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]

 

 

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