See _Pipe Roll_, 6 John, cited Madox, I. 469, where other
illustrations will be found. Cf. also _Rot. Pat._, 170. 170_b_, 171,
172_b_.
-----
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]
-----
Footnote 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.
Footnote 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!_”
-----
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_.”
-----
Footnote 874:
S. Dowell, _Hist. of Taxation_, I. 83, citing Madox, I. 525-9 [2nd ed.
I. 765-770], and _Liber Albus_, I. 247-8.
-----
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]
-----
Footnote 875:
See _supra_, 41–2.
Footnote 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.”
-----
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]
-----
Footnote 877:
2 Edward III. c. 9.
Footnote 878:
See 9 Edward III. c. 1 and cf. 25 Edward III., stat. 4, c. 7.
Footnote 879:
Cf. _supra_, pp. 290-1, where the inconsistency between the two parts
of the Great Charter is pointed out.
Footnote 880:
See 2 Richard II., stat. 1, c. 1 and 11 Richard II. c. 7.
Footnote 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]
-----
Footnote 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_.”
-----
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.
-----
Footnote 883:
See Coke, _Ibid._, citing the Close Roll of 25 Edward III.
Footnote 884:
5 Richard II., stat. 1, c. 2.
Footnote 885:
4 James I. c. 1, s. 22.
-----
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]
-----
Footnote 886:
_Third Institute_, p. 178.
Footnote 887:
Its origin is obscure. See Beames, _Brief view of the writ of Ne
Exeat_, _passim_.
Footnote 888:
See _Encyclopaedia of Laws of England_, IX. 79.
-----
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]
-----
Footnote 889:
On the whole subject of these writs, see Stephen, _Commentaries_, II.
439-40 (ed. of 1899), and authorities there cited.
-----
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_.
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]
-----
Footnote 890:
Royal clemency in this respect could not be relied on by the
sub-tenants of _small_ escheated fiefs (not reckoned as honours or
baronies). This seems to be the opinion of Madox, _Baronia Anglica_,
199: “If a fee holden of the Crown _in capite_ escheated to the king
and was not an Honour or Barony, then such fee did not (that is to
say, I think it did not) vest in the Crown in the same plight in which
it was vested in the said tenant _in capite_.” Cf. also _Ibid._, 203.
Footnote 891:
See Madox, _Baronia Anglica_, 169–171; also Pollock and Maitland, I.
261, and authorities there cited.
Footnote 892:
See _Dialogus_, II. x. F, and _Ibid._, II. xxiv. The same rule applied
to sub-tenants of baronies in wardship (which was analogous to
temporary escheat). For example, when the see of Lincoln was vacant,
and therefore in ward to the Crown in 1168, the heirs of sub-tenants
paid to Henry only what they would have paid to the bishop; one giving
£30 for six fees, and another 30 marks for four. See _Pipe Roll_, 14
Henry II., and cf. _supra_, c. 2. In the matter of scutage, also, a
distinction was recognized: while tenants _ut de corona_ might be
compelled to serve in person without an option, crown tenants _ut de
honore_ (and a _fortiore_ sub-tenants also) might claim exemption on
tendering scutage. See case of Thomas of Inglethorpe in 12 Edward II.,
cited by Madox, _Baronia Anglica_, 169–171.
Footnote 893:
_Report on the Dignity of a Peer_, I. 60.
-----
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.
-----
Footnote 894:
The need for this special reference to relief is not, at first sight,
obvious, since c. 2 of Magna Carta, by forbidding John to exact from
Crown tenants of either class the arbitrary sums taken by his father,
would seem to have already secured them from abuse. Probably, however,
c. 43 sought to prevent John from treating each of the former tenants
of the escheated barony as holder of a new barony of his own, and
therefore liable to a baron’s relief of £100 instead of the £25 he
ought to pay for his five fees, or £50 for his ten fees, or as the
case might be. The case of William Pantol (see _Pipe Roll_, 9 Henry
III., cited Madox, I. 318) seems to illustrate this. He was debited
with £100 of relief for his father’s land, but protested that he held
nothing of the Crown save five knights’ fees of the land which was of
Robert of Belesme. This plea was upheld, and £75 of the amount debited
was written off.
Footnote 895:
See c. 38 of 1217, and cf. the gloss given by Bracton (II. folio 87,
b.) which makes the meaning somewhat less obscure. The Charter of 1217
contained a saving Clause: “unless the holder of the escheated barony
held directly of us elsewhere.” Bracton added a second proviso,
namely, unless the said sub-tenants (now Crown tenants _ut de
escaeta_) had been enfeoffed by the king himself.
-----
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]
-----
Footnote 896:
See _Sel. Charters_, 384.
Footnote 897:
See 1 Edward III., _stat._ 2, c. 13, _Statutes of Realm_, I. 256.
Footnote 898:
See 1 Edward VI. c. 4, _Statutes of Realm_, III. 9.
-----
CHAPTER FORTY-FOUR.
Homines qui manent extra forestam non veniant de cetero coram
justiciariis nostris de foresta per communes summoniciones, nisi sint in
placito, vel plegii alicujus vel aliquorum, qui attachiati sint pro
foresta.
Men who dwell without the forest need not henceforth come before our
justiciars of the forest upon a general summons, except those who are
impleaded, or who have become sureties for any person or persons
attached for forest offences.
These provisions were intended to redress one of the many abuses
connected with the administration of the oppressive forest laws.
I. _The Royal Forests._ For at least a century before John’s reign the
word “forest” had acquired an exact technical meaning, and was applied
to certain wide districts scattered irregularly throughout England,
reserved to the Crown for purposes of sport. Here the wild boar and deer
of various species found shelter, in which they were protected by the
severe regulations of the “Forest Law.” It was the prevalence of this
code which absolutely marked off the districts known as royal forests
from all that lay _extra forestam_; and this made an accurate definition
possible. A “forest” was a district where this oppressive law prevailed
to the absolute exclusion of the common law which ruled outside. The
forests with their inhabitants had been deliberately omitted from the
unifying process, by which the rest of England had been assimilated
under a uniform _lex terrae_. They remained in great measure at the
discretion of the Crown. This exclusion of the common law from the
confines of the forests was the root from which many evils grew. In no
other sphere was the prerogative so unfettered as within the charmed
circles which marked off these royal preserves from more fortunate parts
of the kingdom.
From this definition of a forest as a _legal_, not a _physical_, entity,
it follows that the word is far from synonymous with terms such as
“wood” or “covert,” implying merely natural characteristics. A forest
was not necessarily covered with trees throughout the whole or even the
greater part of its extent. Miles of moorland and heath and undulating
downs might be included, and even fertile valleys, with ploughed fields
and villages nestling among them. The same forest, indeed, might contain
many woods, some of them on royal demesne and some the property of
private owners. In certain places the king’s proprietary rights might be
co-extensive with his forestal rights; but, more frequently, large
tracts of the _solum_ (whether wooded or bare) were owned by
freeholders, whose rights of property tended to become merely nominal,
when overridden by the king’s rights of the chase. Men might live, and
did live, within the boundaries, but they could enjoy no rights of
personal freedom or of property inconsistent with the rules laid down by
the Crown to protect its own interests. Within the imaginary line the
king’s power was supreme, and he used it frankly for the preservation of
beasts of the chase, not for the good government of the men who happened
to dwell there. These unhappy beings were absolutely subject to the
harsh forest code, a law, in the expressive words of Dr. Stubbs, “cruel
to man and beast.” If accused of forest offences, they had no protection
from the common law of England any more than from the law of a foreign
land. It was something, however, that even in these high places of royal
prerogative, customary rules grew up, obtained authoritative
recognition, and gradually hardened into laws which set some limits,
however inadequate, to royal caprice. Before John’s time the forest
code, as set forth in the Assize of Woodstock, and exemplified by the
practice of forest officials, had taken its place as a definite system
of law distinct from common law and canon law alike.[899]
-----
Footnote 899:
A convenient short account of the forests, with their special laws,
special officials, and special courts, will be found in W. S.
Houldsworth’s _History of English Law_, pp. 340-352. For fuller
information see _Dialogus de Scaccario_, I. xii.; John Manwood, _Book
of the Forests_ (1598); Coke, _Fourth Institute_, 289–317; G. J.
Turner, Preface to _Select Pleas of the Forest_ (1901); and an article
in the _Edinburgh Review_ for April, 1902.
-----
II. _Origin of the Forests._ Before the Norman Conquest the kings of
England do not seem to have laid claim to any exclusive prerogative in
this respect. The only ordinance of Cnut on the subject admitted to be
authentic enacted merely that every man should have his own hunting,
while the king should have his.[900] The rights of the Crown, however,
were strengthened and consolidated by the events of 1066, and by the
hardening of feudal theory which followed. All unoccupied waste lands
became royal property; and these were the natural resorts of the larger
sorts of game. The king established a claim to a preferential, and, at
last, to an exclusive, right to hunt the more important species of
animals _ferae naturae_, known as "beasts of the forest"—embracing the
red deer (harts and hinds), the fallow deer (bucks and does), the roe
deer of both sexes, and the wild boar, with, exceptionally in one
forest, the ordinary hare.[901] The Conqueror and his sons set great
store on their hunting, and warned all intruders off the wide tracts of
land claimed as royal preserves. Henry I. formulated the doctrine of the
forest law, and it was probably due to him that “forest” acquired its
highly technical meaning. With the special meaning came the express
claim to a monopoly of hunting, together with supreme and exclusive
jurisdiction. The disorders of Stephen’s reign lowered the Crown’s
authority in this respect as in so much else, and Henry II. found the
forests much curtailed. He had no intention to acquiesce in this, but it
was not till 1184 that he attempted, by the Assize of Woodstock, to
formulate the rules of the forest law. In this sphere, as in so many
others, the process of organization was completed by Henry II. building
on the foundations laid by his grandfather; and the whole structure was
bequeathed in a state of high efficiency to his sons. John’s attitude to
the forest laws was not entirely consistent. The monk of Barnwall, whose
work is incorporated by Walter of Coventry in his own, relates to John’s
credit how, in the year 1212, he attempted, among other reforms meant to
propitiate the people, some relaxations in the severity of the forest
code.[902] Such clemency was exceptional. More characteristic of his
normal attitude was the order issued on 28th June, 1209, that hedges
should be burned and ditches levelled, so that while men starved, the
beasts might fatten upon the crops and fruits.[903]
-----
Footnote 900:
_Select Charters_, 156.
Footnote 901:
_Select Pleas of the Forest_, xiii.
Footnote 902:
See W. Coventry, II. 207, and Stubbs’ Preface, lxxxvii. By a writ of
18 May, 1204 (_New Rymer_, I. 89), he disafforested all Devonshire
except Dartmouth and Exmoor.
Footnote 903:
R. Wendover, III. 227. This, however, is clearly a biased account of
the king’s resumption of forest tracts illegally put under cultivation
by way of purpresture.
-----
III. _Forest Officials._ The local magistrates who administered the rest
of England were excluded from the confines of the forests by a separate
set of officials. At the head of this special organization was placed,
in early times, the Forest Justiciar (called the chief forester in
chapter 16 of the _Carta de Foresta_), whose duties were divided in the
year 1238, after which there were two provinces separated by the river
Trent.[904] His appointment was permanent, and his duties, which
continued between the eyres, were administrative rather than judicial.
He had discretionary authority to release trespassers imprisoned for
offences against the forest laws.[905] Under his general supervision
each forest, or group of forests, was governed by a separate _warden_,
aided by a number of petty officials known as _foresters_, whose duties
were analogous to those of a modern gamekeeper, but with magisterial
powers in addition. Wardens were of two classes—"the one appointed by
letters patent under the great seal, holding office during the king’s
pleasure; the other hereditary wardens."[906] For the king’s use there
was situated in or near each forest of any extent a royal residence
which, in the Middle Ages, naturally took the form of a stronghold. It
was convenient that the office of warden should be combined with that of
constable of this neighbouring castle.[907] “The wardens were the
executive officers of the king in his forests. Writs relating to the
administration of forest business, as well as to the delivery of
presents of venison and wood, were in general addressed to them.”[908]
-----
Footnote 904:
See _Select Pleas of the Forest_, xiv. The permanent routine work
performed by this functionary must not be confused with the
intermittent duties of the Justices of Forest Eyres: although he was
almost invariably a member of the commission who went on circuit:
_e.g._ chapter 16 of the Forest Charter speaks of the Chief Forester
holding pleas of the forest.
Footnote 905:
_Select Pleas_, xv.
Footnote 906:
Mr. Turner, in _Select Pleas_, xvii.
Footnote 907:
Engelard de Cygony, for example, whose name appears in chapter 50,
occupied this double position. Chapter 16 of _Carta de Foresta_
forbids _castellans_ to determine pleas of the forests, thus
strengthening the presumption that wardens were usually constables.
Footnote 908:
_Select Pleas_, xix.
-----
The office was one of authority and of profit, usually paid in kind
rather than by a salary. The warden often held a fief by a tenure
connected with the service, and enjoyed rights and perquisites always of
a valuable nature, though varying with each forest. These were
sufficient to provide him with an income adequate to his position, and
to allow him to find the wages of his under-keepers, who ought thus to
have been paid officials. Such was the theory; as matter of fact, the
foresters, instead of receiving wages, gladly paid large sums to the
warden, and recouped themselves, with an ample profit, by extortions
from the humble dwellers in their bailiwicks.[909] These unpaid
foresters were expressively said “to live upon the country.” They formed
a powerful official class, whose excessive numbers were a source of
constant complaint. They may be classified in various ways, as, into
riding and walking foresters (of whom there were one and four
respectively in the normal case), or into foresters nominated by the
wardens, and foresters in fee. These last had vested interests which the
Forest Charter was careful to respect; as, where chapter 14 reserved to
them the right to take “chiminage,” or way-leave, denied to other types
of foresters; they might still enjoy, but not abuse, the “vested rights”
reserved to them.[910]
-----
Footnote 909:
_Ibid._, xxi.
Footnote 910:
The same chapter, however, fixed the rates of “chiminage.”
-----
With these professional gamekeepers there co-operated, in later times at
least, several groups of unpaid magistrates appointed from the knights
and freeholders of the district. Of these honorary officials, whose
original function was to supply supplementary machinery for protecting
the rights of the Crown, but whose position as county gentlemen with a
stake in the district led them also to act to some extent as arbitrators
between the king and outside parties, there were three recognized kinds.
(_a_) Towards the close of the twelfth century officers known as
_verderers_ (usually four for each forest) become prominent. They appear
in the _Carta de Foresta_ of 1217, but had not been mentioned in the
Assize of Woodstock of 1184. It is probable that the office was devised
in the interval as a check on the warden’s power, as the office of
coroner had been instituted in the reign of Richard I. as a drag on the
sheriff. In other important respects the duties of the verderers within
the forests resembled those of coroners within the rest of the county.
They were not royal employees, whose whole time was absorbed by the
duties of office and remunerated by fixed salaries or by perquisites,
but rather local landowners whose magisterial services were unpaid, and
were presumably required only on special occasions. They were
responsible directly to the king, and not to the warden; and were
appointed in the county court, their “election” taking place in
accordance with the terms of the writ “_de viredario eligendo_.” They
attended the forest courts and swanimotes, and it appears from chapter
16 of Henry’s forest charter that it was their duty to bring before the
Justices in Eyre lists of all offenders indicted in the lower courts.
These “rolls of attachment” were certified by their seals.[911] (_b_)
The _Regarders_ were twelve knights appointed in each forest county to
make tours of inspection every third year, finding answers to a series
of questions known as the “Chapters of the Regard.” In this way they
reviewed the Crown’s interests alike in “the venison and the vert” (the
technical names for game and growing timber respectively), and reported
upon all encroachments: upon hawks and falcons, bows and arrows,
greyhounds and mastiffs (with special reference to “expeditation” or
cutting of their claws),[912] and generally upon everything owned by
private individuals likely to harm the beasts of the forest.[913] (_c_)
The _Agistors_ are mentioned in the same clause of the Assize of
Woodstock which mentions the Regarders. Four knights were appointed,
apparently by the warden of each forest, whose duty it was to protect
the king’s interests in all matters connected with the pasturing of
swine or cattle within the royal woods. For thirty days at Michaelmas
pigs were turned loose with liberty to feed on the acorns and beech mast
on payment by their owners of a small fixed sum per head. The four
knights were required to take note of sums thus due, known as “pannage,”
and to collect them at Martinmas.[914]
-----
Footnote 911:
For the earliest notice of verderers see _Select Pleas of the Forest_,
xix., n. Their appointment in the county court may indicate that they
acted in some measure as a check on the professional foresters in the
interests of the people generally, as well as a check on the warden in
the interests of the king. Within the forest the warden, with the
verderers and foresters, offered an exact parallel to the sheriff with
the coroners and bailiffs (or serjeants) in other parts of a county.
Footnote 912:
See _Carta de Foresta_, c. 6.
Footnote 913:
After 1217, if not before, it was one of their duties to fix the
number of foresters required, so that the inhabitants need not groan
under a heavier burden than necessary.
Footnote 914:
In one document they were styled _agistatores precii_ (_Select Pleas_,
p. 1.), which suggests that fixing the rate was their chief duty.
“Agist” was a general term; it was apparently correct to speak of
"agisting a wood”, of “agisting cattle,” and of “agisting the money
due.”
-----
Mention ought, perhaps, to be made of the private foresters also, whom
owners of woods within the forests were obliged to appoint. These “wood
wards,” as they were sometimes called, while paid for by the owner of
the wood, were expected to protect the king’s interests. In particular,
they must prevent trees under their care from being destroyed or wasted:
the king was an interested party in these, since they formed shelter for
his game.
IV. _Forest Courts._ The judicial side of the forest system was
developed in a manner equally elaborate. Three sets of tribunals must be
distinguished: (1) _The Court of Attachments_ (or “view of attachments”)
was a petty tribunal, the chief duty of which was confined to taking
evidence to be laid in due course before a higher court. Exceptionally,
however, it had power to inflict fines for small trespasses against the
"vert"—namely, for acts of waste not exceeding the value of fourpence.
It met once in every forty days,[915] which seems in practice to have
been interpreted as once every six weeks, the meetings being always held
on the same day of the week.[916] (2) _Courts of Inquisitions._ When a
serious trespass against the forest laws was discovered, a special court
was, in early days, summoned immediately to make investigations. The
foresters and verderers conducted the inquiry, but it was their right
and their duty to assemble the men of the neighbouring townships to help
them. In strictness, apparently, all the inhabitants might be compelled
to attend. In practice, it was sufficient if four men and the reeve
represented each of the four adjoining villages. Whenever a “beast” was
found dead in the forest twenty men had thus to assemble, to the neglect
of their own affairs; and they would be made to suffer if they failed to
discover the culprit. In one district at least (Somerton) the definition
of beasts of the chase extended to the ordinary hare; and we read[917]
how four townships sat in solemn judgment, and found “that the said hare
died of murrain, and that they know of nothing else except
misadventure,” and how, this verdict not giving satisfaction, the
townships were fined on the pretext that they were not fully
represented. The real offence was their failure to disclose the culprit,
which was held to imply a desire to shield him. Some alleviation of the
burden of attendance was effected when, at some date posterior to 1215,
_special inquisitions_ were superseded by one _general inquisition_,
held at regular intervals (usually every six weeks), to cover all
trespasses committed during the interval. These courts of inquiry
(whether special or general) only “kept” pleas without “trying”
them—that is to say, they received and recorded accusations, while the
judgments were reserved for the justices. (3) _The courts of the forest
justices in eyre._ As the smaller courts, in the normal case, received
verdicts and reports, without punishing the offences reported, it is
evident that the whole system ultimately depended on the justices. Their
eyres, however, were held at wide intervals—apparently once every seven
years during the reign of Henry III. A very full attendance of forest
officials and of the public was summoned to meet them. The evidence
stored up as a result of the work of the smaller courts, supplemented by
the Rolls of the Regard, was laid before the justices, who summarily
judged “pleas of the vert,” inflicting small amercements, and “pleas of
the venison,” punishing by imprisonment those previously found guilty,
until they ransomed themselves by heavy fines. These eyres came to be
known as “Courts of Justice Seat,” but not until long after the reign of
John. No juries were present, nor were they required; the justices
punished offenders who had already been convicted by juries at a lower
court.
-----
Footnote 915:
_Carta de Foresta_, c. 8.
Footnote 916:
_Select Pleas of the Forest_, xxx.
Footnote 917:
_Select Pleas of the Forest_, p. 42.
-----
These three classes of tribunals exercised functions analogous to those
of a modern court of law. In addition, there should be mentioned two
other kinds of assemblies which performed duties administrative rather
than judicial, as these terms are now understood. (4) The _regard_, held
once every three years—not by Crown officials, but by what was
practically a jury of local knights—has already been referred to. These
tours of inspection, sometime known as _visitationes nemorum_,[918] and
sometimes even as “views of expeditation,” were of great practical
importance. The resulting report was placed before the justices of eyre
as evidence of forest trespasses. (5) Three times every year, meetings,
known from an early date as “_Swanimotes_,” were held to regulate the
pasturing of swine and cattle within the royal woods. A fortnight before
Michaelmas the agistors met the foresters and verderers to provide for
the agisting of the king’s woods, a process which lasted for thirty
days—fifteen before and fifteen after Michaelmas. At Martinmas the
agistors collected the pannage in presence of the same officials. A
third meeting of officials was held in June to make arrangements for
excluding cattle of all kinds from the king’s woods during the period
when the deer were fawning, but at this the presence of the agistors was
not required.[919]
-----
Footnote 918:
_Dialogus_, I. xi. E.
Footnote 919:
It is expressly stated in the _Carta de Foresta_ (1217) that only the
verderers and foresters need be present at the June moot, and the same
officers, with the agistors, at the two others. The public were
specially exempted.
-----
The _Carta de Foresta_ applies to these assemblies, and to none other,
the name "Swanimotes"—a word whose correct use has been the subject of
much discussion, and whose ambiguity was in later centuries the source
of many errors. Its authoritative appearance in 1217 affords strong
evidence of the original sense which it bore. In later days, however, it
was more loosely used, being applied to inquisitions, and also to courts
of attachment. This has led to much confusion, while its derivation has
also been the subject of discussion. Bishop Stubbs derived it from the
word “swain,” on the supposition that courts so-called were normally
resorted to by the general body of swains or country people. As matter
of fact (whatever doctrine may be correct philologically), these
assemblies were connected, not with “swains,” but with “swine.” The
peasantry were specially exempted; whereas all three meetings sought to
regulate the entry or exclusion of pigs from the woods.
V. _Chases, Parks, and Warrens._ Forests were necessarily royal
monopolies, and must on this and other grounds be distinguished from
three things with which they are apt to be confused. (1) A “chase” was a
district which had once been a royal forest, but which had, without any
formal act of disafforestation, been granted by the king to a private
individual. The result was to transfer the monopoly of hunting therein
from the Crown to the grantee, while somewhat modifying the nature of
the rights transferred. The full force of the forest laws was abated,
although the extent and direction of this diminution was nowhere
strictly defined, varying from chase to chase. Such provisions of the
forest law as continued to be binding were no longer enforced by royal
officials and royal courts, but by those of the magnate, who thus
obtained a franchise over the chase and the royal beasts it
contained.[920] (2) A “park” was any piece of ground enclosed with a
paling, or hedge, whether with the object of protecting wild beasts or
otherwise, and the right to effect this was quite independent of royal
grant. If the owner of a manor in the near neighbourhood of a royal
forest wished to keep deer of his own, which he might kill at pleasure,
whether for sport or for food, without infringing the forest laws, he
had to stock an enclosure with beasts legally his own, and to keep them
under conditions which made confusion with the king’s deer
impossible.[921] In 1234 the barons asserted their right to keep private
gaols for poachers taken in their parks (_in parcis et vivariis suis_),
but the king refused to allow this.[922] (3) A “warren,” which might
belong either to the king or to any private owner, carried with it
exclusive rights of hunting within its bounds all wild animals, except
those technically defined as “beasts of the forest.”[923] In practice it
chiefly embraced hares and foxes.[924] Neither parks nor warrens were
protected by the forest law, but by that part of the common law which
related to theft and trespass. This was, however, vigorously
administered for the preservation of game, so as to bear with increasing
hardship on the common people, securing a monopoly of hunting to the
land-owning aristocracy, and passing gradually into the modern Game
Laws.[925] Dr. Stubbs held, apparently, too narrow a conception of
warren when he read it in its modern sense of “a rabbit warren.”[926] It
was a tract of land wherein exclusive rights of hunting lesser game
(together with rabbits and other vermin) were preserved to its owner.
The king might, and did, have his warrens and warreners, just as any
subject might; and these royal warreners, like all Crown officials,
great and small, might inflict cruel injustice on the common
people;[927] but their power of doing harm was less than that of
foresters, as they were dependent on the common law. The forest code did
not apply even to royal warrens.[928]
-----
Footnote 920:
_Select Pleas of the Forest_, cix. _et seq._
Footnote 921:
_Ibid._, cxvii.
Footnote 922:
Statute of Merton, c. 11.
Footnote 923:
_Select Pleas of the Forest_, cxxiii.
Footnote 924:
_Ibid._, cxxviii-cxxix. Wild cats should perhaps be added.
Footnote 925:
See W. S. Houldsworth, _History of English Law_, p. 346.
Footnote 926:
See _Select Charters_, 552.
Footnote 927:
Some of these Magna Carta sought to guard against. See c. 48.
Footnote 928:
Rights of hunting were sometimes conferred on subjects over territory
which was not their own. Richard I., by a charter, granted permission
to Alan Basset to hunt foxes, hares, and wild cats throughout the
realm. See Round, _Ancient Charters_, No. 18.
-----
VI. _Forest Rights and Forest Grievances._ It is not difficult to
understand the store which the kings of England set upon their forests.
They prized them not merely as a pleasure ground, but also as a source
of revenue. Fines and amercements, individually small, but amounting to
a large sum in the aggregate, flowed into the Exchequer. Great as were
the pleasure and the profit to the king, the burden and loss inflicted
upon the people, freeholders and peasantry alike, were greater out of
all proportion. Not only were the best interests of the forest-dwellers
deliberately sacrificed to the royal hunting, not only were the legal
fines swelling the exchequer rendered trebly burdensome by the galling
and wasteful manner of their collection; but the men who paid them were
the victims of illegal exactions in addition. These grievances may be
considered under seven heads:—(1) _The extent of the forests._ The Crown
constantly strove to extend the boundaries; the people to contract them.
The Conqueror and Rufus each “afforested” wide tracts of land, of which
the New Forest is only one example. In the charter of 1100, Henry
bluntly declared:—“I retain in my hand, by the common consent of my
barons, my forests as my father had them.” This consent of the magnates,
if more than a form and willingly given, would suggest that the barons
were allowed some share in these royal rights of hunting which led them
here to make common cause with the Crown. Henry, as a matter of fact,
retained not only the forests of his father but those of Rufus as well,
and created new ones of his own.[929] Stephen, while retaining the
forests of the two Williams, renounced those added by Henry I. Under
Henry II., afforestation began anew.[930] The words of the Great Charter
leave no room to doubt that Henry of Anjou had extended the boundaries
of Stephen’s forests; and that both Richard and John carried the process
further, bringing within the circle of the cruel law, not only waste and
moor, but also many “woods” belonging to private owners. These royal
encroachments were the more oppressive, occurring as they did in an age
when population was rapidly increasing and seeking an outlet in the
reclamation of waste places on the debateable land which surrounded the
forests. The vagueness of the frontier aggravated this grievance, as it
was often difficult for the honest reclaimer of barren land to know
whether he was committing a trespass for which he might be punished by a
crushing fine.[931]
-----
Footnote 929:
This is implied in the terms of Stephen’s Oxford Charter. An example
of an act of afforestation by Henry is given in _Select Pleas_, 45,
which shows how “a district could be afforested in a moment by the
mere word of the monarch; it took centuries to free it from the royal
dominion.” See _Edinburgh Review_, vol. cxcv. (1902), p. 459. Even the
Forest Charter (cc. 1 and 3) admitted the Crown’s right to afforest
woods on its own demesne—reserving, indeed, common of pasture to those
with legal rights thereto.
Footnote 930:
The policy of Henry I., Stephen, and Henry II. respectively is well
illustrated by the case of Waltham forest in Essex. See Round,
_Geoffrey de Mandeville_, 377–8.
Footnote 931:
This group of grievances was partly remedied by chapters 47 and 53 of
Magna Carta. The former provided for the summary disafforestation of
all districts made forests by Richard and John, while the latter
showed a more judicial spirit in the undoing of the similar work
effected by their father. The _Carta de Foresta_ of 1217 contained
clauses which took the place of these somewhat crude provisions.
-----
(2) _The monopoly of hunting._ The Crown not only extended the bounds,
but also made the law more stringent. Such privileges of hunting as the
barons had were restricted as big game became scarce. The Crown’s
insistence on a strict monopoly of the more exciting forms of the chase
may not seem an important grievance, but it was one likely to exasperate
the sport-loving nobles. John, in 1207, admitted that his barons still
retained some vestiges of their right to share in the hunting of royal
beasts.[932] These rights were formally recognized and defined in 1217.
Chapter 11 of the _Carta de foresta_ allowed each magnate when passing
through a forest to take one or two beasts at sight of the foresters,
or, if these officials could not be found, then after blowing a horn to
show that nothing underhand was being done.
-----
Footnote 932:
See _Rot. Claus._, I. 85 (dated 11 June, 1207).
-----
(3) _Interference with rights of property._ Freeholders whose lands lay
in districts which the king was successful in afforesting, retained
their freeholds, but their proprietary rights lost half their value.
They could not root out trees, to clear their own lands for cultivation;
for that was to commit an _assart_. They could not plough up waste land
or pasture (even outside the covert) and turn it into arable, nor build
a mill, nor take marl or lime from pits, nor make fishponds, nor enclose
any space with hedge or paling; for these acts of ownership were
_purprestures_. They could not destroy a tree or lop off branches
(except under stringent conditions), without being guilty of
_waste_.[933] They could not agist their woods until a fortnight after
Michaelmas, when the agisting of the king’s demesnes was over (thus
reserving for him the best market and “pannage dues”).[934] Heavy tolls
were, under the name of “chiminage,” taken from carts and sumpter-horses
passing through the woods. In all these and many other ways, rights of
private property in forests were so restricted as to become valueless.
The Great Charter endeavoured to strike at the abuse of these Crown
rights by providing machinery for the abolition of “evil customs.” The
_Carta de foresta_ entered more into detail. Not only were past
trespasses of all three kinds,—wastes, purprestures, and assarts to be
condoned, but the law was altered for the future. The long list of
purprestures was materially curtailed: it was made lawful for a man to
construct on his own freehold in the forest, mills, ponds, lime pits,
ditches, and arable lands, provided these were not placed within the
covert (that is in wooded places fit to shelter game) and did not
infringe on any neighbour’s rights.[935] They might also keep eyries for
breeding falcons and other birds of prey, and take honey found on their
own ground—rights previously denied to them.[936]
-----
Footnote 933:
For detailed information as to wastes, purprestures, and assarts with
their ascending scale of penalties, see _Select Pleas_, lxxxii.
Footnote 934:
See Assize of Woodstock, article 7.
Footnote 935:
See _Carta de foresta_, c. 12.
Footnote 936:
_Ibid._, c. 13, another clause (c. 14) forbade ordinary foresters to
exact chiminage, and fixed the rates payable to those with vested
rights at two pennies for each cart per half-year, and one half-penny
for each sumpter horse.
-----
(4) _Interference with the pursuits of the poor._ If the rich suffered
injury in their property, the poor suffered in a more pungent way: stern
laws prevented them from supplying three of their primary needs, food,
firewood, and building materials. On no account could they kill deer;
while difficulties surrounded the taking of timber from the woods.[937]
It is true that even the Assize of Woodstock allowed them the privilege
of “estovers,” that is of cutting firewood, but only under stringent
rules. All waste was strictly prohibited; and “waste” was a wide word
covering, not merely wanton destruction, but all sales or gifts of logs;
while nothing could be taken except at sight of the forester, whose
consent would not be procured for nothing. This may be illustrated from
a period sixty years later than John’s reign: Hugh of Stratford, who
paid two and a half marks of yearly rent to the Warden for his post,
recouped himself by taking “from the township of Denshanger for every
virgate of land one quarter of wheat in return for their having paling
for their corn and for collecting dead wood for their fuel in the
demesne wood of the lord king; and from the same town he took from every
house a goose and a hen in every year.”[938] A small sum might be taken
for every load of sticks; the men of Somerset complained that “from the
poor they take, from every man who carries wood upon his back,
sixpence.”[939] Dwellers within or near the forests were also prohibited
from keeping dogs, unless their value for other pursuits, as well as for
hunting, was destroyed by the removal of three claws of the
forefoot.[940] Nor could they keep bows or arrows, so necessary for
their protection amid the dangers which beset the inhabitants of lonely
districts throughout the Middle Ages.[941] No tanner or bleacher of
hides could reside in the forest districts, unless within the walls of a
borough.[942]
-----
Footnote 937:
See Assize of Woodstock, article 3.
Footnote 938:
See _Select Pleas_, 123 (6 Edward I.).
Footnote 939:
_Select Pleas_, 127 (1278-9). This was a heavy rate, the more
remarkable in face of the provisions against “chiminage” in _Carta de
foresta_, c. 14.
Footnote 940:
Assize of Woodstock, article 14. Cf. _Carta de foresta_, c. 6.
Footnote 941:
_Ibid._, article 2.
Footnote 942:
_Ibid._, article 15.
-----
(5) _Attendance at forest courts._ Unlike the grievances already
mentioned which pressed chiefly on those within the forests, the burden
of performing “suit” at the forest courts was specially resented by
those who lived without. At every inquisition representatives from
neighbouring townships must be present, while the entire population were
compelled to meet the justices on their forest eyres. Henry II.,
whatever may have been the earlier practice, enforced this duty of
attendance upon those outside the boundaries as well as on those within.
The Assize of Woodstock admits no exemption for earl or baron, for
knight or freeholder, nor even (according to one version) for archbishop
or bishop. All and sundry must be present at the eyres. The double duty
of doing suit at county courts and at forest courts meant a double loss
of time, and double risk of amercement. This 11th Article of the Assize
was repealed by chapter 44 of Magna Carta, which restricted the
obligation to denizens of the forests, a concession confirmed in
1217.[943]
-----
Footnote 943:
See _Carta de foresta_, c. 2.
-----
(6) _Fines and punishments._ Frequent exactions ground down the dwellers
in the royal forests to abject poverty. If they failed to attend one of
the numerous inquisitions, they paid a fine. If they failed to disclose
the guilty poacher, they paid a fine. If they gave false information,
they paid a fine. If they sold or gave away timber, they paid a fine. If
they kept grey hounds or mastiffs, which had not been “lawed,” that is
deprived of the requisite number of claws, they paid a fine.[944] If a
bow or arrow were found in their keeping, they paid a fine. If they
committed any one of the numerous forms of waste or trespass, they paid
a fine. Truly, the wretched peasant must walk warily if he would
preserve sufficient of his miserable pittance to keep himself, his wife
and children, in life and health.
-----
Footnote 944:
At one time it had evidently been the practice to exact an ox in
reparation of such transgression, thus leaving the peasant without the
means of tilling his land. The Forest Charter (c. 6) limited the fine
to 3s.
-----
The Northamptonshire Eyre Roll of 1209 illustrates how a whole township
might suffer severely for no fault of their own. "The head of a hart
recently dead was found in the wood of Henry Dawney at Maidford by the
king’s foresters. And the forester of the aforesaid Henry is dead. And
because nothing can be ascertained of that hart, it is ordered that the
whole of the aforesaid town of Maidford be seized into the king’s hand,
on the ground that the said Henry can certify nothing of that
hart."[945] There was clearly a strong inducement, in such cases, to
find someone guilty.
-----
Footnote 945:
See _Select Forest Pleas_, p. 4.
-----
In certain cases Henry II. would not accept a fine, but inflicted loss
of limbs upon violators of the king’s monopoly. It was often better to
kill a fellow-man than a boar or stag. Article 1 of the Assize of
Woodstock announced that the full rigour of the laws would be enforced,
as under Henry I., while article 12 laid down more definitely that
sureties would only be accepted for two offences. For the third offence
nothing would suffice save the body of the offender. John’s Magna Carta
made no specific regulation on this head, although the general provision
for abolishing “evil customs” afforded some relief. Chapter 10 of the
_Carta de foresta_ in 1217 conceded that no one should henceforth lose
life or limb for such offences. The culprit should lie in prison for
year and day, and thereafter find sureties for his future good
behaviour, or failing such sureties be banished from the realm.
(7) _Arbitrary government and illegal exactions._ If the laws of Henry’s
code were stringent and the legal payments onerous, it was a worse evil
that the law, such as it was, could be safely defied by the Crown
officials, and that payments of a perfectly illegal nature might be
freely exacted. Within the forest bounds the peasantry lived in daily
fear of the discretionary authority of officials, whose most
unreasonable wishes they dared not oppose. Sometimes a local tyrant
established a veritable reign of terror. This happened in the forest of
Riddlington under Peter de Neville, as the records of the Rutland Eyre
held in 1269 disclose. One item, taken almost at random from the long
list of his evil deeds, will suffice: “The same Peter imprisoned Peter,
the son of Constantine of Liddington, for two days and two nights at
Allexton, and bound him with iron chains on suspicion of having taken a
certain rabbit in Eastwood; and the same Peter the son of Constantine,
gave two pence to the men of the aforesaid Peter of Neville, who had
charge of him, to permit him to sit upon a certain bench in the gaol of
the same Peter, which is full of water at the bottom.”[946] In this evil
pit, miscalled a gaol, men illegally arrested on mere suspicion were
allowed to rot or starve to death if they failed to pay heavy ransoms.
Other examples are only too abundant. In 1225 Norman Samson, a petty
official of the forest of Huntingdon, put men to the torture without
cause, and only released them from their torments in return for heavy
bribes. These petty despots were practically irresponsible, since the
eyres were held at wide intervals of seven years. Even then the
sufferers might hesitate to complain, fearing a worse fate when the
backs of the justices were turned. If such things could happen after the
grant of the charters of 1215 and 1217, it is not likely that the
foresters were more merciful before. John was always too indifferent or
too busy to redress such wrongs. The only guarantee against their
recurrence in the future was that honest officials should be selected.
Magna Carta sought to secure this by the provisions of chapter 45, which
(occurring amongst the forest clauses) directed that no justiciar,
sheriff, constable or bailiff should be appointed, except such as knew
the law of the land and meant to observe it. The word constable included
the wardens, while bailiff was wide enough to embrace the foresters. It
is doubtful whether this clause would have effected any improvement; it
was withdrawn in 1216.
-----
Footnote 946:
_Select Pleas_, 50.
-----
Some good must have resulted from chapter 16 of the Forest Charter,
which forbade wardens to hold pleas of the forest, and reserved them for
the justices in eyre. This prevented wardens from being judges in their
own cause; but their arbitrary acts continued to be plentiful under
Henry III., as has been already shown. Blackmail, under thin disguises,
was levied upon all who would escape the unwelcome attentions of those
in power. Sixty years after Magna Carta the men of Somerset complained
that “foresters come with horses at harvest time and collect every kind
of corn in sheaves within the bounds of the forest and outside near the
forest, and then they make their ale from that collection, and those who
do not come there to drink and do not give money at their will are
sorely punished at their pleas for dead wood, although the king has no
demesne; nor does anyone dare to brew when the foresters brew, nor to
sell ale so long as the foresters have any kind of ale to sell; and this
every forester does year by year to the great grievance of the
country.”[947]
-----
Footnote 947:
_Select Pleas_, 126.
-----
Each one of these abuses had been specifically forbidden by chapter 7 of
the _Carta de foresta_, which had prohibited the making of “scotale” and
the collection of corn, lambs, and pigs. Such rules were easier to
enunciate than to enforce.
VII. _Later History of Forests and Forest Laws._ The Forest Charter
signally failed to secure a pure administration of the law; but two
processes were at work which tended to lighten the burdens inflicted.
The long struggle to define accurately the boundaries ended in the reign
of Edward II. in the defeat of the king, who consented to the frontier
being drawn to suit the barons.[948] Within these restricted limits,
time and the progress of civilization gradually softened the severity of
the forest code, many customs becoming obsolete.[949] Charles I. made an
ill-judged attempt to revive some of the Crown’s long-forgotten rights.
Justice-seats were held by the Earl of Holland, accompanied by
amercements and attempts to extend the forest bounds.[950] The result
was a drastic act of the Long Parliament limiting them to their old
extents.[951] This statute, however, abolished neither the forests, the
forest laws, nor the forest courts. After the Restoration a Justice-seat
actually took place _pro forma_ before the Earl of Oxford. Blackstone
declares this to be the last ever held,[952] although the offices of
justice and warden of the forests were not abolished till 1817.[953] The
forests, much curtailed in extent, are still the property of the Crown,
though now administered in the interests of the public by the
Commissioners of Woods and Forests.[954] The operation of the common law
is, of course, no longer excluded from their confines, the old
antithesis between the forest law and the law of England being now a
thing of the past.[955]
-----
Footnote 948:
See _infra_, under c. 47.
Footnote 949:
The “_assisa et consuetudines forestae_,” issued by Edward I. in 1278,
although merely declaratory, may have done something towards
curtailing the limits of discretionary authority. See _Statutes of
Realm_, I. 243, and Bémont, _Chartes_, lxv.
Footnote 950:
See S. R. Gardiner, _Hist. Engl._, VII. 363, and VIII. 282.
Footnote 951:
16 Charles I. c. 16.
Footnote 952:
_Commentaries_, III. 72.
Footnote 953:
By 57 George III. c. 61.
Footnote 954:
In virtue of a series of Acts of which 14-15 Victoria c. 42 is the
latest.
Footnote 955:
See Stephen, _Commentaries_, II. 465-6.
-----
CHAPTER FORTY-FIVE.
Nos non faciemus justiciarios, constabularios, vicecomites vel ballivos,
nisi de talibus qui sciant legem regni et eam bene velint observare.
We will appoint as justices, constables, sheriffs, or bailiffs only
such as know the law of the realm and mean to observe it well.
The object of this plainly worded clause was to prevent the appointment
of unsuitable men to responsible offices under the Crown. The list of
officers given is a comprehensive one—justices, sheriffs, constables and
bailiffs—embracing all royal ministers and agents, both of the central
and of the local government, from the chief justiciar down to the
humblest serjeant.[956] The clause was directed in particular against
John’s foreign favourites such as the Poitevin Bishop of Winchester,
Peter des Roches,[957] who had wielded and abused the authority of chief
justiciar in 1214 when the king was abroad, or such as Engelard de
Cygony and the other tools of John’s extortions, stigmatized by name in
a later part of Magna Carta,[958] who had filled various posts as
sheriffs, wardens, and officials of the exchequer. Such men had no
interests at stake in England, and little love for its customs and free
traditions. In future John must choose a different type of servants,
avoiding all such unscrupulous men, whether Englishmen or foreigners, as
were ready to break the law in their master’s interests or their own.
There is thus no difficulty in understanding what class of men were here
excluded from office; but what class were to fill their places? Bishop
Stubbs, commenting on this passage, credits the draftsmen of the Charter
with an intention to secure the appointment of men well versed in legal
science: “on this principle the steward of a court-leet must be a
learned steward.”[959] The clause of Magna Carta, however, refers
exclusively to royal nominees, not to the officers appointed by mesne
lords to preside over their feudal courts. The barons appointed their
own stewards and bailiffs, and had no wish to hamper their own freedom
of choice; but only that of the king. Further, it was not great lawyers
whom the barons desired John to employ, but plain Englishmen with a
rough-and-ready knowledge of insular usage, who would avoid arbitrary
acts condemned by the law of the land. The barons at Runnymede in 1215
desired exactly what the council of St. Albans had desired on 4th
August, 1213, when it issued formal writs commanding all sheriffs and
foresters to observe the laws of Henry I. and to abstain from unjust
exactions;[960] and it must be remembered that these laws of Henry were
but the older laws of Edward Confessor slightly amended.
-----
Footnote 956:
Constable and bailiff are discussed _supra_, c. 24, and shown to
include forest magistrates, _supra_, c. 44.
Footnote 957:
See _supra_, 36–7, and cf. Blackstone, _Great Charter_, viii.
Footnote 958:
See c. 50.
Footnote 959:
_Const. Hist._, I. 578, n.
Footnote 960:
Cf. _supra_, p. 34.
-----
The attitude of John’s barons was the same as that of Henry’s barons,
when the latter declared in 1234 in such emphatic terms that they did
not wish the laws of England to be changed.[961] They were far from
desiring to be governed by ministers deeply versed in the science and
literature of jurisprudence, since these would necessarily have been
churchmen and civilians. The laws which the Crown’s officers must know
and observe were the old customary laws of England, as opposed alike to
the canon law and the civil law of Rome. Honest Englishmen were wanted,
with a reputation for straightforward dealing and in sympathy with
native prejudice. Crown ministers might do well enough without any
academic training in an age when only one short treatise on the law of
England had been written (that of Glanvill); while the stewards of court
leets, referred to by Bishop Stubbs, might even be ignorant of the
common law, provided they were versed in “the custom of the manor.”
-----
Footnote 961:
“_Nolunt leges Anglie mutare que usitate sunt et approbate._” See
Statute of Merton, c. 9.
-----
This provision of Magna Carta, directed primarily against alien
sheriffs, castellans, and other ministers, disappeared in 1216 (without
any comment in the so-called “respiting clause”), along with several
provisions of a temporary nature, also directed against foreigners. Even
if this well-meaning chapter of John’s Great Charter had remained in
force, it would not have effected much, in the absence of adequate
machinery to ensure its enforcement. In promising the selection of such
ministers as knew the law and meant to keep it, John remained sole judge
of the men appointed and their intentions. The clause indicated no
standard of fitness to which appeal could be made, no neutral arbitrator
to decide between the fit and the unfit, and no sanction to enforce
compliance on an unwilling king. Half a century later, the Provisions of
Oxford gave proof of some advance in political theory. They contained an
expedient, crude enough it is true, for constraining royal officials to
keep the law. Forms of the oaths of office to be taken by castellans and
ministers of all grades were carefully provided.[962] Even this was only
a first step towards settling a problem which was not completely solved
until, after the struggles of many centuries, the modern doctrine of
ministerial responsibility was firmly established.
-----
Footnote 962:
See _Select Charters_, 388–391, and Madox, II. 149, with authorities
there cited.
-----
CHAPTER FORTY-SIX.
Omnes barones qui fundaverunt abbatias, unde habent cartas regum Anglie,
vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut
habere debent.
All barons who have founded abbeys, concerning which they hold
charters from the kings of England, or of which they have
long-continued possession, shall have the wardship of them, when
vacant, as they ought to have.
The religious houses of the various orders, (abbeys, priories, and
convents), which had increased so rapidly in number since the reign of
Henry I., fell naturally into two classes according as they had been
founded by the king or by private individuals. The king or the great
baron, in bestowing lands on a religious foundation, reserved, either
expressly or by implication, certain valuable rights of property, of
which the control over the election of the abbot or prior, together with
the wardship of the fief during vacancies, were the most important. King
John, while by his separate charter to the clergy he had renounced in
favour of all churches and monasteries, cathedral and conventual, all
control over election of prelates, had carefully reserved his rights of
wardship; and the barons insisted that the proprietary rights of mesne
lords who had founded religious houses, should also be respected. John
however, wherever he had any plausible pretext, usurped the wardship
over private foundations, in addition to his own. It would appear from
the terms of a later chapter,[963] that in 1215 the Crown actually held
in ward certain abbeys founded by mesne lords, for provision is there
made for their restoration. The present chapter looks to the future,
forbidding new usurpations of this nature.
In the reissues of the Charter certain verbal changes occur, but it is
not clear that they imply any changes of substance. In 1216 the words
“and as it has been above declared” were added, implying that the rights
of mesne lords were to be restricted by the rules previously laid down
in chapter 5, as to wardship—rules especially applied to the lands of
bishoprics and religious houses in 1216 by a clause which had no
parallel in John’s charter.[964] In 1217 three other small changes tend
to widen the scope of the clause. The “barons who have founded abbeys”
of John’s grant become “the patrons of abbeys”; royal “charters” become
more explicitly “charters of advowson”; “ancient tenure” is expanded
into “ancient tenure or possession.”[965]
-----
Footnote 963:
See _infra_, c. 53.
-----
Is it possible that the influence of the Church was powerful enough at
Runnymede to prohibit all mention of lay “patrons” and lay presentations
or “advowsons”; whereas it was powerless to prevent the barons pressing
their rights of patronage two years later? John’s promise of free
canonical election[966] had interfered with royal patronage, and Stephen
Langton would be unwilling to admit a subject’s claim to rights which he
had forced the Crown to renounce. The question of lay patronage, indeed,
was not directly raised in any version of Magna Carta; but prior to 1215
John seems to have interfered between abbeys and their founders. On 16th
August, 1200 he granted to William Marshall, Earl of Pembroke, the
privilege of bestowing the pastoral staff of Nuthlegh Abbey, which lay
within that nobleman’s fief; this shows that John forbade appointments
without royal licence.[967] The present chapter of Magna Carta made
little difference in practice. Henry III. claimed wardship over abbeys
and priories formed by earls and barons on their own fiefs, and kept
them vacant, by preventing their patrons making appointments without his
licence.[968]
-----
Footnote 964:
Compare _supra_, p. 250.
Footnote 965:
This chapter in its final form (1217 and 1225) runs thus: _Omnes
patroni abbatiarum qui habent cartas regum Anglie de advocatione vel
antiquam tenuram vel possessionem habeant earum custodiam cum
vacaverint, sicut habere debent et sicut supra declaratum est_.
Footnote 966:
Cf. _supra_, p. 39.
Footnote 967:
See _New Rymer_, I. 81. John had also interfered “in the time of the
interdict” with what Robert fitz Walter considered his rights of
patronage over Binham Priory (a cell of St. Alban’s). See J. H. Round,
_Eng. Hist. Rev._, XIX. 710-1.
Footnote 968:
See Petition of Barons (c. 11), _Sel. Charters_, 384.
-----
CHAPTER FORTY-SEVEN.
Omnes foreste que afforestate sunt tempore nostro, statim
deafforestentur; et ita fiat de ripariis que per nos tempore nostro
posite sunt in defenso.
All forests that have been made such in our time shall forthwith be
disafforested; and a similar course shall be followed with regard to
river-banks that have been placed “in defence” by us in our time.
An analogy may be traced between the royal prerogatives of hunting and
of falconry here brought together. William the Conqueror claimed wide
and ill-defined rights to “afforest” whole districts at his discretion,
and in one well-known instance at least, the creation of the New Forest,
he made good his claim, at the cost of much suffering to his humbler
subjects. Large tracts of land were thus consecrated to the wild boar
and the stag. The king claimed somewhat similar powers for protecting
his preferential rights of fowling. If woods could be “afforested” for
hunting, rivers might be placed “in defence” for hawking. The parallel
must not be pushed too far. River-banks were preserved only for such
limited period as was covered by the king’s express command; and
although wardens were appointed to guard them,[969] the Crown never
established such absolute control over the banks of rivers as it did
within districts declared “afforested.”
-----
Footnote 969:
Mention of these officers is made in c. 48. The phrase “in defence” is
explained _supra_, pp. 357-8.
-----
The provision of the present chapter, defining what river-banks might be
“defended,” disappeared, together with the relative clause of chapter 48
(“_ripariis et earum custodibus_”), from the reissue of 1216; but, in
the respiting clause there was promised further deliberation, which
resulted in its replacement in chapter 20 of the final version of Magna
Carta.[970]
-----
Footnote 970:
Cf. _supra_, p. 356.
-----
More attention is usually paid to the bearing of the present chapter
upon the limits of the forests. John, if he had created no new forests,
had at least extended the boundaries of the old ones. All such
encroachments are to be immediately given up. This summary redress,
which implies that John’s aggressions were so notorious as to admit of
no dispute, should be contrasted with the more judicial procedure
appointed by chapter 53 for determining encroachments made by Henry II.
and Richard I. A somewhat similar distinction is also to be found in the
corresponding provisions of the Forest Charter of 1217 (chapters 1 and
3); but the line is there differently drawn. Chapter 1 of the _Carta de
foresta_ extends the summary methods of redress to the disafforesting of
all forests created by Richard as well as those created by John. The
terms of the later document are also more detailed, making more explicit
the meaning of the earlier grant. Both seem to be directed against
encroachments on the rights of landowners, affording no protection to
the poor. While they deny the Crown’s right to afforest private woods
“to the damage of any one” (that is, of barons or freeholders owning
them), they admit the legality of past acts, whether of Henry, of
Richard, or of John, in afforesting Crown lands, subject always to a
saving clause in favour of freeholders in right of common of
pasturage.[971]
-----
Footnote 971:
Mr. P. J. Turner, _Select Pleas of Forest_, xciii., points out that
although forests included open country as well as woods, yet _Carta de
foresta_ spoke only of “woods” in this connection.
-----
Even if Henry III. had cordially co-operated with his barons to
disafforest all tracts of ground afforested by Henry II. and his sons,
difficulties of definition would still have made the task tedious. As it
was, struggles to settle the boundaries embittered the relations between
Crown and Parliament, until the very close of Edward Plantagenet’s
reign. Only the leading steps in the slow process by which the
opposition triumphed need here be mentioned.
After the issue of the _Carta de foresta_ on 6th November, 1217,[972]
machinery was set in motion, in obedience to its terms, to ascertain the
old boundaries and to disafforest all recent additions. The work of
redress continued for some years, suffering no interruption from the
issue of the new royal seal at Michaelmas, 1218.[973] In face of many
difficulties only slow progress was possible. More strenuous efforts
followed the reissue of the Charters on 11th February, 1225;[974] for,
five days later, justices were appointed to make new perambulations,
which resulted in the disafforestation of wide tracts. Henry considered
himself, and with some reason, as unjustly treated by these justices, or
by the local juries on whose verdicts they had relied. After he had
proclaimed himself of age in January, 1227, he challenged their
findings; and this has been misinterpreted as an attempt to annul the
Forest Charter.[975]
-----
Footnote 972:
Cf. _supra_, p. 171.
Footnote 973:
Cf. _supra_, 180, and see _Select Pleas_, xcv.
Footnote 974:
Cf. _supra_, p. 181.
Footnote 975:
Cf. _Select Pleas_, xcix.; and see also _supra_, p. 184.
-----
Some of the knights who had perambulated the forests were persuaded or
coerced into acknowledging that they had made mistakes; and, after
further inquiry, Henry restored the wider bounds. His reactionary
measures went on for two years; but thereafter the frontiers were fixed,
in spite of many complaints, until strong pressure compelled Edward I.,
towards the close of his reign, to reopen the whole question.
Perambulations in 1277 and 1279 produced apparently no results. Renewed
complaints were followed by new perambulations in 1299-1300, the reports
of which were laid before a Parliament which met at Lincoln on 25th
January, 1301. The king, as the result of hostile forces converging from
several sides, had to surrender; and on 14th February he confirmed the
Forest Charter, and formally agreed to the reduced boundaries as defined
by the most recent inquests. Edward had acted under constraint: on this
plea he subsequently obtained from Pope Clement V. a bull, dated 29th
December, 1305, revoking all the concessions made at Lincoln.[976] The
Crown seemed thus to triumph once more; but the barons refused to accept
defeat, forcing upon Edward II. the acceptance of the narrower bounds as
they had been defined at his father’s Parliament in 1301. This
settlement was confirmed by statute in the first year of the reign of
Edward III.,[977] and that king failed in all attempts to escape from
its provisions. Thus the authoritative pronouncement made in 1301 by the
Parliament of Lincoln furnished the basis on which the protracted
controversy was finally determined.[978]
Footnote 976:
See _Select Pleas_, cv. Mr. Turner’s account of Edward’s conduct may
be compared with the estimate of M. Bémont, _Chartes_, xlviii.
Footnote 977:
1 Edward III., stat. 2, c. 1.
Footnote 978:
See _Select Pleas_, cvi. There was one exception. On 26th December,
1327, Edward III. had to submit to further disafforestations in
Surrey.
-----
The further history of the forest boundaries may be told in a few
sentences. No changes were made until the sixteenth century. When Henry
VIII. afforested the districts surrounding Hampton Court in 1540, he did
so by consent of Parliament, and on condition of compensating all those
who suffered damage. The same course was followed by Charles I. in
creating the Forest of Richmond in 1634. Finally, as a result of the
attempts of the Stewarts to revive obsolete forest rights, a statute of
the Long Parliament, reciting the Act of 1327, “ordained that the old
perambulation of the forest in the time of King Edward the First should
be thenceforth holden in like form as it was then ridden and
bounded.”[979]
-----
Footnote 979:
16 Charles I. c. 16.
-----
CHAPTER FORTY-EIGHT.
Omnes male consuetudines de forestis et warennis, et de forestariis et
warennariis, vicecomitibus et eorum ministris, ripariis et earum
custodibus, statim inquirantur in quolibet comitatu per duodecim milites
juratos de eodem comitatu, qui debent eligi per probos homines ejusdem
comitatus, et infra quadraginta dies post inquisicionem factam, penitus,
ita quod numquam revocentur, deleantur per eosdem, ita quod nos hoc
sciamus prius, vel justiciarius noster, si in Anglia non fuerimus.[980]
All evil customs connected with forests and warrens, foresters and
warreners, sheriffs and their officers, river-banks and their wardens,
shall immediately be inquired into in each county by twelve sworn
knights of the same county chosen by the honest men of the same
county, and shall, within forty days of the said inquest, be utterly
abolished, so as never to be restored, provided always that we
previously have intimation thereof, or our justiciar, if we should not
be in England.
-----
Footnote 980:
The last sixteen words, inclusive of “_per eosdem_,” appear at the
foot of both of the Cottonian versions of Magna Carta. Cf. _supra_,
194–7.
-----
This chapter is mainly, though not exclusively, a forest one. It
provides in a sweeping and drastic manner for the abolition of “evil
customs,” three groups of which are specially emphasized: (_a_) those
connected with forests and warrens (presumably royal warrens only), with
their officials; (_b_) those connected with sheriffs and their
subordinates; and (_c_) those connected with river-banks and their
guardians. The word “customs” is obviously here used in its wider sense,
embracing all usages and procedure, whether specially connected with
pecuniary exactions or not.[981] The word “evil” is not defined, but
here (in favourable contrast to elsewhere) machinery is provided for
arriving at a definition. This takes the form of a new application of
the useful _inquisitio_. In each county a local jury of twelve knights
was to be immediately chosen by “the good people” of that county, and
these twelve received a mandate to hold a comprehensive inquest into
“evil customs” generally. All practices condemned by them (after hearing
on oath smaller local juries, doubtless) were to be abolished within
forty days of the inquiry, “so that they shall never be restored.”
-----
Footnote 981:
Contrast the more restricted meaning of the same word in c. 41.
-----
At the end of the chapter appears a proviso that, before actual
abolition, notice must be sent to the king, or, in his absence, to his
justiciar. Although such intimation was absolutely necessary, both on
grounds of policy and of ordinary courtesy, it would appear that this
clause was inserted only at the instance of the king’s friends; at
least, it is written (as an afterthought) at the foot of two of the
copies of the Great Charter.
Whether acting under pressure or from grounds of policy, John lost no
time in instituting the machinery necessary for effecting this part of
the reforms. On the very day on which the terms of peace were finally
concluded between king and barons at Runnymede, namely, on 19th June,
1215, he began the issue of writs to sheriffs, warreners, and river
bailiffs. Within a few days every one of these had been certified of the
settlement arrived at, and had received commands to have twelve knights
chosen by the county in the first county court, who should make sworn
inquest into evil customs.[982]
-----
Footnote 982:
See _Rot. Pat._, I. 180, cited also _Select Charters_, 306–7. Cf.
_supra_, p. 47.
-----
These orders were obeyed: knights were appointed in the various
counties, who seem to have taken a liberal view of their own functions.
Far from confining themselves to declaring customs to be evil, or even
to seeing them abolished, they claimed to share with the sheriffs the
exercise of the entire executive authority of the county. Some warrant
for these pretensions may be found in the terms of a second series of
writs issued in the king’s name on 27th June and following days. These
were addressed to the sheriff and the twelve knights jointly, commanding
them to make instant seizure of all who refused to take, as required in
the previous writs, the oath of obedience to the twenty-five executors
of the Charter.[983] The revolutionary committee of the central
government had thus in each county local agents in the twelve knights
whose original duties had been to see evil customs abolished.
-----
Footnote 983:
Cf. _infra_, c. 61.
-----
The hatred which all classes bore to the forest laws is well illustrated
by the iconoclastic spirit in which these knights concurred with the
jurors of each small district, and with all others concerned, for the
drastic treatment of abuses. Moderate-minded men began to fear that
these sweeping changes would virtually abolish the royal forests
altogether (in their technical legal sense). Accordingly, the leading
prelates, who were in large measure responsible for inducing the king to
make truce at Runnymede, and were thus under a moral obligation to do
what they could to prevent the barons breaking faith, issued a written
protest. They declared that the chapter in question must be understood
by both parties “as limited,” and “that all those customs shall remain,
without which the forests cannot be preserved.”[984] Clearly, the whole
code of the forest laws was in danger of being swept out of existence,
as forming one huge “evil custom.” What effect, if any, this protest
had, is not known. The country was soon plunged in civil war, during the
continuance of which neither side had leisure for the reform of abuses,
however urgently required. In 1216 the subject was one of those
“respited” for future consideration, and in 1217 an attempt was made to
specify in detail those evil customs which were to be abolished. The
dangerous experiment of leaving such definition to local juries in each
district was not repeated.
-----
Footnote 984:
Cf. _supra_, p. 52. The text is given _Rot. Claus._, 17 John, m. 27,
d. and _New Rymer_, I. 134. It runs in name of the archbishops of
Canterbury and Dublin, and of the bishops of London, Winchester, Bath,
Lincoln, Worcester, and Coventry, forming (with one exception, the
bishop of Rochester) precisely those mentioned in the preamble to
Magna Carta.
-----
CHAPTER FORTY-NINE.
Omnes obsides et cartas statim reddemus que liberate fuerunt nobis ab
Anglicis in securitatem pacis vel fidelis servicii.
We will immediately restore all hostages and charters delivered to us
by Englishmen, as sureties of the peace or of faithful service.
A feature of John’s system of government was the constant demand for
hostages as guarantees of his subjects’ loyalty. Such an expedient was,
indeed, naturally resorted to in the Middle Ages upon special occasions,
as, for example, to secure the observance of a recent treaty, or where
the leaders of a rebellion, newly suppressed, had been spared on
condition of future good behaviour. Thus the Conqueror, in 1067, during
a forced absence from England immediately after its acquisition, took
with him Edgar Atheling and the Earls Morkere and Eadwin; and many other
instances readily occur. Such cases were, however, exceptional, until
John established an unfortunate claim to distinction as the only king of
England who ever resorted to such a policy, not merely in face of
danger, but as a constant and normal practice in times of peace. It may
be that his continual suspicions were well grounded; but this scarcely
excuses them, since it was his own bad government which goaded his
subjects into a condition of perpetual unrest.
John lived in his native England like a foreign conqueror in the midst
of a hostile race, keeping sons and daughters in his clutches to answer
for their parents’ attempts at revolt. This ingenious but unfair
practice accords well with what we know of John’s character and general
policy. It was a measure of almost devilish cunning for obtaining his
immediate aim, but likely to recoil on himself whenever a critical state
of his fortunes arrived. Its efficacy lay in this, that it forced the
hand of discontented magnates, compelling them to decide upon the
instant between the desperate expedient of open rebellion and the
delivery of their children to an unscrupulous enemy, thus renouncing,
perhaps for ever, the possibility of resistance or revenge, thereafter
to be purchased at too dear a price—the life of the hostage. By thus
paralyzing his enemies one by one, John hoped to render disaffection
innocuous. Those nobles whom the tyrant did not thus control through
their tenderest affections were too few for effective resistance. At the
slightest show of temper, they, too, were suddenly pounced upon for
hostages, thus joining the ranks of those who dared not rebel.[985]
-----
Footnote 985:
The only magnates not exposed to this dilemma were the prelates, whose
celibacy cut them adrift from family ties. They had no hostages to
give, and were, further, in the normal case, exempt from fear of
personal violence.
-----
The entire history of the reign shows of what excessive practical
importance this question of hostages had become. It abounds with
examples of the varied pretexts upon which John demanded them, and of
his drastic methods of visiting upon their heads the sins of those who
had pledged them. Thus, in 1201, John seized the castles of certain of
his barons; and one of them, William of Albini, only saved his
stronghold of Belvoir by handing over his son as a hostage.[986] In the
same year, the men of York offended the king by omitting to meet him in
procession when he visited their city, and by their failure to provide
quarters for the billeting of his archers. The king, as usual, demanded
hostages, but ultimately allowed the citizens to escape on payment of
£100 to buy back the king’s goodwill.[987]
-----
Footnote 986:
See R. Hoveden, IV. 161.
Footnote 987:
See _Rotuli de Finibus_, p. 119.
-----
Hardly a year passed without similar instances; but, apparently, it was
not until 1208 that the practice was enforced wholesale. In that year
the king’s abject fear of the effects of the Pope’s absolution of his
barons from their allegiance led to his demand that every leading man in
England should hand over his sons, nephews, or other blood relations to
the king’s messengers.[988]
-----
Footnote 988:
See R. Wendover, III. 224-5, and M. Paris, II. 523.
-----
The danger of failure to comply with such demands is illustrated by the
fate of Maud of Saint-Valery, wife of William de Braose, who refused
point-blank to hand over her grandchildren to a king who, she was unwise
enough to say, “had murdered his captive nephew.”[989] Two years later
John, after failing to extort enormous sums in name of fines, caused
her, with her eldest son, to be starved to death, a fate to which her
own imprudence had doubtless contributed.[990] John’s drastic methods of
treating his hostages may also be illustrated from the chronicles of his
reign, for example, from the fate of the youths he brought from Wales in
June, 1211. When he heard of the Welsh rebellion of the following year,
he ordered his levies to meet him at Nottingham. On his arrival, at the
muster, early in September, John found awaiting him a great concourse,
who were treated to an object lesson which long might haunt their
dreams. His passion at white heat, John incontinently hanged
eight-and-twenty defenceless boys of the noblest blood of Wales.[991]
This ghastly spectacle could not have been forgotten by any one then
present, when later in the same month the king, in the throes of sudden
panic, fled to London; and, secure in the fastnesses of the tower,
demanded hostages wholesale from all the nobles whose fidelity he
doubted. The inveterate Eustace de Vesci and Robert fitz Walter
preferred to seek safety in flight, the only alternative open to
them.[992] The others, with the Nottingham horror fresh in their
memories, were constrained to hand over, with feelings that may be
conceived, their sons and daughters to the tender mercies of John,
cunning and cruel by nature, and rendered doubly treacherous by
suspicion intensified by fear.
-----
Footnote 989:
R. Wendover and Matthew Paris, _Ibid._
Footnote 990:
See authorities cited by Miss Norgate, _John Lackland_, p. 288.
Footnote 991:
Cf. _supra_, p. 30.
Footnote 992:
Cf. _supra_, p. 30.
-----
The defects of this policy, in the long run, may be read in the events
which preceded Magna Carta. When John’s hold on the hostages was
relaxed, because of his preparations for the campaign of 1214, ending as
it did in utter discomfiture, the disaffected were afforded their
long-desired opportunity, and were stimulated to rapid action by the
thought that such a chance might never occur again. John, on his return,
held comparatively few hostages, and the northern barons saw that they
must act, if at all, before their children were once more in the
tyrant’s clutches.
Even in June, 1215, John had control over a few hostages, and the
chapter now under discussion demands the immediate restoration of those
of English birth (the Welsh receiving separate treatment) together with
the charters which John held as additional security, very much as a
creditor might hold the titles of a mortgaged property. This provision
of Magna Carta was immediately carried out. Letters were dispatched to
the custodians of royal hostages, ordering an immediate release.[993]
The practice of taking hostages, however, by no means ended with the
granting of the Great Charter. Before a year had run, some of the
insurgent nobles, repenting of their boldness, succeeded in making terms
with John by the payment of large sums of money and the delivery of
their sons and daughters in security for their future loyalty. Simon
fitz Walter, for example, thus gave up his daughter Matilda.[994]
-----
Footnote 993:
See for example a letter of 23rd June to Stephen Harengod, referred to
_supra_, p. 49.
Footnote 994:
See _Rotuli de Finibus_, 571. The custody of hostages might,
apparently, be a desirable office, since in 1199, Alan, the earl’s
son, offered three greyhounds for the custody of a certain hostage of
Brittany; so it appears from _Rotuli de Finibus_, p. 29.
-----
CHAPTER FIFTY.
Nos amovebimus penitus de balliis parentes Gerardi de Athyes, quod de
cetero nullam habeant balliam in Anglia; Engelardum de Cygony, Petrum et
Gionem et Andream, de Cancellis, Gionem de Cygony, Galfridum de Martinny
et fratres ejus, Philippum Marci et fratres ejus, et Galfridum nepotem
ejus, et totam sequelam eorundem.
We will entirely remove from their bailiwicks, the relations of Gerard
de Athyes (so that in future they shall have no bailiwick in England),
namely Engelard de Cygony, Peter, Gyon, and Andrew of the Chancery,
Gyon de Cygony, Geoffrey de Martyn with his brothers, Philip Mark with
his brothers and his nephew Geoffrey, and the whole brood of the same.
Chapter 45 sought to secure the appointment of suitable men to posts of
trust under the Crown; the present chapter definitely excludes from
bailiwicks (a comprehensive term embracing all grades of local
magistracies) one particular group of royal favourites. Their names
prove them of foreign extraction. They had come from Brabant, Flanders,
and Poitou,[995] and several of them stayed on in England and held
lucrative posts under Henry III. in spite of the ban here laid upon
them. The clause of John’s Charter which excluded them from office was
indeed omitted from future reissues, along with chapter 45.
-----
Footnote 995:
Cf. Bémont, _Chartes_, 22, n, and 116.
-----
The reasons which had rendered them obnoxious to the barons are not
explained, but may be readily imagined. They had filled the unpopular
posts of collectors of customs, wardens of forests, and commanders of
royal garrisons, and had distinguished themselves by their unscrupulous
zeal in pushing the king’s prerogatives connected with trade, castles,
forests, and purveyance.
The career of Engelard de Cygony may be taken as typical of the rest. He
was a nephew of Gerard de Athyes,[996] and was deep in the confidence of
his master, as is proved by the number of responsible offices with which
he was entrusted. We know that in 1211 he acted as Sheriff of
Gloucester, since he accounted to the Exchequer for the _firma
comitatus_. He further accounted for the _firma burgi_ of Bristol,[997]
which seems to imply interference with the chartered liberties of that
city. It was probably because John required his services elsewhere, that
some of his sheriff’s duties were performed by deputy, a burgess named
Richard rendering accounts on his behalf. Engelard also held pleas of
the Crown for Gloucestershire, in violation alike of the ordinance of
1194 forbidding any sheriff to act as justiciar in his own county, and
of the customary rule (confirmed only, not originated, by chapter 24 of
Magna Carta) which prevented sheriffs from holding pleas of the
Crown.[998] Several entries tell of barrels of wine which he took as
“prise” from ships entering the port of Bristol. For example, the
exchequer officials allowed him to deduct from the amount which he owed
as _firma_, the sum of 60s., in respect of four tuns of red wine, as
certified by the king’s writ,[999] an entry which suggests that he had
purchased from the Crown the profits yielded by the prerogative of
taking prise; and had then resold to the king the hogsheads actually
required for the royal use at 15s. each. Engelard also guarded a rich
treasure for the king at Bristol, probably as constable of the castle
there, sums being paid to him _ad ponendum in thesauro regis_.[1000] On
one occasion he was entrusted with the custody of more than 10,000 marks
of the king’s money.[1001] Hostages, as well as bullion, were placed
under his care; a writ dated 18th December, 1214, directed him to
liberate three noble Welshmen whom it mentioned by name.[1002]
-----
Footnote 996:
See R. Wendover, III. 238.
Footnote 997:
_Pipe Roll_, 12 John, cited Madox, I. 333.
Footnote 998:
_Ibid._, II. 146.
Footnote 999:
_Pipe Roll_, 12 John, cited Madox, I. 766.
Footnote 1000:
_Ibid._, I. 606.
Footnote 1001:
_Ibid._, I. 384.
Footnote 1002:
_Rot. Pat._, 16 John, m. 9 (I. 125), and _New Rymer_, I. 126.
-----
In the civil war to which the treaty of peace sealed at Runnymede was a
prelude, Engelard, then constable of Windsor Castle and warden of the
adjacent forest of Odiham, proved active in John’s service. He
successfully defended Windsor from the French faction, making vigorous
sorties until relieved by the king.[1003] He requisitioned supplies to
meet the royal needs; and a plea was brought against him so long
afterwards as 1232, in connection with twelve hogsheads of wine thus
taken.[1004] He acted as sheriff of Surrey under William Marshal, the
Regent, but was suspended from this office in 1218 in consequence of a
dispute with Earl Warenne.[1005] He remained warden of the castle and
forests for twenty years after the accession of Henry III.,[1006] and
his long services were rewarded with grants of land: in the county of
Oxford he held the manor of Benzinton, with four hundreds and a half,
during the king’s good pleasure;[1007] while his son Oliver received the
lucrative post of guardian over the lands and heirs of Henry de
Berkley.[1008]
-----
Footnote 1003:
See M. Paris, II. 665, who calls him “_Ingelardus de Athie_” and
describes him as _vir in opere martis probatissimus_. Cf. _Rot. Pat._,
9 Henry III. m. 9.
Footnote 1004:
See Bracton’s _Note Book_, No. 684.
Footnote 1005:
See _Rot. Pat._, 2 Henry III. m. 7.
Footnote 1006:
_Ibid._, 19 Henry III.
Footnote 1007:
See _Testa de Neville_, p. 18, and _Ibid._, p. 120.
Footnote 1008:
_Rot. Pat._, 9 Henry III. m. 6.
-----
In 1221, however, acting in consort with Falkes de Bréauté, Philip Mark,
and other castellans, Engelard supported earl William of Aumâle in his
resistance to the demands of Henry’s ministers, that all royal castles
should be restored to the king. Notwithstanding the secrecy with which
he sent men to the earl at Biham castle,[1009] he fell under suspicion
of treason, and escaped imprisonment only on finding hostages that he
would hold the castle of Windsor for the king, and surrender it at his
will.[1010] In 1236, he was relieved of some of his offices, but not of
all, for in 1254 he was two years in arrears with the _firma_ of the
manor of Odiham.[1011] In that year, apparently, he died; for the patent
roll contains a writ granting him permission to make his will, and an
entry in 1255 relates how “for good service done to the king by Engelard
de Cygony in his lifetime, the king granted to his executors that they
should be quit of all accounts to be rendered by them at the exchequer,
and of all averages of accounts, and of all debts and imposts.”[1012]
Engelard thus died, as he had lived, the trusted servant and favourite
of kings. His career illustrates how the very same men who had incurred
odium as the partizans of John became, when the civil war was over, the
instruments of his son’s misgovernment.[1013]