Both of these grievances, thus augmented by the policy of King John, were redressed by Magna Carta, though in different clauses. In the present chapter John promised not to impose the burden of repairing bridges on those from whom it was not legally due.[[622]] Chapter 47, in which he agreed to withdraw his interdict from all rivers which he had placed “in defence” during his own reign, and also to disafforest all forests of his own creation, was entirely omitted in the Charter of 1216;[[623]] but in 1217 it reappeared in a new position and expressed in different words. The provision of the original chapter 47, relating to forests, was relegated to the Carta de Foresta, then granted for the first time, and the other part of that chapter, relating to falconry, was naturally enough joined to a clause which redressed another grievance growing from the same root. Chapter 19 of Henry III.’s Charter, in its final form, repeats word for word the terms of the present chapter of John, while in chapter 20 Henry proceeds to declare “that no river shall in future be placed in defence except such as were in defence in the time of King Henry, our grandfather, throughout the same places and during the same periods as they were wont in his day.”
This express prohibition seems to have prevented the Crown from extending its prerogatives any further in this direction. Yet Henry III. had ample opportunities of harassing his subjects by an inconsiderate use of the rights still left to him. By issuing wholesale orders affecting every preserved river which he had an admitted right to put “in defence,” he might inflict widespread and wanton hardships. In many cases dubiety existed on the question of fact as to what banks had actually been “defended” by Henry II., and a vague general command which named no special rivers left in cruel uncertainty the district to be visited. Henry III., accordingly, either yielding to pressure or in return for grants of money, made important concessions. After the year 1241, he invariably specified the particular river along whose banks he intended to sport, and sometimes even announced the exact date at which he expected to arrive. As no writs appear subsequent to 1247, it is possible that he was induced to abstain altogether from the exercise of a right which inflicted hardships on the people out of all proportion to the benefits conferred on the king.[[624]]
The Crown, however, had not renounced its prerogatives, and several writs still exist to show that Edward I. occasionally allowed his great nobles to share in the royal sport. Licences to this effect were granted in 1283 to the Earl of Hereford and to Reginald fitz Peter, and in the following year to the Earl of Lincoln. On 6th October, 1373, Edward III. by his writ commanded the sheriff of Oxfordshire to declare that all bridges should be repaired and all fords marked out with stakes for the crossing of the king “with his falcons” during the approaching winter season.[[625]]
III. Erroneous Interpretations. There is nothing astonishing in the fact that a pastime so passionately followed as falconry was in the Middle Ages, should have left its traces on two chapters of Magna Carta, the full import of which has not hitherto been appreciated by commentators, partly from failure to bring both of them together, but chiefly because of the too precipitate assumption that the words ad riviandum and in defenso, occurring in writs and charters, referred to fishing rather than to fowling.[[626]]
It has been confidently inferred that the framers of Magna Carta when forbidding additional banks to be put “in defence,” equally as when demanding the removal of “weirs” from non-tidal waters,[[627]] were influenced by a desire to preserve public rights of fishing against encroachment by the king or by private owners. In either case the motives were entirely different. In the Middle Ages, fishing was a means of procuring food, not a form of sport: to depict John and his action-loving courtiers as exponents of the gentle art of Isaac Walton is a ridiculous anachronism.
It is quite true that the value of fish as an article of diet led in time to legislation directed primarily to their protection; but apparently no statute with such a motive was passed previous to 1285.[[628]] It is further true that in the reign of Edward I. it became usual to describe rivers, over which exclusive rights of fishing had been established by riparian owners, as being in defenso;[[629]] but rivers might be “preserved” for more purposes than one. From Edward’s reign onwards, however, rights of fishing steadily became more valuable, while falconry was superseded by other pastimes. Accordingly a new meaning was sought for provisions of Magna Carta whose original motive had been forgotten. So early as the year 1283 the words of a petition to the king in Parliament show that “fishing” had been substituted for “hawking” in interpreting the prohibition referred to in chapter 47 of John’s Charter. In that year the men of York complained that Earl Richard had interfered with their rights of fishing by placing in defenso the rivers Ouse and Yore, a proceeding they declared to be “against the tenor of Magna Carta.”[[630]] This error, the first appearance of which thus dates from 1283, has been accepted for upwards of five hundred years by all commentators on Magna Carta. The credit for dispelling it is due to Mr. Stuart A. Moore and Mr. H. S. Moore in their History and Law of Fisheries, published in 1903.
[616]. The word “villa,” used at first as synonymous with “manor,” came to be freely applied not only to all villages, but also to chartered towns. Even London was described as a villa in formal writs. “Homo,” though often loosely used, was the word naturally applied to a feudal tenant. The version given by Coke (Second Institute, p. 30) reads “liber homo,” which is also the reading of one MS. of the Inspeximus of 1297 (25 Edward I.). See Statutes of the Realm, I. 114.
[617]. See Rot. Claus., 19 Henry III., cited by Moore, History and Law of Fisheries, p. 8.
[618]. See Rot. Claus. 19 Henry III., cited in Moore, History and Law of Fisheries, p. 8.