Why is a 17th century English court case being used to justify Donald Trump’s attempt to end birthright citizenship?

The US government is currently considering whether they can lawfully remove “birthright” citizenship from the children of undocumented migrants born in America. Perhaps surprisingly, a 1608 English court case is at the centre of these arguments. But is it possible to use a 400-year-old English case law to justify a decision in twenty-first century America? A closer examination of the evidence suggests that legal justifications for the policy are overlooking crucial historical context and cherry-picking details.

Before this most recent debate, it was accepted that birthright citizenship in America - that is, citizenship granted through birth in the country - was established through Calvin’s Case (1608). However, it is important to place the case in context. This means not just understanding that the principles of Calvin’s Case have been developed by the US constitution, notably the 14th Amendment, and by American case law such as United States v. Wong Kim Ark (1898), but also the context in which the case itself was held. Can we map today’s immigration regimes onto a seventeenth-century context?

The case examined whether, after James I ascended the throne of England in 1603, his Scottish subjects had the same rights as his English subjects in England, and vice versa. The case revolved around the claims to a property in Shoreditch of a Scottish infant, Robert Calvin, or Coleville. Although the case was, on the face of it, straightforward, the arguments of the judges, and the judgement itself, suggest an attempt to combine several contradictory concepts of allegiance and rights. As one anonymous writer put it in the 1680s, “there is scarce any one Proposition…advanced through that whole Case… but what may be answered (that is, contradicted) by something else of the same Author in the same Case”.

The court decided in Calvin’s favour. The judgement stated that James’ subjects’ rights - or “protection” - arose from “natural” allegiance, acquired at birth in the monarch’s dominions. As James was monarch of both England and Scotland, full rights adhered to any subject born in either country. As England’s empire expanded, those born in colonies were also in natural allegiance, and so were able to access rights - with the notable exception of enslaved people.

Although full rights were only available to those holding natural allegiance, the judgement went on to outline categories of lesser allegiance that conferred reduced protection. These included “local” allegiance, that is, access to the law for resident migrants from countries “in amity” with the monarch and “acquired” allegiance through naturalisation.

Several US legal experts have recently argued that Calvin’s Case justifies stripping birthright citizenship, including the conservative nonprofit America First Legal and the law professors Randy E. Barnett and Ilan Wurman. They argue that the judgement suggests that birth in the country alone is insufficient to confer citizenship: rather, a child must also be born to parents who hold local allegiance, as migrants arriving from countries in amity with the monarch. Applying this to today’s context, they then argue that undocumented migrants, in arriving “illegally”, are not “in amity”.

That is quite a leap. It is useful here to think about the context in which Coke and the other judges were writing. There were no “illegal” immigrants at the time that Calvin’s Case was decided. There was no visa regime for entering England. However, all migrants, even those who had arrived after fleeing persecution, were subject to significant disabilities and restrictions when resident in England, including restrictions on working and an obligation to pay additional taxes. What did “local allegiance” mean in this context? It meant that migrants were able to hold moveable property and had some recourse to the courts: it also meant that they were subject to the full rigour of the law in the case of wrongdoing, a principle affirmed in Courteen’s Case (1618).

The condition for accessing local allegiance was that migrants were “in amity”: that they came from countries not at war with England. Although arguments in favour of citizenship-stripping in today’s USA have linked this to “illegal entry”, the seventeenth-century examples they cite are of people who have entered the country not to settle, but to wage war, notably Perkin Warbeck, who invaded England as a pretender to Henry VII’s crown. In fact, these are the only mentions of what might comprise “amity” in the judgement.

In seventeenth-century England, moreover, whether parents were in amity or not had little effect on their children’s claims to birthright subjecthood. For example, England and France were not “in amity” in 1626, as war approached: however, that year, when Charles I attempted to levy additional foreigners’ taxes on the children of migrants, judges disagreed, noting that birth in England meant the child of a migrant was a “naturall Englishman” as he “oweth his allegiance to the Kinge of England” and therefore was in receipt of all the “freedome of a Subiecte”. There is no reference here to parents’ status of “local” allegiance. England was again at war with France in the 1690s, but in 1698, a law was passed which enabled the children of migrants to inherit property. There was no mention of parental affiliation, or local allegiance: the child of a migrant was a “naturall borne Subject”.

In fact, in Calvin’s Case, there is only one group whose children, if born in the monarch’s dominions, were explicitly excluded from accessing the rights of British subjects: “infidels”. These infidels, Coke stated, are “perpetual inimici”, that is, perpetual enemies. This exception highlights some of the problems in attempting to apply a 17th-century judgement to a case for stripping birthright citizenship. We do not currently bar Jews, Muslims and other non- Christians from citizenship, in either the UK or US, and we have to hope nobody makes that argument.

Just as the birthright citizenship of Calvin’s Case has been developed by case law and constitutional amendments in America, so too the law around subjecthood developed in seventeenth-century England, and afterwards: neither the law, nor the theory or practice of citizenship is static. Having said that, if Calvin’s Case is to be used in arguments about birthright citizenship, Coke’s assertions must be read in the correct context.

Kathleen Commons is currently a PhD. scholar in history in the School of History, Philosophy and Digital Humanities. Her research explores what the governance of migrants in early modern England can tell us about the development of English citizenship.

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