American Nationality Act 1965

The American Nationality Act 1965 is the statute by which the United Kingdom of America first said in law who an American is. Before it there was no answer. The Realm had existed for a hundred and eighty-two years, had fought four wars and admitted forty-odd polities, and had never once defined the status of the people it was doing all of this on behalf of.

It did not need to, because it had always been able to borrow. The King of America is also King of Great Britain, of Ireland, of Hanover and of nine other places, and for most of the Realm’s history a common subjecthood ran across all of them without anybody having written it down. What forced the Act was not a crisis of principle but a discovery: in the fifteen years after the Second Great War the other realms had each quietly defined their own nationality, and the Realm looked up in about 1962 and found it was relying on a common status that the other parties had already abolished.

The Act that resulted does four things. It creates two statuses and not one, subject and citizen, which every American holds together and which have never had the same boundaries. It makes citizenship at birth almost unqualified. It states, in terms, that being the King’s subject somewhere else confers nothing here. And in Part VI it provides for a class of person who would be subjects of the King in right of America without being citizens of the Realm.

In 1965 that Part had nobody in it. The drafters wrote it for territory the Realm might one day hold and did not then hold, and for sixty-two years it was a curiosity in the textbooks, cited in tutorials as an example of drafting for a contingency that never arrives. In 2027 the Realm acquired the Territory of Loreto, and Part VI acquired about four million people in a single afternoon.

It is, on almost every measure, the most generous nationality statute the Realm has ever had, and it was passed by a Parliament that had defended the immigration quotas for four decades and repealed them, in the same session, without ever quite apologising for them.

Constitutional character

An ordinary statute

The Act is not entrenched. It contains no provision resembling section 1.4 of the American Rights Act, which forbids amendment by implication; it may be amended or repealed like any other statute, on an ordinary majority, on an ordinary afternoon.

This was deliberate and it was argued about at the time. The law officers took the view that a nationality statute which claimed constitutional status would invite the courts into questions that are political in their nature, and that the security of the status should come from the substance of the provisions rather than from a claim about the Act’s rank. The provisions were accordingly drafted to be hard to use badly rather than hard to repeal.

Whether that judgement was right is the standing question about the Act. It has not been tested, because in sixty-three years no government has proposed to touch Part I.

Two statuses, not one

The architecture is the thing to understand first, and it is the thing most often got wrong.

Subject is the relation between a person and the Crown. Citizen is the relation between a person and the Realm. The Act creates both, defines each without reference to the other, and provides expressly that every citizen is a subject while declining to provide the converse.

The reason the two can come apart is the divisibility of the Crown. The King is King of Great Britain in one capacity and King of America in another, and the Crown in right of America is a legal person distinct from the Crown in right of anywhere else. A subject of the King in right of America owes allegiance to that capacity and to no other. The status therefore attaches to the Crown as it operates in American territory, which includes territory held by the Realm that is not part of any polity, and citizenship attaches to the Realm as a state.

For sixty-two years this distinction had no practical consequence whatever, because every subject of the King in right of America was also a citizen. It is now the most consequential distinction in the statute.

Nationality is federal and exclusive

No polity of the Realm confers any status. This was never in serious doubt, since the Charter reserved it, and the Act states it in section 4 chiefly so that the point is written down somewhere.

The provision is nonetheless not quite ornamental. Before 1965 several polities had issued documents that looked like nationality papers, generally for the convenience of their own residents travelling abroad, and one or two had maintained residence requirements that behaved a great deal like immigration control. Section 4 ended all of it in a sentence, and the departments concerned were given two years to wind up their arrangements and did so without complaint.

How the Act is cited

Sections are cited by number without the word section in ordinary use, so s.9 and not section 9, and subsections by decimal, so s.9.2. Part VI is cited by Part, because it is the only Part everybody can name.

History

What the Realm had before

It had a practice and no statute.

A person born in the Realm was American. A person who arrived, stayed and swore an oath became American. A person who left and never came back remained American, as did their children, and their children’s children, on no authority anybody could point to. These propositions were universally believed, were applied daily by the Post Office, the courts and the consular service, and rested on nothing more than the general common law of allegiance, which had been imported wholesale in 1783 and never examined since.

This was not eccentric; it was the ordinary condition of the King’s realms for most of their history. Allegiance was owed to a person and not to a state, and a person who owed it in one place owed it in all of them. The arrangement worked for as long as nobody had reason to ask exactly where one allegiance ended and the next began.

The discovery

In the fifteen years after the Second Great War, each of the other realms of the shared Crown legislated for itself.

They did so for their own reasons and largely without reference to one another. Each statute defined a nationality of that realm, provided for its acquisition and loss, and in doing so cut its own population out of the older common status. None of them said so in those terms, because none of them thought it was doing anything to anybody else.

The Realm did not legislate, because it did not notice. The matter came to the attention of the law officers in 1962 through a series of consular difficulties, none of them individually remarkable, which had one feature in common: in each case a department had asserted a proposition about the status of an American abroad, and had been unable, when pressed, to identify the law that made it true.

The memorandum that resulted ran to nine pages and its conclusion has been quoted ever since:

That the Realm has no law of nationality is a statement which sounds absurd and is exact. We have a practice of great antiquity, universally believed and never enacted, which rested upon a common status shared with the King’s other realms. Those realms have severally abolished that status over the past fifteen years. We are accordingly in the position of a man who discovers that the branch he is sitting on was attached to a tree which has been felled, and who has not yet fallen only because nobody has asked him to move.

Two bills, one session

The ministry took the memorandum seriously and did something with it that has been admired ever since by people who admire tactics.

1965 was also the year Parliament repealed the national-origins quota regime of the 1920s: a system it had enacted, defended through the 1930s including in the years in which it operated to exclude Jewish refugees from Germany and elsewhere, and maintained for four decades. That repeal was the ministry’s great social measure and it was fought hard.

The nationality bill could have been carried in the same instrument. It was not. The ministry separated them, and the separation was the whole of the strategy: a bill defining who an American is, taken together with a bill about who may become one, would have been voted on as a referendum on immigration, and the definitions would have been amended to death by members who had no particular quarrel with them.

Taken separately, the nationality bill went through as a lawyers’ measure. It was carried by the Attorney-General rather than by a Secretary of State, it was debated for four days, and the substantive divisions were on Part III and on nothing else. The quota repeal absorbed all the political weather in the session and the nationality settlement passed underneath it.

The manoeuvre worked and it had a cost, which is that the Act has never had a public constituency. Most Americans do not know it exists. It is the most generous statute of its kind the Realm possesses and it has no defenders organised to say so, which will matter on the day somebody proposes to amend it.

The ministry

The Act belongs to the Kennedy ministry and, on the evidence, substantially to Kennedy himself.

The two bills were conceived together. The separation was tactical and not conceptual, the papers show him settling it personally, and the drafting instructions on Part III went back twice at his direction. He spoke on the nationality bill once, briefly, at second reading, and never mentioned it again in public, which was also deliberate: the strategy depended on the bill being boring.

He was assassinated in New York on 22 May 1966, seven months after Royal Assent. The Act was accordingly the last substantial constitutional measure of the ministry, and it has never been described as part of his legacy by anybody who was not a lawyer.

The text of the Act

The Act is reproduced below in full, Part by Part. Editorial commentary follows each Part and is not part of the statute. The Act has been amended seldom and never in Part I; where a section has been altered the fact is noted in the commentary.

The Act is short by the standards of the statutes around it. Parts I and II do nearly all the work; Part III is the Part it is praised for; Parts VI and VII are the Parts nobody read for sixty years and everybody reads now.

The Preamble

The preamble is short and does one piece of work that the sections do not, which is to state the fourth recital: the Crown is one person and many capacities. Everything in Parts I, VI and VII follows from that sentence, and it is the only place in the statute where the doctrine is stated rather than assumed.

The third recital is the one quoted in public. That a people should not learn the limits of their status only when a department is asked to state them is the Act’s single sentence of rhetoric, and it was written by the Attorney-General himself, over the objection of parliamentary counsel, who thought it unnecessary and was right.

Part I: Preliminary and Constitutional Status

Part I is four sections long and has never been amended.

Section 1.4 is the whole of the argument. A subject is not thereby a citizen: eight words, inserted at the drafting stage by parliamentary counsel for symmetry with 1.3, debated by nobody, and the provision on which the status of about four million people now rests. Counsel’s own note on the drafting file says that 1.4 was included because a proposition of that kind should be stated rather than inferred, and that it was not expected to have work to do.

Section 2.3 is the sleeper. A person born within the dominions of the King in right of America is a subject whether or not the place of birth lies within a polity of the Realm, which in 1965 was a statement about nowhere. The Realm held no territory outside its polities. The clause was drafted for a contingency, in the same spirit as Part VI, and it is the reason that everyone born in Loreto since 2027 is a subject without anybody having to decide anything.

Section 2.4 is the definition of what a subject without citizenship actually has, and it is the section the Act is now most criticised for. Allegiance, protection, and whatever else the statute book happens to give: a formula which is honest, which is thin, and which was written on the assumption that nobody would ever be in the category long enough for it to matter.

Section 3.2 is a quiet piece of constitutional housekeeping doing more work than it looks. Citizenship is not affected by the polity a person was born in, resides in or has never resided in, which forecloses the argument that the Realm’s citizenship might be composite. It has never been necessary to cite it.

Section 4 is the federal exclusivity provision. Its real target was administrative rather than constitutional: the polity-issued documents and residence rules described above, which were wound up over two years. Section 4.3 extends it to federal territories, which was again drafting for nobody, and which now prevents the Territorial Assembly at Loreto from doing the one thing it has periodically wished to do.

Part II: Citizenship by Birth and Descent

Part II is the Part nobody argues about.

Section 5 is jus soli almost without qualification, and the Act codifies a practice rather than creating one: birth on the soil had made Americans since before the Realm existed. The single exception in 5.2 is the diplomatic one that every comparable statute has, and 5.3 was added in committee to forestall the construction of further exceptions by implication. There have been three attempts since 1965 to qualify section 5 by the status of the parents. None reached a division.

Section 6.2 is a small and humane provision that took the drafters a disproportionate amount of time. A foundling is a citizen; the discovery of parentage does not undo it; and the only escape is an election by a parent or guardian, exercisable once, before the child is six, and only where the child would otherwise hold a nationality already. The age of six was chosen because it is before school.

Section 7 is the conventional one-generation rule, with the important refinement at 7.4. A citizen by descent who comes home and stays three years becomes a citizen otherwise than by descent, and may transmit in turn. The effect is that the line is not cut off from a family that returns, and the Realm’s very large emigrant communities in Britain, Ireland and elsewhere have made steady use of it.

Section 8.3 is the sentence the drafters were proudest of. Until 1965 an American woman who married a foreigner lost her status by operation of a common law rule nobody had enacted, and an American man who married a foreigner did not. The rule was abolished in eleven words. The Attorney-General’s second reading speech spent longer on section 8 than on any other provision in the Act, and it is the only part of the statute that was reported in the newspapers at the time.

The remaining asymmetries, which were in the transmission provisions rather than in marriage, were not cleared until the Federal Equality Act 1971.

Part III: The Treaty Nations

Part III is the clause the Act is praised for, and the praise is deserved.

The American Rights Act of 1866 contained nothing whatever about the Indigenous nations, an omission the Realm has never satisfactorily explained and which was not repaired until the Extension Act of 1962, three years before this statute. The drafters of 1965 were therefore working immediately after the Realm had confronted the worst silence in its statute book, and they did not repeat it.

They also did something the 1962 drafters had not, which is that Part III was drafted with the nations rather than about them. Instructions went to the nations’ own counsel before the bill was printed; the drafts came back annotated; the annotations went into the text. Section 11 is entirely theirs. So is the second half of section 10.2.

Section 9.2 is the organising choice. Citizenship is additional, and takes nothing away. The Act does not offer a choice, does not require an election and does not treat the two memberships as competing, and section 10.2 forbids any authority to behave as though they were. This was the provision the nations had asked for most insistently, because the alternative being discussed in the departments in 1963 was an elective scheme under which members would opt in or out, which several nations said plainly would be experienced as a demand that people choose between two things they already were.

Section 11 is the provision with teeth. Membership is determined by the nation, by its own law, and no department, court or officer may go behind that determination. The Realm’s departments had spent a century doing exactly that, through blood quantum rules, roll audits and administrative findings, and section 11.2 stopped it in a sentence. It is the section most often cited in litigation arising from the Act, almost always successfully.

The substantive divisions at second and third reading were on this Part and on nothing else in the statute. The opposition was not large and its argument was the familiar one, that the Realm was surrendering a power it might need. It lost by comfortable margins in both Houses, and the members who moved it have not been well treated by the histories.

Part IV: Naturalisation, Registration and Restoration

Part IV is where the Act’s generosity becomes visible.

Section 12.2 converts the power into a duty. Where the requirements are met the Home Secretary shall grant, and has no discretion to refuse, which is unusual and was the subject of a good deal of departmental unhappiness in 1964. Section 13.3 completes it: no requirement other than those listed may be imposed by regulation or practice. Between them the two provisions removed from the Home Office a general discretion it had exercised for eighty years without statutory basis, and the Home Office has never got it back.

The language requirement at 13.1(c) was not in the Act as passed. It was inserted in 1988 and is the only substantive amendment the statute has received. Its saving grace is the second limb, which admits knowledge of another language official in the applicant’s polity of residence, so that a Spanish speaker in Louisiane or a French speaker in the same place satisfies it without English.

Section 15 is the sleeper of Part IV and is now the operative route for the whole population of Loreto. A subject who is not a citizen, resident three years, is entitled to be registered, without fee and without discretion. In 1965 the section was written for a category with nobody in it. It is now the single most-used provision in the Act.

Section 17 is the restoration clause, and it is the Act’s quiet reckoning with the exclusion era.

The corpus of exclusion statutes is described in the Realm’s own historiography as the first great federal restriction and the first great federal disgrace in the field. Section 17 opens registration, as of right, without fee, without residence and without time limit, to anyone excluded or deprived under them and to any descendant of such a person.

It is an extraordinary provision and it was carried without debate, in the third of four days, and was not mentioned at second reading, in the press, or in the Attorney-General’s own account of the bill. Almost nobody used it, because almost nobody knew it was there. Registrations under section 17 ran at a few dozen a year for four decades. They rose sharply after a newspaper article in the 2000s and rose again after a documentary, and the cumulative total is still under twenty thousand against a class the Realm has never troubled to estimate.

Whether section 17 is best read as a decency done quietly or an apology made inaudibly is the question the Act’s admirers and its critics divide on, and the Register does not think the evidence settles it. It is a fact that the clause exists, that nothing else in the statute book acknowledges the exclusion era at all, and that the Parliament which enacted it repealed the quota regime three weeks later without quite apologising for that either.

Part V: Loss, Renunciation and the Security of the Status

Part V is the Part the Act’s defenders reach for first.

Section 18.1 is the strongest provision in the statute. A person who is a citizen by birth or descent cannot be deprived of citizenship, by any authority, on any ground, in any circumstances. There is no exception for treason, for terrorism, for war, for emergency or for the acquisition of another nationality. There is no power in the Crown, in the Home Secretary or in a court to do it, and section 18.4 forecloses the achievement of the same result under a different statute.

Every comparable realm has since created a deprivation power of some kind and several have used them. The Realm has not, and the reason is not restraint on anybody’s part: the power does not exist, and creating one would require amending an Act that no government has been willing to open. Section 18.1 has been raised in Parliament as a defect four times, most recently after the May Day bombings of 2006, and it has survived each time with its supporters arguing that a status which can be withdrawn from the people a government dislikes is not a status but a licence.

Section 18.2 is the two-tier provision the Act could not avoid entirely, and it is drawn about as narrowly as a fraud provision can be: court order only, fraud by the applicant only, in the application only, and proceedings within five years of the grant. The five-year limit means that a naturalised citizen of six years’ standing is in exactly the same position as one born here. Orders under 18.2 average fewer than two a year.

Section 21 is the belt to section 18’s braces, and reads as a list of the things other countries do. Residence, absence, conduct, opinion, foreign office, foreign military service, conviction, executive determination: none of them affects citizenship. It was drafted by parliamentary counsel who had spent the previous year reading the nationality statutes of the other realms and had formed views.

Section 20.1 is the Act’s entire treatment of dual nationality. It does not prohibit it, permit it, regulate it or mention it again. The silence has been read as permission for sixty years by every department that has had to consider the question, and no court has been asked to disturb the reading.

Part VI: Subjects Who Are Not Citizens

Section 22.2 is the most remarkable sentence in the statute: at the commencement of this Act there is no such territory.

Parliamentary counsel wrote an entire Part of a statute, five sections long, and then recorded in the text that it applied to nobody. The Realm already held two Crown territories outside its polities, Guam and the American Virgin Islands, but their people had been made citizens by Acts of their own, the Virgin Islands in 1927 and Guam in 1950, and the closing words of section 22.1 were written to leave them where those Acts had put them. The reasoning appears in the drafting file and is entirely sensible. The Realm had held territory outside its polities before, in the ordinary course of admitting the west, and would foreseeably do so again; it was better to settle the status of such people in advance, calmly, than in the weeks after an acquisition when the question would be political. The Part was accordingly drafted to be fair on the assumption that nobody knew who it would apply to, which is close to a definition of drafting well.

For sixty-two years it applied to nobody. It was taught in constitutional law courses as the standard example of contingent drafting and it appeared in examination papers with some regularity. The practitioners’ textbook devoted a page and a half to it and described it, in an edition that stayed in print until 2019, as “of no current application and unlikely to acquire any.”

In 2027 the Realm acquired the Territory of Loreto, and Part VI acquired about four million people.

The Part has held up better than anybody had a right to expect. Section 24 is the reason: the drafters, not knowing who they were writing for, gave the category nearly everything. Allegiance and protection. The right to enter, reside and work in the Realm without leave, which is the substance of citizenship for most practical purposes. The full protection of the American Rights Act. And a route to citizenship at three years, as of right, without fee or discretion.

What it does not give is the vote in federal elections, and that omission is now the whole of the argument. Part VI assumed that a subject who wanted the franchise would move to the Realm and register under section 15, which is an entirely reasonable assumption about a coaling station and an absurd one about a territory of four million people with interim seats in the House of Commons.

Section 26.1 is the drafters’ last word and reads, in the circumstances, as a warning: this Part is not a permanent settlement of the status of any person, and shall not be relied upon as such by any authority. It has now been relied upon as such for rather longer than anybody intended.

Part VII: The King’s Other Realms

Part VII is two sections and it is the Part the Act was actually written to produce.

Section 27.1 states the doctrine of the divisible Crown as a rule of nationality law, and 27.2 states the consequence in the bluntest terms available: a subject of the King in Hanover, in Britain, in Ireland or in the Raj is, in American law, a foreign national, and is to be treated as one. The King is shared. Nothing else is.

The bluntness was intentional and it was contested. The objection at the time, made by people with long memories and by a good many of the Realm’s own consular officers, was that it was an unfriendly thing to write down about people who had until recently been regarded as something close to fellow subjects. The answer given was that the other realms had already done it, that they had done it without telling anybody, and that the Realm’s choice was between saying so and continuing to mislead its own population.

Section 27.3 is the pressure valve. Nothing in the Part affects rights arising under treaty, which is where reciprocal arrangements now live: the working and residence arrangements with Britain and Ireland, the arrangements with the other realms, and the various free movement conventions the Realm is party to all operate as treaty rights and not as incidents of a shared Crown. It is a tidier basis and it is a colder one, and the coldness is the point of the Part.

Section 28 gave a ten-year window to anybody who had been getting by on the old assumption. About sixty thousand people used it, mostly long-resident Britons and Irish who discovered in 1966 that they had been foreigners for some years without being told.

Part VIII: Evidence, Documents and Supplemental

Part VIII is machinery and contains two provisions worth stopping on.

Section 29.2 is a small masterpiece. The absence of a certificate is evidence of nothing. A person who cannot produce a document has not thereby failed to prove anything, because the Act does not put them to proof in the first place; section 29.3 completes the thought by providing that a requirement to prove status imposed by practice rather than by statute is of no effect. The two subsections together are why the Realm has never developed the administrative habit, common elsewhere, of requiring people to demonstrate their nationality in the ordinary transactions of life.

Section 30 keeps passports where the Realm has always kept them, which is at the Post Office. A passport is issued by the American Postal Service over a counter, in the same building that sells stamps, and section 30.2 states the constitutional position with some care: a passport is evidence of status and is not the status. A government that cancels a passport has restricted a person’s travel and has not touched what they are.

Section 30.1 also provides for passports to subjects as well as citizens, a sentence written for nobody in 1965 which has since produced about four million documents.

The Act in the courts

The Act is not much litigated, which is the best thing that can be said about a nationality statute.

The reason is structural. Sections 12.2 and 13.3 leave the Home Secretary almost no discretion to review; section 18 leaves almost nothing to be deprived; sections 29 and 30 leave the departments almost no occasion to demand proof. A statute that does not confer discretion does not generate administrative law, and for its first six decades the Act produced perhaps a case a year, most of them on section 7 and the descent provisions.

The exception is section 11.2, the provision that forbids any department, court or officer to go behind an Indigenous nation’s determination of its own membership. That section has been litigated steadily since 1965 and the nations have won nearly every time. The leading authority holds that a department which declines to accept a nation’s determination is not merely wrong but acting without jurisdiction, and that the question is not one on which the department’s view is entitled to any weight at all.

The other body of case law concerns section 21 and the various attempts by executive authorities to achieve indirectly what section 18 forbids directly: to treat a person as having lost citizenship by reason of conduct, foreign service or absence, without purporting to deprive them of it. Every such attempt has failed and section 18.4 is the reason.

What the Act does not do

It does not control immigration. Who may enter the Realm, on what conditions, and who may remain, are matters for wholly separate statutes which the Act does not touch and which have been amended many times while it has not.

It does not confer the franchise. The vote is regulated by the elections legislation and the two have never been aligned, which did not matter until 2027.

It does not provide for statelessness beyond the two saving provisions at 7.3 and 18.3, and the Realm’s obligations to stateless persons arise under conventions rather than under the Act.

And it does not say what the Realm is for, or who belongs to it in any sense beyond the legal one. The preamble’s rhetoric is about the citizen’s right to know the limits of their status and not about the content of being American. This is a statute drafted by lawyers for the avoidance of doubt, and the absence of any national sentiment in it is the reason it has aged as well as it has.

Loreto

The problem

The Realm acquired the Territory of Loreto in 2027, by purchase and cession under the Treaty of La Paz, ratified by a plebiscite carried 58 to 42. About four million people, on 144,000 square kilometres of the Baja peninsula, became subjects of the King in right of America on the day of commencement, by operation of section 23.2, without anybody in either government having to draft a word about their status.

That was Part VI working exactly as designed, and the Realm’s law officers said so at the time with some satisfaction.

What they got

Under section 24 they received, immediately and without application: allegiance and protection; the right to enter, reside and work anywhere in the Realm without leave; the full protection of the American Rights Act; and an entitlement to registration as citizens at three years’ residence in the Realm or in the territory, as of right, without fee, under section 15.

Under section 25, on the day Loreto is admitted as a polity, every one of them becomes a citizen automatically, without application or formality.

This is a great deal more than the inhabitants of acquired territory have been given by most states in most centuries, and it was settled sixty-two years before anybody knew who they would be.

What they did not get

The vote in federal elections, which is not in the Act at all.

And here the arrangement collides with itself, because the Treaty of La Paz granted Loreto interim seats in the House of Commons on commencement, at full quota on transferred Mexican census figures, so that the territory would not be without federal representation during the transitional period.

The result is that about four million people elect members of the House of Commons while holding a status that the Nationality Act defines as not being citizenship, and that a person in Tijuana may vote for a member of Parliament and may not, until three years have run, be registered as a citizen of the country whose Parliament it is. Constitutional lawyers noticed immediately. Nobody has yet produced an account of the position that is entirely satisfactory, and the Territorial Assembly has asked for one twice.

How it resolves

It resolves itself, slowly, by section 15 and by section 25. Registrations began in 2030 as the first three-year residences matured and have run steadily since. Admission of Loreto as a polity would complete the business in a day.

But the ultimate status of the territory is unsettled, admission is not near, and in the meantime a Part of a statute drafted for a coaling station is carrying the constitutional position of four million people. Section 26.1 told every authority in the Realm not to rely on Part VI as a permanent settlement. Every authority in the Realm is currently relying on it.

The Act in public life

It has none.

Most Americans do not know the Act exists and a good many would be surprised to learn that their nationality has a statutory basis at all, since the practice it codified is much older than the codification and feels like a fact about the world rather than a provision. The Act is not taught in schools. It has no anniversary. No politician has ever campaigned on it in either direction.

This is the direct consequence of the 1965 strategy. The bill was deliberately made boring so that it would pass, it was deliberately kept out of the newspapers so that it would not be amended, and it succeeded so completely that it has been invisible ever since. The Realm possesses one of the most generous nationality statutes in the world and has never once celebrated it.

The cost of that success is the standing risk. An Act with no public constituency, not entrenched, amendable on an ordinary majority on an ordinary afternoon, is protected by nothing except the fact that nobody has thought to attack it. Section 18.1 has been raised as a defect four times in sixty-three years. On the fifth occasion the defence will have to be mounted by people who will discover that they are explaining the statute from a standing start.

Assessment

It is the most generous statute the Realm has, and nobody knows it.

Take the provisions together. Citizenship by birth on the soil, with one exception and an express bar on inventing others. A foundling is a citizen and stays one. Marriage does nothing to anybody’s status, and the rule that stripped women of theirs was abolished in eleven words in 1965. Naturalisation is a duty and not a discretion, on five years, with no requirement that a department may add. A citizen by birth cannot be deprived of citizenship by anybody, on any ground, in any circumstances, and a naturalised citizen of six years’ standing is in precisely the same position. Conduct, opinion, absence and foreign service are all irrelevant. Dual nationality is untouched. Members of the treaty nations are citizens by birth and it takes nothing from them, and no officer of the Realm may go behind a nation’s determination of who its people are. And anyone excluded or deprived under the exclusion statutes, or descended from anyone who was, may be registered as of right, without fee, without residence, and at any time.

A Parliament that had spent four decades defending the quotas passed all of that in four days, and told nobody.

The second thing to say is about Part VI, and it is more difficult.

Writing a Part of a statute for people who do not exist, and saying so in the text, is either the finest piece of drafting in the Realm’s statute book or a demonstration of why it should not be attempted. The drafters could not know who Part VI would apply to, so they gave the category almost everything, which is what people do when they do not know which side of a rule they will be on. That instinct produced a settlement more generous than the one a Parliament in 2027 would have negotiated with four million Mexicans in front of it, and the Loretanos have unambiguously benefited from having had their status decided by strangers in 1965.

It also produced a settlement built for a scale nobody imagined. Part VI assumed that a subject who wanted the vote would move; it did not contemplate a subject population with seats in the Commons. Section 26.1 anticipated precisely this and warned against it, which is the drafters acknowledging in the text that they had written something provisional, and it has not stopped the provisional thing from becoming the arrangement.

The foresight and the negligence are the same clause. A Part written to be fair to people the drafters could not picture has been fair to them; a Part written for a contingency of a certain size has been asked to carry one of another. Both of those are true of section 22.2, and the Realm has not yet decided which of them it is going to say about it.

Chronology

Trivia

See also

• The American Rights Act, the supreme statute of the Realm, whose Part on the Indigenous nations was inserted three years before this Act took the same approach further
• The Charter of Union, which reserved nationality to the Union and left immigration to the polities
• The Crown in right of America, the doctrine of divisibility on which Parts I, VI and VII rest
• Treaty Nations of the United Kingdom of America, the nations whose members Part III makes citizens by birth
• The Territory of Loreto, acquired in 2027, whose four million people are the entire population of Part VI
• John F. Kennedy, Prime Minister 1960 to 1966, whose ministry carried both bills of the 1965 session
• The American Postal Service, which issues the Realm’s passports over a counter
• Styles and Titles of the Crown, for the fourteen capacities that Part VII holds apart

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Laws · Institutions · Statutes · Nationality · The Crown