2022 Statelessness & Citizenship Review 4(1) Scotland and England in the crown of James VI and I, respectively.40 In this case, Edward Coke argued that those born under the ligeance and obedience of the sovereign, regardless of their parents’ political status in the realm, were deemed to be natural born subjects to the duties and beneficiaries of the rights of allegiance. In this case, both the time and place of a subject’s birth was also important, as this determined whether the young Scottish plaintiff, Robert Calvin, was born subject to the allegiance of James VI and I as both the sovereign of England and Scotland for the purpose of determining his political membership and capacity to inherit land in England. 41 In short, membership in the community so defined, along with its attendant status, obligations and rights, was based first in divine ordinance and natural inheritance that transcends political boundaries and subsequently in a relationship of consent between the sovereign and his subject. Even under the dominion of a powerful centralised monarchy, the privileges accorded to those deemed to be subjects by birth contained the germ of what were to be viewed as natural rights in John Locke’s formulation and the rights of Englishmen as they were understood by the Founding Fathers of the United States (‘Founders’).42 First, the elevation of the rule of birthright citizenship above ‘judicial and municipal law[s]’ ensured the universality and permanence of the rights conferred by this standard for the benefit of those born under the jurisdiction of the realm.43 According to Coke, ‘the obedience and ligeance of the subject to his sovereign be due by the law of nature … [as] parcel of the laws, as well of England, as of all other nations, and is immutable’.44 This meant that an unpopular or powerless minority group — in this case, James VI’s subjects in Scotland, but later extending to ethnic and racial minorities in America — could not be disenfranchised through a popular action of the privileges inhering from allegiance to the sovereign. Second, by rendering the bonds of allegiance between subject and sovereign prior to the emergence of body polities and laws, Coke established a rule that would ensure the continuity of a ‘natural community of allegiance’ through the change in regime effectuated by the American Revolution. 45 Third, the rule of birthright subjectship stated in Calvin’s Case established the basis for a national community of allegiance that took precedence over customary and feudal allegiances in England and the colonies. 46 Fourth, the rule of birthright citizenship established the basis by which individuals would be guaranteed what was later described in international human rights law as the ‘right to a nationality’ and the civil and political rights attached to this status.47 Fifth, the feudal context of birthright citizenship in Calvin’s Case has an advantage over modern doctrines of political consent: it binds the sovereign to provide for the protection of all persons born under their jurisdiction, whereas political majorities have had more freedom to discriminate against unpopular minority groups through their 40 41 42 43 44 45 46 47 Calvin’s Case (n 2). Elizabeth Cohen, The Political Value of Time: Citizenship, Duration and Democratic Justice (Cambridge University Press 2018) 40. Polly J Price, ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’ (1997) 9 Yale Journal of Law Journal and the Humanities 73, 88 (‘Natural Law and Birthright Citizenship’). Calvin’s Case (n 2) 382. ibid 394. James H Kettner, The Development of American Citizenship (University of North Carolina Press 1978) 20, 23. See, eg, Ainslie v Martin, 9 Mass 454 (1813); Michael A Heimos, ‘Not to Confound Predicaments’ in Matthew Ward and Matthew Hefferan, (eds), Loyalty to the Monarchy in Late Medieval and Early Modern Britain (Springer Publishing 2019) 127, 128. Price, ‘Jus Soli and Statelessness’ (n 25) 131. Price, ‘Natural Law and Birthright Citizenship’ (n 42) 77. 72