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CHAPTER FORTY–ONE. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Omnes mercatores habeant salvum et securum exire de Anglia, et venire in Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad emendum et vendendum, sine omnibus malis toltis, per antiquas et rectas consuetudines, preterquam in tempore gwerre, et si sint de terra contra nos gwerrina; et si tales inveniantur in terra nostra in principio gwerre, attachientur sine dampno corporum et rerum, donec sciatur a nobis vel capitali justiciario nostro quomodo mercatores terre nostre tractentur, qui tunc invenientur in terra contra nos gwerrina; et si nostri salvi sint ibi, alii salvi sint in terra nostra.
All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. And if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land.
Merchants and merchandise had suffered from John’s greed. The control of commerce was reserved for the King’s personal supervision: no binding rule of law or traditional usage trammelled him in his dealings with foreign merchants, who were dependent on royal favour, not on the law of the land, for the privilege of trading and even for personal safety. No alien could enter England or leave it, nor take up his abode in any town, nor move from place to place, nor buy and sell, without paying heavy tolls to the King. This royal prerogative proved a profitable one.1
John increased the frequency and amount of such exactions, to the detriment alike of foreign traders and their customers. Magna Carta, therefore, sought to restrain this branch of prerogative, forbidding him to exact excessive tolls for removing obstacles of his own creating. This benefited merchants by securing to them certain privileges, which may perhaps be analysed into three: safe–conduct, that is protection of their persons and goods from violence; liberty to buy and sell in time of peace; and a confirmation of the ancient stereotyped rates of “customs.”
So far, the general purport of the enactment is undoubted; but discussions have arisen on several important points, such as the nationality of the traders in whose favour it was conceived; the exact nature of the “evil tolls” abolished; the motives for the rules enforced; and the relations between denizens and foreign traders.
Magna Carta favours alien Merchants.
The better opinion would seem to be that this chapter applied to foreign traders from friendly states. Attempts have been made, indeed, to argue that denizens were to benefit equally with strangers: such was the purport of a learned discourse delivered in the House of Commons by William Hakewill, Barrister of Lincoln’s Inn, in 1610, during the debate on John Bate’s case.1 His main argument was that certain statutes of Edward III.,2 in seeking to confirm and expand the provisions of Magna Carta, did clearly embrace denizens as well as aliens. Yet the framers of an Act in the fourteenth century may well have misunderstood the tenor of John’s Charter, or may have deliberately altered it.
Intrinsic and extrinsic evidences combine to create a strong presumption that here Magna Carta referred chiefly, perhaps exclusively, to merchants of foreign lands.3 Denizens trading in England did not require those “safe conducts” which form the chief concession in this chapter. Their rights of buying and selling were already protected in another way; for independent traders were unknown, all merchants being banded into guilds in the various towns whose privileges (“omnes libertates et liberas consuetudines”) were guaranteed in a previous part of the Great Charter.4 Alien merchants, however, required protection, since they had, strictly speaking, no status in the eye of the law, and held their privileges from the King.1 The policy of Henry II. and his sons was to favour merchant strangers, but to exact in return the highest dues possible, restrained only by an enlightened self–interest which stopped short at the point where trade would languish by becoming unprofitable. The exchequer and patent rolls afford illustrations of how individual traders or families made private bargains with the Crown for trading privileges. In 1181, Henry obtained two falcons for granting leave to export corn to Norway. In 1197, a certain Hugo Oisel owed 400 marks for licence to trade in England and Richard’s other lands, in time of war as well as peace.2
At the commencement of John’s reign, traders resident in England collectively obtained confirmation of their privileges. That King issued letters patent to the Mayor of London, to the magistrates of many smaller towns, and to the sheriffs of the southern counties of England, directing them, in terms closely resembling those of Magna Carta, to allow to all merchants, of whatsoever land, safe coming and going, with their wares.3
These arrangements were temporary. John did not intend that any general grant should prevent him from exacting further payments from individuals as occasion offered. For example, Nicolas the Dane promised a hawk each time he entered England, that he might come and go and trade “free of all customs which pertain to the King.”4 Such customary dues, at the usual rates, were not abolished by the Charter, but only the arbitrary additional payments for which there was no warrant.
On this point, then, Magna Carta contained no innovations, and the same is true of its provision for reprisals against traders from lands where English merchants were ill–treated. On the outbreak of war, the Charter directs that merchants of the enemy’s nation should be detained until the King ascertained how his own subjects were treated in the enemy’s territory. This is declaratory of previous practice, of which an illustration may be found in the terms of a writ of August, 1214, which directed the bailiffs of Southampton to detain all Flemings and their goods pending further instructions.1 There were thus precedents for those rules for foreign traders, which have aroused the admiration of Montesquieu.2
Customs and Tolls.
“Consuetudines” is in this passage used in its narrower, financial sense, relating to those duties on imports and exports still called “customs” at the present day, and to various local dues as well. “Tolls,” when not stigmatized as “evil tolls” would seem to be practically synonymous with these customs. The Crown had at first taken whatever it thought fit. Practice soon established rules as to the normal rates considered fair in various circumstances. When a ship–load of foreign wine arrived, the normal toll was “one cask from a cargo of ten up to twenty casks, and two casks from a cargo of twenty or more.”3 From other merchandise a share was claimed of a fifteenth or sometimes a tenth of the whole. Such tolls, if originally a species of ransom, had in John’s day come to be regarded as a legitimate branch of royal revenue. Any arbitrary increase, however, was condemned by public opinion, and ultimately by Magna Carta as a “mala tolta.”
The King was not the only one who exacted tolls. Every town in England, and many feudal magnates, by prescriptive usage or royal grant, levied payments on goods bought or sold at fairs and markets, or that entered the city gates, or were unloaded at river wharves, or traversed certain roads. The ambition of every borough was to increase its own franchises at the expense of its neighbours. The free customs of Bristol, for example, meant not only that the men of that city should have freedom from tolls inflicted by others, but that they should have the right to inflict tolls upon those others. A whole network of such customs and restrictions impeded the free exchange of commodities in every part of England. Magna Carta had no intention of sweeping these away, so far as they were “just and ancient”; and it is probable that the prohibition against arbitrary increase of tolls was directed only against the Crown.
The Motives prompting these Provisions.
It has been not unusual to credit the framers of Magna Carta with a policy of quite a modern flavour; they are made free–traders and credited with a knowledge of economic principles far in advance of their contemporaries. This is a misconception: Englishmen in the thirteenth century had formulated no far–reaching theories of the rights of the consumer, or the policy of the open door. The home traders were not consenting parties to this chapter, and would have bitterly resented any attempt to place foreigners on an equal footing with the protected guilds of the English boroughs. The barons acted on their own initiative and from purely selfish motives. Rich nobles, lay and ecclesiastic, desired that nothing should prevent the foreign merchants from importing wines and rich apparel that England could not produce. John, indeed, as a consumer of continental luxuries, partially shared their views, but his selfish policy threatened to strangle foreign trade by increasing the burdens attached to it, until it ceased to be remunerative. The barons, therefore, in their own interests, not in those of foreign merchants, still less in those of native traders, demanded that the customs duties should remain at their old fixed rates. In adopting this attitude, they showed their selfish indifference to the equally selfish claims of English traders, who desired a monopoly for themselves. Every favour shown to foreign merchants was an injury done to the guilds of the chartered boroughs. This chapter thus shows a lack of gratitude on the barons’ part for the great service rendered by their allies, the citizens of London. John, on the other hand, would have little reluctance in punishing the men of his capital who, with the ink scarce dry on their new municipal charter, had not scrupled to desert his cause.1 It must have been with grim pleasure that, on 21st July, 1215, in strict conformity with the tenor of Magna Carta, he addressed a writ to King Philip inviting reprisals upon London merchants in France in certain contingencies.2
In the reissue of 1216 the privileges conferred on merchant strangers were confined to such as had not been “publicly prohibited beforehand.” This was a material alteration, the effect of which was to restore to the King full discretionary authority over foreign trade, since he had only to issue a general proclamation, and then to accept fines for granting exemption from its operation.
English Boroughs and Merchant Strangers.
The quarrel between home and alien traders underwent many vicissitudes during succeeding centuries, the Crown taking now one side, and now the other, as its pecuniary interests happened to dictate for the moment. No glimmerings of the doctrine of free trade can be traced: the merchants of each town, banded in their guilds, directed their endeavours towards securing rights of exclusive trading for themselves. It is true that the men of London were scarcely more jealous of the citizens of Rouen or Paris than of those of York or Lincoln; their ambition was to inflict restrictions upon all rivals alike.
English traders were not yet merchant shippers and therefore did not prevent foreigners from undertaking the carrying trade between England and the Continent. Flanders bought English wool and sent back woven fabrics to rival which English looms could not aspire. Londoners, however, resold these goods at a profit and resented any attempt of aliens to encroach on their retail monopoly by coming into touch with English magnates or other consumers. Foreigners must be kept “at the wharf–head.”
The Liber Custumarum, a compilation of the early thirteenth century, lays down minute rules for the regulation of foreign traders in London. The merchant stranger had to take up his abode in the house of a citizen. He was prohibited from purchasing articles in process of manufacture. He could buy only from those who had the freedom of the city, and could not re–sell within the borough walls. He was allowed to sell only to burgesses of London, except on three specified days of the week. Such were a few of the rules which the Londoners enforced on all traders within their gates. The King, however, intermittently encouraged foreigners. Under the fostering protection of Henry III., Lombards and Provençals settled in considerable numbers in the capital; and, with connivance of the King, infringed these rules. When the Londoners complained, Henry refused relief. Their loyalty thus shaken, they sided with the King’s opponents in the Barons’ War, and when the royalist cause triumphed at Evesham, the Capital shared in the punishment meted out to the Crown’s opponents. Prince Edward in 1266 was nominated protector of foreign merchants. At the accession of that Prince, London bought itself back into favour, and an attempt was made to define what tolls might be taken by the Crown. In 1275, in Edward’s first parliament, a tariff was fixed by “the prelates, magnates, and communities at the request of the merchants” on most of what then formed the staple exports of England: half a mark on every sack of wool, half a mark on every three hundred wool–fells (that is untanned skins with the fleeces on), and one mark on every load of leather.
These were subsequently called magna et antiqua custuma. The settlement of 1275 was by no means final. New disputes arose; and in 1285 Edward I. confiscated the liberties of London, suppressed what he characterized as abuses, and favoured the aliens. In 1298 the franchises of the capital were restored, and very soon the abuses complained of began anew. Edward retorted in 1303 by a special ordinance known as the Carta Mercatoria in favour of their foreign rivals, by the terms of which the provisions of the present chapter of Magna Carta became at last a reality. This new charter, which was the result of a bargain struck between the Crown and the alien traders, conferred various privileges and exemptions in return for an increase of fifty per cent. of duty, known henceforth as parva et nova custuma. Edward I. made several attempts to exact the higher rates from denizens as well as strangers; but in this he failed. In 1309 a Petition of Parliament was presented against the exaction of the “new customs,” declaring them to be in contravention of Magna Carta.
In 1311 a temporary community of economic and political interests resulted in an alliance between the English merchants and the English baronage, whose combined efforts forced the “Ordinances” upon Edward II., compelling him for a time to reverse his father’s policy of favouring foreigners at the expense of native merchants. It is unnecessary to follow the checkered fortunes of these Ordinances, frequently enforced and as frequently abolished, according as the fortunes of the barons or of Edward II. were for the moment in the ascendant. During the reign of Edward III. the deep–rooted quarrel between home and alien merchants continued; and many changes of policy were adopted by the Crown. The statute of 1328, which abolished the “staples beyond the sea and on this side,” provided “that all merchant strangers and privy may go and come with their merchandises into England, after the tenor of the Great Charter.”1 Seven years later, this was confirmed by an act which placed strangers and denizens on an exact equality in all branches of trade, both wholesale and retail, under the express declaration that no privileged rights of chartered boroughs should be allowed to interfere with its enforcement.1 While this statute merely repeated and applied the general doctrine of the present chapter of Magna Carta, it directly infringed the provisions of chapter 13.2 Such sweeping regulations were in advance of their age and could not be carried out without revolutionizing the medieval scheme of trade and commerce, which depended on merchant guilds, town charters and local monopolies. The influence of the English boroughs and their political allies was strong enough to make the strict enforcement of such legislation impossible; and later statutes, bowing to the inevitable, restored the privileges of the boroughs, while continuing to enunciate an empty general doctrine of free trade to foreigners.3 The English boroughs, to which Parliament in the reign of Richard II. thus restored their franchises and monopolies, were able effectually to exclude foreign competition, in certain trades at least, from within their walls, for four centuries, until the Statute of 1835 ushered in the modern era of free trade.4
[1 ]So far all authorities are agreed, though a difference of opinion exists as to the source of these prerogatives. Thus (a) Stephen Dowell, History of Taxation and Taxes in England, I. 75, considers that the duties on imports and exports were in their origin of the nature of voluntary dues paid by foreign merchants in return for freedom of trade and royal protection; (b) Hubert Hall, Customs Revenue of England, I. 58–62, justly reckons this prerogative as merely one aspect of purveyance, that is, of the King’s right to take what he needed for himself and household. Under an autocrat, however, facts count for more than theories. The prerogative was measured by brute force: Kings took what they could with no jealous regard for the exact letter of the law, and left future ages to invent theories to justify or explain their conduct.
[1 ]See State Trials, II. 407–475, and especially 455–6.
[2 ]E.g. 2 Edward III. c. 9 and 14 Edward III., stat. 1, c. 21.
[3 ]Two–thirds of the chapter is occupied in explaining that merchant strangers of unfriendly States are not to benefit from it. Mr. Hakewill was aware of this, but sought to evade the natural inference by subtleties which are not convincing.
[4 ]See supra, under c. 13.
[1 ]For the legal position of aliens, see Pollock and Maitland, I. 441–450.
[2 ]See Pipe Rolls, 27 Henry II. and 8 Richard I., cited Madox, I. 467–8.
[3 ]See Rot. Chart., 60 (5th April, 1200).
[4 ]See Pipe Roll, 6 John, cited Madox, I. 469, where other illustrations will be found. Cf. also Rot. Pat., 170, 170b, 171, 172b.
[1 ]In the same writ John bade them allow to depart freely all vessels of the land of the Emperor or of the King of Scotland after taking security that they would sail straight to their own countries, with none but their own crews. See Rot. Claus., I. 211, and cf. series of writs in I. 210.
[2 ]See De l’Esprit des Lois, II. 12 (ed. of 1750, Edinburgh), “La grande chartre des Anglois défend de saisir et de confisquer en cas de guerre les marchandises des négociants étrangers, à moins que ce ne soit par représailles. Il est beau que la nation Angloise ait fait de cela un des articles de sa liberté!”
[3 ]S. Dowell, Hist. of Taxation, I. 83, citing Madox, I. 525–9 (2nd ed. I. 765–770), and Liber Albus, I. 247–8.
[1 ]See supra, 34–35.
[2 ]See New Rymer, I. 135: “Know that we have ordered the mayor and sheriffs of London to allow merchants of your land to remove their goods and chattels from London, without hindrance to doing thence their will; and that if they do not, you may, if it please you, grieve and molest the men of that town (illius villae) in your power, without our reckoning it a breach of truce on your part.”
[1 ]2 Edward III. c. 9.
[1 ]See 9 Edward III. c. 1, and cf. 25 Edward III., stat. 4, c. 7.
[2 ]Cf. supra, pp. 247–8, where the inconsistency between the two parts of the Great Charter is pointed out. See also supra, p. 117.
[3 ]See 2 Richard II., stat. 1, c. 1, and 11 Richard II. c. 7.
[4 ]See 5 and 6 William IV. c. 76, s. 14.