Margaret McGlynn

title.none: Kim, Aliens in Medieval Law (Margaret McGlynn)

identifier.other: baj9928.0208.019 02.08.19

identifier.issn: 1096-746X

description.statementofresponsibility: Margaret McGlynn, Wellesley College

publisher.none: .

date.issued: 2002

identifier.citation: Kim, Keechang. Aliens in Medieval Law: The Origins of Modern Citizenship. Cambridge Studies in English Legal History. New York: Cambridge University Press, 2000. Pp. iv, 250. ISBN: 0-512-80085-4.

type.none: Review

relation.ispartof: The Medieval Review

The Medieval Review 02.08.19

Kim, Keechang. Aliens in Medieval Law: The Origins of Modern Citizenship. Cambridge Studies in English Legal History. New York: Cambridge University Press, 2000. Pp. iv, 250. ISBN: 0-512-80085-4.

Reviewed by:

Margaret McGlynn
Wellesley College

Keechang Kim opens his study with a bold claim; he asserts that the rise of the law of alien status was "the cause rather than the effect of the birth of the modern State"(x). For this reason, he argues, its origin must be determined, not in the detail of legal change, but in the shifting terminology of lawyers and political theorists. Kim then moves on to define his question more precisely. From antiquity through the middle ages, he asserts, the primary division in the law of personal status was that between free and unfree (1-2). By 1608, in England at least, the primary division had become that between alien and natural-born, a division of crucial importance to this day (5). His question is when and how this shift took place.

Though this is the central focus of the rest of the book, his introduction sets up some of the structure that will follow. For example, he argues that by the time that Littleton and Fortescue were writing in the mid- to late-fifteenth century, they were uncomfortable with villeinage and servitude, thus setting the fifteenth and sixteenth centuries up as a time of accelerated change. He also tries, in the introduction, to dispose of some of the older ideas about alien status, and when and why it could not exist. Thus he argues that feudalism and nationalism are not incompatible, and that loyalty to a lord does not preclude a broader loyalty to a king (12-13). He also argues against Maitland's idea that the law of alien status began with the loss of Normandy, and that it was not until the Norman rulers were forced to become English kings that a law of alien status could develop (14). Throughout this section, and the rest of the book, he is aware of the problem that language will pose; it is obviously impossible to argue that there were no foreigners in England in the middle ages, or that they were not perceived as foreign. Kim's argument is that they were not aliens, i.e. their foreign-ness was not their defining legal characteristic, until a stream of thought emerged which placed greater emphasis on political loyalty than on personal status (16).

This shift is complex and difficult to trace, but Kim starts by examining the three most identifiable groups of foreigners in medieval England, merchants, clerks and religious houses, in order to establish their legal rights and liabilities. For merchants, "foreign" is a problematic term, since all merchants who were not of a city were prohibited from trading in it, whether they were from Cologne or Canterbury (34). Foreign merchants, like their English counterparts, sought charters which would give them general access to English cities, and began to develop procedures which would protect their rights and their business (37-9). Such rights and procedures were based entirely on negotiation, and the grantor usually received compensation for the rights received. None of this information is new, but Kim argues that the important point to note is that there is no consideration of the fact that merchants are foreign in any of these cases. The rights they receive are individual liberties, and they are the same in kind and in process, if perhaps varying in detail, from those given to English merchants of other cities. This chapter concludes with a brief consideration of the letters patent issued from the 1380s, which seem to suddenly take a different tone, and raise different issues. Rather than focusing on the sale of liberties, they talk about the status of the merchant and his relationship both to the king and his countrymen. Kim argues that while the practical needs of the merchant probably had not changed, the letters indicate a changing perception of foreign-ness somewhere in the system, and that these letters patent are the fore-runners of the developments of the fifteenth century.

After merchants, Kim moves on to clergy, and discusses both foreign clerks and foreign houses. In both cases he reaches a similar conclusion; that foreign-ness was not the issue at stake, but private rights. Thus he argues that the statute of Provisors was not aimed against foreign clerks, but solely against papal provision. The nationality of the clerk was completely irrelevant, since the statute was intended to protect the right of the patron to his advowson (81). The common law had no mechanism for considering the suitability of the individual clerk, and thus could not even address the issue of his origins. All it could do was to protect the right of the patron to present whomever he wished. Kim argues that this was the result of a legal system which had no consideration of public good, as opposed to private rights, and was thus "operating under a fundamentally different system of legal arguments" (82). He argues that this changed late in the reign of Edward III and under Richard II, when a statute prevented the appointment of foreign clerks. Kim suggests that this was part of a growing concern with public right, and more immediately a response to parliamentary pressure to exclude foreign clerks (83-85). However, this argument raises some questions which Kim does not address. As he points out, parliament had called for the exclusion of foreign clerks in 1376, and was told that two major statutes, presumably Provisors and Praemunire, already dealt with this matter (83). This seems to undermine his argument that Provisors had nothing to do with foreign-ness, and even if the 1376 interpretation was wrong, strictly speaking, it is still significant that this interpretation was generally and publicly accepted in parliament. It is also striking that while his discussion deals with the presentation to benefices by patrons, the 1383 statute specifically refers to the purchase of benefices by foreign clerks (83). This would seem to suggest that the statute had a different, and fairly specific focus, rather than standing as a general ban on foreign clerks. In this section Kim is trying to deal with a fundamental problem facing legal historians; it is clear that social and political change has an effect on the law, but it is also clear that the law has its own intellectual and structural integrity. Kim argues here that although there was clearly a growing social and political concern with foreign clerks which was connected both to the problems in the church and the ongoing war with France, this concern could not be easily or quickly transferred into a legal ban, since the law had neither the concepts nor the arguments to deal with such a problem. He sees the 1383 statute as an attempt to deal with this problem, but argues that in the event it caused more conceptual problems than it solved and was "quietly stifled" (85). This tension is a real and important issue for legal historians, but having stated the problem, Kim seems to prefer to avoid dealing with "the so-called historical context" (88).

His third case-study is the foreign priories, and here again he argues that there is no evidence that they suffered any disability because of their foreign-ness. He agrees that the lands of some priories were seized in the course of wars with France, but argues that this cannot be seen as evidence of their alien status for two reasons. The first is that the seizures were of French priories rather than all foreign priories; thus they were seized as enemy rather than alien (95). The second is that alien status is external and would not be affected by individual circumstances such as war (96). War-time seizures remained common through the reign of Henry IV, but Kim argues that they always remained specific to particular circumstances, and continued to assume the general rights of foreign abbeys to hold English lands. He identifies a shift in procedure in 1413, when lands of foreign priories were seized for the first time with no reference to war, but simply for the relief and support of the communities of the realm (99). Kim argues that this is "innovative and impressive" since the lands were seized without judicial sentence, and apparently simply in service of the public good, rather than for royal advantage or in recompense for a specific damage done (101).

In these first four chapters Kim draws a pattern in which foreigners, whether people or institutions, are treated individually, in terms of their personal status and with regard to their feudal relationships, through the thirteenth and much of the fourteenth century and suggests that this approach had begun to change in the late fourteenth or early fifteenth century. In these chapters he was primarily concerned with the acquisition and maintenance of rights, but in chapter five he shifts to the thorny question of inheritance by foreigners. He recognizes that there were problems with this, but he maintains his argument that there was no discrimination against foreigners per se, but simply the procedural problem of proving descent. In the period where inquisition juries were expected to witness based on their own knowledge, there was simply no way for an English jury to testify to the right of a child born overseas (110). Thus a foreign-born child could not inherit; Kim argues that it does not necessarily follow that he was an alien, and indeed he declines to consider whether or not he would have been seen as foreign (114). He goes on to argue that this problem had to be dealt with after the outbreak of the Hundred Years War, when large numbers of magnates, soldiers and their wives spent long periods of time overseas. Could children born in these circumstances inherit? In 1343 the question was raised in parliament with regard to the king's children, the children of those in the king's service, and foreign-born children in general (117). The response was that the king's children certainly could, that parliament would make it possible for all of those born in the king's service to inherit, but that there could be no relief for foreign-born children in general at that time, largely because of the procedural problems (118-9). The relief, Kim argues, came in 1351, when a statute was passed allowing foreign-born children whose mother and father were in the ligeance of the king to inherit. However, as Kim notes, the procedure given in the text relates specifically to the competence of the ordinary to certify to the bastardy of the putative heir. There is no procedure for dealing with a jury, which would handle nearness of blood or age. Kim argues that this was because of the popularity of possesory assizes, which dealt with the issue of possession rather than right, and which did not deal with proximity of blood if the proof involved circumstances which could not be tried in England. Thus, he argues, the origin of alien status cannot be found in the statute De natis ultra mare, because it is not concerned with either aliens or foreigners, but simply with the inheritance rights of foreign-born heirs of the king's soldiers.

Having established that there was no distinct concept of alien status at least before the early fifteenth century, Kim then goes on to examine what changed. He looks at the changing concepts of "faith" and "ligeance" to argue for a growing concept of an extra-feudal relationship with the king which was not territorially bound. The flexibility of "ligeance" as a term was particularly importance, since it could mean allegiance, but it could also have a spatial sense, representing the territorial extent of the king's power. Thus someone out of the king's ligeance could either be not loyal to the king, or physically out of England. Kim argues that this elision became a vital point in the development of alien status (138-43; 150). Putting this argument together with his treatment of De natis ultra mare, he argues that the two together reflect an idea that all men within the ligeance of the king are equal, which is a necessary preparation for the corollary that all men outside the ligeance are outsiders. He claims that this would be "a 'gospel' for villeins and other natural-born Englishmen whose insider status had long been useless in promoting their legal position" (144). Thus, he implies, the switch from personal status to subject status was made.

Having reached this position, the final chapters look at the movement to a fully-expressed theory of alien status. Kim argues that the change came about slowly, and with "minimum visibility" (147). One development was the refinement of the term alien to mean specifically those outside the king's allegiance, as reflected in Littleton, rather than either those who were born abroad, or those who were ethnically foreign (148-9). However, he also argues that geography then slid back into the equation, so that those born in the king's ligeance, i.e. in England, Wales or Ireland, were subjects, and all others were aliens. This is one of the more convoluted passages in the book, and it is not entirely clear how Kim both discounts and re-integrates geography as an element in subject status (150). He moves on to examine the early printed statute books, and Rastell's glossary, which appears to be the first place where alien is defined in terms of both parental allegiance and birth in England - a combination of the elements Kim has been discussing (156). In 1541 this was reflected in a statute which allowed children of an English father born abroad to be treated as natural subjects; this meant that not only could they inherit, as in De natis ultra mare, but they had full access to the legal system.

The next stage in this odd drama came with the succession crisis, when John Hales argued that not only subject status, but alien status was inherited from a child's father, in his attempt to exclude Margaret Lennox (who was born in England) from the succession. Hales claims that this interpretation was based on De natis ultra mare, and Kim points to this as the beginning of this interpretation of the statute as "the nationality statute" (163). The Scottish question dominated discussions of alien status for the rest of the century and up to the most famous argument on this topic, Calvin's Case of 1608. This case asked whether those born in Scotland after the accession of James I to the English throne were subjects or aliens in England, i.e. whether their allegiance to the king was enough to bring them under the laws of England. Those who were against this move argued that the king and subject were bound through the law, and as long as the laws of England and Scotland differed, those born in Scotland could not be automatically recognized as English subjects. Others, such as Bacon, argued that the bond of allegiance should over-ride the boundaries of the law. This was the winning argument, partly, Kim suggests, because of their manipulation of the written sources of the law, and their re-interpretation of the older texts in the light of their own understanding of faith, allegiance and natural law (187-9).

Aliens in Medieval Law very self-consciously questions historians' and lawyers' assumptions that "alien" is a fundamental social or legal concept. It does a remarkable job of arguing, based on the charter, statute and year book evidence, that there was no alien status through the medieval period, until a period of startling but largely invisible change from the late fourteenth through the late sixteenth century. This is an important argument, but it is also very much the argument of a legal historian. Although Kim argues for the value of an interdisciplinary study of this material, he hastens to add that this is not it; it is focused only on the legal arguments (18-19). This is reasonable, but the historian reading this book is likely to be frustrated by Kim's avoidance of the "so-called historical context." There are numerous places where a discussion of the broader context would have been enlightening, but I will mention only one: in a discussion of the shift from a divisio personarum of free and unfree to subject and alien, it is striking that there is no discussion at all of the decline of serfdom and the role it might have played in this switch. Even for the legally-oriented historian who may be less concerned by the absence of context, there are some questions. For example, Kim argues that the original reason for the exclusion of foreign-born children from inheritance was the procedural difficulty of holding inquests. Although he argues that the shift to ligeance as the focus of status helped ease their path, it is never made clear how the procedural problem was solved. Kim's overall focus on the development of the ideas drives the book forward, but there is little consideration of how much of this worked in practice. This is not intended to take away from the value of the book; it is a striking achievement and an argument of obvious importance. Hopefully it will inspire further examination of the lived experience of aliens in medieval England.