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

Abstract

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