Naturalization & citizenship guide

A denizen was one who

is an alien born but who so obtained, 'ex-donatione regis', letters patent to make him an English subject; a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between the alien and natural born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not … no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grants of land etc. from the crown, 12 W.3 c.2'

(Tomlins, Sir Thomas Edylyne: the Law Dictionary, 3rd Edition, 1820, article 'ALIENS')

By the Act of Council 9 Geo. IV No. 6 the Governor was empowered to grant such letters of denization under the Great Seal of the colony to foreigners arriving with letters of recommendation from the Principal Secretary of State. The person to whom letters of denization were to be granted was obliged to swear the oaths of Allegiance, Supremacy (disowning the temporal authority of the Pope), Abjuration of the Descendants of the Pretender, and a Declaration against Transubstantiation. Roman Catholics were exempted from taking the Declaration against Transubstantiation by virtue of the Act 10 Geo. IV c.7 s.1, 'An Act for the relief of His Majesty's Roman Catholic subjects'. The oaths had to be taken before a Judge of the Supreme Court, usually the Chief Justice, and a record to that effect kept in the Supreme Court. In practice, as most of the persons wanting letters of denization were already in the Colony, they petitioned the Governor who submitted their names to the Secretary of State for approval, rather than applying directly to the Secretary of State.

After the Act 11 Vic. No. 39, which made provision for the naturalization of aliens without resort to special Acts, came into force, the provisions for denization became for all practical purposes obsolete, as more extensive rights could be obtained more easily through naturalization than through the denization. Though the Act 9 Geo. IV No. 6was not repealed and was re-enacted in the Naturalization and Denization Act 1898 (No. 21). There is no record of the issue of letters of denization after 1848.

Provision of a general nature for the naturalization of aliens in New South Wales was first made by the Act 11 Vic. No. 39, based on the Imperial Act 7 & 8 Vic. c.66, which abolished the need to resort to special Acts for individuals and instituted the granting of certificates of naturalization by the Home Secretary. The New South Wales Act which came into force in 1849 provided that such certificates should be issued by the Governor after considering the memorial of the applicant. Such certificates if granted gave the naturalized person all the rights of a natural born British subject, except the right to be a member of the Executive or Legislative Councils. In 1858, these disqualifications were removed by the Electoral Act 22 Vic. No. 20.

The Act 11 Vic. No. 39 also granted aliens the right to lease land for twenty-one years. The separate oaths of Allegiance, Supremacy, and the Declaration against Transubstantiation were abolished and replaced by an oath of Allegiance and Abjuration. The Act also provided that 'such certificates shall be enrolled for safe custody as of record in the Supreme Court of the said colony, and may be inspected and copies thereof taken under such regulations as a Judge or Judges of the said Court shall direct'. The Colonial Secretary also kept a Register of Certificates of Naturalization until 1859. This was probably due to the belief, which then obtained, that it was legally necessary for the Colonial Secretary to keep a full record of instruments passing the Great Seal of the Colony.

That from 1849 to 1876 the official records of naturalization were those in the Supreme Court is clear from a report of the Prothonotary in 1886 (SRNSW ref: 4/6672) where it is stated in regard to the naturalization records

I was last month applied to by a Mercantile firm of Sydney for a certified copy of a certificate of Naturalization of a certain Chinaman who was naturalized in the year 1873.' 'The certificates of naturalization up to the year 1876 are kept by Mr Read and it is his duty to preserve them in proper order. They were on the contrary in the greatest state of confusion and were exhumed, with difficulty, from various places in his office. A week was consumed by other clerks in endeavouring, but in vain, to find the required certificate.'

The Act 17 Vic. No. 8 simplified the oath to be taken to one of Allegiance and provided that it could be sworn before any magistrate or duly authorized person and the certificate to that effect forwarded to the Supreme Court. In 1876 the New South Wales Act 39 Vic. No. 19, modelled on the Imperial Act of 1870, came into force. Among other things it granted aliens the right to hold property on the same conditions as British subjects. It also introduced residence of five years as a prerequisite for naturalization and simplified further the oath of Allegiance to be taken. At the same time it provided that the 'Colonial Secretary shall keep for safe custody all certificates of naturalization granted under this Act … and shall cause to be made proper indices to such certificates and shall permit any person desirous of so doing at all reasonable times to inspect the same'. The reason why the Colonial Secretary rather than the Supreme Court was charged with the duty of keeping the naturalization records and of preparing indices to them may well have been a result of the unsatisfactory state of affairs revealed in the Prothonotary's report quoted above in regard to the naturalization records of the Supreme Court from 1849 to 1876.

In 1898 the Naturalization and Denization Act 1898 (No. 21) consolidated the legislation on these subjects and incorporated the substance of 9 Geo. IV No. 6 regarding denization into the Act. The Commonwealth Naturalization Act No. 11 of 1903 came into force as from 1 January 1904. It is stated in Section 13 of the Act,

From the commencement of this Act the right to issue certificates of naturalization in the Commonwealth shall be exclusively vested in the Government of the Commonwealth, and no certificate of naturalization issued after the commencement of this Act under any State shall be of any effect.'