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''Calvin's Case'' (1608), 77 ER 377, (1608) Co Rep 1a, also known as the ''Case of the Postnati'', was a 1608 English legal decision establishing that a child born in Scotland, after the
Union of the Crowns The Union of the Crowns ( gd, Aonadh nan Crùintean; sco, Union o the Crouns) was the accession of James VI of Scotland to the throne of the Kingdom of England as James I and the practical unification of some functions (such as overseas dipl ...
under King
James VI and I James VI and I (James Charles Stuart; 19 June 1566 – 27 March 1625) was King of Scotland as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the Scottish and English crowns on 24 March 1603 until h ...
in 1603, was considered under the common law to be an English subject and entitled to the benefits of
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...
. ''Calvin's Case'' was eventually adopted by courts in the United States, and the case played an important role in shaping the American rule of birthright citizenship via '' jus soli'' ("law of the soil", or citizenship by virtue of birth within the territory of a
sovereign state A sovereign state or sovereign country, is a political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defined terr ...
).


Facts

Under the
feudal system Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structu ...
, the
allegiance An allegiance is a duty of fidelity said to be owed, or freely committed, by the people, subjects or citizens to their state or sovereign. Etymology From Middle English ''ligeaunce'' (see medieval Latin ''ligeantia'', "a liegance"). The ''al- ...
owed to a king by his subjects—connected as it was to the holding of interests in land—ruled out the possibility of any given individual holding land in two different kingdoms. Robert Calvin, born in Scotland in November 1605, was granted estates in England, but his rights to that were challenged on the grounds that, as a Scot, he could not legally own English land. As it happened, the child "Robert Calvin" was actually named Robert Colville; he was the son of Robert Colville, Master of Culross, and grandson of the courtier James Colville, 1st Lord Colville of Culross.


Judgment

The
lord chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. Th ...
,
Thomas Egerton, 1st Viscount Brackley Thomas Egerton, 1st Viscount Brackley, (1540 – 15 March 1617), known as 1st Baron Ellesmere from 1603 to 1616, was an English nobleman, judge and statesman from the Egerton family who served as Lord Keeper and Lord Chancellor for twenty-on ...
, alongside 14 judges gathered in the Exchequer Chamber ruled in Calvin's favour, finding that he was not an alien and did have the right to hold land in England.Sir Edward Coke, ''The Selected Writings and Speeches of Sir Edward Coke'', ed. Steve Sheppard
(Indianapolis: Liberty Fund, 2003). Vol. 1. 31 March 2017.
Two of those dissented: Sir Thomas Foster (1548–1612) and Sir Thomas Walmsley. Although not directly relevant to the case,
Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
used the occasion to discuss the position of "Perpetual enemies", specifying "All Infidels are in Law perpetui inimici (perpetual enemies)" (166). Having accepted that a king who conquers a Christian kingdom is constrained by the continuance of such laws as exist until new laws are put in place, he continues, however, "if a Christian King should conquer a kingdom of an Infidel, and bring them under his subjection, there ''ipso facto'' the Laws of the Infidel are abrogated, for that they be not only against Christianity, but against the Law of God and of Nature." (170). Robert A. Williams Jr. argues that Coke used this occasion to quietly provide a legal sanction for the London Virginia Company to dispense with affording Native Americans any rights as they settled in Virginia.


Significance


''Postnati'' and ''antenati''

The decision in ''Calvin's Case'' hinged on Calvin's status as one of the ''postnati''—subjects born into the allegiance of the Scottish king James after he had become the
king of England The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies (the Bailiwi ...
in 1603—and on the fact that the monarch into whose allegiance he was born (the same James, in his capacity as
King of Scots The monarch of Scotland was the head of state of the Kingdom of Scotland. According to tradition, the first King of Scots was Kenneth I MacAlpin (), who founded the state in 843. Historically, the Kingdom of Scotland is thought to have grown ...
) was also the English king at the time of Calvin's birth—meaning that Robert Calvin, in the judgement of the court, was just as much a subject of the king of England as if he had been born in England instead of Scotland. The judges of the court cited existing statutes—including particularly a 1351 statute, '' De Natis Ultra Mare'', which granted the benefits of subject status to foreign-born children of the king's subjects—as supporting the concept that allegiance was tied to the person of the king, rather than to the kingdom itself or its laws. ''Calvin's Case'' did not extend English subject status to the ''antenati'' (Scots born prior to 1603). They remained aliens in relation to England, on the theory that King James had not yet become the king of England at the time of their birth. Attempts had been made in the
English Parliament The Parliament of England was the legislature of the Kingdom of England from the 13th century until 1707 when it was replaced by the Parliament of Great Britain. Parliament evolved from the great council of bishops and peers that advised ...
, prior to ''Calvin's Case'', to naturalise all of James's Scottish subjects—both those born after his English accession in 1603 (the ''postnati'') and also those born before 1603 (the ''antenati'')—but these legislative efforts had been unsuccessful. Concerns had been expressed that extending the privileges of English subjects to all Scots would cause England to be flooded by "an influx of 'hungry Scots'". Objections were also raised that granting naturalisation to all the Scots would have encouraged the legal philosophy, espoused by James, of
absolute monarchy Absolute monarchy (or Absolutism as a doctrine) is a form of monarchy in which the monarch rules in their own right or power. In an absolute monarchy, the king or queen is by no means limited and has absolute power, though a limited constitut ...
and the
divine right of kings In European Christianity, the divine right of kings, divine right, or God's mandation is a political and religious doctrine of political legitimacy of a monarchy. It stems from a specific metaphysical framework in which a monarch is, before ...
. Even after ''Calvin's Case'', the English Parliament could have enacted a naturalisation bill covering the ''antenati'', but it never did so.


Later influence

''Calvin's Case'' contributed to the concept of the
Rights of Englishmen The "rights of Englishmen" are the traditional rights of English subjects and later English-speaking subjects of the British Crown. In the 18th century, some of the colonists who objected to British rule in the thirteen British North American ...
.Hulsebosch, Daniel J., ''The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence.'' Law and History Review 21.3 (2003): para. 28–33. Found a
History Cooperative website
. Retrieved 21 May 2012.
Some scholars believed that the case did ''not'' fit America's situation, and thus reasoned that the 18th century colonists ''could'' "claim all the rights and protections of English citizenship."Ellen Holmes Pearson, ''Revising Custom, Embracing Choice: Early American Legal Scholars and the Republicanization of Common Law'', in Eliga H. Gould, Peter S. Onuf, ed., ''Empire And Nation: The American Revolution In The Atlantic World'', (Baltimore:
Johns Hopkins University Johns Hopkins University (Johns Hopkins, Hopkins, or JHU) is a private research university in Baltimore, Maryland. Founded in 1876, Johns Hopkins is the oldest research university in the United States and in the western hemisphere. It consiste ...
Press), , p. 102, n. 33; found a
Google books
Retrieved 21 May 2012.
In fact, one scholar asserts that the legal apologists for the
American Revolution The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revoluti ...
claimed they had "improved on the rights of Englishmen" by creating additional, purely American rights. Owing to its inclusion in the standard legal treatises of the nineteenth century (compiled by
Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
,
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family in ...
, and James Kent), ''Calvin's Case'' was well known in the early judicial history of the United States. Consideration of the case by the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
and by state courts transformed it into a rule regarding American citizenship and solidified the concept of '' jus soli'' as the primary determining factor controlling the acquisition of citizenship by birth.Price (1997), p. 138–139. The case has also been cited as providing legal justification for the restriction of legal rights to Native Americans following their conquest and confinement in reservations by the
federal government of the United States The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a feder ...
.


See also

*
United Kingdom immigration law United Kingdom immigration law is the law that relates to who may enter, work in and remain in the United Kingdom. There are many reasons as to why people may migrate; the three main reasons being seeking asylum, because their home countries hav ...
* ''
Jus sanguinis ( , , ; 'right of blood') is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of t ...
'', an alternative theory of citizenship based on inheriting citizenship from a parent or parents * ''
Stare decisis A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
'', a legal principle whereby new decisions should be consistent with established precedents


Notes


References

* Harvey Wheeler, ''Francis Bacon's Case of the Post-Nati:(1608); Foundations of Anglo-American Constitutionalism; An Application of Critical Constitutional Theory'', Ward, 1998 {{DEFAULTSORT:Calvin's Case 1608 in English law 1608 in international relations 1608 in law James VI and I Edward Coke cases Court of King's Bench (England) cases English land case law United Kingdom constitutional case law British nationality law Feudalism in England History of nationality Human migration Legal history of England United States nationality law England–Scotland relations