9
Yale J.L. & Human. 73 (1997)
Yale Journal of Law and
the Humanities
Winter 1997
*73 NATURAL LAW AND
BIRTHRIGHT CITIZENSHIP IN CALVIN'S CASE (1608)
Polly J. Price [FNa]
Copyright © 1997 Yale
Journal of Law and the Humanities, Inc.; 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, [FN1] 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) [FN2] and the early modern 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 *74 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. [FN3] 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" [FN4] and "part of the law of England." [FN5]
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, [FN6] 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. [FN7]
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." [FN8] In *75 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, 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.
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. [FN9] 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
[FN10] suggest that he would
probably have shared Coke's view of the status of James's Scottish subjects in *76 England. For both Bodin
and Coke, natural law or unwritten, fundamental 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. Although these works are from
three different kingdoms and claim three different sources of law, they share
an underlying similarity of political thought. This similarity leads one to
pause when considering Coke's claim that the justices in Calvin's Case
consulted "no strange histories, cited no foreign laws, [and] produced no
alien precedents" in reaching their decision. [FN11] To accept this claim at
face value is to miss a critical confluence of ideas between legal thinkers of
civil- and 00common-law backgrounds that would, in subsequent centuries,
further the establishment of the unique English rule of territorial birthright
citizenship. [FN12]
*77 The Jus Soli and the
Jus Sanguinis
Before examining the
issues in Calvin's Case, it is useful to have some understanding of current
methods for assigning citizenship or nationality at birth. The territorial rule
derived from Calvin's Case rendered the status of British colonists different
from that of colonists of other European countries. Calvin's Case led to what
is today known in international law as the jus soli, the rule under which
nationality is acquired by the mere fact of birth within the territory of a
state. [FN13] The other great rule
for assigning nationality at birth, the jus sanguinis, is identified with the
civil law. It holds that, regardless of the place of birth, nationality is
acquired by descent following the status of at least one parent (usually the
father). [FN14] The United States,
Great Britain, and many Latin American countries traditionally have favored the
jus soli over the jus sanguinis as a rule for acquisition of citizenship by
birth. [FN15] By contrast, the jus
sanguinis has been the favored rule in almost all European nations. [FN16]
No nation relies
exclusively on one of these principles to determine who is a natural-born
subject or citizen. [FN17] In Britain, even before Calvin's Case, various acts and
proclamations provided that a child born out of the territory of England could
also be a natural-born subject, as long as the child's parents owed allegiance
to the sovereign of England. [FN18] This is an example of the jus sanguinis operating alongside
the jus soli. In the history of both Britain and the United States, the jus
sanguinis has always been established by statute, never *78 by judge-made law. [FN19] This fact underscores
the uniqueness of the jus soli as a feature or creation of the common law and
suggests the importance of Calvin's Case in the development of the rule.
Both the jus soli and
the jus sanguinis are in the first instance products of medieval law. However,
the rule we refer to today as the jus soli is emphasized in this Article
because of its emergence as a common-law "rule" and its unique
influence in common-law countries. [FN20] Calvin's Case, as this Article will relate, was
shaped by the prevalent political theories of the time, including the belief in
the authority of divine law. In subsequent centuries, this common-law rule of
the jus soli itself changed in response to changing political exigencies.
Given the present
controversy in the United States over the status and rights of both legal and
illegal immigrants, this work of legal history may have some contemporary
relevance. A proposed constitutional amendment to abolish birthright
citizenship for the children of illegal aliens is currently before Congress.
Its advocates claim that amendment is necessary to eliminate incentives for
illegal immigration. [FN21] The constitutional amendment would deny the children of illegal
aliens automatic U.S. citizenship by virtue of birth within one of the fifty
states. Instead, it would permit citizenship status only for children who have
at least one parent who is a citizen or legal resident of the United States.
Children of illegal aliens would retain *79 the citizenship of their parents. [FN22] Testimony concerning
the proposed constitutional amendment before the House Judiciary Committee
pitted law professors from Yale and Columbia in a debate over the historical
origins and meaning of the citizenship clause of the Fourteenth Amendment. [FN23] Although the proposed
amendment did not reach a floor vote during that legislative session, in late
1996 the Republican Party established in its platform the goal of eliminating
birthright citizenship for children of illegal aliens. [FN24] A national commentator
likened the Republican move as a return to the era of Dred Scott. [FN25]
In Calvin's Case, there
are perhaps larger stories to be told, such as the development of ideas of
nationhood [FN26] and the impending
constitutional crises between the English King and the Commons later in the
seventeenth century. These larger stories are themselves related to concepts of
allegiance and the role of natural law in determining the obligations of
subject and sovereign. [FN27] This Article focuses more narrowly upon the rule of status
acquisition articulated in Calvin's Case because the significance of natural
law in the articulation of this rule has not been emphasized in the history of
birthright citizenship. In addition, this examination furthers our
understanding of the development of common-law rules from a wider, comparative perspective.
While it may also help us to understand better the *80 surprisingly dominant
role of courts in fashioning the United States rule of birthright citizenship,
this Article will focus upon the earliest stages of that development for the
range of ideas and societal influences within which the rule developed.
II. Subjects and Aliens in England Prior to
1608
A. Robert Calvin's
Legal Problem
With the end of the
Tudor dynasty following the death of Elizabeth in 1603, James VI of Scotland
inherited the throne of England as James I, thereby uniting the two kingdoms in
the "union of the crowns." [FN28] At once there was considerable debate
concerning the extent of union effected by the succession of the Scottish King
to the crown of England. [FN29] James, however, considered a regal union alone to be
insufficient. [FN30] Upon his arrival in England, James advocated a closer unity
between the laws, institutions, economies, and churches of England and Scotland
to protect and strengthen the Stuart dynasty. [FN31]
In the early years of
his reign, James himself led a sizable literary effort advocating a closer
union. [FN32] Of particular
importance were the discussions of naturalization contained in proposals to
unite the laws of the two countries, written by both common lawyers and civil
lawyers. [FN33] Civil lawyers, also
known as "civilians," were a relatively *81 small group of
professionals who studied Roman law--the Corpus Juris Civilis as systematized
and interpreted in the twelfth and succeeding centuries by scholars, notably
the glossators and, later, the post-glossators or commentators. [FN34] Civilians had earned
the degree of Doctor of Civil Law at Oxford, Doctor of Laws at Cambridge, or an
equivalent degree at a continental university, and their professional practice
as lawyers was primarily in the ecclesiastical courts, the High Court of
Admiralty, and the High Court of Chivalry. [FN35] Civil lawyers in the early seventeenth century
in England were closely identified with crown interests because they relied on
royal patronage for their professional livelihood. [FN36]
The most pressing
question of political debate soon became the legal status of James's Scottish
subjects in England. According to English law, were Scots aliens or were they
subjects, capable of possessing and asserting at least some of the rights of
English subjects, including holding land and suing in English courts? These
political issues were fully debated in Parliament beginning in 1604, but the
matter was not settled there. [FN37] Instead, the King's men "determined to settle the
point out of Parliament in the regular way, by resorting to the English courts
of justice." [FN38]
In 1607, two civil suits
were initiated in the King's Bench and Chancery over two estates in England
conveyed to a Scottish child, named as Robert "Calvin" in the
pleadings, though evidence indicates the child's true name was Robert
"Colville." [FN39] Robert was born in Scotland after 1603, the year in which the
English throne descended to James. Robert's guardians, John and William
Parkinson, initiated the suits, claiming that Robert had been forcibly
dispossessed of both estates. The defendants in the King's Bench were Nicholas
and Robert Smith. Robert Calvin complained that the defendants *82 "unjustly, and
without judgment, have disseised him of his freehold in Haggard"
(Haggerston, parish of St. Leonard in Shoreditch). [FN40] One "Bingley"
was the defendant in the Chancery case on a similar writ concerning an estate
in Bishopsgate, St. Buttolph's. [FN41] The defendants in both cases responded with a
plea "in disability of Robert Calvin's person" that the writs were
inadmissible because Calvin was an alien. [FN42] Calvin was an alien, they argued, because he
had been born "within [James's] kingdom of Scotland, and out of the
allegiance of the said lord the King of his kingdom of England." [FN43] If Calvin were an
alien, he would, according to English law, be unable to be seised of a freehold
in England. [FN44] The defendants' plea
thus made the status of persons born in Scotland after the accession of James I
to the throne of England the paramount legal issue.
The two cases were
adjourned to the Exchequer Chamber to be heard by all the King's Bench and
Common Pleas justices as well as the Lord Chancellor and barons of the
Exchequer. In June 1608, fourteen justices assembled for arguments in the case.
Coke reports that "the five judges of the King's Bench, who adjourned this
case into the Exchequer Chamber, rather adjourned it for weight than
difficulty." [FN45] Serjeants Laurence Hyde and Richard Hutton represented the
defendants. [FN46] James's own Solicitor
General, Francis Bacon, along with Attorney General Henry Hobart, argued the
plaintiff's position on behalf of the crown. [FN47] All but two of the
justices determined that persons born in Scotland after the accession of James
to the throne of England (the postnati, as they were referred to in the case)
were to be regarded not as aliens in England but as natural-born subjects,
qualified to inherit English land. [FN48] The postnati as subjects born into the
allegiance of James after he became King of England owed their allegiance to
the sovereign of England as well as Scotland. [FN49] By constrast, the
antenati, those born before 1603, were *83 born into the allegiance of a King with
no relation to the English throne. Therefore, unless the antenati were
naturalized by statute, these Scottish subjects of James remained aliens as a
matter of English law. [FN50]
Several accounts of
Calvin's Case were published, [FN51] but by far the most influential was that of Sir Edward
Coke, Chief Justice of the Common Pleas. Coke's published reports were widely
accessible to lawyers of later ages, and Coke's report of Calvin's Case was the
first comprehensive statement in England of the law of naturalization. Calvin's
Case established a territorial rule for acquisition of subject status at birth:
Every one born within
the dominions of the King of England, whether here or in his colonies or
dependencies, being under the protection of--therefore, according to our common
law, owes allegiance to--the King and is subject to all the duties and entitled
to enjoy all the rights and liberties of an Englishman. [FN52]
Birth within the King's
territory was not, however, the sole method for acquiring subject status at
birth. A rule derived from the statute De Natis Ultra Mare of 1351 permitted
children born abroad of English parents to be considered natural-born subjects.
[FN53] But the rule that
presumed anyone born within the territory of the King to be a natural-born
subject of the King remained a part of English law until 1981. [FN54]
For Coke, as this
Article will show, the decision turned on the allegiance owed by those born in
the King's territories to their sovereign's "natural body," [FN55] as opposed to his body
politic. Coke equated a subject's relationship to a King with other personal *84 relationships, such as
master-servant and parent-child. [FN56] The most important constitutional aspect of the
case is its support for the idea that a King ruled by the law of nature,
thereby requiring "natural" allegiance of all subjects wherever they
may be located. The case emphasized the allegiance due to a sovereign solely by
virtue of the circumstances of birth; the inquiry was never concerned with
conscious choice of allegiance or membership in a corporate body. The postnati,
therefore, owed allegiance to a King who happened also to be King of England,
by virtue of their birth in Scotland after the English crown descended to
James. In effect, by determining that the Scottish postnati were subjects in
England, the decision established that a merger of England and Scotland had
taken place to some degree at a political level, as well as through medieval
dynastic law. [FN57]
Those historians who
have considered the legal precedents for Coke's opinion in the case generally
maintain that the outcome was inevitable. [FN58] Indeed, most lawyers of the day agreed that the
postnati, at least, were de jure subjects at the time of James's proclamation
of union--well before Calvin's Case was brought before the English justices.
English lawyers had consistently held for some time that birth within the
kingdom, including territories held by an English King, qualified one as a
natural-born subject. [FN59] Even lawyers for the defendants in Calvin's Case admitted that
the status of "subject" or "alien" was determined by
whether a person was born owing allegiance to the King, as indicated by the
Latin phrase ad fidem Regis. [FN60]
Coke also claimed
continuity of the rule announced in Calvin's Case with English legal precedent.
Coke addressed two reasons why the *85 judges in Calvin's Case had consulted
"no strange histories, cited no foreign laws, [and] produced no alien
precedents" [FN61] in reaching their decision:
[T]he one, for that the
laws of England are so copious in this point, as, God willing, by the report of
this case shall appear; the other, lest their arguments, concerning an alien
born, should become foreign, strange, and an alien to the state of the question,
which, being quaestio juris concerning freehold and inheritance in England, is
only to be decided by the laws of this realm. [FN62]
To view the outcome
simply as inevitable, however, is to misunderstand the political situation of
the time, and to underestimate the heavy hand of a rule thought to be compelled
by the law of nature. If, indeed, such compelling precedent existed that the
King's advocates readily instituted the suit in order to bypass Parliament
through a judicial determination of the matter, [FN63] then the length and
complexity of both Coke's and Lord Chancellor Ellesmere's opinions are
puzzling. It seems this was not a case to which precedent easily applied.
Ellesmere thought the matter "to be rare . . . [and] of great import and
consequence." [FN64] Coke found "the weight and consequence of the cause, both in
praesenti et perpetuis futuris temporibus justly deserved. . . . [It] was the
longest and weightiest that ever was argued in any Court." [FN65]
In fact, as considered
in the following sections, the legal precedent--as that term was understood at
the time--should have been enough to resolve the question in favor of the
postnati with little debate. The problem the justices faced was not a lack of
precedent but an unsettled theory of sovereignty under which the question of
who is a subject and who is an alien had to be reconciled. The justices were
called upon to determine the essence of allegiance within the theory of the
King's two bodies--a theory argued by the defendants in Calvin's Case as well
as by those in the Commons who were opposed to any closer union with Scotland. [FN66] The theory of the *86 King's two bodies, an
idea that had developed over centuries and was firmly established under the
influence of Tudor common lawyers, [FN67] was a serious challenge to the received law of
naturalization. This challenge was met, in turn, with ideas not drawn entirely
from English common law. A closer examination of the theory of sovereignty
challenging the English customary law, and Coke's method of resolving the issue
in line with the past, reveal a significant expansion of the dialogue
concerning the nature of sovereignty and allegiance over the sixteenth and
early seventeenth centuries. Partly as a result of the unique challenge posed
by the Stuart succession, continental ideas of sovereignty and allegiance
contributed to the resolution of Calvin's Case, despite its apparent congruence
with English law.
B. Terminology in
1608
Before considering the
conceptual roots of Calvin's Case, it is useful to summarize the basic
categories used to describe a person's status in early seventeenth-century
England. Today, detailed categories of "nationals" and
"citizens" vary from country to country. In the United States, for
example, a "national of the United States" can be either a citizen of
the United States or a person who, though not a citizen of the United States,
owes permanent allegiance to the United States. [FN68] For purposes of this
Article, however, there are only five recognized distinctions to be understood
in the context of Calvin's Case: "subject," "alien,"
"denizen," "natural-born subject," and "naturalized
subject."
In 1608 in England (and
indeed in the law of Great Britain until the mid- twentieth century), [FN69] one was either a subject,
an alien, or a denizen. Subjects, in turn, were either "natural-born"
or "naturalized." A subject owed fealty or allegiance to a monarch,
and the status was derived from feudal conceptions of governance. [FN70] An alien, by contrast,
was not necessarily an enemy of the monarch, but was "one born in a
strange country." [FN71] An alien could become a denizen if he were "enfranchised
here in England by the Prince's charter, and enabled . . . to do as the King's
native subjects do: namely, to purchase, and to possess lands, to be capable of
any office or dignity." [FN72] A *87 natural-born subject, as the name suggests, was a person
who was born into the King's allegiance, either by birth within England or by
birth within a territory held by the king. [FN73] A naturalized subject was similar to a denizen,
but the former status could be conferred only by act of Parliament, [FN74] and sometimes by virtue
of being a member of a territory that had been conquered by the monarch of
England, [FN75] although in 1608 the
terms natural-born and naturalized appear to have been used rather imprecisely.
[FN76]
Today, as a matter of
international law, we are accustomed to think of national status in terms of
citizenship. The words "citizenship" and "nationality" have
similar meanings, although the overlap between the two terms is not complete. [FN77] As a matter of
international law and human rights, the link between political rights and
nationality has been described in the following terms:
It is generally accepted
today that nationality is an inherent right of all human beings. Not only is
nationality the basic requirement for the exercise of political rights, it also
has an important bearing on the individual's legal capacity. Thus, despite the
fact that it is traditionally accepted that the conferral and regulation of
nationality are matters for each State to decide, contemporary developments
indicate that international law does impose certain limits on the broad powers
enjoyed by the States in that area . . . . [FN78]
In England, by contrast,
the proper term for a British national remains "subject." The term
"citizen" was not used in English legal discourse in 1608, and indeed
in most of Europe "citizen" was not used as a legal term outside of
the Byzantine empire until well into the early modern period. [FN79] "Subject," in
contrast to the "citizen" of ancient Rome, was a legal relationship
originating from feudal law *88 and politics. [FN80] "Citizen" was
the preferred term in the American colonies after independence, [FN81] probably derived from
French uses of the term and explained in part by the need of the colonists to
distinguish membership in the new United States from their previous status as
subjects of the King of Britain.
In 1608, however, the
status of "subject" did not carry with it a defined sense of
political membership or participation. Calvin's Case, of course, predated both
the Petition of Right of 1628 [FN82] and the Bill of Rights of 1689. [FN83] In 1608, the status of
subject was primarily a duty, namely, the duty of allegiance. It did provide
some rights, however, including the right to hold land in the King's dominion
and to sue in the King's courts. The language of rights attaching to a
subject's status was used in both Scottish [FN84] and continental political and legal thought of
the time. [FN85]
Although not expressly
using the term "rights" in Calvin's Case, however, the judges clearly
had specific legal entitlement in mind. For Coke, the legal entitlement
attaching to the status of subject included "the King's legal
protection," [FN86] the "ability to sue any action real or personal," [FN87] "protection and
government due by the law of nature," *89 [FN88] a "union of protection of both kingdoms,
equally belonging to the subjects of either of them," [FN89] and capacity to inherit
"any lands in any of the said kingdoms." [FN90] Lord Chancellor
Ellesmere, who also reported the decision of the Exchequer Chamber in Calvin's
Case (though his report was less well-known in subsequent centuries than was
Coke's report), stated that a subject "ought by reason and law to have all
the freedoms, privileges, and benefits pertaining to his birth-right in all the
King's dominions." [FN91] Though not yet precisely delineated in English legal discourse,
some of the "freedoms, privileges and benefits" enjoyed by a subject
included "that no man may be deprived of his possessions, nor be placed in
confinement, until he have been duly summoned before and condemned by a lawful
tribunal." [FN92] When used in this Article the association of rights with the
status of subject is to be understood in this limited sense.
C. Coke's View of
Precedent
To appreciate better the
problem raised by Calvin's Case, it is necessary to understand both the state
of the law of subjects and aliens prior to 1608 and the judges' probable views
concerning the relationship of prior cases and statutes to the controversy in
Calvin's Case. In the late sixteenth and early seventeenth centuries, the
judges of the King's Bench and Common Pleas had begun to use the term precedent
when referring to prior, privately published judicial decisions, as well as to
statutes and charters. [FN93] There was as of yet no doctrine of precedent in the modern sense.
Coke was perhaps the first English judge to have used the term with frequency
to refer to the substantive result or rule laid down in a prior case that had
some factual similarity to the case at hand. [FN94] Coke reported general
principles stated by the courts but with little factual comparison and little
distinction between what today is categorized as ratio decidendi (the holding)
versus obiter dictum (dictum). [FN95] In Calvin's Case, Coke *90 does not convey the sense that judges
are bound by prior decisions. Rather, precedents merely gave evidence of a legal
principle or rule that may or may not contribute to the resolution of a
particular case.
Coke's use of the term
"precedent" in Calvin's Case was purely to stress continuity with the
past--a desire to show consistency with historical legal practices, but with no
reciprocal view that historical examples (whether cases, statutes, or custom)
were controlling, nor that the reasoning of any case was binding. In fact, some
statutes became part of the customary law of England because jurists viewed
them to be merely restatements or clarifications of the common law. Coke, in
particular, frequently took the earliest statutes to be what we would view
today as declaratory judgments--customary law that had been "elaborated,
summarized and enforced by statute." [FN96] On the other hand, some of Coke's
contemporaries, and perhaps Coke himself, at times took the view of Lord
Chancellor Ellesmere:
Some laws, as well
statute law as common law, are obsolete and worn out of use: for, all human
laws are but leges temporis: and the wisdom of the judges found them to be
unmeet for the time they lived in, although very good and necessary for the
time wherein they were made. [FN97]
In Calvin's Case, at
least, Coke referred to "custom" more so than "precedent,"
and custom is probably closer to what he meant by precedent than our
present-day notion of the term. [FN98]
*91 In 1605, Sir Thomas
Craig, a Scottish lawyer trained in the civil law, wrote about the working of
precedent in English customary law. As in Scotland, Craig wrote, judges of
English common-law courts "give the first place to the provisions of
statutory or Parliament-made law, provided the subject at issue is dealt with,
permitted, or prohibited in any statute. . . . [If] statute law offers nothing
to instruct a judicial decision, recourse is had in England to common
law." [FN99] This "common"
or "customary" law, according to Craig, was the "system of law
the English kings at their coronation solemnly promise to respect as
unchangeable and inviolable." [FN100] If neither statute nor common law avail
"to satisfy the judge," [FN101] then next in order of preference come maxims,
local custom, and finally "the precedents set by previous judicial
decisions." [FN102] Of these precedents, Craig wrote:
If no guidance can be
obtained from custom, general axioms, or prescription, then the precedents set
by previous judicial decisions in similar cases, and particularly in the Court
of King's Bench, must be followed, on which fresh cases when they arise must be
decided if the circumstances are similar. Against a decision based on
precedents there is no effective exception or reply other than proof that the
circumstances of the two cases differ; and the smallest detail of difference
frequently avails to break down the alleged similarity of fact. . . . If one
party to the action can produce a case where the judgment supports his own
contention, the other argues with all his might that the circumstances of the
case before the court are distinguishable from those of the precedent quoted. It
is left to the judge to pronounce which is right, and to state the points of
resemblance or difference between the two cases. [FN103]
Craig based his
conclusions on observation only, disclaiming any first-hand experience with the
English courts. [FN104] Nonetheless, Craig confirms the importance of statutes in
the English courts, although his view does not fully resonate with Coke's view
that statutes may *92 themselves only embody or evidence the ancient, customary
law of England.
D. Precedent for the Problem
of the Postnati
Returning to the legal
precedent, or examples from England's history, available to the judges in
Calvin's Case, we know that as early as the thirteenth century in a treatise by
Henry de Bracton, [FN105] subject status was a corollary of allegiance. A subject's
duty of allegiance to his King was much like the feudal vassal's duty of fealty
to his lord. [FN106] Aliens, on the other
hand, did not owe allegiance to the King and accordingly had few rights,
although an alien could become a denizen, which meant that he had been
"enfranchised here in England by the Prince's charter, and enabled . . .
to do as the King's native subjects do: namely, to purchase, and to possess
lands, to be capable of any office or dignity." [FN107] The concept that a
person who owed fealty to another King could be "an alien by birth"
is clearly present. Bracton described an appropriate plea in defense of an
action for land, if the plaintiff were an alien:
[I]f he be an alien by
birth who is of fealty to the King of France, and he brings an action against
some one who is of fealty to the King of England, no answer shall be made to
such a person at least until the lands shall be common, nor even if the King
has allowed him to plead, because as an Englishman is not heard, if he implead
any one concerning lands and tenements in France, so ought not a native of
France and a born alien who is of fealty to the King of France to be heard, if
he impleads any one in England. [FN108]
Thus a subject's duty of
allegiance to the King was not a duty arising from a relationship concerning a
specific piece of land, but was territorial in nature from an early period. [FN109]
Moreover, the
geographical boundaries of the English King's territories were constantly
changing throughout the medieval period, and the rules determining subject
status changed accordingly. During *93 the reign of Edward III, two
fourteenth-century statutes established fairly clear rules concerning the
acquisition of the status of "subject by birth." One, a statute of
1368, provided that persons born in any of the King's territories were subjects
in England. [FN110] The statute was claimed
to be based in judicial precedents which came from a time when the King had
large continental possessions. [FN111] The 1351 statute De Natis Ultra Mare allowed
children born outside of the King's territories to inherit land as natural
subjects if the parents were "of the faith and ligeance of the King of
England." [FN112] The statute De Natis established:
[T]he law of the Crown
of England is, and always hath been such, that the children of the kings of
England, in whatsoever parts they be born . . . be able and ought to bear the
inheritance after the death of their ancestors, [and that] all children
inheritors, which from henceforth shall be born without the ligeance of the
king, whose fathers and mothers at the time of their birth be and shall be ad
fidem Regis [of the faith and ligeance] of the King of England, shall have and
enjoy the same benefits and advantages . . . as the other inheritors afore said
in time to come . . . . [FN113]
By at least the
fourteenth century, then, birth in England was not the exclusive avenue for
acquiring the status of a natural-born subject. In Calvin's Case, however, no
statute specifically addressed the status of James's Scottish subjects.
In the early sixteenth
century, the rule was firmly developed that aliens could not inherit land in
England. In fact, one of the few exceptions to the "olde custome of the
realme" [FN114]--that the eldest son is
the only heir to his father's estate--was that if a younger son were a
natural-born subject whose elder brother was born before the act of denization,
the younger would be the heir. Thus, in Doctor and Student, Christopher St.
German wrote: "Also if an alien have a son that is an alien and after is
made Denizen and hath another son, and *94 after purchases lands and dies, the
younger son shall inherit as heir and not the eldest." [FN115] The status of denizen,
which could be conferred by the King without act of Parliament, gave the person
and his heirs the right to acquire land and sue in the English courts, but it
had no retroactive operation. [FN116] Coke later agreed with the characterization of
the status of a denizen described in Doctor and Student:
The difference between a
naturalization and denization: by a denization, which the King may grant of
himself without a Parliament, the party himself, and children born after, are
made capable of all rights and privileges as freeborn Englishmen; by a naturalization
those children which he had before are also included. [FN117]
Despite the fact that
the civilian John Cowell's 1607 law dictionary, The Interpreter, was condemned
by James I in 1610 because it drew its arguments "from the Imperial Laws
of the Roman emperors," [FN118] there is little reason to doubt that Cowell's
definition of the English law concerning aliens was correct and widely held: An
alien was "one born in a strange country," but:
[A] man born out of the
land, so it be within the limits of the King's obedience, beyond the seas, or
of English parents, out of the King's obedience (so the parents at the time of
the birth, be of the King's allegiance) is no alien in account, but a subject
to the king. [FN119]
Further evidence that
this formulation was generally accepted before the time of Calvin's Case can be
drawn from the fact that both the plaintiff and the defendants cited Littleton,
along with the statute De Natis, for the rule: "Alien is he which is born
out of the allegiance of our lord the king." [FN120] According to the
defendants in Calvin's Case, however, Robert Calvin was born into the
allegiance not of the King of England, but of the King of Scotland. For this
reason, they argued, the judges could not simply declare that under the common
law the postnati were subjects of England, though they might become *95 denizens by charter, or
they might become naturalized subjects by Act of Parliament.
Ireland, Wales,
Normandy, and Gascony, won and lost periodically by English kings in previous
centuries, provided other examples the judges could consult. Persons born in
Ireland after its conquest by Henry II were considered natural-born subjects,
"capable of and inheritable to lands in England." [FN121] Although originally
assimilated by conquest, thus differing from the situation of the union of the
crowns, subsequent English monarchs acquired the conquered territories of
Ireland through descent. Similarly, Wales, though soon assimilated as part of
the kingdom of England, was for a time (before Edward I) held only as
"parcel in tenure," and persons born in Wales before Edward I were
"capable and inheritable of lands in England." [FN122]
Moreover, medieval
English history provided two other examples in which persons born in
territories outside of England were not considered aliens in England. Like
James I, Henry II acquired Gascony, Guienne, and Anjou through "a title in
blood and by descent," and Edward III acquired the crown of France in like
manner. [FN123] The praerogativa Regis
of Edward II indicates that persons born in Normandy while under the reign of
the English King were to be considered natural-born subjects. [FN124] A statute from the
reign of Edward III indicated that "an exchange was made between an
Englishman and a Gascoin, of lands in England and in Gascoin; ergo, the Gascoin
was no alien, for then had he not been capable of lands in England." [FN125]
These examples were not
precisely parallel to James's situation, of course. Henry II inherited Anjou
from his father, then married Eleanor of Aquitaine (Gascony, Guienne), and
after that became King of England. Further, although Edward III claimed the
crown of France, he cannot be said to have "acquired" it to quite the
same extent as Henry VI. Conspicuously absent in all of these precedents,
though, is any allusion to or discussion of a source of the rule in divine law
or the law of nature.
*96 What was the legal
status of Scots in England prior to the union of the crowns? Thomas Craig,
writing in 1605, described the situation in this manner:
On the strictest grounds
of equity I do not hesitate to say, that for three or four centuries past we
have been most unfairly treated by our neighbors, who have regarded us as
foreigners, and have compelled us to be naturalized to qualify for the enjoyment
of English citizenship. [T]here is [now] no English law or statute in which
Scotsmen are debarred from title to or possession of property validly acquired
in England. . . . Are the goods of Scotsmen who have acquired property in
England by inheritance, purchase, or exchange, or have died in England testate
or intestate, to be treated as the property of aliens and be swept into the
Exchequer as so much treasure trove? Our wise King will never allow Scotsmen,
his own kin, to be treated as foreigners in his own dominions, to be liable to
heavier burdens than the English, or to be deprived of property which they have
acquired by marriage or some other equitable title. [FN126]
Craig shows us, again,
that disposition of property was of primary importance in the question behind
the status of James's Scottish subjects in England.
Before the English
justices in the Exchequer Chamber decided Robert Calvin's status, members of
Parliament debated extensively the status of the postnati. [FN127] The King's men proposed
bills to naturalize all of James's Scottish subjects, including the postnati,
but the bills failed to gain approval in Parliament. [FN128] As a result, the
English rights of Scottish subjects were settled by the judges of the realm.
The parliamentary debates, the subject of the next section, are important for
an understanding of Calvin's Case because leaders of the opposition in the
Commons also represented Calvin's opponents in the suit before the justices.
Thus, one would expect that this confrontation might provide clues to the
formation of the defendants' arguments in Calvin's Case. Another important
point to be gleaned from the debates concerns evidence that English lawyers and
lawmakers sought a resolution to the problem of the postnati from continental
legal practices.
*97 III. The Legal Theory of the King's
Two Bodies
A. The Parliamentary
Debates, 1606-1607
The Commissioners of
Union, [FN129] whose members included
Francis Bacon, Thomas Craig, and Lord Chancellor Ellesmere, recommended two
bills to the Parliament in 1606. [FN130] The first simply declared that under existing
law the postnati were de jure English subjects. The second was a charter of
naturalization for all Scots born before 1603, the antenati. [FN131]
Both bills were
defeated, after provoking substantial hostility in the Commons. To those
opposed to any closer union with the Scots, the declaration concerning the
postnati must have seemed to be the first step toward James's "perfect
union," cleverly implemented by prerogative under the guise of the common
law. In particular, there was substantial opposition in both kingdoms to
proposals for uniting the laws of the two countries, [FN132] and in a speech to the
Commons in support of the acts Bacon had referred to a possible union of laws:
[A]ccording to true
reason of estate, Naturalization is in order first and precedent to union of
laws; in degree, a less matter than union of laws; and in nature, separable,
not inseparable, from union of laws. For Naturalization doth but take out the
marks of a foreigner, but union of laws makes them entirely as ourselves. [FN133]
Opposition to the acts
was also expressed with fears that an influx of "hungry Scots" would
flood England. [FN134] Nicholas Fuller, a Puritan *98 agitator and recognized
leader of those opposing an extension of the privileges of English subjects to
the Scots, thought that patronage opportunities within England ought to be
reserved only for English subjects. [FN135] Another Parliamentarian compared England to a
rich pasture threatened with a herd of famished cattle. [FN136]
Five common lawyers, two
of whom, Serjeants Richard Hutton and Laurence Hyde, would continue to oppose
the naturalization of the postnati as counsel for the defendants in Calvin's
Case, [FN137] led the legal attack on
the proposition that the postnati were English subjects as a matter of common
law. From Bacon's and Coke's summaries of the issues in Calvin's Case, it
appears that the legal arguments made by counsel for the defendants were
substantially the same as those presented in the debate over the Naturalization
Act in the Commons. [FN138] Because we do not have a complete report of the defendants'
arguments before the Exchequer Chamber, the legal debates in Parliament over
the Naturalization Act are all the more important.
The legal arguments that
the postnati were aliens in England were threefold. (1) Whoever is born out of
the "ligeance" of King James of his kingdom of England is an alien as
to the kingdom of England, applying equally to the postnati and the antenati.
(2) Allegiance in each kingdom is due to the King's body politic of that
kingdom. The allegiance due by a King's subject, therefore, is several and
divided between the two kingdoms. The allegiance due by Scots to James's
Scottish body politic does not establish that Scots are subjects of the King in
England. (3) A subject born out of the reach of the laws of England cannot be a
natural-born subject of the King in England and take advantage of the
protections or rights afforded by English law. The defendants equated birth and
jurisdiction on the question of inheritance. They claimed that a subject who
was not at the time and in the place of his birth inheritable to the laws of
England could not be inheritable to the laws of England, even if he later owes
allegiance to a King who is also King of England. [FN139]
Viewed from the
parliamentary debates, the defendants in Calvin's Case seem to have had two
motives. One was a general opposition to closer union with Scotland, and the
other was parliamentary fear of the legal theory of absolute monarchy prevalent
in Europe at that *99 time and believed to be espoused by James I. [FN140] The legal theory of
absolute monarchy posed a very real problem to the resolution of Calvin's Case.
In 1598, prior to his accession to the English throne, James wrote in The Trew
Law of Free Monarchies that because kings derive their authority directly from
God, not from laws enacted by a Parliament, they were not subject to positive
law. [FN141] James derived many of
his ideas from Bodin, who himself was widely followed by supporters of absolute
monarchy in Europe in the late sixteenth and early seventeenth centuries. [FN142] Bodin and James (at
least in 1598) both advocated that the absolute power of the monarch lies in
the King's right to give laws without the consent of his subjects, and thus,
the king, as a matter of natural law, was the final source of positive law. [FN143] James's English
subjects may reasonably have feared that the new King viewed the union of the crowns
in 1603 to make all of James's subjects, in England and Scotland, subject to
one law-- his.
According to Bacon, the
thrust of the defendants' case was that the allegiance required of a subject
was allegiance to the "kingdom of England," the King's other body,
not to the person of the King. [FN144] The accepted ad fidem Regis formulation,
however, clearly precluded a limitation of this type. The defendants' challenge
to the nature of a subject's allegiance was a very complex idea involving
corporate governmental capacities attributed to the King's person. The strength
of the defendants' argument was that their resolution of the case did not
require past precedent to be contradicted or ignored.
The debates in the
Commons over the Naturalization Act initially challenged the applicability of
the statute De Natis. Following the Commissioners' proposals, leaders of the
opposition in the Commons selected persons trained in civil law as well as
common lawyers to present grounds for opposition to the Naturalization Act,
with the civilians to argue "the law of nations, and of reason, and the
stories of other countries, and the civil law elsewhere put in use upon
unions." [FN145] Sir Edwin Sandys considered the case "proper to be *100 consulted with the law
of nations, which is called jus gentium; for there being no precedent for it in
the law." [FN146]
The civilians
participating in the debates apparently did not discuss any rule of citizenship
claimed to derive from the post-classical texts of Roman law that were glossed
and commented upon in the West from the late eleventh through the fifteenth
centuries. [FN147] Nor did any reference
to ancient Roman practice appear in the arguments in Calvin's Case, [FN148] except for a remark by
Bacon that no "Roman rule" was relevant to the question at hand: The
judges had to decide whether subjects "which grow unto the King by
descent" were naturalized, while Roman citizenship "did never follow
by conquest, during all the growth of the Roman empire; but was ever conferred
by charters or donations, sometimes to cities and towns, sometimes to
particular persons, and sometimes to nations, until the time of Adrian the
emperor, and the law In orbe Romano." [FN149]
It appears that all of
the participants understood that a rule of acquisition of citizenship derived
from the ancient law of Rome--because it was conferred on persons in new
territories by "charters or donations"--was far removed from the
question whether the postnati of Scotland were de jure natural-born subjects
according to the customary laws of England. [FN150] Coke was familiar with canon law and Roman law
as applied in various types of cases in the English ecclesiastical courts and
royal prerogative courts, including the High Court of Star Chamber, the High
Court of Chivalry, the High Court of Admiralty, and the Court of Requests. But
he considered them to be "foreign" bodies of law in the sense that
they were particular customs that had been incorporated into the common law,
compared to the common law traditionally applied in the courts of Common *101 Pleas, King's Bench,
and Exchequer. [FN151] But even that law was not exclusively English common law,
as evidenced by Coke's frequent use of maxims derived from the civil law. [FN152]
The Earl of Northampton
noted that the civil lawyers had suggested little precedent to resolve the
status of the postnati. [FN153] Thus, the debate centered on the significance of the
statute De Natis. Common lawyers opposed to the Naturalization Act argued that
allegiance proceeded from the laws of England and not the person of the king,
citing language in De Natis referring to the "ligeance of England,"
which meant that allegiance was "tied to the kingdom, and not to the
person of the king." [FN154] James as King of Scotland received a different
allegiance from his Scottish subjects than he did from his English subjects as
King of England, because James in essence possessed two political
bodies--"the person of the King possessing both kingdoms possesseth the
people and the laws of them distinct, as the kingdoms are themselves." [FN155] No one could be born
"a subject of two allegiances," and therefore Scots born in Scotland
could not be natural subjects in England. [FN156]
In essence, these common
lawyers attempted to limit allegiance to the territory of England by
considering the foundation for the obligation of allegiance. Their contention
was that allegiance was a function of the laws of the kingdom, a positive law
notion that in some respects separated English common law from the crown. By linking
allegiance to the laws of England, the common lawyers attempted to contradict
the rule apparently settled since the reign of Edward III that a person did not
have to be born within the territory of England to be a natural-born subject.
But their formulation
fell easily before the language ad fidem Regis in the statute De Natis. The
formulation ad fidem Regis meant that *102 allegiance was to the
person of the King. [FN157] This, at least, was the response of ten of eleven judges
consulted on the question. [FN158] Chief Justice Popham, Sir Thomas Flemming, and
Coke delivered opinions to the Lords in Parliament determining that allegiance
was to the person of the King and not to the laws of England. [FN159]
Following the
consultation with the judges, it was surely evident to the opposition faction
that the ad fidem Regis formulation excluded arguments concerning allegiance
other than to the King's person. It is not surprising that Hutton and Hyde, as
counsel for the defendants in Calvin's Case, conformed their arguments
accordingly. They employed a combination of the ideas of the civilians and
common lawyers presented in the parliamentary debates. The civilians may have
suggested little precedent from the law of nations, as the Earl of Northampton
reported, [FN160] but the civil lawyers
made a unique contribution to the debate in the form of a maxim derived from
the Digest of Justinian.
B. A Maxim from the
Civil Law
In the parliamentary
debates, a civilian consulted on the matter, Sir John Bennet, [FN161] admitted that the civil
law provided no resolution to the problem of the status of the postnati, but
for "other unions lesser then kingdoms," Bennett said that the maxim
"cum duo jura concurrunt in una persona aequum est ac si essent in diversis"
(when two rights meet in one person, it is the same as if they were in
different persons) showed that "the customs of every place remain still
distinct and divided." [FN162] In contemporary law, there are numerous
examples of the principle embodied in the maxim cum duo jura--one person may
simultaneously exercise several distinct legal capacities or functions. [FN163] Bennet noted that the
maxim was used to *103 distinguish between two ecclesiastical entities
joined under one person, "as one parson of two churches, [or] one dean of
two deaneries." [FN164] Since the customs of the two countries remained divided
after the union of the crowns, Bennet seemed to argue that each entity bestowed
separate rights upon its own subjects. Hence, the postnati of Scotland had no
better claim to natural-born subject status in England than did the antenati.
In Calvin's Case the
defendants argued that James had two distinct capacities--his "body
politic" and his natural body. Because there had been no union of the laws
of Scotland and the laws of England, James's body politic remained different
for each of his kingdoms. Because allegiance was due to the King's body politic
and not his natural body, the defendants argued that the plaintiff owed
allegiance to James's Scottish body politic but not to James's English body
politic. That the two kingdoms (and their laws) remained distinct within
James's political capacities was shown by reference to the maxim Bennet
discussed in the parliamentary debates, "Quando duo jura concurrunt in una
persona, aequum est acessent in diversis." [FN165] The defendants argued
the maxim established that parishioners in two parishes under one bishop did
not thereby become related to each other. [FN166] Ellesmere denied the distinction between
James's capacities and characterized the defendants' case differently:
"The subjects of each several kingdom are bound to him by distinct
allegiance, according to the several laws of the kingdom where they were born.
And all this is grounded upon this rule of fiction in Law: Quando duo jura . .
. ." [FN167]
The maxim cum duo jura
was critical to the defendants' characterization of ad fidem Regis and
therefore to their resistance to the legal theory of absolute monarchy. By
contending that ad fidem Regis meant allegiance to the political aspect of the
King's body, the defendants' position fit within the accepted rule of
territorial birth while maintaining that this allegiance was required by the
customary laws of England. [FN168] The King might very well have two capacities,
as English law had recognized for several centuries, [FN169] but because the English
and Scottish bodies politic remained distinct, the ad fidem *104 Regis test worked to
deny subject status in England to the postnati of Scotland.
Bennet's introduction of
the maxim into the parliamentary debate on naturalization was not its first
appearance in English legal discourse. The maxim was used in an ecclesiastical
context a few years earlier in Acton's Case. [FN170] There the question was
whether a statute of Henry VII [FN171] forbidding a cleric from holding a plurality of
benefices prohibited two chaplains of a widowed baroness from acquiring
additional benefices upon her marriage to another nobleman.
In Acton's Case the
chaplains had argued that their holdings did not exceed any statutory limit
because the Act did not apply to rights retained in elevation of status:
"If a bishop is translated to an archbishopric, or a baron is created an
earl, now he has both these dignities, and as it is commonly said, Quando duo
jura concurrunt in una persona, aequum est ac si essent in diversis." [FN172] Coke's answer, in
Acton's Case, was that the maxim was not contrary to the Act: "[B]ut yet
within this Act he can have but as many as an archbishop, or an earl may have;
for although he has sundry dignities, yet he is but one and the same person to
whom the attendance and service shall be done . . . ." [FN173] Therefore, the two
chaplains could retain the benefices granted them by the baroness prior to her
remarriage, and they could take additional benefices resulting from her
marriage to another noble.
Coke subsequently
considered the maxim in Calvin's Case. [FN174] The maxim's use in Calvin's Case provides an
example of an English court directly borrowing a maxim from the civil law and
converting it to an entirely different use. The maxim appears in several late
medieval collections of Brocardica iuris, collections of maxims compiled by the
scholars who glossed the Corpus Juris Civilis, [FN175] and is cited there to
the Digest of Justinian. [FN176] Bartolus derived the maxim in essentially *105 the form used by Bennet
from a case concerning challenges to a will by a minor's guardian when the
guardian stood to gain from the will in another capacity. [FN177] Bennet, however, used
the maxim in the very different context of ecclesiastical pluralities:
"[A]s one Parson of two Churches, one Dean of two Deaneries; the Customes
of every place remain still distinct and divided." [FN178] The subsequent use of
the maxim in English customary law, and in Calvin's Case in particular,
illustrates how "much of medieval canon law passed over--often
unnoticed--into the law of the state." [FN179]
C. The Debate Moves
to the Courtroom
The arguments presented
to the Exchequer Chamber in Calvin's Case echoed the parliamentary debates of
the preceding year. With the understanding that subject status acquired by
birth prior to 1608 was not limited to the territorial boundaries of England,
Bacon argued that Cobledike's Case [FN180] also provided support for the proposition that
the postnati of Scotland were natural subjects in England. In the reign of
Edward I, Constance de N. swore out a writ against Roger de Cobledike, claiming
that a freehold held by Cobledike had descended to her as rightful heir. [FN181] In defense, Cobledike
argued that the plaintiff was a "French woman, and not of the ligeance,
nor of the faith of England," and demanded judgment. Cobledike's argument *106 that the opposing party
was "not of the ligeance and faith of England" was held insufficient
because it "referred ligeance and faith to England, and not to the
king." [FN182] The plea was amended
(and later accepted) to state that the plaintiff was "not of the ligeance
of England nor of the faith of the king." [FN183] This plea suggests that
a King's subject in another territory was not an alien in England, but that
Constance did not qualify as a subject of the King. Like the statute De Natis,
the allegiance was ad fidem Regis, or "to the faith of the king,"
strengthening the argument that allegiance was a personal tie between the
subject and the King's natural body instead of to the kingdom of England. [FN184]
Bacon also noted the
several examples from English history in which the King's subjects in other
territories were not considered aliens in England. [FN185] Bacon found evidence in
the praerogativa Regis that persons born in territories subject to the King but
not in England were natural-born subjects, [FN186] and, citing Bracton, claimed this status was
not altered by a loss of the province due to a change in sovereignty, as
consistent practice would require. [FN187]
Ellesmere agreed with
Bacon's characterization of the rule concerning aliens:
[F]or where there is but
one sovereign, all his subjects born in all his Dominions be born Ad fidem
Regis; and are bound to him by one bond of Faith and Allegiance: And in that,
one is not greater nor lesser than another; nor one to be preferred before
another: but all to be obedient alike; and to be ruled alike; yet under several
laws and customs. . . . And therefore all that have been born in any of the
King's Dominions since he was King of England are capable and inheritable in
all his Dominions without exceptions. [FN188]
Coke, too, had little
trouble with the formulation of the rule to be applied:
*107 An alien is a subject
that is born out of the ligeance of the king, and under the ligeance of
another; and can have no real or personal action for or concerning land: but in
every such action the tenant or defendant may plead that he was born in such a
country which is not within the ligeance of the king. [FN189]
Coke further noted, and
Ellesmere agreed, [FN190] that Cobledike's Case "did overrule this case of
Calvin, in the very point now in question; for that the plea in this case doth not
refer faith or ligeance to the King indefinitely and generally, but limiteth
and restraineth faith and ligeance to the kingdom." [FN191] Thus, according to
Coke, it was not a bar to the plaintiff's action that Scotland had a separate
Parliament and laws and remained a distinct kingdom within the union of the
crowns.
Despite the precedent of
recognizing, albeit through statute, the subject status of persons in the
French possessions of Henry II and Edward III, [FN192] and the general
agreement that one was not an alien according to English law if birth were ad
fidem Regis, [FN193] Coke could not easily
rule in favor of the plaintiff. While not challenging the rule derived from the
statute De Natis, counsel for the defendants argued that the necessary allegiance
for birth ad fidem Regis was to the King's body politic and the laws of
England. They argued that the postnati could not be considered naturalized
subjects with respect to the laws of England because they were not subject to
the territorial reach of laws enacted by the English Parliament. It was not
sufficient that the postnati of Scotland happened to owe allegiance to a King
who was also England's monarch.
Bacon argued that legal
precedent, as that word was understood at the time, permitted the assembled
judges of the realm simply to declare that the postnati were subjects in
England. This argument posed a problem in Calvin's Case because the English
legal concept of sovereignty had changed substantially since the fourteenth
century when most of the applicable law of naturalization had developed. This
development in the notion of sovereignty took the form of the theory *108 of "the King's two
bodies," a conception not entirely new to English political thought but
one that had undergone substantial development at the hands of Tudor common
lawyers. In essence, the theory addressed the problem of continuity necessary
for perpetuating hereditary kingdoms; namely, what happened to sovereignty upon
the King's death. English jurists held that the body politic survived death and
was transferred immediately to another body natural according to the laws of
succession. No coronation was necessary to bestow the sovereignty of the body
politic upon the new monarch. [FN194] The legal fiction of the King's two bodies had
been used in English political thought for some time, but it took on very
distinctive characteristics in the late Tudor and early Stuart periods. [FN195] The theory of "the
King's two bodies" was applied for the first time to the law of subejcts
and aliens in Calvin's Case.
D. Francis Bacon's
Proposal: The Law of Nature
Bacon, as counsel for
the plaintiff, disagreed with the proposition that allegiance must be either to
the King's body politic or his body natural. Bacon argued that while the King
might have a body politic for some purposes-- to resolve questions of the
validity of a prince's acts before ascending the throne as sovereign [FN196]--the common law of
England had always held that the two were inseparable. Bacon quoted from
Plowden: "There is in the King not a body natural alone, nor a body
politic alone, but a body natural and politic together: Corpus corporatum in
corpore naturali, et corpus naturale in corpore corporato." [FN197] (The corporate body
subsists in a natural body, and the natural body in a corporate body.) Bacon
denied that the cum duo jura maxim held otherwise, and denied that the maxim
was applicable to English common law:
It is a rule of the
civil law, say they . . . when two rights do meet in one person, there is no
confusion of them, but they remain still in the eye of law distinct, as if they
were in several persons: and *109 they bring examples of it of one man bishop of
two sees . . . . [B]ut [this rule] receiveth no forced or coined but a true and
sound distinction or limitation, which is, that it evermore faileth and
deceiveth in cases where there is any vigor or operation of the natural person.
[FN198]
Bacon made no further
reference to this maxim, nor did he explain on what ground it was inapplicable.
Rejecting the idea that allegiance was to the King's body politic, however, did
not avoid the defendants' additional claim that allegiance was due by the laws
of England. [FN199] Allegiance might be to
the King's natural body, but if this allegiance were a function of the laws of
James's separate bodies politic, Robert Calvin would still be an alien in
England.
Bacon's answer was that
allegiance was due not by the law of either England or Scotland alone but by
the law of nature, itself a part of the law of England, as it was part of the
laws of all nations:
Law no doubt is the
great organ by which the sovereign power doth move, and may be truly compared
to the sinews in a natural body . . . . But towards the King himself the law
doth a double office or operation: the first is to entitle the king, or design
him . . . . The second is . . . to make the ordinary power of the King more
definite or regular. . . . But I demand, do these offices or operations of law
evacuate or frustrate the original submission, which was natural? Or shall it
be said that all allegiance is by law? No more than it can be said, that
potestas patria, the power of the father over the child, is by law. And yet no
doubt laws do diversely define of that also; the law of some nations having
given the fathers power to put their children to death; others, to sell them
thrice . . . . Yet no man will affirm, that the obedience of the child is by
law, though laws in some points do make it more positive: and even so it is of
allegiance of subjects to hereditary monarchs, which is corroborated and
confirmed by law, but is the work of the law of nature. [FN200]
In support of the claim
that allegiance was due to a sovereign by the law of nature, Bacon offered
"divers acts of Parliaments" that titled the King "our natural
sovereign and liege lord." [FN201] Further, according to Bacon, "allegiance
began before laws": "The original age of kingdoms was governed by
natural equity . . . . [K]ings were more ancient than lawgivers [[[and] the
first submissions were simple *110 . . . ." [FN202] Bacon's arguments are
particularly noteworthy because they strongly resonate with Bodin's writings
concerning the source of the obligation of allegiance. [FN203] Bacon's analogy of the
source of the duty of allegiance in the law of nature, similar to the operation
of natural law within families, also appears in Bodin's Republique. [FN204]
An additional step
remained. In order to find that the allegiance due by the law of nature to the
King's natural body meant that James's Scottish and English subjects were
mutually naturalized, Bacon argued:
For, my lords, by the
law of nature all men in the world are naturalized one towards another. . . .
It was civil and national laws that brought in these words, and differences, of
civis and exterus, alien and native. And therefore because they tend to abridge
the law of nature, the law favoureth not them, but takes them strictly . . . .
So by the same reason, all national laws whatsoever are to be taken strictly
and hardly in any point wherein they abridge and derogate from the law of
nature. [FN205]
Bacon offered no further
proof that natural law required this result. Perhaps the paucity of evidence
reveals a difficulty in refuting the defendants' two- body theory of allegiance
and overcoming the prevailing notion that the nerves of England's body
politic--an idea favoring a positive law of allegiance-- should determine the
status of the postnati.
Bennet's maxim, first
introduced in the parliamentary debates, was used later by the defendants in
Calvin's Case to support the distinction between the King's two bodies. This
indicates some interaction between the civilians and common lawyers opposing
the Naturalization Act. [FN206] For the plaintiff, Francis Bacon cited the maxim and noted
that "the words whereof are taken from the civil law; but the matter of it
is received in all laws; being a very line or rule of reason, to avoid
confusion." [FN207]
*111 According to Coke in
Acton's Case, the maxim was "commonly said." [FN208] While the context in
which it was commonly said remains unclear, Acton's Case and Bennet's speech in
Parliament are strong evidence that its common use was ecclesiastical. [FN209] Although the
application of the maxim in Acton's Case is not quite Bennet's "as one
Parson of two churches, one Dean of two Deaneries," both instances are far
different still from the maxim's source in Bartolus. In Calvin's Case it was
used to determine the rights of subjects in separate kingdoms. The
transformation is one from ecclesiastical governance to political governance of
non-clerics. [FN210]
In any event, although
the cum duo jura maxim does not appear to have been used in the medieval theory
of the King's two bodies before Calvin's Case, [FN211] the common lawyers' use
of this maxim in connection with their peculiar theory of sovereignty is not
surprising. The theory of the King's two bodies, as it was developed by the
time of Bracton, seems to have originated in ecclesiastical notions of the
corpus mysticum and Christ's two natures. [FN212] In essence, the theory of the King's two
capacities addressed a problem of continuity necessary for perpetuating
hereditary kingdoms: namely, what happened to sovereignty upon the King's
death--a problem confronting continental civilian thinkers as well. [FN213]
From Plowden's Reports
it is evident that common lawyers in the late Tudor period were familiar with
this dual concept of sovereignty. [FN214] According to Plowden,
*112 that by the Common Law
no Act which the King does as king, shall be defeated by his Nonage. For the
King has in him two Bodies, viz., a Body natural, and a Body politic. His Body
natural . . . is a Body mortal, subject to all Infirmities that come by Nature
or Accident . . . and to the like Defects that happen to the natural Bodies of
other People. But his Body politic is a Body that cannot be seen or handled,
consisting of Policy and Government, and constituted for the Direction of the
People, and the Management of the public weal . . . what the King does in his
Body politic, cannot be invalidated or frustrated by any Disability in his
natural Body. [FN215]
The cum duo jura maxim
also made sense in the theory of the King's two bodies because, again from
Plowden, the two bodies were inseparable:
So that he has a Body
natural, adorned and invested with the Estate and Dignity royal; and he has not
a Body natural distinct and divided by itself from the Office and Dignity
royal, but a Body natural and a Body politic together indivisible; and these
two Bodies are incorporated in one Person, and make one Body and not divers,
that is the Body corporate in the Body natural, et e contra the Body natural in
the Body corporate. So that the Body natural, by this conjunction of the Body
politic to it . . . is magnified, and by the said Consolidation hath in it the
Body politic. [FN216]Thus, in 1608, ample precedent existed for the distinction
between the King's two bodies--enough that Coke readily admitted the dual
capacity of the king. [FN217] However, the theory had apparently not been used
before to determine who was a subject and who was an alien. Coke found the
defendants' plea "a mere stranger in this case, such a one as the eye of
the law (our books and book-cases) never saw, as the ears of the law (our
reporters) never heard of . . . . In a word, this little plea is a great
stranger to the laws of England . . . ." [FN218] The core of the
defendants' challenge, the innovative application of the two-body theory to the
law of subjects and aliens, placed the origins of allegiance inside the
province of human law in a way that the language ad fidem Regis would otherwise
prohibit. Because the basic theory of the King's two bodies was not
unprecedented in the common law, the addition of the maxim cum duo jura to the
*113 theory posed substantial difficulties for the justices in the Exchequer
Chamber.
IV. The Resolution of
Calvin's CaseThe theory of the King's two bodies presented two questions that
had to be settled in order to decide Calvin's Case. The first question, to
which of the King's two capacities a subject's allegiance was due, was answered
by Coke by his determination that allegiance was due to the King's natural body
by the law of nature. [FN219] The second question was related to the first:
Would allegiance to the King's natural body be sufficient to make one a natural
subject within a separate body politic?Coke's affirmative answer to this second
question required an understanding of sovereignty that had much in common with
civilian legal thought. The difficulties posed by the second question required
an understanding of the meaning of "body politic" as applied to the
government of England in the early seventeenth century. The King's body politic
arose from a mystical notion of immortality and immutability attributed to the
crown to provide for continuity of sovereignty upon succession. [FN220] When
applied to the kingdom, however, body politic meant that part of the kingdom
which was "framed by the policy of man," [FN221] a notion widely used
by civilians and common lawyers alike to refer to the public and private laws
of the realm. The laws of England were the sinews and nerves of the body
politic, with the King as its head. [FN222] The defendants in Calvin's Case
understood "body politic" to have positive law connotations. The
defendants pointed to "municipal laws of this realm [that have] prescribed
the order and form" of allegiance, or legal obedience. [FN223] *114 Coke,
on the other hand, resoundingly rejected the idea that the allegiance owed at
birth was tied to municipal law. Instead, Coke maintained that it was required
by the divine law of nature. [FN224]Coke's resolution of the case essentially
followed that suggested by Bacon-- allegiance was due by the law of nature to
the King's natural body, and since both Scottish and English subjects owed
allegiance to the same sovereign, Scots who were born into the allegiance of
James at the time he was also King of England were natural subjects in England.
Coke's contribution was to spell out more clearly why this last proposition
should be so. Although the two countries might have different laws, Scots were
subject to the same natural law of allegiance as the English. Despite finding
clear authority in Cobledike's Case that if Robert Calvin were ad fidem Regis
he was "no alien," Coke agreed with the defendants that the question
still to be resolved implicated the theory of the King's two bodies. [FN225]
Coke reached a result consistent with past English practice by recognizing that
persons born in territories acquired by an English sovereign "in blood and
by descent" were natural subjects in England. [FN226]According to Coke,
the mutual oath between a liege lord and his subject was natural ligeance.
Natural ligeance existed between the King and his subjects, with the King
offering protection in return for loyalty. [FN227] To support his claim that
every subject from birth was presumed by law to be sworn to the natural person
of the king, Coke pointed to the banishment of the Spencers by Edward II,
allegedly for the offending words: that homage and oath of ligeance was more by
reason of the King's crown (that is, of his politic capacity) than by reason of
the person of the King . . . [so that] if the King do not demean himself by
reason in right of his Crown, his lieges be bound by oath to remove the king.
[FN228]In addition, Coke discussed the nature of hereditary sovereignty in
England in order to show that this feudal notion of allegiance could not be to
the King's body politic. The King "holdeth the kingdom of *115 England by
birth right inherent, by descent from the blood Royal, whereupon succession
doth attend." [FN229] Because the sovereign's title was "by the
descent" and "without any essential ceremony or act to be done ex
post facto" (e.g., coronation), there could be no interregnum. [FN230]
Hence, the body politic, or laws of the realm, added nothing to James's
rightful claim to sovereignty. Nonetheless, his rightful claim to sovereignty
was the basis for the allegiance owed by his subjects: "[S]o as for these
special purposes the law makes him a body politic, immortal and invisible,
whereunto our ligeance cannot appertain." [FN231]Coke next turned to the
source of this allegiance. The law of nature, part of the law of England,
required the allegiance of a subject to his "natural liege Sovereign."
[FN232] Coke wrote that "[t]he law of nature is that which God at the time
of creation of the nature of man infused into his heart, for his preservation
and direction; and this is lex aeterna, the moral law, called also the law of
nature." [FN233] Coke further wrote: And the reason hereof is, for that
God and nature is one to all, and therefore the law of God and nature is one to
all. By this law of nature is the faith, ligeance, and obedience of the subject
due to his Sovereign or superior. . . . This law of nature, which indeed is the
eternal law of the Creator, infused into the heart of the creature at the time
of his creation, was two thousand years before any laws written, and before any
judicial or municipal laws. [FN234]Coke cited Aristotle's Politica as evidence
that power to command obedience for the profit of society was of the law of
nature and before any municipal laws. Further, according to Coke, Fortescue
provided evidence that before there were any municipal laws, English kings had
decided cases according to natural equity--more evidence that the law of nature
existed before the development of much of what seventeenth-*116 century lawyers
considered to be the common or customary law of England. [FN235]The critical
result was that allegiance to the English sovereign, and for a time,
acquisition of and rights associated with citizenship in the former American
colonies, were considered not to be the subject of municipal or positive
law-making. Coke stated: Seeing then that faith, obedience, and ligeance are
due by the law of nature, it followeth that the same cannot be changed or taken
away; for albeit judicial or municipal laws have inflicted and imposed in
several places, or at several times, divers and several punishments and
penalties, for breach or not observance of the law of nature, (for that law
only consisted in commanding or prohibiting, without any certain punishment or
penalty), yet the very law of nature itself never was nor could be altered or
changed. And therefore it is certainly true, that jura naturalia sunt
immutabilia. [FN236]More importantly, Calvin's Case also established by
implication the rule of the jus soli itself as a divine institution, ordained
by the laws of God and nature. The antenati remained aliens even though they currently
owed allegiance to the person who was King of England. "Calvin the
plaintiff," Coke wrote, was "naturalized by procreation and
birth-right." [FN237] This was because, according to Coke, one's status is
"vested by birthright:" [F]or as the antenati remain aliens as to the
Crown of England, because they were born when there were several kings of the
several kingdoms, and the uniting of the kingdoms by descent subsequent cannot
make him a subject to that Crown to which he was alien at the time of his birth.
. . . [A]ll those that were born under one natural obedience while the realms
were united under one sovereign, should remain natural born subjects, and no
aliens; for that naturalization due and vested by birthright, cannot by any
separation of the Crowns afterward be taken away: nor he that was by judgment
of law a natural subject at the time of his birth, become an alien by such a
matter ex post facto. [FN238]The conservative English approach to the status of
the Scots favored de jure naturalization of only the postnati. In this way, the
effects (perceived or real) of Scots invading England as land and office
holders would be gradual, because only those persons born after 1603 would be
entitled to hold land or office, barring individual *117 acts of denization by
James I. The decision in Calvin's Case thus drew a distinction based upon time
of birth, permitting Scottish children, but not their Scottish parents, to be
natural subjects, thereby grounding the rule firmly in what we know today as
the jus soli. Thus, the time of birth was "of essence," [FN239] and
it, too, became part of the divine law embraced by Coke: But if enemies should
come into any of the King's dominions, and surprise any castle or fort, and
possess the same by hostility, and have issue there, that issue is no subject
to the king, though he be born within his dominions, for that he was not born
under the King's ligeance or obedience. But the time of his birth is of the
essence of a subject born; for he cannot be a subject to the King of England,
unless at the time of his birth he was under the ligeance and obedience of the
king. And that is the reason that antenati in Scotland (for that at the time of
their birth they were under the ligeance and obedience, of another king) are
aliens born, in respect of the time of their birth. [FN240]The distinction
appears to us today almost ludicrous: Scottish parents owed the same allegiance
to James as did their children, but unless they had been born owing that
allegiance, that is, born after 1603, they were not natural subjects. Thus, to
some extent an historical accident--the failure of the Tudor line and descent
of the English crown to James Stuart of Scotland--established the jus soli as a
product of natural law in a way that the jus sanguinis, in England at least,
never was.
The Law of NatureHaving
found allegiance due to the King's natural body by the law of nature, Coke
still faced the problem that troubled Bacon--why the law of nature also
required subjects in a King's various territories to be naturalized as to each
other. Said another way, the problem was to explain why James's Scottish
subjects born after he inherited the English throne were entitled to be treated
as Englishmen when in England, while James's Scottish subjects born before 1603
were not so *118 entitled. Coke's answer, drawn from the law of nature, and, he
claimed, the law of "all other nations," was that the allegiance due
to James from his Scottish subjects born after 1603 was now the same as that
due from his English subjects. [FN241] Those born before 1603 were born into a
different allegiance and could only become subjects in England by act of
positive law subsequent to their birth. Further, because this law of nature was
"immutable," the result for the postnati was not changed by the fact
that Scotland had a different legal system from England. Because there was only
"one ligeance" to one king, and the primary allegiance that mattered
was that acquired at birth, Calvin was not an alien in England. [FN242]Surprisingly,
then, although Coke cited the statute De Natis and Cobledike's Case, among
other precedents, the law of determining natural-born status as developed from
the fourteenth century was not central to Coke's resolution of the case.
Rather, Coke based his holding upon an "immutable" natural law that
preceded any municipal or judicial law in England. At least for the legal basis
of allegiance, in contrast to the theory of the King's two bodies, Coke
endorsed a more unified notion of sovereignty in holding for the plaintiff in
Calvin's Case. The result, nonetheless, was that the postnati enjoyed the
protections of English law, even though all Scottish subjects while in Scotland
were out of the jurisdictional reach of the English Parliament. [FN243] Thus
Coke added a horizontal link between the Scottish postnati and English subjects
to the vertical relationship between subject and sovereign. According to Coke,
[I]f the obedience and ligeance of the subject to his sovereign be due by the
law of nature, if that law be parcel of the laws, as well of England, as of all
other nations, and is immutable, and that [the] postnati and we of England are
united by birth-right in obedience and ligeance (which is the true cause of
natural subjection) by the law of nature, it followeth that Calvin the
plaintiff . . . cannot be an alien born. . . . [F]or . . . the law hath wrought
. . . a union of ligeance and obedience of the subjects of both kingdoms, due
by the law of nature. . . . [A]nd this in substance is but a uniting of the
hearts of the subjects of both kingdoms one to another, under one head and
sovereign. [FN244]*119 Coke thus created a rule to determine status at birth
that was "immutable" and hence could not be changed by human laws.
[FN245]Scotland, by contrast, resolved the status of James's English subjects
by statute. In 1607, the Scottish Parliament passed an act that provided for
naturalization not only of the English postnati but of the antenati as well,
with the only limitation for the antenati being that they could not hold office
of crown, judiciary, or Parliament except by exercise of the royal prerogative.
[FN246] The Scottish Parliament enacted the naturalization charter with
considerable resentment over the defeat of James's proposals to the English
Parliament concerning naturalization of the Scots and over James's refusal to
naturalize all Scots by prerogative power. [FN247] The resentment, in fact,
made the Act something of a rhetorical gesture: The naturalization provisions
were "suspendit and . . . of na strength force nor effect heireftir Ay and
quhill and unto the speciall tyme that the Estaittis of England be thair Acts
and statutis in Parliament decerne grant and allow the same." [FN248]The
English Parliament, of course, did not enact a naturalization bill; instead,
the matter was determined by the judges in Calvin's Case. Little is known of
the effect of the Scottish naturalization statute after the decision in
Calvin's Case. Had the Scottish courts instead determined the status of English
subjects by judicial decree, the juxtaposition with Calvin's Case would have
provided an unparalleled opportunity for comparative legal history on the law
of citizenship in the two kingdoms. In any event, the fact that the English
Parliament failed to enact any statute naturalizing the Scots permitted the
English judges to decide the matter, thus ushering natural law into what would
later become the rule of the jus soli.Chancellor Ellesmere, in his report of
the case, best explained the nature of allegiance that made the Scottish
postnati subjects together with the English: This bond of allegiance, whereof
we dispute, is vinculum fidei; it bindeth the soul and conscience of every
subject severally and respectively, to be faithful and obedient to the king:
and as a soul or conscience cannot be framed by policy; so faith and allegiance
cannot be framed by policy, nor put into a politic body. An oath must be sworn
by a natural body; homage and fealty must be done by a natural body, a politic
body cannot do it. . . . As the *120 King nor his heart cannot be divided, for
he is one entire King over all his subjects, in whichsoever of his kingdoms and
dominions they were born, so he must not be served or obeyed by halves; he must
have entire and perfect obedience of his subjects . . . . [A]nd he, that is
born an entire and perfect subject ought by reason and law to have all the
freedoms, privileges, and benefits pertaining to his birthright in all the
King's dominions . . . . [FN249]Coke's assertion that the determining factor in
Calvin's Case was "a union of ligeance and obedience of the subjects of
both kingdoms, due by the law of nature to their Sovereign" [FN250] should
not be read to support Bacon's claim that the sovereign was not subject to
municipal laws, [FN251] even though allegiance was not dependent upon municipal
law. And though Coke also said that the reciprocal obligations of subject and
sovereign are not "tied to municipal laws," [FN252] if Coke meant
that there was no legal limit upon a King's actions, this would be an astonishing
outcome, given that in coming years Coke would champion the parliamentary cause
against royal prerogative, highly irritating Bacon in the process.At the time
of Calvin's Case, though, the King's prerogative was an issue of concern to
Coke and some members of the English Parliament. We know from other sources
that Coke clearly supported a constitutional limit to the King's prerogative,
although he accepted James's basic theory of government. [FN253] This larger
story is a complicated topic, with an even more complicated historiography. In
1604 Parliament refused James's request to change his title from King of
England to King of Great Britain [FN254] and rejected James's goal of a union
of laws and institutions of the two kingdoms. Parliament thereby expressed its
fear that union of the two kingdoms was part of a larger plan to destroy
English law and subjugate the English Parliament. *121 [ FN255] Coke was surely
aware of this ambivalence as he wrote his opinion in Calvin's Case.Coke's
limiting principle in Calvin's Case appears to have been the reciprocal nature
of the relationship placed on subject and sovereign. In return for the
subject's loyalty, the sovereign owed "protection and government due by
the law of nature." [FN256] Although Coke did not elaborate what the law
of nature might require of the King concerning protection and government of his
subjects, an avenue of restraint upon royal prerogative was clearly present.
Coke could have chosen the theory of the King's two bodies as argued in Calvin's
Case as a principle limiting royal prerogative. That he instead insisted that
the King had a political body only for a few specific purposes, [FN257] and
chose to place the King under the law of nature (a position that ultimately
lead to Coke's dismissal as chief justice in 1616), perhaps reveals the
continuing hazard of adopting any stance suggesting treason. Despite this
fundamental difference between Bacon's proposals and Coke's resolution of
Calvin's Case, both reached outside of English precedent in order to affirm
Robert Calvin's claim that he was a natural subject of the King of England.In
England, the immediate effect of Calvin's Case was minimal. The decision meant
that an entire generation would pass before the effects would be felt. In 1603
few postnati were old enough to pose any immediate threat of wholesale
incursions into English patronage. Parliamentary compilations for the period
immediately following Calvin's Case record occasional acts of denization of
Scottish antenati, but the numbers are not overwhelming. [FN258] Calvin's Case
itself appears to have generated little comment in England. If general
acceptance is the "age-old sanction of law," [FN259] then the
relative lack of criticism in the two decades after 1608 attests to its strength.
A speech in Parliament by Sir Robert Phelps, in 1628, is apparently one of the
*122 few recorded instances of public criticism of the decision. Phelps
considered Calvin's Case to be the first of several court decisions "all
exceeding one another in prejudice." [FN260] Of Calvin's Case, he said,
"I do not complain of it but only mention it" [FN261] in a diatribe
against "foreign dangers" and James's perceived increasing propensity
to "scoff at Parliaments, at laws, at all." [FN262]
V. Continental Legal
Thought and the Jus FeudaleA. The Acquisition of Citizenship at Birth in France
and the Italian CitiesWas there any possibility for the judges of England in
1608 to draw directly from continental examples in their consideration of the
status of the postnati? At the time of Calvin's Case, there were perhaps as
many as one hundred civil lawyers in England who had studied the jus gentium,
or the law of nations, at Oxford, Cambridge, or abroad. These professionals
were a source of contemporary knowledge of international law and practice.
[FN263] Because of their knowledge and experience with questions of
international law, civilians were often used in diplomatic service and as
advisors to the Privy Council on treaties and other issues concerning
international relations. [FN264] They were, in fact, consulted on the status of
James's Scottish subjects in England in the Commons debates preceding Calvin's
Case. The evidence suggests that some participants in the political debates in
England over the status of James's Scottish subjects were both interested in,
and at least vaguely informed about, naturalization practices in the
"civil law" as well as in other kingdoms and territories. [FN265] A
brief consideration of some naturalization practices on the continent is therefore
instructive to consider the extent to which English jurists in 1608 could
borrow from other legal systems. [FN266]*123 France and England are usually
considered the best examples of the emerging nation-state in the late middle
ages and hence the earliest examples for judicial determinations relating to
national status. In 1600, citizenship had little meaning as a term designating
national status or origin for most European residents outside of France and
England. The term "citizen" was significant, if at all, only in the
cities. In rural areas, the feudal relationship with a local lord probably was
the most significant legal and social status.While the discontinuities between
what we might term "naturalization" practices in France and England
in the early modern period are striking, in some respects the legal
developments during this period parallel each other. The themes of
discontinuity are: (1) The scholastic sources from the Commentators, used by
some French jurists to describe acts and court decisions concerning
naturalization, [FN267] seem never to have been a part of English legal
discourse on the acquisition of the status of natural-born subject; (2) French
jurists (and the earlier Commentators) sometimes used the word
"citizen" interchangeably with the word "subject" in legal
discourse, with some expression that the relationship was contractual, [FN268]
an idea not as evident in English legal thought; and (3) French jurists
(following the Commentators and the practice in the Italian cities) placed more
emphasis on the jus sanguinis as a theory underlying all rules of
naturalization. [FN269] On the other hand, the themes of continuity include:
(1) As in England, the function of legal rules concerning naturalization were
formed through questions of inheritance and land-holding; (2) an emerging
concept of the jus soli in France contemporary with Calvin's Case broadened the
scholastic emphasis on the jus sanguinis; [FN270] and (3) at least in the
writings of Jean Bodin, a parallel idea that allegiance was a natural,
irrevocable duty by native-born persons, creating a vertical bond between
prince and subject individually rather than a horizontal bond between citizens
as a whole. [FN271]French and Italian jurists in the fifteenth century
frequently considered questions of status acquired at birth according to a
model of citizenship developed by the Commentators. The city-states of Italy in
the twelfth and thirteenth centuries gave rise to jurists who had *124 only
recently rediscovered the Roman law texts compiled under Justinian, which they
systematized into the Corpus Juris Civilis. The Commentators, who followed
later, devoted themselves to the Corpus Juris to apply that body of learning to
then-contemporary legal issues within the city-state. Bartolus [FN272] was
among the first to consider the Roman law of acquisition of citizenship, the
civilitas civitatis. Persons became citizens either by birth or by statutory
process. Under the formulation articulated by Bartolus, and apparently followed
in the Italian cities of the thirteenth and fourteenth centuries, a citizen by
birth--a civis ab origine--was one who had been born within the territory of
the state and to at least one parent who was already a citizen of the state.
[FN273] French jurists and courts in the sixteenth century seem to apply
opinions and ideas from the Corpus Juris Civilis of the Commentators,
especially rules establishing citizenship according to the jus sanguinis, to a
much greater extent than can be discerned from the arguments in the English
Parliament and in Calvin's Case. French jurists, in fact, made far greater
efforts to link French practices with ancient Greece and Rome than with earlier
practice in France or even contemporary Italian practices. [FN274]The
continuities and discontinuities with English legal practices aside, legal
developments in France do not seem to have provided any direct precedent or
examples to resolve Calvin's Case. In the decades prior to Calvin's Case,
French courts had no occasion to consider wholesale naturalization of a
separate kingdom, as in the case of the postnati in England. Instead,
incorporation of separate kingdoms had occurred by conquest such as after the
Italian wars, or by royal act or legislation. [FN275] Interestingly, because of
political alliances during the sixteenth century, Scots enjoyed many privileges
in France, though they appear never to have been considered as a group to be
the equivalent of natural-born French subjects. [FN276]France, though often
viewed to have employed a rule of the jus soli in the period contemporary with
Calvin's Case, [FN277] in reality employed a combination of both the jus soli
and the jus sanguinis *125 similar to Italian definitions of natural
citizenship. [FN278] Prior to the sixteenth century, the children of foreign
parents were unable to inherit land in France even if they had been born within
the kingdom of France. [FN279] A growing tendency to emphasize the jus soli can
be discerned in the sixteenth century, but French jurists simultaneously developed
the view that citizenship depended, to some degree, upon intent of the
individual to reside in France, and they also linked citizenship with
membership in the corporation that embodied the state. [FN280]B.
Excommunication and Religious Oaths of AllegianceYet another group of legal
scholars at work in Europe around the time of Calvin's Case possessed a
developed law of hierarchical, governing relationship--the Canonists. The
extent of their contribution to rules determining the acquisition of citizenship
status has not been considered in the detail that it deserves. Ecclesiastical
courts in England as well as France dealt with issues related to domicile and
status in its family law jurisdiction (including disposition of property), the
status of aliens, excommunicants, [FN281] sectarians, and others. Thus, a
thorough study of ecclesiastical courts and the laws they applied could well
produce evidence of a contribution by canon lawyers to the development of legal
theories determining national status. Excommunication, in fact, provides a
strikingly close analogy to the law of subjects and aliens developed in the
early modern period. Excommunication in the middle ages, in England and on the
continent, did not entail banishment or physical exclusion from a territory,
but rather was a type of public ostracism within the community, separating an
individual from some benefits of community membership to encourage repentance
and return to the spiritual fold. [FN282] The line between political and
spiritual community often blurred. Canon law in the medieval period, for
example, called for the suspension of feudal ties owing to an excommunicant
during the period of excommunication. [FN283] Furthermore, excommunicants could
not sue in civil litigation or accuse in criminal trials, excommunicants'
rights as defendants were curtailed, and excommunicants could not enforce *126
contracts. Secular courts were held by canon law to enforce the withdrawal from
the community. [FN284] English royal courts frequently recognized the legal
disabilities of excommunicants from the twelfth through the fifteenth
centuries. [FN285] In these respects, excommunicants and aliens suffered
similar legal disabilities in the royal courts of England, at least until the
period of the Reformation.As late as 1797, legal authority in England
apparently still supported the rule that one who had been excommunicated by
spiritual authority suffered legal disabilities equivalent to those of aliens:
"[B]y the excommunication the party is disabled to sue any action, or to
have any remedy for any wrong done unto him so long as he shall remain
excommunicate." [FN286] Furthermore, neither excommunication nor alien
status was necessarily permanent. Excommunicants and aliens shared in common
the need for formal admittance into the political community. To restore civil
rights to an excommunicant or an alien, some formal adjudication was required,
either by Church authorities in the case of excommunication, or by Parliament
or the crown in the case of aliens.After the Reformation, oaths of allegiance
were increasingly used as religious tests, and these oaths probably replaced
excommunication as the primary form of political control of religious beliefs.
It is therefore instructive to consider, however briefly, the relationship of
law, religion, and citizenship through the oaths of allegiance required of
adult subjects throughout the early modern period in England. [FN287] In 1605,
James promulgated a new oath of allegiance acknowledging James as "lawful
and rightful King" and promising to defend him in case of attack. [FN288]
Critically, the oath also contained the following: "I do from my heart
abhor, detest, and adjure, as impious and heretical, this damnable doctrine and
position, that princes which be excommunicated or deposed by the Pope may be
deposed or murdered by their subjects or any other whatsoever." [FN289]
Clearly directed at Catholics, the oath demanded that James's subjects deny the
Pope's *127 authority in secular matters. The oath was required of all non-
noble persons eighteen years of age and older after 1610. [FN290]How did James
view the relationship, if any, between the oath of allegiance taken as an
adult, and the natural allegiance owing at birth? In the 1607 tract An Apologie
for the Oath of Allegiance, James gave the following explanation: [A] forme of
Oath was framed to be taken by my Subjects, whereby they should make a clear
profession of their resolution, faithfully to persist in their obedience unto
me, according to their natural allegiance; To the end that I might hereby make
a separation, not only between all my good Subjects in general, and unfaithful
Traitors, that intended to withdraw themselves from my obedience: but specially
to make a separation between so many of my Subjects, who although they were
otherwise Popishly affected, yet retained in their hearts the print of their
natural duty to their sovereign: and those who . . . could not contain
themselves within the bounds of their natural allegiance, but thought diversity
of religion a safe pretext for all kinds of treasons and rebellions against
their sovereign. [FN291]"Natural allegiance," of course, corresponds
with the allegiance owing at birth in Calvin's Case. All subjects owed
allegiance to the crown from birth. There is no obvious inconsistency in
requiring a separate oath of allegiance as an adult, because oaths of
allegiance gave content and definition to the general allegiance owing at
birth. Oaths could serve several purposes: (1) as confirmation of loyalty,
similar to practices in some Christian faiths in which infant baptism is
followed by confirmation upon reaching adulthood; (2) to ferret out religious
dissent; or (3) to identify treason or treasonous beliefs. In the late
sixteenth and early seventeenth centuries, in particular, there is clearly a
religious test motivating oaths of allegiance to the English monarch. The
substance of the oath, according to James (disingenuously), was that the oath
was "merely civil." [FN292]Catholics were expressly forbidden to take
this oath by Paul V in September 1606, pronouncements that provoked James's
Apologie. [FN293] The result, according to James, was that the Pope's
admonition meant that Catholics "must now renounce and forswear their
profession of obedience already sworn, and so must as it were at the third
instance, foreswear [sic] their former two Oaths, first closely sworn, by their
birth in their natural Allegiance; and next, *128 clearly confirmed by this
Oath, which doeth nothing but express the same." [FN294]All of this suggests
that we are only beginning to explore the intersection between law and religion
in the development of concepts of citizenship. Coke, in fact, adopted
Protestant teachings on the status of Jews (derived from thirteenth-century
canon law doctrines on infidels) as part of natural law in Calvin's Case.
[FN295] The early canonists developed a tradition of rights discourse, [FN296]
and its relationship to the development of Western concepts of citizenship only
recently has begun to be explored. [FN297]Although it is difficult to conclude
that English lawyers in the early seventeenth century could look to any
specific continental legal practice for a resolution of the problem of the
postnati, Calvin's Case was not the first consideration of that issue in writing
of the time. Two other legal thinkers, whose works were readily accessible to
Bacon and Coke, had earlier arrived at very similar conclusions concerning the
questions raised by Calvin's Case. One, Sir Thomas Craig (1538-1608), a
Scottish lawyer, wrote about the problem of the postnati while serving on
James's commission of union. Another, Jean Bodin (1529-1596), the French civil
lawyer and political thinker, in his 1576 work Les Six Livres de la Republique
(first translated into English in an edition published in 1606), [FN298]
proposed that the mutual obligations between subject and King inherent in
sovereignty brought about a commonality of citizenship between communities with
differing laws.C. Thomas Craig on the Feudal LawIn 1605, Craig addressed the question
of naturalization of James's Scottish subjects in his De Unione Regnorum
Britanniae. [FN299] Craig's purpose in writing the De Unione was to advocate a
"perfect" union--a "single powerful monarchy" to avoid
"the catastrophes of *129 the past [that] have so vexed the island."
[FN300] An essential component of this perfect union was the "sharing of
offices, dignities, and rights" between the King's Scottish and English
subjects. Craig concurred with English opponents of a "perfect" union
that this sharing would not extend to those deemed "aliens" by
English law. Thus, the issue of naturalization of James's Scottish subjects
received considerable attention in Craig's De Unione. [FN301]The core of
Craig's arguments on the question of status at birth came from his conception
of the international character of the jus feudale. [FN302] The jus feudale, or
"feudal law," was taught as part of the jus commune in the
universities of Europe from the eleventh to sixteenth centuries. Feudal law was
a body of secular law governing primarily the system of rights and obligations
associated with lord-vassal relationships, landholding and tenure. It had begun
as manorial custom, but came to be viewed as a system of customary law with
many commonalities in its practices throughout Europe. [FN303]
[end]