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.
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.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.
I lived in Scotland for several years and drank pints at the local and heard the place come to life whenever Flower of Scotland was sung.
But I doubt that you will find too many true Scots who have an overwhelming desire to live in England.
The English would be able to own land in Scotland, but no Scot could own land in England?
You said that. I didn't even hint at that. If you know what the law of Scotland said at the time, do tell.
"In the True Law, James maintains that the king owns his realm as a feudal lord owns his fief, because kings arose "before any estates or ranks of men, before any parliaments were holden, or laws made, and by them was the land distributed, which at first was wholly theirs."
England and Scotland were separate countries until Great Britain was formed in 1707. Calvin's Case was in 1608. Today, Queen Elizabeth is the queen of Canada and its head of state, but Canada is a separate country.
The land of England then restricted ownership to English subjects. The law of Scotland was a different law in a different system of law and said whatever it said, its content being irrelevant to Calvin's Case. Relevant was that the king, in either case, was the same James (I or VI) and it is good to be king. However, the people of the United States decided it was even better for the people to be the sovereigns.
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.
You are free to say that, but whether right or wrong, it is irrelevant to whether one is, or is not, born a citizen in the United States. That depends entirely and solely upon United States law.
"A History of Private Law in Scotland: Introduction and Property," edited by Kenneth G. C. Reid, Reinhard Zimmermann, at page 78:
"By 1608, James's full project for a more perfect union was essentially dead."
For a more complete coverage of Calvin's Case, see:
A complete Collection of State Trials, Vol II (1806) 1 James I to 3 Charles I 1603-1627
At page 559-560:
85. The Case of the POSTNATI. or of the Union of the Realm of Scotland with England; Trin. 6 James I. A.D. 1608*
From the meeting of the crowns of England and Scotland in the person of the first James, grew one of the most important questions of state, which ever engaged the attention of either country. It was, whether the POSTNATI, or those born in Scotland after the accession of James to the crown of England, were in the latter country to be deemed aliens or natives. As to the Ante-nati, all seem to have agreed, that they remained aliens. But there was a great difference of opinion about the condition of the Postnati. The king, anxious for every thing which tended to consolidate the island into one kingdom, was eager to ave it declared as law, that the Union of the crowns effected a mutual naturalization of the Postnati in the two countries. His wishes were made known by the Proclamation, In which he assumed the stile of King of Great Britain, with an exception in favor of legal process, instruments, and assurances; and words were introduced, importing that his accession to the crown of England had made a great change in the law of Naturalization. Rym. Foed. v. 16. p. 603, 2 Bac. last 4to. ed. 114. The Commissioners, appointed by the respective Parliaments of the two countries to treat for an union of government of laws, folowed the king in this language; for they resolved to propound to both parliaments a declaration of the law to that effect. But when the proposition was made, the English house of commons were §found averse to it, notwithstanding the countenancegiven by the lords, and an opinion given to them by ten out of eleven judges. It was therefore determined to settles the point out of parliament in the regular way, by resorting to the English courts of justice. For this purpose, two suits were instituted in the name of Robert Calvin, a Postnatus of Scotland and an infant; one in the King's-bench for the freehold of some land; and the other in Chancery for detainer of writings concerning the title to the freehold of the same estate: and in both it was pleaded by the defendants in abatement, that the plaintiff was an alien born in Scotlad at a time which by the pleading appeared to be since the king's accession to the crown of England. A demurrer to this plea necessarily brought forward the intended question about the Postnati; for if Calvin was an alien, he could not maintain either suit,__________
* Some of the law laid down in the following case was discussed in the case of Hall v. Campbell, infra, A. D. 1774. It was much reied on by lord Mansfield in his argument (on a point on which the judgment of the court did not turn) in that case, and is very perspicuously stated and carefully considered by Mr. Baron Maseres in his most learned and elaborate analysis and examination of the whole of lord Mansfield's argument of that occasion. See "The Canadian Freeholder," Dialogue 2d. As to the topics of Allegiance agitated in the case of the Postnati, see more in the duke of Hamilton's case, infra, A. D. 1648. See also East's Pl. Cr. ch. ii. §3, 41. and the case and authorities cited.
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At page 561-562:
aliens being incapable to sue for the freehold of land. These Causes were adjourned into the Exchequer Chamber, in order to have the solemn opinion of all the judges; and there the business ended with a resolution in favour of the Postnati, in which the lord-chancellor and 12 judges out of 14 concurred. However, very eminent lawyers appear to have entertained a different opinion of the point. In parliament, dodridge, Hyde, Brock, Crew, Moore, and Hedley all spoke against the Postnati. What te names of the two dissenting judges were, is not mentioned; except that lord Ellesmere alludes to both having the Christian name of Thomas, the only judges of which name at the time were lord chief justice Fleming, Mr. justice Walmesley, and Mr. justice Foster. It is suspected too. that the known inclinations and wishes of the king had no little influence in the decision. But be this as it may, we are not apprized that the main point of the case has been ever disturbed by any subsequent judicial opinion.
The only regular Report we have of this case is by lord Coke. But there is a great deal of matter relative to it in other books. Lord-chancellor Elesmere published his Argument separately. Mr. sergeant Moore gives the history of the previous passages in parliament on the great point of law, for deciding wich the case was afterwards made. In lord Bacon's Works, there are both his Speeches in parliament on the subject, and his Argument before the Judges in the Exchequer-chamber, with some other pieces. 152. 159. 170. 2 Bac. 4to. ed. 173. 185. 514. Nathaniel Bacon, in his Book on Government, examines and controverts the principles, on which lord Coke reports the case to have been decided. Bac. on Gov. part 2. page 76. The Parliamentary History relates the proceedings in the English parliament in the 2 and 4 Jam. on the proposal for an Union between England and Scotland, and gives a short view of some arguments in the commons of the point of Naturalization.* Archbiship Spotswood's History of the church and State of Scotland also contains many particulars of the proceedings towards an Union. Spotsw. 479. See further Arthur Wilson's History of James the 1st, 27, 34. Sanderson's Life of the same king, 318. 358. 2 Winwood's Memorials of State 20, 32 to 38.
We shall now lay before the reader, 1. Mr. sergeant Moore's account of the Proceedings in Parliament about the Postnati. 2. Lord Bacon's Speech as counsel for Calvin, in the Exchequer-Chamber. 3. Lord Coke's Report of Calvin's Case. 4. Lord-chancellor Ellesmere's Speech in the Exchequer-Chamber, as published by himself.
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* See 1 Cobb. Parl. Hist. 1018, 1027, 1069, 1071.
At 562: Case of the Union of the Realm of Scotland with England.
At 575: Speech of Lord Bacon, as Counsel for Calvin, in the Exchequer Chamber
At 607: Lord Coke's Report of Calvin's Case. From the 7th part of his Reports.
At: 659: Lord Chancellor Ellesmere's Speech in the Exchequer Chamber, in the Case of the Postnati.
At 695: Lord Chancellor Ellesmere's Speech Conclusion: [strange spelling in original]
THE CONCLUSIONThus I have delivered my concurrence in opinion with my lordes the judges, and the reasons that induce and satisfie my conscience, that Ro. Caluine, and all the Postnati in Scotland, are in reason and by the common law of England, naturall-borne subjects within the allegeance of the king of England; and inhabled to purchase and haue free-hould and inheritance in lands of England; and to bring reall actions for the same in England.
For if they have not this benefit by this blessed and happie vnion, then they are in no better case in England, than the King of Spaines subjects borne in Spaine, &c. And so by this vnion, they have gotten nothing: what they haue lost justice Yeluerton did well note.
And therefore I must give judgement in the Chancerie, that the defendants there ought to make direct answer to Ro. Caluines bill for the lands and euidences for which he compaines.
T. ELLESMERE, Canc.