[615]. In its final form it reads: “Nulla ecclesiastica persona amercietur secundum quantitatem beneficii sui ecclesiastici, sed secundum tenementum suum et secundum quantitatem delicti.” Dr. Stubbs, Sel. Charters 345, by a curious oversight, reads for “tenementum” the compound “contenementum,” for which there seems to be no authority.
CHAPTER TWENTY-THREE.
Nec villa nec homo distringatur facere pontes ad riparias, nisi qui ab antiquo et de jure facere debent.
No community or individual[[616]] shall be compelled to make bridges at river banks, except those who from of old were legally bound to do so.
The object of this chapter is obvious; to compel the king to desist from his practice of illegally increasing the extent of an obligation—admitted as perfectly legal within the limits defined by ancient usage—the obligation to keep in good repair all existing bridges over rivers. John might continue to exact what his ancestors had exacted; but nothing more. So much lies on the surface of the Charter, which explains, however, neither the origin of the obligation nor the reasons which made John keen to enforce it.
I. Origin of the Obligation to make Bridges. The Norman kings seem to have based their claim to compel their subjects to maintain such bridges as were necessary, upon an ancient threefold obligation,[[616]] (known as the trinoda necessitas) incumbent on all freemen during the Anglo-Saxon period. Three duties were[[617]] required of all the men of England in the interests of the commonweal: attendance on the fyrd or local militia; the making of roads, so necessary for military purposes; and the repairing of bridges and fortifications. Gradually, as feudal tendencies prevailed, the obligation to construct bridges ceased to be a personal burden upon all freemen, and became a territorial burden attached to certain manors or freeholders. In other words, it was made a part of the services incidental to the feudal tenure of particular estates. The present chapter, in forbidding the illegal extension of this burden to communities or individuals other than those who rendered it as part of the services due for their lands, seems to be only a particular application of the general principle enunciated in chapter 16. The evil complained of, however, required special treatment because of the prominence into which it had been forced by John, who had abused powers vested in his ancestors for national purposes, in order to further his own selfish pleasures, in a manner so well known to his contemporaries as not to require specification in Magna Carta.
II. The King’s interest in the Repair of Bridges. John’s motives for making an oppressive use of this prerogative must be sought in a somewhat unexpected quarter, in the king’s rights of falconry, and in his frequent need for ready means of crossing rivers in pursuit of his valuable birds of prey. Whenever John proposed to ride a-fowling, with his hawk upon his wrist, he issued letters compelling the whole country-side to bestir themselves in the repair of bridges in every district which his capricious pleasure might lead him to visit. Several such writs of the reign of Henry III. are still extant. The exact words of these vary somewhat, but a comparison of their terms leaves no room for doubt either as to the nature of the commands they conveyed or the reasons for issuing them. Addressed to the sheriffs of such counties as the king was likely to visit, at a convenient interval beforehand, these letters gave instructions that all necessary steps should be taken in preparation for the king’s hawking. The writs contained two commands, an order for the repair of bridges, and a prohibition against the taking of birds before the king had enjoyed his sport. Both points are well brought out in a Letter Close of Henry III., dated 26th December, 1234, which directed "all bridges on the rivers Avon, Test, and Itchen to be repaired as was wont in the time of King John, so that when the lord King may come to these parts, free transit shall lie open to him for “riviating” (ad riviandum) upon the said rivers." The writ then proceeded to command the sheriff to issue a general prohibition against any one attempting “to riviate” along the river banks, previous to the coming of the king (“ne aliquis riviare praesumat per riparias illas antequam rex illic venerit”).[[618]]
The Latin verb, for which “to riviate” has been coined as an English equivalent, has long been the subject of misconception; but conclusive evidence has recently been adduced to prove that it referred to the medieval sport of fowling, that is to the taking of wild birds in sport by means of hawks and falcons.[[619]]
These writs prove that the Crown claimed and exercised a monopoly of, or at least a preferential right to, this form of sport along the banks of certain rivers; and these “preserved” rivers were accordingly said to be placed “in defence” (in defenso), a phrase which occurs in many of the writs referred to, as well as in a later chapter of Magna Carta.[[620]]
Two distinct hardships were thus imposed on the nation by the king’s exercise of his rights of falconry, one negative and the other positive. In the interval between the king’s intimation and his arrival at the indicated rivers, the sport of all other people was interfered with, while the obligation to reconstruct otherwise useless bridges was a more material burden on every village and individual exposed to it. A wise king would be careful to use such rights so as to inflict on his subjects a minimum of hardship. John, however, knew no moderation, placing “in defence” not merely a few banks at a time, but many rivers indiscriminately, including those which had never been so treated in his father’s day, and demanding that all bridges everywhere should be repaired, with the object, not so much of indulging a genuine love of sport, as of inflicting heavy amercements on those who neglected prompt obedience to his commands. Great consternation was aroused by John’s action at Bristol in 1209 when he prohibited the taking of birds throughout the entire realm of England.[[621]]