Calvin’s Case and Birthright Citizenship

Benjamin Keener

Introduction

Donald Trump’s executive order ending birthright citizenship for the children of illegally present aliens is likely unconstitutional. Current debates about its constitutionality focus on the meaning of a phrase found in the Fourteenth Amendment’s citizenship clause: “subject to the jurisdiction thereof.” Some argue that a common law rule from Calvin’s Case (an English case from 1608) determines the legal content of this provision of the Constitution, and likewise who are birthright citizens. Relying on Calvin’s Case is no help. Calvin’s Case and the common law generally, if applicable here, protect the right of these immigrant children to birthright citizenship.

The order’s foremost defenders, Ilan Wurman and Randy Barnett, claim that the birthright rule from Calvin’s Case required an alien-mother in England to have a specific legal status within the kingdom to give birth to a natural born subject. Wurman and Barnett echo the Supreme Court in Wong Kim Ark. There, the Court stated that “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” The Supreme Court looked, as Wurman and Barnett have done, to Calvin’s Case. It apparently states the “fundamental principle” of birthright subjecthood.

Wurman and Barnett claim that Calvin’s Case established a “common law allegiance-for-protection” paradigm, the content of which was informed by the “status of . . . parents” when a child was born. That specific status is known as “amity.” Part III shows that it is almost certainly false that Calvin’s Case required alien parents to have a status of amity to give birth to natural subjects. The Supreme Court, Wurman and Barnett, and other modern scholars nevertheless suppose so. But even if the common law required the parental status of amity, amity meant something very specific in common-law terms.

Part IV shows that such a common law rule would be very formal. The relationship of allegiance and protection when an alien enters England, per Calvin’s Case, is not strictly dependent on the behavior or motives of the individual entering, but the relationship between two sovereigns: the sovereign monarch of England and the sovereign of the kingdom from which an alien comes. To the extent that Calvin’s Case is relevant to the meaning of the Fourteenth Amendment, this essay clarifies the meaning of allegiance, natural-born subjecthood, and what makes an alien an enemy.

In short, even Calvin’s Case supports the standard view that those born to undocumented parents within the territory of the United States are citizens. The nature of sovereignty–and thus “allegiance”–was fundamentally different in England in the 1600s than in Reconstruction America. Even when we adopt the assumption that there is continuity rather than fundamental difference, the form of allegiance required for a child of undocumented immigrants to be “subject to the jurisdiction” of a nation in the common law is not as Professors Wurman, Barnett, and others have argued.

I. Calvin and the Postnati Controversy

Calvin’s Case was a property dispute initiated in the King’s Bench and Chancery in 1607 over English estates conveyed to a Scotsman, Robert Calvin. On appeal in the Exchequer, the case teed up what was known as the post-nati or Postnati question. The term refers to Scottish children born (“nati”) after (“post”) James VI of Scotland became James I of England. Calvin’s Case decided whether James’ assumption of English sovereignty in 1603 meant that Postnati children were natural born English subjects or, alternatively, if they were “alien born, and consequently disabled to bring any real or personal action for any lands within the realm of England.”

The debate was immensely political, and it reached a stalemate in early 1607 when the House of Commons convened unsuccessfully with the Lords to answer the question. The nature of “allegiance” was critical. As Francis Bacon later explained in his oral argument in Calvin’s Case, “some said that allegiance hath respect to the law, some to the crown, some to the kingdom, some to the body politic of the king: so there is confusion of tongues amongst them.” The thing to which allegiance was owed was not obvious, and the outcome of the Postnati controversy depended exactly on that question. If Calvin owed allegiance to the laws of Scotland, he probably did not owe allegiance to the laws of England. If Calvin owed allegiance to the natural body of the King, he would owe the King allegiance wherever he was sovereign, including England. The judges ultimately ruled that Calvin was obliged by a perpetual duty of allegiance to the natural body of his sovereign King–not the laws of any kingdom–and thus could sue for and take possession of property in England.

Chief Justice Edward Coke divides the opinions of the judges in Calvin’s Case into five areas of concern: (i) allegiance, (ii) the law of nature, (iii) kingdoms, (iv) aliens, and (v) consequences and inconveniences that “would ensue on either side.” The report is immense and deserving of thoughtful study, but here I reserve my focused attention to passages relevant to birthright subjecthood and the Fourteenth Amendment.

II. A Methodological Primer

For purposes of this essay, I do not address whether the meaning of the phrase “subject to the jurisdiction” of the United States in the Fourteenth Amendment is determined by a common law rule. For the sake argument, I presume it does. I go no further than the reasoning laid down by Edward Coke in Calvin’s Case and other common law authorities, including Coke’s Institutes, Justice Dyer’s Reports, and Justice Dalison’s Reports. As to whether a relevant common law rule changed before the Fourteenth Amendment was drafted and ratified several centuries later, this essay makes modest historical comparisons but offers no in-depth account.

This essay does say that there are critical concepts we must understand before identifying and applying a common law rule. These concepts come from a rich historical context that needs to be properly discussed. There is a serious risk of anachronism. I thus prefer to let that history speak for itself. Some of the quotes I provide are long. But they are not mute. They show just how wrong attempts at understanding the common law rule have so far been.

Most important of these critical concepts is “allegiance” (or “ligeance”). Calvin’s Case clarified this term’s legal meaning, and the judges ultimately (as already noted) agreed with Francis Bacon that a subject’s duty of allegiance is not to laws, but the natural body of the royal sovereign. Natural allegiance is also not a mental state, but something established instantaneously at birth. Figure 1 is a reproduced image of Coke’s own diagram in the Institutes. Repeating from Calvin’s Case, Coke tells us that there are four types of allegiance. Natural allegiance is “the highest and greatest obligation of dutie and obedience that can be.” No one can “renounce the duty of allegiance” that is permanently established by birth; no one can “cast off the homeland in which he is born.” But, as we see, there are different levels of allegiance established in different ways.

The birthright rule does not require a special status of parents. But if it did, it is necessary to discuss the two legal statuses alien parents could have. We therefore must define “amity” because this status creates in the parent-alien a “local allegiance” to the English sovereign king. Wurman and Barnett claim that the birthright rule requires alien-parents to have this allegiance to give birth to a natural born subject.

We must also clarify whether allegiance and non-criminal behavior are synonymous. They are not, even though Coke occasionally uses the words “obedience” and “allegiance” interchangeably. That English allegiance is owed to a sovereign (not laws) is a good indicator that allegiance and non-criminal behavior are conceptually severable. Part of the benefits aliens in amity enjoyed were special rights during criminal actions brought against them in common law courts. By the time Calvin’s Case was decided, these special rights had existed for hundreds of years. In the most egregious of examples, aliens in amity who levied war against England still were supposed to have a local allegiance to the king (and were tried as traitors). In other words, despite being the worst of criminals, these alien-parents’ children would have been natural born subjects under the allegiance-for-protection version of the rule because the mother would have had allegiance to the English king.

And, lastly, we must understand the word “enemy,” which is the status of aliens not in amity with (and thus not under the allegiance of) the English king. Irrespective of the king declaring war upon the country with whom he was in amity, there is only one way aliens in amity can become enemies of England. Aliens can be enemies in the extraordinary circumstance when they are part of a foreign invading force. That force must be substantial; it must exist to wage war under the pretense to commit “public wrongs” against England. The acts must be so substantial to justify rupturing amity between two nations. Coke defines these public wrongs explicitly. As he states in Calvin’s Case, “[w]ars do make aliens enemies, and bellum indicere (‘declaring war’) belongeth onely and wholly to the king, and not to the subject.” Assuming this common law rule applies to our situation today, for undocumented aliens to be “enemies” Congress would either have to declare war upon them or the invading force would have to be of a magnitude (defined by common law) that causes war between two nations. This is the rule. This version of the common law of birthright subjecthood then would turn entirely on two factors: (1) the location and time of birth and (2) a technically defined state of peace or war.

III. Subjectedhood Is Determined by Birth and Actual Possession of Land

Coke only once tells us in Calvin’s Case that the children of aliens are natural born subjects. But more evidence comes in the Institutes, where he explains that English children of non-naturalized aliens might have problems inheriting from their alien parents. There and elsewhere, Coke does not take time to explain why these children, regardless of the parents’ status, are subjects. This is because the question was very truly a settled one. A 1563 report by Justice James Dyer is a good example:

Whether a bastard begotten out of marriage between a father and mother, English, and leigh-subjects at Tournay beyond sea, after the conquest of it by Hen. 8 and during the time of the allegiance, be capable as a stranger denizen [natural born subject], namely to purchase and implied here within the realm by the law of the land or not? And it seemed to Catlyne, Chief Justice, Saunders, Chief Baron, Whiddon and Browne, Justices, and to Myself, he is in the same situation as if a frenchman husband and wife come here into England, stay here, and have issue a son; in this case, by his being born here, he is a liege-man, although his father and mother were aliens. And so in the other case above, Tournay was pro tempore parcel of the realm and dominions of England.

It was not necessary for the judges to explain that the alien parents were in amity to agree the child was a birthright subject. What was necessary was that: “by his being born here, he is a liege-man.” The judges’ concern, truly, was what was meant by “here.”

To be a birthright subject, the land you are born upon must be “pro tempore parcel of the realm” or, as Coke would explain in Calvin’s Case, within the “actual possession” of the king. This is not surprising. Chief Justice John Marshall uses this language in Johnson v. M’Intosh to contrast Great Britain’s ownership rights over Mississippi with “actual possession” of the land. When Coke tells us that an incident to being a “subject born” is “[t]hat the parents be under the actual obedience of the king” he is considering a familiar scenario:

. . . it is termed actual obedience, because though the King of England hath absolute right to other kingdoms or dominions, as France, Aquitain, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are Subjects to the King of England.

This passage means that to be a natural-born subject, the sovereign king must have control (i.e., “protection”) over the land you are born upon, even if your parents are subjects. Actual possession creates “actual obedience” because it subjects the inhabitants to the king’s supposed commandment. Coke’s use of “actual obedience” throughout Calvin’s Case embraces this meaning. Coke’s comment here, which has been taken to require a that alien-parents have a special status and disposition,  really reflects the kind of legal question discussed in Dyer’s report about the bastard born in Tournay (which Coke discusses in Calvin’s Case).

Wurman and Barnett observe Coke saying that “neither the climate nor the soyl, but ligeantia and obedientia . . . make the subject born.” Coke means nothing more here than to explain that land rights alone are insufficient to produce a natural born subject; that land must also be under the control (i.e., actual possession, protection, and obedience) of the king. As Coke later says, quoting Littleton, an alien is someone born extra terram (“outside the land”) and potestatem regis natus est (“outside the king’s power”). Assuming the United States Constitution was mirroring common law, it would not be surprising if the Fourteenth Amendment’s two qualifications for birthright citizenship instead recalled these two qualifications for birthright subjecthood. In other words, “subject to the jurisdiction thereof” may simply mean “within the power (potestatem) of the United States.”

The rule at the time of Calvin’s Case appears to have been as Blackstone later described it: “the children of aliens, born here in England, are, generally speaking, natural born subjects, and entitled to all the privileges of such.” Francis Bacon, who litigated Calvin’s Case, agreed.  So did case law in general. Yet, we have a problem. The problem is that the Supreme Court understood this differently in Wong Kim Ark, extending the rule further to require allegiance from alien parents. Barnett and Wurman agree that this was the traditional rule. So while Edward Coke, Francis Bacon, and William Blackstone agreed on one version of jus soli (the idea that children born on soil are natural born subjects), the Supreme Court went a different direction. This may be America’s version of Coke’s rule. But whether it is or is not is ultimately irrelevant. Under that version of the rule, these children would be birthright subjects.

IV. Aliens in Amity and Enemy Aliens

Even if we insist that parental status does matter to the common law birthright rule, the children of undocumented aliens would still be natural born subjects. There is a common sense feeling that the children of enemies, whether peaceful or invading, cannot possess the necessary allegiance to be birthright subjects. This is why the Supreme Court saw in Calvin’s Case a requirement of allegiance, however “quaintly” it appeared. This thus enjoins another related discussion: alien allegiance and alien invasions.

In two critical passages of Calvin’s Case, Coke discusses a scenario where English land is captured by alien enemies. He tells us that children born there cannot be natural born: “that issue [i.e., child] 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.” This merely repeats the principle that although the king had rights to the land, he did not have actual possession of that land. Some other sovereign did. And it is to that sovereign that the child owes natural allegiance. Coke does not tell us that the parents of these children are enemies or English inhabitants. It does not matter. Children born on land without actual obedience cannot be natural born. Wurman and Barnett read this scenario to require that the parent must be “in amity.” This is likely wrong. Even so, looking to the common law concept of amity will still yield unfavorable results for the executive order.

A. Criminal aliens in amity are entitled to the benefits of allegiance.

Coke’s diagram above is a useful jumping-off point. Each level of English allegiance comes with levels of privileges and duties. As a default, aliens in England have “local allegiance” but may have that elevated by denization or naturalization. Local allegiance emerges in the following manner:

Aliens that are within the Realme of England, and whose Sovereignes are in amity with the king of England, are within the protection of the king, and doe owe a locall obedience to the king . . . and if they commit High Treason against the king, they shall be punished as Traytors, but otherwise [outside of amity] it is of an Enemy . . .

In other words, amity exists by virtue of a state of international peace between sovereigns. The standard rule is thus that local allegiance flows from an alien (1) being “in amity” and (2) being within England. The status of the alien parent as “in amity” or “in friendship” (two terms otherwise used for “in league”), is a status determined entirely by the state of war or peace between two sovereigns. Nothing more.

Coke tells us that “[l]eagues between our Sovereign and others are the onely means to make aliens friends, et foedera percutere, to make Leagues, onely and wholly pertaineth to the king.” They cannot be made by non-sovereigns because the power to establish and preserve peace is germane to the king’s ability to make war. Importantly, nations with whom England was not in a state of war were recorded, or “enrolled in the Chancery to the end the subject may know, who be in amity with the king, and who be not: who be enemies, and can have no action here; and who in League, and may have Actions personal here.” The status of an alien mother is thus entirely collateral to this compact between sovereign kings. It is that league that confers the status of friend (or “amity” or “league”) to an alien visitor and thus a duty of local allegiance. This status remains when that alien friend breaks the laws of England.

This point matters. The status of “amity” is frequently misconstrued as an individual disposition on the part of the alien. Amity is not an intention, despite what some have claimed. It is a state of peace that creates the duty of local allegiance when an alien is on the soil of the friendly kingdom. Those that claim allegiance is a mental state otherwise point to one quote in Calvin’s Case. In full: “ligeance is a quality of the mind, and not confined within any place.” This is not a statement about intentionality. Rather, read in context, that quote explains that a natural-born subject’s duty of allegiance is not confined to where (“ubi”) he or she is.  Saying nothing of local allegiance, Coke is asking “where natural legiance is due.” His answer? Everywhere, because it is a duty impressed upon the mind at birth. Natural allegiance is “a sort of tying of minds [or heads] just as a ligament is a connection of joints and junctures, etc.” The quality is not a “mental state,” as we might speak of it today, but an inviolable bond (a ligatio mentium), “an incident inseparable.”

Because local allegiance is produced by a state of peace between kings, it cannot be true that aliens in amity enter a pseudo “social compact” for protection with the King. The same is true for ambassadors. Local allegiance is not contingent upon an alien’s consent (explicit or tacit) to obey English laws because Calvin’s Case makes clear that there are “enemy aliens” and aliens who owe allegiance to the King and break laws.

Aliens who owe local allegiance and break laws–importantly–were afforded special jury rights. Since 1354, aliens in amity could request a jury de medietatem linguae. This meant that if both parties in a suit were aliens or if an alien was charged with a crime (except high treason), the alien could demand and would of right be entitled to receive a jury composed of aliens. By the time of Calvin’s Case, two hundred and fifty years later, the common law had come to favor a liberal interpretation of that right.

A notable case on this subject is reported by Justice James Dyer and cited by Coke in Calvin’s Case. In Shirley’s Case, a French alien in amity was given the ligeance rights of a treason trial despite levying war against Queen Mary:

And note in the case above the indictment was “against the duty of his allegiance,” when he was not a subject of the realm; but this is of no signification; in this time of peace between England and France, to levy war with other English rebels was sufficient treason; and if it were in time of war, he should not be arraigned [and thus tried], but ransomed.

There is thus a subtle distinction here between waging war, in violation of one’s local allegiance, and an “enemy” during a “time of war.” Coke elsewhere agrees. Even children born to such treasonous alien parents would be natural born subjects.

But what if an alien in amity outside the territory of England enters the country for the purpose of participating in such a rebellion? Another version of Shirley’s Case, reported by Justice Dalison, explains more specifically that “if any alien stranger comes into this realm with any traitor” or comes “from another realm to them (that is, to the . . . traitors being in this realm)” then such aliens “shall suffer for it as traitors just as if they were English traitors.” Shirley’s Case thus stands for the proposition that an alien in amity may enter England for the purpose of committing crimes (treason, no less!) and still be afforded the privileges of allegiance and the right to a trial.

Wurman’s and Barnett’s argument supposes that “it is only because of this compact between the alien and the sovereign that birthright subjectship applied to the alien’s child. Part of protection owed to the alien parent is protection for any of their children born in the realm.” But no such compact existed. The duty of allegiance and the status of amity were produced only by a compact between two sovereign kings. When Wurman and Barnett then say that parents “present in the United States illegally . . . . did not come in amity” they misunderstand both amity and local allegiance as Calvin’s Case applies them. An alien in amity can wage war and remain in amity and the allegiance of the English crown. And, under the proposed rule, such a criminal can give birth to a birthright subject.

B. Illegally present parents are not “enemies” under the common law.

Characterizing illegal immigration in the United States as an enemy invasion would be an erroneous application of the early modern law of war. The Shirley’s Case example above is instructive. Shirely–the Frenchman in amity who “levied war” with rebels against Queen Mary–was still obliged by his local allegiance and entitled to the procedural privileges that followed. If he were a woman and gave birth during this war, that child would have been a natural-born subject of Queen Mary. If this does not make him an “enemy,” and thus without the privileges of allegiance (such as trial by common law), what does?

As a matter of English law–and Article III, § 3 of the United States Constitution78–the origins of the terms “enemies,” “levying war,” and “aid and comfort” come from the 1351 Statute of Treasons. It applied to “both Sexes” and could not apply to “Mad-men, or Infants that are not of the age of Discretion.” It also did not apply to an alien who was “an enemy.” Coke offers us an extensive discussion of the word “enemies”:

Inimicus in legall understanding is hostis, for the subjects of the king, though they be in open war or rebellion against the king they are not the kings enemies, but traitors; for enemies be those that be out of the allegiance of the king. If a Subject joyne with a foraine Enemy and come into England with him, he shall not be taken prisoner here and reansomed, or proceeded with as an enemy shall, but he shall be taken as a traitor to the king.

Recall that aliens in amity are not enemies when they break the laws of England; they get tried for treason (like Shirley) and are indicted for acting against their debt of allegiance to the king. And natural subjects themselves cannot be “enemies,” including criminal subjects. The critical term to understand is “war,” and, as we have seen, it can be impermissibly levied by subjects or enemies.

Just as amity is determined by the monarch, so too is the status of “enemy” (or non-amity). One reason “levying war” is treason, according to Coke, is because doing so was an assumption of the king’s sovereign power to declare war. “Wars do make aliens enemies, and bellum indicere (‘declaring war’) belongeth onely and wholly to the king, and not to the subject.” Coke cites Magna Charta for the difference between “alien enemy and subject traytor” in Calvin’s Case. The great charter explains that the privileges of “merchants,” which the judges later interpreted to mean “aliens,” ceased in tempore guerrae (in time of war). Magna Charta tells us that this means a time, specifically, when the merchants “be of a land making war against us.”

But, although war was solely the prerogative power of the sovereign king, the judges were sure to define exactly what amounted to acts of war that were grounds to break the amity between nations or convict someone of high treason. Coke tells us that simply “bearing of Arms in warlike manner” is insufficient for levying war. If you do this “for a private revenge or end” it “is no levying of war against the king.” Indeed, “every gathering of force is not High Treason.” To levy war, one must have a “pretence” that “is publick and generall and not private and particular.”

What Coke means by public pretenses include several of the following acts:
1. To “expulse strangers” (i.e., aliens)
2. To “deliver men out of prisons”
3. To “remove Counsellors”
4. To “alter Religion established within the Realm”
5. To alter the laws established within the realm
6. To “go from Town to Town generally, and to cast down Inclosures”
7. To “with strength and weapons invasive, and defensive . . . hold and defend a Castle or Fort against the king and his power,” and
8. To “deprive and depose the king of his crown and regality”

Coke tells us that “[t]here is a diversity between levying of war and committing of a great Riot, a Rout, or an unlawfull assembly.” A factor that determines “levying war” is thus the number of coordinated and unlawful actors. If only a handful of men (Coke suggests “three, or foure, or more”) cast down enclosures “this or the like is a Riot, a Rout, or an unlawfull Assembly, and no Treason.” In other words, a sufficiently small group of unlawfully violent people is not levying war even if their pretenses are public wrongs.

Absent a formal declaration of war, “levying war,” here defined, is a necessary step to make aliens enemies in extreme cases. A case like this has been raised in an article defending the anti-birthright position. The case is a fragmentary report of the treason trial of the Duke of Norfolk. Justice Dyer was in attendance. And Edward Coke cites it twice in the Institutes.

The Duke of Norfolk was Mary Queen of Scots’ lover. He stood trial for treason for aiding and comforting enemies of the crown, per the Treason Statute of 1351. A certain “Lord Herries” of Scotland aided English rebels that had fled from England into Scotland. Queen Elizabeth “proclaimed open war against” Lord Herries and “pursued them [Herries, other lords, and the rebels] as her enemies” in Scotland. Her army was led by the Earl of Sussex, who “blew up their houses with powder, wasted their country, and drove the rebels out of Scotland.”

The Duke of Norfolk, “knowing all this to be true” nevertheless “comforted and relieved the said lords of Scotland, the Queen’s enemies, receivers and determiners of her rebels.” At a certain point, the Duke objected to being charged with this treason because it was impossible for the Scottish lords to be “enemies” because Queen Elizabeth was technically in amity with Mary Queen of Scots.

Coke reports the legal determination that followed in two different ways, perhaps because the transcript was not preserved well. The transcript reports that Chief Justice Robert Catlyn responded to the Duke, saying:

In some cases it may be so; as in France, if the dukedom of Brittany should rebel against the French King, and should (during the amity between the French and the Queen’s Majesty) invade England, those Britons were the French King’s subjects, and the Queen’s enemies, though the French King remaineth in amity; and so in your case.

The duke, doubting this, replied by asking where the proclamation that they were enemies occurred. The prosecuting lawyer responded:“in England . . . but the war itself is sufficient proclamation.”  It seems likely that this interchange recalls another legal determination in Shirley’s Case. In Dalison’s alternative report, the Justices all noted a case where “Frenchmen come into this realm with power against the king and queen, and levy war here against them, even though France was previously in amity . . . this is a cause of a breach of the truce and a cause of war between the said realms. Note that.” Significantly, the invasion and levying war by an alien army in amity must be sufficient to break the amity between two nations. And here “war” and “invasion” are treated synonymously.

In one commentary on The Duke of Norfolk’s Case, Coke says that the legal determination was “whether the Lord Herise and other Scots in aperto praelio [in open hostility] burning and wasting divers towns in England without the assent of the king, were enemies in law within this statute, and resolved that they were.” In a later comment on the same case, Coke adds that the debate was whether the Scottish lords were actual enemies, despite being proclaimed as such while Scotland was in amity. The latter of the two is the better account of the facts. The queen declared war on them. But in both reports Coke adds the fact that Lord Harries invaded separately himself, burning and wasting towns (i.e., acting with warlike pretenses). Regardless, for Coke the critical adjustment was that they were enemies because they were proclaimed enemies, even though the lords supposedly performed the kinds of public wrongs sufficient to have levied war against England.

To sum up, enemy invaders under the common law must be levying war. But, moreover, they must enter with enough coordinated, armed men (and with a pretense to perform public wrongs) to break the amity between their country and ours. It is this quality that alien parents must have–in the most extreme of cases–to not be “in amity” with the United States while we remain at peace with their home country. It is safe to say that no illegally present parent meets this standard.

Conclusion

Calvin’s Case and the common law generally cannot support the constitutionality of Donald Trump’s Executive Order. Even if a status of “amity” in the parent alien matters, until a state of open war exists between the United States and a foreign force, their children will be natural born citizens.