All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. And if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land.
Merchants and merchandise, like all other classes and interests, had suffered severely from John’s greed, unrestrained by regard for the rights of others. The control of commerce was specially reserved for the king’s personal supervision. No law or traditional usage trammelled him in his dealings with foreign merchants, who were dependent on royal favour, not on the law of the land, for the privilege of trading and even for personal safety. No alien merchant could enter England or leave it, nor take up his abode in any town, nor move from place to place, nor buy and sell, without paying heavy tolls to the king. This royal prerogative proved a profitable one.[[863]]
John increased the number and amount of such exactions, to the detriment alike of foreign traders and of their customers. Magna Carta, therefore, sought to restrain this branch of prerogative, forbidding him to exact excessive tolls for removing obstacles of his own creating. This benefited the merchants by securing to them certain rights, which may perhaps be analysed into three: safe-conduct, that is protection of their persons and goods from violence; liberty to buy and sell in time of peace; and a confirmation of the ancient and just rates of “customs,” with the abolition of John’s “evil tolls” or additional exactions.
So far, the general purport of the enactment is undoubted; but discussions have arisen on several important points, such as the nationality of the traders in whose favour it was conceived; the exact nature of the “evil tolls” abolished; the motives for the rules enforced; and the relations between denizens and foreign traders.
I. Magna Carta favours alien Merchants. The better opinion would seem to be that this chapter applied primarily to foreign traders from friendly states. Attempts have been made, indeed, to argue otherwise, namely, that denizens were to benefit equally with strangers, Magna Carta holding the balance even between them. Such was the purport of a learned discourse delivered in the House of Commons by William Hakewill, Barrister of Lincoln’s Inn, in 1610, during the debate on John Bate’s case.[[864]] His main argument was that certain statutes of the reign of Edward III.,[[865]] in seeking to confirm and expand the provisions of Magna Carta, did clearly embrace denizens as well as aliens. Yet the framers of an Act in the fourteenth century may well have misunderstood the tenor of John’s Charter, or may have deliberately altered it.
Intrinsic and extrinsic evidences combine to create a strong presumption that Magna Carta referred chiefly, perhaps exclusively, to merchants of foreign lands.[[866]] Denizens trading in England did not require those “safe conducts” which form the chief concession in this chapter; and their rights of buying and selling were already protected in another way; for independent traders were unknown, all merchants being banded into guilds in the various towns whose privileges (“omnes libertates et liberas consuetudines”) were guaranteed to them in a previous part of the great Charter.[[867]] It was the alien merchants who required special protection, since they had, strictly speaking, no status in the eye of the law, and held their privileges from the king, who, moving along the line of least resistance, frequently preferred to overtax them rather than his own subjects.[[868]] The Crown might vouchsafe the protection they needed either willingly or grudgingly, and under conditions to be altered at discretion, but never unless well paid for. The policy of Henry II. and his sons was to favour merchant strangers, but to exact in return the highest dues possible, restrained only by an enlightened self-interest which stopped short at the point where trade would languish by becoming unprofitable. The Exchequer Rolls and the Patent Rolls afford many illustrations of how individual traders or families made private bargains with the Crown for trading privileges. In 1181 Henry obtained two falcons for granting leave to export corn to Norway. In 1197, a certain Hugo Oisel owed 400 marks for licence to trade in England and in Richard’s other lands in time of war as well as of peace.[[869]]
At the commencement of John’s reign, traders resident in England seem collectively to have obtained confirmation of their privileges. That king issued Letters Patent to the Mayor of London, to the magistrates of many smaller towns, and to the sheriffs of the southern counties of England, directing them, in terms closely resembling those of Magna Carta, to allow to all merchants of whatsoever land safe coming and going, with their wares.[[870]]
These arrangements were merely temporary. John did not intend that any such general grant should prevent him from exacting further payments from individuals as occasion offered. For example, Nicolas the Dane promised a hawk each time he entered England, that he might come and go and trade “free of all customs which pertain to the king.”[[871]] Such customary dues, at the usual rates, were not abolished by the Charter, but only the arbitrary additional payments for which there was no warrant.
On this point, then, Magna Carta contained no innovations, and the same is true of its provision for reprisals against traders from lands where English merchants were ill-treated. On the outbreak of war the Charter directs that merchants of the enemy’s nation should be detained until the king ascertained how his own subjects were treated in the enemy’s territory. This is merely declaratory of the previous practice, of which an illustration may be found in the terms of a writ of August, 1214, which directed the bailiffs of Southampton to detain all Flemings and their goods pending further instructions.[[872]] There were thus precedents for those rules for foreign traders, which have aroused the admiration of Montesquieu.[[873]]
II. Customs and Tolls. “Consuetudines” is in this passage used in its narrower financial sense, relating to those duties on imports and exports which are still specially called “customs” at the present day, and to various local dues as well. “Tolls” when not stigmatized as “evil tolls” would seem to be practically synonymous with these customs. The Crown had at first taken from the defencelessness of merchants, whatever, on each occasion, it thought fit. Practice soon established rules as to the normal rates considered fair in various circumstances. When a ship-load of foreign wine arrived, the normal toll was “one cask from a cargo of ten up to twenty casks, and two casks from a cargo of twenty or more.”[[874]] From other merchandise a share was claimed of a fifteenth or sometimes a tenth of the whole. Such tolls, if originally a species of blackmail, had in John’s day come to be regarded as a legitimate branch of royal revenue. Any arbitrary increase, however, was condemned by public opinion, and ultimately by Magna Carta, as a “mala tolta.”