Naturalizing Modern Political Association: Naturalization and Nationality Law Reform
As the Moravian sailed through the Strait of Belle Isle and up the Saint Lawrence, bound for Quebec, a discussion broke out among a number of the ship’s passengers. “Who are Canadians?” asked one person. For the gathered passengers, most of whom were laying eyes on the shores of Canada for the first time, it was a question with no obvious answer. A “person born in Canada is always considered a Canadian,” one person insisted. This answer made little sense to another, who retorted that “a fellow can’t be a horse because he was born in a stable.” The debate continued as passengers weighed different scenarios and conditions. Is the “red man” a Canadian by virtue of being born in Canada? What about a person born in Canada to parents who are not British? And after all, is a Canadian not also British, since both owe allegiance to the same queen?1
Readers of the New Dominion Monthly, the magazine in which this description of the Moravian’s journey to Canada appeared in 1874, might have pondered these same questions. Though the passengers in this story were not engaged in an outwardly legal debate, the questions they asked paralleled the key problems confronting lawmakers and legal writers in the nineteenth century. Did permanent residence in the territory of the state allow a person to acquire membership in that state? Was this membership strictly a legal status, or did it imply something more “natural”? Far from clarifying these questions, the law presented complexity and confusion, signalled most clearly by the numerous changes and amendments to naturalization and nationality law in Canada and the British Empire in the late nineteenth and early twentieth centuries. Naturalization and nationality law crystallized in legal form the implications of the ongoing development of the meaning of political association and its relationship to Canada and the British Empire.
This chapter is a case study of naturalization and nationality law that examines how the developing meaning of political association reverberated in attempts to define the national status of “aliens” who applied to acquire the status of British subjects in Canada. Naturalization and nationality law reflected the concepts that have been examined throughout this book, and its complicated nature was in many ways owed to the development of new ideas about the nature of modern political association. Was national allegiance an inherited loyalty, or could it be acquired and relinquished voluntarily by individuals through a legal process? Did undertaking the process of naturalization and acquiring the legal status of British subject make a person a “citizen”? Did the nationality conferred by naturalization in Canada represent a “Canadian” or “imperial” status? These questions were the basis of debates about naturalization in Canada and the British Empire, and represent some of the pressing implications and complications of developing concepts of political association.
Naturalization law in Canada changed from a perfunctory procedure for new inhabitants to acquire nationality into a contested process of regulating the admission of “good citizens.” The chronology of this case study extends to 1914, when the enactment of a new naturalization law established an important benchmark in the empire. The first part of this chapter provides a broad assessment of changes to naturalization law in Canada between 1867 and 1914, focusing on how nationality changed from an inherited and permanent “allegiance” of a subject to the sovereign to a more contractual arrangement between the individual and the state. Though nationality became widely understood as the “legal” status of the individual, the subsequent section examines how ideas of racial identity and “good character” challenged this ostensibly legal understanding of nationality, echoing assumptions about “race” raised in previous chapters. The final section of this chapter then turns to the development of “imperial naturalization,” which came into effect in 1914 and had the paradoxical effect of creating an empire-wide system of naturalization while reinforcing the concept of “local citizenship” in Canada.
Naturalization and Citizenship in the British Empire
Published in 1957, Clive Parry’s Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland remains the most comprehensive analysis of the nationality laws of the British Empire.2 The book’s massive size, running at over 1,000 pages, immediately instructs the reader of an important fact about the history of British nationality laws: they were complex, complicated, and constantly changing. This should be no surprise. As the British Empire and its constituent parts evolved in spatial and imagined form, so too did the definition of who could claim membership in it and how such membership was to be qualified.
Much of the content of nationality law may at times seem arcane. Yet, buried in clauses and cases, amid a morass of technicalities that tell of exemptions and exceptions, a disembodied subject lurks – an abstract category of identity that elevates a body and outfits it with the distinguishing status of British subject. Nationality law is the attempt to separate those who hold such a status from those who do not, a delineation of the lines that define membership in a polity. But these lines have not always been clear, and the abstracted British subject described in laws has not always assumed physical presence with ease.
Nationality law is, at its root, the ordering of bodies into those who together constitute a state’s citizenry from those who do not. It transcends the state’s territorial frontiers and instead privileges its human dimensions. In his comparative study of nationality laws of Germany and France, Rogers Brubaker stresses the importance of institutional citizenship as a guideline of the limits of the political community. “The modern state,” he writes, “is not simply a territorial organization but a membership organization,” and therefore formal citizenship is an essential and powerful agent of social closure.3
Nationality laws define the basis of membership in a state. Tied closely is naturalization, or the process by which a non-member can acquire such membership. While formal citizenship, now most commonly codified in citizenship statutes, provides a prescriptive account of who may be classified as a citizen, naturalization laws indicate the permeability of the defined citizenry. While nationality laws embody the state’s effort to answer the question of who is a member of it, the execution of naturalization law often indicates who cannot be a member. Naturalization should be an integral aspect of studies of nationality law or “citizenship” more generally, but as Thomas Janoski notes, it is often overlooked in both theories of citizenship and immigration.4
As this study’s chapter on the concept of citizenship argued, historians of the late nineteenth and early twentieth centuries have tended to focus on criteria of who could immigrate and vote as indices of “belonging” or, more problematically, of “citizenship.” Veronica Strong-Boag has called the 1885 Canadian parliamentary debate on the franchise “the citizenship debates,” explicitly conflating the criteria for voting with citizenship. According to Strong-Boag, the effect of naturalization law was “to distinguish more effectively among those who might claim citizenship,” implying that citizenship was consequent to enfranchisement rather than naturalization alone.5 Although acquiring the right to vote was a common incentive for aliens to complete the process of naturalization, the franchise was more a reflection of, rather than the basis of, claims to “citizenship.”
The franchise and nationality law were, however, closely linked. Like the franchise, nationality laws were above all rooted in assumptions about gender and the capacity of women to identify as members of a political community. Naturalization laws in Canada and the British Empire pertained exclusively to men. The logic of this exclusion, Helen Irving explains in her analysis of gender and naturalization laws, was that “a man owed allegiance to, and therefore belonged to his own country; a woman owed allegiance to her husband, and therefore belonged to her husband’s country.”6 Thus, a woman could not naturalize on her own will, and a married woman’s nationality was contingent on that of her husband. If a woman married a British subject, she acquired that status; similarly, if a natural-born subject married a man of a different nationality, she lost her British subjecthood.7 In Canadian parliamentary debate on naturalization law and its various amendments between 1867 and 1914, the subject of a woman’s capacity to hold nationality independent of her husband came up only once, in 1914. Despite one MP’s suggestion that the “antediluvian” principle be reformed, the suggestion was never seriously contemplated.8 Married women in Canada did not acquire an independent nationality status until 1946.
Immigration laws are certainly related to nationality law, but while immigration law focuses attention on the criteria of entering a given territory, naturalization highlights the entrance into a given political community. Immigrants in the late nineteenth and early twentieth century entered the territory of the Canadian state, but naturalized as subjects of the British Empire, an ambiguously bounded and multiply defined body. The distinction between entering a state’s territory and entering its citizenry is an essential one in the history of naturalization in the British Empire. The lines between immigration and naturalization laws blurred and conflicted; as this chapter describes, the conflict between the legal category of “British subject” contained in nationality law and the restriction of various groups of people, including many holding the status of “British subject,” in immigration laws reflected inconsistencies and conflicts between the two. Nonetheless, immigration regulated the physical admission of persons, whereas naturalization regulated the socio-political admission.
Before aliens could naturalize, they had to move to Canada, passing through the varying requirements for admission into Canadian territory. Immigration laws were therefore the government’s primary means of restricting admission to Canada of what it thought to be “undesirable” residents. Although naturalization laws became gradually more restrictive, they were initially designed to make the process of acquiring admission to British subjecthood as easy as possible. This ease of process was acceptable in part because immigration restrictions, notably the introduction of a Chinese head tax in 1885, provided assurances that those who could not become “desirable” British subjects would not enter Canada.9 It is important then, as Clive Parry notes, that “naturalisation law is to be read with the immigration laws” in order to better understand the means by which various groups of people were explicitly excluded or discouraged from becoming British subjects in Canada.10
Aside from immigration and franchise, other studies of “citizenship” in Canadian history have largely ignored the legal regulation of nationality before the Citizenship Act of 1947. As a result, these studies unquestioningly assume, like Sunera Thobani’s work, that “a distinct Canadian citizenship was to wait until 1947, when the first Citizenship Act was legislated.”11 This presumption reflects the tendency to regard the Canadian state as the fundamental parameter of citizenship, and therefore the legal development of nationality that preceded the Citizenship Act is treated as inchoate anticipations of later laws. Yet, a distinct category of Canadian citizenship did exist before 1947. As a preceding chapter has explored, “citizenship” had become a prominent feature in the vocabulary of civic identity in Canada by the late nineteenth century. Moreover, “citizenship” acquired greater currency in legal and political vocabulary, including specific references to “Canadian citizenship” as a legal status. The 1910 Immigration Act identified a category termed “Canadian citizens,” which defined a citizen as a person born in Canada who had not become an alien, a British subject domiciled in Canada, or a person naturalized in Canada who had not lost that status.12 This category of “citizen” was meant to distinguish permanent inhabitants from those who held temporary domicile in Canada. Finally, as we will see, naturalization laws before 1914 created a separate category of British nationality that in effect formed a de facto Canadian citizenship. This new category arose because British dominions like Canada could not enact legislation that extended beyond their territorial jurisdiction, and so Canadian naturalization legislation was only valid within the geographical limits of Canada.
The tendency to ignore nationality law has also limited historical understandings of the nature of citizenship in the British Empire. As the final section of this chapter will illustrate, citizenship was especially complicated in the British Empire because naturalization laws were varied and inconsistent across it. Owing to its focus on intellectual biographies, Daniel Gorman’s study of imperial citizenship largely overlooks naturalization law, even though it formed an important basis for the citizenship that his subjects described.13 While Gorman has touched on naturalization law in the empire elsewhere, it warrants being integrated more substantively in writings about imperialism in the late nineteenth and early twentieth centuries, especially since it touched closely the question of the relationship between the British Empire as a jurisdiction and the British world as a community of citizens.14
Historians who have discussed naturalization more specifically in Canadian history have tended to glide over the intricacies of the law or its wider development. For example, Barry Ferguson has directed attention to parliamentary expressions of citizenship before the Citizenship Act. Yet his chronology, limited to the period between 1900 and 1947, cuts off pivotal changes in naturalization law from the later decades of the nineteenth century, which illuminate the full degree of change in considerations of naturalization in Canada. Nevertheless, Ferguson makes the crucial point that “what most academic authorities would call citizenship, Canadian politicians spoke of as naturalization,” which he concludes from the House of Commons debate on the Naturalization Act, 1914.15 In their earlier essay on Canadian “political citizenship,” R. Kenneth Carty and W. Peter Ward describe a linear trajectory in the development of naturalization in Canada, noting that “since 1867, the concept of citizen implicit in Canadian naturalization requirements has shifted from imperial to national foundations, from cultural preferment to universalism, and from familial to individual bases.”16 A closer examination reveals that the development of naturalization law was a much more incoherent process than they describe, and it was certainly not always true that “the requirements for naturalization were few and easily met, and the naturalized suffered no special disadvantage vis-a-vis the imperially born.”17 Naturalization in Canada was often complicated and was haltingly developed; beyond normative prescriptions of what naturalization should entail, the process of implementing it was often subject to confusion, complaint, and caprice.
Evolving Notions of Allegiance and Naturalization to 1881
Although British nationality law can be traced back as far as the late thirteenth century, its place in common law was entrenched with Calvin’s Case in 1608. The most significant element of Calvin’s Case was the affirmation of the principle of indelible allegiance, also referred to as nemo potest exuere patriam, meaning that a subject could never individually renounce or abjure allegiance to the crown, even if that subject were to move out of the crown’s dominion. Allegiance, according to this model, was not contingent on place but, rather, signified an intrinsic relationship between subject and sovereign.18 To be a British subject meant having a natural allegiance to the monarch, no matter where in the world that subject resided.
Despite the shared membership status of “British subject,” naturalization laws were devolved in the British Empire, with each colony enacting separate legislation regulating the criteria and process by which aliens could acquire British nationality. The first naturalization act enacted in British North America was the Upper Canadian Act, 9. Geo. 4., c. 21.19 Each of the various colonies that would eventually compose Canada maintained its own naturalization legislation, each with varying requirements for allowing aliens to acquire British nationality. After Confederation, the first act passed regulating naturalization in the new political jurisdiction was the Naturalization Act, 1868. The purpose of the act was strictly a practical measure to provide common naturalization provisions for the four provinces. The act provided an uncomplicated process of naturalization, requiring the applicant to have lived in Canada for three years and take an oath of allegiance.
Like the colonial legislation passed before it, the Naturalization Act, 1868 maintained the seventeenth-century principle of indelible allegiance and therefore provided no means for current British subjects to expatriate or revoke their nationality. This principle had become increasingly difficult to maintain, especially given the high volume of migration, particularly the flow of people over the boundary of Canada and the United States. In fact, despite being a foundation of British nationality law, the principle of indelible allegiance had fallen largely in desuetude. It was difficult to enforce the nationality, notably obligations such as military service or loyalty to the crown, of persons who had selected to take up permanent residence beyond the limits of the British Empire. Attempts to enforce the policy were of little effect, and only exacerbated diplomatic tensions. The example of Britain’s policy of boarding American naval vessels and impressing into British naval service erstwhile subjects who had moved to the United States demonstrated the infeasibility of enforcing the law; not only did the policy of impressment not work, it stoked tensions between Britain and the United States, which contributed to war between the two countries in 1812.20
Even in cases of litigation, the principle of indelible allegiance was difficult to enforce. In an 1866 Upper Canadian case (R. v. McMahon), a person charged as an Irish Fenian raider from the United States was, despite being a natural-born British subject, charged as an American citizen. The defence counsel argued that the charges were flawed because the accused was a British subject and therefore could not be charged with a felony in place of treason. Chief Justice William Henry Draper asserted in his ruling that, although a subject could technically never revoke allegiance to the crown, the crown could nevertheless charge him with a felony instead of treason. Draper noted that, if the charges were reversed and a natural-born British subject who naturalized as an American citizen were charged with treason against the queen,
then his zealous counsel might have objected that the more liberal views of modern times seem to recognize a right in every freeman to elect not merely his place of domicile, but his Sovereign or Government, and with his person transfer his allegiance also, and that the Court should not fetter such right with the antiquated doctrine of allegiance by birth being indestructible by the act of the subject.21
Draper’s speculation provides a telling indication of the extent to which the basis of British nationality law had become antiquated and untenable in “modern times.” The idea of modernity and, more particularly, the belief that it introduced a model of political association based on contractual allegiance between the citizen and the state found in Draper’s decision clearly reflects the wider debates examined in this study.
Draper’s assessment echoed the sentiment of British lawmakers, who by the 1860s had started to consider reforming British laws of allegiance. The Royal Commission on the Laws of Naturalization and Allegiance published its report in 1869, its chief finding being that the principle of indelible allegiance “is neither reasonable nor convenient ... [as] it conflicts with that freedom of action which is now recognized as the most conducive to the general good as well as to individual happiness and prosperity.”22 Like Draper, the commissioners found it difficult to justify the implementation of such a doctrine when it had become increasingly common for people to move away from the land of their birth and acquire the nationality of a foreign state. Moreover, the commissioners found that such an action was not an abandonment of a sacred obligation, as nationality had once been conceived but, rather, was an important aspect of a free and prosperous life. As Draper noted, such “liberal views” focused on the capacity and freedom of the individual to choose where to live and what nationality to hold.
The outcome of the commissioner’s recommendation to abrogate the centuries-old doctrine of indelible allegiance was the imperial Naturalization Act of 1870, which put into law the ability of British subjects to expatriate. This act was widely regarded as a necessary step to bring law into accord with prevailing practices and beliefs. The Toronto Globe applauded the formal renunciation of “an antiquated and unreasonable claim which [Britain] has neither the power nor the inclination to enforce.”23 Similarly, an editorial in the Canada Law Journal agreed with the abolition of the “time honoured maxim” of indelible allegiance: “Its retention has, in fact, become impossible, and we have only endured its existence of late years by a studious disregard of all its practical effects.”24 The apparent consensus recognized the need to update British nationality laws and abolish indelible allegiance.
Crucially, however, the imperial statute, like other naturalization laws passed before it, was only applicable to the naturalization of aliens within the United Kingdom. Consequently, each colony needed to pass its own legislation in order to abolish the doctrine of indelible allegiance within its boundaries. In Canada, this task was accomplished through the Naturalization Act, 1881, which was modelled heavily on the imperial act of 1870. In introducing the legislation in the Senate, Attorney General Sir Alexander Campbell noted: “We consider it a matter of very great moment to follow the laws of England as far as we can with reference to a subject which we require, in order to give effectual force to our legislation, the co-operation and aegis of the Government of the Empire.”25 As Campbell’s words indicate, the perception of Canadian lawmakers was that the changes to naturalization law were necessary revisions to bring Canadian law in congruence with imperial law. As a result, the debate in the Canadian parliament was limited, and the bill passed more as a matter of routine than great urgency, which was also reflected in the fact that Canadian legislators did not create the new naturalization act until eleven years after Britain had changed its law. That the new legislation substantially altered a foundation of nationality law – the permanence of nationality – was largely passed over, its alteration a foregone conclusion and an affirmation of contemporary practice.
Just as the law received little vigorous debate in Parliament, it garnered similar disinterest in the daily press beyond formal notices of its passage. In fact, it seemed that so little attention was paid to the legislation that even some of those who were charged with enforcing it paid it small notice. In Manitoba, for example, the law was apparently misread, and it was enforced two years before its date of effect.26 In addition, a flurry of notes arrived in Ottawa from local justices of the peace and attorneys asking whether the law was even in effect.27
Yet, for certain legal specialists in Canada, the change to nationality law was a matter of great interest. Chief among them was Alfred Howell, who insisted that the 1881 act marked a “complete revolution ... in the long established principles of English law as introduced and understood in this country.” For this reason, Howell implored, the law “deserves more than passing notice.”28 Howell was right: nationality law in Canada would have significant implications on the jurisdiction of laws in the British Empire, the national status of persons naturalized as British subjects in Canada, and the evolving understandings of the meaning of nationality and citizenship in Canadian law and society, though this aspect would only become more widely noticed around the turn of the twentieth century as patterns of immigration shifted.
Changes to nationality law in Canada and the British Empire reflected what Justice Draper had called the “liberal views of modern times.” Like Draper, others described the new law, and specifically its recognition of a subject’s right to renounce allegiance, as a thoroughly “modern” transition. The lead article in the inaugural issue of the Canadian Law Times was devoted to the topic of the law of allegiance in Canada. Its author, Thomas Hodgins, described the “modern doctrine” of allegiance as one that “arises from membership of the society, or body politic, which constitutes the nation.” Hodgins contrasted this modern idea with the “old doctrine of allegiance,” which “was based upon the assumption that allegiance was a debt of gratitude, and was a perpetual obligation which could not be forfeited, cancelled or altered.” And while the old doctrine commanded loyalty from the subject to the monarch, the “modern” doctrine held that “those who comprise the body politic are bound to be loyal and true to the public authority which executes the civil government of the nation.”29
What Hodgins described as the “old doctrine” of allegiance was a historical aspect of monarchical societies. The idea of “subjecthood” was predicated on the individual’s relationship to the monarch, and not to the state or body politic. Alfred Howell cited English jurist William Blackstone’s definition of “allegiance” in the monarchical context as “the tie or ligamen which binds the subject to the king in return for that protection which the king affords to the subject.” This definition was in contrast to what Howell called the American version of allegiance, which had been described by the United States Supreme Court in an 1873 decision as “the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign, in return for the protection he receives.”30 Hodgins’s definition of “modern allegiance” parallels what Howell described as American allegiance, or the loyalty of the individual to the government.
The “modernization” of allegiance would pose important and, for some, troubling questions about the nature of subjecthood in Canada and its meaning in the wider British Empire. Recognizing allegiance as loyalty to the “body politic,” as Hodgins insisted, called into question whether that body was Canada or the British Empire. Additionally, allowing subjects to renounce loyalty to the crown and assume a different nationality raised questions about the meaning of natural law and the value of obligations believed to be invested in a person through birth and membership in a given community. It is clear here how anxieties about “modern” loyalty expressed by Alpheus Todd and others were reflected in responses to these legal changes. Notably, Todd’s exchange with William Dawson LeSueur on the nature of loyalty discussed in the previous chapter was published in 1881, the same year that the Canadian parliament updated naturalization law to eliminate the principle of indelible allegiance, though neither author expressly mentioned the legal changes.
But the implications of the legal change were severe, according to writer Frank Munro, who described the new naturalization law as an “immorality.” In his anti-annexationist pamphlet, Munro argued that the indelibility of allegiance was inviolable because nationality was a God-given status and therefore could not be artificially changed by individual will. It was clearly a personal issue for Munro, who had moved from Canada to Boston, Massachusetts. Annexation and naturalization were closely related topics for him, as both threatened the natural order of nationality. “I must,” he insisted, “deny the right of men who have, through motives of expediency, or through any motives, gone out of the national life of their country; who have solemnly renounced all fidelity to it; who teach by example that nationality is but an article of merchandise.”31 Believing that nationality was “the outcome of a process of nature,” Munro was especially critical of expatriation or, as he termed it, “denaturalization,” fearing that it was a “dangerous and unjustifiable admission of the vulnerability of character.”32 Instead, he proposed an alternative to naturalization, where applicants would be required to swear a civic oath, but it would “not require of him the unnatural proceeding of foreswearing his native country.”33
Although the regulation of British nationality had become increasingly bureaucratized and subject to legal regulations at both imperial and dominion levels, the belief in a moral basis of nationality, like that which Munro articulated, remained a part of understandings of citizenship in the empire. As we have seen, ideas of Anglo-imperial citizenship were imbued with understandings of inherited and racialized association. Since its proponents generally regarded citizenship as representing more than a narrow legal or political status, changes to naturalization law did not necessarily disrupt visions of imperial citizenship. For example, Goldwin Smith, who believed that citizenship was not necessarily tied to the sovereign territorial state, argued that naturalization ought not to be required for people of the “English race” living in different political jurisdictions. He wrote: “I attach little value to the mere political bond. I should not mourn if nothing were left of it but mutual citizenship without necessity of naturalisation ... [I]t seems to me the most valuable as well as the most likely to endure.”34 As discussed in chapter three, prominent British and American writers shared this view, including Albert Venn Dicey in his call for a “common citizenship for the English race.”35 According to these views, naturalization was superfluous between English-speaking people, who already shared a common citizenship irrespective of different political structures.
This vision of an organic citizenship rested uncomfortably in an increasingly internationalized and codified framework of nationality law. By the late nineteenth century, the publication of legal treatises on “international law” had expanded greatly.36 A common feature of such works was the recognition of nationality law as an important aspect of state sovereignty and a critical element of international diplomatic relations. Books such as Sir Alexander Cockburn’s Nationality, John Cutler’s The Law of Naturalization, and Sir Francis Piggott’s Nationality provided detailed examinations of nationality laws and attempted to provide clarity to terms like “nation,” “citizen,” and “subject,” doing so, in the words of Piggott, on a “scientific basis.”37 The legal interest in nationality law reflected the general reformation of citizenship in Europe and North America in the late nineteenth century along increasingly “liberal” norms, signalled by loosening naturalization and migration regulations. Yet, as numerous scholars have noted, this apparent reformation nevertheless guarded ascriptive characteristics of citizenship, entrenching in law more precise and exclusive definitions of what a citizen was.38 This situation was true in Canada in the period between 1881 and 1914, when the laws governing nationality and naturalization garnered greater attention and became increasingly restrictive.
Contesting Legal Nationality, 1881 to 1914
Although the passage in Canada of the Naturalization Act, 1881 was a relatively understated affair, it set the stage for controversies about naturalization over the following decades. Even if the transition of nationality to a more liberal model seemed to have wide agreement, the period between 1881 and 1914 tested the limits of legal nationality as lawmakers and judicial officers grappled with its consequences. Although in normative terms nationality law governed a legal status that defined the relationship of an individual to a state, its implementation was guided by racialized and cultural assumptions about groups of people that increasingly restricted its admissibility and shaped it with stronger regulations.
In the debate in the House of Commons over the Naturalization Act, 1881, Arthur Bunster, Liberal MP for Vancouver, asked whether the bill applied to the Chinese. In response, James McDonald, minister of justice and the bill’s sponsor in the House, asserted that “the bill proposes to do the heathen Chinee [sic] the honor of treating him like any other foreigner who comes into the country and desires to be a good subject of Queen Victoria.”39 Naturalization laws in Canada did not contain any provisions limiting the acquisition of British nationality to select groups of people. As McDonald clarified, naturalization would be equally available to individuals wishing to become a subject and fulfilling the requirements of residency. This view reflected the idea that national allegiance was not an intractable inheritance, but a political relationship created and defined by law.
Despite this abstract assessment of nationality as a legal status, Bunster’s objections indicate that, for some, British nationality remained imbued with a racial significance. Yet, while some politicians indicated their desire to ensure that Canadian naturalization laws could easily accommodate certain non-British groups, notably Germans, the law would become increasingly restricted for groups of Asian descent. As the first chapter of this study illustrated, even as many began to regard the “nation” as a political association of citizens, ideas of “race” continued to restrict the latitudes of common belonging. This thinking indicates that the racial basis of subjecthood in Canada was not strictly “British,” but was increasingly cast in terms of “whiteness,” reflecting what Marilyn Lake and Henry Reynolds call the “global colour line.” They argue that “white” countries, including the United States, Britain, and the British dominions, enforced greater restrictions on the admission and rights of non-white people at the turn of the century, connecting themselves in a transnational race community dichotomized along lines of whiteness.40
The process of naturalization in Canada throughout the late nineteenth century reflected McDonald’s belief that a person demonstrating a fulfilment of the legal requirements, regardless of background, could become a British subject. Naturalization requirements up to the beginning of the twentieth century complemented loose immigration criteria, or what Robert Craig Brown has described as a period of “free entry,” where one and a half million people immigrated to Canada with little restriction.41 Courts were permitted very little latitude in assessing naturalization claims; instead, affidavits of residency and good character were invariably accepted. An 1871 court reference, Re Webster et al., determined that a judge could not go beyond the certificates of naturalization and inquire about the validity of an applicant’s fulfilment of the criteria of naturalization.42 As Clive Parry notes, this ruling made naturalization in Canada little more than a “perfunctory process.”43
Unlike in the United Kingdom, the process of naturalization was intentionally simple in nineteenth-century Canada. Canadian lawmakers had purposely maintained a simple process for naturalization, with the intention that large numbers of immigrants would settle in Canada and become British subjects. The issue of how applicants should file their naturalization papers was discussed at various points in Parliament, including during the legislative debate on the Naturalization Act, 1881. Liberal parliamentarian David Mills echoed the views of most other legislators when he insisted that “you must adopt some more convenient system, or a large number will not be naturalized at all according to law.”44
Convincing immigrants to complete the process of naturalization was evidently important for the Canadian government. In 1877, Governor General Lord Dufferin travelled to Manitoba, where he visited communities that had recently been established by immigrants from across Europe. In a speech to settlers in a Mennonite community, Lord Dufferin extolled the advantages of acquiring British nationality, telling them through a German interpreter:
We desire to share with you on equal terms our constitutional liberties, our municipal privileges, and our domestic freedom; we invite you to assist us in choosing the members of our Parliament, in shaping our laws, and in moulding our future destinies. There is no right or function which we exercise as free citizens in which we do not desire you to participate, and with this civil freedom we equally gladly offer you absolute religious liberty.45
Some Mennonite settlers in Manitoba had been reluctant to naturalize as British subjects, fearing that swearing the oath of allegiance would compel them into military service, which was contrary to their religious beliefs. At least one of the community’s leaders forfeited his homestead deed rather than face the risk of naturalizing.46 Historian Adolf Ens adds that Mennonites worried that by “becoming citizens they would become subject to jury duty, to the provincial school law, and to taxation by a municipal government without regard to Mennonite village organization.”47 Yet, as Lord Dufferin indicated in his speech, the Canadian government was keen to assure Mennonite settlers that becoming British subjects would allow them to maintain their cultural practices and religious beliefs. Notably, the government passed an Order in Council specifically ensuring that Mennonites would not be subject to conscription if naturalized in Canada.48
An excerpt from Lord Dufferin’s speech was printed in the inside cover of Alfred Howell’s book Naturalization and Nationality in Canada, published in 1884. Howell wrote the book, which includes a history of British nationality law, an annotated copy of the Naturalization Act, 1881, and copies of naturalization forms, as a manual for those who were interested in applying for naturalization. His purpose was to make it as easy and convenient as possible for prospective subjects to learn about the process of naturalization and fulfil its requirements, with the hope that the tens of thousands of immigrants arriving in Canada each year would become naturalized subjects. The manual illustrates the process of naturalization as a “simple and inexpensive method” that “opened wide the door of British citizenship to persons of foreign birth who had come to settle in Canada.”49 Immigrants needed to swear an oath verifying that they had resided in Canada or been in the service of the government of Canada for at least three years, and another oath affirming allegiance to the crown. These oaths could be taken before a judge, a commissioner of oaths, a justice of the peace, a notary public, or a police magistrate, and the signed oaths would then be presented in an open court on the first day of a general sitting. If a paper’s validity was not contested, the application was filed on the session’s last day of sitting. The normative vision of naturalization based more on “modern” principles, where individuals could move to Canada and acquire through law a national status that would make them effectively full “citizens” – with the duties and rights that the status entailed – certainly seemed to reflect the concept of political nationality. Yet, as has been a recurring theme throughout this study, these views remained governed by assumptions about race that enforced limits to such a liberal citizenship.
The ease by which aliens, once resident in Canadian territory, could become British subjects came under greater scrutiny as an increasing number of non-white residents acquired British subjecthood. Because of the 1871 Webster ruling, little could be done to refuse naturalization applications. The Royal Commission on Chinese and Japanese Immigration in 1902 singled out this concern, based largely on fears that Asian immigrants took out naturalization under fraudulent pretences, ostensibly wishing only to obtain employment and licences to fish.50 Prompted by the royal commission, a 1903 amendment to the Canadian Naturalization Act sought to restrict supposedly fraudulent cases of naturalization by requiring a certificate of naturalization to be posted in court for at least two weeks, where it could be contested by members of the public. Such a requirement was necessary, argued Justice Minister Charles Fitzpatrick, because “it is desirable to know something about the men who are to have the great advantage of becoming Canadian citizens.”51 While an MP from Ontario doubted that cases of fraudulent naturalization were very common, Robert George Macpherson from British Columbia asserted that at least two-thirds of recent cases of naturalization of Japanese immigrants were fraudulent, with no way for citizens or judges to overturn them. He insisted that “a man who is himself a British subject is the best judge of the men who are likely to make good British subjects, and we cannot hope to make out of these orientals anything like the British subjects that we would like to get.”52
Partially as a result of the royal commission and statements that certain groups of people could not become good British subjects, immigrants from Asia became subject to particular scrutiny in discussions of naturalization law.53 This stance was a common though not universal position. In an article on the new province of British Columbia, for example, former soldier William Coffin proclaimed that the “Chinamen” were industrious workers and that each one should “feel that he is safe and respected; that upon British soil he becomes a British subject, with the rights, privileges and aspirations of a British subject.”54 George Monro Grant echoed this sentiment on numerous occasions, stating in language quite distinct for its time that exclusion or discrimination against Chinese people was “fundamentally opposed to human rights.”55 In British Columbia, however, the topic of Asian immigration was subject to greater public attention, and MPs from that province faced strong pressure to place restrictions on the ability of Asian immigrants to obtain British subjecthood. In 1897 a petition was drafted and presented to the Canadian government protesting “the extreme facility with which the Japanese immigrants can become naturalized as British subjects.”56 In response to the petition, K.T. Takahashi, a naturalized British subject in Canada of Japanese origin, wrote a pamphlet as a “loyal citizen of Canada,” imploring parliamentarians to dismiss the petition as “tyrannical and unconstitutional.”57 Contrary to the petition, Takahashi insisted, Japanese immigrants faced no greater advantages in naturalizing than other people.
Takahashi’s pamphlet held little sway in a community increasingly alarmed by the naturalization of Asian immigrants. Asians already faced numerous restrictions on living in Canada, especially through immigration laws that were designed to limit their migration. The Chinese head tax of 1885 raised significant financial barriers. Reforms to the franchise in 1885 denied Asians the right to vote in Dominion elections, even if they met the other qualifications. Yet concern remained, particularly in British Columbia, about the ability of Asians to file naturalization papers and become British subjects. In 1900, British Columbia’s Executive Council passed a resolution resolving “that this House views with alarm the admission of Mongolians to the rights of citizenship, and that the Dominion Government be requested to change the naturalization laws that it will be impossible for any Mongolian, or person belonging to any other of the native races of Asia, to become a British subject.”58 British Columbia’s lieutenant governor forwarded the resolution to the Dominion government. While the Canadian government did not formally include racial restrictions in naturalization legislation, court adjudication would increasingly restrict access to naturalization for persons of Asian origin.
This restriction became blatantly evident on the opening day of the County Court of Vancouver in March 1908. Twelve Japanese men who had completed the residency requirements for naturalization and taken the oath of allegiance attended court to complete their applications. Typically, such proceedings were routine business on the opening day of court, but in this case, the requests for naturalization were subject to complaint. Edward Alexander Lucas, a British subject, filed objections with the clerk of the court, arguing that naturalization should be denied to the twelve Japanese men. The men, Lucas argued, were subjects of the emperor of Japan and, as such, could not swear true allegiance to the British Crown. Nor could they, he continued, have any real understanding of the oaths they swore and probably would not reside permanently in Canada.59 Lucas’s objection echoed a common complaint about the naturalization of Japanese people, namely that they could never really be true Canadians, even if technically naturalized. In this vein, C. Wilson had told the Royal Commission on Chinese and Japanese Immigration five years previously that, “notwithstanding the fact that he may take out a certificate of naturalization in this country, he never becomes, in truth and fact, a Canadian, but always remains a Japanese.”60
As a result of Lucas’s objections, the applicants were required to attend a cross-examination where they would be interrogated on their oaths of residence and allegiance. The result was the case Canada v. Malsufuro, which, referencing the 1903 amendment to the Canadian Naturalization Act, overturned the precedent set in Webster, allowing naturalization claims to be contested by members of the public and thrown out if the judge agreed with the complaints. According to the Malsufuro ruling, the Webster reference made “judges little more than ministerial officers in carrying out the decrees of the justices of the peace and notaries.”61 The following year, the same judge, David Grant, went even further in Re Fukuichi Aho.62 Whereas the Malsufuro case was the consequence of an objection from a member of the public, as permitted by the naturalization law, in the case of Fukuichi Aho, the judge proactively sought evidence of the applicants’ eligibility, even though no one had raised an objection. Although a counsel for one of the applicants insisted that the court’s capacities in such matters were “merely ministerial and not judicial,” the judge condemned the “thoughtlessness” of persons granting naturalization without insisting on the evidence behind the completed forms. Going well beyond the provisions of the Naturalization Act, the judge ruled that applicants for naturalization should each have two Canadian-born witnesses to validate their residency and good character.63
Even where people from Asia had obtained naturalization in Canada, their status did not ensure full political and legal equality before the courts. Although section seventeen of the Canadian Naturalization Act granted that a naturalized person would have “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,” courts were willing to differentiate rights among those who held the legal status of British subject. Cases like Cunningham v. Homma and Quong Wing v. The King illustrated that naturalized subjects of Asian origin or descent could be denied employment and franchise rights.64
Judges from outside British Columbia also raised concerns about the simplicity of the process of naturalization, suggesting its greater significance at a time of increased immigration. In a 1911 reference (Re Cabulak), a judge in Lethbridge, Alberta, denied several applications for naturalization because of complaints that the certificates had not been technically posted as required by the act, insisting that “the right of citizenship is a privilege granted by the State” and therefore the formalities of the process should be strictly followed.65 Although the 1903 amendment allowed judges greater discretionary power over naturalization applications, for some it did not go far enough in ensuring the suitability of applicants for acquiring the status of British subject. At the opening of court in Hamilton, Ontario, in 1906, jurors were alarmed by the facility with which aliens were acquiring British nationality. Reporting their concerns to the crown attorney, the jurors wrote:
We noticed at the opening of the Court, with what apparent ease a large number of foreigners were made Citizens of our Country. While not wishing to prevent anyone from becoming a Good Citizen endowed with all the privileges and rights according to such, we think that it is a matter of cause for alarm as well as worthy of the serious consideration of our Legislators. It is our humble opinion that those desiring to become Citizens should prove themselves worthy of having such an honor conferred on them, further than merely having to affirm that they have been residents of our Country for a space of three years.66
These concerns reflected what was becoming an increasingly common criticism in Canada about the process and criteria of naturalization. The question of what, exactly, made a “good citizen” was a matter that would gain greater attention as Canadian naturalization law evolved in the early twentieth century.
Similarly, Judge J. Gordon Forbes of Saint John, New Brunswick, wrote to the Department of Justice in November 1907 to express concern about the regulation of naturalization. Although the 1903 amendment allowed greater judicial discretion over the submissions of applications for naturalization, he pushed the government to implement stricter regulations. In particular, Forbes asked that the law be changed to require that applicants produce in court evidence of their “good character.” “Application have been made before me,” he wrote, “for Naturalization of Chinese who cannot write, Assyrians, Russians, Italians, and other Foreigners, who I believe are not desirable Citizens, and I am perfectly helpless to inquire as to their character, and I am confident these paid Attorneys are as ignorant as I am on their character and intentions.” The ministry was unwilling to implement these suggestions, however, fearing that they would create “insufferably long” court proceedings that would require much time and expense.67 Forbes’s criticism of the apparent ease of naturalization echoed an earlier plea in the Canada Law Journal from a lawyer who expressed concern that large numbers of immigrants were being improperly naturalized in a “cheap and expeditious manner” so that they could vote in elections. “When naturalizations are effected in this way,” the writer continued, “there is danger of looseness in the observance of legal formalities; and little or no inquiry is made as to the character for loyalty.”68 According to these criticisms, the process of naturalization needed to incorporate some account of the “character” or “loyalty” of the prospective subject.
These concerns about the demonstration of an alien’s “good character” were evidently not isolated opinions, as became apparent in 1914 with the most substantial reform to Canadian naturalization law since the 1881 act. By the time Canadian naturalization was reformed in 1914 to allow for common imperial naturalization, demonstration of “good citizenship” had become integral to the debate. Unlike previous parliamentary debates on naturalization law, which were largely routine matters focusing on governmental jurisdiction, the 1914 debate was extensive. Discussion about the requirements for naturalization was no longer a matter of the applicant’s fulfilment of residency requirements and filling out paperwork; instead, parliamentarians debated means of providing a qualitative assessment of an applicant’s capacity to become a “good” British subject. Though the primary purpose of the 1914 act was to recognize imperial naturalization and implement a common five-year residency requirement, it also introduced new qualifications for naturalization. Unlike previous naturalization laws, the 1914 act, according to Justice Minister Doherty, “does not intend to say that every man who has complied with the requirements of the Act shall have the right to be naturalized.”69 Less about “naturalization,” the legislative debate on the act was an articulation of the desired qualities of citizenship in Canada. It was noticeably painted throughout with the vocabulary of “citizenship.”
“Citizenship was entirely too cheap” under previous naturalization laws, argued Alberta Conservative member of Parliament R.B. Bennett in the House of Commons debate. The result, he added, was a “very great laxity in so far as the enforcement of proper regulations is concerned with regard to the obtaining of citizenship.”70 Bennett, who would later serve as prime minister during the Great Depression, noted that the United States required new citizens to demonstrate an understanding of the constitution and the country’s past presidents, while Canadian naturalization prescribed no such test.71 As Marilyn Lake has noted, such education tests were used in places, including the United States, South Africa, and Australia, as “a technology of racial exclusion.”72 Although the bill was not amended to include Bennett’s proposal for a civic test, it did introduce an “educational requirement,” compelling applicants to demonstrate a proficiency in either English or French, which MPs frequently referred to as “Canada’s official languages.” Interestingly, at no point in the debate did any parliamentarian dispute the equal standing of French and English as “official” languages for naturalized subjects to understand, though some did doubt whether requiring an applicant to demonstrate knowledge of an official language was in fact a necessity.73
As the language requirement suggests, the process of naturalization was no longer to be a mechanical filing of affidavits by commissioners. The new law required applicants to appear personally in court in order to have their claims of “good character” validated by a judge. As one MP stated, “hundreds of aliens have been naturalized without really knowing the meaning of the word, and without very much evidence having been produced in the courts.”74 Others, mostly from the opposition Liberals, opposed the added strictness of the process. Edward Macdonald insisted that the law would “make it about as hard for a man of foreign nationality to become a British subject as for the ordinary common sinner to obtain a passport to the kingdom of Heaven.”75 As an added layer of discretion, the law invested the secretary of state with the power to revoke processed naturalization papers unilaterally on the suspicion that they were obtained by false representation or fraud.76 The purpose of this clause was to ensure that, even if a judge accepted the naturalization of an “undesirable” person, the Canadian government could exercise the final judgement in signing the naturalization papers.
Imperial Migration and the Limits of British Nationality
On 22 May 1914, as the House of Commons debated a bill to finally implement common naturalization requirements across the empire, a vessel challenging some of the legislation’s fundamental assumptions sailed into the Vancouver harbour. The Komagata Maru carried on board 376 British subjects from India, and despite the distance, MPs were acutely aware of the implications of their arrival.77 Frank Oliver, who as interior minister in Laurier’s government had introduced the immigration restrictions on persons from India three years previously, worried that the bill to implement imperial naturalization would build “up in the minds of these people the idea that we are giving them a degree of British citizenship that they do not enjoy today.”78 An opposition member chided the government for its apparent contradiction, noting: “Here are British subjects who have served in the King’s army and under the British flag, and this great imperialistic government of ours is holding them up in Vancouver harbour.”79 In response, the government maintained that the restrictions on immigration would remain effective, and though one member of the government admitted that “it is a difficult question,” he insisted that India “is in a different class” from the dominions.80
The Komagata Maru languished in Vancouver’s harbour for two months in the summer of 1914, until it was finally turned away on 23 July. The experience of the British subjects on board crystallized the incongruence of imperial citizenship and membership in the British Empire. According to an editorial in one Vancouver magazine, the scene indicated that “if the natives of any country under British protection, though British subjects, have not reached a stage of intellectual, moral or political development fitting them for British Empire citizenship, there can be no injustice in withholding from them the privileges such citizenship carries with it.”81 Even though imperial naturalization imagined a global circuit of citizenship, those who did not fit within racialized notions of belonging remained anchored beyond its limits. Like many less visible legal cases earlier, the Komagata Maru incident confronted Canadians with the contradictions of naturalizations laws, revealing in stark terms that the concept of liberal citizenship had very distinct and highly impenetrable parameters.
Differentiating among British subjects from different parts of the empire, all of whom were technically British subjects, was indeed difficult. Nationality law highlights the often-confused language of expressing membership in a given group, whether it is a political organization like the Canadian state or a cultural construction like the British world. The term “British subject” was remarkably capricious, a semantic shape-shifter conditioned by context and person. This dilemma was especially evident in the case of persons from non-dominion colonies. In a 1911 editorial, the Canadian Law Times noted that “the claim of coloured races (who are at the same time British subjects) to be treated as equal in all respects to the white races, solely because they are British subjects, is giving rise to difficulties in every part of the Empire.”82 In an annotation to the 1913 case Re Thirty-Nine Hindus, legal scholar A.H.F. Lefroy noted that although, legally speaking, “Hindus from British India are as much British subjects as Canadians,” the question of the status of non-white British subjects in Canada was not strictly legal:
But in truth we are in a region other than – perhaps we should say higher than – that of mere law. We are dealing with matters which will find their ultimate settlement not in the provisions of any statute, but as the final resultant of varying sentiments, conflicting interests, and competing patriotisms. The exclusion of British subjects, whatever their colour, from any part of British soil, will at best be regarded as a lamentable necessity by those who have the interests of the Empire at heart. It will call for the exercise of the highest statesmanship, and much mutual forbearance, to adjust these matters without disturbing the pax Britannica.83
Lefroy’s views were upheld by the courts, as in the 1914 British Columbia case Re Munshi Singh, where the judge insisted “that Canada has a right ... to make laws for the exclusion and expulsion from Canada of British subjects, whether of Asiatic race, or of European race.”84 Defining the status of non-white subjects of the British Empire in Canada highlighted the complexity of British nationality law and its application in the dominions. It also captured the contradiction of an understanding of nationality that was purported by many to be “modern” and “liberal,” though it still cleaved closely to cultural and racial assumptions about the basis of citizenship in Canada.
There was precedence elsewhere in the British Empire for restricting naturalization for certain groups of people. For example, Australia’s Naturalization Act, 1903 explicitly denied naturalization to persons from Africa and Asia and those of Aboriginal Pacific island descent.85 But the matter of restricting British subjecthood by racial categories was a problem in an empire where people of diverse backgrounds held the common status of “British subjects.” As Sukanya Banerjee has illustrated, British subjects in crown colonies such as India increasingly framed their status as subjects as grounds to be recognized across the empire as equal citizens.86 Yet, however racially neutral the statutory requirements for naturalization were in Canada, impediments remained for applicants who did not fit into the racialized idea of national membership. Leading up to the implementation of imperial naturalization in 1914, a major objection had been the fear that it would mean British subjects from anywhere in the empire would be exempt from the immigration restrictions of the dominions. On this point, the British Interdepartmental Naturalization Committee, which reviewed the proposed legislation, noted that requiring “evidence of good character” for naturalization would “have the merit of relieving the self-governing Dominions of anxiety as to the results of reciprocity in naturalization with the Crown Colonies.”87 The imperial government, however, refused to insert into the bill any reference to colour or race, stating that it would be both invidious and impractical; however, it did insert a requirement that the applicant demonstrate adequate knowledge of the English language, which, the committee argued, would “automatically exclude the vast majority of the members of the coloured races.”88
Although Canada’s 1914 act introduced “imperial naturalization,” its more significant effect was its insistence that naturalization was no longer a formality of residency, but was instead admittance into a civic community in which the applicant would have to function as a “citizen.” But while earlier writers had sensed a transition in the nature of allegiance to a more purely legal or political relationship, the act highlighted the contingencies attached to political membership. In a 1910 article in Busy Man’s Magazine, Roden Kingsmill closely echoed Thomas Hodgins’s earlier description of “modern” citizenship, stating that “citizenship is the term now generally employed to describe the political relationship which exists between an individual and the sovereign state to which he owes allegiance.”89 This affirmation of citizenship as an essentially “political” relationship between citizen and state seemingly positioned visions of “moral” nationality, organically connecting individuals to a community, as relics of a passing age. Yet, despite all of the legislative initiatives to regulate nationality and define its relation to different jurisdictions, the assumption that nationality was more significant than a strictly legal status or passport category endured.
Which State? Naturalization and the Ambiguity of Nationality
Beyond ideas of the meaning and origin of nationality, the subject of nationality law raised important and concrete questions about the limits of nationality in Canada, particularly concerning the status of persons naturalized as British subjects in Canada. The question of how a common imperial category of nationality – British subjecthood – could be grafted onto the local jurisdictions of the dominions was a recurrent problem at the centre of nationality laws of the British Empire. Chief among the practical problems of different naturalization laws across the empire was that an individual’s status as a naturalized British subject did not apply in all parts of the world. Legal scholar Newman Hoyles fittingly described Canada’s naturalization laws as “illogical and incomplete,” citing the anomalous status of those who were naturalized British subjects only within Canada and the incompatibility of the laws of the various jurisdictions of the British Empire in regulating the category of British nationality.90 This article vividly highlighted the complication of nationality law and its often confusing and paradoxical application in practice.
As Britain and each self-governing colony were individually responsible for passing their own naturalization laws, the process of naturalization was varied across the empire. More significantly, however, the naturalization laws passed in each jurisdiction of the empire were only operational within the territorial jurisdiction of that colony. The language of the 1881 Canadian act, for example, provided naturalized subjects with the same rights as natural-born subjects “within Canada,”91 which had the peculiar effect of rendering a person naturalized as a British subject in Canada an alien elsewhere. This anomaly in naturalization law meant that there were essentially two standards of British nationality, one for natural-born subjects, who held their status anywhere in the empire, and another for naturalized subjects, who held their status only within the territory of the jurisdiction that granted that naturalization. The latter, known as “local naturalization,” formed a de facto Canadian citizenship for naturalized persons, distinct from British subjecthood. Critically, unlike natural-born subjects, the status of naturalized subjects did not have any British or imperial significance.
Not surprisingly then, the restricted parameters of British nationality were a source of concern and complaint for naturalized British subjects in Canada, especially since these subjects were essentially “stateless persons” when travelling outside of Canada. British consuls were not technically compelled to recognize the nationality of naturalized subjects travelling abroad, nor obligated to offer them assistance in consular emergencies. The passports of naturalized subjects differed from those of natural-born subjects, explicitly denying the holder British protection in the country in which he previously held citizenship.92 On this point, Frederick Walton, dean of the Faculty of Law at McGill University, asserted that “it is in the highest degree anomalous that a British Consul abroad should have to treat a large class of Canadian subjects of the King as foreigners.”93
In 1911, an eighty-year-old naturalized subject who had lived in Canada for sixty years produced a pamphlet on the restricted nationality of naturalized persons, writing: “I am aware that there are only a few people in Canada familiar with this injustice. My aim is to make it known as widely as possible.”94 The pamphlet also reproduced journalist Roden Kingsmill’s earlier article, which termed naturalized subjects “men without a country,” who, it argued, were essentially “second-class” citizens. The article admitted that the inconveniences suffered by naturalized subjects “may seem more sentimental than real, but at any time international complications may arise which will make it of the utmost importance to naturalized Canadians to be entitled to the fullest privileges of British citizenship.”95 Yet, the “sentimental” aspect of nationality was a very real reflection of the perceived inadequacy of the nationality of naturalized subjects. Kingsmill noted that the naturalized subject “might as well be a Siamese or a Burman as long as his international rights are concerned.”96 Similarly, he reported an anecdote where an American lawyer told his naturalized Canadian client: “That Canadian naturalization doesn’t amount to shucks.”97
This story speaks to the importance of the identity of British subjecthood, not just as a legal category bestowing certain rights and privileges but as a category of political identity that signified political membership in international terms. On this point, Edward Rathburn, an American-born naturalized subject from Deseronto, Ontario, wrote to the prime minister of the day, Sir John A. Macdonald, complaining: “I am a Canadian Citizen by naturalization, and yet I am not a British subject owing to the non-recognition of our Canadian Law for naturalization. It seems to me that there should be a convenient way by which myself and others so situated may become British Subjects. Is there no hope for this?”98 The limitation of the status of persons naturalized in Canada was a matter of embarrassment, not only for new subjects but also for various writers who promoted Canadian nationalism. William Norris, for example, decried the inability of Canada to provide naturalized subjects with protection overseas, declaring that “the first practical principle of Canadian nationalism is to obtain for Canada the right to make a British subject, or to be able to give foreigners an independent status as Canadian citizens.” Norris was particularly concerned that prospective immigrants would opt to live in the United States, for “so long as this state of things exists, it is hopeless to expect immigration.”99 But while Norris framed the limitations of Canadian naturalization law as an impediment to Canadian nationalism, Granville C. Cunningham, a proponent of imperial federation, viewed it as a reason to seek greater consolidation of the British Empire. After raising the same concerns about Canadian naturalization law as Norris, Cunningham concluded: “Under a Federation of the Empire the consuls of England would also be the consuls for all colonial subjects. A German naturalized in Canada would be as much a British subject as a German naturalized in England.”100
Cunningham’s reference to Germans in Canada was a common theme in discussions about Canadian naturalization law. German immigrants to Canada were especially vociferous on the matter of their status, worrying about the implications of the local nature of their naturalization. The German press had apparently warned that emigrants to Canada would be “grossly deceived” and that they would lose their German nationality without acquiring the full rights of British subjects.101 In Canada, German communities expressed concern about their limited status. A petition to the government conveyed by Otto Klotz in 1879 stated: “We, Her Most Gracious Majesty’s loyal and naturalized German subjects in Canada, deem it a peculiar and deeply felt hardship ... that by reason of our naturalization in Canada, we are while travelling beyond its limits and in foreign countries refused British protection.” The petition continued by insisting that Germans naturalized in Canada were full citizens and ought to be accorded the protection afforded to natural-born subjects:
We as citizens of Canada pay our taxes, perform our various duties as citizens, including militia service; we are ready and willing whenever called out, to take up arms in defence of this our adopted country and in defence of Her Majesty, Her Crown and Dignity equally as cheerfully as a native Briton. Our combined industry, our frugality and economy have materially enhanced the wealth and productiveness of Canada; we have ever been considered and treated by our British fellow subjects as welcome and desirous settlers among them, we have among us men who have been elected or appointed to various offices in the country and who have filled the same with credit to themselves and with satisfaction to the public.102
A memorandum that included the petition impressed upon the government that naturalized subjects from Germany had demonstrated a commitment to the civic life of Canada. It specifically used the term “citizen” to describe duties to the state, which included taxes and militia responsibilities, to argue that they should be provided with the same status as natural-born subjects outside of Canada. Klotz had been particularly vocal about the matter of German naturalization, having delivered a speech as president of the German Festival in Waterloo, Ontario, complaining about the disabilities of naturalized subjects.103 One of the most common complaints was the fear that naturalized subjects from Germany could be pressed into military service if they were to go back to visit Germany.
Their status was a primary consideration for the Canadian government, which sought to rectify the situation specifically in reference to the status of Germans naturalized in Canada. When Alexander Campbell introduced the Naturalization Act, 1881 in Parliament, his first remarks on the subject were about the “anxiety” of Germans in Canada about their status and the bill’s purpose to “get the German Government to recognize the naturalization of German subjects.”104 This statement, however, was inaccurate and later withdrawn.105 For Germany to recognize the naturalization of German subjects in Canada, a convention needed to be signed; but, as Canada did not have sovereignty over such foreign matters, the imperial government was responsible for ratifying treaties involving Canada. Behind the scenes, the Canadian government lobbied the imperial government to create a convention with Germany that would allow German recognition of Canadian naturalization, like the conventions that had been signed between the United Kingdom and both the United States and Germany.106
Yet, amending the law in order to recognize the status of naturalized subjects outside of Canada was not an easy process. Lawmakers in Canada had lobbied the imperial government on numerous occasions to reform naturalization laws and extend the status conferred upon subjects naturalized in Canada. In 1873, the Canadian House of Commons sent a formal address to the imperial government to ask that the limited status of subjects naturalized in Canada be rectified, though no action toward implementing imperial naturalization was taken.107 In 1884, it seemed the imperial government would be willing to give Canadian naturalization extraterritorial effect on the condition that the Canadian law be changed to require a five-year residency. The period of five years was necessary in order to make naturalization requirements under Canadian law conform to those of Britain, which maintained a five-year residency requirement in accordance with treaties signed with the United States and Germany. The British ambassador in Berlin wrote to Secretary of State for Foreign Affairs Earl Granville expressing concern that, unless Canada introduced uniform requirements, German emigrants would move to Canada over the United States, which in turn would cause complaint from the United States.108 Although the residency requirement seems a relatively minor point, the Canadian government wanted to maintain a three-year residency requirement so that new subjects could attain their homestead and franchise rights at an earlier date, especially in the west.109
The subject of naturalization became a recurring matter of discussion at colonial and imperial conferences. The issue was first raised at the 1897 Colonial Conference, and the specific idea for “uniform legislation with regard to naturalization” was proposed at the 1902 conference; however, it was not until the 1907 conference that a resolution was approved “with a view to attain uniformity so far as practicable.”110 After decades of discussion and deliberation, the idea of imperial naturalization finally came to fruition at the 1911 Imperial Conference, at which a resolution that “Imperial nationality should be world-wide and uniform” was unanimously approved.111 The implementation of the resolution required each of the dominion parliaments and the imperial parliament to enact legislation recognizing the effect of naturalization in other parts of the empire. Although Canada had amended its naturalization law in 1907 to formally exempt persons naturalized elsewhere in the empire from submitting to Canadian naturalization, coordinate imperial naturalization was established through the Canadian Naturalization Act, 1914. The new law provided for imperial naturalization, requiring five years of residency in total, the first four of which could be spent anywhere in the British Empire and the last year within Canada. The ultimate resolution to the problems of nationality law in the British Empire was to coordinate an empire-wide legislative effort to implement uniform naturalization laws, which Parry appositely described as an example of “imperial comity.”112
As expressed in Canada’s Naturalization Act, 1914, the remedy to the limited scope of the status of naturalized persons was to extend the scope of imperial naturalization so that naturalized subjects would acquire a trans-imperial status. It is worth remembering here that, until the Statute of Westminster in 1931, Canada, like other British dominions, did not have constitutional sovereignty over external affairs. In debates on implementing imperial naturalization, very little consideration was given to extending the jurisdiction of the Canadian state to legislate for the extraterritorial status of its own naturalized subjects. One of the lone proponents of this position was John Skirving Ewart, a constitutional lawyer and vocal advocate of full Canadian independence. Ewart called subjects naturalized in Canada “the truest Canadians of us all,” because their political identity was strictly Canadian and not British or imperial.113 Accordingly, Ewart advocated full Canadian sovereignty over naturalization, insisting that naturalization was a clear example of Britain’s “palpable invasion of our constitution.”114 He believed that, since section 91, subsection 25 of the British North America Act expressly granted control over naturalization and aliens to the federal government, the Canadian government had full sovereignty to determine and legislate for the status of naturalized subjects outside of Canada. Responding to Ewart’s article in a memorandum to the secretary of state, the undersecretary of state, Thomas Mulvey, dismissed Ewart’s reasoning as “faulty,” stating that the provisions for naturalization in the British North America Act did not imply extraterritorial application; only the imperial parliament could enact such legislation.115
As noted earlier, by the end of the nineteenth century the prominence of international law created greater pressures on the making of domestic legislation in Canada. This process was particularly complicated in British dominions, where the imperial government held jurisdiction over foreign relations and maintained ultimate constitutional sovereignty. A number of examples highlight the implications of this complexity. Meera Nair has focused on copyright law as a primary example of how Canadian law was reshaped in the face of pressures from Britain.116 Similarly, Bradley Miller observes that the example of extradition law was “a manifestation of the empire’s continuing power in Canada.”117 Like copyright and extradition, naturalization demonstrated the implications of Canada’s legal subordination to Britain. The Canadian government was compelled to alter its legislation to meet the requests of the British parliament, both in 1881 in order to eliminate the principle of indelible allegiance and in 1914 to give effect to imperial naturalization.
Yet, despite the imperial government’s direction over naturalization law, its effect before 1914 had been to create a de facto Canadian citizenship in law. Ironically, because of the structure of imperial law, Canadian naturalization law enforced the Canadian state as the limits of nationality for naturalized subjects, entrenching a distinction between imperial subjects and naturalized Canadian subjects. Though this distinction was formally removed by the Naturalization Act, 1914, it anticipated later developments in Canadian nationality law, notably the distinction between Canadian citizenship and British subjecthood.118 Indeed, even in the legislative debate on the 1914 act, a number of parliamentarians recommended implementing a double system of nationality so that people could opt for either a strictly “Canadian citizenship” or a larger “imperial citizenship.”119 Summarizing this sentiment, a 1911 editorial in the Canadian Law Times noted that “a new political conception is in the course of evolution,” which it termed “local citizenship,” meaning “the relation between the individual and the community in which he dwells, instead of the relation or tie of allegiance which binds every natural-born British subject of the King.”120
In response to the question to which state nationality conferred membership, Canadian nationality law in the late nineteenth and early twentieth centuries provided a complex and incomplete answer. Up until 1914, naturalized subjects were members only of the Canadian state; however, the movement in legal reforms led toward the creation of an imperial naturalization that affirmed the British Empire as the state to which national status signified membership.
Conclusion
Naturalization law in Canada and the British Empire in the late nineteenth and early twentieth centuries highlights how understandings of political association were subject to much change and complexity. This case study has illustrated two particular complexities that indicate how changing concepts of political association influenced ways of thinking about Canada and the British Empire in the decades around the turn of the twentieth century. First, the principle of allegiance, which governed the basis of nationality law, had changed from an indelible and natural allegiance to one that signified a legal relationship between a subject and the state. Yet, despite this important reform toward what many called a more “modern” understanding of allegiance, ideas of who could naturalize were increasingly conditioned by embedded assumptions about the nature of nationality and the substantive meaning of “good citizenship.” Much like the concepts examined in this study, it was clear in practice that, despite the notion of nationality law representing a political principle governing the relationship between citizen and state, ideas of whiteness and racialized assumptions about civic identity endured or grew in salience, especially in the context of increased non-white immigration to Canada.
Second, even though naturalization law was reformed to integrate policies across the empire to create “imperial naturalization,” the effect of naturalization law before 1914 was to create a de facto Canadian citizenship, as subjects naturalized in Canada only held that status within Canada. Imperial naturalization illustrated in particularly vivid terms the complex practical implications of imperialist visions of a united empire. What should have been a relatively straight forward aspect of consolidating parts of the empire – providing a common national status for naturalized subjects throughout the empire – became a source of persistent confusion and frustration. Imperialist rhetoric and fantasies of an empire drawn closer together were frustrated by the realities of an expanding bureaucratic state and its complex legal architecture. The implementation of naturalization law highlighted the fact that Canada was a distinct civic community within a wider international imperial polity, anticipating in many ways later reforms to citizenship laws and the legal creation of a distinct Canadian citizenship.