advocate-General, Sir Roundell Palmer, W. E. Forster, W. G. Vernon Harcourt, Q.C., and Montague Bernard. The Committee have quoted this passage from the Commission's report to show how it came about that the two principles underlying the Comnion Law on this subject, viz. that British nationality could only be conferred by birth within the legiance of the Crown, and the principle expressed by the old maxim nemo potest exuere patriam ”— principles on which the law that the nationality of a woman was not affected by marriage was based-were stated to be neither reasonable nor convenient, and the result is to be seen in the passing of the Naturalisation Act of 1870. Nor need there be a surprise that in' that Act it was laid down 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." The doctrine of the Common Law had been objected to by the Commission; the trend of thought at that time on the subject is indicated by the quotation from the memorandum of Lord Chief Justice Cockburn given above and it was obviously convenient to bring our law into harmony with that of the rest of the world. For it must be remembered also that throughout the period under discussion a large majority of States held as a principle of law that the status of a wife depended in all matters upon that of her husband and that consequently his nationality was also hers. This is the case to-day with the majority of States, and the considerations which impressed the Commissioners in 1869 are not without their weight to-day. The Committee are therefore of opinion that over and above the abstract soundness of the principle that the nationality of a woman should be that of her husband, it is a principle supported by convenience and expediency. It was pressed upon the Committee that, even though the majority of States were at this moment in accord with the principle of British law, viz. that a woman took the nationality of her husband, the trend of opinion among the nations was in favour of a change to the principle that a woman's nationality should be unaffected by her marriage and that Great Britain along with the United States should give a lead in this direction. The Committee are not convinced by this argument and are of opinion that it will be time enough to consider a change in British law, which they regard as based on the sounder principle, when the majority of the more important States have signified their readiness to adopt the principle of a woman's nationality being unaffected by her marriage. The evidence before them is not, in their opinion, sufficient to indicate any immediate probability of Foreign Nations departing from the governing principle that the wife should adopt the nationality of the husband. Until that time they regard the balance of convenience and expediency as being in favour of adherence to the present law. 14. The Committee have had before them evidence of hardships suffered by English women during the war. They are agreed, however, in the opinion that every war will have its own dangers and difficulties and that these might be the subject of special war legislation when war breaks out. In their view it is the requirements of peace time and not the special necessities of war time which afford the true test in framing legislation. There is one special case, however, where in the opinion of the Committee amendment of the law is required. It sometimes happens that through divergence in the laws of States a woman finds herself through marriage deprived of the nationality of her parent State and not invested with the nationality of the State whose national she has married, e.g. a British woman to-day who marries a citizen of the United States under British law loses her British nationality, but by virtue of the operation of the Cable Act she does not acquire the nationality of the United States. This position of statelessness is undesirable and should be obviated by, an |