857. Fines for this purpose were frequent under Henry II. and his sons. Madox, I. 447, cites many examples. Thus in 1166 Ralph Fitz Simon paid two marks “for speeding his right” (pro recto suo festinando). The practice continued under Henry III. in spite of Magna Carta. Bracton’s Note Book cites a hard case (No. 743): Henry III. was claiming prerogative wardship where it was illegal under c. 37 of Magna Carta (q. v.). The court might have delayed hearing the mesne lord’s plea until the wardship was ended; but he paid five marks pro festinando judicio suo. The fine was said to be given “willingly” (sponte). Did the use of this word make possible an evasion of c. 40 of the Charter?
858. Pollock and Maitland, I. 174. Cf. Ibid., II. 204, and authorities cited.
859. Madox, I. 455, says: “And this clause in the great Charters seems to have had its effect. For ... the fines which were paid for writs and process of law were more moderate after the making of those great Charters than they used to be before.”
860. Instances are collected by Sir T. D. Hardy in Rot. de oblatis, p. xxi. See also Stubbs, Const. Hist., II. 636-7.
861. Rot. Parl., III. 116, cited Stubbs, Const. Hist., II. 637.
862. Second Institute, 56.
CHAPTER FORTY-ONE.
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, like all other classes and interests, had suffered severely from John’s greed, unrestrained by regard for the rights of others. The control of commerce was specially reserved for the king’s personal supervision. No 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 merchant 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.[863]
John increased the number and amount of such exactions, to the detriment alike of foreign traders and of 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 the merchants by securing to them certain rights, 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 and just rates of “customs,” with the abolition of John’s “evil tolls” or additional exactions.
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.
I. Magna Carta favours alien Merchants. The better opinion would seem to be that this chapter applied primarily to foreign traders from friendly states. Attempts have been made, indeed, to argue otherwise, namely, that denizens were to benefit equally with strangers, Magna Carta holding the balance even between them. 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.[864] His main argument was that certain statutes of the reign of Edward III.,[865] 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 Magna Carta referred chiefly, perhaps exclusively, to merchants of foreign lands.[866] Denizens trading in England did not require those “safe conducts” which form the chief concession in this chapter; and 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 to them in a previous part of the great Charter.[867] It was the alien merchants who required special protection, since they had, strictly speaking, no status in the eye of the law, and held their privileges from the king, who, moving along the line of least resistance, frequently preferred to overtax them rather than his own subjects.[868] The Crown might vouchsafe the protection they needed either willingly or grudgingly, and under conditions to be altered at discretion, but never unless well paid for. 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 Rolls and the Patent Rolls afford many 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 in Richard’s other lands in time of war as well as of peace.[869]
At the commencement of John’s reign, traders resident in England seem collectively to have 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.[870]
These arrangements were merely temporary. John did not intend that any such 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.”[871] 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 merely declaratory of the 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.[872] There were thus precedents for those rules for foreign traders, which have aroused the admiration of Montesquieu.[873]
II. Customs and Tolls. “Consuetudines” is in this passage used in its narrower financial sense, relating to those duties on imports and exports which are still specially 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 from the defencelessness of merchants, whatever, on each occasion, 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.”[874] From other merchandise a share was claimed of a fifteenth or sometimes a tenth of the whole. Such tolls, if originally a species of blackmail, 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.”
It must be remembered, however, that the king was not the only one who exacted tolls. Every town in England, and many feudal magnates, by prescriptive usage or by royal grant, levied payments on all goods bought or sold at various 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.
III. The Motives prompting these Provisions. It has been not unusual to credit the framers of Magna Carta with a liberal 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 an entire misconception: Englishmen in the beginning of the thirteenth century had formulated no far-reaching theories of the rights of the consumer, or the advantages of 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, in inserting this stipulation among the promises wrung from John, acted on their own initiative and from purely selfish motives. The rich nobles, both lay and ecclesiastic, desired that nothing should prevent the foreign rivals of the insular burghers from importing the wines and rich apparel which England could not produce. John, indeed, as a consumer of continental luxuries, partially shared their views, but his short-sighted policy threatened to strangle foreign trade by gradually increasing the burdens attached to it, until it ceased to be remunerative. The barons, therefore, in their own interests, not in those of the foreign merchants, still less in those of native traders, demanded that the custom 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, jealous of foreigners alike in their home markets and in the carrying trade, 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 to their cause 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.[875] 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.[876]
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.
IV. English Boroughs and Merchant Strangers. The quarrel between home and alien traders underwent many vicissitudes during several 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 privileges of the citizens of Rouen or of Paris than of those of York or of Lincoln; their ambition was to inflict restrictions upon all rivals alike. 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 some citizen. He was strictly prohibited from engaging in retail trade and 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 the goods 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 the 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 in England, whose cause was temporarily triumphant. At the accession of that Prince, London bought itself back into royal favour for the time being. At the same period an attempt was made to define what tolls or customs 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, to distinguish them from an additional fifty per cent., levied from foreign merchants at a later date and known as parva et nova 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 the increased rates of duty now imposed and known henceforth as parva et nova custuma. Edward I. made several attempts to exact the higher rates from denizens as well as from 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.”[877] Seven years later this was confirmed by an act which in considerable detail 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.[878] 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.[879] Such sweeping regulations were in advance of their age and could not be carried out without revolutionising the entire 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.[880] 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.[881]
863. 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, considers the prerogative as merely one aspect of purveyance, that is of the right of the king to requisition what he required for his own needs and those of his household. Many such “theories” are anachronisms. The prerogative was founded on fact—on the brute force at the Crown’s disposal. Kings took what they could, and left future ages to invent theories to justify or explain their actions.
864. See State Trials, II. 407-475, and especially 455-6.
865. E.g. 2 Edward III. c. 9 and 14 Edward III., stat. 1, c. 21.
866. 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.
867. See supra, under c. 13.
868. For the legal position of aliens, see Pollock and Maitland, I. 441-450.
869. See Pipe Rolls, 27 Henry II. and 8 Richard I., cited Madox, I. 467-8.
870. See Rot. Chart., 60 (5th April, 1200).
871. See Pipe Roll, 6 John, cited Madox, I. 469, where other illustrations will be found. Cf. also Rot. Pat., 170. 170b, 171, 172b.
872. 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 and take with them none but their own crews. See Rot. Claus., I. 211, and cf. series of writs in I. 210.
873. 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 merchandises 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!”
874. S. Dowell, Hist. of Taxation, I. 83, citing Madox, I. 525-9 [2nd ed. I. 765-770], and Liber Albus, I. 247-8.
875. See supra, 41–2.
876. 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.”
877. 2 Edward III. c. 9.
878. See 9 Edward III. c. 1 and cf. 25 Edward III., stat. 4, c. 7.
879. Cf. supra, pp. 290-1, where the inconsistency between the two parts of the Great Charter is pointed out.
880. See 2 Richard II., stat. 1, c. 1 and 11 Richard II. c. 7.
881. See 5 and 6 William IV. c. 76, s. 14.
CHAPTER FORTY-TWO.
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 quite general in its scope, embracing all classes and ranks of men, 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 that kingdom without the king’s licence. The grant of freedom of intercourse in 1215 thus 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 the royal licence had frequently to pay fines.[882]
The stringency with which this prerogative was at first enforced tended, however gradually, to become more lax. The king still 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.[883] 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., which, in confirming the king’s power to prohibit free egress from England, does so, subject to very wide exceptions. Under its provisions the Crown had the right to prohibit the embarkation of all manner of people, as well clerks as others, from every port and other place upon the sea-coast 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.[884] 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. It remained in force, however, 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.”[885] 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 almost seems, therefore, to argue that the Crown in the seventeenth century retained authority which extended precisely over those classes mentioned in the ordinance of 1352.
In any view, the prerogative of interfering with the subject’s freedom to depart from England has never been completely taken from the Crown. Yet, in the course of centuries a great change has been gradually effected: the onus has been shifted from the individual who wished to leave the kingdom, on to the king who wished to detain him. 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 special royal writ. Coke[886] 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.[887] 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 always with suspicion by the courts of common law as a creature of prerogative, 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 at the present day, since the Judicature Acts have merged the Court of Chancery in the High Court of Justice.[888]
The use of such writs in this restricted sphere could not be reckoned an oppressive interference with the liberty of the subject. 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 in the course of centuries been fully realized.[889]
Two phrases, occurring in this chapter, call for comment, although for different reasons:—one as embodying an ancient legal doctrine, now obsolete, the other as anticipating a characteristically modern point of view. (1) Salva fide nostra. This short-lived clause of Magna Carta, in granting freedom to leave the country, very properly provided that mere absence from England should absolve no one from allegiance to his king. The old doctrine of nationality was indeed a very stringent one. The rule which prevailed was Nemo potest exuere patriam. Everyone born in the land owed allegiance to its king—and this tie continued unbroken until severed by the death of subject or sovereign; it could be broken in no other way. According to this maxim, a man born a subject of the king of England must remain his subject wherever he wandered. A breach of the duties of allegiance, which were 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 Naturalisation Act of 1870, have entirely abrogated this ancient doctrine, and substituted one of perfect liberty. Any 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 legal 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 a restriction on the right of free egress, during the actual continuance of hostilities, declared that such restriction was to be imposed for the common good of the kingdom, thereby enunciating what is generally regarded as a very modern doctrine: John was to take action, not for his own selfish ends but only pro bono publico.
882. 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 profectus 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.”
883. See Coke, Ibid., citing the Close Roll of 25 Edward III.
884. 5 Richard II., stat. 1, c. 2.
885. 4 James I. c. 1, s. 22.
886. Third Institute, p. 178.
887. Its origin is obscure. See Beames, Brief view of the writ of Ne Exeat, passim.
888. See Encyclopaedia of Laws of England, IX. 79.
889. On the whole subject of these writs, see Stephen, Commentaries, II. 439-40 (ed. of 1899), and authorities there cited.
CHAPTER FORTY-THREE.
Si quis tenuerit de aliqua eskaeta, sicut de honore Wallingfordie, Notingeham, Bolonie, Lancastrie vel de aliis eskaetis, que sunt in manu nostra, et sunt baronie, et obierit, heres ejus non det aliud relevium, nec faciat nobis aliud servicium quam faceret baroni si baronia illa esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam tenuit.
If one who holds of some escheat (such as the honour of Wallingford, of Nottingham, of Boulogne, of Lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron, if that barony had been in the baron’s hand; and we shall hold it in the same manner in which the baron held it.
This chapter reaffirms a distinction which had been recognized by Henry II. but ignored by John. Crown tenants were divided into two classes, according as their holdings had been originally granted by the Crown, or by some mesne lord whose barony had subsequently escheated. The latter class received preferential treatment from Henry II. for reasons to be immediately explained. The older law of escheats was too vague to prove an effective restraint on royal prerogative; the king, when a fief had escheated to the Crown, might reckon grants made by its former owner as void, refusing to acknowledge as binding upon him the titles of the sub-tenants, treating all sub-tenancies as wiped out by the mere fact that their lord’s fief had escheated to the Crown. A mesne lord, on the contrary, had no similar rights over the sub-tenants of his tenant who had suffered escheat.
The king usually mitigated in practice the full severity of this theory, confirming as of grace, or from motives of policy, or in return for money, claims which he refused to admit as matter of right. The tenants of escheated baronies were accepted as tenants in capite of the Crown.[890] Not only so; but Henry II. did not allow them to be prejudicially affected by the change. The king would only take from them those services and feudal dues which they had been wont to render to the lord of the barony previous to its escheat. This just and lenient policy explains the origin of the division of royal tenants into two classes; tenants who held of Henry ut de corona, and tenants who held of him ut de escaeta, ut de honore, or ut de baronia (phrases used synonymously).[891] In respect of such obligations as were heavier for ordinary Crown tenants than for tenants of mesne lords, holders of Crown fiefs ut de escaeta were placed on the more favoured footing. Two illustrations may be given. While tenants ut de corona under Henry II. had to pay large and arbitrary reliefs, those ut de escaeta paid no more than 100s. per knight’s fee.[892] Nor was their obligation of “suit” (or attendance at the feudal court of the lord of the fief) to be increased. “The tenants of any honour or manor which had come by escheat to the Crown, were not suitors of the Curia Regis, but of the court of the honour or manor which had so escheated.”[893]
John ignored this distinction, extending to tenants ut de escaeta the more stringent rules applicable to tenants ut de corona. Magna Carta reaffirmed the distinction; and, not content with enunciating a general principle, made two particular applications of it: neither reliefs nor services of former tenants of baronies were to be augmented by reason of the fact that such baronies had escheated to the Crown.[894] Henry III.’s Charter of 1217 emphasized a third application of the general rule, declaring that he would not, by reason of an escheated barony, claim escheat or custody over the sub-tenants of that barony.[895] To understand this concession, it must be remembered that under Henry III., as under Henry II., sub-tenants of baronies were still liable to have their titles reduced through the reduction by escheat of the title of their lord; while sub-tenants of those who were themselves sub-tenants were not exposed to a similar mischance by the escheat of their immediate lord. Here also the position of Crown fiefs ut de escaeta was to be assimilated to that of fiefs of mesne lords, and differentiated from that of Crown fiefs ut de corona. Sub-tenancies of escheated baronies were not to be wiped out, but to subsist, and the Crown (or its grantee) would take the escheat subject to all liabilities to, and rights of, sub-tenants.
The Crown seems not to have strictly observed this rule in practice. Article 12 of the Petition of the Barons in 1258[896] complained that Henry had granted charters conferring rights which were not his to give (aliena jura), but which he had claimed as escheats. An act of the first year of Edward III. narrated how the Crown had confiscated from purchasers tenements held of the Crown “as of honours,” thus treating them “as though they had been holden in chief of the king, as of the Crown.” Redress was promised by the statute:[897] but irregularities continued throughout the earlier Tudor reigns; and the first Parliament of Edward VI. passed an act to protect purchasers of lands appertaining to honours escheated to the Crown.[898]