Author ORCID Identifier

0000-0002-4989-7133

Document Type

Article

Publication Date

1997

Keywords

United States, Birthright citizenship, English law, Subject, Allegiance, Natural law, Immigration

Abstract

The roots of United States conceptions of birthright citizenship lie deep in England's medieval past. This Article explores Calvin's Case (1608) and the early modem common-law mind that first articulated a theoretical basis for territorial birthright citizenship. Involving all the important English judges of the day, Calvin's Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered "subjects" in England. Calvin's Case determined that all persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King. A person born within the King's dominion owed allegiance to the sovereign and in turn was entitled to the King's protection. Calvin's Case is the earliest, most influential theoretical articulation by an English court of what came to be the common-law rule that a person's status was vested at birth, and based upon place of birth. In the view of Sir Edward Coke, one of the judges deciding Calvin's Case, the court's determination was required by the divine law of nature, which was "indeed ... the eternal law of the Creator" and "part of the law of England."

This Article is the first study to set the decision in Calvin's Case within the broader context of continental legal and political thought and to provide a sustained discussion of the natural law origins of birthright citizenship in the common law. In particular, this Article highlights the role of natural law in the decision in Calvin's Case, a role that had far-reaching effects on the development of birthright citizenship in the United States. James I's plans to unite Scotland and England, following his inheritance of the crown of England in 1603, sparked a wide-ranging search for a legal solution to the question of which persons were entitled to the rights and entitlements of English law. Lawyers, in both the civil- and common-law traditions, contribut­ed to the substantial literature on uniting the laws of the two kingdoms. The political debate preceding Calvin's Case searched for examples of how other legal systems resolved the question of the relationship of subjects within kingdoms united by descent.

First Page

73

Publication Title

Yale Journal of Law & the Humanities

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