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centuries. In order to avoid the unfavourable economic conse-
quences likely to be attached to inheritance (wardship, marriage,
relief ®ne), tenants developed a variety of highly sophisticated


Cal. of inquis. misc., 21±25 Edward III, no. 380.
40

Ralph A. Grif®ths, `The English realm and dominions and the king's subjects in
41

the later Middle Ages' in Aspects of late medieval government and society, ed.
J. G. Rowe (Toronto, 1986) pp. 83±105, contains a discussion of the relevant
circumstances. I wish to thank Professor Grif®ths for his kindness. During the
early stage in the preparation of this book, he read some of my writings and
made many valuable comments.
Birth beyond the sea 117

methods which brought down the importance of inheritance to the
barest minimum.42 But these methods had to rely on elaborate
paperwork. Considering that documents executed beyond the sea
had just as much dif®culty of legal recognition in England as
children born beyond the sea,43 the evasion methods must have
been of little help for those who had to ®ght across the Channel.
In order to avail themselves of these methods, they had to wait
until they returned to England. However, this was precisely the
question which bothered them most: could they return alive?

The petition (1343)
A suitable legal remedy for foreign-born children was demanded
in the Parliament held in 1343. The following questions were
posed:
(1) Whether the king's children born beyond the sea could
inherit;
(2) Whether the children born abroad `in the king's service' could
inherit; and
(3) Whether foreign-born children in general could inherit.44
The answer was easy for the king's children: `the children of our
lord the king shall have inheritance wherever they may be born
(les enfantz nostre seignor le Roi, queu part q'ils soient neez . . .


J. M. W. Bean, The decline of English feudalism 1215±1540 (Manchester, 1968)
42

chs. 3±4; A. W. B. Simpson, An introduction to the history of the land law
(Oxford, 1961) pp. 163±94; S. F. C. Milsom, Historical foundations of the
common law, 2nd edn (Toronto, 1981) pp. 200±39.
Year Books of 1±2 Edward II, 1307±1309, p. 110, pl. 53 (recognition was
43

denied to a deed `fait hors du realme' in `Berwicke ou cest court n'avoit
conissance'). Year Books of 4 Edward II, 1310±1311, 26 Selden Society (1911)
p. 131 (the same for a document executed at Linlithgow, Scotland). Eyre of
London, 14 Edward II, 1321, p. 347 (a deed of debt drawn in France shall not be
enforceable because `gentz de cest terre ne poet trier le fet'). Year Book
(Maynard's edn), Trin., 8 Edward III (1334) fo. 51, pl. 38 (a deed executed
`hors de cest Roialme' is challenged). A. N. Sack, `Con¯icts of laws in the
history of the English law' in Law, a century of progress, 1835±1935, ed.
A. Reppy, 3 vols. (New York, 1937) III, pp. 342±454. Regarding an important
exception for merchant's deeds, see Year Books of 4 Edward II, 1310±1311,
p. 153, pl. 10 (`[the plaintiff] est marchaunt, [and] home ne put nynt user en ceo
cas lei de terre [on recognition of a deed] en touz poinz ver marchaund, etc.' per
Bereford J).
Rotuli Parliamentorum, II, p. 139.
44
History
118

porteront leritage)'. It is not clear whether the `heritage' was
intended to include the crown itself.45 But, at least, the king's
foreign-born children would have no dif®culty from then on in
inheriting royal demesne lands.
The answer also came readily for the children born abroad in
the king's service: `it is granted in this Parliament that they shall
also be able to inherit wherever they may be born in the king's
service (accordez est en ce Parlement, q'ils soient aussint enheritez
queu part q'ils soient neez en le service le Roi)'. This simply
amounted to the king's promise that he would give up his claim of
escheat against his own soldiers who fought and died for him
leaving behind foreign-born children. The reference to `service'
indicates that the promise applied mainly to tenants-in-chief. The
legal concept of in seruicio domini regis was featured already in
Glanvill. King's service in parts beyond the sea was a lawful
ground for allowing at least forty days of delay in lawsuits in the
common law courts.46 The `service' referred to the knight service.
Women could not avail themselves of this essoin.47 It is not clear
whether professional soldiers who followed a captain of their
choice for pay might also have satis®ed the requirement en le
service le Roi of 1343.48 However, whether it was rendered as a
ful®lment of feudal legal obligation or as a professional job carried
out under some other covenants, the requirement of `the king's
service' would probably have to be proved in court by rigorous
documentary evidence.49
In the fourteenth century, the king could no longer demand, as
of right, feudal services involving overseas expedition.50 There is


This issue was to be hotly debated by succession tract writers in the reign of
45

Elizabeth I. See ch. 7 below.
Glanvill, lib. 1, c. 27.
46

Year Books of 1±2 Edward II, 1307±1309, p. 142, pl. 71. Year Books of 3
47

Edward II, 1309±1310, 20 Selden Society (1905) p. 158, pl. 8.
On the legal arrangement for professional soldiers, Christopher Allmand, The
48

Hundred Years War, England and France at war, c. 1300±c. 1450 (Cambridge,
1989) pp. 40±1.
Regarding the essoin for being in seruitio domini regis, Glanvill says: `whenever
49

he does appear in court [after an absence of forty days or so], he must have with
him and show immediately a writ of the lord king as his warrant for the essoins
he has cast'. Glanvill, lib. 1, c. 27.
F. Stenton, The ®rst century of English feudalism 1066±1166 (Oxford, 1961)
50

p. 178; Prestwich, English politics, pp. 98±9; A. L. Brown, The governance of
late medieval England (London, 1989) p. 87.
Birth beyond the sea 119

ample evidence that Edward III had to give away various favours
to his soldiers to coax them to participate in his overseas cam-
paigns. For instance, the king agreed to give up wardships of
infant heirs if the `parent' died during overseas military service.
Those who were about to cross the Channel to carry out the king's
overseas campaign were exempted from alienation ®nes. Enfeoff-
ment in use and other arrangements detrimental to the king were
generously allowed to tenants-in-chief in the wake of an upcoming
overseas military operation.51 The promise to allow the foreign-
born children to inherit if they were born en le service le Roi, was
just another example of these special deals which were liberally
offered during the war.
The implementation of this promise is not likely to have posed
serious procedural dif®culty. The king, I suggest, could simply
order his escheators to refrain from pursuing his claims.52 If
necessary, the foreign-born heir could be provided with the king's
special protection in the form of a charter. In the event the heir
was impleaded by a third party, the king's protection charter
would effectively bar the opponent from raising any issue related
to the foreign birth. This kind of protection charter had a long
history behind it. Glanvill, for instance, explains that the proceed-
ings of a possessory assize shall stop upon production of `a royal
charter in which the tenement of which seisin is claimed by the
assize is specially or expressly con®rmed to the tenant [by the
king]'.53 In 1295, Elyas Daubeny was provided with just such a
charter. In consideration of his and his ancestors' military services
to generations of English kings, Edward I granted the protection
as a special favour (de gratia sua speciali). According to the charter,
Elyas Daubeny could use it in the king's court to suppress any

Bean, The decline of English feudalism, pp. 144, 146, 241; Calendar of patent
51

rolls, 1340±1343, p. 199; Calendar of patent rolls, 1345±1348, pp. 223±4, 474,
478 show that Guy Bryane was lavishly provided with numerous royal favours
`for his stay with the king', `for good service in staying continually by the king's
side' or `for good service in the war of France'. He was one of the captains who
carried out Edward III's military operations in Scotland, Flanders and France. I
wish to thank Dr Maurice Keen, Balliol College, Oxford, who read an earlier
draft of this chapter and made many valuable comments on this point.
In such a case, the king was not giving away the lands after they were vested in
52

him. There was no established law which prevented the king from giving up his
claim for future escheats.
Lib. 13, c. 11 (`carta . . . regia qua specialiter uel expressim con®rmatur ipsi
53

tenenti tenementum cuius saisina petitur per assisam').
History
120

plea concerning his foreign birth.54 Fifty-seven years later, his
great-grandson Giles Daubeny was given the same kind of protec-
tion by Edward III. Giles Daubeny was born overseas while his
father Ralph Daubeny was brilliantly serving the king by carrying
out the Crecy-Calais campaign in 1346±7.55

However, no answer was given to the third question raised by
the petition of 1343, that is, the inheritance of foreign-born
children in general. The lawyers (Gentz de Lei) pointed out that
allowing inheritance for foreign-born children in general was a
dif®cult matter because there were `various doubts and dif®culties
which can arise in proving whether such children are true heirs as
claimed or dishonestly put in place in order to claim the inheri-
tance (diverse doutes et dif®culteez q purront avenir de prover q tieux
soient verrois heirs si debatz ou empeschementz soient mys en lour
leritages)'. The king's special protection, as we saw, resolved the
dif®culty simply by prohibiting the parties from raising these
doubts in legal proceedings. But since it was a `special' measure, it
could not generally be granted to all children born beyond the sea.
Only when a person or the ancestors of the person had made
speci®c contributions in the king's bene®t could the protection be
issued as a quid pro quo. Such a measure was consonant with the
Classical notion of justice ± giving each one his due. Any contrary
proposal would have offended medieval lawyers' conception of
justice.
Probably, the only legally acceptable way to allow inheritance to
foreign-born children in general was through a `legislative'
measure,56 which would require a comprehensive alteration of the

Rotuli Parliamentorum, I, p. 135. The charter was speci®cally designed for
54

courtroom use: `Quod ipse Elias de cetero in quibuscumque Curiis suis Angl'
audiatur ut Anglicus . . . et quod non repellatur per illam exceptionem quod
alienigena est et natus in partibus transmarinis.' We have already argued that
`alienigena' was a factual description referring to a person's birthplace. In the
absence of the legal category of alien, we doubt whether `Anglicus' can be
interpreted as referring to the subject or denizen status. Legal historians,
however, have regarded this document as one of the ®rst letters of denization.
Regarding the family of Daubeny, see Dictionary of national biography. Ralph
55

Daubeny, whose children were given the king's special protection was one of the
three persons speci®cally named in the statute De natis ultra mare. The other
two were John de Beaumont and Guy Bryane. We have already seen the king's
generosity towards Guy Bryane (note 51, above). John de Beaumont was the
uncle of Philippa of Hainault, Queen consort of Edward III.
Áse
See in this connection Renaissance du pouvoir le ‚gislatif et gene de l'Etat, ed.
56

A. Gouron and A. Rigaudiere (Montpellier, 1988).
Á
Birth beyond the sea 121

procedures of inquest. Lawyers had to think about the following
questions: Where could they direct the writ for summoning the
jurors if the opponent of those children took issue with the
proximity of blood? If bastardy was generally alleged, which
bishop should be commanded to certify the matter? In short, who
would dare to give verdict or certi®cation about an event without
®rst-hand knowledge? All they could say in 1343 was that this
matter required `a great deal of advice and good deliberation'.57

The statute (1351)
The answer came eight years later. In the Parliament held in 1351,
it was enacted as follows:
All children heirs who will from henceforth be born out of the ligeance of
the king, provided that, at the time of the birth, their fathers and mothers
are, and will be, of the faith and ligeance of the king of England, [shall]
have and enjoy the same bene®t and advantage of having and carrying the
inheritance within the said ligeance . . . in the future.58
The result of the great advice and good deliberation is summarised
in the phrase `faith and ligeance'. After eight years of contempla-
tion, lawyers decided that faith and allegiance should override the
established legal rules for the proof of descent and inheritance. If
the parents were of the faith and allegiance of the king, the
children should all be able to inherit in spite of their foreign birth.
In order to implement the new rule, the following procedural
reform was introduced:
If bastardy is alleged against anyone born beyond the sea, and if it is for a
bishop to have the cognisance, then the bishop of the place where the
thing demanded is located shall be commanded to certify the king's court
where the plea is pending.59
The rules regarding certi®cation of the ordinary were thus partly
altered so that the ordinary of the place where the land under

Rotuli Parliamentorum, II, p. 139 (`grant avisement et bone deliberation').
57

Statutes of the realm, Records commission, 9 vols. (1816±28), I, p. 310 (`touz les
58

enfantz heriters, qi serront neez desore dehors la ligeance le Roi, des queux
enfantz les piere et miere au temps du nestre sont et serront a la foi et de la
ligeance du roi Dengleterre, eient et enjoient meismes les bene®ce et avantage
daver et porter heritage deinz la dite ligeance . . . en temps avenir').
Ibid. (`si alleggee soit, contre nul tiel nee par dela, qil est bastard, en cas ou
59

Levesq doit avoir conissance de bastardie, soit maunde a Levesq du lieu la ou la
demande est, de certi®er la Court le Roi ou le ple ent pend').
History
122

dispute was located could certify the legitimacy of the foreign-
born person. In so far as the issue of legitimacy was concerned,
foreign-born children would be deemed to have been born in
England. The certi®cation procedure should be `as has been used
before in the case of bastardy alleged against those born in
England (sicome auncienement ad este usee en cas de bastardie, alegge
contre ceux qi nasquirent en Engleterre)'.
The statute does not give any procedural solution for inquest
which had to be done by a jury. It is therefore not clear how the
trial should be conducted if the proximity of blood was chal-
lenged. However, it appears that as far as the question of possession
was concerned, the proximity of blood no longer posed serious
threat to foreign-born children in claiming or defending their
inheritance. An assize of mort d'ancestor brought four years after
the statute gives us valuable information.60 A woman and her two
children claimed the possession of inheritance. Their claim was
based on the seisin of the woman's father. It was revealed that she
had a brother who committed a felony and abjured the realm. The
tenant pleaded that since the brother survived his father, the
demandants' claim should not be allowed for lack of proximity of
blood. An inquest was taken61 which found as follows: (1) the son
abjured the realm ten years before the death of the father; (2) the
father died seised; but, (3) it cannot be known whether the
demandants were the nearest heirs. The inquest could not ®nd out
whether the son survived the father because the son crossed the
sea and had not yet come back. Upon this, counsel for the
demandants barged in: `This should be suf®cient, no need for
further inquiry (Eux suffre aler sauns pluis enquere)!' Counsel for
the tenant replied with indignation: `Since when have we stopped
inquiring whether the demandants were the nearest heirs or not
(depuis que naver enquere le quel les demaund' sont plus prochien heire
ou ne mie)?' At least from 1227, however, we have clear records

Anthony Fitzherbert, Graunde Abridgement (c. 1514±16), mort d'anc. pl. 28;
60

Liber assisarum, 29 Edward III, pl. 11.
It appears that a mixed jury was used. The demandant claimed that the son
61

abjured the realm in the county of C and did not return. The tenant claimed that
the son returned and survived his father in the county of W. The demandant's
counsel said, `sur ceo le court fuit en awere le quel le chose serra trie par ass. ou
par gentz dauter counte ou par lune counte et lauter.' Thereupon, `Stouff.
[judge] agard' lassise destre pris en paiis alarg que fuit issint prise.' (emphasis
supplied).
Birth beyond the sea 123

that the proximity of blood ceased to be a critical issue in a
possessory assize if its proof involved an examination of circum-
stances which cannot be tried in England (foreign birth, foreign
death of a third party or existence of a potential contestant beyond
the sea, etc.).62 The demandants in our case were therefore
awarded the possession without having to prove the proximity of
blood. Of course, when the question of right was tried, foreign
birth would certainly be fatal to any claim based on inheritance.
But the overwhelming popularity and effectiveness of possessory
assizes probably dissuaded the drafters of the statute De natis ultra
mare from making any attempt to ®ddle with the well-established
jury trial procedures. This, I believe, is why the statute only
mentioned the certi®cation of bastardy. In 1368, Parliament had
another opportunity to consider and af®rm the new rule.63



CONCLUSION

Common lawyers and English legal historians have long believed
that the statute De natis ultra mare is a reliable source of the
fourteenth-century English law of alien status. This view, I
believe, is wrong. The statute was not about aliens. Nor was it
about foreigners. The statute was about foreign-born heirs of the
king's soldiers, rich or poor. The question was not their alien or
subject status. The question was whether or not they could
inherit.
One must not lose sight of the problem situation which the


Fitzherbert, Abridgement, mort d'anc. pl. 55 (12 Henry III): the demandant's
62

claim was based on the seisin of his brother. The tenant unsuccessfully pleaded
that the dead brother had a son who went beyond the sea eighteen years before.
The possession, as distinct from the right, of the land was awarded to the
demandant, `salvo predicto W.[the son] iur. suo si redierit ita quod statim habeat
ssesiam cum redierit, etc.' Also ibid., mort d'anc. pl. 47 (13 Edward I): the
tenant took issue that the demandant had an older brother who was still alive.
The plea was ignored by the judges who ruled that the demandant was `le pluis
prochien heire apparent' (emphasis supplied). The possession was awarded to
the demandant `et que save soit a f[rere] son poss. quant il vient [from beyond
the sea], etc.' If, however, the proximity of blood turned on the circumstances
which could be tried by an inquest taken from another county within England,
the issue of proximity had to be resolved before the possession could be
awarded. See Year Books of 3±4 Edward II, p. 151, pl. 46.
Statute 42 Edward III c. 10.
63
History
124

statute purported to resolve. The statute was not dealing with
some con¯ict between Englishmen and foreigners. The con¯ict
was between magnates and their tenants. The clash of proprietary
interests between the king and his tenants-in-chief was more or
less resolved in 1343 when children born abroad `in the king's
service' were allowed to inherit. The question that had to be
resolved in 1351 was whether the less important soldiers who were
not considered to be `in the king's service' should also be able to
provide for their foreign-born children. Until then, their lords had
the law on their side. The tenants did not have a strong case for
their foreign-born children. Lawyers kept referring to diverse
doutes et dif®culteez. These legal doubts worked in favour of the
lords by increasing their chances of enjoying the escheat. Their
tenants may well have been the beloved subjects of the king. They
might have been faithful enough to die for the king in a foreign
country. But what could lawyers do? Law was law, and faith was
faith. Until 1351, that is.
One may still ask: Granted that the statute was initially enacted
to deal with the problem of inheritance, is it not true that lawyers
immediately used it as a nationality statute? No, not until the ®rst
quarter of the sixteenth century.64 For the fourteenth-century
common lawyers, foreign-born heirs' inheritance problem was a
legal issue which was equally applicable to foreigners as to
Englishmen. As far as inheritance of English land was concerned,
there was no legal difference between Englishmen and foreigners.
It is, of course, not entirely impossible to insist on the long-
standing interpretative tradition (we will discuss in chapters 7 and
8 how this tradition arose in the sixteenth century), and have the
comfort of af®rming that aliens were under legal disability in
medieval England and that birthplace was an important criterion
for determining a person's alien or subject status. In order to do
this, however, one has to pay a price. It must be admitted that
until the last quarter of the fourteenth century, this iron rule was
not applicable to foreign merchants because they were merchants,
nor to foreign clerks because they were clerks, nor to foreign
religious houses because they were religious houses. One has also
to admit that the statute De natis ultra mare contains, for some


For a detailed discussion, see ch. 7 below.
64
Birth beyond the sea 125

mysterious reasons, a lengthy clause on bastardy trial procedures
which has nothing to do with the law of alien status.
Alternatively, one may wholly dismiss the ®rmly established
tradition, and say that there was no legal rule for the alien or
subject status in medieval England. One may then go on to say
that there was an unsuccessful attempt in 1383 to deny foreign
clerical candidates access to ecclesiastical bene®ces in England;
that the letters patent issued to foreign merchants took an abrupt
and enigmatic turn at about the same time; and that the foreign
religious houses' lawful claim as tenants of their English lands was
®nally denied on the basis of an unprecedented argument in 1414.
The price for adopting this alternative would be that one will
probably have to rewrite considerably the history of the law of
personal status in Europe.
6


FAITH AND ALLEGIANCE




In an earlier chapter, I argued that the systematic ban on foreign
clerical candidates' access to ecclesiastical bene®ces had to rely on
an argument which has a number of features unprecedented in
medieval jurisprudence. Moreover, we have seen that such a ban
would actually infringe on the king's and his subjects' well-
established patronage rights. This may have been one of the
reasons why the attempted ban of 1383 was ineffective and quickly
forgotten. Also, when lawful landholding claims of foreign reli-
gious houses were ignored and permanent removal of lands from
those religious houses was declared in 1414, the ordinance was
making an original claim which made reference to the `relief and
support of the communities of the realm'. Some foreign abbots, as
we saw, were not impressed by the novel argument, and kept
bringing to the king's court their `lawful' claims as tenants.
It is true, however, that the majority of foreign abbots ac-
quiesced to the new argument and no serious attempt was made to
recover their lands. The reason for this is not dif®cult to under-
stand. Their lands had been in the hands of the English king
intermittently for several decades by then. The foreign religious
houses concerned most probably had given up the hope of
recovering their lands. To hear that their long lost lands would
not after all be returned to them was perhaps not painful enough
to make them start a lengthy and expensive litigation to recover
those lands. Similarly, foreign merchants also appear to have
accepted the new argument without much protest. We saw that
chancery clerks, from the 1380s onward, kept announcing in the
king's letters patent issued to foreign merchants that no one but
the king's liege subjects might hold land in England or bring
lawsuits in the king's court. The reason why the repeated an-
nouncement of the new idea went unchallenged is not dif®cult to
126
Faith and allegiance 127

understand either. The announcement was made on the occasion
of granting some legal bene®ts to foreigners who successfully
applied for an exemption from the higher rate of customs duty.
Seizing upon the occasion of foreign merchants' request for tax
bene®t, chancery clerks began to declare that no one might hold
land or bring lawsuits in England except the king's liege-men and
that those successful applicants were now exceptionally granted
those privileges. The point, however, is that those foreign mer-
chants had already been holding lands and freely using all sorts of
legal facilities when they applied for the tax bene®t. They were
told in a grandiose manner that they could continue to do so (see
chapter 2 above).
The fact that the systematic discrimination attempted against
foreign clerks was unsuccessful while a similar attempt affecting
foreign religious houses and foreign merchants met with little or
no resistance can thus be understood with reference to the
particular context in which each of these attempts was introduced.
When we put aside the practical dif®culty or ease of implementa-
tion and focus instead on the doctrinal dif®culty posed by the new
argument, it must be clear that all these attempts were going
against the grain of medieval jurisprudence. In the second half of
this book, I shall endeavour to show how the overall structure of
legal argument was comprehensively recast in the ®fteenth and
early sixteenth centuries so that the new argument no longer poses
any doctrinal dif®culty. But before we move on to investigate this
remarkable achievement of the early modern jurisprudence, we
need to highlight precisely what was new about the argument for
systematic discrimination against aliens. In my view, the novelty
of the argument consists in the use it makes of the concept of
`public interest'.
The notion of `common good' or `common utility' was no doubt
thoroughly familiar to all medieval men. That the king and his
subjects should all exercise their rights to the common utility of
the realm was probably the highest moral political precept which
no one ever dreamed of challenging. But how could this noble
obligation be enforced when the parties to a litigation could
doggedly cling to the adage, ®at justitia, ruat coelum! (Heavens
might fall, but let justice be done!) and demand that justice ± in its
narrow individualistic sense ± be done at all costs? This is why I
believe that the argument for the systematic discrimination against
History
128

aliens is somewhat signi®cant. It allowed the lofty but hitherto
amorphous notion of common utility to be incorporated into the
legal language. From then on, disputes involving foreigners were
to be resolved on an altogether different platform. The innovation
was achieved through the concepts of faith and allegiance. Those
who are of the faith and allegiance of the king are subjects and
they shall be given legal bene®ts; those who aren't are aliens and
they shall be deprived of legal bene®ts.
As I emphasised at the beginning, however, faith and allegiance
were not new conceptual categories which suddenly occurred to
lawyers' minds in the fourteenth century. By that time, these
concepts were probably already too old to trace their origin. The
novelty of the new argument comes not from the novelty of the
concepts of faith and allegiance, but from the innovative way of
using these old concepts. Of course, the innovation is no longer
new to us. After several centuries of repeated use, we may rightly
say that there is nothing new about the `new' way of using these
concepts. Unless we study the old way of using them, we will not
be able to appreciate the novelty of the new use. Then, what was
the old way of using ®des and ligeancia?



AD FIDEM REGIS

The concept of ®delity to the king, as distinct from the ®delity of a
tenant to his lord, is well attested by Glanvill and Bracton.
Glanvill, for example, describes the consensual and reciprocal
relationship between a tenant and his lord as a bond of mutual
con®dence (®delitatis connexio) created by homage.1 The king
himself may be a party to such a relationship, which Bracton
refers to as vinculum juris.2 But, obviously, the king cannot be a
party to every such relationship. According to Glanvill and
Bracton, if the king is not personally involved in such a relation-
ship, the parties to it must acknowledge that their mutual bond of
con®dence would be quali®ed by ®delity to the king. The homage
in this case must be accompanied by a proviso, `salva ®de debita


Glanvill, lib. 9, c. 4 (`Mutua quidem debet esse dominii et homagii ®delitatis
1

connexio').
Bracton, II, p. 228 (`Sciendum quod homagium est iuris vinculum').
2
Faith and allegiance 129

domino regi et heredibus suis'.3 In other words, even though the
legal relationship between a lord and his tenant is essentially a
relationship of mutual consent, they cannot consent to be un-
faithful to the king. The ®des in this proviso refers to ®delity to
the king, which is different from ®delity between parties to the
landholding agreement. How was the clause salva ®de debita
domino regi . . . at work? Did it work differently from the ®delitatis
connexio between a tenant and his lord? Taking of Norman
tenants' English land provides a good opportunity to discuss this.
Regarding the legal consequence of a tenant's wrongdoing
committed against his lord, Glanvill offers the following explana-
tion:
If anyone does anything to the disinheritance of his lord and is convicted
of it, he and his heirs shall by law lose the fee which he holds of him. The
same rule will apply if anyone lays violent hands on his lord to hurt him
or do him a dreadful injury, and this is lawfully proved against him in the
proper court.4
The passage may be understood as providing the substantive
legal basis for taking the lands of the king's Norman tenants
adhering to the French king when John was dispossessed of his
inheritance in Normandy. However, as repeatedly stressed by
Glanvill and Bracton, de®nitive removal of lands from a tenant
was not permissible until the tenant's breach was duly proven in
the lord's court.5 Therefore, the immediate justi®cation for
seizing the Norman tenants' English lands ought to be sought
elsewhere. Glanvill further explains that a lord may distrain his
tenant in order to compel him to appear in his court (curia
domini) to answer charges: `The lord may, of course, lawfully
evict his man by the judgment of his court and distrain his man

Glanvill, lib. 9, c. 1. Bracton, II, p. 232.
3

Lib. 9, c. 1.
4

See the following phrases from Glanvill's passage quoted above (lib. 9, c. 1): `si
5

. . . ad exheredationem domini sui fecerit et super hoc conuictus fuerit, . . . si
manus uiolentas . . . , et hoc uersus eum legitime in curia fuerit competente
probatum'. Bracton, II, p. 236 (`Item si aliquid fecerit contra dominum suum ad
exheredationem domini sui: et quo casu iustum iudicium quod tenens exheredetur
propter obligationem homagii quam infringit'). Regarding the removal of lands
from King John in 1202, Ganshof quotes the following text from a contemporary
French source: `Tandem vero curia regis Franciae adunata adjudicavit regem
Angliae tota terra sua privandum quam hactenus de regibus Franciae ipse et
progenitores sui tenuerant' . . . F. L. Ganshof, Qu'est-ce que la fe
‚odalite? 5th edn
(Paris, 1982) p. 251.
History
130

to come to his court'.6 Taking of the king's Norman tenants' lands
was therefore a preliminary procedural measure (distress) which
was intended to be in effect only until the Norman tenants would
appear in the court presided over by the king to clear themselves
or to be lawfully convicted of their wrongdoing.7 The procedures
for resolving feudal legal disputes between a lord and his free
tenant must be distinguished from the procedures in the king's
court (common law court). For example, trial by inquest was not
available for resolution of a feudal dispute. The matter had to be
judged in the presence of the `peers' of the accused.8 For the
resolution of the feudal disputes between him and his Norman
tenants, I suggest, the king could not resort to the procedural rules
regarding essoins and default judgments applicable to common
law trials.9 In other words, the king's Norman tenants could not
be de®nitively dispossessed of their lands until they voluntarily
appeared in the court of their lord, and were duly convicted in
accordance with legitimate procedures (legitime in curia fuerit
competente probatum). Years after the seizure, therefore, constant
inquiries were still being made about the terrae Normannorum to
make sure that they were managed with proper care. The case was
still pending.10
But the good news for the king was that his Norman tenants,
like his English tenants, were mortal beings. When they died
without leaving an heir who was legally capable of claiming the


Our translation. Glanvill, lib. 9, c. 1 (`Et quidem de iure poterit quis hominem
6

suum per iudicium curie sue deducere et distringere ad curiam suam uenire').
Cf. F. A. Enever, History of the law of distress (London, 1931) p. 69.
7

Select pleas in manorial and other seignorial courts, vol. I, 2 Selden Society (1988)
8

pp. lxvi±lxvii. The judicium parium suorum, which was demanded and promised
in Magna Carta (1215), had nothing to do with the verdict of a jury (inquisitio
patriae) in common law trials. See also Glanvill, lib. 9, c. 1 for procedures for
resolving feudal disputes in the lord's court.
Essoins and default judgments in the common law trials are explained in
9

Glanvill, lib. 1, cc. 11±33.
J. H. Le Patourel, The medieval administration of the Channel Islands,
10

1199±1399 (London, 1937) p. 28. Sir Maurice Powicke, however, asserts that
`the disposal of lands doubtless became permanent' as the hope of an amicable
settlement dissipated (The loss of Normandy, 1189±1204 (Manchester, 1913)
p. 423, emphasis supplied). I nevertheless believe that there is considerable
room for doubt. The tentative nature of the seizure of the Normans' lands was
noted, and described by Maitland as `that curious dislike of perpetual dish-
erison'. F. Pollock and F. W. Maitland, The history of English law before the time
of Edward I, 2nd edn, 2 vols. (Cambridge, 1968), I, p. 461.
Faith and allegiance 131

inheritance, the king would have the escheat of their land and the
case would be closed. The king must have particularly appreciated
the common law rule that children born beyond the sea could not
inherit. It would not be unreasonable to suppose that the king's
Norman tenants would often have their children born in Nor-
mandy or in other parts beyond the sea. What if, however, some of
the heirs were born in England and were not personally respon-
sible for the wrongdoing (exheredatio, atroci iniuria, etc.)? It is not
clear whether the king could lawfully prevent the heir from doing
the homage and claim the lands. We have not been able to ®nd
actual cases where this issue was squarely posed for decision. But
this should not affect our argument. Regardless of whether the
king could claim the land or not, the legal relationship between
the king and his Norman tenants (including their heirs) must be
understood wholly within the context of the consensual and
reciprocal agreement between them. It is a question of viculum
iuris created by homage. There is, in these cases, no room, nor any
need, to discuss the concept of ®delity to the king as the ruler. The
issue was about the ®delitatis connexio between a lord and his
tenant. The king happened to be the lord here.
But, not all Normans were tenants-in-chief. What about the
Normans who held their English lands from a mesne lord? Could
the king seize their lands as well? When they died leaving no heir
who could successfully claim the inheritance, could the king
ignore their immediate lord and claim the escheat? The answer
seems to have been in doubt to say the least. In a case brought to
the King's Council in 1243, we see a mesne lord ± not the king ±
taking seisin of the land which would have descended on a person
staying in Normandy (Boistard v. Cumbwell). The mesne lord
justi®ed this measure by arguing that the person in Normandy did
homage to the bishop of Bayeux, who was a homager (tenant-in-
chief) of the king of France, the enemy of the king of England.
This argument is interesting for two reasons. First, no claim was
made as to whether the person staying in Normandy was the only
remaining heir. Granted that that person was somehow unable to
inherit, if there was a brother or sister, the inheritance would
descend on the next available heir (no felony on the part of the
ancestor was alleged in the case). But the point was not raised at all
by the parties. Second, no claim was made that a wrongdoing or
injury was done to the mesne lord himself. If, for example, the
History
132

tenant had failed to render the service due or to provide a suitable
substitute, or had otherwise breached the contractual ®delity to
the lord, the latter could have justi®ed his repossession of lands
relying on these grounds. But what the mesne lord said in this case
was that the heir of his tenant was unfaithful to the king. In all
likelihood, the heir appears to have argued that neither his
ancestor nor he himself did anything to breach their contractual
obligation owed to the lord. The heir must have wanted the land
and asked the lord to accept his homage. Otherwise, the dispute
would not have arisen in the ®rst place. Now, the lord, unable to
allege a breach of contractual ®delitas, seems to have resorted to
the ®des directly owed to the king (`salva ®de debita domino regi')
as mentioned in the proviso of the homage. Have not they (the
tenant, now deceased, and the lord) agreed that their feudal
relationship should always be quali®ed by the saving clause about
®de debita domino regi? As the heir has violated this promise by
doing homage to the king's enemy, thus the mesne lord seems to
have argued, the heir must not be allowed to do the homage and
take the land.11 The case came before the King's Council. The
land was provisionally taken into the king's hands until the king
could decide this matter. As a compensation for the temporary
loss of the seisin of the land, the mesne lord was given 15 marks.
On the day assigned for the de®nitive judgment on this matter, the
king's chief justiciar failed to show up. We do not know the
outcome.12
The absence of the chief justiciar must have been particularly
disappointing for the mesne lord if we are to suppose that he was
aware of an Exchequer record of 1239 where another mesne lord
in a similar position was allowed to keep his Norman tenants'
lands when they fell back on him as his escheats: `It is granted that
the Earl of Leicester shall have the Normans' lands which are of
his fee when they fall back on him as his escheat.'13 The record

The heir, of course, was not party to the agreement between the lord and the
11

deceased tenant. But the feudal legal obligation did not evaporate upon the
death of the tenant or the lord, but descended on their respective heir. See Fleta,
vol. III, 89 Selden Society (1972) p. 38.
Select cases before the King's Council, 1243±1482, 35 Selden Society (1918)
12

pp. 1±2 (Boistard v. Cumbwell).
Public Record Of®ce, King's Remembrancer, Memoranda rolls, 18 m. 12d
13

(`sciatis quod concessimus dilecto . . . comes Laycester quod per omnes terras
suas habeat et teneat terras Normannorum que sunt de feodo suo cum exciderint
Faith and allegiance 133

appears after the lapse of about thirty years from the initial seizure
of terrae Normannorum. Norman tenants were beginning to die.
In 1245, two years after Boistard v. Cumbwell, we ®nd a case
where a Norman abbot's lands, which were taken into the king's
hands as terrae Normannorum in 1244, were restored to the abbot.
The reason was that the abbot held the lands of a mesne lord and,
therefore, was not a tenant-in-chief: `the abbot holds all his lands
in England of the Earl, and with respect to his lands, he did
homage to the Earl as the lord of the ®efs'.14 One may, of course,
entertain the possibility that not all Norman tenants were adhering
to the French king; that this particular abbot was faithful to the
English king; and that this was the reason why he could recover
the lands. But the point we are making is that, whether or not this
was the case, the record of the Close roll keeps entirely silent
about the question of being faithful to the king. All it says is that
the abbot did homage to his lord, who was not the king. The king
had to return the lands because the abbot maintained the ®delitatis
connexio with his lord, not because the abbot was ad ®dem regis.
However, a Latin treatise of the late thirteenth century, com-
monly known as Prerogativa regis, contains the following clause
which indicates that a signi®cant change was introduced in the
meantime:
The king shall have escheats of the lands of Normans, of whose fee soever
they may be, saving the service belonging to the immediate lords of the
same fee.15
This statement is designed to eliminate the doubt about whether
the king could claim the escheat of terrae Normannorum not held

tanquam escaeta sua'). See Dictionary of medieval Latin from British sources, fasc.
III (London, 1986), `escaeta'.
Á
Close rolls 1242±1247, p. 337 (`idem abbas, qui omnes terras quas habet in
14

Anglia tenet de eodem comite, . . . et de terris ipsis ®delitatem fecit eidem
comiti tanquam domino feodi').
Our translation. Statutes of the realm, I, p. 226 (`Rex habebit escaetas de terris
15

Normannorum, cujuscunque feodi fuerint, salvo servitio, quod pertinet ad
capitales dominos feodi illius'). We follow Maitland in rendering capitalis
dominus as the `immediate lord' rather than the chief lord or the liege lord.
Pollock and Maitland, The History of the English law, II, p. 234. The treatise
was probably written in the reign of Edward I. The king's special rights as the
feudal lord are discussed. The text sets forth various exceptional measures
regarding wardship, marriage, primer seisin, homage, escheat, alienation of ®ef,
exercise of advowson, etc. which became applicable when the king was involved
in these feudal legal relationships. It is often regarded as a statute.
History
134

directly from him. If the king's justiciar who did not show up in
the case of 1243 could have relied upon this clause, he would have
gladly announced that the land should remain with the king and
that the mesne lord should be content to receive the compensation
for the loss of the feudal service.
One must ask, however, on what ground could the king intervene
in a legal relationship between a lord and a tenant created by
homage? On what legal basis could the king claim the escheat which
would normally go to the lord? This is not to suggest that the king
could under no circumstances interfere with the relationship
between a lord and his tenant. If the tenant was lawfully convicted
of certain serious wrongdoing, the king would intervene and take
the lands whether or not they had been held directly from him. But
this intervention occurred only after the ®delitatis connexio between
a lord and his tenant had been formally severed by a judicial
sentence. Moreover, the dissolution of the contractual bond in such
a case was amply publicised by pulling down the houses and
rooting up the trees of the wrongdoer.16 In this sense, the king
could not be said to temper with the vinculum iuris between a lord
and tenant since the bond had already been dissolved. Obviously,
the king's claim to have the escheats of the Normans' lands was not
based on a formal judicial sentence convicting the Norman tenants.
Otherwise, it would be rather dif®cult to explain why the clause of
Prerogativa regis proposed a compensation for the mesne lord. We
are inclined to believe that the king's claim to have the escheats of
the Normans' lands cujuscunque feodi fuerint could not be justi®ed
by the established rules of felony. Instead, the rather daring claim
of the king was based on the notion of `Prerogative'. In other
words, the claim had no known legal ground for justi®cation. It is
precisely at this point that faith to the king, as distinct from the
®delitatis connexio between a lord and his tenant, is mentioned in
the text. The above-quoted clause of Prerogativa regis is followed
by this passage:
And this also is to be understood where any inheritance descendeth to any
that is born in the parts beyond the sea, whose ancestors were from the
time of king John under the allegiance of the kings of France (ad ®dem
regis Franciae), and not of the kings of England (ad ®dem regis Angliae).17

See, for example, Glanvill, lib. 7, c. 17.
16

Statutes of the realm, I, p. 226 (`et hoc similiter intelligendum est, si aliqua
17

haereditas descendat alicui nato in partibus transmarinis, et cujus antecessores
Faith and allegiance 135

We assume that this passage is not about escheats because the
question of escheat has already been dealt with in the clause that
precedes this. Escheat normally happened when a tenant died
without any legally recognisable heir. If the eldest son of a tenant
was illegitimate, for example, the inheritance would go to the next
legally recognisable heir(s), if any. In this case, the lord could not
claim escheat. The above-quoted passage is dealing with the case
where the closest heir(s) happened to be born beyond the sea. In
normal circumstances, the inheritance would go to the next
available heir(s).18 If, however, the deceased had been ad ®dem
regis Franciae, the above-quoted passage provides that the king
should immediately intervene and snatch away the opportunity of
inheritance from the next available heir(s). The passage applies
whether or not the lands were held directly from the king. If the
lands were held from mesne lords, the king's interception would
have had to have been accompanied by a compensation for the
feudal service belonging to the mesne lord (capitalis dominus).
This, we believe, is the full meaning of hoc similiter intelligendum
est.19
The ®delity in ad ®dem regis appearing in the above-quoted
passage cannot have meant the mutual bond of con®dence (®deli-
tatis connexio) arising from homage. The argument contained in
the passage turns on the non-contractual bond of faith between
the king (the ruler) and his subjects (the ruled). But the bond of
faith was mentioned with regard to the deceased only. The living
heir's faith to the king was entirely irrelevant. The deceased
ancestor's faith to the king was mentioned not to discriminate
against the dead tenant or his foreign-born heir, but to determine
the question of `prerogative' escheat which operated to the detri-
ment of mesne lords or of the next available heir(s) of the deceased
tenant. The above-quoted passage allows us to conclude that if the
deceased ancestors were ad ®dem regis Angliae, the inheritance

fuerunt ad ®dem regis Franciae, ut tempore regis Johannis, et non ad ®dem regis
Angliae').
See R. Brook, Graunde Abridgement (London, 1573) denizen & alien, pl.7,
18

pl. 14.
It is further explained in Prerogativa regis that upon the death of John of
19

Monmouth, Henry III obtained many escheats of the Normans' lands held of
others (de feodi aliorum). Henry III's claim to the escheats was, of course,
quali®ed by the compensation of the due and customary service for the mesne
lords. Ibid.
History
136

would take its normal course. That is, if the closest heir was born
abroad, the inheritance would go to the next available heir(s). If all
the heirs were born abroad, the lord, not necessarily the king,
would have the escheat.
One further point worthy of note is that the above-quoted text
of Prerogativa regis shows no interest in specifying whether it was
the father or the mother who was ad ®dem regis. Since the text was
dealing with the questions of inheritance and escheat, it was
appropriate and accurate to use the legal category of `ancestors
(antecessores)'. It did not matter whether it was the father or an
aunt who chose to adhere to the French king. All that mattered
was that they should die seised of inheritable ®efs. As long as they
remained alive, they could not be antecessores and, therefore, the
question of inheritance would not arise. It is unlikely that this text
had anything to do with the subject or alien status of the heir.
However, lawyers and scholars were to rely on this text to develop
fantastic theories about paternal or parental descent of English
nationality.20
Whether or not the document Prerogativa regis was actually
enforced as a statute is beside the point.21 As a contemporary legal
text (I assume that it was composed between 1243 and 1343), it
poses a problem of interpretation. So far, it has been interpreted as
suggesting the birth of nationalistic jurisprudence in England. I
hope that I have demonstrated some possibility of a different
interpretation. I believe that the text should, as any historical text
would, throw light on the circumstances in which it was com-
posed. The question which the text purported to resolve was not
at all `nationalistic'. The focal point of contention was whether the
escheats of the Normans' lands held of mesne lords should go to
the king or to the mesne lords. The question could not be resolved
unequivocally by relying on Glanvill or Bracton. The ambiguity
could, and in fact did, work in favour of mesne lords. This was the
moment when the document was composed. The text took a clear

See chs. 7 and 8 below.
20

We note, nevertheless, that justices of eyre in the early fourteenth century
21

routinely made the following inquiries: `de eschaetis domini regis, que sunt &
qui illas tenent . . . tam de terris Normannorum quam de aliis' and `de hiis qui
tenent terras Normannorum, Flandrensium, Britannorum vel aliorum extra-
neum cujuscunque feoda sint' (emphasis supplied). The eyre of Kent, 6±7 Edward
II, 1313±1314, Vol. I, 24 Selden Society (1909) pp. 29, 31 (Articles of the eyre,
nos. 7, 34).
Faith and allegiance 137

stance in favour of the king, and attempted to provide a ground
for prerogative escheat. The text was not expressing a nationalistic
or xenophobic sentiment. The struggle was between the king and
the mesne lords. The text was not inventing a hitherto unknown
idea, either. It was using the notion of ®delity (®des) to the king
which was basic to Glanvill and Bracton (salva ®de debita domino
regi et heredibus suis).
In order to take the lands of his Norman tenants-in-chief, the
king had no need to invoke the notion of ad ®dem regis. The
consensual and reciprocal agreement which bound the parties
(vinculum iuris) provided suf®cient legal means for the king to
cope with the situation after the loss of Normandy. In order to
take the Normans' lands held of mesne lords, however, the king
had to rely on the concept of ad ®dem regis, as distinct from
®delitatis connexio between a lord and a tenant. But the text of
Prerogativa regis shows that when the lawyers thus relied on the
concept of ad ®dem regis, they did so in a way which did not at all
affect the legal position of foreign-born heirs. If the ancestors were
ad ®dem regis Franciae, prerogative escheat would take place. If
the ancestors were ad ®dem regis Angliae, ordinary escheat would
take place. In either case, the foreign-born heir was denied
inheritance regardless of his or his ancestor's ®delity or in®delity
to the king. Now, the statute De natis ultra mare was making an
entirely different use of ®delity to the king. According to the
statute, the parents' ®delity to the king would have the power to
enable their foreign-born heirs to inherit. Previously, the notion of
ad ®dem regis was not capable of doing this. As far as the concept
of ®des is concerned, this is an innovative change of mode d'emploi.
Then, what about ligeance?



LIGEANCE

Professor Maitland suggested that ligeance originally referred to a
geographical tract before it took up the meaning of allegiance.22
This may be true, but not entirely true. Before ligeance was
employed to refer to a tract of land, the term had already been
used to refer to a certain quality of interpersonal relationship.

Pollock and Maitland, The history of English law, I, p. 459.
22
History
138

Glanvill, for instance, used the term to explain the pre-eminent
relationship between a tenant and his `liege' lord.23 Also, the
treaty between Henry II and William, king of Scots (the Treaty of
Falaise, 1174) contains the following passage which indicates that
the term was used to refer to the relationship of ®delity rather than
a piece of land: Similiter heredes regis Scottorum et baronum et
hominum suorum homagium et liganciam facient heredibus domini
regis contra omnem hominem.24 Bracton also uses the term to refer
to something other than a geographical tract. He remarks that
during the military con¯ict between John and Philippe Auguste,
William Marshal, Michael de Fiennes and many others were
`faithful to both kings (ad ®dem utriusque)'. He continues as
follows: `if war occurs between the kings, each of them remains
personally with the king to whom he has done liege homage
(ligeantiam) and has his servitium debitum done to him with whom
he does not stand in person'.25
In any forms of human association, the relationship of power,
subjection and solidarity is bound to be expressed in one way or
another. Whether it is called ligeancia, ®delitas or allegiance is of
secondary importance. For Glanvill and Bracton, however, it
seems that the notions of power and subjection did not play a vital
role in expressing the spatial perception of geographical expanse.
Land was land, and ligeance was ligeance. But in the late thirteenth
century, we begin to see that the territorial extent of the king's
legitimate power is also called ligeance. According to the early
fourteenth-century legal terminology, out of the ligeance (hors de
la ligeance) could often mean `out of England'. Likewise, within


Lib. 9, c. 1 (`Potest autem quis plura homagia diversis dominis facere de feodis
23

diversorum dominorum, sed unum eorum oportet esser precipuum et cum
ligeancia factum').
E. L. G. Stones, Anglo-Scottish relations 1174±1328, 2nd edn (Oxford, 1970)
24

p. 4 (`Likewise the heirs of the king of Scots, and of the barons, and of their
men, shall do homage and swear allegiance to the heirs of the king [of England]
against all men'). The contemporary materials put together by Stones show that
homo ligius and dominus ligius formed part of the common legal terminology of
the time. Various spellings were used: homo ligeus (pp. 78, 126); leggius homo
(p. 16). The Treaty of Falaise also mentions ligiam ®delitatem (p. 4).
Our translation is based on Bracton, IV, p. 329 (f. 427 b): `et ita tamen si
25

contigat querram moveri inter reges, remaneat personaliter quilibet eorum cum
eo cui fecerit ligeantiam, et faciat servitium debitum ei cum quo non steterit [or
fecerit] in persona'. See also George Duby, Guillaume le Mare ‚chal (Paris, 1984)
pp. 178±89.
Faith and allegiance 139

the ligeance (deinz la ligeance) often meant `within England'.26
Was the old usage of the term ligeance completely outdated by
then? We do not suppose so. It appears that the term was used in
an ambivalent manner by the early fourteenth century. In other
words, the term carried a certain amount of ambiguity with it. We
shall investigate how common lawyers made use of this semantic
ambiguity.
I have already mentioned a case brought to the eyre of London
in 1321 (Rex v. Philip de Beauvais).27 The case was about
inheritance of a franchise. The defendant (the grandson of the
recipient of the franchise) was having dif®culty because his father,
through whom the defendant's entitlement to the franchise must
be traced, was born beyond the sea, and foreign birth was nearly
fatal to a good descent. However, the king's serjeant Geoffrey
Scrope made a big mistake when he began the argument as
follows: `From your grand-father you cannot establish the descent
because your father was not of the ligaunce of England (vostre piere
ne fut nient de la ligaunce dengleterre).' Herle J immediately
intervened with a subtle suggestion that Scrope used ligaunce to
refer to the geographical location of the father's birth: `Scrope tells
you that your father was not of the ligaunce of England. How can
this court know whether he was brother, uncle or son, as he was
not born in this land (depus qil ne fut pas nee en cest terre)?' But the
defendant's counsel, Shardlow, saw the opportunity. He maxi-
mised the ambiguity of the term ligaunce by pushing the case
towards the question of homage: `we pray that the grandfather was
married to his wife in London, and the father was held and
reputed as their son, and did homage to the king of England and
died in his homage, and therefore the father was of the ligaunce of
the king of England'.
In fact, whether or not the father did homage to the king was
irrelevant to the focal question of the case. The father must have
done homage to the king with regard to the house which his father

For example, Anthony Fitzherbert, Graunde Abridgement (c. 1514±16) Aiell,
26

pl. 8 (1312): `le demaundant fut nees hors de ligeans de roi dengleterre'; Year
Book 13 Edward III, 1339, Rolls series (1883±1911) pp. 76±8: `aiel ne murrust
seisi deins le legians le roy dengleterre'. In addition to these references given by
Maitland, see also Calendar of inquisitions miscellaneous, 21±25 Edward III, no.
415; Calendar of patent rolls, 1348±1350, p. 191.
The eyre of London, 14 Edward II, 1321, vol. I, 86 Selden Society (1969)
27

pp. 213ff.
History
140

(the defendant's grandfather) conveyed to him during his (the
defendant's grandfather's) lifetime.28 No challenge was therefore
made with regard to the house itself. After all, the case was not
about the house, but about whether the father inherited the
franchise (the immunity from certain tallages and subsidies to be
levied upon the house) so that it could be, upon his death,
transmitted to the defendant. The fact that the father acquired the
house as the assignee adds nothing to his legal position as the heir
for the immunity granted to his ancestor, who failed to mention it
speci®cally in the deed of assignment of the house. Clearly,
Shardlow was responding to his opponent's use of the term
ligaunce. Scrope realised the consequence and rephrased his argu-
ment in extremely dry, spatial terms: `Then, admit that he was
born over there (la outre).' Shardlow would not budge: `the father
did his homage to the king'. Scrope was indignant, but con®dent
of his victory: `You cannot deny then; judgment for the king!'
Surprisingly, Scrope's request was refused. Somehow, the court
was persuaded that if a person was of the king's ligaunce, it would
be harsh to exclude the person (`Il serra mult fort en tiel cas
destrangere le'). The judges who had initially been rather cynical
about the defendant's claim were now inclined to allow the
defendant to prove what he said. At the beginning of the case, for
example, Stanton J threw the following remark at the defendant:
`you cannot show that you are the heir without showing that your
father was heir, and that you cannot do.' Stanton J was now full of
sympathy.29 He asked Shardlow, `Then, do you want to aver what
you said and demur for judgment for the rest?' `Yes, sir' said
Shardlow.30
Shardlow must have been happy ± not because he changed the
whole course of European legal development, but because his
argument was accepted. Perhaps it verges on a truism to say that
changes of legal rules are introduced to meet the exigencies of the
circumstances. Herle J made it clear that the change was intro-
duced because of practical considerations (`il serra `mult fort'
. . .'). But we must ask why the judges began to think that it would
be `very hard' on the defendant to apply the established proce-


Calendar of close rolls, 1279±1288, p. 110 gives the record of conveyance.
28

Eyre of London, 14 Edward II, 1321, pp. 213ff.
29

An inquest was allowed to be taken from London. Ibid.
30
Faith and allegiance 141

dures of inquest. If judges and lawyers had always felt the same
way, then why would they have developed and maintained until
the early fourteenth century an elaborate body of legal rules
offensive to their sense of justice? I contend that before any
proposal for a major legal change could be made, the conception of
justice had to change. The case of Rex v. Philip de Beauvais shows
that what used to be regarded as justice from the earliest days of
the common law (i.e., excluding foreign-born persons from in-
heritance because of the dif®culty of proof) had now begun to
offend the changed conception of justice.
However, Shardlow's victory in this case was incomplete. Even
though he succeeded in having an inquest taken from London, he
certainly was not in a position to offer immunity to jurors. It must
have been dif®cult to ®nd jurors who would ignore the threat of
attaint and give a verdict in favour of the defendant without ®rst-
hand knowledge of the circumstances of his father's foreign birth.
On the day assigned for the judgment, Shardlow failed to show
up. The franchise was taken into the king's hands and the
defendant was ®ned. Shardlow's feat of manipulating the ambi-
guity of ligeance was remarkable. But he could not offer an entirely
satisfactory solution for foreign-born persons' inheritance
problem. This is why a petition had to be made in Parliament in
1343.
For Geoffrey Scrope and many previous generations of lawyers,
the Channel was an undeniable geographical and legal barrier.
Ligeance was then used to describe the legal disability of a person
born hors la ligeance. But the ambiguity of ligeance opened up a
possibility of using it to overcome such legal disability. We saw
Shardlow tenaciously repeating with unswerving determination,
`the father did homage to the king and, therefore, was of the
ligaunce'. His remarkable technique of blurring the term was to be
adopted by the drafters of the statute De natis ultra mare.
According to the statute, if both parents are `de la ligeance du Roi'
when their children are born `dehors la ligeance le Roi', those
children shall henceforth have the inheritance `deinz la dite
ligeance'. It is quite amazing to see that a woman giving birth to a
child dehors la ligeance of the king can be, at that selfsame
moment, de la ligeance of the same king.
As a result of the ambiguous use of ligeance, the basic terms of
spatial perception, such as `in (deinz)' and `out (dehors)', have
History
142

become impregnated with sophisticated ideological signi®cance.
`Within the ligeance' is no longer an expression which simply
describes the geographic location of an object or an event. The
realm has ceased to be a mere locus which is populated by people
whose personal legal status is widely but justly different. The
mysterious power of ligeance would homogenise the legal status of
people `within' it. Already, the kingdom had long been conceived
as a quasi-spiritual union of people miraculously bound together
by the bond of faith and alliance (sometimes spelled as lyance) to
form a mystic body (corpus mysticum). At the same time, everyone
of the medieval Christendom was thoroughly familiar with a
parallel claim that the membership of the mystic body of Church
was the key to obtaining the salvation (ultimate liberty) through
Our Lord, of whom `our lord the king' was the earthly deputy.31
Some lawyers, however, discovered that a tactful manipulation of
terminology could demolish the thin dividing line between spiri-
tual and temporal liberty. With the new use of ligeance, our lord
the king could truly ful®l his mission in this earthly kingdom by
graciously (gratiis) dispensing liberty, temporal as well as spiritual,
to all those who are `within' his ligeance, `within' the mystic body
of which he is the head. From then on, by engaging oneself within
the bond and bounds of faith and allegiance of our lord the king,
one would obtain liberty, spiritual and temporal.
In 1368, the English Parliament had another opportunity to
consider and af®rm the new way of legal reasoning. A petition was
made that children born in Calais, Guines, Gascony and elsewhere
in the overseas lands and seignories that pertained to our lord the
king should be able to inherit just like children born within
England. The argument was that one's legal condition `within' the
ligeance should not be affected by a geographical barrier. Whether
one was `in' or `out' was no longer a spatial question. Lawyers
seemed to have already completely forgotten about the legal
problems of jury trial and certi®cation of bastardy. As long as one
was `within' the bond of ligeance, one was `within' the realm, and
therefore equal legal rights should be extended. The petition was

There is a considerable amount of literature on this point. For a short
31

bibliography, see J. L. Harouel, J. Barbey, E. Bournazel et al., Histoire des
Á
institutions: de l'e
‚poque franque a la Re
‚volution, 2nd edn (Paris, 1989) pp. 87,
301±2. One may also consult the works of G. Duby, M. Bloch, W. Ullmann,
J. Le Goff, E. Kantorowicz, J. Krynen, etc. See pp. 189ff. below.
Faith and allegiance 143

granted.32 It was a small step from there to the ruthless legal
discrimination against aliens who were `without' the bond of
ligeance. Lawyers were all ready. They were waiting for the death
of the old king.



CONCLUSION

In the preceding chapter, I argued that the statute De natis ultra
mare was not about foreigners, nor about the law of alien status. It
is now time to complement that argument. It was an argument
which was made to meet the pressing need to be rid of the
unfortunate interpretative tradition regarding the statute. I wished
to stay away from the wasteful ± from a historical viewpoint ±
discussion about whether the statute introduced the rule of ius
sanguinis into the so-called `common law rule' of ius soli. By
arguing that the statute had nothing to do with the law of alien
status, I hoped that we could prepare the way for assigning an
even greater signi®cance to the statute.
We must now stress that the statute was indeed one of the most
prominent landmarks in the history of the law of personal status in
Europe. The statute was the pithy summary of the new way of
using the old concepts of faith and allegiance. The statute was not
immediately concerned with foreigners or aliens. But, before any
proposal for legal discrimination against aliens could be made,
faith and allegiance must ®rst of all be introduced into the law of
personal status. Before legal inequality between subjects and aliens
could be discussed, legal and moral equality among subjects had
®rst to be proclaimed as the norm.
Medieval lawyers were probably all too familiar with the
notions of faith and allegiance. But no one seems to have used
them in the way the statute De natis ultra mare did. The statute
ushered in a completely different approach to the law of personal
status. From then on, faith and allegiance would ®rst and foremost
be used to determine whether a person was `within' or `without'
the mystic body politic, which became the sole vehicle leading to
salvation, temporal as well as spiritual. From then on too, it would
be unthinkable that the insider status is not necessarily connected

Statute 42 Edward III c. 10.
32
History
144

to a promise of legal bene®t and advantage. This was going to be,
as it were, a `gospel' for villeins and other natural-born Eng-
lishmen whose insider status had long been useless in promoting
their legal position. A new dividing line was to be drawn in the
law of personal status. Those who had faith and allegiance in our
lord the king would be the insiders. They should all be given legal
bene®ts and advantages. Those who lacked faith and allegiance
were outsiders. No legal bene®t should be given to them. The
mystic body politic was thus given a new life as the pivotal
concept in the law of personal status. A very long chapter in the
history of the law of personal status which lasted from the
Antiquity to the later Middle Ages was about to be over.
Under the old regime, men were divided primarily between the
free (liberi) and the unfree (serui). Under the new regime, men are
divided between insiders and outsiders. What was for Roman
jurists an intuitively obvious division was to be condemned as an
absurd and reprehensible vestige of a bygone era by the ®fteenth
century. It was to become increasingly dif®cult to believe that the
notion of mystic body politic did not play any part in the ancient
and medieval legal analysis of personal status. Sooner rather than
later, a comprehensive reinterpretation of all earlier sources was to
be undertaken. This was done by some of the ablest renaissance
jurists who could not but believe that what was an intuitively
obvious and natural division for them (the division between
insiders and outsiders) must also be so for others. The fascinating
details of this marvellous interpretative feat are mostly beyond the
scope of this book even though they are important in under-
standing why not only in England but all over Europe the history
of the law of alien and subject status could not be written so far. In
the remaining part of this book, we shall focus instead on how the
®fteenth- and sixteenth-century common lawyers interpreted
some of the late medieval sources and thereby laid the foundation
for a new era of the law of personal status which revolves around
the concepts of faith, allegiance and mystic body politic.
Part II


HISTORIOGRAPHY
7


THOMAS LITTLETON, JOHN RASTELL AND
EDMUND PLOWDEN




For a long time in Europe, inequality was the moral and legal
ideal. The fundamental division in the law of personal status was
between the free and the unfree. All other divisions were subordi-
nate to this summa divisio. In the preceding chapters, we have
examined an important change which was introduced in England
in the fourteenth century. First came the remarkable shift of
outlook: faith and allegiance should guarantee the enjoyment of
legal bene®t within the realm (1351). Then came, as a corollary,
the idea that a lack of faith and allegiance should disqualify a
person from the enjoyment of legal bene®t and advantage within
the realm. A new approach to the law of personal status was being
introduced. The new summa divisio personarum was to be drawn
between those who were within (having faith and allegiance to the
king) and those who were without. All other categorical divisions
among persons would be given secondary importance. It was, in
my view, a revolutionary change in the law of personal status in
Europe.
However, a change of legal outlook does not automatically
introduce new legal terms and de®nitions. Change of law entails
change of resource distribution patterns. To reduce the resistance
of adversely affected groups, it is preferable that the change
should be introduced with minimum visibility. The inherent
ambiguity of language will provide the key to a discreet, but
successful legal change. In this chapter, we shall examine how the
®fteenth- and sixteenth-century common lawyers manipulated
legal terminology and accomplished a silent revolution in the law
of personal status. In particular, we shall discuss the process
through which the old expression `alien ne hors la ligeance' was
charged with new meanings.

147
Historiography
148

LITTLETON'S DEFINITION OF ALIEN

The term `alien' or `alienigena' had long been used as a factual
description which made reference to a person's overseas birth or
foreign provenance. There is a good example which demonstrates
this point. The king's writs and charters issued in post-Conquest
England were often directed to `omnibus ®delibus suis, Franci-
genis et Angligenis'.1 We therefore know that the new French
settlers in England (Franci) were incorporated into the (English)
king's ®deles. However, these new ®deles were also described as
alienigena in contemporary legal texts: `It is held to be a case of
murdum if an alienigena is killed and it is not known who
committed this offence, or the slayer is not handed over by the
appointed day.' The identity of `alienigena' is further clari®ed by
the following clause: `If any Frenchman or Norman or any person
from across the see is slain, and . . .' Also, these `alien' ®deles were
given a special privilege in oath-taking. They were not bound to
swear strictly according to the forms of oath.2 There was no
inconsistency or confusion. In these texts, ®delis was used as a
legal category, whereas alienigena was a factual description of
ethnic provenance. The king's ®deles comprised men of various
ethnic origins.3
In other texts, however, we see that `alien' or `alienigena' was
used to refer to the birthplace, rather than ethnic origin, of the
person thus described. In the early fourteenth century, for
example, foreign-born persons were referred to in judicial pro-
ceedings as `alien' or `alien nee hors la ligeance'. Since place of
birth does not necessarily determine a person's ethnic identity, an
`alien nee hors, etc.' could either be an Englishman or a foreigner.
The situation was potentially problematic. In the political context,
`alien' was clearly carrying a stigma by then. The term had been
repeatedly used throughout the thirteenth and fourteenth centu-

See p. 14 above.
1

Leges Henrici primi, ed. L. J. Downer (Oxford, 1972) p. 289 (c. 92, 9b: `Murdum
2

enim habetur si alienigena occidatur, et quis hoc fecerit ignoretur uel ad diem
non reddatur'); p. 285 (c. 91, 1: `Si quis Francigena uel Normannus uel denique
transmarinus occidatur, et . . .'); and p. 205 (c. 64, 3a: `Francigene quoque vel
alienigene in verborum observantiis non fragunt').
Of course, the English were the principal ethnic group. Hence, the use of the
3

epithet `alienigena' for the Normans in England. After all, England was the
kingdom of `rex Anglorum'.
Littleton, Rastell and Plowden 149

ries in launching vehement political attacks on foreigners.4 The
technical, courtroom use of `alien nee, etc.' did not take full
account of this political situation. In fact, the problem was
squarely posed when the question of foreign-born children's
inheritance was discussed in 1343 and 1351. The petition (1343)
and the statute (1351) carefully avoided the term `alien'. Instead,
the expression `infant heirs (enfantz heritiers)' was used
throughout. Even though it was a judicially accepted practice to
use the term `alien' to refer to a foreign-born person (whether
ethnically English or not), it was politically incorrect to describe
the children of the king's beloved soldiers as `aliens'.
By the ®fteenth century, the legal ideal was clearly that those
who lack faith and allegiance to the king shall not be given legal
bene®t. The old meanings of alienigena or alien nee hors, etc.
obviously could not give adequate expression to this new ideal
because they were not at all touching on the question of faith and
allegiance. What was the solution, then?
Instead of inventing new terminology corresponding to the new
divisio personarum, common lawyers in the ®fteenth century
continued to use the old expression `alien nee hors, etc.' as if
nothing had happened.5 Thomas Littleton was following this
tradition. In his Tenures (c. 1450±60), he de®ned aliens as those
`born out of the liegance of our lord the king (ne hors de la liegance
nostre seignr le roy)'. He further elaborated that `born out of the
liegance' meant `born in such country as is out of the king's
liegeaunce (nee en tiel pays q est hors de la liegeaunce le roy)'.6
Statutes enacted in Tudor years were in complete agreement with
Littleton's de®nition in that alien status was de®ned by birthplace
only. Alien merchants were described as `dyvers Merchaunts
straungers born owt of this realme'. Aliens were those `borne in
other Realmes' or `borne out of this realme of England or other
our said lorde the kinges obeisaunce'.7
However, the apparent continuity of terminology is concealing

D. A. Carpenter, `King Henry III's ``statute'' against aliens, July 1263', 107
4

English Historical Review (1992) 925±43. Professor J. H. Baker kindly drew my
attention to this article. During the centuries immediately following the Norman
Conquest, the term `alienigena' was not carrying the stigma. See note 2 above.
For example, Year Book, Hil. 14 Henry IV, fos. 19±20, pl. 23 (1413), Year Book,
5

Hil. 7 Edward IV, pl. 17 (1467), Year Book, Trin. 9 Edward IV, pl. 3 (1469).
T. Littleton, Tenures, printed by R. Pynson (London, c. 1510) fo. xiv (r).
6

Statute 1 Henry VII c. 2 (1485); Statute 4 Henry VII c. 23 (1488): `any
7
Historiography
150

an important legal change. Until Serjeant Shardlow's remarkable
pleading strategy was accepted by the court (1321), to be born
`within' or `without' the ligeance was a spatial question; that is,
whether a person was born `in this land (en cest terre)' or `over
there (la outre)'. Without altering any of these terms, English
lawyers achieved one of the most signi®cant changes in the law of
personal status. By the time of Littleton, few, if any, doubted that
to be born `within' or `without' the ligeance was a question of faith
and allegiance. Hardly anyone could remember that the question
of overseas birth originally arose in connection with the proce-
dures of inquest, which had little to do with faith and allegiance of
the heir or the deceased.
How did common lawyers manage to do this? The word ligeance
holds the secret. The double meaning of ligeance provided the
ideal means to reify the bond of faith and allegiance. The in®ltra-
tion of faith and allegiance into the law of personal status was
discreetly done because the entry was gained through their rei®ed
substitute: birthplace. The ambiguity of the word ligeance allowed

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