<<

. 4
( 9)



>>


and non-foreigners do not seem to render support for these
explanations. For instance, the systematic ban on foreign clerical
candidates' access to ecclesiastical bene®ces would not necessarily
bring gains to the king or enhance his dignity. It would not be
entirely bene®cial to the magnates or ecclesiastical institutions
either. Indeed, the blanket ban against aliens was infringing upon
the rights and liberties of the king and his subjects. If the new
legal argument had been generally accepted and applied, the
immediate bene®ciary would have been the aspiring English
clerical candidates, not the king, nor the magnates, nor the
ecclesiastical institutions.
The growing awareness of national identity has been another
favourite theme associated with the development of the law of
alien status. Professor Maitland was arguing on this line when he
conjectured that there could hardly be such a thing as English
nationality in post-Conquest England, and that the starting point
for the English law of alien status must be sought in the loss of
Normandy. No doubt, the fourteenth-century source materials
would offer a rich ground on which one might pursue and develop
the topic of national identity. But our question is how such a
mode of perception could be translated into a legal argument. We
have seen that the repeated political attack on foreign clerks did
not bring about an immediate change of legal argument. We need
not ask whether the unresponsiveness of the lawyers was due to
their inability or unwillingness. It is suf®cient to point out that a
legal argument based on allegiance or national identity would be
repugnant to the fundamental legal values consistently upheld by
medieval common lawyers. To say that the law of alien status
resulted from the growing awareness of national identity is to run
the risk of psychological determinism. We reject such an argument
for the same reasons for rejecting an argument that economic
relations alone would be suf®cient to explain various historical
changes.
It may seem attractive to argue that the statute of 1383 must be
understood in light of the `historical context' of the Great Schism
and the death of Edward III. The appearance of several popes
®ercely antagonising each other was no doubt a momentous
political event which could provide an impetus for important
reform movements. The end of the long reign of Edward III and
the minority of his successor was no less signi®cant. However,
History
88

how the parties involved would actually make use of this opportu-
nity is something which the so-called historical context cannot
always tell. We know that the magnates and prelates, as well as
Edward III, were not entirely happy with the mechanism of
distribution of ecclesiastical bene®ces,56 and repeated attempts
were made during his reign to change the situation. But the
systematic ban against aliens suggested by the statute of 1383
shows no connection or continuity with the blunt measures
attempted during the reign of Edward III. The new argument is
something that cannot be predicted or explained by looking at the
historical context. The systematic ban against foreign candidates
would infringe upon the rights of the magnates and prelates, not
to mention the king's rights. It would be strange to suppose that
the magnates and prelates would want such a measure now that
the powerful king was dead and the papacy was in deep trouble.
Rather, we are inclined to believe that the so-called historical
context does not allow us to predict the precise direction in which
the lawyers' creativity would take its course at the moment of a
revolutionary legal change. Once the change took place, one may
perhaps explain why it took place in the way it did. In doing so,
however, one may easily lose sight of the fact that at the actual
moment of the change, there could well have been viable alter-
natives. Repeated historiographical attempts to explain the whys
of a change might have the tendency to tint the change with an
aura of inevitableness which was probably not there at the time of
the change.
We do not wish to deny the eloquence of the exhortation that
legal changes should be studied in light of the `real' motives.
Again and again, we have been told that in order to understand the
true meaning of the contemporaries' arguments, we must ®rst of
all study who would gain and who would lose in real terms. But
the vice of explaining a legal change as if it is wholly explainable in
terms of the political, economic, psychological and other contex-
tual parameters, is that we are often left with a wrong impression
that lawyers could say whatever they were asked to say.



Cheyette, `Kings, courts, cures, and sinecures' demonstrates that the clergy had
56

good reason to be unhappy about the legal remedies offered by the common
lawyers during Edward III's reign.
4


FOREIGN RELIGIOUS HOUSES




The one and a half centuries that followed the Norman Conquest
were marked by `a stupendous resurgence of monasticism' in
England. The number of monasteries increased from 61 to about
700 between 1066 and 1215. Countless manors and estates were
transferred to newly created or existing religious houses on both
sides of the Channel for the spiritual well-being of the donor or
the transferor.1 In this chapter, we examine the foreign control of
English lands resulting from these monastic endowments. It may
be a delicate issue to determine the degree of `foreignness' of the
English daughter-houses of various foreign religious orders. We
know that an alien prior could bring an action and the defendant's
plea that the prior was an `alien born' was not allowed. The reason
was that the prior was bringing the action in right of the religious
house, not in his own right (car il port l'action come prior in iure
domus et non in iure proprio).2 Whether cases like this can be
interpreted as showing the existence of a theory of `corporation' in
medieval English law is not an easy question. But at least the case
clearly shows that priors and abbots were regarded as holding the

J. C. Dickinson, The later Middle Ages: from the Norman Conquest to the eve of
1

the Reformation ± an ecclesiastical history of England (London, 1979) p. 95. On the
growth of monasticism during this period in general, we rely on D. Knowles, The
monastic order in England 940±1216, 2nd edn (Cambridge, 1966). On the
monastic endowments of the Norman kings in particular, see E. Mason, `Pro
statu et incolumnitate regni mei: royal monastic patronage 1066±1154' in Religion
and national identity, ed. S. Mews (Oxford, 1982) pp. 99±117. For the organisa-
tional details of the Religious (including canons regular and mendicant orders),
see J. Hourlier, L'Age classique, 1140±1378: les Religieux (Paris, 1973).
R. Brook, Graunde Abridgement, Denizen & alien, pl. 15 (39 Edward III). It may
2

be inferred from this case that if a foreign-born person (alien ne brought an
‚e)
action in his own right (in iure proprio), the defendant could successfully bar the
action by the plea of `alien born'. We discuss the precise meaning of `alien born'
more fully in the following chapter.
89
History
90

land not in the same manner as a lay landholder.3 For the purpose
of this chapter's discussion, it is suf®cient to note that a prior or
monks, as individual human beings, might be born abroad but
that the religious house itself could not be said to be born as
human beings are born. If one envisages a regime (not necessarily
a legal regime) where the place of birth is closely connected to the
distinction between foreigners and non-foreigners, the foreign or
non-foreign status of a religious house is bound to pose dif®cult
questions.
Nevertheless, English daughter-houses of certain foreign reli-
gious orders were frequently referred to as `alien priories'. It
seems that their foreign af®liation, personal composition, organi-
sational and ®nancial dependence were considered as the factors
contributing to their foreignness.4 More importantly, the contem-
porary references to the `alien priories' often include what are
known as `dative priories'. These dative priories acted as bailiffs or
agents of a foreign abbot of a foreign abbey located overseas who
held English lands. All revenues from these lands were collected
and sent abroad by the proctor or bailiff resident in England.
Foreign control of English land was beyond doubt in these cases.5
So far, the history of the law of alien status has been studied
without taking due account of the foreign control of monastic
endowments.6 Of course, the vicissitudes of the English posses-
sions of foreign religious houses have been studied by many
historians.7 But these studies were not focused on the development

For further details, see F. W. Maitland, `Corporation sole' in Maitland ± selected
3

essays, ed. H. D. Hazeltine et al. (Cambridge, 1936) especially at pp. 86±7.
For details, see D. Knowles, The religious orders in England, vol. II (Cambridge,
4

1955) pp. 127, 135; Dickinson, The later Middle Ages, p. 196.
The head of a `dative priory' who merely had the custody of the land as a proctor
5

or bailiff could not even be a party to a lawsuit touching the land. The lawsuit
had to be brought by, or against, the foreign abbot himself. The foreign abbot
could, of course, appoint his attorney in England to whom writs could lawfully
be directed. Year Book, Mich. 15 Edward III pl. 7.
Clive Parry simply alluded to the `curious phenomenon of denization of alien
6

priories' without any discussion. Parry, British nationality law and the history of
naturalization (Milan, 1954) p. 19.
We refer to Chester New, History of the alien priories in England to the con®scation
7

of Henry V (Chicago, 1916); Rose Graham, `Four alien priories in Monmouth-
shire', 35 Journal of British Archaeological Association (1929) 102±21; Graham,
`The papal schism of 1378 and the English province of the order of Cluny' in her
English ecclesiastical studies, (London, 1929) pp. 46±61; Marjorie M. Morgan,
`The suppression of the alien priories', 26 History, NS (1941); Morgan, The
Foreign religious houses 91

of legal argument. Moreover, since their understanding of the
`alien' status of the foreign religious houses was based on an
uncritical acceptance of the conventional view, their otherwise
admirable works turn out to be rather a burden to an accurate
understanding of the law of alien status. We propose to examine
the legal aspect of what has so far been studied as the suppression
of alien priories.



SEIZURES IN MANU REGIS, 1204 ± 1413


The ecclesiastical terrae normannorum
The English lands of the Norman religious houses were taken into
the hands of John on the occasion of the loss of Normandy. It was
probably because the Norman abbots did fealty to Philippe
Auguste and, to use the contemporary legal description, became
`inimici' of John.8 Henry III's seizure of the lands of Norman
religious houses in 1244 appears to have had an identical legal
structure.9 Renowned jurists of the seventeenth century have
argued that the seizure of the Normans' land indicated the subject
status, rather than the alien status, of the Norman tenants. Had
they been aliens, thus reasoned Sir Edward Coke in Calvin's case
(1608), they would not have been able to hold any English land in
the ®rst place. That the king seized their English land only shows

English lands of the abbey of Bec (Oxford, 1946); Donald Matthew, The Norman
monasteries and their English possessions (Oxford, 1962); Benjamin Thompson,
`The statute of Carlisle, 1307 and the alien priories', 41 Journal of Ecclesiastical
History (1990). The list is by no means exhaustive.
The seizure of the lay and ecclesiastical terrae Normannorum in or about 1204 is
8

recorded in Rotuli de oblatis et ®nibus . . ., ed. T. D. Hardy, Records Commission
(1835) p. 335; Rotuli Normanniae . . ., ed. T. D. Hardy, Records Commission
(1835) pp. 122±37. The seizure occasione Normannorum was also mentioned in a
case brought to the king's court a few years later. In that case, payment of money
to Norman monks was described as payment `ad inimicos domini regis ultra
mare'. Curia regis rolls, vol. VI, pp. 85±6 (1210). Philippe Auguste's policy to
demand fealty from the Norman lay and ecclesiastical lords is indicated in the
pope's reply to the Norman bishops dated 7 March 1205. Regesta ponti®cum
Romanorum, 1198±1304, ed. August Potthast (Berlin, 1874) no. 2435.
The seizure is mentioned in Matthew Paris, Chronica majora, Rolls series, 7 vols.,
9

ed. H. R. Luard (1872±83) IV, 288; Close rolls 1242±1247, p. 337; F. M.
Powicke, The loss of Normandy 1189±1204 (Manchester, 1913), p. 423. A detailed
discussion of the legal structure of these seizures will be attempted in ch. 6 below.
History
92

that they did hold land in England and, therefore, were the
subjects of the English king. A few decades later, Sir Matthew
Hale observed that the temporary seizure of the Normans' land
became a permanent removal of land as the war with the French
kings became almost perpetual. This, of course, was the beginning
of the unchallenged historiographical tradition which Professor
Maitland was relying on when he suggested that the English law
of alien status must probably have begun with the loss of
Normandy.
We shall discuss these points in some detail later on. For the
purpose of this chapter's discussion, we simply note that the
seizure of the Normans' lands can be understood primarily as a
feudal legal measure based on the relationship between a lord and
a tenant. Neither Coke nor Maitland seem to have denied this.10
We therefore take this as the starting point of our discussion. It
appears that the seizure in manu regis was one of the most
commonly occurring procedures in the king's legal dealings with
his tenants. For instance, upon the death of a lay tenant-in-chief,
the ®ef was taken into the king's hands until the procedures of
inheritance were completed. Upon the death of a bishop or an
abbot who was a tenant-in-chief, the lands were taken into the
king's hands until they were returned to the new bishop or abbot.
Also, all tenants-in-chief, lay or ecclesiastic, foreign or English,
who incurred the king's displeasure had to be prepared to have
their land taken into the king's hands. Edward I's frequent
seizures of the temporalities of the English as well as foreign
abbots and prelates also seem to have been carried out on this
ground.11 In all these cases, there does not appear to have been

When Maitland suggested that the starting point of the English law of alien
10

status must be sought in the loss of Normandy, he was not arguing that the
seizure of the Normans' land was in itself a legal measure based on alien status.
The seizure was treated as an event providing the momentum for later legal
development which he described as `an exaggerated generalisation of the crown
prerogative'. F. Pollock and F. W. Maitland, The history of English law before the
time of Edward I, 2nd edn, 2 vols. (Cambridge, 1968), I, 463.
In 1294, foreign and English abbots and the clergy recovered the king's
11

protection in return for the grant of a moiety of their bene®ces and goods
(Calendar of patent rolls, 1292±1301, pp. 89±95). The seizure of temporalities of
all the clergy of the realm on 30 January 1297 is recorded in Annales Monastici,
Rolls series, 5 vols., ed. H. R. Luard (1864±9) III, p. 405 (Annales de
Dunstaplia); Bartholomew Cotton, Historia Anglicana, Rolls series ed. H. R.
Luard (1859) pp. 318±19. See also Jeffrey H. Denton, Robert Winchelsey and the
Foreign religious houses 93

any legal difference between the taking of an English tenant's land
and that of a foreign tenant's land. They were tenants all the same.
The seizure did not mean irrevocable loss of the land. During
the period of the seizure, the lands were under royal management.
The king's bailiff would reap all the revenues except for some
allowances necessary to avoid wasting of the lands. If the seizure
was carried out against monastic endowments, suitable provision
had to be made for the sustenance of the monks during the period
of seizure.12 To put an end to such an arrangement and to recover
the seisin of the land, payment of a sum of money, among other
things, was necessary. This was in order to have the goodwill of
the king (pro benevolentia regis habenda).13 Abundant records show
that the king's goodwill knew no limit which a modern-day
lawyer's notion of alien or subject status might impose. The
seizure of the Norman religious houses was quickly ended and the
lands, together with the king's goodwill, were restored upon
payment of a ®ne.14 The following case indicates that the seizures
of John and Henry III did not throw any trace of doubt on the
Norman abbot's ability to hold lands in England. When a Ralph
de Cuylly claimed the manor of Edston (Aetherstone) in Warwick-
shire in 1275, the abbot of Bec-Hellouin vigorously defended his
and his abbey's right in the manor. Through his attorney Richard
de Flaunville,15 the abbot put himself on the grand assize to prove
his right. Upon default of Ralph de Cuylly, judgment was entered

Crown 1294±1313 (Cambridge, 1980) pp. 60, 107±33. The increasingly frequent
seizures of the temporalities of the clergy during the reign of Edward III are
discussed in J. R. L. High®eld, `The relations between the Church and the
English crown from the death of Archbishop Stratford to the opening of the
Great Schism, 1349±1378', Oxford Univ. D.Phil. thesis, 1951, pp. 264±72.
M. Howell, `Abbatial vacancies and the divided mensa in medieval England', 33
12

Journal of Ecclesiastical History (1982) 181±7. I wish to thank Dr Martin Brett
for kindly drawing my attention to this work.
Matthew, The Norman monasteries, p. 77. Morgan, The English lands of the abbey
13

of Bec, p. 120.
Immediately after John's seizure, the prior of Ogbourne recovered the lands of
14

the abbey of Bec-Hellouin upon payment of £100 and a promise that no issues
would be sent abroad. Rotuli de oblatis et ®nibus, p. 314. In the same year, the
prior of Frampton paid 100 marks to recover the custody of the abbey of Caen's
manors. Ibid., p. 199 (5 Oct. 1204). Numerous similar examples are given in
Matthew, The Norman monasteries, p. 73; Powicke, The loss of Normandy,
p. 425.
On 6 January 1275, Richard de Flaunville was appointed the abbot's attorney
15

and proctor-general in England for ®ve years. Calendar of patent rolls,
1275±1281, p. 75.
History
94

for the abbot of Bec-Hellouin and the said Ralph was amerced.
Throughout the case, no one thought it necessary or useful to
investigate the alien or subject status of the abbot or the abbey of
Bec-Hellouin.16


War-time seizures
The outbreak of the war between Edward I and Philippe IV led to
the introduction of tight security measures against certain sus-
pected foreigners. In September 1295, the monks who were under
the power of the French king and of his allies were removed from
places near the sea or navigable waters and relocated to other
houses situated inland. Suitable English clerks were appointed to
watch over them and to make inventories of their assets and
revenues. Their lands and goods were taken into the king's
hands.17 In less than two months, the lands began to be restored
on condition that a ®xed sum of money should be paid yearly
during the war.18 When a de®nite peace was concluded in 1303,
the situation came back to normal again. Most of the arrears of the
heavy yearly farms were pardoned.19
If John's or Henry III's seizures of the land of the Norman
religious houses were examples of feudal legal measures which
were based on the relationship between a lord and a tenant,
Edward I's seizure was a war-time sequestration of enemy assets.
In neither case does the notion of alien status seem to have played
any part. Edward I's seizure of 1295 was applicable to the foreign
religious and laymen who were under the power of the French
king or his allies only. It has already been carefully studied and

Select cases in the court of King's Bench under Edward I, vol. I, 55 Selden Society
16

(1936), pp. 16±19.
Calendar of ®ne rolls, 1272±1307, pp. 362±6; Calendar of close rolls, 1288±1296,
17

pp. 458±9. Details of the ®nancial contribution exacted from these priories in
1294 are discussed in Thompson, `The statute of Carlisle', pp. 554±5.
On 14 November 1295, the bailiff of Warminghurst recovered the lands of the
18

abbey of Fecamp upon payment of a ®ne. PRO E 106/3/19, mm. 4, 5. The

reference is from Matthew, The Norman monasteries, p. 86. On 15 December
1295, the prior of Ogbourne recovered the lands of the abbey of Bec-Hellouin
on a similar condition. Numerous other `alien' priories followed suit. Calendar
of patent rolls, 1292±1301, pp. 175±7.
PRO E 106/4/18, PRO Ancient correspondence, XXVIII, 75. The reference is
19

from Thompson, `The statute of Carlisle', p. 555. See also Morgan, The English
lands of the abbey of Bec, p. 122.
Foreign religious houses 95

demonstrated that manors, churches and hospitals belonging to
the mother-house or abbey which was not under the power of the
French king were not treated as `alien' priories.20 The so-called
`alien' priories were in fact `religiosi alienigena de potestate regis
Franciae'.21 Sometimes, alienigena was dropped and they were
called simply `religiosi de potestate regni Franciae'.22 The reason
for the seizure appears to have been their enemy status, which
must be sharply distinguished from their alien status.
It may be unwise, it is true, to emphasise too much that the
war-time seizure was not applicable to the foreign religious houses
which were not deemed to be under the power of the French king.
The relative security enjoyed by the daughter-houses of the
Cistercian, Premonstratensian or Carthusian orders may equally
be explained by the fact that their monks were mostly English.
But the following remarks of D. Knowles must not be overlooked
either: `[T]he Cistercians here never attempted ± as the Cluniacs
. . . attempted with success ± to cut themselves loose from overseas
control.' `The provinces, and in particular the English Province
[of the Carthusian order], never became self-consciously nationa-
listic and independent.'23 The point is that during the period
which concerns us, there was simply no clear-cut legal distinction
between alien and subject status applicable to foreign religious
houses in England. There was no such legal distinction because
the existing rules derived from the feudal legal relationship and
the ancient rules of war-time seizure and reprisal already provided
a suf®cient ground to seize the lands belonging to the religious
houses concerned. It is a truism requiring no emphatic assertion
that until and unless there arises a pressing need, no new legal rule
will be invented. But, nevertheless, the truth needs recalling from
time to time.
In time of peace, however, the French abbeys, not to mention
other foreign religious houses, enjoyed full rights in their English
lands.24 The contemporary records provide ample evidence. We


New, History of the alien priories, ch. 2.
20

PRO E 106/3/10, 11. Quoted from Thompson, `The statute of Carlisle', p. 555.
21

Cotton, Historia Anglicana, p. 259.
22

Knowles, The religious orders, II, pp. 127, 135.
23

Thompson, `The statute of Carlisle', p. 560; Matthew, The Norman monasteries,
24

pp. 85ff.; and Morgan, `The suppression of the alien priories', p. 209 all agree
that French abbots could recover their lands upon concluding of a peace.
History
96

refer to an instruction which the prior of Frampton gave to his
attorney in 1303. The attorney was told to receive the lands
belonging to the abbot of Caen from the Chancellor and to do all
other things which the concluding of the peace dictates and
requires (que forma pacis inter dictos reges . . . exigit et requirit).25 A
similar war-time seizure was carried out in 1324±7. Again, we see
that in May 1328, the abbot of Ivry was restored to his lands with
their issues as from 11 April 1327, because, on that day, peace had
been signed between England and France.26 These cases make it
impossible to establish any connection between the war-time
seizure and the law of alien status. One of the essential features of
the legal treatment of aliens is that the argument for the denial or
restriction of their access to local resources is self-suf®cient, and
does not depend on military or other external events.
The war with French kings broke out intermittently in Edward
III's reign. Similar war-time measures were repeated in 1337±60
and 1369±77.27 The underlying legal reasoning remained un-
changed. It is important to note that throughout this period,
numerous foreign religious houses and their daughter-houses
continued to buy English lands in intervals of peace. In short,
`[t]he war did not ®ll them [Norman monasteries] with foreboding
or make them less optimistic that they would enjoy their English
property for ever'.28
Letters patent issued to Cluniac cells in the reign of Edward III
must be understood against the backdrop of these war-time
measures. In 1351, the prior of Lewes obtained exemption from
war-time aids after having endowed the king with several advow-


PRO Ancient correspondence, XXVIII, 75. Quoted from Matthew, The
25

Norman monasteries, p. 86.
For the seizure during 1324±7, see Foedera . . . , ed. T. Rymer, Records
26

Commission 4 vols (London, 1816±69) IV, pp. 87, 96; PRO E 106/5/2 mm. 1,
3. Regarding the restoration of lands to the abbot of Ivry, see Calendar of close
rolls, 1327±1330, p. 284.
For 1337±60: Foedera, IV, 777; Calendar of ®ne rolls, 1337±1347, pp. 28ff.;
27

Calendar of patent rolls, 1334±1338, pp. 483±4. For 1369±77: Rotuli Parliamen-
torum, 6 vols. (London, 1767±77) II, p. 302. These seizures generated a number
of year book cases concerning the king's exercise of the advowsons belonging to
the `alien' priories while their lands were in the king's hands because of the
wartime seizure. For references, see note 26, ch. 3 above.
Matthew, The Norman monasteries, p. 103. From Patent rolls between 1282 and
28

1350, he ®nds many examples of `alien' priories obtaining the licence to acquire
lands in mortmain.
Foreign religious houses 97

sons worth 200 marks per year.29 Letters patent issued to the prior
of Thetford in 1376 make it clear that the burden of seizures and
aids, from which the prior sought exemption by paying £100, was
to last during the war only.30 In both cases, it is true, the letters
patent stated that the recipient shall be reputed `indigene'.31 This
term has been translated into `denizen', and these letters patent
have been unquestioningly regarded as letters of denization.
However, as we have already argued at some length, it would be
quite inappropriate to render `indigena' into `denizen'.32 No
de®nite set of privileges or disabilities was yet attributable to the
concept of `indigena' or `alienigena'. These terms were used as
factual epithets describing one's provenance. The precise legal
effects to be given to this factual attribute depended on the
particular circumstances in which these descriptions were used. In
the case of the letters patent issued to Cluniac cells, the legal
signi®cance of the term `indigena' must be understood in connec-
tion with the war and the enemy status of the recipients. It had
little to do with alien status.
The death of Edward III in June 1377 brought some change. As
soon as Parliament met on 13 October 1377, the Commons
succeeded in implementing a proposal which had been put
forward for quite some time. The following measures were agreed
upon in that Parliament: (1) certain Frenchmen, monks as well as
laymen, were to be expelled from the realm and were not to be
allowed to return while the war continued; (2) the religious service
to be performed in the priories thus evacuated was to be per-
formed by English monks during the war; (3) the parish churches
belonging to these foreign religious houses were to be farmed out
to suitable (English) clerics for the duration of the war; and (4) the
lands of these foreign religious houses were to be farmed out for
the duration of the war to anybody offering the highest bid.33

Calendar of patent rolls, 1350±1354, pp. 47±8.
29

Calendar of patent rolls, 1374±1377, p. 301. In addition to the exemption from
30

the wartime aids, the letters also provide that `in time of war they [the prior and
convent of Thetford] shall render to the king the 1 mark which in time of peace
they ought to pay yearly to the house of Cluny' (emphasis supplied).
See PRO Patent rolls, 25 Edward III, part 1, m. 27; 50 Edward III, part 1, m. 5.
31

See above, p. 46.
32

Rotuli Parliamentorum, III, pp. 22±3. The proposal for expulsion of Frenchmen
33

to make way for English monks had already appeared in 1346. Ibid., II,
pp. 162±3. It was repeated in 1376: `pur le temps q la Guerre se dure q touz lez
History
98

Perhaps the harshness of these measures re¯ected the chaotic
situation which followed the death of the long-reigning king and
the minority of his successor. The expulsion of foreign monks and
the regrant of the temporalities to lay farmers probably went
beyond the established pattern of war-time treatment of alien
priories which was particularly concerned about meticulous
guarding of landholders' interests and protection of spiritual
services by keeping the possessions of the Church from the hands
of laymen.34 Still, however, these measures were subject to the
proviso, `during the war (durant la Guerre)'. The essential simi-
larity with Edward I's war-time seizure was thus maintained.
To confuse the war-time treatment of enemy with the perma-
nent discrimination of alien is to miss the point altogether. Also, it
is not of much use and, in our view, is probably wrong, to say that
the law of alien status grew out of the war-time measures applic-
able to enemies. Wars have existed ever since the beginning of
history. Seizures of persons and properties based on the notion of
retaliation or reciprocity have an equally long history.35 We
wonder why the `metamorphosis', if any, from the war-time
treatment of enemy to the permanent discrimination of alien did
not take place much earlier or much later.
Upon his accession in 1399, Henry IV vowed that `it es noght
my will that no man thynk yt [= that] be waye of Conquest I wold
disherit any man of his heritage, franches, or other ryghtes that
hym aght to have, no put hym out of that that he has and has had
by the gude lawes and customes of the Rewme'. As part of the
general restoration policy, the order of 1377 was rescinded and the
lands were restored to the foreign religious houses.36 A petition
submitted by the Commons in 1410 seems to indicate that the
`gude lawes and customes of the Rewme' were still that the foreign
abbots were the tenants who could sell or otherwise dispose of the

Franceoys soient bannes & oustes del Roialme'. Ibid., II, pp. 342±3. But none
of them were allowed during the reign of Edward III.
Morgan, `The suppression of the alien priories', p. 207. It is true that the lands
34

of some foreign priories were occasionally regranted to lay farmers during the
reign of Edward III. But they were exceptions, rather than the rule. Matthew,
The Norman monasteries, p. 109.
See Pierre-Clement Timbal, `Les Lettres de marque dans le droit de la France
‚ Á
35

medievale' in L'Etranger, part 2 (Brussels, 1958) pp. 108±38.
‚‚
Rotuli Parliamentorum, III, p. 423; Foedera, VIII, pp. 101±2; Calendar of patent
36

rolls, 1399±1401, pp. 70±2, 80±1.
Foreign religious houses 99

lands which were seized in the king's hands because of the war.
The petition warns that if the lands were returned to the foreign
abbeys upon concluding the ®nal peace, the king could no longer
expect to enjoy the windfall of wardship, marriage and other
pro®ts because the religious houses never die or have children.
The petitioners suggested, however, that the lands which his
subjects acquired from the foreign abbots during the seizure
would continue to yield such pro®ts for the king even after the
war. Considering this, it was proposed, the king should give
licence to his subjects to cross the sea to bargain and purchase the
English manors, lands, etc. from French abbots (passer la meer
vers les parties de dela pur la bargaigner & purchacer des ditz Aliens
. . . ascuns des ditz Manoirs, etc.). It was the best time to buy ±
rather than seize ± lands from the foreign landholders!37



A NEW APPROACH ± 1414

In 1413, seizure of the lands of the foreign religious houses was
done for the ®rst time without any reference to the war. Instead, it
was proclaimed that the lands were to be seized in relief and
support of the communities of the realm (en reliefment & supporta-
tion de les Communes). In the following year, it was ordained that
the lands of the alien priories should remain in the hands of the
king and his heirs forever because restoring them to the foreign
religious houses upon concluding peace would be damaging to the
realm and to its people.38
Was it a new argument, or an old argument which had until
then been set aside because of some extra-legal considerations?
The question cannot be adequately dealt with until after we have


Rotuli Parliamentorum, III, p. 644 (`Et en cas q . . . fynal Pees soit fait . . . Vous
37

ne prendrez ascune pro®t des ditz Manoirs, Seigneuries, Terres . . . des Aliens
avaunt ditz, esteantz en lour mayns propres . . . forsq tant soulement de ceux de
voz liege q purront purchacer ascunes des Manoirs . . . come de Gardes,
Mariages, et pur Fyns des Alienations, et plusours autre pro®tz q adonqs
appartinedront et deviendront a Vous a cause des purchacez').
Rotuli Parliamentorum, IV, pp. 13 (1413), 22 (1414). The petition of 1414 also
38

recites that at the beginning of the war, the English subjects were permanently
disinherited from their possessions in France by a judgment rendered in France.
I did not, however, have the opportunity to verify the accuracy of this
statement.
History
100

examined the full range of late medieval common lawyers' argu-
ments employed in dealing with other types of foreigners (i.e.,
foreign merchants, foreign clerks, foreign lay landholders) as well.
However, the theoretical structure of the arguments advanced in
1413 and 1414 deserves a few comments.
First, it is curious to see that those ordinances did not claim that
the king had any `right' to keep the lands. According to the text,
the lands should remain with the king and his heirs not because
the king had a lawful claim to the lands and therefore to be
deprived of them would constitute an injury to him and his heirs,
but simply because it would be better that way for the people and
for the communities of the realm. This is remarkable all the more
because historians have for so long explained that an alien's
inability to hold English land was the offspring of the crown
prerogative. Since the essential features of the prerogative escheat
(one of the king's proprietary claims as an exceptional feudal lord)
had long been established by the time of those ordinances, we may
expect that a legal argument for permanent removal of lands from
foreign religious houses ± if it indeed grew out of prerogative
escheat ± should at least make some reference to this `lawful' claim
of the king. The ordinances of 1413 and 1414 completely fail to
meet the expectation.
Second, the ordinance of 1414 claims that restoring the lands to
the foreign religious houses would be `damaging' to the realm and
its people (damage & perde aviendroient a votre dit Roialme & a
votre people). Damage to others is, of course, a familiar ground for
imposing legal sanctions upon a person responsible for the
damage. But foreign religious houses' control over their lands, as
demonstrated by the petition of 1410, was based on their position
as `lawful' tenants. In this case, one cannot claim damage or loss
with regard to, or arising from, their lawful control of the land
unless one has an overriding or at least an equally valid legal
claim. Now, what lawful claim could the communes or the people of
the realm have in regard to the lands belonging to the foreign
religious houses? On what ground could the people of the realm
possibly claim `damage' or `loss'? What rights (iura) did they have
for those lands?
What we see here is again how the rigour and the logical
coherence of medieval jurisprudence were being molli®ed by
emotional claims invoking `relief and support of the communities
Foreign religious houses 101

of the realm'. Foreign religious houses' claim for their English
lands was ®rmly grounded upon their legal position as tenants.
This means that they could count on the legal bond instituted by
homage. As Glanvill explains, homage creates the `bond of ®delity
(®delitatis connexio) between the lord and the tenant'. Bracton
further stresses that this bond of mutual faith is legally recognised
and protected. He thus refers to it as a `bond of law (vinculum
iuris)'.39 The lawful tenant's control of the land is guaranteed by
the binding power of this personal relationship. The ordinance of
1414 purports to sever this personal legal bond between foreign
religious houses and their respective lord so that lands can be
permanently removed from the foreign tenants.
Medieval common lawyers recognised two ways in which a
tenant might lose control of the land. The ®rst was with a judicial
sentence. A formal conviction of felony, for example, would
permanently tear asunder the legal bond between the lord and the
tenant and, as a result, the latter would lose lawful control of the
land. The second way was without a judicial sentence. In this case,
the loosening of the legal bond was temporary. If, for instance,
there were uncertainties about inheritance, the lord might take the
land into his hands until the question of inheritance was lawfully
settled. Also, if a tenant was suspected of a wrongdoing against the
lord, the lord might, without a judicial sentence, take the land into
his hands to compel the tenant to appear in his court.40 During the
war, of course, certain enemy assets might be temporarily taken
into the king's hands. The ordinance of 1414, however, introduces
a wholly new ground to sever the legal bond created by homage:
relief and support of the communities of the realm. According to
the ordinance, foreign religious houses were to be permanently
(pur toutz jour) deprived of the control of their English land
without any judicial sentence. This is an innovative and unprece-
dented argument. As far as I know, it had never before been
claimed and openly accepted that the vinculum iuris between a lord
and a tenant might be torn forever asunder without a judicial
sentence. Of course, if a tenant died without an heir, the lord
would permanently be released from the tenurial obligation; and

Glanvill, lib. 9, c. 4; Bracton, II, p. 228. See also Fleta, vol. III, 89 Selden
39

Society (1972) p. 38.
For further details and references, see Keechang Kim, `Etre ®dele au roi:
Á
40

XIIe±XIVe siecle', 293 Revue Historique (1995) 241±2.
Á
History
102

no judicial sentence would be necessary for this to happen.
Religious houses, however, never die.
Legal historians have paid virtually no attention to the signi®-
cance of the inexplicable `leap' from the temporary seizures to the
permanent removal of the lands of foreign religious houses.
Inexplicable as it is, the leap is a clear sign of the revolutionary
change of argument structure which distinguishes medieval jur-
isprudence from modern jurisprudence. The crux of the argument
contained in the ordinance of 1414 is that a person's ®rmly
established legal position may be overridden by some such vague
consideration as reliefment & supportation de les Communes. As far
as I know, no medieval jurists would have willingly embraced
such a radical claim. Few modern jurists, on the other hand,
would ®nd the considerations of public interest too vague and
unwieldy for legal analysis.
We cannot stress too much that the idea of systematic legal
discrimination against aliens must have been a radically new idea
when it was initially introduced. Just like any other radical
proposals for social and legal change, its implementation would
require a comprehensive change of the existing resource distribu-
tion pattern. No new step in the law of personal status may be
trodden without trampling on somebody else's vested interest.
Each new step would require forcible removal of resources from
certain groups of people who, until that moment, had never
doubted the validity and legality of their claim. It is idle to expect
that such a legal change could be accomplished overnight. As late
as the middle of the ®fteenth century, we see French abbots
attempting to bring their `lawful' claims as tenants of English
lands. They probably did not realise that they were already living
in an age where `law' did not matter as much as `faith' in our lord
the king.41

Matthew, The Norman monasteries, pp. 120±42; Morgan, The English lands of
41

the abbey of Bec, p. 131, note 3 for further references to the claims put forward
by French abbots. I wish to thank Dr M. Chibnall (Morgan) and Dr Martin
Brett who read an earlier draft of this chapter and provided me with valuable
comments and warm encouragement.
5


BIRTH BEYOND THE SEA




So far, we have discussed foreign merchants' acquisition of land
and mercantile liberties, foreign clerks' control of ecclesiastical
bene®ces and foreign religious houses' legal position as tenants of
lands in England. Up until now, we have been able to avoid the
question of inheritance because we were focusing on foreign
merchants' initial acquisition of land and mercantile liberties;
because ecclesiastical bene®ces were not treated as inheritable
during the period that concerns us; and because religious houses
do not die or have children. Discussion of lay landholding
relationships, however, will invariably fall back on the question of
descent and inheritance. We discuss it now.



PROOF OF DESCENT

Sir Anthony Fitzherbert, a renowned Common Pleas judge in the
sixteenth century, made the following remark on the signi®cance
of the writs in the common law: `Note that the writs are the
principal and primary things in our law, by which man recovers
what has been wrongly detained from him, and they are the
foundation of each lawsuit.' To commence a procedure, the
learned judge added, one ought to have a good writ, for otherwise
all the rest would be worthless.1 What is a good writ? The answer
will amount to a full history of the development of the common
law. Fitzherbert was certainly not interested in the historical

Diversite de courtz et lour iurisdictions et alia necessaria et utilia (printed by R.
1

Redman in 1523) fo. C.4 (`Nota que les brefes sount les principalx et premer
choses en nostre ley, per queux home rec. ceo que a tort luy est deteyn, et le
foundation de chescun sute . . . vide quant home comence son sute, que le bref
soit bon, ou tout qui ensuer ne vault riens').
103
History
104

investigation of the writ procedures and the development of the
common law. Nevertheless, his statement is broad enough to
throw light on the situation of post-Conquest England, which
must be brie¯y sketched to prepare the ground for the discussion
of this chapter.
Before royal writs were regularly used for judicial purposes,
they were often used to communicate the king's executive
command in post-Conquest England.2 The parties involved in a
land dispute often appear to have resorted to this expedient, non-
judicial means of settling the dispute. The executive writ of this
kind would specify the parties, the location of the land in dispute,
the allegation of wrongful detainment and the king's command to
restore the seisin:
William, king of the English, to R[anulf], brother of Ilger, greeting. I
command and order you to let abbot Herbert have the half hide of land of
Sawtry which Ailwin the reeve has held and which Walter de Beaumais
now holds by force, as I have ordered by my writ. And see that I hear no
further complaint thereof for default of right on £10 forfeiture.3
The message was clear: instant satisfaction. Perhaps the king was
here exercising his power as the feudal lord of the land under
dispute. In such a case, the line between adjudication and admin-
istration was perhaps not always easy to draw. But at least what
one can say with con®dence is that the exercise of power to
maintain peace and order did not yet have to be always justi®ed by
formal procedures supervised by the king's justices. The birth of
the common law was yet to be seen.4
A common law writ may, to some extent, resemble an executive
writ:
The king to the sheriff, greeting. Command N that justly and without
delay he render to R one hide of land in such and such a vill, whereof the
said R complains that the said N deforces him. And if he does not do this,
summon him by good summoners that he be before me or my justices on
the morrow of the second Sunday after Easter at such a place to show why
he did not do it. And have there the summoners and this writ.5


Royal writs in England from the Conquest to Glanvill, 77 Selden Society (1958±9)
2

pp. 177±94.
Royal writs in England, p. 444, no. 63 (c. 1087±91).
3

R. C. van Caenegem, The birth of the English common law, 2nd edn (Cambridge,
4

1988) ch. 2.
Royal writs in England, p. 437, no. 50 (the specimen writ is from Glanvill, lib. 1,
5

c. 6).
Birth beyond the sea 105

One of the features which distinguish a common law writ from the
earlier executive writs is the phrase which anticipates non-compli-
ance with the king's command (`if he does not do this. . .'). The
party's non-compliance sets in motion the formal procedures for
proof of the claim before the king's justices. The proceedings
commenced by the above-quoted writ revolved around the ques-
tion of descent and inheritance. According to the legal language of
the time, the demandant is claiming what is his right and his
heritage (son droit et son heritage). The proof of this claim must be
done by tracing the good descent from an ancestor who once had
the land rightfully.6
In our view, legal consequences of foreign birth must be under-
stood in light of this development of the common law and writ
procedures in post-Conquest England. While the parties were
allowed to resort to non-judicial, executive means to resolve their
land dispute, it would be nonsensical to discuss the `legal' con-
sequences of foreign birth. The discussion becomes meaningful
only when judicial proof of the party's claim was regularly
required as a condition for granting an of®cial remedy for private
grievances. Birth beyond the sea, however, could not have posed
legal dif®culties in claiming inheritance while the discovery of
judicial truth relied on ordeal (judicial combat) or other super-
natural divinatory force.
The brilliant success of inquest, which was welcomed as a new
mode of proof, brought an important change. A decisive legal
reform, which led to an extensive use of inquest, was accomplished
by Henry II when he introduced four petty assizes in the late
twelfth century.7 The question of descent maintained its impor-
tance in one of these assizes. The writ for the assize of mort
d'ancestor, for example, had to specify the location of the land, the
command to summon twelve free and lawful men from the vicinity
of the land (duodecim liberos et legales homines de uisneto de illa
uilla), and the following questions to be put to these men:
`Whether O the father of G was seised in his demesne as of his fee

S. F. C. Milsom, Historical foundations of the common law, 2nd edn (Toronto,
6

1981) pp. 124±34. Elsie Shanks (ed.), Novae Narrationes, 80 Selden Society
(1963) pp. xxxi±xxxix (Milsom's introduction).
Development of petty assizes is attributed to the Assize of Clarendon (c. 1166)
7

and the Assize of Northampton (1176). Van Caenegem, The birth of the English
common law, pp. 40±50.
History
106

one virgate of land in that vill on the day he died and whether the
said G is his next heir'.8 The remaining three petty assizes were
not immediately concerned with the question of descent. But the
party who lost in a possessory assize could always bring the matter
of right, as opposed to possession, back to the local or the king's
court. Then the question would again be discussed in terms of
descent and inheritance.
By the end of the twelfth century, it was clear that discovery of
judicial truth could no longer rely on ordeal or oath. Already,
procedural requirements of oath (wager of law) had become so
elaborate that except in some narrowly de®ned areas, proof by
oath had lapsed into virtual disuse by then. Ordeal was de®nitively
abolished in England following the decree of the fourth Lateran
Council (1215) which forbade the clerical participation in the
ceremony.9 Judicial combat was still a legitimate method of
proving one's right. But in judicial proceedings commenced by a
writ of right, the tenant could avoid battle by choosing the grand
assize. If, moreover, the demandant started out by putting himself
upon the grand assize, the outcome of the case must `stand or fall
by the assize'. Clearly, inquest was the preferred method of
proof.10
If the inquest (grand assize), rather than battle, was chosen as
the method of proving the party's right and inheritance, the
proceedings commenced by a writ of right would be stopped upon
production of a writ of peace sued out by the tenant. The
demandant would have to purchase another writ for summoning
four knights from the neighbourhood. These four knights would
then elect twelve knights of the same neighbourhood (duodecim
legales milites de eodem visneto qui melius veritatem sciant) who were
to declare on oath which of the parties had the greater right in the


Glanvill, lib. 13, c. 3 (`Si O pater predicti G fuit saisitus in dominico suo sicut
8

de feodo suo de una uirgata terre in illa villa die qua obiit . . . si ille G
propinquior heres eius sit'). For variations, see cc. 4±6.
F. Pollock and F. W. Maitland, The history of English law before the time of
9

Edward I, 2nd edn, 2 vols. (Cambridge, 1968), II, p. 601 (`In the twelfth
century, such elaborate forms of asserveration had been devised [for oath-taking]
that rather than attempt them, men would take their chance at the hot iron'), II,
599 (abolition of ordeal).
Glanvill, lib. 2, c. 6. Glanvill extolls the virtues of grand assize and compares
10

them with the drawbacks of judicial combat (lib. 2, c. 7).
Birth beyond the sea 107

land in question.11 Whether it was a question of right or of
possession, therefore, the inquest of the neighbours (the grand
assize of knights or the petty assize of free-men) became the most
important means of proving the party's claim to the land under
dispute. From then on, foreign birth would be problematic.



PROCEDURES OF INQUEST

Real estate management in the Middle Ages required, among
other things, a careful surveillance over the tenants' deaths. Upon
death of a tenant, the following circumstances had to be investi-
gated before the next legal step could be taken: Were there heirs?
Were they legitimate? Were they male or female? How old were
they? Various legal consequences (escheat, admittance of the heir
to the land, payment of relief, wardship and marriage) depended
on the outcome of these investigations.
According to Glanvill, a lord could take the ®ef of the deceased
tenant into his hands if there were uncertainties about who should
be admitted as the rightful descendant. The lord might retain the
®ef until the question of descent was lawfully proved to him. The
proof had to be done in adversarial trial proceedings commenced
by the party claiming to be the rightful descendant.12 The king,
however, enjoyed a special protection for his feudal interests. Fiefs
held in-chief (i.e., directly from him) were automatically taken
into the king's hands upon the tenant's death even if there was no
doubt as to the rightful heir. Circumstances relevant to inheritance
were then investigated by the king's escheators. The popularity of
inquest was not limited to adversarial trial procedures. The
investigation conducted by the king's escheators also relied on the
inquest of the neighbours to resolve doubts relating to the descent
and escheat of the land held in-chief.13
Whether in adversarial trial proceedings or in the non-


Glanvill, lib. 2, cc. 7±9. Our explanation assumes the case where the grand
11

assize is chosen by the tenant. Glanvill also gives an explanation of the
procedures where the demandant started out by putting on the grand assize.
Glanvill, lib. 7, c. 17; lib. 9, c. 6 respectively.
12

Glanvill, lib. 9, c. 6 (Hall, p. 110); Calendar of inquisitions miscellaneous, passim.
13

Select cases in the court of King's Bench under Edward I, vol. I, 55 Selden Society
(1936) pp. 139±40.
History
108

adversarial fact-®nding sessions supervised by the king's eschea-
tors, the inquest to prove the heir's age and proximity of blood
had to rely on personal attestation of the neighbours. Quite often,
a person would have been born in the neighbourhood of the land
which later involved him in legal disputes. Glanvill revealed this
presumption when he explained that a person's age should be
proved by `eight free and lawful men from the neighbourhood of
that vill, where the tenement in question lies'.14 What if, however,
the person was born in a county which was different from the
county where the judicial proceedings were pending? Could the
jury from the vicinity of the land give a verdict on the age of a
person born in a different county? The answer was partly provided
by Glanvill himself, who stated that the verdict of an inquest
ought to be based on the ®rst-hand knowledge of the jurors.15 An
exemplary writ from a fourteenth-century register of writs makes
it clear that the age of John `who was born at L in the county of
Leicester and baptized in the church of the said vill' had to be
proved by `the oath of knights as well as of other trustworthy [and
lawful] men from that neighbourhood (de visneto illo)'. The king's
escheator was commissioned to proceed to the county in which the
said John was born in order to conduct the inquest. We also have a
source which demonstrates that the proof of age of a person
claiming the inheritance of lands in Cornwall and Devon was done
in Ireland where the person was born. The king's escheator had to
cross the sea to conduct the inquest.16 The same principle was

Lib. 13, c. 16 (`octo liberos et legales homines de visneto de illa villa ubi petitum
14

tenementum est').
The only exception, according to Glanvill, was the statement of one's father
15

which was made under exceptionally credible circumstances: `The knowledge
required from the jurors is that they shall know about the matter from what they
have personally seen and heard, or from statements which their fathers made to
them in such circumstances that they are bound to believe them as if they had
seen and heard for themselves' (`Ad scientiam autem eorum qui super hoc iurant
inde habendam, exigitur quod per proprium uisum suum et auditum illius rei
habuerint noticiam, uel per uerba patrum suorum et per talia quibus ®dem
habere teneatur ut propriis).' Lib. 2, c. 17. Severe punishment measures awaited
those who swore rashly (i.e. without the required ®rst-hand knowledge of the
matter) in the grand assize. Lib. 2, c. 19.
Early thirteenth-century registers of writs, 87 Selden Society (1970) pp. 244±5
16

(`qui apud .L. in comitatu Leyc' natus et in ecclesia eiusdem ville baptizatus fuit
. . . sacramentum tam militum quam aliorum proborum [et legalium hominum]
de visneto illo'). The writ is from a register of writs in the Bodleian Library
which G. D. G. Hall dates between 1318 and 1320 (pp. lv±lxi). See also
Birth beyond the sea 109

maintained in adversarial trial procedures as well. The difference
was that in the case of a trial it was the jurors who had to travel.
The demandant suing for the right or possession of a land took the
responsibility to have the original writ directed to the sheriff of
the county in which lay the land under dispute. It was an
important procedural requirement which facilitated summoning
of the competent jury, viewing of the land, and execution of the
judgment. The original writ for a possessory assize, for example,
contained a clause for summoning the jury from the vicinity of the
land under dispute. When the parties met in the courtroom,
therefore, the twelve men were expected to be already there, well
informed of the case. If, however, the age or proximity of blood of
a person who was born in a different county had to be decided, the
present assize could not try the issue. The party who was pressed
to prove these points ought to obtain the writ venire facias which
must be directed to the sheriff of the county in which took place
the event at issue (birth, for example). Upon receipt of the writ,
the sheriff would summon the twelve free-men with the ®rst-hand
knowledge of the event and command them to travel to the county
in which the case was pending so that they could give their verdict
there. Statutes dealing with ®nancial requirements of jurors
clearly anticipated the situation where jurors had to travel to a
different county to give their verdict. Those who were to be
empanelled in such an inquest had to meet higher ®nancial
requirements than the jurors who did not have to travel outside
the county to give their verdict.17
Year book cases con®rm our argument. One example should
suf®ce. The demandant in a land dispute stated that when a Joan
died without an heir of her body, the manor went to Maunser, her
brother. The demandant was a grandson of Maunser. The claim
was based on his descent from Maunser. The tenant pleaded that
Joan had issue born in Lancashire and that an heir from that issue
was still alive in the said county. The tenant offered to prove this

Calendar of Inquisitions miscellaneous, 1±7 Richard II (1377±1384) no. 350
(proof of age done in Ireland).
Fitzherbert's explanation of the writ venire facias does not explicitly deal with
17

the situation where the jurors from one county have to travel to another (Natura
brevium, fo. 206: `[the writ venire facias] est briefe direct al vicount q il fac. venir
xii loyalx homes et dignes de mesme le pais pur passer et doner lour verdit sur le
dit issue pris'). But see Statute of Westminster II (13 Edward I) c. 38 (1284);
Statute 21 Edward I (1292) for the differential ®nancial requirement.
History
110

by a jury from Lancashire. The demandant responded that Joan
died without heir of her body in Berkshire and offered to prove
this by a jury from Berkshire. The outcome of the case is not clear
from the record. But Bereford J remembered in the case that in an
assize of mort d'ancestor held in Kent, the jurors responded that
they did not know if the demandant was the heir because he was
not born among them. The court therefore had to order an inquest
to be taken in the place where the demandant was born.18
All these are pointing to one thing: unlike in France, the
inquest in England persisted as the inquest of the neighbours
(inquisitio patriae). Jurors were required to have ®rst-hand knowl-
edge of the event about which they were to give a verdict.19
Belknap CJ explained this as follows: `In an assize in a county, if
the court does not see six or at least ®ve men of the hundred where
the tenements are, to inform the others who are further away, the
assize will not be taken. A multo fortiori, those of one county
cannot try a thing which is in another county.'20 If an inquest
assumed to take cognisance of an event transpired in another
county, the jurors were liable to be punished by attaint.21 In a case
recorded in Coram rege roll (1285), the defendants pointed out that
the king's escheator should not have conducted an inquest to
prove the age of a foreign-born person: `Nec videtur eis quod

Year Books of 3±4 Edward II 1309±1311, 22 Selden Society (1907) p. 151, pl.
18

46 (writ of cosinage).
Ãte
The enque in France took a different course of development under the
19

overwhelming in¯uence of the Canon law. According to Maitland, this diver-
gence is one of the grand problems in the comparative legal history between
England and France. Pollock and Maitland, The history of English law, II,
p. 604. For the expression inquisitio patriae, see Statute 12 Edward I (Statute of
Wales) c. 8. Statutes repeatedly stress that immediate, ®rst-hand knowledge is
required. Statute 28 Edward I, Art. sup. cart. c. 9; Statute 34 Edward III c. 4
(les plus procheins); Statute 42 Edward III c. 11 (q ont meillour conissance de la
verite et pluis proscheins). The terminology was probably derived from Glanvill,
lib. 2, c. 17 (`duodecim legales milites de eodem visneto qui melius veritatem
sciant').
Le livre des assises et pleas del Corone (Liber assisarum) (London, 1679) 48
20

Edward III, pl. 5. Quoted from James Thayer, A preliminary treatise on evidence
at the common law (London, 1898) p. 91. The same principle had already been
stated by Justices Malory and Brabazon in 1313. The eyre of Kent, 6±7 Edward
II, 1313±1314, vol. I, 24 Selden Society (1909) pp. 127±8.
See the cases classi®ed and explained by John Rastell under the heading, `Ou
21

enquest prend conusance de chose fait en auter counte sur peyn de attaint ou des
chose espirituelz et ou de record' in his Tabula libri magni abbreviamenti librorum
legum Anglorum (London, 1517) `enquest'.
Birth beyond the sea 111

inquisicio debet ®eri de etate alicuius probanda nati in transmar-
inis partibus.' The jurors were therefore resummoned to certify to
the king about `certain matters touching their original testimony
(de quibusdam articulis inquisiciones illas tangentibus)'. The record
ends there.22 But if the jurors were found guilty of rashly swearing
the foreign-born heir's age without ®rst-hand knowledge, they
would face severe punishment.
In my view, a foreign-born person was left with no adequate
means to defend himself from allegations regarding under-age or
proximity of blood. The inquest, which had to be taken in the
birthplace, was impossible because the king's writ could not run
beyond the sea. In 1321, for example, we see Herle J confronting a
defendant with the following remarks: `Your father was not from
England. How could this court be apprised of whether he was a
brother or the uncle or the son since he was not born in this land
(vostre pier ne fut de la ligaunce dengleterre. Coment purra cest court
estre apris lequel il fut frer ou uncle ou fuyz, depus qil ne fut pas nee
en cest terre)?'23 Regarding foreign deaths, Hengham J observed as
follows: `[If the ancestor] died out of the kingdom, how could men
of this country know whether he died in his demesne or not [i.e.,
whether he himself was exploiting the land or had granted it to
someone else before he died]?'24 In the case of the foreign death of
an ancestor, however, the dif®culty of proof could be removed by
a special writ of mort d'ancestor where the demandant was allowed
to state that the ancestor was seised in his demesne `on the day he
embarked his journey abroad' instead of `on the day he died'.25
Regarding the foreign birth of an heir, there was no such way out.
The obvious result is that a foreign-born heir would be defenceless
against a lord who would refuse to allow inheritance. If there is no
one else who could claim the inheritance, the ®ef would fall back
on the lord as his escheat.
Certain issues could not be tried by an inquest of the neigh-
bours. The issue of bastardy generally alleged against a party to a
lawsuit had to be certi®ed by `the archbishop or bishop of the

Select cases in the court of King's Bench, I, p. 139.
22

The eyre of London, 14 Edward II, 1321, vol. II, 86 Selden Society (1969)
23

p. 214.
The eyre of Kent, 6±7 Edward II, 1313 -1314, vol. III, 29 Selden Society (1913)
24

p. 48.
Glanvill, lib. 13, cc. 5±6.
25
History
112

place'.26 The party applying for a writ for the certi®cation of the
ordinary assumed the responsibility to have the writ directed to
the bishop who had proper ecclesiastical jurisdiction over the
person whose legitimacy was challenged.27 Under the Canon law,
a person's status as incola or advena to a parish was determined
mainly by domicile.28 If the person against whom bastardy was
alleged had no domicile in a diocese whose bishop was bound to
execute the command of the English king, the certi®cation would
be impossible. Even if a person had a domicile in England, it is
unlikely that the bishop would certify legitimacy when no one in
his diocese, except for the immediate family members of the
person, had ®rst-hand knowledge of the circumstances of the birth
and of the parents' marriage. In other words, the bishop's inquest
of bastardy also depended on the common knowledge of the
neighbours.29 It would follow that those who came over from
beyond the sea ± in person or by an attorney ± to claim inheritance
had no procedural means to defend themselves from the allegation
of bastardy.30
As inquest of the neighbours and certi®cation of the ordinary
became the ®rmly established means of discovering judicial truth,
the legal dif®culty of inheritance confronting a foreign-born
person became insurmountable. For example, Matthew Paris
noted that Henry III was criticised in the Parliament of 1248 for
disinheriting his tenants-in-chief by sending their daughters
abroad for marriage.31 The point is that if the person thus

Glanvill, lib. 7, c. 13 (archiepiscopo uel episcopo loci). Fitzherbert, Diversite de
26

courtz, fo. C.6v. If bastardy was not generally alleged against a party to the
lawsuit, but against a third party, the issue had to be tried by a jury summoned
from the birthplace of the person. Year Books of 3±4 Edward II, 1309±1311, 22
Selden Society (1907) p. 30, pl. 3. Year Books of 1±2 Edward II, 1307±1309, 17
Selden Society (1903) p. 95, pl. 42 (the party averred that his father (now
deceased) was not a bastard, and offered to prove this by `paiys du counte ou il
[the father] fust nee').
William Clerke, The triall of Bastardie . . . (London, 1594) fos. 24±38.
27

W. Onclin, `Le Statut des etrangers dans la doctrine canonique medievale' in
‚ ‚‚
28

L'Etranger, part 2 (Brussels, 1958) pp. 42±7.
R. H. Helmholz, `Bastardy litigation in medieval England' in his Canon law and
29

the law of England (London, 1987) p. 188. Bishop's certi®cation usually stated
`communis fama laborat quod dicta C. fuerat nata in legitimo matrimonio,' etc.
Quite often, therefore, a wholesale accusation of illegitimacy was thrown against
30

foreign-born children in general. See Chris Given-Wilson and Alice Curteis,
The royal bastards of medieval England (London, 1984) pp. 138ff.
Chronica majora, 7 vols., ed. H. R. Luard, Rolls series (1872±83) V, p. 5
31
Birth beyond the sea 113

`married off' beyond the sea had all her children over there, then
her land would probably fall back into the king's hands when she
died. Henry III had to do this because he was in dire need of land
due to the vast number of his foreign favourites.32 That the lands
thus removed from nobiles regni were given to foreigners from
Provence, Savoy and Poitou was noticed, but duly ignored by
legal historians as insigni®cant for the development of the English
law of alien status.33
By the late thirteenth century, we have clear evidence that
foreign birth was treated as fatal to any claim based on inheri-
tance.34 The expression alienigena was often used in this connec-
tion. First and foremost, it was a factual description referring to
the person's foreign birth or provenance. Now, the question is
whether the factual event of foreign birth was linked to the legal
status of alien.



LEGAL CONSEQUENCES OF FOREIGN BIRTH

Did foreign birth make a child an alien? The conventional answer
given by legal historians is as follows: (1) children born abroad
were unable to inherit; (2) the inability to inherit was the proof of
their alien status; (3) foreign birth, therefore, makes a person an
alien. We began with a simple fact that foreign birth made
inheritance impossible. But legal historians have somehow arrived
at the twofold conclusion that foreign birth made a person an
alien, and that the alien status made inheritance impossible. What
was injected in between was their preconceived assumption that
aliens, unlike subjects, were under legal disability (i.e. inequality
between subjects and aliens), and that no such disability was


(`reprehensus est insuper gravissime super . . . [quod] nobiles regni ignobilibus
extraneis maritavit').
H. W. Ridgeway, `Foreign favourites and Henry III's problems of patronage',
32

104 English Historical Review (1989) 590±610. M. Prestwich, English politics in
the thirteenth century (London, 1990) p. 94.
Pollock and Maitland, The history of English law, I, p. 464.
33

See, for example, a petition ®led by Petrus Malore in the Parliament of 1289
34

(Rotuli Parliamentorum, I, p. 44); a charter issued to Elyas Daubeny in 1295
(Rotuli Parliamentorum, I, p. 135). These documents, however, have so far been
regarded as indicating the legal disability of aliens rather than foreign-born
persons.
History
114

applicable to subjects (i.e., equality among subjects). It is an
assumption which is not permissible for a historical investigation
into the beginning of the law of alien status. The assumption
defeats the whole purpose of investigation.
Whether children born beyond the sea were regarded as for-
eigners due to their birthplace, I do not propose to investigate. It is
a question of ethnicity and group psychology rather than of legal
history. Whether they were regarded as aliens due to their birth-
place, I propose simply to dismiss because the question is
grounded upon anachronistic assumptions. All that needs to be
said is that foreign-born children could not inherit. They would
inherit if they could prove the descent in spite of their foreign
birth. I have already mentioned a case (1285) where a foreign-born
heir claimed inheritance in the court of King's Bench arguing that
he became full age. In that case, the age of the foreign-born heir
was somehow proved by an inquest conducted by the king's
escheator. We saw that the legality of such an inquest was
challenged. But apart from that, neither the defendants (whom the
king had given the land in wardship while the heir was under age)
nor the king's justices mentioned a word about the alien or subject
status of the heir. All that mattered was whether or not, and how,
the proof of the heir's age or the alleged breach of the terms of
wardship (the heir was accused of having refused the marriages
duly offered to him) could be done.35 Also, in a Quo warranto case
brought to the eyre of London (1321), the defendant argued that
his foreign-born father (whose inheritance was critically important
to the defendant) was `held and reputed as the son and heir in the
city of London'. The court exceptionally allowed an inquest to be


Whether the birthplace (Boulogne, in this case) was `within the king's allegiance'
35

when the heir was born is an anachronistic question. The question assumes that
allegiance would determine one's legal status as subject or alien and that
allegiance was not a matter of mere geographical location but a matter of
subjection to the legitimate political power. It was only in the sixteenth century
that common lawyers began to think on this line (ch. 7 below). In the case
brought in 1285, the parties disputed whether the Queen consort of Henry III
was staying in Boulogne when the heir was born there. This was because the
Queen's itinerary was recorded in the Exchequer records, and if the heir was
born while the Queen was in Boulogne, his date of birth could be established
with greater precision by looking at the Exchequer records showing the Queen's
sojourn in Boulogne. All this was aimed at establishing whether the heir had
reached full age or not. Select cases in the court of King's Bench, I, p. 139.
Birth beyond the sea 115

taken from London ruling that `if the defendant can prove what he
said, it will be very hard (mult fort) to exclude him'.36
It must be remembered that foreign birth posed no problem,
either for an Englishman or for a foreigner, in acquiring or
disposing of land by sale or gift. We have already discussed
foreign merchants' landholding (in chapter 2). Helen Cam, who
edited the manuscripts of the eyre of London (1321), observed as
follows: `The few cases in the Eyre in which aliens are involved
show them as fully at home in London, purchasing and owning
houses, enjoying legal rights as private persons and making use at
will of the legal facilities open to natives.'37 What she called
`aliens' were, in our view, foreign-born persons, that is, foreign-
born Englishmen as well as foreigners who were born abroad.
Helen Cam's remark can be understood as a con®rmation of our
argument that foreign merchants and other foreign-born persons
were under no legal disability regarding their initial acquisition of
houses and land. Also, a number of foreigners were given land and
made earls as late as the last quarter of the fourteenth century.38
It is worth noting that foreign-born persons were in a better
legal position than illegitimate persons. Neither of them could
claim inheritance, of course. But, unlike illegitimate persons
(whose wealth could only be inherited by the heir(s) of the body),
foreign-born persons could count on collateral heirs, as well as the
heirs of the body, for transmission of their wealth upon their
death. A case brought to the eyre of Northamptonshire (1329±30)
offers an example. The jurors stated that the demandant entered
the land under dispute as of escheat because his tenant was `an
alien and died without an heir of his body'. Scrope J replied,
`That is not a cause for escheat.' The jurors were instructed to ®nd
out whether the `alien' tenant died `without an heir'.39 The same


Eyre of London, 14 Edward II, 1321, p. 213 (Rex v. Philip de Beauvais). We
36

discuss this case in more detail in the following chapter.
Eyre of London, 14 Edward II, 1321, p. cxxvii.
37

For references, see Chris Given-Wilson, The English nobility in the Middle Ages:
38

the fourteenth-century political community (London, 1987) p. 42.
The eyre of Northamptonshire, 1329±1330, 97, 98 Selden Society (1981±2)
39

p. 501 (`alien et morust saunz heir de son corps . . . Ceo nest pas cause deschete':
Master of Brackley v. Swart). It is revealed in another case that an `alien' tenant,
Tiedemann Swart, had acquired two messuages of land from the Master of the
Hospital of St John and St James of Brackley. See Eyre of Northamptonshire, 98
Selden Society, p. 575 (Holland v. Wollenmongere).
History
116

rule was con®rmed in 1349 when one of the king's escheators
reported that a manor purchased by Guy Ferre (styled as an `alien'
in the record) was escheated to the earl of Cornwall when Guy
Ferre and his wife successively died `without an heir'.40 We may
assume that the king's escheators were keenly aware of the legal
differences between an heir and an heir of one's body.
I cannot ®nd any evidence to suppose that birth beyond the sea
made a person an alien. What has so far been treated as the evidence
of aliens' legal disability is, in my view, nothing but the evidence of
the growing stability and popularity of the judicial procedures of
inquest. Foreign-born persons' legal predicament is simply the
other side of the brilliant success story of the inquest procedures.
Throughout the Middle Ages, foreigners were under no legal
disability to acquire land in England. If foreign birth affected them
in any way, it affected Englishmen in exactly the same way.



THE STATUTE DE NATIS ULTRA MARE (1351)

Foreign-born children's inheritance problem was vociferously
raised in Parliament in the middle of the fourteenth century. In
those years, a great number of magnates, soldiers, their wives and
their retinues had to stay beyond the sea for a long time because of
the war. If their wives give birth to children over there, these
children would experience serious legal dif®culty of inheritance.
Indeed, the king himself had foreign-born children then.41 It is
probably wrong to imagine that these children would completely
lose everything because of their foreign birth. Although inheri-
tance maintained its importance in real actions, it no longer played
a vital role outside the courtroom in the thirteenth and fourteenth

<<

. 4
( 9)



>>