AGAINST THE ANCESTRY STANDARD: THE SPANIARD CASE AND THE MABEL CASE
But residency was not Bodin’s only target. If residency cannot reliably establish legal citizenship, neither can bloodline or ancestry - what we might call the “ancestry standard,” ius sanguinis, a doctrine that Bodin explored when comparing the Cenamy Case with another well known case known simply as the case of the Spaniard, coming out of the sovereign courts in the South of France, in the Parliament of Bordeaux.
Here the facts were structurally similar to the Cenamy Case. A Frenchman took up permanent residence in Spain and had a son by a Spanish wife. But unlike Cenamy, the French emigrant to Spain not only “had always dwelt in Spaine” but “expressly renounced the place of his birth.”[344] In later years, the Spanish-born son of this French emigrant moved back to France in an attempt to occupy property made heritable by the death of his father’s next of kin. In court, this Spanish-born litigant pleaded that he did not need the lettres de naturalite to assert such a civil right reserved only to French regnicole. Indeed his French patrilineal descent made such documentation unnecessary and even improper.According to Bohier’s report, the Parliament of Bordeaux held that despite the combined facts of his Spanish birth and his father’s renunciation of French citizenship, the litigant was nevertheless to be regarded legally a French citizen and was entitled to the civil rights of French subjects, including immunity from the droit d'aubain, to which foreigners in France were ordinarily vulnerable. This, according to the judges of Parliament, was established by the litigant’s voluntary decision to make his perpetual residence in France, and by patrilineal descent. Thus, from the court’s point of view, the litigant did not have to apply for lettres de naturalite since he was already a citizen to begin with.[345] Bodin, however, disagreed with the Parliament’s finding, for the simple fact that consent played no part in the Parlement’s decision: “I am of opinion that [the Spaniard] is a straunger, for the reasons before alleged, and that he ought not to enioy the priveleges of a [French] citizen.”[346]
Bodin’s skepticism of claims of citizenship based on jus sanguinis touched upon another case whose facts were similar to the Spaniard Case.[347] This case involved the civil status of Marie Mabile, an English-born daughter of a French couple, Etienne Mabile and Marie Vilain.
The Mabile family had settled in London, and Marie had even married an Englishman, William Reard, presumably with the intention of remaining in England. It was only in 1560, when the estate of her French maternal grandmother was to be passed on to her heirs that Marie attempted to assert her French nationality in order to sue for what she felt was her rightful claim to a share of the family estate. The family members who remained in France were unwilling to share the inheritance with Marie who, they argued, was not entitled to it since she, being born and raised in England, was English, not French.In reply, Marie pleaded her French ancestry from both parental lines of descent, but she also cited interestingly the doctrine established in the Cenamy Case. Following that case, she argued that, despite holding a residence abroad, neither she nor her parents ever intended to give up their status as French subjects. Nor should mere residence in England count against her since there was never any formal renunciation of French citizenship. To assist her cause, Marie even applied for lettres de naturalite as a “precautionary” measure, even though she felt they were entirely unnecessary in her case, thinking that she always was French.
In deciding this case the Parliament of Paris ultimately entered judgment for Mabel, on two independent grounds. The court found first that, despite her English birth and upbringing, she was a French subject, jure sanguinis, since both of her parents were of French origin, and thus had the right to succeed to her grandmother’s estate. Even if Mabel did not succeed in arguing the point of her parents’ French origin, she still prevailed because it could additionally be argued, following the rule established in the Spaniard Case, that Mabel had obtained lettres de naturalite, ostensibly establishing the litigant’s intention to establish a place of residence in France.
But Bodin predictably found fault with the court’s reasoning in the Mabel Case. If Marie was so sure of her French nationality, then why bother with the expense and trouble of obtaining lettres de naturalite? Bodin suspected Mabel had no plans to leave England (which was regarded as a country hostile to France) or to establish any permanent residence in France. So, he writes:
If a Straunger which hath obtained letters of his naturalizing out of his own country, and yet will not there dwell, he looseth the right he there pretendeth: for that the lawes suffer not a double fiction.[348]
Both the Spaniard and the Mabel Cases, then, were critical for the analysis of jus sanguinis as a basis for citizenship. Just as residence could not be a proxy for establishing citizenship for Bodin, neither could ancestry.
8.