Although the provision is thus quite general in its scope, embracing all classes and ranks of men, it was peculiarly welcome to the clergy, as enabling them without a royal permit to proceed to Rome, there to prosecute their appeals or press their claims for preferment. Thus considered, it contains a virtual repeal of article 4 of the Constitutions of Clarendon of 1166, which forbade archbishops, bishops, and parsons (personæ) of the kingdom to leave that kingdom without the king’s licence. The grant of freedom of intercourse in 1215 thus opened a door for the Church to encroach on the royal prerogative; and for that reason it was omitted from the reissue of 1216, never to be replaced. A boon was thus withdrawn from all classes from fear that it might be abused by the ecclesiastics. Henry III. took advantage of the omission in order to restrain the movements of clergy and laity alike. Those who left the country without the royal licence had frequently to pay fines.[[882]]
The stringency with which this prerogative was at first enforced tended, however gradually, to become more lax. The king still preserved the right, but only exercised it by means of proclamations over particular classes or on special occasions, the inference being that all not actually prohibited were free to come and go as they pleased. Thus in 1352 Edward III. had it proclaimed throughout every county of England that no earl, baron, knight, man of religion, archer, or labourer, should depart the realm under pain of arrest and imprisonment.[[883]] The fact that Edward found it necessary to issue such an ordinance, autocratic and abhorrent to modern ideals as its terms now appear, points to a decrease of royal power, as compared with that exercised by Henry II., John, or Henry III. A further curtailment of prerogative may be inferred from the terms of a Statute of Richard II., which, in confirming the king’s power to prohibit free egress from England, does so, subject to very wide exceptions. Under its provisions the Crown had the right to prohibit the embarkation of all manner of people, as well clerks as others, from every port and other place upon the sea-coast under pain of forfeiture of all their goods, "except only the lords and other great men of the realm, and true and notable merchants, and the king’s soldiers," who were apparently in 1381 free to leave without the king’s licence, although earls and barons had been prohibited in 1352.[[884]] Even if this statute confers on magnates, merchants, and soldiers freedom to go abroad without royal licence (which is doubtful) the powers of veto reserved to the Crown were still, to modern ideas, excessive. It remained in force, however, until 1606, when it was repealed under somewhat peculiar circumstances. After the union of the crowns, King James, anxious to draw the bond closer, persuaded his first English parliament to abrogate a number of old laws inimical to Scottish interests. It was in this connection that the Act of Richard II. was declared (in words, however, not limited to Scotland) to be “from henceforth utterly repealed.”[[885]] Coke stoutly maintains that this repeal left intact the Crown’s ancient prerogative, not founded upon statute but on the common law, of which power the already-cited Proclamation of Edward III. had been merely an emanation. He almost seems, therefore, to argue that the Crown in the seventeenth century retained authority which extended precisely over those classes mentioned in the ordinance of 1352.
In any view, the prerogative of interfering with the subject’s freedom to depart from England has never been completely taken from the Crown. Yet, in the course of centuries a great change has been gradually effected: the onus has been shifted from the individual who wished to leave the kingdom, on to the king who wished to detain him. While, under John or Henry III., the subject required before embarking to obtain a licence from the Crown, under later kings he was free to leave until actually prohibited by a special royal writ. Coke[[886]] speaks of the form originally used for this purpose, a form so ancient in his day as to be already obsolete, known as Breve de securitate invenienda quod se non divertet ad partes externas sine licentia regis. This was superseded by the simpler writ Ne exeat regno which is still in use.[[887]] The sphere of this writ was restricted and altered: it ceased to be an engine of royal tyranny and was never issued except as part of the process of a litigation pending in the Court of Chancery. Regarded always with suspicion by the courts of common law as a creature of prerogative, it was for centuries the special instrument which prevented parties to a suit in equity from withdrawing to foreign lands. Some uncertainty exists as to the proper province of these writs at the present day, since the Judicature Acts have merged the Court of Chancery in the High Court of Justice.[[888]]
The use of such writs in this restricted sphere could not be reckoned an oppressive interference with the liberty of the subject. The perfect freedom to leave the shores of England and return at pleasure, accorded by John’s Magna Carta, but immediately withdrawn as impracticable for that age, has in the course of centuries been fully realized.[[889]]
Two phrases, occurring in this chapter, call for comment, although for different reasons:—one as embodying an ancient legal doctrine, now obsolete, the other as anticipating a characteristically modern point of view. (1) Salva fide nostra. This short-lived clause of Magna Carta, in granting freedom to leave the country, very properly provided that mere absence from England should absolve no one from allegiance to his king. The old doctrine of nationality was indeed a very stringent one. The rule which prevailed was Nemo potest exuere patriam. Everyone born in the land owed allegiance to its king—and this tie continued unbroken until severed by the death of subject or sovereign; it could be broken in no other way. According to this maxim, a man born a subject of the king of England must remain his subject wherever he wandered. A breach of the duties of allegiance, which were consequent thus on the mere accident of birth, might expose the offender to the inhuman horrors inflicted upon traitors.
A series of statutes, culminating in the Naturalisation Act of 1870, have entirely abrogated this ancient doctrine, and substituted one of perfect liberty. Any native of Great Britain is now free to become the subject of any foreign state; and the mere fact of his doing so deliberately and with all necessary legal formalities, denudes him of his British nationality, severs the tie of allegiance, and frees him from the operation of the law of treason. The words “salva fide nostra” no longer apply.
(2) Propter communem utilitatem regni. The charter, in placing a restriction on the right of free egress, during the actual continuance of hostilities, declared that such restriction was to be imposed for the common good of the kingdom, thereby enunciating what is generally regarded as a very modern doctrine: John was to take action, not for his own selfish ends but only pro bono publico.
[882]. E.g. Coke (Third Institute, p. 179) cites from Rot. finium of 6 Henry III. and Rot. claus. of 7 Henry III. the following case: “Willielmus Marmion clericus profectus est ad regem Franciae sine licentia domini regis, et propterea finem fecit.” The practice had apparently been much the same prior to Magna Carta. E.g. Madox (I. 3) cites from Pipe Roll of 29 Henry II. how “Randulfus filius Walteri reddit compotum de XX marcis, quia exivit de terra Domini Regis.”
[883]. See Coke, Ibid., citing the Close Roll of 25 Edward III.