Calvin’s Case and Birthright Citizenship

Introduction

Donald Trump’s executive order ending birthright citizenship for the children of unlawfully present “aliens”¹ raises serious constitutional questions.² 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.”³ Some argue that a common law rule from Calvin’s Case (an English case from 1608)⁴ determines the legal content of this provision of the Constitution, and likewise who counts as a birthright citizen. Relying on Calvin’s Case is no help. Calvin’s Case and the common law generally, if applicable here, protect the right to birthright citizenship.

The Executive 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.⁵ Wurman and Barnett echo the Supreme Court in United States v. Wong Kim Ark.⁶ There, the Court stated that the interpretation of the U.S. Constitution “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.”⁷ The Supreme Court looked, as Wurman and Barnett have done, to Calvin’s Case,⁸ which states the “fundamental principle” of birthright subjecthood.⁹

Wurman and Barnett claim that Calvin’s Case established a “common law allegiance-for-protection” paradigm for English subjecthood that Wong KIm Ark later “presumed” for U.S. Citizenship.¹⁰ They deny that Edward Coke’s opinion embraces the birthright principle now commonly called “just soli“—that birthright subjecthood is determined by the soil upon which someone is born.¹¹ Instead, Wurman and Barnett posit that Calvin’s Case requires an inquiry into a parent alien’s allegiance—or legal “status”—to determine the birthright subjecthood of that alien’s child.¹² The specific status they invoke is “amity.”¹³

Wurman and Barnett are wrong. Amity existed for an alien visitor during a state of peace between sovereign monarchs. And it traditionally imparted special privileges.¹⁴ Yet, it is false that Calvin’s Case required alien parents to have a status of amity to give birth to natural subjects.¹⁵ Wurman, Barnett, and other modern scholars nevertheless suppose so.¹⁶ But even if the common law required the parental status of amity, amity meant something specific in common law terms.

Such a common law rule would be very formal.¹⁷ 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 on 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 also 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: those born to undocumented parents within the territory of the United States are indeed 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 noncitizens 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.¹⁸ On appeal in the Exchequer, the case teed up what was known as the post-nati or Postnati question.¹⁹ The term refers to Scottish children born (“nati”) after (“post”) James VI of Scotland became James I of England.²⁰ 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.”²¹

The nature of “allegiance” was critical. The thing to which allegiance was owed was not obvious, and the outcome of the Postnati controversy depended exactly on that question. 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.”²² 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.²³ The judges ultimately ruled that Calvin was obliged by a perpetual duty of allegiance to the natural body of his sovereign King—not to the laws of any kingdom—and thus could sue for and take possession of property in England.²⁴

Chief Justice Edward Coke divides the opinions of the judges in Calvin’s Case into five areas of concern: (1) allegiance, (2) the law of nature, (3) kingdoms, (4) aliens, and (5) consequences and inconveniences that “would ensue on either side.”²⁵ The report is immense and deserving of thoughtful study,²⁶ 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 of argument, I assume it does.²⁷ I go no further than the reasoning laid down in Calvin’s Case and common law authorities, including 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 comprehensive account.²⁸

There are three critical concepts we must understand before identifying and applying a common law rule. They are allegiance, the status of amity, and the status of enemy. 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. Repeating from Calvin’s Case, Coke tells us that there are four types of allegiance. Figure 1 is a reproduced image of Coke’s own diagram in the Institutes.

Figure 1: Edward Coke’s Hierarchy of English Allegiance²⁹

Natural (or “original”) allegiance is not a mental state, but something established instantaneously at birth. It is “the highest and greatest obligation of dutie and obedience that can be.”³⁰ 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.”³¹ Local allegiance, by contrast, is contingent, special to aliens, and confers distinct privileges.³²

Allegiance and non-criminal behavior are not synonymous, even though Coke occasionally uses the words “obedience” and “allegiance” interchangeably. That English allegiance is owed to a sovereign (not laws) is a strong indication that allegiance and non-criminal behavior are conceptually severable.

The second critical concept is the status of “amity.” As I show in Part III, the birthright rule does not require parents to possess a special status to give birth to birthright subjects. But because Wurman and Barnett allege that it does,³³ it is necessary to distinguish between the two legal statuses alien parents could have. An alien was either in “amity” or an “enemy.” An alien in amity is supposed to have a “local allegiance” to the English king (and thus, under Wurman’s and Barnett’s rule, the allegiance necessary to give birth to a birthright subject). This local allegiance, discussed by Coke above, imparts some process rights to the foreigner. And it is the operation of that allegiance, if any, upon newborn children that is critical to the debate here.

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.

The third concept is the status of “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 which he was in amity, there is 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 only and wholly to the King, and not to the subject . . . .”³⁴ Assuming this common law rule applies to our situation today, for 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 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.³⁵ 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.³⁶ 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 long settled by the common law.

An anonymous 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.³⁷

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.”³⁸ 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.³⁹ 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.⁴⁰ 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:

[I]t 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.⁴¹

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.⁴² Coke’s comment here, which has been taken to require a that alien-parents have a special status and disposition,⁴³ reflects the kind of legal question—also discussed in Dyer’s report about the bastard born in Tournay—which Coke discusses in Calvin’s Case.⁴⁴

Notably, Coke added that “neither the climate nor the soil, but ligeantia and obedientia . . . make the subject born.”⁴⁵ Here, 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 says later, an alien is someone born extra terram (“outside the land”) and potestatem regis natus est (“outside the king’s power”).⁴⁶ Assuming the U.S. 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.”⁴⁷ Francis Bacon, who litigated Calvin’s Case, agreed.⁴⁸ So did case law in general.⁴⁹

Yet, we have a problem. The problem is that the Supreme Court in Wong Kim Ark is unclear as to the precise mechanisms that give rish to the ruling in Calvin’s Case. The Court notes that allegiance—“also called ‘ligealty,’ ‘bedience,’ ‘faith’ or ‘power,’”—informed Coke’s reasoning.⁵⁰ The Court adds, thus, that a child born to alien parents in amity would be sufficient for birthright subjecthood.⁵¹ But in doing so the Court leaves open whether it is the condition of the parent wholly or otherr circumstances entirely that create the implicit allegiance necessary for automatic subjecthood.

Barnett and Wurman thus argue that parental status was a necessary condition for English natural-born subjecthood.⁵² To be consistent with this reading of Wong Kim Ark, the required parental status must be amity. So, although Edward Coke, Francis Bacon, and William Blackstone agreed on one version of what we now call jus soli (the principle that children born within the physical territory of a country are natural-born subjects of that country), the Wong Kim Ark Court leaves room for debate about parental status.⁵³

We must get the law and history right. Even if one applies the proposed common law rule, the immigrant children in question would still have birthright status.

A. Aliens in Amity and Enemy Aliens

Even if parental status does matter to the common law birthright rule, the children of noncitizens targeted by the Order 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 sense might be why the Wong Kim Ark Court saw in Calvin’s Case a requirement of allegiance, however “quaintly” it appeared.⁵⁴ This thus enjoins another related discussion: alien allegiance and alien invasions.

In two critical passages of Calvin’s Case, Coke discusses a scenario in which English land is captured by alien enemies.⁵⁵ He tells us that children born on such land cannot be natural-born: “[T]hat issue [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.”⁵⁶ This merely repeats the principle that although the King had rights to the land, he did not have actual possession of it.⁵⁷ Some other sovereign did. And it is to that invading sovereign that the child owes natural allegiance. It does not matter whether the parents of these children are enemies or English inhabitants. Children born on land without actual obedience cannot be natural-born.⁵⁸ Wurman and Barnett read this scenario to require that the parent must be “in amity.”⁵⁹ This is likely wrong. Even so, looking to the common law concept of amity will still yield unfavorable results for the Executive Order.

B. Aliens in Amity who break laws are entitled to the benefits of allegiance

Coke’s diagram above is a useful jumping-off point.⁶⁰ 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.⁶¹ Local allegiance emerges in the following manner:

Aliens that are within the Realm of England, and whose Soveraignes are in amity with the King of England, are within the protection of the King, and doe owe a local obedience to the King . . . and if they commit High Treason against the King, they shall be punished as Traitors, but otherwise [outside of amity] it is of an enemy . . .⁶²

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.⁶³ Nothing more.⁶⁴

Coke tells us that “[l]eagues between our Sovereign and others are the only means to make aliens friends, et foedera percutere, to make leagues, onely and wholly pertaineth to the King.”⁶⁵ 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.⁶⁶ Importantly, nations with whom England was not in a state of war were recorded or “inrolled 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.”⁶⁷ 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.⁶⁸ It is a state of peace that creates the duty of local allegiance when an alien is on the controlled soil of the friendly kingdom. Those that claim allegiance is a mental state otherwise point to one quote in Calvin’s Case: “ligeance is a quality of the mind, and not confined within any place.”⁶⁹ 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.⁷⁰  Saying nothing of local allegiance, Coke is asking “where natural legiance is due.”⁷¹ 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.”⁷² The quality is not a “mental state,” as we might speak of it today, but an inviolable bond (a “ligatio mentium“), “an incident inseparable.”⁷³

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.⁷⁴ The same is true for ambassadors.⁷⁵ 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.⁷⁶

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.⁷⁷ 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.⁷⁸ By the time of Calvin’s Case, 250 years later, the common law had come to favor a liberal interpretation of that right.⁷⁹

A notable case on this subject is reported by Justice James Dyer and cited by Coke in Calvin’s Case.⁸⁰ 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.⁸¹

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.⁸² 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.”⁸³ 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.⁸⁴

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.”⁸⁵ 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.⁸⁶ 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.

IV. Noncitizen 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. Shirley’s Case is instructive. Sherleys—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.⁸⁷ 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 U.S. Constitution⁸⁸—the origins of the terms “enemies,” “levying war,” and “aid and comfort” come from the 1351 Statute of Treasons.⁸⁹ It applied to “both Sexes” and could not apply to “Mad-men, or Infants that are not of the age of Discretion.”⁹⁰ It also did not apply to an alien who was “an enemy.”⁹¹ Coke offers us an extensive discussion of the word “enemies”:

Inimicus in legal understanding is hostis, for the Subjects of the King, though they be in open war or rebellion against the King, yet are they not the Kings enemies, but traitors; for enemies be those that be out of the allegiance of the King. If a Subject joyn with a foraign 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.⁹²

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.⁹³ And natural subjects themselves cannot be “enemies,” including criminal subjects.⁹⁴ The critical term to understand is “war,” and, as we have seen, it can be impermissibly levied by subjects or enemies.⁹⁵

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.”⁹⁶ Coke cites Magna Charta for “the difference between an alien enemy, and a subject traitor” in Calvin’s Case.⁹⁷ The great charter explains that the privileges of “merchants,” which the judges later interpreted to mean “aliens,”⁹⁸ ceased in tempore guerrae (“in time of war”).⁹⁹ Magna Charta tells us that this means a time, specifically, when the merchants “be of a land making war against us.”¹⁰⁰

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.¹⁰¹ If you do this “for a private revenge or end” it “is no levying of war against the King.”¹⁰² Indeed, “every gathering of force is not High Treason.”¹⁰³ To levy war, one must have a “pretence [that] is publick and general and not private in particular.”¹⁰⁴

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,”¹⁰⁵ and
8. To “deprive and depose the king of his crown and regality”¹⁰⁶

Coke tells us that “[t]here is a diversity between levying of war and committing of a great Riot, a Rout, or an unlawful assembly.”¹⁰⁷ 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 four, or more”) cast down enclosures “this or the like is a Riot, a Rout, or an unlawful Assembly, and no Treason.”¹⁰⁸ 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.¹⁰⁹ The case is a fragmentary report of the treason trial of the Duke of Norfolk.¹¹⁰ Justice Dyer was in attendance.¹¹¹ And Edward Coke cites it twice in the Institutes.¹¹²

The Duke of Norfolk hoped to marry Mary Queen of Scots.¹¹³ He stood trial for treason for aiding and comforting enemies of the crown, per the Treason Statute of 1351.¹¹⁴ A certain “Lord Herries” of Scotland aided English rebels that had fled from England into Scotland. ¹¹⁵ Queen Elizabeth “proclaimed open war against” Lord Herries and “pursue[d] them [Herries, other lords, and the rebels] as her enemies” in Scotland.¹¹⁶ 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.”¹¹⁷

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.”¹¹⁸ 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.¹¹⁹

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.¹²⁰

The duke, doubting this, replied by asking where the proclamation that established an enemy relationship was made.¹²¹ The prosecuting lawyer responded: “in England . . . but the war itself is sufficient proclamation.”¹²² 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.”¹²³ Significantly, an invasion of or levying of 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.”¹²⁴ 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.¹²⁵ 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).¹²⁶ Regardless, for Coke the critical adjustment was that they only became enemies when they were proclaimed enemies, even though the lords supposedly performed the kinds of public wrongs sufficient to have levied war against England.

Applying this rationale to the present situation, for aliens to lose the presumptive status of amity, there must either be declared war or a finding that the aliens have entered our lands with enough coordinated, armed men (and a pretense to perform public wrongs) to break the amity between their country and ours. If we then apply this backdrop to the rule as proposed by Wurman and Barnett, only the children of verifiably enemy aliens will be denied U.S. citizenship. It is safe to say that no noncitizen parent meets this standard. Nevertheless, parental amity does not bear on the determination of subjecthood under the common law rule. And, assuming the United States adopts a common law rule, neither would parental status bear on the question of citizenship.

Conclusion

Calvin’s Case supports the traditional understanding that individuals born in the United States are, absent extraordinary circumstances, citizens. Even if the status of “amity” of a noncitizen parent matters, until a state of open war exists between the United States and a foreign force, a child of that parent, born within actually possessed U.S. territory, will be a natural-born citizen.

1. “Alien” as a social or political term is distinct from “alien” as a legal term. I use the term for its technical legal meaning in English common law, modern case law, and contemporary statutes. See, e.g., Calvin v. Smith (Calvin’s Case) (1608) 77 Eng. Rep. 377, 407; 7 Co. Rep. 1a, 25b (“Wars do make aliens enemies, and bellum indicere [declaring war] belongeth only and wholly to the King, and not to the subject . . . .”); Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020) (noting that “aliens who have established connections in this country have due process rights in deportation proceedings”); 8 U.S.C. § 1101(a)(3) (“The term ‘alien’ means any person not a citizen or national of the United States.”). For the purposes of this article, I use “noncitizens” synonymously with the technical legal meaning of “alien.” ↩︎
2. Exec. Order No. 14160, 90 Fed. Reg. 8849 (Jan. 20, 2025); see also Amy Howe, Trump Urges Supreme Court to Decide Whether to End Birthright Citizenship, SCOTUSblog (Sep. 26, 2025), https://www.scotusblog.com/2025/09/trump-urges-supreme-court-to-decide-whether-to-end-birthright-citizenship/ [https://perma.cc/FQU9-2P2R] (describing widespread Fourteenth Amendment challenges to the Executive Order). ↩︎
3. U.S. Const. amend. XIV, § 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”) (emphasis added); see Exec. Order No. 14,160, 90 Fed. Reg. at 8449 (“The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”); see also id. (stating that “when [a] person’s mother was unlawfully present in the United States” at the time of birth, that person is “not subject to the jurisdiction thereof”). ↩︎
4. Calvin’s Case, 77 Eng. Rep. at 377; 7 Co. Rep. 1a. ↩︎
5. Randy E. Barnett & Ilan Wurman, Trump Might Have a Case on Birthright Citizenship, N.Y. Times (Feb. 15, 2025), https://www.nytimes.com/2025/02/15/opinion/trump-birthright-citizenship [https://perma.cc/BN5G-7BKR]. ↩︎
6. 169 U.S. 649 (1898); see Barnett & Wurman, supra note 5. ↩︎
7. 169 U.S. at 655 (quoting Smith v. Alabama, 124 U.S. 465, 478 (1888)). ↩︎
8. Id. at 655-56. ↩︎
9. Id. (“The fundamental principle . . . was clearly, though quaintly, stated in the leading case, known as Calvin’s Case. . .”). I use “subjecthood” when referring to the English common law, which applied to the subjects of a monarch. I use “citizenship” when referring to the U.S. Constitution or the American conception of birthright status. ↩︎
10. Randy E. Barnett & Ilan Wurman, Birthright Citizenship: A Reply to Critics, Reason: Volokh Conspiracy (Feb. 18, 2025, 11:21 AM), https://reason.com/volokh/2025/02/18/birthright-citizenship/ [https://perma.cc/G4UR-2JA2]. ↩︎
11. See Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 Yale J. L. & Humans 73, 77 (1997). ↩︎
12. Barnett & Wurman supra note 10. ↩︎
13. Id. ↩︎
14. See infra note 64 and accompanying text. Since the publication of this paper, Professor Wurman has abandoned his reliance on amity. He nevertheless maintains an “allegiance-for-protection” version of the common law rule. See generally Ilan Wurman, Jurisdiction and Citizenship (Minn. Legal Stud. Rsch. Paper No. 25-27, 2005), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5216249 [https://perma.cc/S5Z9-EYCC]. ↩︎
15. See infra Subsection II.A. ↩︎
16. See Barnett & Wurman, supra note 10. Recently, Professor Kurt Lash has argued that Chancellor James Kent’s Commentaries on American Law adopt the view that parental status matters, but the textual evidence is not convincing. See Kurt T. Lash, Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment’s Citizenship Clause, 101 Notre Dame L. Rev. (forthcoming 2025/2026), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5140319 [https://perma.cc/9VTC-46CN]. Kent’s arguments are the same as Coke’s, and he quotes Coke explicitly. Kent’s examples are Coke’s examples, and Coke uses “actual obedience” to mean actual control over land upon which children are born. Id. (manuscript at 13–14). Kent acknowledges this by describing enemy control of English land as being under the “temporary dominion” of a foreign sovereign. Id. (manuscript at 14); see also generally Chancellor James Kent, 2 Commentaries on American Law 41, Lecture XXV (1844) (5th ed). ↩︎
17. See infra Subsection II.A. ↩︎
18. Price, supra note 11, at 81. His name was probably “Robert Colville.” Id. ↩︎
19. See id., see also 1 Journal of the House of Commons 340 (Feb. 24, 1607) (1802 ed.) (“Whether all born in Scotland since the King’s Coming to the Crown of England, be naturalized”). ↩︎
20. Prince, supra note 11, at 80. ↩︎
21. Calvin’s Case (1608) 77 Eng. Rep. 377, 379; 7 Co. Rep. 1a, 2a.2a. ↩︎
22. Speech of Lord Bacon, as Counsel for Calvin, in the Exchequer Chamber, in 2 Cobbett’s Complete Collection of State Trials 584 (William Cobbett, ed.) (1809) [herinafter Bacon’s Speech]. ↩︎
23. See id. Bacon Bacon explained that anti-naturalization advocates offered an argument based on allegiance to laws: “[T]he law of England is of force only within the kingdom and dominions of England, and cannot operate but where it is in force. But the law is not in force in Scotland, therefore that cannot endure this benefit of naturalization by a birth in Scotland.” Id. Bacon continued to argue that even if it were true that subjects owed allegiance to laws, not kings, that the laws of England sometimes did extend beyond its literal territory. Id. at 585. Fundamentally, however, English allegiance was not characterized by an allegiance to laws. See infra note 24 and accompanying text. ↩︎
24. Calvin’s Case, 77 Eng. Rep. at 389; 7 Co. Rep. at 10b. ↩︎
25. Id. at 382, 7 Co. Rep. at 4a–4b. ↩︎
26. For an excellent and deeper discussion of the case, its history, and related questions of political and legal theory, see generally Price, supra note 11. I engage with the case in a different jurisprudential context in my own work. See Benjamin Keener, The Provenance of Edward Coke’s Artificial Reason (Oct. 22, 2024) (MPhil. dissertation, University of Cambridge), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4997237 [https://perma.cc/3KWP-TQBX]. ↩︎
27. As an originalist matter, a common law rule from Calvin’s Case is not likely to account for the original public meaning of the Fourteenth Amendment. Regardless of what we can tease out from Wong Kim Ark, would an originalist not first investigate exactly what the phrase “subject to the jurisdiction thereof” meant at the time of ratification instead? This is especially important because the drafters and public understood that the text confers citizenship, not subjecthood. ↩︎
28. I cite Blackstone and Chancellor Kent occasionally, mostly to point out that they agree with Coke’s rule in Calvin’s Case: that allegiance is an automatic duty tied to land, birth, and amity, not non-criminal behavior). For recent scholarship identifying the rule’s persistence over time, see generally Keith E. Whittington, By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States (Aug. 21, 2025) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5394605 [https://perma.cc/3SB2-SY9F]. For another scholarly paper on the common law birthright rule, see generally John Vlahoplus, Allegiance, Treason, and Birthright Citizenship, Loy. U. Chi. L.J. Online (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5236741 [https://perma.cc/R937-NWAQ]. ↩︎
29. Edward Coke, The First Part of the Institutes of the Lawes of England, A Commentary Upon Littleton, Not the Name of a Lawyer Only, But of the Law Itself 129a (3d ed. 1633) [hereinafter 1 Institutes]. The words are verbatim. Text in italics is translated from the original Latin by the author. ↩︎
30. Id. ↩︎
31. Id. ↩︎
32. See infra note 63 and accompanying text. ↩︎
33. Barnett & Wurman, supra note 5 (arguing that alien-parents, having given “no obedience or allegiance to the country,” “did not come in amity” and thus their children are “not under the protection or ‘subject to the jurisdiction’ of the nation.”). ↩︎
34. Calvin’s Case (1608) 77 Eng. Rep. 377, 407; 7 Co. Rep. 1a, 25b. ↩︎
35. The line is vague but commonly cited: “local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject.” Id. at 382, 7 Co. Rep. at 6a. ↩︎
36. Coke contrasts the inheritance rights children born (“issued”) in England to alien parents with children born “beyond [s]ea” but to English parents. 1 Institutes, supra note 29, at 129. ↩︎
37. Anon. (1563), in James Dyer, Les Reports Des Divers Select Matters & Resolutions Des Reverend Judges & Sages Del Ley 224a–224b (London, 1686) [hereinafter Dyer]; see also Reports from the Lost Notebooks of Sir James Dryer 1, 206 n.6 (J.H. Baker ed.) (1994) (discussing this ruling). Wurman stresses the words “stay here,” and suggests that they “imply a more permanent residence of the parents.” Wurman, supra note 13, at 33 n.144. Dyer places no considered emphasis on the time the parents were within England, save by the singular word “stay.” Time is either irrelevant or an afterthought. But the repetition (near alliteration) of “here” confirms that location is the paramount inquiry. ↩︎
38. See Dyer, supra note 37, at 224a-224b. “Liege-man” means birthright subject. See 1 Institutes, supra note 29, 199 (“And he that is borne within the King’s liegeance is called sometime a Denizen, quasi deins née, borne within, and thereupon in Latine called indigena, the King’s Liegeman; for Ligeus is ever taken for a natural borne subject.”). ↩︎
39. Calvin’s Case, 77 Eng. Rep. at 399, 401–03; 7 Co. Rep. at 18a, 20b, 21a, 22a (describing “actual possession” as a determinative factor for natural-born subjecthood at home and abroad). ↩︎
40. Johnson v. M’Intosh, 21 U.S. 543, 583 (1823). ↩︎
41. Calvin’s Case, 77 Eng. Rep. at 399; 7 Co. Rep. at 18a. ↩︎
42. See id. at 386, 7 Co. Rep. at 8a (discussing France as being “under the actual obedience of the King”); id. at 387, 7 Co. Rep. at 8b (discussing Lyons being “under the actual obedience of King Henry VI”); id. at 402, 7 Co. Rep. at 21a (“[S]uch as were born within that earldome, so long as it was under the actual obedience of the King of England, were no aliens, but natural-born subjects.”); id. at 404, 7 Co. Rep. at 22a (“Calais being parcel of France was under the actual obedience and commandment of the King, and by consequent those that were born there were natural-born subjects, and no aliens.”); id. at 406, 7 Co. Rep. at 24b (“[B]ecause the people of Samaria were not under actual obedience, by the judgement of the Chief Justice of the whole world they were adjudged alienigence, aliens.”); id. at 409, 7 Co. Rep. at 27a–27b (“[N]atural legitimation respecteth actual obedience to the sovereign at the time of the birth; for as the antenati remain aliens to the Crown of England, because they were born when there were several Kings of the several kingdoms . . . cannot make him a subject to that Crown to which he was alien at the time of his birth.”). ↩︎
43. See Barnett & Wurman, supra note 10. ↩︎
44. Calvin’s Case, 77 Eng. Rep. at 404; 7 Co. Rep. at 22b (“Tournay was under the obedience of Henry the Eighth, as it appeareth by 5. L. Dyer . . . . If then those that were born at Tournay, Calais, &c. whilst they were under the obedience of the King, were natural subjects, and no aliens, it followeth, that when the Kingdom of France (whereof those were parcels) was under the King’s obedience, that those that were then born there were natural subjects and no aliens.”) ↩︎
45. Id. at 384; 7 Co. Rep. at 6a. Wurman and Barnett reflect on Coke’s language out of context, comitting “ligeantia and obedientia” and, instead, jumping to Coke’s hypothetical many words later. See Barnett & Wurman, supra note 10. ↩︎
46. Calvin’s Case, 77 Eng. Rep. at 396; 7 Co. Rep. at 16a–16b (quoting Littleton). ↩︎
47. 1 William Blackstone, Commentaries *362. He continues to explain how France does not offer subjecthood to the children of aliens present there, calling their rule jus albinatus. We would probably term this birthright rule jus sanguinis (“right of alienage”). Id. ↩︎
48. Bacon’s Speech, supra note 22, 595 (“By the law of England, it should suffice, either place or parents. If he be born in England, it is no matter though his parents be Spaniards, or what you will. . . .”). ↩︎
49. See, e.g., Storie’s Case (1571), in Dyer, supra note 37, at 300b (determining that a person who claimed to be an alien was in fact an English natural born subject because he was “notoriously known to be born in England, s. at Salisbury, and by this a subject and liegeman of the realm.”). ↩︎
50. Id. ↩︎
51. Id. ↩︎
52. Barnett & Wurman, supra note 10 and accompanying text. ↩︎
53. Accepting Wurman’s and Barnett’s reading would render Wong Kim Ark inconsistent with former precedent. The Court would have shifted from Justice Joseph Story’s opinion sixty-six years earlier accepting the basic jus soli rule. See Levy’s Lessee v. M’Cartee, 31 U.S. (6 Pet.) 102, 113 (1832) (“Lord [Edward] Coke says that ‘if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm . . . .’”). ↩︎
54. United States v. Wong Kim Ark, 169 U.S. 649, 656 (1898). ↩︎
55. Calvin’s Case (1608) 77 Eng. Rep. 377, 384; 7 Co. Rep. 1a, 6a (“[I]f enemies should come into the realm, and possess town or fort, and have issue there . . .”); id. at 399, 7. Co. Rep. at 18a–18b (“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 . . . .”). ↩︎
56. Id. at 399, 7 Co. Rep. at 18a–18b. ↩︎
57. Although in the other version of the scenario Coke appears to be discussing the parents, id. at 384; 7 Co. Rep. 1a, 6a, he is only concerned with the notion of control and actual possession. At most, his point is that if a child was born in this fort to English parents (a status that mattered for children born “beyond sea”) it would not be sufficient for natural-born subjecthood because the land was no longer within the king’s actual possession. ↩︎
58. See supra note 29 and accompanying text (describing many permutations of the rule). ↩︎
59. See Barnett & Wurman, supra note 9. ↩︎
60. See supra note 29 and accompanying text. ↩︎
61. See supra note 29 and accompanying text.The single exception is “perpetual enemies.” See Calvin’s Case, 77 Eng. Rep. at 397; 7 Co. Rep. at 17a–17b (“All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potential, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace.”). ↩︎
62. Edward Coke, The Third Part of the Institutes of the Law of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Cases 4-5 (6th ed. 1680) [hereinafter 3 Institutes]. ↩︎
63. Coke repeats this elsewhere. See 1 Institutes, supra note 29, at 129b (“[T]he law doth distinguish between an alien, that is a subject to one that is an enemy to the king, and one that is subject to one that is in league with the king; and true it is that an alien enemie shall mainataine neither reall nor personall Action . . . that is untill both nations be in peace.”). Bacon says the same in his Calvin’s Case oral argument. See Bacon’s Speech, supra note 22, at 583 (“For it is the king that makes an alien enemy, by proclaiming a war, wherewith the law or parliament intermeddles not. So the king only grants safe-conducts, wherewith law and parliament intermeddle not. It is the king likewise that maketh an alien friend, by concluding a peace, wherewith law and parliament intermeddle not.”). ↩︎
64. Blackstone unsurprisingly concurs. “When I mention these rights of an alien, I must be understood of alien-friends only, or such whose countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king’s special favour, during the time of war.” 1 William Blackstone, Commentaries *361. ↩︎
65. Calvin’s Case, 77 Eng. Rep. at 407; 7 Co. Rep. at 25b. See also Edward Coke, The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts 156 (1797) [hereinafter 4 Institutes] (explaining that “a League” is “made between two Kings,” including between Christian kings and pagans). ↩︎
66. For example, one of the charges against Cardinal Wolsey was that he attempted to “conclude a treaty of amity with the Duke of Ferrare without the Kings [sic] commandment or warrant.” 4 Institutes, supra note 65, at 156. ↩︎
67. Id. at 152. ↩︎
68. See, e.g., Robert G. Natelson & Andrew T. Hyman, The Constitution, Invasion, Immigration, and the War Powers of States, 13 Br. J. Am. Leg. Studies 1, 28 (2024) (arguing that Coke “emphasized the importance of intent” in Calvin’s Case). ↩︎
69. Calvin’s Case, 77 Eng. Rep. at 388; 7 Co. Rep. at 9b. ↩︎
70. Id. at 385, 7 Co. Rep. at 7b (“Now are we come to (and almost past) the consideration of this circumstance, where natural ligeance should be due: for by that which hath been said, it appeareth, that ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi . . . .”). ↩︎
71. Id. ↩︎
72. See id. at 382, 7 Co. Rep. at 4b (author translation of the original Latin: “Ligeaatia est ligamentum, quasi ligatio mentium: quia sicut ligamentum est connexio articulorum et juncturarum, &c.”). ↩︎
73. Id. (“Ligeance is a true and faithful obedience of the subject due to his Sovereign. This ligeance and obedience is an incident inseparable to every subject”). ↩︎
74. Barnett & Wurman, supra note 10 (“Aliens who came in amity, Coke said, receive a ‘local’ protection while in the lands and must therefore give a local obedience or allegiance to the sovereign.”). ↩︎
75. Ambassadors have a wholly different status from normal alien subjects. 4 Institutes, supra note 65, at 12 ([I]f any thing be malum prohibitum by any Act of Parliament, private Law or Custom of this Realm, which is not malum in se jure gentium, nor contra jus gentium, an Ambassador residing here shall not be bound by any of them: but otherwise it is of the Subjects of either kingdom, etc.” This is because they occupy “so high a place” due to their status as an agent of a foreign power. Id. They can, however, lose that “priviledge and dignity of an Ambassador” when they commit especially terrible acts, such as treason, felony, and adultery. In those circumstances they may be punished here “as any other private Alien. Id. ↩︎
76. Coke says explicitly, “if an alien enemy come to invade this realm, and be taken in war, he cannot b indicted of treason” Calvin’s Case, 77 Eng. Rep. at 384; 7 Co. Rep. at 6b. Coke compares this to Shirley’s Case, where a Frenchman in amity was indictable in English courts. See Sherleys’s Case (Shirley’s Case) (1557), in Report of Cases in the Reigns of Hen. VIII. Edw. VI. Q. Mary, and Q. Eliz. 144a (Sir James Dyer ed., 1794); see also Page’s Case (1587) 77 Eng. Rep. 133, 133; 5 Co. Rep. 52a, 52a (discussing the effects of attainder on an alien who continued to live in England). ↩︎
77. This right of aliens in amity was created by several laws, namely 28 Edw. 3 c. 13 (1354) and 27 Edw. 3 c. 8. (1353). In civil suits where both were aliens, the jury would be entirely of aliens. In criminal cases, the jury de medietatem linguae was half English and half alien. ↩︎
78. For cases developing this right, see Shirley’s Case, in Dyer supra note 76, at 145a (holding that a French alien in amity who “lev[ied] war” against England was indictable for high treason “against the duty of his allegiance” to the king of England); The Case of W.D. (1571–72), in Dyer, supra note 76, at 304a (finding a Scot was not entitled to a jury medietate linguae because he spoke English); Symons v. Spinosa (1577), in Dyer, supra note 76, at 357b (holding that an alien that fails to plead for a jury de medietate before a jury is sworn is not entitled to a venire facias). The cases show the rule changing, but the jury right is consistently acknowledged as flowing from an alien’s amity. ↩︎
79. Shirley’s Case, in Dyer, supra note 76, at 144a. ↩︎
80. Calvin’s Case, 77 Eng. Rep. at 384, 408; 7 Co. Rep. at 6a, 26a. ↩︎
81. Shirley’s Case, in Dyer, supra note 76, at 144a. Here Dyer reminds us that “in divers other precedents, the trial of aliens for felony and murder has been per medietatem linguae, and still shall be.” Id. ↩︎
82. See, e.g. 3 Institutes, supra note 62, at 27 (“The tryal against an Aliennee, that lived here under the protection of the king, and amity being between both kings, for High treason, shall . . . be tried according to the due course of the Common Law.”). ↩︎
83. R. v. Sherlles, (K.B. 1557) in The Reports of William Dalison 122, 123 (John Baker, ed.) (2007) [hereafter Dalison]. ↩︎
84. Dalison’s report suggests, but not clearly, that because the invasion was the cause of war that the aliens in amity were still “in the allegiance of the king and queen” (“esteant en le alliance del e roy et royen”) against whom they levied war. Id. at 123. ↩︎
85. Barnett & Wurman, supra note 10.at 6a. ↩︎
86. Barnett & Wurman, supra note 5. ↩︎
87. Shirley’s Case, in Dyer, supra note 76, at 144a. ↩︎
88. During the Constitutional Convention, there was a debate about whether Article III, Section 3 was sufficiently close to resembling the 1351 Statute of Treasons. See 2 The Records of the Federal Convention of 1787 345 (Max Farrand ed., 1911) (“M[adison] thought . . . . [i]t did not appear to go as far as the Stat. of Edwd. III.”); see generally Bradley Chapin, Colonial and Revolutionary Origins of the American Law of Treason, 17 Wm. & Mary Q. 3, 7 (1960) (explaining that American treason was “the law of England transferred to a new home”). ↩︎
89. 25 Edw. 3 c. 2. Coke discusses the statute at length in the Institutes. See generally 3 Institutes, supra note 62, at 1–19. ↩︎
90. 3 Institutes, supra note 62, at 4. ↩︎
91. Id. at 5. ↩︎
92. Id. at 11. ↩︎
93. The language is “contra ligeantiam suam debitam.” Id. at 11. ↩︎
94. Coke notes that some indictments incorrectly describe traitor subjects as “inimici” when “within this statute they are not inimici” and thus entitled to a treason trial. Id. ↩︎
95. See supra note 76 and accompanying text. ↩︎
96. Calvin’s Case (1608) 77 Eng. Rep. 377, 407; 7 Co. Rep. 1a, 25b. ↩︎
97. Id. at 406, 7 Co. Rep. at 24b. ↩︎
98. See Shirley’s Case, in Dyer, supra note 76, at 144a (discussing this interpretive convention). ↩︎
99. Edward Coke, The Second Part of the Institutes of the Laws of England: Containing the Exposition of Many Ancient, and Other Statutes 57 (1797) [hereinafter 2 Institutes] (quoting and translating Maga Charta Chapter 30). ↩︎
100. Id. Wurman portrays Magna Charta as a departure from a longstanding legal prerogative of the monarch to grant safe passage to foreigners. Thus, some royal power to selectively determine individual amity (or individual enemies) impliedly resides in the executive. Barnett & Wurman, supra note 10. This is misleading. In evaluating the common law rule, Magna Charta cannot be brushed aside as legal aberration. Nor is it obvious that Magna Charta does anything more than curtail illegal abuses of royal power. Magna Charta either was “declaratory of the ancient law and liberty of England” or compelled concessions of the King’s abusive exercise of power. 2 Institutes, supra note 99, at 3. Whether lawfully or not, the King’s former ability to grant safe passage was preserved in times of war but seriously curtailed by the default rule explicitly articulated by Magna Charta. ↩︎
101. 3 Institutes, supra note 62, at 10. ↩︎
102. Id. ↩︎
103. Id. ↩︎
104. Id. at 9. ↩︎
105. Id. at 9-10. ↩︎
106. Coke does not state this act explicitly, but Dyer does. R. v. Stanley (1495), in Reports from the Lost Notebooks of Sir James Dyer, supra note 33, at 205. ↩︎
107. 3 Institutes, supra note 62, at 9. ↩︎
108. Id. (emphasis added). ↩︎
109. Natelson & Hyman, supra note 68, at 33) (“[A]s the Duke of Norfolk’s Case . . .demonstrated, there was no requirement that an alien act as the agent of a foreign power to be deemed an enemy.”). The citation and date the authors provide for the case is incorrect. ↩︎
110. The Trial of Thomas Howard, Duke of Norfolk, in the Court of the Lord High Steward of England, for High Treason (1571), in The Lives and Criminal Trials of Celebrated Men 140 (David Jardine ed. 1835) [hereinafter Duke of Norfolk’s Case] (“The report of this trail . . . is extremely imperfect in many respects; in consequence of the omission of the most material examinations, and several letters and papers, many parts of it are wholly unintelligible.”). ↩︎
111. Id. at 141. ↩︎
112. 3 Institutes, supra note 62, at 11; 4 Institutes, supra note 65, at 152. ↩︎
113. A Companion to Tudor Britain 51(Robert Tittler & Norman L. Jones eds., 2004) (“Norfolk . . . foolishly plotted to marry Mary himself.”); see also Duke of Norfolk’s Case, supra note 110, at 234 (“The first charge in the indictment was the attempt to marry the Queen of Scots.”). ↩︎
114. Duke of Norfolk’s Case, supra note 110, at 244. ↩︎
115. Id. at 211. ↩︎
116. Id. at 211-12. ↩︎
117. Id. ↩︎
118. Id. at 212. ↩︎
119. Id. at 226 (“I beseech you, my Lords the Judges, may a subject be the Queen’s Majesty’s enemy while the prince is her friend, and in amity with her?”). ↩︎
120. Id. ↩︎
121. Id. ↩︎
122. Id. ↩︎
123. R. v. Sherlles, (K.B. 1557), Dalison, supra note 83, at 123. ↩︎
124. 3 Institutes, supra note 62, at 11. ↩︎
125. 4 Institutes, supra note 65, at 152. (“In the [Duke of Norfolk’s case], the question was whether the Lord Herise and other subjects of the King of Scots, that without his assent had wasted and burn divers towns of England, and proclaimed enemies, were enemies within the Statute . . . the league being between the King and the Scot: and resolved that they were enemies.”). ↩︎
126. 3 Institutes, supra note 62, at 11; 4 Institutes, supra note 65, at 152. ↩︎