have to reveal the identity of their novel claim that the bond of
faith and allegiance should override the established law and legal
procedures. Common lawyers kept talking about ligeance, and
stuck to the old-fashioned cliche `nee hors la ligeance' or `nee
deinz la ligeance'. But the art of double-talk afforded by ligeance
guaranteed that birthplace itself was already suf┬®ciently imbued
with faith and allegiance to our lord the king.
Rei┬®cation of faith and allegiance was complete when not only
alien status, but also subject status was de┬®ned in terms of
birthplace only. By the sixteenth century, statutes usually de┬®ned
subjects as those `borne within this Realme of England, Wales or
Irlond' or `Englishemen naturally borne within the kinges Graces
Dominions and obeisaunce'.8 Lawyers no longer needed to
mention faith and allegiance in de┬®ning subject or alien status. It
suf┬®ced to mention birthplace only. Faith and allegiance used to
be rhetorical elements of political and theological discourse. They
have now turned into pivotal concepts of the law of personal status
merchaunt or other persone straunge borne oute of your obeisaunce'. Statute 32
Henry VIII c. 14, ┬§ 7 (1540).
Statutes 6 Henry VIII c. 11 (1514), and 32 Henry VIII c. 16 (1540) respectively.
Littleton, Rastell and Plowden 151
which can be suitably discussed in the courtroom using the
technical `legal' term of birthplace. Sooner or later, even lawyers
themselves would forget why they picked up place of birth as the
legal criterion of subject and alien status.9
By arguing that the new legal ideal was expressed by the old
terminology `alien nee hors, etc.' and that alien and subject status
was de┬®ned in terms of birthplace only, we are in fact ┬»atly
rejecting the canonical position. Legal historians, of course, have
unanimously treated the statute De natis ultra mare as introducing
or con┬®rming the rule of parental descent of alien and subject
status (the so-called ius sanguinis). Since the statute requires
parents' faith and allegiance as a condition for the children's
inheritance, historians have believed that parentage, as well as
birthplace, contributed to the determination of a person's alien or
subject status. We saw, however, that neither Littleton, nor any of
the statutes enacted in those years, treated parentage as relevant to
alien or subject status. In the following pages, we shall discuss
how the statute De natis ultra mare was interpreted by the
sixteenth-century lawyers. There, we shall have an opportunity to
see how parentage was introduced in the English law of alien
Littleton was probably the last English jurist who could comfor-
tably write a treatise on the common law relying on his own
authority. He did not feel obliged to crowd his pages with citations
of precedents or authorities handed down from the past.10 There-
fore, we may not interpret his or his contemporaries' silence on
the statute De natis ultra mare as conclusive evidence that the
statute was regarded as irrelevant to the de┬®nition of alien status.
After Littleton's death, however, statutes and judicial decisions
began to be viewed from a different perspective. The earliest
extant edition of an abridgement of statutes seems to have been
printed in c. 1481.11 The earliest edition of a chronological
See p.174 below.
John H. Baker, An introduction to English legal history, 3rd edn (London, 1990)
Statutes of the realm, Records Commission, 9 vols. (1816┬±28), I, p. xxi. The
compilation of statutes was printed shortly thereafter.12 From the
reign of Henry VIII, statutes appear to have been regularly
published at the end of each session of Parliament.13 The appear-
ance of printed statute-books suggests that members of the legal
profession treated statutes with new reverence. Statutes were no
longer regarded merely as decisions of Parliament upon com-
plaints about matters of private interest. We see a statute-book
being advertised by its editor who proudly claimed that `for as
muche as statutes be one of the pryncypall groundes of the lawe,
so that yf the statute be unknowen, the lawe is unknowen in the
Littleton could expound the law as he `knew' it from his
practice, rather than as he `found' it in some written texts of the
past. But such a manner of discourse was soon to be regarded as
unacceptable for presentation of legal argument. The style of legal
argument began to show a growing dependence on the written
texts from the past. Students of the common law were now urged
to search for ancient statutes because `the moste part of them
retayne theyr force, and bynde the kyngs subiectes unto this
Exhortations to look to the past could be heard with regard to
year book cases as well. The ┬®rst printed abridgement of year
book cases appeared in c. 1490.16 The larger and more widely used
abridgement of Sir Anthony Fitzherbert was ┬®rst published in
c. 1514┬±16. Appearance of commonplace books and widespread
copy is kept in the Harvard Law Library. Short-title catalogue of English books
1475┬±1640 (STC) No. 9513. It contains an abridgement of statutes up to 1455.
Nova statuta (printed by W. de Machlinia c. 1482). The Bodleian Library has a
copy probably printed in 1484 (Arch. G. d. 28). It contains statutes from 1
Edward III to 22 Edward IV (1481).
The ┬®rst contemporaneous sessional publication of statutes seems to have been
carried out by Machlinia or Caxton in the reign of Richard III (1484). Statutes
of the realm, I, p. xxi.
The greate abbrydgement of all the statutes of Englande untyll the xxx yere of the
reygne of our moste drad souerayne lorde kynge Henry the eyght . . ., printed by
W. Rastell (London, c. 1538). It is an enlarged and updated edition of John
Rastell's abridgement of statutes printed in 1527. The quoted passage is from
the preamble to the table of the newly abridged statutes inserted towards the end
of the book.
From the preface of The great charter called in latyn Magna Carta with divers
olde statutes, printed by R. Redman (London, c. 1540s).
The compilation is attributed to Nicolas Statham (d. 1472). Baker, Introduction,
Littleton, Rastell and Plowden 153
circulation of printed abridgements clearly suggest that judicial
decisions began to be viewed from a different perspective. As oral
pleadings gradually lost importance and gave way to new ways of
raising questions of law in legal proceedings, the nature and
purpose of case reporting changed. Year book cases were now
treated as `sources' of the common law. In the prologue of Les
comentaries ou les reportes de dyvers cases (1571), Edmund Plowden
made it clear that his objective was to provide judges and lawyers
with the judicial decisions of the past `most ┬®rm to trust unto'.17
Now, the common law had to be `found' in earlier decisions of the
court and in statutes previously made in Parliament. I propose to
examine how the statute De natis ultra mare and other related
medieval legal texts were classi┬®ed and presented in early statute-
books. It will provide valuable information about the late ┬®f-
teenth- and early sixteenth-century understanding of these texts.
The statute De natis ultra mare was featured from the very
beginning. In the earliest extant copy of the abridgement of
statutes (c. 1481), the statute was digested under the heading
`those born beyond the sea (Nati in partibus transmarinis)'.
However, it was given a very cursory treatment. The statute was
not mentioned again anywhere in the book. There was a separate
heading, `Aliens'. But it only listed a statute on jury de medietate
linguae and a statute on alien priors' ability to hold bene┬®ces.18 A
cross-reference at the end of the section on `Aliens' refers the
reader to the section on trial. Under the heading `Triall', we again
┬®nd a statute on the mixed jury. With this amount of information,
it is dif┬®cult to know why the statute De natis ultra mare was
maintained separately from the heading `Aliens'.
The ┬®rst chronological compilation of statutes (c. 1482) offers a
more revealing treatment of our statute.19 The same heading `Nati
in partibus transmarinis' was used again. But the editor gave the
following description of the statute: `How man from beyond the
sea shall inherit in England (Coment home de ouster le meer serra
enherite en Engleterre)'. This time, the statute 42 Edward III c. 10
was newly indexed as a related statute. Interestingly enough, the
John H. Baker, `Records, reports and the origins of case-law in England' in his
(ed.) Judicial records, law reports, and the growth of case law (Berlin, 1989)
Statute 28 Edward III st. 3; Statute 1 Henry V c. 7, respectively.
Nova statuta (printed by W. de Machlinia).
statute De natis ultra mare was indexed under the headings
`Bastardie' and `Trialle' as well. The editor gives the following
description regarding the statute: `Bastardy shall be tried by the
ordinary of the place where the writ is brought (Bastardie serra
trie par lordinar del lieu ou le bre est porte).' Like the 1481 abridge-
ment, there is a heading `Aliens' which keeps silent about the
statute De natis ultra mare and the statute 42 Edward III c. 10.
In 1499, Richard Pynson printed an enlarged edition of the 1481
abridgement.20 The arrangement of 1481 was largely retained.
However, there was one important change which re┬»ected the
arrangement of the chronological compilation of c. 1482. That is,
the statute De natis ultra mare was abridged under the heading
`Triall' as well. Pynson explained that the statute dealt with the
bastardy trial procedures applicable to a person born beyond the
sea.21 The section on bastardy, however, does not contain a cross-
reference to the statute De natis ultra mare. But the copy kept at
the Harvard Law Library shows that this oversight was corrected
by a contemporary hand who added the cross-reference to this
statute at the end of the section on bastardy. Pynson newly inserted
a heading `Estraungers'. But, neither this nor the heading `Aliens'
contained any mention of the statute De natis ultra mare. Pynson's
1499 abridgement was frequently re-edited in the sixteenth
century. The statute De natis ultra mare and the statute 42 Edward
III c. 10 received the same treatment in all these editions.22
From c. 1500, Pynson began to print chronological compilations
of statutes as well. His Nova statuta (STC No. 9265) was an
enlarged version of Machlinia's edition of c. 1482. A number of
statute-books known as The great boke of statutes were subse-
quently printed and updated based on this edition.23 In all these
editions which follow the arrangement of Machlinia and Pynson,
the statute De natis ultra mare and the statute 42 Edward III c. 10
The volume has no title page. It begins `Incipit Tabula huius libri' and ends
`Explicit abbreuiamentum statutorum . . .' STC No. 9514.
`Bastrdie allege en cely que fuit ne doust le mere serra trie p lordinar del lieu ou
le bre est pt come ad ee. use de bastardie all. contre ceux que nasqrent en engle'.
For example, Abbreuiamentum statutorum . . . (printed by Pynson in 1521) STC
No. 9516; Le breggement de touts les estatuts . . ., printed by R. Pynson (London,
1528) STC No. 9517; Abridgement of statutes, printed by R. Redman (London,
1539) STC No. 9542.
For example, The great boke of statutes, printed by R. Redman, T. Berthelet and
J. Rastell (London, c. 1533).
Littleton, Rastell and Plowden 155
were indexed as dealing with inheritance and bastardy trial
procedures applicable to a person born beyond the sea. The
heading `Aliens' makes no reference to these statutes.
In light of the foregoing, we may conclude that lawyers in the
┬®fteenth and early sixteenth centuries were well aware of the
statute De natis ultra mare, but they did not treat it as relevant to
alien or subject status. By that time, there was no doubt that
foreign birth made a person an alien; and that an alien was often
portrayed as banned from all types of common law transactions as
well as inheritance.24 However, a great deal of imagination would
be necessary to say that since the statute De natis ultra mare
enabled certain children to inherit, it was therefore about those
children's subject status. Sooner or later, however, someone
would nevertheless make such a bold move.
JOHN RASTELL AND ELIZABETHAN SUCCESSION TRACTS
In 1519, John Rastell printed the ┬®rst English abridgement of
statutes. It appears that he had planned an improvement of
Pynson's 1499 abridgement by taking `this lytell payne to translate
out of the frenche into englysshe'. However, the 1519 edition was
incomplete. Many statutes, including De natis ultra mare, were
omitted.25 A fuller edition was printed in 1527.26 Our statute was
now translated into English. But when Rastell replaced the usual
heading `Nati in partibus transmarinis' with a new heading
`Englisshemen', he was doing much more than translation.27 In
the following year, he printed an abridgement of statutes in their
original language. The heading `Englisshemen' was deleted ac-
cordingly, and the old heading `Nati in partibus transmarinis'
reappeared. But the meaning of the heading could never be the
same again. The section ends with a cross-reference to the clause
See p. 158 below (Littleton's explanation of an alien's complete legal disability).
Whether or not and how thoroughly this principle was actually put into practice
in the ┬®fteenth century is not our topic.
See the copy kept in the British Library (B. E. 11/1).
Like the previous edition, this copy has no title page. It begins `The statutes.
Prohemium Johannis Rastell . . .' and ends `Emprynted in the chepesyde in the
xix yere of the reygne of . . . Kinges Henry the viii.' The British Library has a
copy (C. 65. aa. 13).
Ibid., fo. 69.
on prerogative escheats of the Normans' lands. This is where John
Rastell differed most from his contemporaries. And this, of
course, is where he is closest to modern British legal historians'
understanding of the beginning of the law of alien status.28
In fact, John Rastell's originality was already revealed in a
glossary of legal terms which he printed in those years. There, he
gave the following de┬®nition of alien status:
Alyon is he of whome the fader is born and he hymselfe also borne out of
the elegiaunce of our lord the kyng, but yf an alyon come and dwell in
englond whyche is not of the kynges enemyes and here ad issu this issu is
not alion but englysh, also if an englysh man go over the see with the
kyngs lycence and ther ad issu this issu is not alyon.29
He claimed that his expositions were `as well out of the bokis of
mayster littelton as of other bokis of the law'. As far as the above-
quoted de┬®nition is concerned, however, his claim was a gross
misrepresentation. Littleton never mentioned the parents' alle-
giance in de┬®ning alien status. The statute De natis ultra mare never
mentioned the children's subject status in enabling them to inherit.
Rastell somehow believed that these two could be combined. In
fact, his crude combination was full of errors. He ignored that the
statute De natis ultra mare required both parents' allegiance as a
condition for the children's inheritance. Also, he invented the
king's licence for crossing the sea. The statute only mentioned that,
for the purpose of the children's inheritance, the mothers should
have crossed the sea by permission and wilful consent of their
husbands.30 Most of all, he interpreted that allowing inheritance
was equivalent to, or based on, the recognition of the children's
See Magnum abbreuiamentum statutorum Anglie usqz ad annum xv H. viii
inclusiue, printed by J. Rastell (London, 1528).
The exposicions of the termys of the law of england and the nature of the writt . . .
gaderyd and brevely compylyd for yong men very necessarye (London, c. 1525┬±7).
It was repeatedly printed in the following decades and is better known as
See, however, Year Book, Hil. 22 Henry VI, pl. 5. The ancestor crossed the sea
without the king's licence, took a wife there and had an issue. The issue shall not
inherit and the land shall be escheated. The king's licence was mentioned here as
a justi┬®cation for escheat, not as a condition for the issue's subject status. The
ancestor was probably regarded as treasonous for having violated the ban against
defection. That is why the inheritance did not descend on the next available
heir. Brook explains this point and indicates that under normal circumstances
(i.e., not involving the violation of the royal ban against crossing the sea), if the
eldest son is an alien, the inheritance will go to the next available heir. R. Brook,
Grande Abridgement (London, 1573) denizen & alien, pl. 14 and pl. 7 (when the
Littleton, Rastell and Plowden 157
subject status. This interpretation was not only a non sequitur, but
also against the year book cases of 1413 and 1474. The case of 1474,
for example, allows the possibility to interpret that a foreign-born
child who has successfully claimed the inheritance relying on the
statute De natis ultra mare would still need the king's letters patent
in order to be engaged in other common law transactions such as
purchase or gift of land. In spite of the statute which allowed
inheritance, foreign-born children seem to have remained aliens
unless and until they speci┬®cally obtained the king's letters patent
enabling them to operate like subjects.31
The impact of John Rastell
John Rastell died in 1536. Until 1563, he only had one disciple for
his innovative, but faulty interpretation: his son William Rastell.32
Even though the Rastells maintained a near monopoly in printing
and marketing subsequent editions of statute-books, none of the
statutes in the early sixteenth century adopted their de┬®nition of
alien status. The hugely successful editions of their Expositiones
terminorum did not change the law either. In 1537, for example, an
attorney and fellow of Gray's Inn, Robert Aske, was interrogated
in connection with an insurrection called the `Pilgrimage of
Grace'.33 He had proposed the repeal of a statute empowering
Henry VIII to dispose of the crown to a person of his choice.34
eldest son is an alien, this does not lead to escheat because alienage, unlike
attaint, is not corruption of blood).
Anthony Fitzherbert, Grande Abridgement (c. 1514┬±16) deinzin, pl. 3 (`Mesqz
un alien soit jure en un lete de succession destre loial et foyal al roy unc. il nest
enable de purchas terre ou tenementz si non que il soit fait able par letter le roy,
et ceo en un chall., etc.'). Fitzherbert wrongly attributed this case to Mich. 14
Edward III. We believe that the case was decided in Mich. 14 Edward IV,
(1474). See Year Book, Mich. 14 Edward IV, pl. 6. The copy of the Abridgement
kept in Cambridge University Library shows that the mistake was corrected by a
contemporary hand. For the year book case of 1413, see Year Book, Hil. 14
Henry IV, fos. 19┬±20, pl. 23 as well as Brook, Abridgement, denizen & alien,
pl. 11. Professor Baker kindly drew my attention to this case.
See The greate abbrydgement of all the statutes of Englande . . ., printed by
W. Rastell (London, c. 1538). It was enlarged and printed again in 1542. See
also A collection of all the statutes . . ., printed by W. Rastell (London, 1557,
1559). It was frequently re-edited during 1559┬±1620. In all these editions,
W. Rastell faithfully followed his father's interpretation.
Dictionary of national biography, under `Robert Aske'.
Statute 28 Henry VIII c. 7 (1536).
When he was forced to defend himself for `grudging against the
actes of the kinges Parliament', he explained as follows:
[Anyone] borne vnder the crown of this realme may clame . . . the law of
this realme as ther inheritance [and this law enables them] frely to by &
sell landes & goodes & take by descent, and so cannot an alien do nor
clame. [I]f the crown wer giffyn by the kinges highnes to an alian . . . how
should this alien by reason haue it . . . because he is not born vnder the
allegiance of this crown.35
Robert Aske discusses alien status without any reference to
parentage. Aliens are portrayed as incapable of all types of
common law transactions, personal as well as real. We see the
triumph of Littleton, who explained in the previous century that
`if an alien wants to bring a real or personal action, the tenant or
defendant can say that he is born out of the ligeance of our lord
the king and demand judgment whether he shall be answered'.36
In 1541, however, an important change was introduced. A
naturalisation act was passed which provided that children of an
English father who were born abroad shall be `from henceforth
reputed & taken kinges natural subject as lawfull persons borne
within this Realme of England'.37 Just as much as it reveals the
growing in┬»uence of the Rastells' new interpretation, so much
does it show that until that very moment, the law of subject and
alien status was based exclusively on birthplace. Birth out of the
realm makes a person an alien as explained by Littleton. Both
parents' allegiance exceptionally enabled inheritance as provided
by the statute De natis ultra mare. However, whether such a
person could be engaged in other common law transactions, such
as sale or gift, was a widely open question. As indicated by the
Mary Bateson, `Aske's answer regarding the illegitimacy of Lady Mary', 5
English Historical Review (1890) 562┬±4.
Leteltun teners newe correcte, fo. xiv (r). Emphasis supplied. Coke, of course,
attempted to qualify Littleton's sweeping statement. Coke suggested that an
alien's legal disability should be applicable to real actions only. Coke was
apparently relying on the authority of Plowden who made this argument in his
succession treatise which we discuss shortly. Plowden's view is supported by
Brook, Abridgement, denizen & alien, pl. 10 (38 Henry VIII, 1546): `alien nee
poet porter action personell et serra repond sans este dishable . . . et econtre in
action real et idem videtur in action mixte'. See also ibid., pl. 16 (1479: an alien
can bring a personal action in the common law and the plea of alien born is
applicable only to real actions and mixed actions; in the business world of
merchants, aliens can buy and sell and their deals are valid, hence, ex equitate,
they must have actions for debts and their assets).
Statute 33 Henry VIII c. 25.
Littleton, Rastell and Plowden 159
year book cases of 1413 and 1474, the prevalent opinion was
probably that the person would still need the king's letters patent
to be engaged in such transactions. To be allowed to inherit was
not enough to alter the person's alien status. These were the
circumstances under which the statute 33 Henry VIII c. 25 was
introduced. The statute provides that the father's subject status
would remove the children's alien status.38 For the ┬®rst time,
therefore, (paternal) lineage was partially introduced into the law
of subject and alien status. In our view, it was not based on any
precedent. If anything, it was based on the faulty interpretation of
the family of Rastells.
John Hales' tract (1563)
However, a decisive victory was assured for the Rastells when
their interpretation was adopted by John Hales in 1563. This
outspoken tract-writer was deeply involved in the Elizabethan
politics which revolved around the question of succession to the
crown. As a Protestant supporter of Catherine Grey (a descendant
of Mary Tudor, the younger sister of Henry VIII), John Hales'
mission was to exclude Mary Stuart and Margaret of Lennox
(both of whom were descendants of Margaret Tudor, the elder
sister of Henry VIII). To this end, he wrote a tract entitled `A
Declaration of the Succession of the Crown Imperiall of
Ingland'.39 His strategy was obvious from the outset. `[B]y
Nature', he argued, `there ought to be great Difference betweene
English Men and Straungers.' But the situation was complicated
because one of the two ladies to be branded as `straungers' was in
fact born in England (Margaret of Lennox). Established law was
of no use to John Hales because it took no account of parentage in
conferring the subject status on children who were born in
England.40 Even the statute 33 Henry VIII c. 25 was not very
helpful because all it said was that foreign-born children of an
See, in this connection, Brook, Abridgement, denizen & alien, pl. 21 (of uncertain
date; Brook simply notes that the case is from the printed abridgement of assize
reports). The father's subject status appears to have passed not only to the
children, but to his wife as well (`Engloys passa le meere et mary feme alyen, per
ceo le feme est dallegeans le roy et son issu enheritera').
Printed in George Harbin, The hereditary right of the crown of England asserted
(London, 1713) appendix, pp. xx┬±xlii.
See Brook, Abridgement, denizen & alien, pl. 9 (1544): an alien's son born in
English father should no longer be aliens. What John Hales
needed was an argument that English-born children of an alien
father should not be English subjects.
Under these circumstances, John Hales adopted Rastell's inno-
vative interpretation because it allowed scope for an argument for
paternal descent of alien status. John Hales' politically charged
argument was therefore based on the assumption that the statute
De natis ultra mare was `expoundinge the Law in this Case'.
Accordingly, the legal disability of Mary Stuart was derived from
the following arguments: (1) she was not the king's child; (2) she
was not born within the king's ligeance; and (3) her parents were
not at the faith and allegiance of the king. The ┬®rst and the third
arguments were utterly super┬»uous. The second argument alone
would have been necessary and suf┬®cient to explain the legal
disability of Mary Stuart. But John Hales was deploying the two
other arguments as a preface to the fantastic theory of paternal
descent of alien status which he was about to unfold with regard to
Margaret of Lennox.
It is according to `God's plan', claimed John Hales, that men
are `the more worthy' than women. Children should therefore
follow the condition and estate of their fathers. To some extent,
this theory was supported by the statute of 1541 which introduced
the paternal descent of subject status. John Hales wanted to add a
new claim (paternal descent of alien status) which no one had ever
made. He speculated that the `proposition (that every Person
borne in Ingland, of what Nation soever his Parents were, shold
be free in Ingland) can[not] be justi┬®ed by any reason'. Since
`customs not grounded upon reason cannot prescribe', he con-
cluded that Margaret of Lennox ┬± her father was a Scot ┬± should
not be a free-woman even though she was born in England.41
What is being attacked here as `customs not grounded upon
reason' were in fact the de┬®nitions of alien and subject status
unanimously upheld during the ┬®fteenth and early sixteenth
centuries. The time had changed enough and Littleton's unequi-
England is English, not an alien (`Et le ┬®ts de alien quel ┬®ts est nee in Angleterre
il est Angloys et non alien').
Harbin, The heriditary right, pp. xxxiv, xxxvii. The father of Margaret of
Lennox was Archibald Douglas, the sixth earl of Angus. He was married to
Margaret Tudor after the death of her ┬®rst husband.
Littleton, Rastell and Plowden 161
vocal de┬®nition of alien status was now disgracefully castigated by
an unworthy pamphleteer as an `unreasonable custom'.42
Throughout his tract, John Hales frequently referred to `Praesi-
dent and Example' which included historical events, narrative
passages from chronicles, legal texts on dilatory exception against
French enemies (Bracton), on the king's escheat of the Normans'
lands (Prerogativa regis), and even Littleton's de┬®nition of alien
status. None of these, however, were used accurately. In fact, he
misquoted Littleton, misunderstood the important year book case
of 1474, misinterpreted the naturalisation statute of 1541 and kept
silent about Tudor statutes which were immediately relevant to
the alien and subject status. Super┬®cial as his legal learning was,
he was an immensely in┬»uential advocate of the Puritan cause in
Elizabethan succession politics. The family of Rastells ┬®nally
found an indiscreet, but vociferous follower.43
The succession tracts
John Hales' tract provoked vehement and voluminous responses.44
However, all subsequent debates were conducted within the
framework laid out by his tract. No one raised any doubt about
Hales' assumption that the statute De natis ultra mare was about
subject and alien status. The statute was unanimously regarded as
removing the `disabilitie of foreyne birthe'.45 Removal of dis-
ability, it certainly was. But what did they mean by `foreyne
To answer this question, we must ┬®rst understand that birth
`within the ligeance', on the other hand, was viewed by then as
guaranteeing the `liberty of England'. John Hales' following
remark is revealing: `For if you will put Straungers and right
Englishe Men in one case, what avaylesth the liberty of Ingland?
`He [ John Hales] evidently picked up a smattering of law while working for his
uncle, Sir Christopher Hales, who had been Solicitor General and Attorney
General under Henry VIII. His was probably the super┬®cial learning that makes
for a good pamphleteer.' Mortimer Levine, The early Elizabethan succession
question, 1558┬±1568 (Stanford, Calif., 1966) pp. 62┬±3.
See George T. Peck, `John Hales and the Puritans during the Marian exile', 10
Church History (1941) 159┬±77 for a more favourable portrayal of Hales and his
role as the Elizabethan Puritan parliamentarian.
See the appendix at the end of this chapter.
BL Harleian MS 849 (Plowden's treatise, 1567) fo. 14r.
What pro┬®ts it to be an English Man borne?'46 The same attitude
was shared by all lawyers of the sixteenth century. We have
already quoted a statute of 1541 where the king's subjects were
described as `lawfull persons borne within this Realme of
England'. None of those who were involved in the succession
debate realised that they were dealing with a statute (De natis ultra
mare) which was enacted when a large number of people born
within the realm were still unable to claim the status of lawful
persons (legales homines). That anyone born within the king's
ligeance could be legally disabled within his kingdom was no
longer an acceptable ideal although probably it was still the
reality. At least in theory, lawyers all agreed that faith and
allegiance to our lord the king should make one free. Birth within
the `obeisaunce of our lord the king' was indeed the key to
Now, legal disability (deprivation of liberty) was only for those
who failed to be born under the `obeisance of our lord the king'. It
was beyond the pious imagination of the sixteenth-century
lawyers that not only foreigners, but also Englishmen, were
suffering from the so-called `disabilitie of foreyne birthe' until the
early fourteenth century. They did not recognise that there was a
time when the `disabilitie of foreyne birthe' arose because of law
(procedures of inquest), not because of faith and allegiance. This
very statement would appear to them as a contradiction in terms.
For, by that time, faith and allegiance had long been the axiomatic
premises of the law.
John Hales' succession tract was circulated in these years. The
moment the statute De natis ultra mare was presented as removing
the `disabilitie of foreyne birthe', none of the sixteenth-century
Harbin, The hereditary right, p. xxx.
This is the essential structure of the monotheistic ideology shared by Judaism,
Christianity and Islamism. See, for example, the meaning of `Islam' and
`Muslim' explained in Mohammed Arkoun, L'Islam, 2nd edn (Paris, 1992)
pp. 34┬±8: `obeissance amoureuse' is the key to the ultimate liberation. See also
Faouzi Skali, La Voie Sou┬®e (Paris, 1985) pp. 33┬±4: `La relation d'un individu
avec l'archetype divin dont il est l'expression est la relation d'un serviteur ('Abd)
avec son Seigneur (Rabb).' This is how the ultimate liberator is identi┬®ed with
the ultimate master (Dominus) and how the `subject' status was the key to the
`liberty of Englishman born'. What distinguishes Christianity from Judaism and
Islamism, however, is the concept of the `mystic body of Christ' which is unique
to the Christian ecclesiology and which provides the ideological foundation of
the law of alien and subject status.
Littleton, Rastell and Plowden 163
lawyers could escape from the potent grip of their own assump-
tions, that is: (1) foreign birth meant alien status; (2) alien status
meant legal disability; and (3) no such disability should affect the
king's subjects because they were guaranteed equal liberty
through `obeisaunce'. According to the sixteenth-century legal
vocabulary, `foreyne birthe' could not by any means be a factual
description. It signi┬®ed a category of personal legal status char-
acterised by the lack of faith, allegiance and obedience. Little did
it matter that the statute De natis ultra mare carefully avoided the
terms `alien' and `liege' which were in common use in the four-
teenth century. Nor were they troubled by the statute's lengthy
clause on bastardy trial procedures which did not make much
sense to them. No one found it odd that neither Littleton, nor year
book cases, nor any of the Tudor statutes mentioned this statute in
connection with alien or subject status. They also put away a
number of early statute-books where this statute was presented as
irrelevant to the alien or subject status. Finally, no one cared to
remember that as late as 1541, Parliament enacted a statute based
on the assumption that the statute De natis ultra mare was
irrelevant to the alien or subject status of foreign-born children.
This, in my view, is how the statute De natis ultra mare began
its career as the nationality statute of England. Also, this is how
parental descent was partially introduced into the English nation-
ality law.48 In the remaining pages, we shall discuss two manu-
script tracts. They form part of the Elizabethan succession tracts.
But their importance merits a separate treatment.
PLOWDEN'S MANUSCRIPT (1567)
As a devout Catholic lawyer, Sir Edmund Plowden felt obliged to
refute the widespread Protestant propaganda against Mary Stuart.
After spending the Christmas of 1566 `serch[ing] reasons and
groundes of the lawe', he wrote in 1567 a tract entitled `A treatise
proving that if our Soveraigne Lady quene Elizabeth (whom god
blesse with long lyffe and many children) should dye without
France has a rather different history regarding the introduction of the parental
descent of nationality. See Anne Lefebvre-Teillard, `Ius sanguinis: l'emergence
d'un principe (elements d'histoire de la nationalite francaise)', 82 Revue critique
de droit international prive (1993) 223┬±50.
issue, that the Quene of Scotte by her birth in Scotlande is not
disabled by the lawe of England to receive the crown of Ingland
by discent.'49 Knowing the numerous obstacles which lay in the
area of inheritance law, he greatly appreciated the merit of an
argument that the `crown being a thing incorporate, the right
thereof does not descend like the case of private inheritance, but
goes by succession as other corporations do'.50 Accordingly,
Plowden developed a sophisticated argument about `the two
bodies of the king'. That, of course, was to argue that legal
disabilities of foreign birth `extende but to bodies naturall only[;
they] can not be applyed to bodies politicke'. Although a person
may not herself or himself be a body politic, `the body naturall is
extolled by the conjunction with the body politicke and altered in
qualitie'. Therefore, he concluded, foreign birth is `non impedi-
ment from receipte of that that maketh a body politicke and so not
from receipt of the crowne'.51
Plowden was counting on year book cases where the plea of
`alien nee, etc.' was held inadmissible with regard to the head of
English daughter-houses of foreign religious orders. Plowden
claimed that these cases `declared the lawe truely that an alien
might be a Bishopp, Abbot or parson within this realme' (fo. 17r).
As we saw, however, the question of foreign birth arose only in
connection with the proof of descent. The plea of `alien nee, etc.'
was inapplicable to the religious houses because they do not have
children. Plowden did not recognise that the plea of `alien nee, etc.'
in the fourteenth century had nothing to do with the alien or
subject status. Although the effectiveness of the plea did depend on
BL Harleian MS 849.
On this point, Plowden was in complete agreement with his friend, justice of the
Common Pleas, Anthony Brown (d. 1567). The same argument was repeated by
J. Leslie, A defence of the honor of Mary . . . (London, 1569) fo. 68r. Regarding
the dating of the manuscript treatise of Anthony Brown, see Marie Axton, `The
in┬»uence of Edmund Plowden's succession treatise', 37 Huntington Library
Quarterly (1974) 209┬±26.
Emphasis supplied. Our quotations are from the ┬®rst part of his treatise (fos.
1r┬±18v), which is entirely devoted to this argument. The theory of the `king's
two bodies' had already appeared in Willion v. Berkeley (75 Eng. Rep. 380; also
printed in his Les Comentaries ou les reportes de dyvers cases (London, 1571) 248).
The prologue to his Comentaries also contains a lengthy discussion on this
theory and it attracted the attention of Maitland and Kantorowicz. Neither of
these authors, however, seems to have been aware of Plowden's manuscript
treatise on the succession question.
Littleton, Rastell and Plowden 165
the distinction between corporate body and natural body, the plea
was applicable to Englishmen as well as to foreigners. After all, if
foreigners became bishops, abbots or parsons in England, that was
not because they formed corporations conjoining their body
natural with the body politic of bishopric, abbacy or parsonry,52
but because anyone could be presented, collated, provided or
elected to these posts as long as the relevant procedures of the laws
of the Church and of the realm were duly observed.
But why should the sixteenth-century lawyers waste any time
trying to understand the past when they found `valuable' texts
which ┬± if appropriately interpreted ┬± could put them in good
stead in the polemic exchanges in which they were deeply
involved? Plowden's treatise goes one step further and shows that
even if they were forced to remember the past, they would rather
avoid doing so if the past should be damaging to their present
argument. Already in December 1565, one of the anti-Stuart
authors clearly suggested that Mary Stuart's claim could be
effectively denied without having recourse to her alien status.
According to this anonymous author, an elder brother born in
France, for example, would be denied inheritance `for our law
medilith not with' a person born out of the realm. Instead, the
inheritance should go to the younger brother born within the
realm because `th'one [the younger brother] is known unto the
lawe and not the other'. The author left no doubt that it was a
question of law (cognisance of jury) rather than one of faith and
allegiance: `for if the Law could take notice of the elder brother in
France, surely the younger Brother should never inherit'.53
Plowden must have realised that such an argument would be
fatal to Mary Stuart's claim. Since the argument allowed virtually
no room for manoeuvring, the best way out of it was to dismiss it
altogether. Plowden began his argument by setting forth two
possible causes for the disability of a French-born heir. First, he
gave a full statement of his adversary's argument:
[A] French borne can not be knowne or tryed within Inglande to be
discended of the [father] for that he and his father were borne out of the
See Maitland ┬± selected essays, ed. H. D. Hazeltine et al. (Cambridge, 1936)
p. 87 (`On the whole it seems to me that a church is no [corporate] person in the
English temporal law of the later Middle Ages').
`Allegations against the Surmised Title of the Quene of Scotts . . .' BL Harleian
MS 4627, fo. 18r.
Realme, and of thinge chaunced out of the realme our lawe takethe no
knowledge, for tryalls by our lawe are by twelve men and these men are
not bounde to enquyre of any thinge beyond the seas.
In other words, a foreign-born heir was unable to inherit, not
because he (she) was an alien, but because `no Jury of this realm is
bound to take knowledge, nor non otherwais there is by the lawe
to trye or knowe that the french borne is descended of the
The second possible reason, according to Plowden, is based on
faith and allegiance. It is supposed that the hereditary descent of a
French-born child could be tried in England without any legal
yet the frencheman shoulde be disabled for that he was borne in the
allegiance of another prynce to whom he is subject, not to the king of
Inglande, and if he is subjecte to an other to whom he oweth faith and
ligeance, then the lawe accounteth him a straunger to the realm, and
therefore disableth him to take by discent any inheritance.
Having thus de┬®ned the two possible causes (fo. 9v), Plowden
embarked on an examination of a number of precedents to `prove'
which of the two was the true cause of the `disabilitie of foreyne
birthe'. He took notice of year book cases where an ecclesiastical
bene┬®ce became vacant because the incumbent was made bishop of
a diocese beyond the sea, or because the incumbent was stripped of
all his temporalities upon conviction of heresy in papal curia. How
could a jury in England try the issue of vacancy, asks Plowden (fo.
10), if the jurors were unable to inquire into the matters transpired
beyond the sea? It is true that the jury did try the issue of whether
the bene┬®ce was vacant; but jurors were not concerned with the
reasons for the vacancy. Indeed, the detailed reasons of vacancy
were matters of the Canon law which could not have been tried by
a common law jury even if they had taken place in England.
Precisely because of this jurisdictional problem, common law
judges took great pains to instruct the jury that `voidaunce serra
generalment trie [i.e., whether vacant or not], et noun pas certein
voidaunce especialment [i.e., how it became vacant]'.54
Year Book, Pas. 19 Edward III, pl. 27 (Fitzherbert, Abridgement, triall, pl. 57).
See Cheyette, `Kings, courts, cures, and sinecures: the statute of provisors and
the common law', 19 Traditio (1963) 295┬±349 for a detailed discussion of this
topic. Also see Year Book, 21 Edward III, fos. 6b┬±7; Year Book, 5 Edward III,
fo. 9. The early stage in the development of this technique with which the king's
Littleton, Rastell and Plowden 167
Plowden also claimed that death abroad was triable by a jury in
England. The writ for the assize of mort d'ancestor, so he argues,
required that jurors should inquire whether the demandant was
the closest heir even if the ancestor died abroad while on a
pilgrimage. How could they do this, asks Plowden (fo. 10v), `unles
they mighte take knowledge that he were dead'? Plowden did not
note that this was indeed the reason why a special type of writ had
to be devised where the demandant was allowed to state that the
ancestor was in possession of the land in his demesne `on the day
he embarked his journey abroad' instead of `on the day he died'.55
Plowden went on to argue that promises made abroad by mer-
chants, bills drawn abroad and obligations undertaken abroad
were all recognised in England (fo. 10r). We wonder how Plowden
could say this. As we saw, documents executed beyond the sea had
just as much dif┬®culty of legal recognition in England as foreign-
born heirs.56 We also know that deeds of merchants were given an
exceptional treatment. Probably, Plowden did not fully appreciate
the following remark of Justice Bereford: `because he is a merchant
. . . a man cannot use the law of the land [regarding the recogni-
tion of a deed] in all its points against a merchant'.57
Furthermore, Plowden seemed to have relied on the faulty
interpretation of John Rastell on more than one occasion. In his
Tabula libri magni abbreviamenti librorum legum Anglorum (1517),
Rastell listed several year book cases under the heading `where the
inquest took notice of things transpired beyond the sea (Ou les
enquest prend notices de chose oust la mer)'.58 Plowden accordingly
argued that the jury was `bound to . . . take knowledge of the
circumstances pertaining to the tytle of the land and the clayme of
court asserted the jurisdiction in matters of ecclesiastical bene┬®ces is demon-
strated in Select cases in the court of King's Bench under Edward I, vol. I, 55
Selden Society (1936) p. 42. Plowden cites and relies on these cases without
adequately discussing their full signi┬®cance (fo. 10r).
Glanvill, lib. 13, cc. 5┬±6. Furthermore, Plowden wrongly suggested that the
proximity of blood was somehow connected to the death of the ancestor.
Whether a person was the closest heir was usually determined by the birth of the
heir rather than by the death of the ancestor.
See p. 117 above.
Year Books of 4 Edward II, 1310┬±1311, 26 Selden Society (1911) p. 154 (`pur
ceo q'il est marchaunt . . . home ne put nynt user en ceo cas lei de terre en touz
poinz ver marchaund, etc.').
Tabula libri magni abbreviamenti librorum legum Anglorum (London, 1517),
the partie, and if parte of the circumstance chaunced beyond the
sea, they are bound to take knowledge of it, or else the lawe
shoulde be unperfecte and wante tryall in many cases' (fo. 10r). If,
however, Plowden had taken a little pain to peruse the actual cases
thus indexed by Rastell, he would have immediately realised that
in all those cases, the possession, as distinct from right, was
provisionally awarded because of the impossibility of proving the
circumstances beyond the sea (foreign birth, foreign death, ex-
istence of a person beyond the sea, etc.).59
At any rate, Plowden was convinced of the accuracy of his
interpretation when he observed as follows: `Of those precedents
we maie see that mariage beyond the sea, contracte beyond the sea,
death beyond the sea, lyffe beyond the sea, birthe beyond the sea
and any other things innumerable chansing beyond the sea maie
be tryed and understode in Ingland.' He further explained that
such trials caused `no inconvenience sithence witnesses that were
present at the birthe[, etc.] may be brought to instruct the Jurye
which Jury are bounden to harken to witnesses upon payne of
Atteinte' (fo. 11r). Plowden did not take into account that he was
dealing with cases which had been decided when the jurors
themselves were required to have the ┬®rst-hand knowledge of the
matter. If they should `harken to' someone else to base their
verdict, that was the very ground for punishing them by attaint.60
Plowden's explanation only shows how much the law had changed
in the meantime, not how the law was when those precedents
After what he regarded as a thorough examination of relevant
year book cases, Plowden concluded that the `disabilitie of foreyne
birthe' was not `in any case . . . grounded upon the reason that it
[foreign birth] cannot be tryed or understode in England, but it is
upon an other reason [i.e., faith and allegiance]' (fo. 11r). This is a
solemn statement by the devout Catholic lawyer renowned for his
erudition that faith and allegiance must be the foundations of the
law of personal status. Plowden was squarely confronted with an
accurate interpretation of the lawful, as opposed to faithful, past.
As far as we know, this was the last time that the historically
accurate understanding of `foreyne birthe' was ever discussed. But
For detailed discussion of the relevant cases, see pp. 122┬±3 above.
See pp. 108┬±11 above.
Littleton, Rastell and Plowden 169
it was discussed only to be hastily dismissed by Plowden. By
doing so, he could drive the succession issue into the arena of faith
and allegiance, and exploit the ambiguity of the term `ligeance'.
We shall see how con┬®dent he was in arguing that Mary Stuart
was not out of the ligeance.
`CERTAINE ERROURS UPPON THE STATUTE . . .'
Having rejected probably the most dangerous argument against
Mary Stuart's succession claim, Plowden put forward a pro-Stuart
argument based on the ambiguous notion of ligeance. He claimed,
together with other pro-Stuart authors such as Anthony Brown
and John Leslie, that Scotland was not `out of the ligeance'
because the kingdom of Scotland was `holden of the kyng of
England . . . and homage hathe ben don by the king of Scotts to
the kings of Englande'.61 Birth in Scotland, according to them,
was therefore birth `within the ligeance'.
However, the weakness of this argument must have been
glaring. It was tantamount to an insult to the numerous Scotsmen
in those years who were paying dearly for the letters of denization
or acts of naturalisation to be rid of their `disabilitie of foreyne
birthe'.62 It was also against many year book cases where
Scotsmen were excepted as `alien born out of the ligeance'.63 An
BL Harleian MS 849, fo. 18v. The same argument was made by Anthony
Brown. BM Harleian MS 555, fos. 23v┬±24. Bishop Leslie reproduced most of
Anthony Brown's arguments including this one. A defence of the honor, fo. 66r.
There are at least 272 known examples of Scotsmen who obtained denization or
naturalisation during the years 1510┬±1601. See Letters of denization and acts of
naturalization for aliens in England, 1509┬±1603, ed. William Page (Lymington,
1893) introduction. Our calculation is based on the table attached to the
Year Book, Ames Foundation, Mich. 8 Richard II, p. 141; Fitzherbert, Abridge-
ment, continuall claime, pl. 13. See also Dyer's summary of the case of Mary,
Queen of Scots (110CP 40/495, m. 334) in Reports from the lost notebooks of Sir
James Dyer, 110 Selden Society (1993┬±4) p. 256. In Southwell v. Fysshe (1453),
the defendant put forward an exceptio arguing that the plaintiff was born out of
the ligeance in Scotland. A further allegation, however, was made that the
plaintiff's parents were also born out of the ligeance. In our view, this was an
unnecessary allegation which was added in anticipation of the plaintiff's possible
replicatio which would be based on the parents' allegiance. As far as we know,
there is no evidence that this case played any role in the ┬®fteenth-century
de┬®nition of alien status. Three years later, in another case, we see an exceptio
against the plaintiff who was born in Scotland. Parents' birthplace was not
alternative argument was therefore prepared. Accordingly,
Plowden opined that `the quene of Scotts is not out of ligeance of
the Crowne of England albeit it were graunted that the subjects of
Scotland were'. He was counting on the feudal legal relationship
which existed, at least in theory, between the queen of Scotland
and the king of England. Plowden was very emphatic: `Shall we
saie the chiffe homager [tenant-in-chief] of the crowne of England
hath no societie nor af┬®nitie with England, but is a mere stranger?
Phye, phye, that is to ffar oute of the way. The subjeccion by
homage counter pleadeth it.'64
These were the circumstances under which a Protestant author
wrote a treatise entitled `Certaine errours uppon the statute made
the xxv th yere of Kinge Edward the third, of children borne
beyonde the sea, conceyved by Serjaunt Browne and confuted by
Serjaunt Ferfax in manner of a dialogue'.65 The author was
probably overwhelmed by Plowden's impressive display of
`aucthorities and boke cases' relating to the `true' cause of the
`disabilitie of foreyne birthe'. Accordingly, the cognisance of jury
was never mentioned again. Instead, the author concentrated his
efforts on clarifying the meaning of ligeance. Since Plowden's
emphatic argument that Scotland was `within the ligeance' was
based on an artful confusion of homage and allegiance (`subjeccion
by homage'), a sharp distinction between these two concepts was
Our Protestant author began as follows: `[h]omage is nothing
ells but a lawfull tenure and service instituted by the mutuall
mentioned at all. Holburn v. Wartre (1456). Reports . . . of Sir James Dyer,
p. 257. Professor Baker kindly drew my attention to these references. The cases
on mixed jury, however, treated Scotsmen as no different from Englishmen for
the purpose of determining the need for a mixed jury. See John Harington, A
tract on the succession to the crown (written in 1602), ed. Clements Markham
(London, 1880) p. 24 for references. For legal treatment of Scotsmen in criminal
cases in border counties, see Cynthia Nevill, `Border law in late medieval
England', 9 Journal of Legal History (1988) 335┬±56.
BL Harleian MS 849, fos. 26v, 29r.
Cambridge University Library MS, Mm. 6. 70. What appears to be the author's
autographical copy has recently been acquired by Cambridge University
Library (Add. 9212). The treatise, probably written by Serjeant William Fleet-
wood in c. 1580┬±8, is in the form of a dialogue. But both Serjeant Fairfax and
Serjeant Brown are ┬®ctitious. The manuscript was widely circulated. Edward
Coke had a copy (Holkham Hall MS 678, fo. 17). His argument in Calvin's case
clearly indicates that he consulted this treatise closely. See ch. 8 below. Professor
Baker kindly brought this treatise to my attention.
Littleton, Rastell and Plowden 171
agreement of the giver and taker in respect of some tenemente
given'. By stressing that the relationship of homage is a reciprocal
contractual legal relationship, the author attempted to bring out
the contrast between homage and ligeance, which is a non-contrac-
tual relationship of political power and subjection. According to
him, homage is, `as it were, more of good Neighbourehod then of
subjection'. This explanation can certainly enjoy the support of
Bracton and most of his contemporaries in medieval Europe, who
would have agreed that homage institutes a reciprocal legal
relationship (vinculum iuris) between the lord and the tenant.66
However, the problem is not as simple as this. Like any contrac-
tual legal relationships, homage creates a bond of mutual con-
┬®dence between the parties. As Glanvill makes clear, this bond
had all along been understood as the bond of ┬®delity ( ┬®delitatis
connexio).67 Ligeance, too, had long been understood as a bond of
faith and loyalty ( ┬®des) between the king and his subjects; so much
so that the king's subjects were for many centuries known as his
faithfuls ( ┬®deles). The sublime ideal repeatedly professed by
Christian kings of medieval Europe was that their authority did
not come from the sword, nor from the law, but from the faith.
Ideally, their subjects should obey them not out of fear, nor out of
harsh legal constraints, but out of faith. Precisely, it was this bond
of faith which bound together the ruler and the ruled in a mystic
body (corpus mysticum) within which subjection and liberty were
Had political subjection been explained in terms of violence,
auctoritas, potestas, imperium or ius, things would have been
different. But ever since the conversion of Constantine, the
political authority and subjection in Europe have been discussed
in terms of faith, alliance and `promise', if not contract. By the
time Plowden was writing his succession tract, no one would have
accepted that true subjection ┬± which leads to true liberty ┬± could
possibly be based on anything but true faith. As far as any
sixteenth-century lawyers could remember, subjection to the king
was, and had always been, grounded upon the bond of faith.
Plowden, therefore, had no reason to distinguish between the
bond of ligeance and the bond of homage, for both of them were
See pp. 128┬±9 above. Glanvill, lib. 9, c. 4.
grounded upon the bond of faith; both of them were grounded
upon a trustful `promise'.68
All promises bind the parties. But the author of `Certaine
errours . . .' sees that there is an important difference in their
binding power. The author explains that `one tenaunt maie be of
divers Lordes fees and homage'.69 In other words, the bond of
┬®delity created by homage does not prevent the parties from
engaging themselves in other similar bonds of ┬®delity with third
legiaunce . . . is the bonde of faith swallowinge up all others, and the
greatest among creatures, religion to the Creator reserved, due by the lawe
of god and nacions from the subject to the prince. . . . [A] tenure or oath
of homage ableth not an aliann to be a subject of the legiaunce of England
nor to be a person capable of inheritance like an English mann.70
According to the Protestant author, nationality is a question of
this `bonde of faith swallowinge up all others'. Even if Mary
Stuart was the chief homager of the king of England and, there-
fore, could rely on the bond of trust created by the homage, that
would not make her any less alien. The contractual bond of trust
( ┬®delitatis connexio) is `instituted' by the parties in accordance
with the (positive) law of the kingdom. It arises and disappears as
a result of the parties' own doing. The bond of legiaunce, on the
other hand, transcends the parties' will or action. It is `ordained'
by `the lawe of god and nacions'. Once homage and allegiance are
de┬®ned in these terms, the conclusion is obvious. What has been
Plowden was not alone in his confusion of allegiance and homage. Many
sixteenth-century jurists shared the same outlook. As a result, the question of
allegiance and alien status was often approached from the feudal law. See Polly
Price, `Natural law and birthright citizenship in Calvin's case (1608)', 9 Yale
Journal of Law and the Humanities (1997) 73┬±145 for a discussion of Craig's Jus
feudale and his understanding of the law of alien status. The confusion lingered
on into the twentieth century. See John Salmond, `Citizenship and allegiance',
17, 18 Law Quarterly Review (1901, 1902) 270┬±82, 49┬±63. In the latter half of
his article, Salmond attempts to explain allegiance in terms of the feudal bond of
fealty. The confusion, of course, was in full swing among medieval historians
who put forward the thesis of `feudal anarchy'. For a brief account of recent
historical studies which distance themselves from this long-lived confusion, see
Keechang Kim, `Etre ┬®dele au roi: XIIe┬±XIVe siecles', 293 Revue Historique
Cambridge University Library MS, Mm. 6. 70, fo. 3v. See also Glanvill, lib. 9,
c. 1 (`Potest autem quis plura homagia diversis dominis facere de feodis
Cambridge University Library MS, Mm. 6. 70, fos. 3v, 4v.
Littleton, Rastell and Plowden 173
ordained by the natural law (Mary Stuart's lack of legiaunce)
cannot be overridden by the human law (homage). The subject's
allegiance to the king is not a matter for the mortals. Our author
concludes his argument with the following remark: `One God, one
king, one legiaunce.'71 This is the most revealing explanation of
the meaning of allegiance understood by the sixteenth-century
lawyers. Common lawyers have come a long way. Neither Glanvill
nor Bracton would have easily imagined that the meaning of
ligeancia could be stretched this far. The rest of the Elizabethan
succession debates were not immediately relevant to the develop-
ment of the English nationality law.72
Legal vocabulary usually survives revolutionary legal changes.
However, it is the morphology of vocabulary which survives, and
conceals the radical semantic change. No revolution can be
accomplished without a fundamental semantic change. The un-
changing continuity of terminology is therefore deceptive. Decep-
tion arises from ambiguity. But it is the inherent ambiguity of
language which guarantees its unending utility. For example,
`liberty' and `subjection' used to be regarded in law as mutually
exclusive categories. We are now entirely familiar with the mystic
fusion of `subjection' and `liberty'. As we have seen, even the most
basic terms of spatial perception such as `in' and `out' could also
be loaded with highly charged ideological signi┬®cance. The sur-
prising durability of legal terms such as obligation, action, person,
citizen, liberty, ligeance, etc. only shows their remarkable versati-
lity and ambiguity.
In this chapter, I have argued that the development of the
English law of alien status must be studied by examining how the
Ibid., fo. 4v. See also a case of 13 Eliz., fo. 38 reported by Johaniis Page, `De
personis', BL Hargrave MS. 379 (not earlier than 1653) Liber primus, fo. 202
(an English born cannot claim to be a subject of the Spanish king; one cannot
waive the allegiance one has by virtue of one's birth). Professor Baker kindly
drew my attention to Page's manuscript. See, in this connection, Thomas
Martin, `Nemo potest exuere patriam: indelibility of allegiance and the American
revolution', 35 American Journal of Legal History (1991) 205┬±18.
For an overview of various other issues raised during the succession debates, see
Levine, The early Elizabethan succession question.
┬®fteenth- and sixteenth-century lawyers manipulated the old
expression `alien nee hors la ligeance'. It was essentially a process
of semantic change of legal terminology such as `alien', `in', `out'
and `ligeance'. A historical investigation into legal changes is, in a
sense, a linguistic exercise designed to enhance the investigator's
sensitivity to diachronic changes of the meanings of legal terms.
Pursuit of precedents, done without paying due attention to
semantic changes of legal terminology, must remain a lawyer's
occupation rather than a historian's task.
In the preceding pages, we have focused particularly on the
changing meanings of ligeance. Ligeance was, as it were, the two-
faced Janus which opened up the gate so that faith could enter into
the law of personal status. Once the entry was made, the bond of
faith would eventually demolish the bond of law, which had been
the guiding principle of the law of personal status. Once the
`spinal cord' was thus destroyed, what used to be a coherent body
of legal rules for personal status would then be viewed as an
incoherent heap of often incomprehensible rules and maxims
which stand in need of a `reasonable' explanation. Elizabethan
succession tract writers, for example, did not have the faintest idea
why birthplace became the decisive criterion for a person's legal
status. They were seriously debating how it was possible that the
`place of birth, being an accidently and externall thing, should
sever such a natural conjunction as proximity of blood'. They
could think of anything but the bond of faith: `beholde how brute
beast driven from the place of birth . . . tries to return to the birth
place'.73 Faith became thoroughly natural. Nature was by then
thoroughly impregnated with faith.
Cambridge University Library MS, Mm. 6. 70, fos. 5v┬±8v.
Littleton, Rastell and Plowden 175
1563 John Hales, `A Declaration 1565(?) by Anthony Browne (d.1567)
of the succession of the Crown . . .' BL Harl. MS, 555, fos.
BL Harl. MS, 550; printed 11r┬±47v. Regarding the dating of
in G. Harbin, The hereditary right this treatise, see M. Axton's article
of the crown of England . . . in 37 Huntington Library Quarterly
(London, 1713) (1974) 209┬±226
1565 Anon., `Allegations against 1566 An answer to the
the surmised title of the Queen of `Allegations against . . .'
Scotland . . .' CUL MS Gg. iii. 34,
BL Harl. MS, 4627 fos. fos. 107┬±17
10r┬±26v; printed, see BL ref.
C. 55. c. 3
1566 `A ``Letter'' on the 1566 An anti-Suffolk tract
Elizabethan succession question printed in W. Atwood, The
1566' ed. by M. Levine in 19 fundamental constitution of the
Huntington Library Quarterly, English government (London, 1690)
no. 1 (1955)
1567 Edmund Plowden, `A
treatise proving that . . .'
BL Harl. MS, 849,
1569 J. Leslie, A defence of the
honor of Mary . . .
facsimile reproduction in
1584 Anon., The copy of a letter
c. 1580┬±1588 Anon., `Certaine written by a Master of Arte of
errours uppon the statute made Cambridge . . .
xxvth yere of Kinge Edward the reprinted in 1641 under
third, of children born beyond the title `Leycesters Commonwealth'.
the sea . . .' Reprinted again in 1904 by
CUL MS, Mm. 6. 70, F. Burgoyne
fos. 1┬±30; CUL MS Add. 9212
1602 John Harington, `A Tract on
the Succession to the Crown'
printed in 1880 by
Note: See also Robert Aske's
`Examination' (1537) printed by
M. Bateson, 5 English Historical
Review (1890) 562┬±4
CALVIN'S CASE (1608)
Queen Elizabeth I outlived all the heated debates arising from the
succession question and died in 1603. The accession of James VI
of Scotland to the crown of England marks the beginning of a long
and tortuous process through which `British' political and legal
discourse has been created and recreated until this date.1 Re-
garding the political union of the peoples, the claims of James VI
and I found an excellent means of expression in the concept of the
`mystic body politic'. The following passage from his speech in
the English Parliament seems to reveal the basic framework of his
What God hath conioyned then, let no man separate. I am the Husband,
and all the whole Isle is my lawfull Wife; I am the Head, and it is my
Body; I am the Shepard, and it is my ┬»ocke: I hope therefore no man will
be so vnreasonable as to thinke that . . . I being the Head, should haue a
divided and monstrous Body.2
Lawyers, however, were encountering dif┬®culties in giving legal
effect to his enthusiastic claims about Great Britain. In an effort
to draw up a scheme of `real and effectual' union of the two
See J. G. A. Pocock, `Two kingdoms and three histories? Political thought in
British context' in Scots and Britons, Scottish political thought and the union of
1603, ed. Roger Mason (Cambridge, 1994) pp. 293┬±312; Jenny Wormald, `James
VI and I: two kings or one ?', 68 History (1983) 187┬±209; Jenny Wormald, `The
creation of Britain: multiple kingdoms or core and colonies?', 2 Royal Historical
Society Transactions, 6th series (1992) 175┬±94; Brian Levack, The formation of
the British State: England, Scotland and the Union, 1603┬±1707 (Oxford, 1987)
chs. 2 and 3. For a more recent and comprehensive treatment of the topic, see
now The British Problem, 1534┬±1707: State formation in the Atlantic Archipelago,
ed. Brendan Bradshaw and John Morrill (Basingstoke, 1996) ch. 6.
King James VI and I, Political writings, ed. Johann P. Sommerville (Cambridge,
1994) p. 136. On the notion of the mystic body in general, see Ernst Kantor-
owicz, The king's two bodies: a study in mediaeval political theology (Princeton,
Calvin's case (1608) 177
kingdoms, Commissioners of Union were appointed in 1604 by
the Parliaments of England and Scotland respectively. Also, a
number of learned tracts dealing with the question of legal union
were written and circulated during this period. But the English
Parliament of 1606 showed a strong resistance to the proposal for
further union, especially to the proposed naturalisation of James
VI and I's subjects in both kingdoms.3
Under these circumstances, Calvin's case was brought to the
Court of King's Bench and to Chancery. The facts were simple.
Plaintiff Robert Calvin, a child born in Scotland after the acces-
sion of James Stuart, claimed some land in England. The defen-
dant pleaded that the plaintiff ought not to be answered because
he was an alien born in Edinburgh, out of the allegiance of
the king of England. The plaintiff demurred to this plea. The de-
murrer provided the opportunity to discuss and settle the question
of the legal status of Scotsmen in England after the accession of
ALLEGIANCE: BY LAW OR BY NATURE?
All parties to Calvin's case agreed that those who were born in
Scotland before the accession were aliens in England. The focal
For the act of Parliament appointing the Commissioners, see Constitutional
documents of the reign of James I, 1603┬±1625, ed. J. R. Tanner (Cambridge, 1930)
pp. 31┬±2. Questions relating to the legal union are discussed in detail by Bruce
Galloway, The union of England and Scotland, 1603┬±1608 (Edinburgh, 1986) and
Brian Levack, The formation of the British State, ch. 3. For some of the union
tracts, see The Jacobean union: six tracts of 1604, ed. B. Galloway and B. Levack
The political importance of the case made it one of the most elaborately argued
cases in the common law history. All justices of the King's Bench and Common
Pleas, barons of the Exchequer, Lord Chancellor Ellesmere and Sir Francis
Bacon, the king's counsel, participated in the argument. According to Sir
Edward Coke, `never any case in man's memory was argued by so many judges'.
7 Coke's Reports, `The preface'. Some of the arguments advanced in Calvin's case
and Serjeant Moore's account of the Parliamentary proceedings of 1606, where a
number of lawyers and judges were invited to offer their views on Scotsmen's
legal status in England, are collected in Complete collection of state trials, ed. W.
Cobbett et al., vol. II (London, 1809) cols. 599ff. Our quotations are from this
volume. For a modern assessment of the views put forward in this case, see Polly
Price, `Natural law and birthright citizenship in Calvin's case (1608)', 9 Yale
Journal of Law and the Humanities (1997) 73┬±145.
issue of Calvin's case was therefore whether the children born in
Scotland after the accession (postnati) were to be treated as
subjects or aliens in England. It was a question of law, that is,
whether James Stuart's accession to the English crown altered the
scope of allegiance so that birth in Scotland became from then on
birth `within the allegiance'.5
By the time of Calvin's case, it was no longer sensible to doubt
that allegiance was the decisive criterion of a person's legal status.
In fact, all through the ┬®fteenth and sixteenth centuries, alle-
giance had been discussed in legal proceedings whenever the
geographical location of an event was mentioned. A person may
be born, a document may be executed, a couple may be married,
an uncle may die hors la ligeance or deinz la ligeance. This ligeance,
of course, also meant the bond of faith linking the king and his
beloved subjects. Without saying it, lawyers had all along been
talking about faith each time they mentioned ligeance. The bond
of faith thus became the pivotal element of legal reasoning. By the
time of Sir John Fortescue, there was no point in distinguishing
the bond of faith from the bond of law. According to him, it is
the bond of law (lex a ligando dicitur) which has the power to
unite a multitude of individuals; to efface somehow their indivi-
duality; and to form an elevated, mystic body (corpus mysticum).6
Thomas Littleton was closely following the same line of ideas.
The kingdom was envisaged as a network of law. Birth out of this
network ┬± birth out of the ligeance ┬± resulted in complete denial
of the `help and protection by the king's law or by the king's
writ': in short, out of ligeance, out of legal protection. Since
ligeance was the judicial equivalent of the bond of faith, we may
also say: no faith, no legal protection. A complete fusion of law
and faith has been achieved in the name of ligeance. In Calvin's
case, Edward Coke accordingly observed: `Ligeantia est quasi
In his Exposicions of the termys of the law . . ., John Rastell transliterated
`ligeance' into `elegiaunce'. During the reign of Elizabeth I, succession tract
writers repeatedly used the spelling `allegiance', which became the standard
English rendering of the term. Various spellings were used in the fourteenth
century: ligance, lyance, ligeaunce, etc. Etymologically, allegiance means a `bond'
(from `ligare' in Latin). The French and English words `alliance' and `lien' have
the same origin.
See ch. 1 above.
See 7 Coke's Reports, 4v.
Calvin's case (1608) 179
Basing themselves ┬®rmly on this tradition, those who were
against Calvin's claim argued that the subjection to the king was a
legally de┬®ned relationship rather than a manifestation of unde-
┬®ned extra-legal power. According to them, `allegiance [was] tied
to laws'. Stressing that the bond of allegiance between the king
and his subjects was a bond of law, they speci┬®cally referred to
Fortescue's formula, `lex a ligando dicitur'. They further explained
that `every nation hath a precinct wherein the laws have opera-
tion'. It was also pointed out that the English law did not extend
to Scotland. As long as the laws of two kingdoms remained
separate and distinct, `naturalization, being measured by alle-
giance, must still remain several and distinct in either nations'.
Since allegiance was subjection, they also said that postnati in
Scotland `are not subject to the laws of England, and therefore
should not have the bene┬®ts of the laws of England' (col. 567,
However, a new generation of lawyers such as Francis Bacon
looked upon this argument as unsuitable for `a warlike and
magnanimous nation ┬®t for empire' (col. 595). They needed a
conclusion that `the king's power, command and protection ex-
tendeth out of England'. Sir Edward Coke wanted the same
conclusion. He hoped that the king's `subjects in all places may be
protected from violence, and that justice may equally be adminis-
tered to all his subjects' (cols. 621, 623). In fact, they were
advocating James I's imperial claim that all the peoples under his
subjection ┬± in and out of England ┬± should be united in one
political and legal unit. In order to achieve such a union, it was
necessary to have the notion of allegiance liberated from the
con┬®nes of the kingdom and its law. This, however, was impos-
sible as long as one remained faithful to the legal structure of
kingdom envisaged by Fortescue and Littleton. When Francis
Bacon posed the question, `shall it be said that all allegiance is by
law?', he was pointing the knife at the heart of the problem. A
full-scale operation was launched against Fortescue's view, `lex a
ligando dicitur'. Bacon did this by introducing the notion of
`original submission' which was supposed to be `natural and more
ancient than law'. He postulated a period when the king was
presumed to have governed the people without law, but by
`natural equity' only. He argued that since original submission
could be observed during this period as well, people's subjection
to the prince must be `the work of the law of nature' (cols.
579┬±81). Fortescue understood allegiance in terms of lex (`lex a
ligando dicitur'). Bacon now corrects it and says that it is the law
of nature, not the law of the kingdom, which binds the prince and
Edward Coke and Chief Baron Fleming had already advanced a
similar opinion in the Parliament held in 1606. Serjeant Moore
summarises their arguments under the following headings: `1.
Allegiance was before laws; 2. Allegiance is after laws; . . . 5.
Allegiance extends . . . beyond the circuit of laws' (cols. 569ff.).
Coke repeated the same argument two years later in Calvin's case.
Francis Bacon's rather philosophical discussion about `original
submission' was now given a more juristic appearance by Coke,
who introduced the fourfold division of allegiance: (1) natural
allegiance; (2) acquired allegiance; (3) local allegiance; and (4) legal
allegiance (homage).8 He then concluded that `the ligeance or faith
of the subjects is due unto the king by the law of nature' (cols.
615, 629). Coke's argument that people's subjection to the prince
was based not on the law of the kingdom but on `ligeantia
naturalis, absoluta, pura, et inde┬®nita' (col. 615) was not compa-
tible with Littleton's ideas about the king's law and the king's
legal protection. Littleton, therefore, had to go. As we saw,
Littleton explained that a person under outlawry, or without the
king's protection because of his violation of praemunire, was `out
of the help and protection by the king's law or by the king's writ'.
But Coke argued that such a person was still under the `natural
law' protection of the king because the king may, for example,
pardon him one day and protect him again (cols. 631┬±2). The
bond of obedience and protection between the king and his people
was no longer grounded simply upon law as Littleton and
Fortescue understood it. According to Coke and Bacon, it was
grounded upon the law of nature. Nature will certainly liberate
allegiance from the con┬®nes of the kingdom.
This was the focal issue of Calvin's case (i.e., whether allegiance
was a bond of subjection institutionalised by the law of the
Coke admitted that this division was not based on the existing law: `[In
discussing several kinds of allegiance], we need to be very wary, for this caveat
the law giveth, ``ubi lex non distinguit, nec nos distinguere debemus;'' and
certainly ``lex non distinguit'' ' (col. 615).