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

Abstract

This article examines Calvin's Case (1608), a King's Bench decision about whether a person born in Scotland after the union of the Scottish and English crowns in 1603 was also a subject of England. American judges in the nineteenth century used Coke's report of Calvin's Case to determine questions of US citizenship, and in doing so produced a common law of territorial birthright citizenship. American judges equated the ancient English term "subject" with "citizen," without discussion of the perplexing issues of sovereignty that had occupied the King's Bench. This article describes the dilemma in Calvin's Case and the various sources available to resolve it, including the European civil law's distinction between rules of jus soli and jus sanguinis.

Keywords: citizenship, birthright citizenship, aliens, subjects, jus soli, jus sanguinis, Calvin's Case, precedent, citizenship by birth