#subjectship

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Jus Soli in Action: Calvin’s Case (1608)

As discussed in the previous post, the United States concretized jus soli as a method of obtaining citizenship in the Fourteenth Amendment. Today, I would like to review one the first cases when jus soli was put into action and afforded an individual rights based on where and when he was born. 

The approach that an individual has citizenship of the land where he or she is born became part of the common law of England in 1608 with Calvin’s Case, just a few years after the England when the Scottish and English kingdoms were united in 1603 under King James (King James VI of Scotland, King James I of England). 

The main character of the story is Robert Calvin, a boy who was born in Scotland after 1603. Calvin was set to inherit two estates that were located in England. Opponents to him inheriting the estates argued that Calvin could not inherit the land because he was an “alien,” meaning that he was not a subject to the King of England. As such, he also did not have the right to sue for the land that they were trying to keep from him. Calvin’s guardians took the case to court. In court, the issue was whether persons born in Scotland after 1603 were, as a resulted of the kingdoms being united, English subjects. 

The Court held that because Calvin was born in Scotland after the union of the two kingdoms, he was a subject to King James, who was, by that point, the King of Scotland and England. Consequently, Calvin did have the right to inherit and sue under English law. Some of the most famous and well-known reasoning was given by Lord Coke, one of the judges who decided the case. He argued that a natural relationship existed between a King, the sovereign, and one who is born on the sovereign’s land and that there were reciprocal, natural obligations between the two that could not be discounted. 

As a consequence of the decision, anyone born in Scotland after 1603, then referred to as postnati, were considered subjects of King James I. Persons born in Scotland before 1603, referred to as antenati, did not acquire English subjectship. Somewhat awkwardly, the case also meant that there were individuals who were born on the same territory, but had different rights based on when they were born. 

Sources: 

Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J. of L. & the Humanities 73 (1997). 

James Kettner, The Development of American Citizenship: 1608-1870 (1978).

#immigrationhistory citizenship jussoli calvinscase