Book Review

The question put forth by Keechang Kim in his book Aliens in Medieval Law: The Origins of Modern Citizenship is a simple but important one: how did the medieval English courts define the term "alien"? The standard response of legal historians, following in the more than ample footsteps of F. W. Maitland, is that the concept was not even understood at the time of the conquest because any legal awareness of English nationality would have made rule by a foreigner untenable. Consequently, it was only after the loss of Normandy in the thirteenth century that the English began consciously to distinguish between natives and foreigners. This view of the origins of the law of personal status is certainly compelling; yet, as Kim points out, there is very little evidence to support Maitland's seemingly reasonable hypothesis. Instead, Kim proposes a fresh perspective. He argues that the primary distinction between men in the medieval period had nothing to do with a person's birthplace; rather, the overriding concern was a division between the free and unfree, characterized by the amount of privileges and franchises they enjoyed. It was not until the fifteenth century when a new understanding of alien emerged, based on allegiance to the king. It is with this new definition of alien that Kim identifies a fundamental shift between a focus on "status to the State" (9), marking both the emergence of a distinction between natives and foreigners and the dawning of the modern era.	1
Kim's bold analysis of the legal evidence demonstrates that English law did not systematically discriminate against foreigners during the medieval period. His first few chapters adopt a similar approach: looking at a variety of ways foreigners interacted with Englishmen (as merchants, clerics, proprietors of religious houses) and examining the laws governing contact of this nature to demonstrate that their nationality was simply not an issue. For example, in the case of London, he observes that foreign merchants were accorded the same rights as any English merchant living outside London. Thus, it was not nationality, but privileges of the burgess that distinguished merchants in these courts. Similarly, when it came to the appointment of clerics, Kim notes that the issue dominating the English courts was not their nationality, but who appointed them (advowson ).	2
The strength of his book, however, lies in the second half, in which he traces the emergence of a new concept of personal status based on allegiance to the king and its legacy in the early modern era. In Chapter Five, Kim illuminates the efforts of the fifteenth-century courts to define "aliens" in such a way to ensure that Englishmen who were born overseas (as many royal sons and nobles were in times of war) did not find themselves incapable of proving their lineage and thus vulnerable to proprietary disputes. Nevertheless, the efforts of late medieval common lawyers were misinterpreted by their early modern counterparts when confronted with two political crises. First, in the Elizabethan era, fears of the queen dying childless made it necessary to contemplate the transmission of the English throne to a Scot. Opponents of Mary Queen of Scots reinterpreted the laws liberally to block her succession, focusing on the allegiance of the parent to determine the nationality of the child. Second, James's crowning suddenly brought into question the legal status of Scotsmen in England--were they in fact Englishmen because they shared an allegiance to the English king, or did their foreign birth prevent them from claiming English rights? The modern definition of aliens as foreigners was born in the debate surrounding these pivotal crises.	3
Kim's analysis, while insightful and persuasive, is not without flaws. Throughout Kim maintains that his goal is not to examine the rise of English nationalism because "[t]o say that the law of alien status resulted from the growing awareness of national identity is to run the risk of psychological determinism." Moreover, he argues that what is in question here is not how nationalism developed, but "how such a mode of perception could be translated into legal argument" (87). Nevertheless, because Kim's study is focused heavily on statute law and legal treatises, he fails to recognize that the laws may have been employed to discriminate against foreigners even if that was not their original intention. This oversight is compounded by his definition of "foreigner." In the section of his book that discusses the Middle Ages, foreigners are almost always described as Normans or the French, but when it comes to the early modern era, the Scots become the only foreigners worthy of mention. Research by C. J. Neville into the law courts of northern England suggests that this approach needs rethinking. She observes that northern Englishmen were very conscious to differentiate themselves from their Scottish neighbors, and that they were eager to use the common law to this end. As early as the mid-fourteenth century, northerners were employing the statute of treason to penalize English felons who repeatedly collaborated with Scotsmen in crime, suggesting that notions of nationality and personal allegiance were already being brought into question. Finally, she notes that northern justices of assize were sometimes forced to preside over cases of Scottish felons and that their nationality, at times, impeded the regular process of justice (C. J. Neville, "The Law of Treason in the English Border Counties in the Later Middle Ages," Law and History Review 9 [1991]: 1-30 and "Border Law in Late Medieval England," Journal of Legal History 9 [1988]: 335-56). Neville's research suggests that the reason Kim does not find any evidence of legal discrimination against foreigners in the medieval period is because he has chosen to ignore medieval England's closest and most visible foreigner.	4
Keechang Kim's perspective makes an important contribution to an understanding of the position of aliens in English law. Undoubtedly, it demands a complete revision of the canonical perspective; Maitland's contention that the Conquest impeded a sense of legal nationality is no longer tenable in light of Kim's research. An indiscriminate adoption of Kim's conclusions, however, might be equally damaging. It is simply not possible to divorce the practice of the law from the theory. Kim's research, then, stands as an important call to historians to revisit the question of aliens in the English courts and to determine whether his analysis of the legal system is born out in legal practice.	5
Sara M. Butler Dalhousie University

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