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Calvin's case (1608) 181

kingdom or archetypal submission grounded upon the law of
nature). The issue can, no doubt, be described using the distinc-
tion between the king's body politic and body natural. The
question then would be whether allegiance is due to the king's
body politic or his body natural. Approached from this angle,
Calvin's case featured prominently in the well-known study of
E. Kantorowicz.9 But our aim here is to bring out the dynamic of
legal change which is observable in the tension between the
positive law and the law of nature. For the common lawyers of the
time, the distinction between the king's body politic and body
natural was important mainly because it allowed the possibility of
arguing beyond the constraints of the existing law of the kingdom
and put forward new ideas in the name of the law of nature. The
appeal to the supposedly `unchanging' law of nature was indeed
the commonest technique of disguising bold proposals to change
the existing law.10 At any rate, the overwhelming majority of the
judges (twelve out of fourteen) and Lord Chancellor Ellesmere
concurred in the opinion that allegiance was grounded upon the
law of nature; and, therefore, it ought not to be con®ned within
the kingdom of England. Accordingly, it was decided that the
plaintiff Robert Calvin ± even though he was born out of the
kingdom of England ± must not be regarded as an alien in
England. A founding stone of the British Empire was now



Kantorowicz, The king's two bodies, pp. 4, 7, 14±16, 364±72, 408.
9

This point was noticed by Gierke. See Otto von Gierke, Natural law and the
10

theory of society, 1500 to 1800, 2 vols., trans. E. Barker (Cambridge, 1934) I,
pp. 35±6 (`In opposition to positive jurisprudence, which still continued to
show a Conservative trend, the natural-law theory of the State was Radical to
the very core of its being. Unhistorical in the foundations on which it was built,
it was also directed, in its efforts and its results, not to the purpose of scienti®c
explanation of the past, but to that of the exposition and justi®cation of a new
future which was to be called into existence'). The distinction between the
king's body politic and body natural provided a means of getting around the
common law rules of inheritance applicable to foreign-born persons, of which
Mary Stuart was one. Freed from the strait-jacket of the positive law of the
kingdom, the supporters of Mary Stuart's claim could develop their argument
relying on the law of nature and the theory of corporation. See p. 164 above. On
the importance of natural law in seventeenth-century European legal develop-
ment in general, see Alan Watson, The making of the Civil Law (Cambridge,
Mass., 1981) pp. 83±98. A concise discussion of the role of natural law in the
Stuart political discourse can be found in J. Sommerville, Politics and ideology in
England, 1603±1640 (London, 1986) pp. 12±17.
Historiography
182

securely laid upon the law of nature. As we shall see, however, this
would be a major stumbling block for legal historians.



TRANSCENDENTAL CONCEPTION OF THE COMMON LAW

Calvin's case was a showcase of opposing methods of legal
reasoning. These methods need to be discussed separately from
the conclusions at which one may arrive through them. A method
of reasoning does not necessarily dictate any particular conclusion.
Different persons may reach different conclusions using the same
method of reasoning. Also, the same conclusion may be reached
through different methods of reasoning. It is therefore not sur-
prising that those who were opposed to Calvin's claim shared the
same method of legal reasoning with some of those who were
favourable to Calvin's claim. Also, we shall see that those who
allowed Calvin's claim did not always share the same method of
legal reasoning.
Edwyn Sandys, who was actively involved in the Parliamentary
debate concerning the question of legal union, and was opposed to
the naturalisation of postnati, opined that the issue posed by
Calvin had not been dealt with by any law or custom. Since
`de®ciente lege recurritur ad consuetudinem' and `de®ciente con-
suetudine recurritur ad rationem naturalem', he argued, the issue
must be decided according to `ratio naturalis [which] is the law of
nations called ``ius gentium''' (col. 563).11 Lord Chancellor
Ellesmere, who concurred in the majority opinion, developed this
point further. He observed that `[t]here is no direct law for him
[Calvin] in precise and expresse tearmes; there was neuer iudge-
ment before touching any borne in Scotland since king Iames
beganne his happie raigne in England; hee is the ®rst that is
brought in question' (col. 677). He argued that `when there is no
direct lawe, nor precise example, we must ``recurrere ad rationem,
et ad responsa prudentium'' '; for, `otherwise much mischiefe and
great inconuenience will ensue. For new cases happen euery day:
no lawe euer was, or euer can be made, that can prouide remedie


On the Parliamentary career of Edwyn Sandys, see Willard M. Wallace, `Sir
11

Edwin Sandys and the ®rst Parliament of James I', PhD thesis, Univ. of
Pennsylvania (1940) ch. 2.
Calvin's case (1608) 183

for all the future cases, or comprehend all circumstances of
humane actions which judges are to determine' (col. 676).
The emphasis on `responsa prudentium' ± i.e., reasoned opi-
nions of leading jurists ± led him to a lucid discussion of the
mechanism of legal change. He observed that `auncient lawes are
changed by interpretation of the judges'. The change of law was
depicted as a process of adaptation to the changed circumstances:
`the wisedome of the iudges found them [ancient laws] to bee
vnmeete for the time they liued in, although very good and
necessarie for the time wherein they were made'. Inevitably,
therefore, `some lawes, as well statute lawe as common law, are
obsolete and worne out of vse: for, all humane lawes are but leges
temporis [laws of the time]' (col. 674).12 Since he saw that Calvin's
case was `the ®rst precedent, which . . . had no precedent when it
began', he refrained from relying on the authority of past legal
texts. Instead, the remedy was sought in the law-making power of
judges. Accordingly, his argument was based on what the law
should be, rather than what the law had been. No doubt, however,
in their quest for the new leges temporis, judges would be guided
by prudentia: the eternally valid ratio.
Sir Edward Coke had different ideas. He claimed that `the laws
of England are so copious in this point' (col. 612). The same view
was shared by Francis Bacon. In his speech delivered to the
Parliamentary Committee on postnati, Bacon asserted that the
Committee's task was `not to consult of a law to be made, but to
declare the law already planted' (col. 563). We do not know
whether they would have unreservedly approved of Chief Justice
Popham's claim that the laws of England `had continued as a rock
without alteration in all the varieties of people that had possessed

He discussed several instances of legal change which were effected by judicial
12

interpretation. For example, `[i]n aucient time, one present, aiding, comforting,
and assisting to a murder, was taken to bee no principall, but an accessorie, as it
appeareth M. 40 Edw. 3, fol. 42 et 40 . . . But now in that case he is iudged a
principall' (col. 675). Professor Kna¯a thinks that Baron Ellesmere's under-
standing of the historicity of law might have come from the works of the Dutch
jurist Joachim Hopper, whom Ellesmere regarded as `one of the gravest and best
learned lawyers of our age'. Louis Kna¯a, `The ``country'' Chancellor: the
patronage of Sir Thomas Egerton, Baron Ellesmere' in Patronage in late
Renaissance England, papers read at a Clark Library Seminar, 14 May 1977, ed.
French Fogle and Louis Kna¯a (Los Angeles, 1983) p. 64. On Lord Chancellor
Ellesmere's career and thoughts, see Louis Kna¯a, Law and politics in Jacobean
England (Cambridge, 1977).
Historiography
184

this land, namely the Romans, Brittons, Danes, Saxons, Normans
and English' (col. 569).13 But Coke certainly believed that the law
had already reached the stage of optima regula after having been `in
many successions of ages . . . ®ned and re®ned'. It is therefore
unlikely that he would deem it liable to further historical changes.
He clearly disagreed with Lord Chancellor Ellesmere's view that
laws may, or rather must, be changed by judicial interpretation.
Coke argued that `no man ought to take upon him to be wiser than
the laws'. Lord Chancellor Ellesmere saw that human laws were
constantly in the making at present. Coke, on the other hand,
believed that `our days upon the earth are but as a shadow' which
would be condemned to complete darkness without the brilliance of
the optima regula of the past (col. 612). Law ± as optima regula ± was
therefore given an unassailable and transcendental existence which
is entirely removed from the actual workings of the judiciary.
The conception of law which does not allow for historical
changes will bless the search for precedents with the logical
certainty of ®nding them. As the law is viewed as perfect and
immutable, it would be inherently impossible not to have pre-
cedents or settled law for any issue. All that has to be done is to
`®nd' the right text and `correctly' interpret it as the precedent in
point. The only reason why a vast number of legal texts dating
from the biblical era were plundered was because those texts were
believed to embody the everlasting and unchanging optima regula,
and therefore were thought to be still effective and immediately
applicable. Coke could hold such a belief because he did not
recognise the difference between the law of the past and the law of
the present. Law, understood as optima regula, does not change. It
is neither possible nor desirable to discuss the `historical' circum-
stances under which a legal text was composed. Ironically, it was
this transcendental conception of law which led him `diligently
[to] search out the judgments of our forefathers'. All his discus-
sions about the `judgments, resolutions, and rules . . . in our


Popham was repeating Fortescue's view. According to Fortescue, `The kingdom
13

of England was ®rst inhabited by Britons; [then by Romans, Saxons, Danes, but
®nally by Normans,] whose posterity hold the realm at the present time. And
throughout the period of these nations and their kings, the realm has been
continuously ruled by the same customs as it is now.' Sir John Fortescue, De
laudibus legum Anglie, ed. and trans. S. B. Chrimes (Cambridge, 1942)
pp. 39±40 (ch. 17).
Calvin's case (1608) 185

books in all ages concerning this case' were therefore pseudo-
historical. We saw that Lord Chancellor Ellesmere's penetrating
understanding of the mechanism of legal change actually pre-
vented him from relying on legal texts of the past. As law would
change constantly at the hands of succeeding generations of
judges, the legal texts of the past obviously could not be a
trustworthy guide to the law of the present.
Lord Chancellor Ellesmere's approach is based on a historically
sound assumption that law and legal text are not disengaged from
the circumstances of `the time they were made'. He clearly saw
that judges, on the other hand, had to deal with the changed
circumstances `for the time they liued in'. It is indeed tempting to
speculate that this keen awareness of the tension between the past
and the present in legal reasoning could have promoted a mean-
ingful dialogue between lawyers and historians. As it turned out,
however, this type of lawyers has failed to attract the attention of
historians simply because they seldom mention or rely on past
legal texts in their legal argument. Lawyers like Coke, on the other
hand, have attracted a great number of historians because of their
impressive parading of past texts. As we pointed out, however,
their dependence on past texts is due to their transcendental
conception of the common law. Their conviction that the common
law has remained unaltered from time immemorial (or from the
moment it reached the status of optima regula) is obviously
unhistorical. The mutual attraction between these lawyers and
legal historians, which is generated by the concurrence of their
interests in past texts, is therefore hiding a seed of disappointment.
But amidst the heady chase for `precedents', the widening gap
between lawyers' and historians' understanding of the past is often
forgotten.14



THE NEW SUMMA DIVISIO PERSONARUM

No one in Calvin's case doubted that the division between subjects
and aliens was fundamental to the law of personal status. Francis


On the shaping of the concept of `precedent', see John H. Baker, `Records,
14

reports and the origins of case-law in England' in his (ed.) Judicial records, law
reports, and the growth of case law (Berlin, 1989) pp. 15±46.
Historiography
186

Bacon, who was counsel for the plaintiff Calvin, stated that `there
be but two conditions by birth, either alien or natural born' (col.
583). Edward Coke repeated the same idea: `[e]very man is either
alienigena, an alien born, or subditus, a subject born' (col. 637).
The modernity of their legal outlook has not been adequately
appreciated so far. Unless, however, the legal condition of the
persons belonging to the category of aliens or subjects is respec-
tively postulated as suf®ciently uniform within the chosen cate-
gory, the division ± or the contrast between the two categories
thus divided ± would not make much sense. Accordingly, Bacon
stressed that a natural-born subject is `complete and entire' and
therefore `hath a capacity or ability to all bene®ts whatsoever'. He
admired the `wisdom of the law of England . . . both because it
distinguisheth so far [i.e., between subjects and aliens] and
because it doth not distinguish farther [i.e., among natural-born
subjects themselves]' (cols. 582±3). Lord Chancellor Ellesmere
also argued that `he that is born an intire and perfect subject
ought, by reason and lawe, to have all the freedomes, privileges
and bene®ts pertaining to his birth-right' (col. 691). Edwyn
Sandys, who was opposed to the naturalisation of postnati, also
understood that the subject status would confer `the full rights of
Englishmen born among us' (col. 564).
Coke, it is true, defended nobility ± the inequality among the
subjects ± as the `king's creation' (col. 634). Since he reasoned that
allegiance and subject status were matters of the `law of nature',
his argument that Scotsmen should equally be treated as subjects
had no effect on the existence of nobility, which was viewed as
instituted by the `law of man'. But the trend was irreversibly set
for equality. Bacon's explanation, for example, contains the essen-
tial features of the modern notion of legal equality: `I say capacity
or ability [to all bene®ts whatsoever]; but to reduce potentiam in
actum, is another case. For an earl of Ireland, though he be
naturalized in England, yet hath no voice in the parliament of
England, except he have either a call by writ, or creation by
patent; but he is capable of either.' `The law is equal, and
favoureth not' (cols. 582±3, 595).
As subjects were deemed equal in their capacity to enjoy legal
rights, so were aliens deemed equally deprived of the `full rights of
Englishmen born'. Coke, for example, averred that `[t]he question
of this case . . . was, whether Robert Calvin . . . be an alien born,
Calvin's case (1608) 187

and consequently disabled to bring any real or personal action for
any lands' (col. 609, emphasis supplied). The disabilities were
indiscriminate, that is, they affected all aliens without any further
distinction. This allows us to conclude that the division between
subjects and aliens has now become the summa divisio of the law of
personal status. Sooner or later, it would override all other
formerly recognised legal distinctions among persons. Black-
stone's remark which we quoted at the beginning of this book is a
masterly summary of this trend of legal development: `The ®rst
and most obvious division of the people is into aliens and natural-
born subjects.'15



THE BEGINNING OF A HISTORIOGRAPHICAL TRADITION

We saw that the argument against the naturalisation of postnati
could enjoy the formidable support of Littleton and Fortescue.
The proponents of this argument (Edwyn Sandys, Roger Owen,
John Bennet, John Dodderidge, etc.) were therefore in a better
position to claim that they were merely following the opinion of
their predecessors, hence, closer to the truth. Indeed, they appear
to have criticised Coke and Bacon's idea as a `novelty', an
unprecedented opinion. The attack must have been especially
hurtful for Coke. Probably out of indignation, Coke made a
colossal effort to amass a vast number of passages from the past.
He then asserted that his argument was `rather a renovation of the
judgments and censures of the reverend judges and sages of the
law in so many ages past, than any innovation' (col. 656). Bacon
went one step further. He launched a counter-attack against his
opponents. He branded his opponents' argument as `this new
opinion, whereof there is altum silentium in our books of law' (col.
584).
Coke and Bacon's indignation when faced with the allegation of
novelty of their argument may be appreciated in light of the fact
that they were actually closely following the opinions of the
Elizabethan succession tract writers. For example, Coke was
repeating Plowden's claim that `jurors may take knowledge of

William Blackstone, Commentaries on the laws of England, 4 vols. (Oxford,
15

1765±9) I, p. 354.
Historiography
188

things done out of the realm' (col. 655).16 Bacon was faithfully
following Rastell's faulty interpretation of the statute De natis
ultra mare and asserted with con®dence that `[b]y the statute of 25
Ed. 3, all children in any parts of the world, if they be of English
parents . . . are ipso facto naturalised' (col. 585).17 We have also
seen that the Protestant author of `Certaine errours uppon the
statute [25 Edw. III st. 1]' put forward an argument that
`legiaunce . . . is the bonde of faith . . . due by the lawe of god and
nacions'.18 Coke and Bacon were relying on it almost word for
word. The fact that such an idea could not expect much support
from Littleton or Fortescue was no obstacle for Coke and Bacon
to treat the passage they found in the above-mentioned treatise as
a `precedent'. Other precedents which fall foul of their argument
need simply to be ignored or reinterpreted. We saw how the
statements of Littleton and Fortescue regarding the bond of law
and allegiance were modi®ed by Coke and Bacon. The task of
lawyers is to win the case they are arguing at present. Past texts
(precedents) are invoked to add judicial authority to the party's
present argument, not to elucidate the historical accuracy of the
party's understanding of the past.
At any rate, the views expressed by Coke and Bacon were
largely accepted in the following century by Sir Matthew Hale.19
For example, Coke and Bacon have argued that the clause of
Prerogativa regis concerning the terrae Normannorum and Brac-
ton's explanation of dilatory exceptions against French enemies
were the evidence that Normans and other Frenchmen who were
born outside of the kingdom of England ± like the plaintiff Calvin
± could hold English lands and therefore were the king's subjects.
This, of course, was to argue that subject status and allegiance
must not be limited to the con®nes of the kingdom. The seizures
of the Normans' lands and dilatory exceptions against the French
were regarded as temporary interruptions during the war (cols.
603±4, 644). Hale accepted this; but with some revision based on
his own conjecture. The following is his explanation, and I believe
that this marked the beginning of the historiographical tradition

Bacon made the same claim (col. 589).
16

Coke also believed without a shadow of doubt that the statute was about the
17

alien and subject status of foreign-born children (col. 628).
See p. 172 above.
18

Hale's prerogative of the king, 92 Selden Society (1975) pp. 260±1.
19
Calvin's case (1608) 189

which has enjoyed an unchallenged acceptance until today: `[The
seizure of the Normans' lands] at ®rst was but in nature of a
sequestration donec terrae fuerint communes yet when the hope of
the recovery of Normandy grew desperate, grew a settled and
®xed estate in the crown.'20



SEMANTIC STRUCTURE OF EARLY MODERN LEGAL
DISCOURSE

We have argued that by the end of the ®fteenth century, common
lawyers began to show a growing dependence on written texts of
the past.21 By the time of the Elizabethan succession debate, no
legal argument could be taken seriously unless it was accompanied
by some mention of `aucthorities and boke cases' or the `old laws
and customs of our own country . . . by use and longe continew-
ance of time observed'.22 When Calvin's case was brought, it
already had long been a standard practice of presenting legal
argument to speak from books and rolls. Edward Coke, for
example, proudly noted that Calvin's case was argued by those
who `spake not out of their own head and invention', but
`diligently search[ed] out the judgments of our forefathers' (col.
612). A vast amount of Roman and medieval legal texts was cited
and incorporated in the sixteenth-century legal discourse. All
these texts, however, were approached and interpreted from a new
vantage point. We will discuss a few examples.
Lawyers of the sixteenth century did not refrain from drawing a
parallel between the law of their kingdom and the Roman law
concept of ius ciuile. In Justinian's Digest, ius ciuile was explained
as `our law (ius nostrum)'. It was a law which could be obtained by
adding something to, and deducting something from, the law
which was common to all (ius commune). It was a law which was
proper to us (ius proprium).23 Gaius had explained ius ciuile in a

Hale's prerogative of the king, p. 58. See Maitland's explanation of the beginning
20

of the English law of alien status which we quoted on pp. 12 and 17 above.
See pp. 151±3 above.
21

J. Leslie, A defence of the honor of Mary . . . (London, 1569) fo. 55v; E. Plowden,
22

`A treatise proving that . . .', BL Harl. MS, 849, fo. 18v, respectively.
D. 1. 1. 6 (`itaque cum aliquid addimus uel detrahimus iuri communi, ius
23

proprium, id est ciuile ef®cimus. Hoc igitur ius nostrum constat aut ex scripto
aut sine scripto').
Historiography
190

similar manner: `All peoples governed by [statute] laws and
customs observe partly their own peculiar law and partly the
common law of all mankind. That law which a people establishes
for itself, as a law peculiar to it, is called ius ciuile, that is, the
special law of that ciuitas.'24 Nos in `ius nostrum' of Justinian's
Digest must originally have meant the populus of a civitas. But
what is populus? How many of the sixteenth-century lawyers
would have refrained from understanding the word populus as
Fortescue understood it; that is, a multitude of individuals bound
together by the bond of law and faith to form a mystic body
(corpus mysticum)?25 Classical Roman jurists probably did not
have a clear idea about how the mystic body of populus could be
used in explaining the law of personal status.26 Their law of
personal status was grounded upon the division between free-men
and slaves. This division did not turn on an argument as to
whether a person was within or without the mystic body of
populus. Whether one is an insider or an outsider is presumably a
question which human beings constantly ask of themselves and of
others. It would surely be senseless to doubt that the notions of
`insiders' and `outsiders' are the fundamental categories of human
psychology which have repeatedly been exploited in political and
theological discourse. But whether legal vocabulary was capable of
giving expression to these psychological categories in the context
of the law of personal status is an entirely different matter. The
term persona in the Classical Roman legal texts invariably referred
to a human being (homo).27 Whilst this vocabulary is maintained, a

Gaius, Institutes, 1. 1 (`Omnes populi qui legibus et moribus reguntur partim
24

suo proprio, partim communi omnium hominum iure utuntur. nam quod
quisque populus ipse sibi ius constituit, id ipsius proprium ciuitatis, est
uocaturque ius ciuile, quasi ius proprium ipsius ciuitatis'). Also D. 1. 1. 9.
See pp. 5±6 above. Of course, Fortescue's conception of populus was ®rmly
25

rooted in the Thomist tradition which approximated populus to ecclesia and
civitas. See Yves Congar, ` ``Ecclesia'' et ``populus (®delis)'' dans l'ecclesiologie

de S. Thomas' in St Thomas Aquinas 1274±1974, ed. Armand Maurer
(Toronto, 1974) pp. 159±73.
On the concept of corpus mysticum in the later Roman law jurisprudence, see
26

Arnold Ehrhardt, `Das Corpus Christi und die Korporationen im spat- È
roÈmischen Recht', 70, 71 Zeitschrift der Savigny-Stiftung fu Rechtsgeschichte,
Èr
Rom. Abt. (1953, 1954) 299±347; 25±40.
Basile Eliachevitch, La Personnalite juridique en droit prive romain (Paris, 1942)
‚ ‚
27

p. 353 (`Les Romains ne connaissaient pas les personnes juridiques. Pour eux
n'existait qu'un seul sujet de droit, l'individu. Quand ils parlaient de la persona,
ils n'avaient jamais en vue autre chose que l'individu'). See also Alexander
Calvin's case (1608) 191

persona cannot normally contain several personae `within' it except
for the case of pregnant women, perhaps. By the same logic,
whether or not one is a free-man is not a question which can be
answered by looking at whether one is `within' a mystic, corporate
persona. The very concept of the mystic corporate body was
something which the Classical Roman jurists could not capture or
express with their legal vocabulary. Likewise, until the ®rst half of
the fourteenth century, children born `out of the ligeance' were not
`outsiders' of the English kingdom or the common law. Those
born `within the ligeance' were not `insiders' either. They were
neither outsiders nor insiders. As far as medieval common lawyers
were concerned, they were `persons' whose legal claim must be
judged by law (procedures of inquest) rather than by faith,
allegiance and the mystic body politic. The sixteenth-century law
of personal status, on the other hand, seemed wholly to revolve
around the concepts of `insiders' and `outsiders' of the mystic
body of populus.
To be a civis in the Roman law of personal status meant to have
libertas.28 The continuity was maintained in medieval legal termi-
nology where civis was often identi®ed with liber homo. But how
far can we stretch the continuity? The sixteenth-century common
lawyers might well have claimed that the king's subjects within his
kingdom ± which was understood by an analogy to civitas in
Roman law ± were enjoying the `liberty of Englishmen born'.
Even better, aliens were subjected to legal disability just as non-
citizens in Roman law were experiencing varying degrees of legal


Philipsborn, `Der Begriff der Juristischen Person im ro Èmischen Recht', 71
Zeitschrift der Savigny-Stiftung fu Rechtsgeschichte, Rom. Abt. (1954) 41±70.
Èr
Similar remarks can be made with regard to the Greek legal vocabulary of the
same period. See F. Devisscher, `La dualite des droits de cite dans le monde
‚ ‚
romain, d'apres une nouvelle interpretation de l'edit III d'Auguste decouvert a
Á ‚ ‚ ‚ Á
Cyrene' in his Nouvelles e ‚tudes de droit romain public et prive (Milan, 1949)

Á
p. 111.
See, in general, A. N. Sherwin-White, The Roman citizenship (Oxford, 1965).
28

See also Francois Jacques and John Scheid, Rome et l'inte
Ë ‚gration de l'empire, 44
av. J. C. ± 260 ap. J. C., vol. I, (Paris, 1990) Les Structures de l'empire Romain
ch. 6; Claude Nicolet, Le Me ‚tier de citoyen dans la Rome re ‚publicaine, 2nd edn
(Paris, 1976) pp. 31±70; Francois Jacques, ed., Les cite de l'occident Romain
Ë ‚s
(Paris, 1992) passim. The same approach was taken in the Ancient Greek world.
For a brief introduction and bibliography, see Raoul Lonis, La Cite dans le ‚
monde grec: structure, fonctionnement, contradiction (Paris, 1994); Claude Mosse, ‚
Áce
Le Citoyen dans la Gre antique (Paris, 1993).
Historiography
192

incapacity. Citizenship comes with liberty, just like before. What
is the difference, then?
What the sixteenth-century lawyers did not recognise was that
personal liberty in Roman law did not ¯ow from political subjec-
tion. Personal liberty in Roman law may be obtained, not through
political subjection, but by removal of personal subjection. The
Roman law of personal status constituted a self-suf®cient logical
structure which was severed from the question of submission to
political authority. Their ius personarum remained within the
sphere of ius privatum, which was distinguished from ius publicum.
Roman jurist Florentinus' well-known de®nitions of liberty and
slavery are particularly revealing because he managed to explain
the two key concepts of the law of personal status without any
reference to the question of political subjection: `Liberty is one's
natural faculty to do what is not prohibited by law or by force.
Slavery is an institution of ius gentium whereby one is, against
nature, subjected to the ownership of another.'29 For the jurists
who were living under the Pax Romana, the question of political
subjection could not have been a useful criterion for personal legal
status. For all practical purposes, disputes concerning personal
legal status arose among those who were already sub imperio poluli
Romani. Numerous divisiones personarum which the jurists em-
ployed to distinguish ®rst of all between liberi and serui and then
among cives, latini, latini Iuniani, peregrini, peregrini dediticii, etc.
were indeed ways of dividing those who were already subjugated
to the Roman imperial power. Not surprisingly, Roman jurists
steered clean away from the question of political subjection in
discussing the law of personal status. The sixteenth-century
lawyers, however, were no longer capable of discussing the law of
personal status without mentioning allegiance and obedience. By
then, personal liberty was inseparably bound up with political
subjection.
The strange union of personal liberty and political subjection is
in fact full of surprises. The judges and lawyers in Calvin's case
were assuming that birth within the allegiance would guarantee `a
capacity or ability to all bene®ts whatsoever' (emphasis supplied).


`Libertas est naturalis facultas eius quod cuique facere libet nisi si quid ui aut
29

iure prohibetur; seruitus est constitutio iuris gentium, qua quis dominio alieno
contra naturam subicitur'. D. 1. 5. 4.
Calvin's case (1608) 193

Here, we must note that personal liberty was no longer regarded
as requiring distribution among subjects (each subject is given all
liberty). Medieval lawyers, on the other hand, understood libertas
as something which requires distribution. Since liberty was
thought to involve disposition of material resources (for example,
if I am free to eat a loaf of bread, that particular loaf will become
unavailable for other people's consumption), the value of liberty
was also deemed as essentially material. Notwithstanding all
rhetorical claims to the contrary, libertates were therefore re-
garded, in practice, as marketable commodities which were sold,
inherited, granted and leased with or without various conditions
attached to the transaction. The existence of the market and the
pricing system for libertates indicates that a distribution me-
chanism was at work. Liberties, therefore, were distributed. Ius
was essentially the mechanism of just distribution of personal
libertates.30 As in the case of any commodities whose allocation is
largely entrusted to the functioning of a market and its pricing
mechanism, some managed to acquire them, and some did not. In
other words, liberties belonged only to those who had acquired
them ± in the name of justice, of course. This is why legal
inequality was the essential attribute of the Classical notion of
justice.31
Sixteenth-century lawyers no longer subscribed to this idea
because they understood personal liberty by close analogy to
spiritual liberation. The spiritual dimension of liberty was cer-
tainly not new. But, in so far as the law of personal status was
concerned, it was not known or, at least, not incorporated into the
legal argument until the mid-fourteenth century. Spiritual liberty
requires a peculiar distribution pattern because it involves disposi-

D. 1. 1. 10 (`Iustitia est constans et perpetua uoluntas ius suum cuique
30

tribuendi').
It is beyond the scope of this book to attempt to provide a bibliography of
31

general works on liberty and justice. We may only mention speci®c works such
Ãge, Islam, Byzance, Occident, ed. A. Gouron
as La notion de liberte au moyen a

and M. Boulet-Sautel (Paris, 1985); Jean-Francois Poudret and Danielle Anex-
Ë
Cabanis, `L'Individu face au pouvoir seigneurial d'apres chartes de franchises de
Á
suisse romande au moyen age' in L'Individu face au pouvoir, vol. III, Europe
Ã
Ácles (Brussels, 1989) p. 177; Paul Ourliac and Jean-
occidentale XIIe±XVIIIe sie
Louis Gazzaniga, Histoire du droit prive francais ± de l'an mil au Code civil (Paris,
‚ Ë
1985) p. 173. The importance of the pricing mechanism in the Aristotelian
notion of justice is stressed by Peter Stein and John Shand, Legal values in
Western society (Edinburgh, 1974) pp. 59±62.
Historiography
194

tion of spiritual resource, which is inexhaustible.32 Because of its
unlimited availability, every one could have unlimited supply of
spiritual resource. If, however, this is allowed, spiritual liberty
would be valueless. It is therefore necessary to maintain a distribu-
tion pattern where certain individuals shall be prevented from
enjoying it in spite of its inexhaustible supply. According to the
medieval Christian theology, the distribution of spiritual liberty
(salvation) turns on faith. The resulting distribution pattern is `all'
or `nothing' because faith was understood as a question of `yes' or
`no'.
Francis Bacon's argument in Calvin's case suggests that the
distribution pattern of personal liberty is closely copied from the
medieval Christian soteriology. According to him, allegiance to
our lord the king shall guarantee the capacity to take `all bene®ts
whatsoever'. Lord Chancellor Ellesmere also argued that the
subjection to the king would make a person `intire and perfect'.
The reason a subject can take `all the freedomes, priviliges and
bene®ts' is because he is `complete and entire'. An alien cannot be
an `intire and perfect' person in law because he lacks faith and
allegiance to our lord the king.
From then on, legal debate on liberty would shift its focus from
the question of `doing' to the question of `being'. Florentinus'
de®nition which we quoted earlier has another merit of demon-
strating that libertas was understood as a person's faculty `to do'
something.33 But the ®fteenth- and sixteenth-century lawyers
were in complete agreement that personal liberty was an `ontolo-
gical' question which must be answered either `yes' or `no'. The
question was no longer `what is one free to do?'. The new question
persistently to be asked is whether or not one is free, that is,
whether one's existence is judicially `perfect'. We have already
seen that faith in our lord the king holds the key to the perfection
of one's `being', legal as well as spiritual. Among the `entire and
perfect' beings who have thus obtained freedom, the question of
liberty can no longer be discussed in positive terms of `faculty to
do' this or that. As all entire and perfect beings must be allowed

See, in this connection, John 4: 13, 14 where Jesus claims that `[e]veryone who
32

drinks this water will be thirsty again, but whoever drinks the water I give him
will never thirst. Indeed the water I give him will become in him a spring of
water welling up to eternal life.'
See his de®nition of liberty (D. 1. 5. 4) quoted in note 29 above.
33
Calvin's case (1608) 195

all bene®ts whatsoever, liberty becomes a negative question of
`toleration'.
For the same reason, the modern legal concept of equality must
not be confused with the equal distribution of libertates. The
equality in the modern legal argument is a notion which entirely
does away with the very concept of distribution. Each subject's
share ought to be `full and entire'. In fact, the concept of `share' is
in itself inappropriate to the discussion of equality in modern
jurisprudence. Each subject takes the entirety; and still, there are
plenty of leftovers. It is inexplicable because it is a miracle. What
distinguishes the equality of subjects from the equality of cives in
Roman law is that the former is based on faith, obedience and the
mystic body politic whereas the latter is based on ius and iustitia.
Those who are under the `obeisaunce of our lord the king' are
given liberty. In their `plenitude' of liberty, they are equal;
equally `perfect'.34 It is an equality which becomes possible only
when liberty is seriously confused with spiritual liberation.
According to Bacon, it is the `law' which has the power to
deliver this kind of equality: `The law is equal, and favoureth not.'
Obviously, he was not talking about the ius to which Gaius or
Bracton referred. For the Roman and medieval jurists, ius perso-
narum was the very mechanism of unequal distribution of libertas.
Their law (ius) was unequal, but it was grounded upon `justice'.
The point is that as long as justice is the basis of law, law cannot
deliver liberty to all. Invariably, some will have it, some will not.
Only when law is truly grounded upon faith, can liberty be freely
(gratiis) delivered to everybody in the name of law. Of course,
`everybody' here means an exclusive category of those `within' the
bond of faith: that is, everybody within the mystic body.
These, in our view, are the semantic assumptions of the
sixteenth-century lawyers when they put forward their legal argu-
ment about individuals and society. All past texts were to be
approached and interpreted from this point of view. Whenever
they saw the word alienigena, they would treat it as a legal status
characterised by the lack of faith and the resultant position as an
`outsider' to the mystic body they read into the contemporary


The king's letters patent issued to John Swart in 1397 seem to express this idea.
34

John Swart was portrayed as adeo libere et integre sicut unus de ligeis nostris (as
free and entire as one of the king's liege-men). See p. 57 above.
Historiography
196

texts. Documents which contain any mention of `alien' merchants,
`alien' clergy, `alien' priories or `alien-born' children were inter-
preted as either con®rming the legal predicament of aliens or ±
when the texts do not show a discriminatory legal treatment ± as
forming an exception to the law of alien status. Conversely also,
whenever they saw some legal disabilities affecting certain indivi-
duals, they did not hesitate to conclude that the legal disabilities
were the evidence of their alien status. We have seen how the legal
disabilities of foreign-born persons were interpreted. The legal
status of peregrini in Roman law, Jews and Lombards (money-
changers) in medieval European kingdoms were examples to
which the sixteenth-century lawyers frequently referred.35
Finally, whenever they came across a topographical name (Anglia,
Francia, Hispania, Roma, etc.), they would understand it as a
territorial embodiment of allegiance. Whenever they encountered
an appellation of a group of individuals (Franci, Angli, barbari,
serui, ciues, Jews, Christians, etc.), they would see a populus bound
up by the bond of faith to form a mystic body. `Insiders' of such a
mystic body are to be saved because they remain `within' the bond
of faith and obedience. `Outsiders' are damned because they have
no faith, they show no subjection. This is how the sixteenth-
century lawyers interpreted and understood legal texts of the past.
Must we not admit that anachronistic exploitation of terminology
is the very basis of the progress of jurisprudence?



CONCLUSION

That the proposal for mutual naturalisation was made upon the
accession of James I is signi®cant in itself. When William of

This is why the legal treatment of Jews in medieval Europe is sometimes
35

thought relevant to the development of the law of alien status. This book does
not discuss the legal treatment of Jews not merely because they were expelled
from England in 1290, but more signi®cantly because their history is largely
irrelevant to our topic. Whether or not Jews were legally discriminated against is
entirely beside the point because most people in medieval Europe were under
some kind of legal disability. The legal distinction between aliens and subjects,
on the other hand, is grounded upon the assumption that faith and allegiance to
the political ruler will guarantee the full enjoyment of legal liberty. Jews in
medieval England, however, knew no kings other than the king of England.
Whatever might have been the reason for the discrimination and their eventual
expulsion, it cannot be associated with the law of alien and subject status.
Calvin's case (1608) 197

Normandy was enthroned as the king of the English in the
eleventh century, no one thought it necessary to discuss the alien
or subject status of Franci in England and Angli in Normandy.
This was because personal legal status did not depend on political
subjection. A serf was a serf regardless of who happened to come
to the throne. Whether in England or in Normandy, a free-man
was a free-man as long as he could prove his free status. Regardless
of whether the king of the English happened to have an additional
title as the duke of Normandy, a foreign-born heir could not
inherit land in England if he could not prove his good descent.
The Conquest did not bring any change to this fundamental
structure of legal analysis.
Of course, legal historians have long held the view that Franci
and Angli became somehow incapable of distinguishing each other
after the Conquest, thus achieving some sort of political and legal
fusion due to a grand scale confusion of ethnic identity. We have
already argued at some length that this view stands on no historical
basis.36 For the sake of argument, however, let us for the moment
not question the validity of such an explanation. Still, it does not
seem to provide a satisfactory explanation about the beginning ±
or the lack until the beginning ± of the law of alien status. It can
only explain a temporary lack of the law of alien status. We are still
left with no explanation about the beginning which, according to
this scheme of explanation, must lie before the introduction of the
temporary lack. Rather, legal historians seem to regard what Mait-
land has called `the two great classes of men' as inescapable
categories.37 The division may temporarily disappear or reappear.
But these ¯uctuations are understood as resulting from external
circumstances such as feudalism, Norman Conquest and the loss
of Normandy. Whenever the circumstances are right, the division
will reappear then. The explanation, therefore, is about the begin-
ning of these circumstances, rather than the beginning of the
division itself. This is where the in¯uence of Calvin's case proves
most enduring. We explain why we think so.
As we saw, the majority in Calvin's case held that allegiance or
the division between subjects and aliens was the work of the law of


See pp. 14±15 above.
36

F. Pollock and F. W. Maitland, The history of English law before the time of
37

Edward I, 2nd edn, 2 vols. (Cambridge, 1968), I, 458.
Historiography
198

nature. It is already well known that the contemporary lawyers'
understanding of natural law was closely tied up with the concept
of divine law.38 Both natural law and divine law were thought to
be grounded upon the unchanging and eternally valid reason
(ratio). The point was clearly demonstrated by St German.
According to his famous work, Doctor and student, the `law eternal
is nothing else than that supreme reason (summa ratio) in God for
governing things'. Law of nature, which he prefers to call the law
of reason, is participation or knowledge of eternal law made
available to human beings by virtue of the light of natural reason
(lex rationis nichil aliud est quam perticipatio vel notio legis eterne in
creatura rationali ei reuelate per lumen naturale rationis). Thus
understood, law of nature has the essential characteristics of the
immutable, God-given law which transcends time and space.39
Calvin's case further demonstrates that the proponents of the
union with Scotland resorted to this concept of natural law in
order to overcome the constraints of the established common law
rules regarding allegiance. By asserting that the allegiance and the
division between aliens and subjects are the work of natural law,
they attempted to achieve what was impossible under the existing
framework of the common law, namely, uniting two kingdoms
under one allegiance. One may still debate how successful was
their attempt for the union. But what is not to be doubted is that
they pushed the opinion of their opponents and predecessors
(such as Littleton and Fortescue) into an almost complete oblivion
and impressed the posterity with the `rationality' of the division
between aliens and subjects. The division is no longer viewed as a
product of human law and legal conventions. The legal categories
of aliens and subjects have been raised to the rank of conceptual
categories grounded upon reason. The division between aliens and
subjects, as it was now thought to rest upon reason, came to
transcend time and space. Such a `rational' and `natural' division
can never be completely erased or altered ex loco nec tempore
because it is written in the heart of men.
This is probably why lawyers and legal historians are still
experiencing dif®culty in postulating and explaining the begin-
ning of the law of alien status. The fact that some efforts have so

Gierke, Natural law and the theory of society, vol. I, pp. xxxvi±xli.
38

Doctor and student, 91 Selden Society (1974), pp. 8, 12±15.
39
Calvin's case (1608) 199

far been made to envisage the so-called `beginning' does not
vitiate our claim. The efforts, as we pointed out, are directed to
the explanation of a temporary lack where the division between
aliens and subjects is thought to have been `obscured' by certain
intervening circumstances. Such an outlook still lies wholly
within the conceptual framework which many of us have know-
ingly or unknowingly inherited from the early modern proponents
of the natural law argument. St German himself conceded that the
law of nature, though it never mutates, could sometimes be
obscured: `one cause for giving written law . . . is said by holy
men to have been the darkening of the law of reason and not its
changing (propter legis rationis obfusciationem et non propter eius
mutationem)'.40
Calvin's case itself was never meant to be a forum for historical
investigation into the law of alien status. Legal historians,
however, have accepted most of Edward Coke and Francis Bacon's
interpretation of the medieval texts regarding the treatment of
foreigners as historically accurate. As a result, they have built a
historiographical tradition which is dif®cult to understand without
a close look at the case. As far as the law of alien status is concerned,
legal historians and the sixteenth- and seventeenth-century
lawyers seem to share two things in common: modernity of
outlook and insensitivity to historical changes of legal terminology.

Ibid., p. 14.
40
9


CONCLUSION




`All men are either slaves or free men.' This statement had long
been the basis, the starting point of all re¯ections on personal legal
status in Europe. The statement, however, conceals an outlook
which has become unreachable for people today. It expresses ideas
which are so grotesque and disturbing to the modern mind that
they have been gently removed from the realm of the thinkable
and put away in an obscure corner of our mental world where
access is prohibited. In short, the statement contains ideas which
are now taboo.
The voluminous studies on slavery1 accumulated during the last
two centuries have, on the whole, failed to dismantle the me-
chanism of taboo which shields these forbidden ideas. The reason
for their failure can be explained as follows. Most studies on
slavery start with the assumption that slaves were chattels, or
objects which need not and must not be discussed on the same
platform as persons.2 Once slaves are thus removed from the
company of persons, slavery can be discussed and understood
using the terminology and the categorical divisions familiar to us.
First, for example, it is entirely proper to maintain a sharp

For a critical historiographical appraisal, see M. Finley, Ancient slavery and
1

modern ideology (London, 1980). To cite but a few works, among numerous
others, Henri Wallon, Histoire de l'esclavage dans l'antiquite ®rst published in
‚,
1847, reprinted with a bibliography by J. C. Dumont (Paris, 1988); Paul Allard,
Á
Les esclaves chre‚tiens depuis les premiers temps de l'Eglise jusqu'a la ®n de la
domination romaine en Occident, 2nd edn (Paris, 1876); Alan Watson, Roman slave
law (Baltimore, 1987). Keith Bradley, Slavery and society at Rome (Cambridge,
1994) has a useful bibliography. There is, of course, a vast amount of literature
on slavery in the New World, which cannot properly be discussed in the present
work.
For example, Finley, Ancient slavery and modern ideology, pp. 67ff.; Alan
2

Watson, `Thinking property at Rome', 68 Chicago-Kent Law Review (1993)
1355±71 at 1355.
200
Conclusion 201

distinction between free-men and slaves because the division is to
be understood as drawn between persons and things. There is
nothing even remotely surprising about denying personal liberty
to entities which we classify as chattels. No one with good sense
would today doubt that persons must not be treated in the same
way as objects. Second, there is no need to commit the sacrilege to
the sancti®ed legal terminology `person' because it is not necessary
to entertain the dreadful possibility that some persons may be
totally and openly denied legal liberty which other persons are
allowed to enjoy. By extirpating slaves from the company of
persons, one can have the comfort of maintaining the modern legal
de®nition of `person' as the unfailing subject of legal rights and
obligations.
Studies of ancient slavery which start with the assumption that
slaves were not persons have thus allowed us to discuss slavery
without having to rethink and unsettle the semantic basis of the
modern legal vocabulary. According to this vocabulary, persons
and things are mutually exclusive categories; a thing cannot be the
subject of legal rights and obligations; persons, on the other hand,
must all be the subjects of legal rights and obligations. In other
words, these studies are based on the very language which
operates as the mechanism for locking away the disturbing
features of ancient slavery in a conceptual black hole where our
vocabulary, our meanings cannot reach. That a great number of
human beings had long been openly and completely denied
personal liberty may be disconcerting enough for many people
today. But what is even more disturbing about the ancient slavery
is that slavery did not at all disturb our remote ancestors. Studies
of ancient slavery uncritically using our own language have
deprived us of the linguistic means of approaching slavery in the
way it was approached by those who approved of the institution.
These studies ± conducted in a language which accurately re¯ects
the modern man's disapproval of slavery ± have reinforced rather
than dismantled the mechanism of taboo. While we discuss
slavery using our own terms, slavery remains an impenetrable
topic. All we can do is to point out the otherness, the inaccessible
and inscrutable bizarreness of a remote era. Indeed, many would
agree that it is somewhat odd to classify creatures of human form
as chattels. But it is a move which can willingly be made by
modern students of slavery with condescension, rather than
Aliens in medieval law
202

dismay. Surely, the proposition that slaves were chattels can go
down well as one of those sweet little idiosyncrasies of the `ancient
civilisation'. You only need to say once at the outset that slaves
were ± er, well ± chattels. You can then discuss slavery without
unsettling the vocabulary which is familiar to you.
That slaves were `persons' ± `persons' in the Roman legal
vocabulary did not mean much more than human beings ± and
that a slave could be described both as a `person (persona)' and as a
`thing (res)', we probably need not spend much time in asserting.
A century ago, William Buckland published a most emphatic and
authoritative article demonstrating these points.3 What we do
need to discuss, however, is how and why the unhistorical
proposition that slaves were not persons appeared in the ®rst
place. The appearance of this remarkable proposition and its
widespread acceptance are the signs of the major shift of outlook
on personal status in the European legal development ± the topic
of this book ± and our discussion can perhaps shed some light on
this shift of outlook.
The sixteenth-century French jurist Jean Bodin has attracted a
great deal of attention because of his thesis about sovereignty.4
But his works deserve even greater attention as they reveal how
the late medieval developments concerning the law of personal
status (English sources showing these developments have been
discussed in the ®rst half of this book) were ®nally summarised


W. W. Buckland, `Wardour Street Roman law', 17 Law Quarterly Review (1901)
3

179±92. What provoked this impassioned article was the unanimous view among
the nineteenth-century German and French scholars that slaves in Roman law
were not persons. See also his Roman law of slavery (Cambridge, 1908) pp. 3±4:
`There does not seem to be a single text in the whole Corpus Iuris Civilis, or in
the Codex Theodosianus, or in the surviving classical legal literature which
denies personality to a slave.'
Jean Bodin, Les six livres de la republique (hereafter, Re
‚publique), reprinted with
4

editorial corrections by Christiane Fremont, Marie-Dominique Couzinet and

Henri Rochais, 6 vols. (Paris, 1986); Jean Bodin, Method for the easy comprehen-
sion of history, trans. Beatrice Reynolds (New York, 1945). The Latin text and
French translation of Methodus ad facilem historianum cognitionem can be found
in Oeuvres philosophiques de Jean Bodin, ed. trans., Pierre Mesnard (Paris, 1951)
pp. 101±475 (hereafter, Methodus). See also Julian Franklin, Jean Bodin and the
rise of absolutist theory (Cambridge, 1973); Jean Bodin: actes du colloque inter-
disciplinaire d'Angers, 24 au 27 mai, 1984, 2 vols. (Angers, 1985). For a recent
bibliography on Bodin's theory of sovereignty, see Julian Franklin, ed. and
trans., On sovereignty: four chapters from the six books of the commonwealth
(Cambridge, 1992).
Conclusion 203

and how the earlier legal vocabulary was reinterpreted and rear-
ranged to accommodate the changed outlook. On a number of
occasions, Bodin made it clear that his mission was to replace the
Aristotelian explanations of the State and citizenship with a new
set of explanations.5 How did Aristotle de®ne citizenship, then?
According to the Greek philosopher, citizens must be de®ned as
those who are endowed with a certain quality (excellence) which
would allow them to participate in the political (public) life.6 His
de®nition of citizenship no doubt enjoyed an unchallenged accep-
tance throughout the Middle Ages.7 But the sixteenth-century
jurist Bodin ®nds it wholly unacceptable because it does not at all
take account of the bond of allegiance linking the prince and his
subjects. In Bodin's mind, this reciprocal bond of obedience and
protection must be the essence of citizenship. He accordingly
proposes as follows:
It must be said that privileges [enjoyed by Aristotelian citizens] do not
make a citizen. It is the acknowledgement and obedience of a free subject
towards his sovereign prince, and the guidance, justice and the defence of
the prince towards the subject which makes the citizen and which is the
essential difference between a citizen and a foreigner.8
Bodin, like his contemporaries in England, was assuming that

The opening paragraphs of ch. 6 of Methodus show that Bodin was determined to
5

reject Aristotelian explanations: `Authority, however, should not weigh more
than reason in this discussion, and we thus refute ®rst of all Aristotle's de®nitions
of citizenship, city, state, sovereignty and public of®ce with the necessary
arguments because they are at the core of the debate' (`Sed ne plus auctoritatis in
disputando, quam rationum momenta quaerantur, prius Aristotelis de®nitiones
Á Á
de cive, de civitate, de Republica, de summo imperio, de magistratu: quae sunt
hujus disputationis fundamenta, necessariis argumentis refellendae sunt'). Meth-
odus, p. 167. The same argument is more elaborately spelled out in Re ‚publique, I,
ch. 6.
Aristotle, The politics and the constitution of Athens, ed. and trans. Stephen
6

Everson (Cambridge, 1996) pp. 61±3 (1275a 23, 1275b 19).
Mario Grignaschi, `La De®nition du Civis dans la scholastique' in Gouverne et ‚s

7

gouvernants, part 3 (Brussels, 1966) pp. 71±88.
Re ‚publique, I, pp. 131 and 141 (`Il faut bien dire que les privileges ne font pas le
8

citoyen, . . . C'est donc la recongnoissance, et obeµssance du franc suject envers
È
son Prince souverain, et la tuition, justice, et la defense du prince envers le suject,
qui fait le citoyen; qui est la difference essentielle du bourgeois a l'estranger'). An
Á
earlier stage of Bodin's re¯ection on citizenship can be found in Methodus, p. 169
(`Respublica nihil aliud sit, quam familiarum aut collegiorum sub unum & idem
Á
imperium subjecta multitudo: civis autem qui communi libertate fruitur, ac
imperii tutela'). It seems, therefore, that subjection to the sovereign authority of
the State constitutes the basis of the citizen's liberty and the sovereign's
protection of its citizens.
Aliens in medieval law
204

human beings must ®rst of all be divided into citizens and
foreigners and that this division must turn on the political submis-
sion (allegiance) to the ruler. Also, like Coke and Bacon who saw
the division between subjects and aliens as an eternal and ever-
lasting division grounded upon nature and reason, Bodin was
convinced that his understanding of citizenship was of universal
and permanent validity transcending time and place.9 But unlike
the English common lawyers of the time, Bodin had to cope with
the Roman legal texts where slavery featured prominently. Could
his argument (i.e., political subjection must be the decisive
criterion of personal status) ± if it indeed had the universal validity
as he claimed ± be reconciled with the status of slaves? Bodin does
recognise that because citizenship, as he sees it, depends on
obedience and subjection to the sovereign prince, it is necessary to
explain why a slave cannot claim citizenship `even though the
slave may be as much subject, or even more subject to [the ruling
authority of] the State than his master is'. This is how Bodin came
up with the astonishing solution that `in legal terms, slaves were
counted for nothing'.10 Armed with this proposition ± which can
claim no textual support from the Roman legal sources11 ± Bodin
and succeeding generations of lawyers and historians have
managed to ignore the whole corpus of texts which show that, to a
great extent, personal legal status was determined quite indepen-
dently of the question of political subjection.

The `universalist' approach of Bodin is fully discussed by Julian Franklin, Jean
9

Bodin and the sixteenth-century revolution in the methodology of law and history
(Westport, Conn., 1977, ®rst published in 1963); Donald Kelley, `The develop-
ment and context of Bodin's method' in Jean Bodin: Verhandlungen der
internationalen Bodin Tagung, ed. H. Denzer (Munich, 1973) pp. 123±50. See
also Jean Bodin, Expose du droit universel, trans. Lucien Jerphagnon (Paris,

1985).
Re ‚publique, I, pp. 113±14: `car combien que l'esclave soit autant, ou plus subject
10

de la Republique, que son seigneur, si est-ce que tous les peuples ont toujours
passe par commun accord que l'esclave n'est point citoyen, et en termes de droit

est conte pour rien'.

In saying that slaves were counted for nothing, Bodin refers to Digest, 50. 17. 32
11

(Ulpian) without quoting the passage. The passage, however, needs to be quoted
in full: `As far as ius civile is concerned, slaves are counted for nothing; this,
however, is not the case in ius gentium for, as far as ius gentium is concerned, all
men are equal.' Bodin truncated this statement of Ulpian and apparently
convinced himself that the ®rst half gave him suf®cient ground to say what he
did. For an authoritative argument that this passage and other similar passages
(D. 28. 8. 1 and D. 50. 17. 209, for example) cannot be a ground for denying
personality to slaves, see Buckland, `Wardour Street Roman law'.
Conclusion 205

In fact, Bodin's solution amounts to nothing less than erasing
the past. Men's outlook on society and its component individuals
(including free-men as well as slaves) had been built around the
institution of slavery. Slavery had been the very foundation of the
law of personal status. Slaves were one of `the two great classes of
men' known to Roman jurists (omnes homines aut liberi sunt aut
serui). To say that slaves were counted for nothing is to turn a
blind eye to all this history and deny that there ever was such a
history. Students of slavery who keep saying that slaves were not
persons are doing precisely this. By suggesting that slaves need
not and must not be discussed in connection with the law of
persons, they have succeeded in destroying both the forum and
the topic for the discussion through which the past language of the
law of personal status may be recovered. While the language of the
past describing its law of persons is thus kept beyond recovery, the
present language, the present outlook reigns as the only possible
language, the only possible outlook. The ancient law of slavery is
described using the modern terminology re¯ecting the modern
outlook.12
As far as essentials are concerned, all that needs to be said about
the present law of personal status was already said by Coke and
Bacon in Calvin's case: `Every man is either an alien born, or a
subject born.' This is an outlook which is thoroughly familiar to
us. There is, after all, nothing unusual about modern men and
women taking for granted the modern outlook on which the
modern law of personal status is grounded. In chapters 1 and 8 of
this book, I have attempted to explain why historians too might
have failed to recognise the modernity of this outlook. We saw
how historians studying the beginning of the law of alien status
attempted to postulate a period when the division between aliens
and subjects was supposedly lacking. The contrived absence of the
division is explained by reference to some extra-legal circum-
stances such as the Norman Conquest and feudalism. The begin-
ning of the law of alien and subject status is then portrayed as an
appearance ± after a period of absence ± of the division between
aliens and subjects. It is just as the sun or the moon may appear
and disappear. One may study the mechanism of its disappearance

For a fuller discussion of the historical change of language and the nature of
12

history writing, see `Excursus', below.
Aliens in medieval law
206

and reappearance. But such a study will never explain the begin-
ning or the end of the sun or the moon itself.
For the early modern lawyers like Coke and Bacon, the division
between aliens and subjects was indeed a `natural' division, as
natural as the sun or the moon. Moreover, just as the over-
whelming majority of judges in Calvin's case viewed the division
between aliens and subjects as a permanent, immutable and
inevitable division rooted in the natural law ideology of the time,
so did the humanist jurist Bodin believe that his de®nition of
citizenship (grounded on the bond of allegiance) must be `uni-
versally' valid regardless of time and place. Legal historians have
apparently inherited this sixteenth-century language. The history
of the law of alien status is therefore discussed just as one would
discuss the eclipses and reappearances of celestial bodies made in
heaven. Perhaps lawyers and historians are not alone in doing this.
Until the advances of the physical and mathematical sciences of
this century provided a scienti®c language to discuss the beginning
and the end of the universe, scientists too had only the language to
talk about the eclipses and reappearances of the heavenly bodies.
The beginning and the end of these `eternal' bodies were shrouded
in the mythical language.
While English jurists and historians were content to deploy the
explanations of the appearances and disappearances of the law of
subject and alien status, Jean Bodin undertook to provide a
mythical explanation of the beginning of the `permanent' cate-
gories of aliens and subjects. Bodin did this through his version of
the genesis of the State. His tale revolves around the theme of
primeval violence and subjugation. In the beginning, according to
Bodin, the force and violence provoked wars. These wars resulted
in conquest and subjugation. This provided the context in which
individual heads of family (re¯ecting his Roman law training,
Bodin's analysis is couched in the Roman legal terminology of
pater familias) came out of their households and entered into
`political' relationships with one another. This is how the State is
formed, according to Bodin. Now, those (heads of family) who
submitted and adhered to the commander of the original conquest
were the `loyal subjects'. The natural liberty which they had
enjoyed before the creation of the State was diminished to the
extent of their obedience to their sovereign commander. The
`others', who did not obey the triumphant commander, were
Conclusion 207

reduced to `pure servitude'. Bodin explains as follows: `he who did
not want to give up some of his liberty, which is necessary to live
under the laws and commands of someone else, lost all of his
liberty'.13 They are the foreigners, the disobedient lot.
According to this story, the relationship of obedience and
protection between the ruler and the ruled ought to be primeval.
The relationship dates back to the very beginning of the political
existence of human beings. This is how Bodin and his followers
discovered the primordial importance of sovereignty ± the con-
verse image of the obedience of all faithful subjects. Bodin was
unable to imagine that the genesis of the State could ever be
explained otherwise. The fact that for such a long time, so little
attention was paid to the notion of sovereignty puzzled Bodin. But
instead of doubting the universal and transcendental validity of
his thesis, Bodin was rather inclined to explain his predecessors'
lack of interest in the concept of sovereignty as a sign of their
oversight or academic incompetence. In his celebrated work, Les
six livres de la republique, Bodin remarked in amazement that `no
jurist or political philosopher has yet de®ned the concept [of
sovereignty] even though it is the chief point, and the one that
needs most to be explained, in a treatise on the commonwealth'.
He also claimed that `among a million books that we see in all
sciences, there are just three or four books on politics'. And these
three or four books were obviously inadequate because, according
to him, `two thousand years or so since Plato and Aristotle had
written on this topic, political science was still shrouded in thick
veils of darkness'.14
At any rate, Bodin's version of the genesis of the State proved to
be a great success. There is, however, an important point which
must not be overlooked. His version of the genesis makes use of a
theme which is familiar to all of us, namely, the theme of a `fall'.
The genesis of the State is portrayed as human beings' fall from

Re‚publique, I, pp. 111±12. A similar explanation of the genesis of the State and
13

the ensuing relationship between the ruler and the ruled can be found in
Hobbes, Leviathan, ed. Richard Tuck (Cambridge, 1996) pp. 120, 121 and 150
(`For in the act of our Submission, consisteth both our Obligation, and our
Liberty'). The theme of primeval violence and conquest had already appeared
brie¯y in Bodin's Methodus, pp. 191, 382.
Re‚publique, I, ch. 8 (p. 179); the Preface (p. 11). More scathing remarks about
14

the supposed de®ciency of the works of his predecessors, including Plato and
Aristotle, can be found in his Methodus, p. 349.
Aliens in medieval law
208

the pristine condition where everyone had unrestricted natural
liberty. In the course of the fall, two great classes of men were
created: subjects and aliens. The former had their natural liberty
diminished to the extent of their political subjection. The latter
had their natural liberty completely removed because of their
disobedience to the supreme ruler. The only way the former (the
subjects) can once again have a taste of the blissful sweetness of
liberty is through faith and obedience to `our lord the king'. For
those who accept this version of the genesis of the State, there is
not much one can do to study the history of the law of alien status
apart from describing the eclipses and reappearances of the
permanent and indelible categories of aliens and subjects. Those
who dwell in a universe created by the universalist approach of
Bodin have no linguistic means of describing the historicity of
their conceptual universe. All they can do is to deploy the mythical
language which is itself the axiomatic basis of their conceptual
universe.
For our present purpose, we only need to point out that Bodin's
version of the birth story allows no role to be played by slaves.
Having completely removed the slaves from the scene (`slaves
were counted for nothing'), Bodin rede®ned the meaning of
slavery (servitude) and liberty. The `pure servitude' mentioned by
Bodin is no longer a private law concept. Unlike the Roman jurist
Florentinus who explained that slavery was about the relationship
between one private person (a slave) and another (his master),
Bodin rede®ned pure servitude so that it is now collectively applic-
able to those who do not owe obedience to the sovereign ruler.
They are under pure servitude not because they are subjected to a
master, but precisely because they do not have the proper master.
Nor does liberty mean what it used to mean. Liberty is now
inseparably bound with obedience to the proper master. Liberty
became an epithet indiscriminately applicable to all the `loyal and
faithful subjects' of the sovereign ruler.15
Aristotle, needless to say, had a very different explanation for the
origin of the State. His version does not even mention the division
between aliens and subjects nor the concept of sovereignty. Slaves,
on the other hand, play an indispensable and primordial role in his

Hobbes' analysis of liberty is also based on these premises. See Leviathan, ch.
15

21, `Of the liberty of subjects'.
Conclusion 209

story. Aristotle's explanation of the origin of the State is designed
to recon®rm and justify the division between slaves and free-men.
Aristotle did this by placing slavery at the very beginning of the
State.16 Bodin did the same thing with the division between aliens
and citizens. Bodin's birth story of the State is presented as an
explanation of how the division between aliens and citizens was ®rst
created. Just like any other creation myths, however, it cannot
explain the origin of what it purports to explain. Conversely, the
implicit assumptions about the division between aliens and citizens
commonly held by Bodin and his contemporaries can explain why
the origin of that division was portrayed in such a way and why
Bodin's portrayal has enjoyed such a great success.
This brings us back to the question we posed at the outset:
`How do we explain the beginning of the law of alien status?' The
least we can say is that the beginning of the law of alien status
cannot be explained by a contrived `appearance' of the category of
aliens. In order to talk about the appearance, one has to postulate a
period of `absence'. No amount of imagination, however, will
allow us to envisage a society or a situation where human beings
were incapable of distinguishing `we' from `they'. Rather, the
beginning must be studied by investigating the historical changes
in the relative importance of various legal divisions of persons.
After all, the division between aliens and subjects is only one out
of numerous divisiones personarum. When this particular division
was accorded the supreme, overriding importance, the law of alien
status can be said to have begun. The study of the beginning of
the law of alien status, therefore, inevitably involves a study of the
demise of the world where the division between free-men and
slaves was the supreme division (summa divisio) reigning above all
other divisiones personarum. Viewed from this standpoint, it
should be obvious that the law of alien status cannot be studied
without simultaneously investigating the changes in the way
subject status is conceptualised. When the lack of political submis-

Aristotle's analysis of slavery has the effect of conferring a transcendental
16

signi®cance on the division between free-men and slaves (by describing it as
having existed from the beginning). Slavery thus becomes an unassailable
institution within the Aristotelian system. The remarkable achievement of
M. Finley is to see through this argument structure. Finley instead gives a
convincing explanation of the emergence of slavery and demonstrates that
`slavery was a late and relatively infrequent form of involuntary labour'. Finley,
Ancient slavery and modern ideology, pp. 77±86.
Aliens in medieval law
210

sion began to be perceived as making all the difference in one's
legal status, a crucial move was made to set up the stage where
people of all sorts, kinds, sexes and status could start a long ®ght
to obtain an equal package of legal treatments with no other
ammunition than their political submission. What we need to
study if we are to understand the beginning of the law of alien and
subject status is then the emergence of a `new' outlook, a new
argument structure that personal legal status must turn on obedi-
ence and allegiance to the ruling authority of the State. Whether
this outlook can be labelled as `Christian' is perhaps a trivial
question. What is not trivial and therefore is worth stating is that
the immense prestige and the general approval enjoyed by certain
argument patterns of medieval Christian ecclesiology and soter-
iology (e.g., it is through faith and obedience that one can truly
`belong' to the mystic body of church; the membership of the
mystic body of church holds the key to salvation and perfection of
one's being; those who obtain perfection through faithful obedi-
ence to our lord the king can claim liberty as a matter of grace)
greatly contributed to the triumph of the new outlook by pro-
viding it with the vital rhetorical momentum to undermine the
®rm grip of the old outlook.
As far as English sources are concerned, we can conclude that
the pivotal achievement of introducing the question of political
subjection into the arena of private law discussion was made in the
middle of the fourteenth century as revealed by the statute De
natis ultra mare (1351). The statute was not about personal status
as such. It simply dealt with a particular private law right (the
heir's position to claim the inheritance) without making any
suggestion as to the legal status of the persons involved. But the
vocabulary it adopted (ligeance) provided a truly remarkable
means of expressing the `futuristic' vision, as it then was, that
political subjection should have far-reaching private law conse-
quences, while maintaining a facade of continuity with the past
Ë
where birthplace did have a private law consequence due to the
rules of inquest. This is how allegiance became the basis of the
modern law of personal status. The rise of the so-called ius soli ±
an anomaly which was unthinkable in the ancient laws of personal
status ± can only be understood when one remembers the double
meaning of ligeance which allowed the question of political subjec-
tion to be discussed under the guise of birthplace.
Conclusion 211

The modest aim of this book has been to advance an argument
that the history of the English law of alien status cannot be
explained by a few worn-out conjectures about the impact of the
loss of Normandy. The book therefore has dealt with only one half
of the great potential of ligeance as the cornerstone of the modern
law of personal status. Now, the other half of the story remains to
be told, which will be about the law of subject status (citizenship).
The questions of liberty and equality will then have to be dealt
with more explicitly than it was proper for us to do in this book.
If, meanwhile, some of the readers see in our foregoing discussions
many more topics which may be pro®tably explored not only to
study the history of the law of alien and subject status, but also to
deepen the understanding of our present and future world, then
the aim of this book can perhaps be said to have been fully
achieved.
EXCURSUS




On several occasions during our discussion, I have suggested that
a revolutionary legal change is accompanied by a semantic change
of legal terminology. The underlying assumption is that language,
legal or non-legal, undergoes historical changes. An obvious point
which needs to be reiterated in this connection is that both lawyers
and historians deal with texts composed in the past. Both of them
purport to interpret those texts to uncover their true meaning.
What is the difference, then? The problem presents itself with
some urgency to legal historians who need to explain that what
they are doing is somehow different from what lawyers are doing ±
often with the same texts. Maitland, of course, has already noticed
this. He saw that the problem was important enough to be chosen
as a topic of his inaugural lecture as the Downing Professor of
English Laws in the University of Cambridge in 1888. With his
characteristic lucidity, he offered an insightful distinction between
`two different logics, the logic of authority, and the logic of
evidence'. He then went on to explain as follows:
What the lawyer wants is authority and the newer the better; what the
historian wants is evidence and the older the better . . . That process by
which old principles and old phrases are charged with a new content, is
from the lawyer's point of view an evolution of the true intent and
meaning of the old law; from the historian's point of view, it is almost of
necessity a process of perversion and misunderstanding . . . The lawyer
must be orthodox otherwise he is no lawyer; an orthodox history seems to
me a contradiction in terms.1
More than a century has passed since. In the meantime, a great
deal of effort has been made by historians and lawyers to clarify
the nature of their respective interpretative activities. It is there-

`Why the history of English law is not written' in The collected papers of F. W.
1

Maitland, ed. H. A. L. Fisher, 3 vols. (Cambridge, 1911) I, p. 491.
212
Excursus 213

fore not entirely super¯uous to attempt to summarise their
achievements and explain once again the difference between

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