An English Reader Gives Us A "Birthright" History Lesson
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March 11, 2011, 04:00 AM
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Re: Allan Wall`s Article Birthright Citizenship—How Some Other Countries Handle It

From: Matthew Slater [Email him]

I am an English conservative, and I enjoyed Allan Wall`s article on birthright citizenship. Having looked at the CIS article on birthright citizenship, there is one striking thing: many of the countries that do or did grant automatic citizenship to those born on their territories are from the British common law tradition. [See Birthright Citizenship in the United States: A Global Comparison August 2010]

The US and Canada still grant automatic birthright citizenship, and Britain, Ireland, Australia, New Zealand (and former British colonies such as India and Malta) once did.

From a British historical perspective, jus soli (birthright citizenship) was always contrasted with Germany`s jus sanguinis (citizenship by descent). English common law always assumed that those born in England were English (and after the 1707 Act of Union, those born in Britain were British).

However, the ancient common law, which was inherited by all the English-speaking countries, was never arrived at in the context of multiculturalism and easy immigration. Jus soli in a context where all those who arrived in England (a handful of people in the days before mass immigration) were from closely related nations in Christian Western Europe. They would assimilate within a generation and disappear as distinct communities.

A challenge to jus soli was the Jewish community in England. This community was probably present in England in very small numbers from the middle of the tenth century, but was noted for its failure to completely adopt English identity and culture. (It needs to be borne in mind that religion was a much more salient feature of culture and identity ten centuries ago than it is today, and so maintaining a minority religion was a clear sign of failing to integrate).

But the common law was an organic development over centuries. The question of whether Jews born in England were "citizens" would have been foreign to the tenth to thirteenth centuries: English law referred to the English as "subjects" of the crown rather than "citizens"—the Jews were "subjects" of the crown, but a special case in their refusal to conform to English culture. So Edward I found no legal objection to his expulsion of the entire community from England in 1290 (apart from a small number who converted to Christianity).

The return of that community in significant numbers to England didn`t happen until the 17th century: small numbers had crept in prior to the English Civil War, but a much larger influx was permitted by Oliver Cromwell during the Protectorate, and there was no attempt to reverse the inflow after the Restoration of 1660. It needs to be borne in mind that this community numbered only around 300 in the 1660s, largely new arrivals from Spain and Portugal.

In the 18th century, the growing commercial prominence of the Jewish community and their loyalty to the crown during the Jacobite rebellion of 1745 led to the Jewish Naturalization Act of 1753, but the national outcry was so great the Act was repealed in 1754. However, the majority of Jews of the time were born in Britain, and so regarded as British subjects under the jus soli laws.

It is interesting to see the common law assumption that foreigners were subjects of the crown threatened by a community that maintained its own culture. But ultimately the Jews were a small community native to Europe, and so the issue was eventually glossed over. The modern circumstances of mass immigration of visibly alien peoples didn`t begin until the 1950s, leading eventually to a change of the law in the 1980s.

The US is an interesting case: it had common law traditions too, but in fact birthright citizenship of all within US borders is not traceable back to the common law, but rather to the deliberate misinterpretation of the 14th amendment of the US Constitution. The reason the common law presumption of "subjecthood" did not function in the US was simply the presence of relatively large numbers of people who were clearly not American. It is an interesting question whether Red Indians born in territory on the American continent claimed by Britain before 1776 (or before the Treaty of Paris) were British subjects, but Britain entered into treaties with some of these tribes, and so it is likely they were viewed as quasi-foreign nations both before and after 1776.

But I have a question for One way to prevent the historic American nation from dwindling would be to allow immigration (at a level consistent with US public opinion and economic realities) from north-west Europe. Now, Article 8 of the Treaty of Paris in 1783 specifically granted British subjects (who included Canadians at the time) the right to navigate up the Mississippi, as the US did not claim any territory beyond that point ["The navigation of the river Mississippi, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States."]

The US government claims that this clause in the treaty is null and void following the incorporation into the US of the Western states. (See Treaties in Force |A List of Treaties and Other International Agreements of the United States in Force on January 1, 2010, US State Department,  PDF  page 289, which says only Article 1 of the Treaty remains in force.  Yet strangely enough, the US government claims that Article 3 of the Jay Treaty of 1794, relating to the right of Indians to cross the US border with Canada remains in force (see page 281) despite the fact that the Indians are US citizens now: it seems the interpretation of these treaties is governed by racial considerations].

But that sounds like a unilateral abrogation of a treaty provision to me. Can tell me why English people do not have the right of free immigration to all American states west of the Mississippi?

If the Treaty of Paris were interpreted in that way, it would be one way in which America`s demographic train crash could be slowed!

[See previous letters by Matthew Slater.]