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]]
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]]
[863]. So far all authorities are agreed, though a difference of opinion exists as to the source of these prerogatives. Thus (a) Stephen Dowell, History of Taxation and Taxes in England, I. 75, considers that the duties on imports and exports were in their origin of the nature of voluntary dues paid by foreign merchants in return for freedom of trade and royal protection; (b) Hubert Hall, Customs Revenue of England, I. 58-62, considers the prerogative as merely one aspect of purveyance, that is of the right of the king to requisition what he required for his own needs and those of his household. Many such “theories” are anachronisms. The prerogative was founded on fact—on the brute force at the Crown’s disposal. Kings took what they could, and left future ages to invent theories to justify or explain their actions.
[864]. See State Trials, II. 407-475, and especially 455-6.
[865]. E.g. 2 Edward III. c. 9 and 14 Edward III., stat. 1, c. 21.