1903 REX V. LYNCH. subjects born here was by reason of the place of his birth an English subject, but he was also by French law a French subject by reason of his parentage, while a child of English parents born in France or America owed allegiance to this country as well as to the country of his birth. This double nationality in the event of war breaking out between the two countries created a difficulty. In 1870, at the time of the passing of the Act, there were in the United States of America as many as twenty millions of persons who were either the children of emigrants or who had themselves emigrated there and had become naturalized there. These emigrants were largely of British origin, and consequently British subjects. It was the case of these emigrants that the framers of the Act had mainly in view. In the event, however, of war breaking out between the two countries, there would presumably always be a certain number of emigrants resident in the foreign country and intending to become naturalized there, but who had either omitted to apply for letters of naturalization or who had not at the time of the war breaking out resided there for the necessary period required by the law of the foreign country, and who consequently had not yet acquired a double nationality. But it is to be inferred from the wide general language of the section that the Legislature did not intend to make an exception of this class of emigrants, or to exclude them from the privilege of being empowered to throw off their British allegiance which was conceded to the general body of emigrants as a whole: "Any British subject . . . . may at any time . . . . when in any foreign State . . . . become naturalized in such foreign State." The section does not limit the time when the person may become naturalized or require that the relations with the foreign State should be friendly. To interpret the section as demanded by the prosecution it is necessary to read in the words "may in time of peace," or "when in any foreign State not being at war with this country." That the Act was intended to authorize to some extent a change of nationality during time of war is clear from s. 4, which provides that “Any person who by reason of his having been born within the dominions of Her Majesty is a natural-born subject, but who also at the time of his birth became under the law of any foreign State a subject of such State, and is still such subject, may, if of full age and not under any disability, make a declaration of alienage in manner aforesaid, and from and after the making of such declaration of alienage such person shall cease to be a British subject. Any person who is born out of Her Majesty's dominions of a father being a British subject may, if of full age and not under any disability, make a declaration of alienage in manner aforesaid, and from and after the making of such declaration shall cease to be a British subject." It is obvious that that section was intended to apply as well to a time of war as to one of peace, for it is only in time of war that the importance of the declaration arises. But if a declaration of alienage may be made during a time of war under s. 4, why may not equally letters of naturalization be obtained in time of war under s. 6? Then, if the effect of the statute is to protect the prisoner from the consequences of those overt acts which were committed after the grant of letters of naturalization, it must equally protect him in respect of the first two overt acts specified in the indictment, those of making the declaration and taking the oath upon which the letters were granted, for they were practically contemporaneous with the grant of the letters and were part and parcel of one transaction. [He referred to Cockburn on Nationality.] Sir R. B. Finlay, A.-G., for the Crown. A British subject cannot become naturalized in a foreign country during a state of war between that country and Great Britain. For the very act of obtaining letters of naturalization under those circumstances would be a crime, and s. 6 of the Act of 1870 has no application to an act which would itself be criminal. War has the effect of rendering void all contracts between the citizens of one belligerent State and those of the other belligerent if they were entered into in time of war, and of suspending the means of enforcing the contracts if entered into in time of peace: Hall on International Law, 4th ed. p. 405. Thus in Janson v. Driefontein Consolidated Mines, Limited (1), Lord (1) [1902] A. C. 484, at p. 499. 1903 REX v. LYNCH. 1903 REX v. LYNCH. Davey said that it is a rule well established in our common law "that the King's subjects cannot trade with an alien enemy, that is a person owing allegiance to a Government at war with the King, without the King's licence. Every contract made in violation of this principle is void, and goods which are the subject of such a contract are liable to confiscation." In Esposito v. Bowden (1), where to a declaration charging a breach of a charterparty to load a cargo at a Russian port it was pleaded that after the making of the contract war was declared against Russia, and it became impossible to perform the contract without trading with the enemy, Willes J., delivering the judgment of the Exchequer Chamber, said (2): "The force of a declaration of war is equal to that of an Act of Parliament prohibiting intercourse with the enemy except by the Queen's licence. As an act of State, done by virtue of the prerogative exclusively belonging to the Crown, such a declaration carries with it all the force of law. It is founded upon the jus belli which Lord Coke (Co. Litt. 11 b) states to be a portion of the law of England, adding, 'in republicâ maxime conservanda sunt jura belli.' This force has been attributed to it in, amongst other cases, Furtado v. Rogers (3), where Lord Alvanley C.J. said: 'We are all of opinion that on the principles of the English law it is not competent to any subject to enter into a contract to do anything which may be detrimental to the interests of his own country; and that such a contract is as much prohibited as if it had been expressly forbidden by Act of Parliament. It is admitted that if a man contracts to do a thing which is afterwards prohibited by Act of Parliament he is not bound by his contract. . . . And on the same principle, where hostilities commence between the country of the underwriter and the assured, the former is forbidden to fulfil his contract.'" And if this is the effect of a declaration of war upon a contract of charterparty or marine insurance entered into with the citizen of an enemy State, a fortiori must it be so where the contract is entered into, not with an individual (1) (1857) 7 E. & B. 763. (3) (1802) 3 B. & P. 191, at p. 198; 6 R. R. 752. subject of the enemy State, but with the enemy State itself, and is moreover a contract that the British subject will join the enemy State in making war upon Great Britain. Sect. 6 of the Act of 1870 can only be read as relating to naturalization during a state of peace. This subject has been to some extent considered in America. In Halleck's International Law, vol. i. ch. xii. § 29, it is said: "It seems to be a well-settled principle of international law that during the existence of hostilities (flagrante bello) no subject of a belligerent can transfer his allegiance or acquire a foreign domicil by emigration from his own country so as to protect his trade either against the belligerent claims of his own country or against those of a hostile power. In other words his allegiance continues the same, and his native character is unaffected by his change of residence. This doctrine rests on the ground that to desert one's own country in time of war is an act of criminality, and that if a citizen removed to another State his allegiance is still due to his Sovereign, and he is as much bound to abstain from trade with a public enemy as if he had remained at home; and his property, as that of an enemy, continues to be just as liable to seizure and confiscation by an opposite belligerent. This principle is sanctioned by the most approved writers on international law, and has been expressly affirmed by the Courts of the United States. The doctrine above announced is not in conflict with that contended for by some writers that a citizen has a general right of expatriation in time of peace, and that the assent of his Government to seek change of allegiance and national character is implied in the absence of any prohibition. Nor is it to be construed as denying to a citizen the right to change his allegiance and national character in time of war with the express consent of the State, and with authentic renunciation of pre-existing citizenship. But expatriation in time of war does not result from a change of residence, and the general consent of the State to emigration, which is presumed in time of peace from the absence of any general prohibition. If so it might be appealed to as a mask to cover desertion, or treasonable aid to the public enemy." In Bouvier's Law Dictionary, tit. "Expatriation," it is said: "To be legal, the 1903 REX V. LYNCH. expatriation must be for a purpose which is not unlawful nor in fraud of the duties of the emigrant at home." In Duguet v. Rhinelander (1) Senator Gold, delivering the judgment of the majority of the Court of Errors, observed: "Is an emigration to a neutral State, "which is lawful in relation to the parent State, equally so in reference to the enemy of such State? As a general rule it is so. At the same time, should the citizens of a belligerent power, in concert with the State, or for the purpose of multiplying the warlike resources, or aiding the enterprises of the State, emigrate to and take a stand in a neutral country, in order to mask mercantile projects under a neutral flag, there can be no hesitation in pronouncing such emigration fraudulent, and that an establishment and residence for such unwarrantable purposes cannot acquire to the emigrant a neutral domicil; he would still continue a member of his native family, and as such must participate in and be affected by the fortunes of the parent State." In Duer on Marine Insurance, vol. i. lect. 5, § 35, it is said: "In the United States it appears to be settled law that a native subject cannot acquire a foreign domicil by an emigration from his own country during the existence of hostilities (flagrante bello) so as to protect his trade during the war either against the belligerent claims of his own country or against those of a hostile power. . . . The ground of this doctrine is that there rests upon every subject or citizen a moral obligation not to abandon his country in a time of war without the express sanction of the Government. The personal services and the property of each separate individual are a component part of the national resources on which the Government relies in declaring a war; and to withdraw these when his country may require their aid is a breach of the duty that springs from the necessary relation that each individual bears to the political society of which he is a member." In Talbot v. Janson (2) Paterson J. said: "Now it is an obvious principle that an act of illegality can never be construed into an act of emigration or expatriation. At that rate treason and emigration, or treason and expatriation, would (1) (1802) 2 Joh. Cas. 476, at (2) (1795) 3 Dallas Rep. 133, at |