Nov 28 2016
Calvin’s Case and Rights of the Subject
Since the events of June 2016 and the recent ruling of the high court, debates concerning immigration, sovereignty, nationality and national allegiance have become familiar points of contention. It seemed curiously appropriate, therefore, to begin TIDE’s first Reading Group Seminar with the influential seventeenth century lawsuit known as Calvin’s Case. In 1608, legal stalwarts like Francis Bacon and Edward Coke, along with fourteen English judges at the Exchequer Chamber in London, came together to decide on a case that initially seemed like a simple matter of property inheritance. Could three-year-old Robert Calvin (actually called James Colville), born in Scotland of Scottish parents, inherit property in London under English common law? The decision of the twelve judges, two of whom dissented, would have enormous implications for issues of birthright and allegiance in the English-speaking world for centuries to come. The judges decided that Scottish children, known as the postnati (born after the Scottish King James VI inherited the throne of England in 1603), had the legal right under English law to be considered English subjects.
Attorney General Francis Bacon was a long-standing advocate of Anglo-Scottish Union and the naturalization of Scots
This was hugely significant. The ruling affirmed ideas of jus soli, based around an enduring bond between subjects and the monarch, in which children of immigrants were granted subjecthood as a natural birthright through their connection to the monarch. If a child born in Scotland after the union pledged allegiance to the Scottish crown, they by proxy also pledged allegiance to the English crown.
James VI & I of Scotland and England united England and Scotland under one crown, raising serious debates over the rights and privileges of Scottish subjects in England.
This raised significant questions about whether the individual subject’s allegiance was rightfully and naturally aligned with the sovereign of their place of birth. Furthermore, the ruling addressed whether, and how, non-citizens (like those born before James VI ascended the throne of England, the antenati) could become citizens. Commentators such as Bacon and Coke dealt with the former by defining the issue of the king’s two bodies (the king’s ‘natural’ or physical self, and his political body, or the state). They suggested that Calvin’s Case highlighted how the monarch’s natural and political bodies were inseparable and so allegiance was given to both at the same time. Calvin’s Case revealed deep-seated rifts and anxieties within the nation. In language that was not dissimilar from that used during the EU referendum campaign, political opponents of Scottish immigration utilized the rhetoric that England was at ‘breaking point’. Although little is mentioned in the court of the public opinion or perception of the debate surrounding Scottish naturalization, its conclusion did generate a sizeable political opposition. One contemporary poet, playwright and historian Arthur Wilson, described in his history of James I’s reign how political union and the process of naturalization established by Calvin’s Case would lead to England being “over-run with them [Scots], as Cattle pent up by a slight Hedg will over it into better soyl” and that they would “witness the multiplicities” of Scottish people coming into the country. Furthermore, Sir Robert Phelps, in a speech to Parliament in 1628, mentioned Calvin’s Case as a warning about the “foreign dangers” that England faced from a monarch who dismissed parliament and hoped for political union. Although the case did not advocate political union between England and Scotland, the debates surrounding it highlighted anxieties that early modern English people felt towards strangers, particularly how and under what conditions ‘aliens’ or foreigners should be incorporated into English national identity. In this light, anxieties that prevail in the UK about the status of migrants can be traced back to the legal and political cultures of early modern England. Not only does the atmosphere surrounding Calvin’s Case highlight long held English ideas towards rights and belonging, but also English perceptions of subject identity. The case formally set out in English law the boundaries of English subjecthood, defining who could and would be considered English. It established formally the legal parameters of the rights of an English subject. Furthermore, the outcome of Calvin’s Case was and is globally significant as its ruling on birth-rights was adopted and continues (for the moment) to be a defining legal pillar of United States citizenship. The EU referendum, subsequent debates, and court cases have highlighted the vying perceptions of what it means to be politically, culturally and legally English. Calvin’s Case highlights how the current divisions based on ideas of migration and identities have long been present in the political and legal discourse of the land, and how early moderns also struggled with what a ‘national’ identity meant, and to whom it could be extended. Haig Smith
Calvin's case