Calvin's Case

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Calvin's Case
Sir Edward Coke, Sir Lawrence Tanfield, Sir Thomas Foster, Sir Christopher Yelverton, Sir Thomas Walmsley
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Keywords
Citizenship

Calvin's Case (1608), 77 ER 377, (1608) Co Rep 1a, also known as the Case of the Postnati,[1] was a 1608 English legal decision establishing that a child born in Scotland, after the Union of the Crowns under King James VI and I in 1603, was considered under the common law to be an English subject and entitled to the benefits of English law. 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).[2][3]

Facts

Under the

feudal system, the allegiance 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.[4]

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

Exchequer Chamber ruled in Calvin's favour, finding that he was not an alien and did have the right to hold land in England.[5] Two of those dissented: Sir Thomas Foster (1548–1612) and Sir Thomas Walmsley.[6][7][8]

Although not directly relevant to the case,

London Virginia Company to dispense with affording Native Americans any rights as they settled in Virginia.[9]

Significance

Postnati and antenati

James, 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

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.[10]

Calvin's Case did not extend English subject status to the antenati (Scots born prior to 1603). They remained

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.[12] 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'".[13] 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.[14] Even after Calvin's Case, the English Parliament could have enacted a naturalisation bill covering the antenati, but it never did so.[15]

Later influence

Calvin's Case contributed to the concept of the Rights of Englishmen.[16][17][18] 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".[19] 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.[19]

Owing to its inclusion in the standard legal treatises of the nineteenth century (compiled by

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,[20] for example in the 1898 case United States v. Wong Kim Ark. 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.[9]

See also

  • United Kingdom immigration law
  • Jus sanguinis, an alternative theory of citizenship based on inheriting citizenship from a parent or parents
  • Stare decisis
    , a legal principle whereby new decisions should be consistent with established precedents

Notes

  1. ^ Calvin's Case 7 Co. Rep. 1a, 77 ER 377, reprinted in The Reports of Sir Edward Coke, In Thirteen Parts, A New Edition, vol. 4, p. 1 (London, Joseph Butterworth and Son 1826).
  2. ^ Price, Polly J. (1997). "Natural Law and Birthright Citizenship in Calvin's Case (1608)". Yale Journal of Law and the Humanities. 9: 74. [Edward] Coke's report of Calvin's Case was one of the most important English common-law decisions adopted by courts in the early history of the United States. Rules of citizenship derived from Calvin's Case became the basis of the American common-law rule of birthright citizenship....
  3. ISBN 978-0-521-69866-5
    . Nearly all scholarship on the origins of American citizenship acknowledges the singular importance of Calvin's Case in shaping the legal and philosophical principles upon which American citizenship was founded.
  4. ^ Price (1997), pp. 81–82.
  5. ^ Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1. 31 March 2017.
  6. ISBN 978-0-8047-5504-7
    . Retrieved 18 October 2012.
  7. doi:10.1093/ref:odnb/67449. (Subscription or UK public library membership
    required.)
  8. ^ Lee, Sidney, ed. (1899). "Walmesley, Thomas" . Dictionary of National Biography. Vol. 59. London: Smith, Elder & Co.
  9. ^
    OL 2058188M
    . 0195050223.
  10. ^ Price (1997), p. 101–102.
  11. ^ Price (1997), p. 117.
  12. ^ Price (1997), p. 96.
  13. ^ Price (1997), p. 97.
  14. ^ Price (1997), pp. 98–99.
  15. ^ Price (1997), p. 119.
  16. ^ Price, Polly J. (1997). "Natural Law and Birthright Citizenship in Calvin's Case (1608)". Yale Journal of Law & the Humanities. 9: 73.
  17. ^ a b Hulsebosch, Daniel J. (2003). "The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence". Law and History Review 21.3: para. 28–33 – via History Cooperative. Archived 29 August 2012 at the Wayback Machine. Retrieved 21 May 2012.
  18. ^ Arthur J. Slavin (1983). "Craw v. Ramsey: New Light on an Old Debate". In Stephen Bartow Baxter, ed., England's Rise to Greatness, 1660–1763 (University of California Press), pp. 31–32 – via Google Books. Retrieved 21 May 2012.
  19. ^
    ISBN 0-8018-7912-4
    , p. 102, n. 33 – via Google Books. Retrieved 21 May 2012.
  20. ^ Price (1997), p. 138–139.

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
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