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Natural Law and Birthright Citizenship in Calvin's Case (1608)

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Natural Law and Birthright Citizenship in Calvin's Case (1608) Natural Law and Birthright Citizenship in Calvin's Case (1608) Polly J. Price* I. INTRODUCTION Great empires and humble nations alike have made similar choices in determining who will be citizens. The world's nations emphasize one or the other of only two methods for determining citizenship at birth. Most nations assign citizenship at birth according to the citizenship of at least one of the parents. A few nations, including the United States, assign citizenship on the circumstance of place of birth-within the territorial boundaries of the nation-regardless of the citizenship of the parents. While the United States also permits the children of its citizens born abroad to be considered U.S. citizens from birth, the predominant mode of birthright citizenship in this country, and the only one grounded in the Constitution,1 is that which bestows citizenship upon anyone born on United States soil. The roots of United States conceptions of birthright citizenship lie deep in England's medieval past. This Article explores Calvin's Case (1608)2 and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship. Involving al 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 * Assistant Professor, Emory University School of Law. B.A., M.A. Emory University; J.D. Harvard Law School. There are many to thank, but most notably Charles Donahue, Jr. of the Harvard Law School, who provided valuable guidance at an early stage of this Article. Any conclusions or errors, of course, remain my own. 1. See U.S. CONST. amend. XIV, § 1 ("All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside."). At least in this century, it has been presumed that the 14th Amendment to the United States Constitution requires that all persons born within the territorial boundaries of the United States, including the children of illegal aliens, be granted citizenship. 2. Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608). Yale Journal of Law & the Humanities, Vol. 9, Iss. 1 [1997], Art. 2 Yale Journal of Law & the Humanities [Vol. 9: 73 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.3 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 4 and "part of the law of England."' 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,6 a rule that was later embodied in the Fourteenth Amendment of the U.S. Constitution and which is now the subject of heated political and legal debate. Remarkably, the rule of birthright citizenship derived from Calvin's Case remained a status conferred by the common law, as opposed to statutory or constitutional law, for centuries. Until 1898 in the United States, and as late as 1949 in Britain, there were still some cases in which the determination of nationality depended upon the common-law rule of birth within a territory.7 Only two years prior to Calvin's Case, the English King granted to the colonists of Virginia a charter that guaranteed them the "rights" of Englishmen: The colonists were to "have and enjoy all Liberties, Franchises, and Immunities... to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England."8 In 3. See 77 Eng. Rep. at 409. 4. Id. at 391. 5. Id. at 392. 6. This was the view in the 19th century of Chancellor James Kent, and also of the U.S. Supreme Court in several opinions. See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898); see also infra text accompanying notes 346-67. Though the scope of this Article does not permit a thorough examination of the reception of Calvin's Case in the early United States, a forthcoming article by the author will address this issue. 7. See 169 U.S. at 649 (declaring that because the Constitution does not define meaning of words "citizen of the United States," except by declaration in 14th Amendment that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States," courts must resort to common-law rules of acquisition of citizenship familiar to Framers). See generally CLIVE PARRY, BRITISH NATIONALITY: INCLUDING CITIZENSHIP OF THE UNITED KINGDOM & COLONIES AND THE STATUS OF ALIENS (1951). 8. BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 54 (1971) (quoting VA. CHARTER) (emphasis added). https://digitalcommons.law.yale.edu/yjlh/vol9/iss1/2 2 Price: Natural Law and Birthright Citizenship in Calvin's Case (1608) 1997] Price Calvin's Case, by contrast, judges resolved the question of whether persons in Scotland were by birth "subjects" of the English King by turning to the common law rather than to charters or other royal proclamations. Today, the determination of national status in most parts of the world, as for the Virginia colonists in 1606, is a matter of positive law-either statutory or constitutional. But Calvin's Case began a three-century period in which the rule determining citizenship in the English-speaking world, a rule based on place of birth, was self- consciously the product of judicial decisions. 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, contribut- ed 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. This Article will also consider the political writings of Thomas Craig and Jean Bodin to show that legal thinkers outside of England provided solutions similar to that attained in Calvin's Case. For Craig, the basis for determining status at birth was the jus feudale-Craig arrived at this rule without reference to the English precedent that Coke discussed in Calvin's Case.9 Coke, on the other hand, relied not on a general jus feudale pre-dating or underlying English common law but on natural law. Nonetheless, their conclusions were the same: James's Scottish subjects born in Scotland after, but not before, he ascended to the throne of England were to be considered subjects in England as well. Bodin's theories of sovereignty 0 suggest that he would probably have shared Coke's view of the status of James's Scottish subjects in 9. THOMAS CRAIG, DE UNIONE REGNORUM BRITANNIAE TRACrATUS 339 (Charles Sanford Terry trans., Scottish Historical Society 1909) (1605) [hereinafter CRAIG, DE UNIONE]. 10. JEAN BODIN, Six BOOKS OF THE COMMONWEALTH 175 (Kenneth McRae ed., Harv. Univ. Press 1962) (Richard Knolles trans., 1st Eng. ed. 1606). Bodin's Republique was translated as Commonwealth in 16th- and 17th-century England. In the references to follow, Bodin's Republique will be cited to the English translation of 1606. Published by Yale Law School Legal Scholarship Repository, 1997 1 Yale Journal of Law & the Humanities, Vol. 9, Iss. 1 [1997], Art. 2 Yale Journal of Law & the Humanities [Vol. 9: 73 England. For both Bodin and Coke, natural law or unwritten, funda- mental law-law that was beyond the reach of the customary or municipal law-determined who was a subject. Because the law of nature was, by definition, the same in Scotland and in England, differences in the municipal laws of the two countries were irrelevant. In addition, Bodin's Republique, like Calvin's Case, emphasizes a mutuality of obligation between the sovereign and the subject. As suggested below, Craig's De Unione and Bodin's Republique indicate that in 1608 political theorists and lawyers trained in both the civil and common law could arrive at similar resolutions of the problem in Calvin's Case without citing a single civil- or common-law rule. Indeed, a unifying factor in Bodin's Republique, Craig's De Unione, and Coke's report of Calvin's Case is that the duty of allegiance that made one a subject, and that would unite all of the King's subjects regardless of the existence of diverse laws within separate kingdoms, was emphatically not a creation of positive law.
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