‘Foreign merchants’ may be discussed from two different angles: (1) as a sub-category of foreigners; or (2) as a sub-category of merchants. The former approach relies on a juxtaposition of foreigners and Englishmen as contrasting categories. No doubt such an approach will be useful for a medievalist who wishes to understand the group psychology of medieval English society. But it is of little use for our purpose. It is not our aim to study the popular sentiments regarding the presence and activities of foreign merchants in medieval England. The aim of the present chapter is to investigate the legal environment in which these merchants lived and conducted their business. As far as personal legal status is concerned, I see no point in comparing foreign merchants to English serfs; or foreign slaves (some Italian merchants, for example, brought them for their personal use) to English knights. I therefore choose the latter approach; that is, foreign merchants will be discussed as a sub-category of merchants. This does not mean that I postulate a legal category of merchants. I use the term ‘merchants’ as a factual, economic category of traders. We may begin by posing the following questions:

(1) What was the legal environment for commercial activities in general in medieval England?

(2) What were the differences between the legal status of English merchants and that of foreign merchants?

Medieval England – like elsewhere in Europe – offered two distinctively different sets of legal environment for commercial activities: fairs and cities.

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

PROOF OF DESCENT

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

FUNDAMENTAL CHANGE – FROM BRACTON TO BLACKSTONE

In the section where writs dealing with the question of personal status are explained, the author of the late twelfth-century English law tract known as Glanvill (c. 1187) goes into a long discussion about the division between the free and the unfree status. The detailed treatment is viewed by an influential editor of this work as ‘some lengthy observations … which are outside the limited purpose of a commentary on writs’. But, if anything, such an elaborate treatment shows the great importance the author attached to the division which he might have regarded as fundamental to the law of personal status.

What Glanvill failed to spell out with the crispness of a categorical declaration was succinctly expressed a few decades later by an able hand known by the name of Bracton. Students and practitioners of the common law in the thirteenth and fourteenth centuries must have admired the penetrating insight and clarity of expression of this celebrated author when they were reading the following passage from his De legibus et consuetudinibus Angliae (c. 1220–50):

The author of Fleta (c. 1290) was no doubt deeply impressed by the cardinal importance of this division. Accordingly, its very first chapter was devoted to introducing this principle.

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

For a long time in Europe, inequality was the moral and legal ideal. The fundamental division in the law of personal status was between the free and the unfree. All other divisions were subordinate to this summa divisio. In the preceding chapters, we have examined an important change which was introduced in England in the fourteenth century. First came the remarkable shift of outlook: faith and allegiance should guarantee the enjoyment of legal beneift within the realm (1351). Then came, as a corollary, the idea that a lack of faith and allegiance should disqualify a person from the enjoyment of legal benefit and advantage within the realm. A new approach to the law of personal status was being introduced. The new summa divisio personarum was to be drawn between those who were within (having faith and allegiance to the king) and those who were without. All other categorical divisions among persons would be given secondary importance. It was, in my view, a revolutionary change in the law of personal status in Europe.

However, a change of legal outlook does not automatically introduce new legal terms and definitions. Change of law entails change of resource distribution patterns. To reduce the resistance of adversely affected groups, it is preferable that the change should be introduced with minimum visibility. The inherent ambiguity of language will provide the key to a discreet, but successful legal change.

Queen Elizabeth I outlived all the heated debates arising from the succession question and died in 1603. The accession of James VI of Scotland to the crown of England marks the beginning of a long and tortuous process through which ‘British’ political and legal discourse has been created and recreated until this date. Regarding the political union of the peoples, the claims of James VI and I found an excellent means of expression in the concept of the ‘mystic body politic’. The following passage from his speech in the English Parliament seems to reveal the basic framework of his thought:

Lawyers, however, were encountering difficulties in giving legal effect to his enthusiastic claims about Great Britain. In an effort to draw up a scheme of ‘real and effectual’ union of the two kingdoms, Commissioners of Union were appointed in 1604 by the Parliaments of England and Scotland respectively. Also, a number of learned tracts dealing with the question of legal union were written and circulated during this period.

‘Ecclesiastical property’, wrote John of Paris in the first years of the fourteenth century, ‘has been given to communities, not to individual persons. So therefore, no one person has proprietary right and lordship over ecclesiastical property. It is the community concerned which itself has these.’ If an individual person has a right of usage over the property for his maintenance commensurate to his needs and rank, ‘he has this not as an individual in his own right but purely as part and member of the community’. Professor Maitland also recognises that throughout the Middle Ages, ‘it is never forgotten that the bishop who as bishop holds lands … holds these lands as head of a corporation of which canons or monks are members’. It is not to be doubted either that the parson of a parish church exercises his right over the church and its appurtenances in a rather peculiar way. Obviously, churchmen's landholding poses a number of technical and theoretical issues which make it distinct from laymen's legal control of land.

This, however, is not the topic I propose to discuss in the present chapter. Whether a person's access to the control of land is categorised as ownership or usufruct, whether such a control is exercised by the person in his own right or in right of a community: these are questions which do not have immediate relevance to our argument.

‘All men are either slaves or free men.’ This statement had long been the basis, the starting point of all reflections 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 slavery accumulated during the last two centuries have, on the whole, failed to dismantle the mechanism 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. 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 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.

On what ground do we maintain a legal distinction between citizens and non-citizens? Some would regard this as a futile attempt to doubt the obvious. ‘How could you not draw a distinction between citizens and non-citizens?’ they would reply. When a concept or a categorical division has been widely and frequently used for a long period, one is tempted to think that the concept or the categorical division is somehow ‘branded’ in the very nature of human beings. Each and everyone would then be born with it. The division between citizens and non-citizens is perhaps one such categorical division. Even those who would firmly reject the legal distinction and discrimination based on all other criteria will have no difficulty in accepting the legal discrimination based on nationality. When a division becomes so persuasive, it becomes inescapable as well. Our imagination falls prey to this categorical division in the sense that any alternative arrangements one could possibly imagine would simply look ‘unnatural’ and absurd.

The present work is an attempt to study the historical origin of this categorical division often regarded by many as wholly natural and inescapable. Why, is there anything more to be said about the beginning of the legal distinction between citizens and aliens (non-citizens)? Do we not already know that feudalism in medieval Europe was an antithesis of the State structure?

In an earlier chapter, I argued that the systematic ban on foreign clerical candidates' access to ecclesiastical benefices had to rely on an argument which has a number of features unprecedented in medieval jurisprudence. Moreover, we have seen that such a ban would actually infringe on the king's and his subjects' well-established patronage rights. This may have been one of the reasons why the attempted ban of 1383 was ineffective and quickly forgotten. Also, when lawful landholding claims of foreign religious houses were ignored and permanent removal of lands from those religious houses was declared in 1414, the ordinance was making an original claim which made reference to the ‘relief and support of the communities of the realm’. Some foreign abbots, as we saw, were not impressed by the novel argument, and kept bringing to the king's court their ‘lawful’ claims as tenants.

It is true, however, that the majority of foreign abbots acquiesced to the new argument and no serious attempt was made to recover their lands. The reason for this is not difficult to understand. Their lands had been in the hands of the English king intermittently for several decades by then. The foreign religious houses concerned most probably had given up the hope of recovering their lands. To hear that their long lost lands would not after all be returned to them was perhaps not painful enough to make them start a lengthy and expensive litigation to recover those lands.