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CHAPTER FORTY–TWO. - 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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Liceat unicuique de cetero exire de regno nostro, et redire, salvo et secure, per terram et per aquam, salva fide nostra, nisi tempore gwerre per aliquod breve tempus, propter communem utilitatem regni, exceptis imprisonatis et utlagatis secundum legem regni, et gente de terra contra nos gwerrina, et mercatoribus de quibus fiat sicut predictum est.
It shall be lawful in future for any one (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as is above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy—reserving always the allegiance due to us.
The terms of this permission for free intercourse between England and foreign lands are peculiarly wide, the exceptions being reasonable and necessary. Prisoners obviously could not leave our shores, nor outlaws return to them: the case of merchants from hostile states had already been provided for in a liberal spirit; while the temporary restriction of intercourse with the enemy on the outbreak of hostilities was eminently reasonable.
Although the provision is thus general in its scope, it was peculiarly welcome to the clergy, as enabling them without a royal permit to proceed to Rome, there to prosecute their appeals or press their claims for preferment. Thus considered, it contains a virtual repeal of article 4 of the Constitutions of Clarendon of 1166, which forbade archbishops, bishops, and parsons (personæ) of the kingdom to leave England without the King’s licence. The grant of freedom of intercourse in 1215 opened a door for the Church to encroach on the royal prerogative; and for that reason it was omitted from the reissue of 1216, never to be replaced. A boon was thus withdrawn from all classes from fear that it might be abused by the ecclesiastics. Henry III. took advantage of the omission in order to restrain the movements of clergy and laity alike. Those who left the country without licence had frequently to pay fines.1
The stringency with which the prerogative was at first enforced tended afterwards to relax. The King preserved the right, but only exercised it by means of proclamations over particular classes or on special occasions, the inference being that all not actually prohibited were free to come and go as they pleased. Thus, in 1352 Edward III. had it proclaimed throughout every county of England that no earl, baron, knight, man of religion, archer, or labourer, should depart the realm under pain of arrest and imprisonment.1 The fact that Edward found it necessary to issue such an ordinance, autocratic and abhorrent to modern ideals as its terms now appear, points to a decrease of royal power, as compared with that exercised by Henry II., John, or Henry III. A further curtailment of prerogative may be inferred from the terms of a Statute of Richard II.,2 which, in confirming the King’s power to prohibit free egress from England, does so, subject to wide exceptions. Under its provisions the Crown might prohibit the embarkation of all manner of people, as well clerks as others, under pain of forfeiture of all their goods, “except only the lords and other great men of the realm, and true and notable merchants, and the King’s soldiers,” who were apparently in 1381 free to leave without the King’s licence, although earls and barons had been prohibited in 1352. Even if this statute confers on magnates, merchants, and soldiers, freedom to go abroad without royal licence (which is doubtful), the powers of veto reserved to the Crown were still, to modern ideas, excessive. The Act remained in force until 1606, when it was repealed under somewhat peculiar circumstances. After the union of the Crowns, King James, anxious to draw the bond closer, persuaded his first English parliament to abrogate a number of old laws inimical to Scottish interests. It was in this connection that the Act of Richard II. was declared (in words, however, not limited to Scotland) to be “from henceforth utterly repealed.”3 Coke stoutly maintains that this repeal left intact the Crown’s ancient prerogative, not founded upon statute but on the common law, of which power the already–cited Proclamation of Edward III. had been merely an emanation. He seems almost, therefore, to argue that the King in the seventeenth century retained authority which extended precisely over those classes mentioned in the ordinance of 1352.
In any view, this prerogative has never been completely abolished: yet the onus has been shifted. While, under John or Henry III., the subject required, before embarking, to obtain a licence from the Crown, under later Kings he was free to leave until actually prohibited by a royal writ. Coke1 speaks of the form originally used for this purpose, a form so ancient in his day as to be already obsolete, known as Breve de securitate invenienda quod se non divertet ad partes externas sine licentia regis. This was superseded by the simpler writ Ne exeat regno which is still in use.2 The sphere of this writ was restricted and altered: it ceased to be an engine of royal tyranny and was never issued except as part of the process of a litigation pending in the Court of Chancery. Regarded with suspicion by the courts of common law, it was for centuries the special instrument which prevented parties to a suit in equity from withdrawing to foreign lands. Some uncertainty exists as to the proper province of these writs since the Judicature Acts have merged the Court of Chancery in the High Court of Justice.3 The perfect freedom to leave the shores of England and return at pleasure, accorded by John’s Magna Carta, but immediately withdrawn as impracticable for that age, has thus in the course of centuries been fully realized.4
Two phrases, occurring in this chapter, call for comment: (1) Salva fide nostra. This short–lived clause of Magna Carta very properly provided that mere absence from England should absolve no one from allegiance to his King. The old doctrine of nationality was stringent: nemo potest exuere patriam. Everyone born in the land owed allegiance to its King—and this tie continued unbroken until severed by death. A breach of allegiance, which was consequent thus on the mere accident of birth, might expose the offender to the inhuman horrors inflicted upon traitors.
A series of statutes, culminating in the Naturalization Act of 1870, have entirely abrogated this ancient doctrine. A native of Great Britain is now free to become the subject of any foreign state; and the mere fact of his doing so, deliberately and with all necessary formalities, denudes him of his British nationality, severs the tie of allegiance, and frees him from the operation of the law of treason. The words “salva fide nostra” no longer apply.
(2) Propter communem utilitatem regni. The Charter, in placing restriction on the right of free egress in time of war, declared that such restriction was to be imposed for the common good of the kingdom, thereby enunciating what is regarded as a modern doctrine: John was to take action, not for his own selfish ends, but only pro bono publico.
[1 ]E.g. Coke (Third Institute, p. 179) cites from Rot. finium of 6 Henry III. and Rot. Claus. of 7 Henry III. the following case: “Willielmus Marmion clericus projectus est ad regem Franciae sine licentia domini regis, et propterea finem fecit.” The practice had apparently been much the same prior to Magna Carta. E.g. Madox (I. 3) cites from Pipe Roll of 29 Henry II. how “Randulfus filius Walteri reddit compotum de XX marcis, quia exivit de terra Domini Regis.” See also Makower, Const. Hist. of Eng. Church, 239–240 and notes.
[1 ]See Coke, ibid., citing the Close Roll of 25 Edward III.
[2 ]5 Richard II., stat. 1, c. 2.
[3 ]4 James I. c. 1, s. 22.
[1 ]Third Institute, p. 178.
[2 ]Its origin is obscure. See Beames, Brief view of the writ of Ne Excat, passim.
[3 ]See Encyclopaedia of Laws of England, IX. 79.
[4 ]On the whole subject of these writs, see Stephen, Commentaries, II. 439–40 (ed. of 1899), and authorities there cited.