Posted on 03/10/2022 4:49:25 PM PST by CDR Kerchner
I have been thinking that's where English law solidified under Jus Soli.
Well, help me out.
The Constitution qualifies federal elected officials in two different ways: those who are "citizens" and those who are "natural born citizens". The latter term applies to only the Commander-in-Chief and his immediate successor the VP, just two people out of the entire nation.
As we know, the second term, NBC, was prompted out of concern that the head of our armed forces would not hold any parentage form of possible allegiance to a foreign government say, for example, England or France.
Also, since the founders knew it was not possible in the near future for a candidate to have been born in the U.S. they were just forming, they provided that any citizen at the time of adoption of the Constitution could serve as Commander.
How do you think the founders distinguished between the two classes?
Levin’s U.S. Constitutional NBC Definition: Everyone born anytime anywhere in the world other than those born overseas to two non-U.S. citizen parents.
That seems an accurate understanding of Levin's definition.
Frog's definition: The term NBC as used by the founders cannot be defined by what the founders' DIDN'T say ("if they had intended that, they would have said it") rather, by what they did; i.e., by how they edited the language to exclude any other definition.
1. With reference to the qualifications for president alone, after further consideration they removed from the proposed draft the single word "citizen" and replaced it with the more exacting term NBC. Why would they have done that? Jay's letter provides the reason.
2. After even more consideration, they added by amendment the condition that ANY citizen was qualified for the presidency so long as they were alive at the time of adoption of the Constitution. Obviously, they realized there could be no NBC candidates until sometime after adoption, that only if born after adoption could one qualify as a NBC.
So, regardless of whether there were any other definitions that may seem applicable, we know exactly what the founder's intended and sought to achieve.
Jay’s use in 1787 of the phrase “None but” in conjunction with the already known and used term natural Born citizen (Adams in his role as plenipotentiary minister if the U.S. used it in drafts of the Treaty of Paris circa 1782-1783) would seem to suggest a great deal more exclusivity than Levin is willing to admit.
As in, the maximum level of exclusivity.
s in, at least one generation’s worth of buffer between the person being born and any potential heart-string-plucking foreign influence or residual affection.
As in, as this commenter had grown fond of saying, a plain vanilla U.S. American. Zero exotic flavoring.
I mean, have you ever considered what would have happened had it been decided the other way?
I have, and it leads me to conclude that the case was decided on the basis of what the King needed, and not so much on the basis of what was actually true.
It's my understanding that England originally had the Roman law version of "subject", but at some point in their history, they solidified behind Jus Soli.
Why?
The Founding Fathers mention naturalized citizens in the parts regarding Representatives and Senators so it is clear that they understood the concept of naturalized citizens.
But that is not the real issue. The real issue is that our legal system relies on court-generated precedents as well as laws and the Constitution.
Given everything that has happened so far in this area, I think that a new law or even a Constitutional amendment would be needed to change the way we adjudicate natural-born citizenship, and Obama, Harris, etc., are NBCs.
It doesn’t matter what the FFs thought, since our current legal way of looking at the issue rests on the 14th Amendment, which is after their time, and subsequent legal rulings.
Would like to get your take on Calvin’s case.
Would like to get your take on Calvin’s case.
Calvin's Case (1608) decided that children born of Scots after the 1603 accession of James I to the throne were natural born subjects of the king. The sitting judge was Lord Ellsemere. Lord Coke was among the fourteen judges who decided the case. Calvin was born in Scotland November 1605.
Calvin's Case is the genesis for jus soli, the English common law of birthright citizenship due to place of birth. The United States recognizes both jus soli, and jus sanguinis, law of blood, or inherited citizenship.
Calvin's Case 7 Coke Report 1a, 77 ER 377
Case of the postnati.
Black's Law Dictionary, 11th Ed.
postnatus. [Latin] (17c) A person born after a certain political event that affected tyhe person's political rights; esp., a person forn after the Declaration of Independence. Cf. Antenatur. Pl. postnati.- - - - - - - - - -
Calvin's case. (17c) The decision establishing that persons born in Scotland after the 1603 accession of James 1 to the English throne were deemed natural-born subjects of the King of England and could inherit English land. Calvin v. Smith, 7 Eng. Rep. 1, 2 S.T. 559 (1608)
7 Coke Report 6b, 77 ER p384
3. Concerning the local obedience it is observable, that as there on the King's part, so there is a (d) local ligeance of the subject's part. And this appeareth in 4 Mar. Br. 32. (e) and 3 and 4 Phil. and Mar. Dyer 144. Sherley a Frenchman, being in amity with the King, came into England, and joined with divers subjects of this realm in treason against the King and Queen, a concluded (f) contraligeant' suae debitum; for he owed to the King local obedience, that is, so long as he was within the King's protection; which local obedience being but momentary and uncertain, is yet strong enough to make a natural subject; for if he hath issue here, that issue is (g) a natural born subject; a fortiori he that is born under the natural and absolute ligeance of the King (which, as it hath been said alta ligeantia) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia, est ligeantia intima et minima, et maxima incerta. And it is to be observed, that it is nec caelum, nec solum, neither the climate nor the soil, but ligeantia and obedientia that make the subject born; for if enemies come into the realm, and possess town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soil, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King.
A Frenchman who enters Britain and joins in treason against the British crown, should he have a child in Britain, the child is a natural born subject, in accordance with the explicit wording of Sir Edward Coke regarding Calvin's Case.
However, if Barack Obama's father had been part of an invading army that had captured Hawaii, and was there when Hawaii was being held as occupied territory not under the control of the United States, and baby Barack was born in said occupied territory to a member of the invading force, that would not have conferred natural born citizenship pursuant to jus soli.
English Reports, Volume CXLV, 145 E.R. 223
CASE LXXXII. 6 Jac. 7 Co. 1, Calvin's case. Alien, Denizen. 7 Co. 18 b. 27, 2 Vent. 6. See concerning Aliens, the statutes following. 11 and 12 W. 3, cap. 6. 12 W. 3, cap. 2. 7 Annæ , cap. 5. 1 G. 1 , cap. 4. 5 G. 1 , cap. 27. 4 G. 2.[S. C. 7 Co. Rep. 1; 77 E. R. 377 (with note).]
A Scot born after the death of Queen Elizabeth, is a leigeman of England: otherwise of a Scot born before: for after the death of Queen Elizabeth, the English and Scots became subjects to one King; and their birth being under the allegiance of one King, is all one with those of Wales and Ireland. Calvin postnatus in Scotland brought an assise of lands in Middlesex; and it was pleaded to his person, that he was an alien born in Scotland, after the death of Queen Elizabeth sub ligeantia Regis Scotiæ; there was a demurrer upon this plea; it was adjourned several terms: at last it was resolved for the plaintiff by all the judges of England; and only a respondent ouster against the defendant, and not peremptory; although it was adjourned, as aforesaid.
A Scot antenatus has a son born in England; this antenatus is made a denizen; and purchases land in fee, and dies; this land does not descend to his son: for the said son was not born before the denization of the father. So of every other alien. But of a son born after the denization, the law is otherwise: for the denization gives him English blood as to the issue born afterwards only. It is otherwise of naturalization.
If a demurrer is joined upon a plea to the jurisdiction, person, writ, upon view, aid, voucher, essoin; although it be adjourned to another term, and judged against the defendant who pleads such plea; it is only a respondeat ouster. If the plea to the writ, upon issue joined, be found for the tenant or defendant, the writ shall abate. If to the person, action, or jurisdiction, and it be found for the demandant or plaintiff, he shall recover the thing in demand.' Upon a counterplea of view, resceit, essoin, or aid; and found for the tenant upon issue joined; the writ shall not abate: but view, resceit, essoin, aid prayer shall only be awarded. Upon a counterplea of voucher, if it be found for the tenant upon issue joined; the judgment shall be, that the voucher shall stand: if for the [307] demandant; the demandant shall recover the land: and it is so ordained by West. 1, cap. 39. 7 H. 6, 41. 7 H. 6, 41. 15 E. 4. Fitz. Assise, 33. 36 Ass. pl. 6. Where the view, essoin, aid or resceit are demanded; and it is found for them upon a counter-plea; the demandant is only delayed; and this delay is sufficient punishment for him; and the writ is admitted good, and shall not abate. Upon a counterplea of voucher where it is found for the demandant; he shall recover the land: for it is so ordained by the said statute. In case of a plea to the writ, person or action, found for the defendant or tenant; the defendant or tenant is unjustly troubled; and therefore the writ ought to abate. The law presumes greater delay and expence upon a trial by a jury, than upon demurrers; if upon any of those pleas there be a trial by a jury, and it be found for the demandant; he shall recover the land.
https://en.wikipedia.org/wiki/Calvin%27s_Case
Postnati and antenatiJames, King of Scots, inherited the throne of England in 1603, uniting both kingdoms under a single monarch.
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 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) 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, 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 and the divine right of kings. 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. 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." In fact, one scholar asserts that the legal apologists for the American Revolution 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, William Blackstone, 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 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. 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.
http://www.uniset.ca/naty/maternity/9YJLH73.htm
See also Polly J. Price, NATURAL LAW AND BIRTHRIGHT CITIZENSHIP IN CALVIN'S CASE (1608), 9 YALE J.L. & HUMAN. 73 (1997)
To be clear what common law is, the definition in Black's Law Dictionary, 6th Ed. follows. Written law takes precedent over common law. Any common law inconsistent with the Constitution and any statute law is inapplicable.
Common law. As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The "common law" is all the statutory and case law background of England and the American colonies before the American revolution. People v. Rehman, 253 C.A.2d 119, 61 Cal. Rptr. 65, 85. It consists of those principles, usage and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. Bishop v. U. S., D.C.Tex., 334 F.Supp. 415, 418.As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals.
Calif. Civil Code, Section 22.2, provides that the "common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State."
In a broad sense, "common law" may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs.
To any who may consider that the Law of Nations in any way governs domestic citizenship determinations of the United States (or anywhere else), it is useful to know what the Law of Nations is.
Black's Law Dictionary, 6th Ed.
Law of nations. See International law.
Law of Nations is just the gone out of fashion term for International Law. Domestic citizenship determinations in the United States are governed by United States law, not international law.
What would have happened had the Judges decided the case the other way?
My recollection is that the decision was not unanimous. With the entire weight of the King behind one desired result, it would appear that the dissenting Judge was very brave.
Lord Coke was the very representative of the King's will, and it cannot be ignored what sort of pressure this would place on those who would give a ruling contrary to what the King absolutely needed to have.
Was this actual law, or was this political necessity?
At some point the English left the Roman law, and went to this. At what point did they do this and why did they do this?
I say they did this because they *had* to do this to avoid Civil war.
What would have happened had the Judges decided the case the other way?
Calvin was granted estates in England. English law required one be a subject in order to own English land. At issue was whether Calvin, a Scot, could own land in England. Had the case gone the other way, Calvin would not have had his ownership of the estates in England recognized, and his heirs could not have inherited the estates from him.
For persons born in the United States, post 14th Amendment, that is the governing law, taking precedent over any conflicting law.
All persons born in the United States, and subject to the jurisdiction thereof, are deemed citizens by virtue of the circumstance of their birth, pursuant to the organic law of the United States.
No statute law can add to or subtract from the Constitution. Congress is delegated no authority to amend the Constitution.
The Constitution does not say all persons born in the United States of citizen parents, or one citizen parent. It says nothing of parentage whatever. No such condition can be added without an amendment to the Constitution.
One is either born a citizen (a natural born citizen), or born an alien.
14A is not exclusive. Federal Statute law controls the status of children born outside the territory of the United States.
My recollection is that the decision was not unanimous. With the entire weight of the King behind one desired result, it would appear that the dissenting Judge was very brave.
Lord Chancellor Thomas Egerton, 1st Viscount Brackley, and 14 judges ruled in favor of Calvin. Sir Thomas Foster and Sir Thomas Walmsley dissented. 15 to 2 ain't bad.
The case was in the Court of Exchequer, as opposed to, e.g., the King's Bench.
Black's Law dictionary, 11th Ed.
Court of Exchequer. (16c) Hist. A former English superior court responsible primarily for adjudicating disputes about the collection of public revenue. • In 1873, it became the Exchequer Division of the High Court of Justice. In 1881, that Division was merged into the Queen's Bench Division.
At issue was whether Calvin, a Scot, could own land in England.
Was this actual law, or was this political necessity?
An actual statute law was cited — De Natis Ultra Mare (Status of Children Born Abroad Act 1350). This granted subject status to foreign-born children of the king's subjects.
At some point the English left the Roman law, and went to this. At what point did they do this and why did they do this?
English law recognizes citizenship by place of birth and by blood or inheritance. The children born in Britain, subject to the jurisdiction, were subjects, regardless of the subject status of the parents. The children of subjects, wherever born, were subjects.
Those not born subject to the jurisdiction include the children of accredited diplomats who confer diplomatic immunity upon their children, visiting royalty where, through a legal fiction, the country of the royal travels with him; or the child of invaders who hold territory of the realm. The invaders, although in territory of the realm, are not under the protection of the king and owe no allegiance to the king.
For additional English laws, see, for example: (the first citation is to a law dating to the seventh year of the reign of Queen Anne).
7 ANNE, c. 5, 1708
An Act for naturalizing Foreign Protestants.[Whole Act except part printed rep. 10 c. 9 (c. 5 Ruff.)]
3. . . . the children of all natural born subjects born out of the ligeance of her Majesty her heires and successors shall be deemed adjudged and taken to be natural born subjects of this kingdom to all intents constructions and purposes whatsoever.
(a) Guines and Gascony,
(b) add assented
(c) and kept
Case XCI. 5 Eliz. Dyer, 224. Alien, Denizen. 7 Co. 22 b. 20. Vaugh. 282. 2 Vent. 6.
A bastard born at Tour-nay in France, when H. 8 had subdued it, between English parents, is a natural subject of England; and continues so although Tournay be won back by the French: for he was born in obedientia & ligeantia regis Angliæ. By the two chief justices and other judges.The law is the same although the mother be French; or the father and mother French; for the reason is alike: such also is the law, if an husband and wife who are aliens have issue born in England, where the parents were born in France. If a Frenchman marries an English woman, and has issue born in France; this issue is not a natural subject of France; as appears by a book called Treasure de Francois in the title De droit de Aubien, i.e. de alienigenis. It * seems reasonable that our law for the future should not shew more favour to the issue of aliens born in England, than the issue of English parents receive abroad in France. See my Repertory, title Alien and Denizen.
* See above 1, 2. 10 W. 3, cap. 1. 11 & 12 W. 3, cap. 6. 7 Annæ, cap. 5. 1 G. 1, cap. 4. 5 G. 1, cap. 2. 4 G. 27, cap. 21.
The Roman Civil law system and the English Common law system are vastly different systems of law. We use the English Common Law system in 49 of the 50 states. Louisiana uses a Civil Law system adapted from the Napoleanic Code system.
The body of common law which makes up an abundance of law in the common law system of law is the collection of legal precedents handed down by the appellate courts.
We have laws written in broad terms and courts fill in details. The code system does not rely on precedents. It's in the written code or it ain't. The codes are voluminous.
I say they did this because they *had* to do this to avoid Civil war.
The idea of children born in a realm being subjects of the realm probably dates to antiquity. The idea of children born of subjects beyond sea being born subjects of the realm probably dates at least back to the first royal who dropped a kid outside the realm.
In Calvin's Case, English law required one to be an English subject to own English land. I don't think the matter had anything to do with averting a civil war.
Considering things British leads to all nature of things seeming strange to Americans. The queen and head of state of Canada is Queen Elizabeth, and Canadians are subjects of Queen Elizabeth. The Scottish legal system is separate, apart and different from the English legal system. The two who share a legal system are England and Wales.
For American citizenship determinations, we use American law. Anything inconsistent with the Constitution is null and void.
Any ancient law, and any current law, repugnant to the Constitution, is null and void.
The Constitution only controls citizenship status for those born within the territory of the United States. For those born outside the territory of the United States, Federal statute law is controlling. The current controlling law is the Immigration and Nationality Act of 1952, as amended.
Well this is true, but I was hoping you would have gone a little further with it.
Of course it affects Calvin (Robert Colville) negatively, but what do you suppose would have been the reaction among the rest of the Scots if they were told they couldn't own land in England?
I argue this case was an existential crises for King James VI.
If it was so clearly the law, why any dissent at all? The fact that there was dissent implies that this view of the law is not so cut and dried as we have been led to believe.
I have pondered the consequences of what would have happened had the case gone the other way. A decision rendering all of the Scots deprived of land ownership in England would have appeared to them as a "second class citizen" status, and they would not have stood for it.
Relations between Scotland and England had long been tense, and this would have just stirred massive unrest in Scotland. I think it could have blown apart the tenuous Union of the Crowns.
I think nobody understood this better than James IV. He *HAD* to make that decision come out as it did, and in those days, the King could bring enormous pressure to bear on anyone who would gainsay him what he wanted.
Did these Judges decide this issue based on what was actually the law, or did they decide it based on political necessity?
With the very obvious need to the King to have Scotsmen seen as equals in England, it is incredible that two Judges saw fit to disagree.
Of course it affects Calvin (Robert Colville) negatively, but what do you suppose would have been the reaction among the rest of the Scots if they were told they couldn't own land in England?
It is open to speculation, but then or now, I rather doubt many Scots are seriously concerned about owning land in England. They would much rather be having a pint at their local and loudly singing Flower of Scotland.
I argue this case was an existential crises for King James VI.
Any existential crisis King James went through in 1608 makes no difference to citizenship determination in the United States 400 years later.
The law cited previously was De Natis Ultra Mare (Status of Children Born Abroad Act 1350) The official citation is 25 Edw III. Stat. 2. That's from the 25th year of the reign of King Edward III. Apparently, it remains if effect in England.
For the antiquity of recognition of both jus soli and jus sanguinis, and for Calvin's Case or The Case of the Postnati, see below.
Dating as far back as the thirteenth century, the ‘subject’, as position and identity, was legally defined through a complicated mixture of both ‘soil and blood’.
https://library.oapen.org/bitstream/handle/20.500.12657/50188/9789048552283.pdf?sequence=1
Nandini Das, Joao Cicente Melo, Haig Z. Smith, and Lauren Working, Keywords of Identity, Race, and Human Mobility in Early Modern England, Amsterdam University Press
Creative Commons License CC BY NC ND (Credit must be given to the creator; Only noncommercial uses of the work are permitted; No derivatives or adaptations of the work are permitted)
[245]SUBJECT
‘Subject’ entered the English language from multiple sources, including the classical Latin subiectus, which indicated a subordinate or dependent individual ruled by a monarch or sovereign state, and from the Anglo- Norman suget, suject, and its variants. The subject’s political, legal, and social identities thus had a long tradition in England, whose foundations were firmly rooted in common and civil law. Dating as far back as the thirteenth century, the ‘subject’, as position and identity, was legally defined through a complicated mixture of both ‘soil and blood’.1 Early modern subjecthood had its foundations in medieval ideas of territorial allegiance, established at birth. The thirteenth-century English jurist and cleric Henry de Bracton acknowledged this when he suggested that foreign-born subjects of another king could not be heard at an English court ‘as an Englishman is not heard, if he implead any one concerning lands and tenements in France’.2 This meant that allegiance, and subsequently subjecthood, was ‘based on territory – not by virtue of land one owned, but because of the monarch in whose land one was born’.3 Bracton’s definition of subjecthood highlighted the common law tradition in England from which jus soli (‘right of the soil’) stemmed from. On the other hand, the idea of jus sanguinis (‘right of blood’), which had its roots in civil law, also fashioned English legal perceptions of subjecthood.
Passed during the reign of Edward III, the statute of De natis ultra mare highlights how these two legal traditions operated in conjunction in English law.4 The law, which according to Kim Keechang was passed to guarantee the status of the children of the king’s soldiers born abroad, stated that those children who were born outside England but whose ‘fathers and mothers, at the time of their birth’ were English would have and ‘enjoy, the
1 Jacob Selwood, Diversity and Difference in Early Modern London (Farnham: Ashgate, 2010), p. 90; Polly. J. Price, ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’, Yale Journal of Law and Humanities, 9:1 (1997), 92–97; ‘Subject, n.’, Oxford English Dictionary.
2 Selwood, Diversity and Difference, p. 90; Henry De Bracton, Legibus et Constuetudinbus Angliae, cited in Calvin’s Case or The Case of the Postnati (1608), 7 Coke Report 1a, 77 ER, p. 397.
3 Selwood, Diversity and Difference, p. 90.
4 ‘Status of Children Born Abroad’, 1350, 25 Edw. III Stat.1; Kim Keechang, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000), pp. 116–125; Selwood, Diversity and Difference, p. 90; J. Mervyn Jones, British Nationality Law and Practice (Oxford: Oxford University Press, 1947), p. 66.
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same benefits and advantages’ as their parents.5 As Polly J. Price has shown, the act ‘permitted children to acquire subject status by birth according to descent’, fusing together the two legal forms.6 The statute did ultimately weigh in favour of jus soli, however, as a child could only obtain subjecthood through the blood of English-born parents. This was further entrenched in 1368, when Parliament responded to a petition that requested that children born in the king’s overseas territories should be able to inherit as those born in England.7 The act ensured that anyone born in the sovereign’s territories outside England were entitled to the same rights and status of those born in England.8
During the sixteenth and seventeenth centuries, with the spread of print, authorities encouraged godly meditation in ways that reinforced the connection between dutiful subjects and allegiance to the Crown. Printed sermons propagated obedience to the monarch, extending God’s sovereignty to that of his appointed monarchs on earth. The Book of Common Prayer cemented this allegiance into the practice of the state Church, declaring that ‘Almighty God, whose kingdom is everlasting […] rule the heart of thy chosen servant Edward the sixt, our kyng and governour […] that we his subjects (duly considering whose authority he hath) he faithfully serve, honour, & humbly obey him, in thee, and for thee’.9 The image at the start of A booke of Christian prayers (1578) placed a pious Elizabeth within the history of salvation and Protestant providentialism, her own loyalty to God serving as an inducement for her subjects to do the same by obeying her.10
From a legal perspective, however, the implications of the 1368 act ‘remained in doubt’ and consequently the definition of the ‘subject’ remained legally blurred until debates resurfaced in 1608 with the legal battle popularly known as ‘Calvin’s case’.11 The debates at this point were crucially important in not only defining the legal parameters for subjecthood, but also in defining the key differences between it and terms such as ‘alien’, ‘stranger’, and ‘denizen’. In the case of ‘subject’, it reinterpreted the term’s definition to
5 Keechang, Aliens in Medieval Law, p. 123; ‘Status of Children Born Abroad’, 1350, 25 Edw. III Stat.1.
6 Price, ‘Natural Law’, p. 77.
7 ‘A statute made at Westminster on the first day of May in the forty-second year of King Edward III’, 1368, 42 Edw. III c. 10.
8 Keechang, Aliens in Medieval Law, p. 142; Selwood, Diversity and Difference, p. 91; Jones, British Nationality Law, pp. 66–67.
9 Church of England, The booke of common prayer (London, 1549; STC 16270a), sig. O7r.
10 Richard Day, A booke of Christian prayers (London, 1578; STC 6429).
11 Selwood, Diversity and Difference, p. 91. For references in Coke’s report see Calvin’s Case or The Case of the Postnati (1608) 7 Coke Report 1a, 77 ER, pp. 403–404.
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encompass a wider jurisdiction, while at the same time decisively defining the legal rights of other groups such as aliens and denizens, and how they could obtain naturalisation. The case decided that Scottish children, known as the postnati (born after the Scottish King James VI inherited the throne of England in 1603), had the legal right under English law to be considered English subjects. In doing so Calvin’s case ‘mapped out the precise borders of English refusal’ to extend subjecthood to all the king’s Scottish subjects by considering the ‘status of a particular subset of Scottish subjects’ – the postnati.12
This was hugely significant. The ruling affirmed ideas of jus soli, based around an enduring bond between subjects and the monarch, in which children of immigrants were granted subjecthood as a natural birthright through their connection to the monarch. If a child born in Scotland after the union pledged allegiance to the Scottish Crown, then they also pledged allegiance to the English Crown by proxy. Coke’s decision to blur the boundary between ‘status and place of origin’ meant that subjecthood became fully portable.13 This allowed the English state to hold subjects accountable to the English monarch no matter where in the Crown’s individual dominions they went. As the Lord Chancellor Thomas Egerton noted during the case, ‘diversities of Lawes and Customs makes no breach of the unities of obedience, faith and allegiance, which all liege subjects owe to their liege King and Sovereign Lord’.14
Calvin’s case and the debates surrounding questions of the Scottish union firmly defined the subject’s identity around his or her relationship, or allegiance, to the Crown. Ligence or allegiance was the ‘personal bond prevailing between the natural person of the King and the natural subject wherever he or she might reside in the kings domains’.15 This relationship between sovereign and subject was a bond that transcended the political, legal, and geographic obstacles and destinations that existed between those domains and tied both parties together. Coke clearly defined the bond as one where the subjects ‘are bound to obey and serve’ their sovereign, whilst monarchs ‘should maintain and defend’ their subjects.16 This raised significant questions about whether the individual subject’s allegiance was rightfully and naturally aligned with the sovereign of their place of birth.
12 Christopher Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (Berkley: University of California Press, 2010), p. 83.
13 Ibid., p. 90.
14 Calvin’s Case or The Case of the Postnati (1608), 2 St. Tr. 559, p. 684.
15 Tomlins, Freedom Bound, pp. 84–85.
16 7 Coke Report 1a, 77 ER, 377.
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Furthermore, the ruling addressed whether, and how, non-subjects (like those born before James VI ascended the throne of England, the antenati) could become English subjects. Commentators such as Bacon and Coke dealt with the former by defining the issue of the king’s two bodies (the king’s ‘natural’ or physical self, and his political body, or the state).17 Bacon suggested that the monarch’s natural and political bodies were inseparable: the king’s ‘two capacities are in no sort confounded […] [A]s his capacity politic worketh so upon his natural person […] so e converso’.18 As such, a subject who pledged allegiance to James of Scotland also did so to James of England, allegiance given to both at the same time.
Although Calvin’s case was influential in structuring early modern ideas perceptions and the rights of subjecthood, it did not fully settle these rights about who could be and could become a subject. On several occasions throughout the seventeenth century, court cases expanded and contracted the definition of subjecthood.
In Rex v. Eaton (1627), a child born outside of England to an English merchant and Polish mother had the rights of a subject extended to him. Crucially, the case makes a point about rights pertaining to both genders, in the sense that the judges argued that de natis required only one parent, who could be either the mother or the father, to be English.19 Legal cases in 1641 and 1664 reinforced this.20 In Bacon v. Bacon (1664), the daughter of an English merchant born after his death also to a Polish mother was considered an English subject.21 In 1666, the House of Lords considered a bill that concerned the rights of Richard, son of Richard Fanshawe, the king’s ambassador to Spain, who had died in Madrid. On his deathbed, Fanshawe, concerned about the status of his Spanish-born son, ordered that he be naturalised upon his return to England.22 The request was referred to the Lords, who declared that ‘the children of Ambassadors (employed by the King), born in foreign countries, are no aliens’ but subjects of the king of England.23 In 1677, Charles II also sought to extend the status of ‘subject’ to children born abroad to parents who had fled England during the Interregnum. The Naturalisation (Children Born Abroad during the
17 Selwood, Diversity and Difference, pp. 96–98; Price, ‘Natural Law’, p. 108.
18 State Trials, vol. 2, col. 597.
19 Rex v. Eaton, Lit. Rep. 23 (1627).
20 Bacon v. Bacon, Cro. Car. 601, 602 (1641); Collingwood v. Pace, 1 Vent. 413 (1664).
21 Bacon v. Bacon, Cro. Car. 601, 602 (1641); J. M. Ross, ‘English Nationality Law: Soli or Sanguinis’, in Groatian Society Papers 1972: Studies in the History of the Law of Nations, ed. by C. H. Alexandrowicz (The Hague: Martinus Nihoff, 1972), p. 13.
22 Ibid., p. 14.
23 Quoted ibid., p. 14.
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Troubles) Act ensured that any persons born outside of England between 14 June 1641 and 24 May 1660 ‘whose fathers or mothers were natural born subjects of this realm, are hereby declared […] to be and to have been the King’s natural born subjects of this Kingdom […] as if they had been born in England’.24 Similar action was again taken in 1698 to ensure that children born to English soldiers fighting William III’s wars in France were guaranteed the rights of a subject.25
In the years after the ‘Glorious Revolution’ of 1688, the ‘subject’ developed a slightly different identity. The relationship between the individual, the state, and the Crown had shifted as Parliament and its rights, privileges, and position became more secure. The rights of subjects were increasingly formalised, and allegiance considered contractual. Following the flight of James II, Parliament resolved that James had broken the ‘original contract’ with his subjects ‘abdicating the government’ and leaving the throne ‘vacant’.26 The language used by Parliament marked a shift to a new constitutional order epitomised by the political philosopher John Locke’s ‘social contract’ theory, which holds that ‘legitimate government only exists by the consent of those governed’.27 Opposed to the idea of the king’s two bodies, Locke argued that every man was born free according to natural law, and as such they were free to choose to whom they were subject rather than being allocated subjecthood upon birth. Locke suggested that rather than owing allegiance to a father from birth as the head of the household, ‘the subjection due from a child to a father took not away his freedom from uniting into what political society he thought fit’.28
In doing so, Locke transferred the agency in the contractual act of subjugation from the ruler to the subject. The 1689 Bill of Rights established a contract between subject and Crown that declared ‘the rights and liberties of the Subject’ and reinforced the authority of Parliament as the body that represented the Crown’s subjects.29 By listing Parliament’s grievances towards James II, the Bill of Rights set out to define the rights of English subjects and secure Parliament’s prerogative to protect those rights and
24 ‘Naturalization (Children Born Abroad During the Troubles) Act’, 1677, 29 Car. II c. 6 (1677).
25 ‘Naturalization (Persons Born Abroad During the War) Act’, 1698, 9 Will. III c. 20 (1698).
26 Quoted in Henry Horwitz, Parliament, Policy, and Politics in the Reign of William III (Manchester: Manchester University Press, 1977), pp. 9–10.
27 Jeremy B. Bierbach, Frontiers of Equality in the Development of EU and US Citizenship (The Hague: T. M. C. Asser Press, 2017), p. 35.
28 John Locke, Second Treatise of Government, ed. B. McPherson (Cambridge: Hackett, 1980), p. 131.
29 ‘Bill of Rights’, 1668, 1 Will. & Mar. sess. 2, c. 2 (1688).
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ensure they were not violated. The Bill of Rights marked a shift from early modern to modern perceptions of the subject. No longer was the subject defined by their allegiance to the Crown, but by a contractual agreement set out in distinct rights that were enshrined in legislation and protected by those bodies elected by them. In this sense, the subject remained subjected to two bodies, but no longer were they both the Crown’s. One remained the Crown’s whilst the other was Parliament’s, all three subjugated to each other in a contractual bond.
Related keywords: alien/stranger, citizen, denizen, foreigner, native
Did these Judges decide this issue based on what was actually the law, or did they decide it based on political necessity?
Assigning reasons or motives does not change the opinion.
With the very obvious need to the King to have Scotsmen seen as equals in England, it is incredible that two Judges saw fit to disagree.
Two justices saw fit to dissent in Roe v. Wade. That makes zero difference to the state of the law. The majority speaks for the Court, and any dissenting justice speaks only for himself.
None of this makes any difference to citizenship determinations in the United States.
You shrug off this point too cavalierly. The Scots are a ridiculously proud people, and they have long taken offense at English perceptions of them as inferior.
To tell them they cannot own land in England (whether they want to own it or not) because they weren't born a Subject of England is to invite animosity and hatred.
The English would be able to own land in Scotland, but no Scot could own land in England?
That's a formula for Civil War right there, not to mention the embarrassment to King James VI in trying to explain to his kinsmen how this is all right and proper. He would have lost face and he would have lost credibility had he been put in such a position.
I say James VI was very much aware of what would happen if the decision went the other way, and he exerted every bit of pressure he could bring to bear to make certain the decision came out in his favor.
I believe in objective truth. Decisions rendered for political expediency are not the same thing as objectively true.
Two dissenters tell me there is more to this story, and this with the entire pressure a king could bring to bear to make the decision come out his way.
Two justices saw fit to dissent in Roe v. Wade.
Good example. Roe v. Wade is an absolute garbage decision based on nothing more than emotions from a court that had been stacked with Liberal @$$holes who "interpreted" the law to mean whatever they wished it to mean. (Mostly thanks to the 14th amendment.)
That makes zero difference to the state of the law.
It makes zero difference to the truth. Rational people simply do not believe things because "experts" tell them such a thing is true. Rational men can weigh the evidence and decide for themselves if it is true, and in the case of Roe v Wade, it is clear that this decision is utter crap. The dissenters were correct and the majority was wrong.
None of this makes any difference to citizenship determinations in the United States.
I haven't got to the point of arguing about that yet. First we must understand the origins of how English common law came to be different from the Roman law that preceded it, and the Jus Sanguinus norms that existed on the Continent.
What made England go this way instead of the way the rest of the Continent went?
I have pointed out what I consider to be a very good motive for why it went this direction. There are other motives for England doing this, but I think Calvin's case is the smoking gun.
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