[855]. Middle Ages, II. 451.
[856]. Cf. Madox, I. 455, "By nulli vendemus were excluded the excessively high fines: by nulli negabimus, the stopping of suits or proceedings, and the denial of writs: by nulli differemus such delays as were before wont to be occasioned by the counterfines of defendants (who sometimes would outbid the plaintiffs) or by the prince’s will."
[857]. Fines for this purpose were frequent under Henry II. and his sons. Madox, I. 447, cites many examples. Thus in 1166 Ralph Fitz Simon paid two marks “for speeding his right” (pro recto suo festinando). The practice continued under Henry III. in spite of Magna Carta. Bracton’s Note Book cites a hard case (No. 743): Henry III. was claiming prerogative wardship where it was illegal under c. 37 of Magna Carta (q. v.). The court might have delayed hearing the mesne lord’s plea until the wardship was ended; but he paid five marks pro festinando judicio suo. The fine was said to be given “willingly” (sponte). Did the use of this word make possible an evasion of c. 40 of the Charter?
[858]. Pollock and Maitland, I. 174. Cf. Ibid., II. 204, and authorities cited.
[859]. Madox, I. 455, says: “And this clause in the great Charters seems to have had its effect. For ... the fines which were paid for writs and process of law were more moderate after the making of those great Charters than they used to be before.”
[860]. Instances are collected by Sir T. D. Hardy in Rot. de oblatis, p. xxi. See also Stubbs, Const. Hist., II. 636-7.
[861]. Rot. Parl., III. 116, cited Stubbs, Const. Hist., II. 637.
[862]. Second Institute, 56.
CHAPTER FORTY-ONE.
Omnes mercatores habeant salvum et securum exire de Anglia, et venire in Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad emendum et vendendum, sine omnibus malis toltis, per antiquas et rectas consuetudines, preterquam in tempore gwerre, et si sint de terra contra nos gwerrina; et si tales inveniantur in terra nostra in principio gwerre, attachientur sine dampno corporum et rerum, donec sciatur a nobis vel capitali justiciario nostro quomodo mercatores terre nostre tractentur, qui tunc invenientur in terra contra nos gwerrina; et si nostri salvi sint ibi, alii salvi sint in terra nostra.