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.
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.