''Calvin's Case'' (1608), 77 ER 377, (1608) Co Rep 1a, also known as the ''Case of the Postnati'', was a 1608 English legal decision establishing that a child born in Scotland, after the

Union of the Crowns The Union of the Crowns (; ) was the accession of James VI of Scotland to the throne of the Kingdom of England as James I and the practical unification of some functions (such as overseas diplomacy) of the two separate realms under a single ...

under King

James VI and I James VI and I (James Charles Stuart; 19 June 1566 – 27 March 1625) was King of Scotland as James VI from 24 July 1567 and King of England and King of Ireland, Ireland as James I from the union of the Scottish and English crowns on 24 M ...

in 1603, was considered under the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

to be an English subject and entitled to the benefits of

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

. ''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 ''Jus soli'' ( or , ), meaning 'right of soil', is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in contrast to ''jus sanguinis'' ('right of blood') ass ...

'' ("law of the soil", or citizenship by virtue of birth within the territory of a

sovereign state A sovereign state is a State (polity), state that has the highest authority over a territory. It is commonly understood that Sovereignty#Sovereignty and independence, a sovereign state is independent. When referring to a specific polity, the ter ...

Facts

Under the

feudal system Feudalism, also known as the feudal system, was a combination of legal, economic, military, cultural, and political customs that flourished in medieval Europe from the 9th to 15th centuries. Broadly defined, it was a way of structuring socie ...

, the

allegiance An allegiance is a duty of fidelity said to be owed, or freely committed, by the people, subjects or citizens to their state or sovereign. Etymology The word ''allegiance'' comes from Middle English ' (see Medieval Latin ', "a liegance"). The ...

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. 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

lord chancellor The Lord Chancellor, formally titled Lord High Chancellor of Great Britain, is a senior minister of the Crown within the Government of the United Kingdom. The lord chancellor is the minister of justice for England and Wales and the highest-ra ...

Thomas Egerton, 1st Viscount Brackley Thomas Egerton, 1st Viscount Brackley, (c. 1540 – 15 March 1617), known as Lord Ellesmere or Lord Egert from 1603 to 1616, was an English Peerage of England, nobleman, judge and Politician, statesman from the Egerton family who served as L ...

, alongside 14 judges gathered in 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.Sir Edward Coke, ''The Selected Writings and Speeches of Sir Edward Coke'', ed. Steve Sheppard
(Indianapolis: Liberty Fund, 2003). Vol. 1. 31 March 2017. Two of those dissented: Sir Thomas Foster (1548–1612) and Sir Thomas Walmsley. Although not directly relevant to the case,

Edward Coke Sir Edward Coke ( , formerly ; 1 February 1552 – 3 September 1634) was an English barrister, judge, and politician. He is often considered the greatest jurist of the Elizabethan era, Elizabethan and Jacobean era, Jacobean eras. Born into a ...

used the occasion to discuss the position of "perpetual enemies", specifying "All Infidels are in Law perpetui inimici (perpetual enemies)" (166). Having accepted that a king who conquers a Christian kingdom is constrained by the continuance of such laws as exist until new laws are put in place, he continues, however, "if a Christian King should conquer a kingdom of an Infidel, and bring them under his subjection, there ''ipso facto'' the Laws of the Infidel are abrogated, for that they be not only against Christianity, but against the Law of God and of Nature." (170). Robert A. Williams Jr. argues that Coke used this occasion to quietly provide a legal sanction for the London Virginia Company to dispense with affording Native Americans any rights as they settled in Virginia.

Significance

''Postnati'' and ''antenati''

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

king of England The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the form of government used by the United Kingdom by which a hereditary monarch reigns as the head of state, with their powers Constitutional monarchy, regula ...

in 1603—and on the fact that the monarch into whose allegiance he was born (the same James, in his capacity as King of Scots) was also the English king at the time of Calvin's birth—meaning that Robert Calvin, in the judgement of the court, was just as much a subject of the king of England as if he had been born in England instead of Scotland. The judges of the court cited existing statutes—including particularly a 1351 statute, '' 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. ''Calvin's Case'' did not extend English subject status to the ''antenati'' (Scots born prior to 1603). They remained aliens in relation to England, on the theory that King James had not yet become the king of England at the time of their birth. Attempts had been made in the 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. 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. 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. Even after ''Calvin's Case'', the English Parliament could have enacted a naturalisation bill covering the ''antenati'', but it never did so.

Later influence

''Calvin's Case'' contributed to the concept of the

Rights of Englishmen The "rights of Englishmen" are the traditional rights of English subjects and later English-speaking subjects of the The Crown, British Crown. In the 18th century, some of the Patriot (American Revolution), colonists who objected to British ...

.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. . Retrieved 21 May 2012. 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".Ellen Holmes Pearson (2005)
"Revising Custom, Embracing Choice: Early American Legal Scholars and the Republicanization of Common Law"
In Eliga H. Gould, Peter S. Onuf, ed., ''Empire and Nation: The American Revolution In The Atlantic World'', (Baltimore:

Johns Hopkins University The Johns Hopkins University (often abbreviated as Johns Hopkins, Hopkins, or JHU) is a private university, private research university in Baltimore, Maryland, United States. Founded in 1876 based on the European research institution model, J ...

Press), , p. 102, n. 33 – via Google Books. Retrieved 21 May 2012. In fact, one scholar asserts that the legal apologists for the

American Revolution The American Revolution (1765–1783) was a colonial rebellion and war of independence in which the Thirteen Colonies broke from British America, British rule to form the United States of America. The revolution culminated in the American ...

claimed they had "improved on the rights of Englishmen" by creating additional, purely American rights. Owing to its inclusion in the standard legal treatises of the nineteenth century (compiled by

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...

, and James Kent), ''Calvin's Case'' was well known in the early judicial history of the United States. Consideration of the case by the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...

and by state courts transformed it into a rule regarding American citizenship and solidified the concept of ''

'' as the primary determining factor controlling the acquisition of citizenship by birth,Price (1997), p. 138–139. 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 The Federal Government of the United States of America (U.S. federal government or U.S. government) is the Federation#Federal governments, national government of the United States. The U.S. federal government is composed of three distinct ...

Notes

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 {{DEFAULTSORT:Calvin's Case 1608 in English law 1600s in case law 1608 in international relations 1608 in law James VI and I Edward Coke cases Court of King's Bench (England) cases English land case law United Kingdom constitutional case law British nationality law Feudalism in England History of nationality Human migration Legal history of England United States nationality law England–Scotland relations