CHARACTERISTICS OF THE COMMON LAW 275 



a case in the time of Lord Coke, and with it endeavor to illustrate 

 such characteristics as seem to me fundamental. The case chosen 

 is Calvin's. It was an exceptional case, interesting in itself and for 

 what it discloses by inference. It also is a convenient case because 

 of its relation to the American colonists, and for its effect upon the 

 political debates of the middle of the eighteenth century. 



From the meeting of the crowns of Scotland and of England in 

 James I arose the question whether the post^-nati, or those born in 

 Scotland after the accession of James to the crown of England, were 

 aliens in England. A proclamation of James directly answered this 

 in the negative. Commissioners of both countries proposed to the 

 Parliaments of both countries that the common law of both nations 

 should be declared to be that all born in either nation since James 

 was king of both were mutually naturalized in both. The House of 

 Lords and ten out of twelve of the judges of England supported this 

 view. But the Commons would not assent to declare that the com- 

 mon law was as proposed. It was therefore determined to bring the 

 question before the courts. For this purpose land was bought in 

 London in the name of one miscalled Calvin, an infant born in 

 Scotland since the accession of James to the English throne, and 

 a suit was brought in Calvin's name in the King's Bench to gain 

 possession of the free-hold. And a bill was brought in Chancery for 

 detainer of the title-deeds. A demurrer in both cases raised the 

 question in each case whether the plaintiff being an alien born be 

 disabled to bring any real or personal action for land within England. 

 After argument in the King's Bench, both cases were adjourned 

 into the Exchequer Chamber, and there argued by counsel and all 

 the judges of England and Lord Chancellor Ellesmere. The Lord 

 Chancellor and twelve out of the fourteen judges decided the demurrer 

 in favor of the plaintiff on the ground that, having been born since 

 the accession of James, he was not an alien in England. 1 



The first characteristic illustrated by Calvin's Case is that the 

 common law deals with facts. 



Under some systems a hypothetical question can be presented to 

 the judges. In Calvin's Case one might have been framed generally: 

 Is a person born in Scotland since James I became King of England 

 an alien in England? But such a proceeding is not possible by the 

 common law. It was necessary to present to the judges the facts 

 of a real case. There must be parties before the court before it will 

 act. And without them and a specific question to decide, all the 

 utterances of the court are obiter. Bacon said in his argument, " The 



1 Calvin's Case is reported in 7 Rep. 4a (1608). The arguments in committee 

 in 1606 in Moore, p. 790; and both of these, with the argument of Bacon, Solicitor- 

 General, counsel for Calvin, in the Exchequer Chamber, and Lord Chancellor 

 Ellesmere's opinion in the Exchequer Chamber, are in 2 How. State Trials, 

 559-695. 



