Part 5 — MAGNA CARTA. (continued 5)

442The Act of 1352, for example, after reciting the provision of Magna Carta at present under discussion, insisted on the necessity of “indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done.” Coke,^[814] founding apparently on the terms of these fourteenth-century statutes, makes “per legem terrae” of the Charter equivalent to “by due process of law” and that again to “by indictment or presentment of good and lawful men,” thus finding the grand jury enshrined in Magna Carta. The framers of the Petition of Right^[815] read the same words as a prohibition, not only of imprisonment “without any cause showed” but also of proceedings under martial law, thus interpreting the aims of King John’s opponents in the light of the misdeeds of King Charles, and applying to the rude system established by Henry of Anjou reforms more appropriate to the highly developed administration of the Tudors.

These glosses must be discarded; the words of John’s Charter promised a threefold security to all the freemen of England. Their persons and property were protected from the king’s arbitrary will by the rule that execution should be preceded by a judgment—by a judgment of peers—by a judgment according to the appropriate time-honoured “test,” battle, compurgation, or ordeal.

(4) The meaning of “vel.” The peculiar use of the word “vel” introduced an unfortunate element of ambiguity. No proceedings were to take place "without lawful judgment of peers or by the law of the land"—“or” thus occurring where “and” might naturally be expected. Authorities on medieval Latin are agreed, however, that “vel” is sometimes equivalent to et.^[816] Comparison with the terms of 443chapter 52 and with those of the corresponding Article of the Barons places the matter almost beyond doubt. The 25th of the Articles of the Barons had provided that all men disseised by Henry or Richard should “have right without delay by judgment of their peers in the king’s court,” giving no hint of any possible alternative to judicium parium. Chapter 52 of the Charter, in supplementing the present chapter, describes the evils complained of in both as acts of disseisin or outlawry by the king “sine legale judicio parium suorum,” leaving no room for ambiguity.

II. The Scope of the Protection afforded. The object of the barons was to protect themselves and their friends against the king, not to set forth a scientific system of jurisprudence: the judicium parium was interposed as a barrier against prosecutions instituted by the king, not against appeals of private individuals. Pleas following upon accusations by the injured party were held in 1471 not to fall within the words of Magna Carta.^[817] This was a serious limitation; but as against the Crown the scope of the protection afforded by the Great Charter was very wide indeed. Care was taken that the three-fold safeguard should cover every form of abuse likely to be practised by John.

(1) Capiatur vel imprisonetur. If these two words were literally interpreted, and the provision they embody strictly enforced, all orderly government would be at an end. When a crime has been committed, the offender must be arrested and provisionally detained, without waiting for any judgment, whether of peers or otherwise. A man 444accused of crime may, indeed, justly demand three things: a trial before condemnation, that the trial be not too long delayed, and that under some circumstances he should be meanwhile released on bail. Magna Carta goes further, promising complete exemption from arrest until judgment had been passed upon him. Here the barons extorted a wider concession than could possibly be enforced. Their excess of caution had led them to use a loose and dangerously wide phrase, which ought not to be too literally interpreted.^[818]

(2) Aut disseisiatur. Avarice was one of the most frequent motives of John’s oppressions: the whole machinery of justice was valued primarily as an engine for transferring land and money to his treasury. Crown tenants frequently found their estates appropriated by the Crown as escheats. That this was one of their grievances to which the barons attached supreme importance is shown in many ways: by the care taken in the 25th of the Articles of the Barons and in chapter 52 of the Charter to provide procedure for restoring to their rightful owners estates of which they had been improperly “disseised,”^[819] and by the terms of certain writs issued by John after the treaty at Runnymede, for example the letter of 19th June to his half-brother, the Earl of Salisbury, explaining that peace had been made on condition of the immediate restoration of all “lands, castles, and franchises from which we have caused any one to be disseised injuste et sine judicio.”^[820]

445Later versions of Magna Carta (beginning with that of 1217) are careful to define the objects to be protected from disseisin: “free tenements, franchises, and free customs.”^[821] (a) Liberum tenementum. “Free” tenements were freeholds as opposed to the holdings of villeins. None of their belongings thus protected were more highly valued by the barons than their feudal strongholds.^[822] Castles claimed by great lords as their own property are mentioned in many writs of the period—for example, in that to the Earl of Salisbury already cited—while chapter 52 of Magna Carta gives them a prominent place among the “disseisins” to be restored. (b) “Libertates” covered feudal rights and incidents of too intangible nature to be appropriately described as “holdings.” In a sense, all the rights secured by Magna Carta were “liberties”; but the word is probably used here as equivalent to “franchises,” embracing feudal jurisdictions, immunities, and privileges of various sorts, all treated by medieval law as falling within the category of “property.” (c) Consuetudines had two meanings, a broad general one and a narrower financial one.^[823] As the Charter of 1217 uses a proprietary pronoun (no freeman shall be disseised of his free customs), it probably refers to such rights as those of levying tolls and tallages. These vested interests were of the nature of monopolies throughout the territory of the lord who enjoyed them; and it follows that Coke, in treating this passage as a text on which to preach the doctrine that monopolies have always been illegal in England, aims unusually wide of his mark. Commenting on the words “de libertatibus,” he declares that “generally all monopolies are against this great charter, because they are against 446the liberty and freedom of the subject and against the law of the land.”^[824] In this error he has been assiduously followed.^[825]

(3) Aut utlagetur, aut exuletur, aut aliquo modo destruatur. The practice of placing outside the protection of the law such evildoers as could not be brought to justice had its origin in those early days when the existing machinery of law was inadequate to the work required of it. With the progress of order and organization, the criminal’s chances of evading justice became fewer; and the declaration of outlawry, which could only be made in the county court, tended to become a mere formality, preliminary to the forfeiture of the outlaw’s lands and goods. The expedient was one which recommended itself peculiarly to John’s genius; it was his deliberate policy to terrify those with whom he had quarrelled, until they fled the country; then to summon them three times before the county court to answer the charges against them, knowing well that they dared not face his corrupt and servile officers; and finally to have them formally outlawed and their property seized. Such had been the fate suffered by two of the baronial leaders, Robert Fitz Walter and Eustace de Vesci, in the autumn of 1212.^[826] Outlawry was not always, however, a mere formality in John’s reign. The man who had been outlawed was outside the pale of society; anyone might slay him at pleasure; in the grim phrase of the day, he bore "a wolf’s head" (caput lupinum), and might be hunted like a noxious beast. A reward of two marks was offered for each outlaw’s head brought to Westminster. This sum was paid in 1196 for the head of William of Elleford.^[827] The word “exiled” explains itself; and commentators have very 447properly noted the care taken to widen the scope of the clause by the use of the words “or in any other way molested.”^[828]

(4) “Nec super eum ibimus, nec super eum mittemus.” These words have been frequently misinterpreted. They must be viewed in the light of the historical incidents of the immediately preceding years; and, so read, they present no difficulties, and leave no room for ambiguity. Their object was to prevent John from substituting violence for legal process; from taking the law into his own hands and “going against them” with an army at his back, or “sending against them” in similar wise. He must never again attack per vim et arma men unjudged and uncondemned.

The meaning is plain. Yet Coke, following his vicious method of assuming the existence, in some part of Magna Carta, of a warrant for every legal principle established in his own day, has utterly misled several generations of commentators. He maintained that what John promised was to refrain from raising in his own courts actions in which he was personally interested. In elaborating this error, he drew a fine distinction between the court of King’s Bench, otherwise known as coram rege, because the king was always in theory present there, and other courts in which were present only those to whom he had delegated authority by a writ “sent” to it. Ibimus, he seems to think, applied in the former case; mittemus in the latter. To quote his own words, "No man shall be condemned at the king’s suit, either before the king in his bench, where the pleas are coram rege (and so are the words, nec super eum ibimus, to be understood) nor before any other commissioner, or judge whatsoever (and so are the words, nec super eum mittemus, to be understood), but by the judgment of his peers, that is, equals, or according to the law of the land."^[829] Coke 448is completely in error; it was the use of brute force, not merely a limited form of legal process, which John in these words renounced.

III. What Classes of Men enjoyed the Protection of Judicium Parium? No “freeman” was to be molested in any of the ways specified; but how far in the social scale did this description descend? Coke claims the villeins as free for the purposes of this chapter and of chapter I., while rejecting them for the purposes of chapter 20.^[830] His right to the status of a freeman has already been disallowed,^[831] and any possible ambiguity as to his share in the benefits of the present chapter is removed by the deliberate words of the revised version of 1217. Chapter 35 of that reissue, with the object of making its meaning clearer, inserts after “disseisiatur” the words (already discussed) “de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis.” Mr. Prothero suggests that this addition implies an advance on the privileges secured in 1215:—"It is worth while to notice that the words in which these liberties are stated in §35 of the charter of 1217 are considerably fuller and clearer than the corresponding declaration in the charter of 1215."^[832] It is safer to infer that no change was here intended, but merely the removal of ambiguity. If there is a change it is rather a contraction than an extension, making it clear that only “free” tenements are protected, and excluding carefully the property of villeins and even holdings 449of villenagium (or unfree land) belonging to freemen.^[833] Care was thus taken to make it plain beyond any reasonable doubt that no villein should have part or lot in rights hailed by generations of commentators as the national heritage of all Englishmen.^[834]

IV. Reactionary Side of these Provisions. To insist rigorously that in all cases a judgment of feudal peers, either in King’s Court or in Court Baron, should take the place of a judgment by the officials of the Common Bench and the King’s Bench, was to reverse one of the outstanding features of the policy of Henry II. In this respect, the present chapter may be read in connection with chapter 34. The barons, indeed, were not strict logicians, and probably thought it prudent to claim more than they intended to enforce.^[835] Yet a real danger lurked in these provisions; the clause was, after all allowance has been made, a reactionary one, tending to the restoration of feudal privileges and feudal jurisdictions, inimical alike to the Crown and to the growth of really popular liberties. John promised that feudal justice (as before the reforms of his father) should be dispensed in feudal courts; and, if this promise had been kept, the result would have been to check the development of the small committees destined to become at no distant date the Courts of King’s Bench and Common Pleas, and to revive the fast-waning jurisdictions of the manorial courts on the one hand and of the commune concilium on the other.^[836]

450V. The Genesis of the Chapter. The interpretation here given of this famous chapter is emphasized by a comparison of its words with certain earlier documents and events. The reigns of Richard and John furnish abundant examples of the abuses complained of. In 1191 Prince John, as leader of the opposition against his brother’s Chancellor, William Longchamp, concluded a treaty protecting himself and his allies from the very evils which John subsequently committed against his own barons. The words of this treaty of 1191 admirably bring out what Richard’s barons sought to secure, and what they sought to escape. Longchamp conceded in Richard’s name that the bishops and abbots, earls and barons, “vavassors” and free-tenants, should not be disseised of their lands and chattels at the will of the justices or ministers of the king, but that they should be dealt with by judgment of the king’s court according to the lawful customs and assizes, or by the king’s command.^[837] The magnates were not to be judged by officials whom they despised as their social inferiors and mistrusted as the paid instruments of royal tyranny; their claim to be tried by their equals in the king’s court was granted.

Now, the main subject of the arbitration, ending in the treaty from which this excerpt has been taken, was the custody of certain castles and estates. After the right to occupy each separate castle in dispute had been carefully determined, provision was then made, in the general 451words cited above, against this arrangement being disturbed without a judgment of the curia regis. Disseisin, and particularly disseisin of castles, was thus in 1191, as in 1215, a topic of special prominence.

Early in 1213 the king attempted to take vengeance upon his opponents in a manner which they are not likely to have forgotten two years later at Runnymede, and which probably influenced the wording of the present chapter. John, resenting bitterly the attitude of the northern barons who had refused alike to accompany him to Poitou and to pay scutage, determined to take the law into his own hands. Without summoning his opponents before a commune concilium of his feudal tenants, without even a trial and sentence by one of his Benches, without making any effort to investigate the justice or injustice of their pleas for refusing, he set out with an army to punish them. He had gone as far north as Northampton on his mission of vengeance when he was overtaken by the archbishop of Canterbury, a strong advocate of conciliation. On 28th August, 1213, Stephen Langton persuaded the king to defer forcible proceedings until he had obtained a legal sentence in a formal Curia.^[838] That John once again threatened recourse to violent methods may be safely inferred from the words of a letter patent issued in May, 1215, when both sides were armed for war. He proposed arbitration, and promised a truce until the arbitrators had given their award. The words of this promise are notable; since, not only do they illustrate the procedure of August, 1213, but they agree closely with the clause of Magna Carta under discussion. The words are:—“Know that we have conceded to our barons who are against us, that we shall not take or disseise them or their men, nor shall we go against them per vim vel per arma, unless by the law of our kingdom, or by the judgment of their peers in curia nostra.”^[839] Magna Carta repeats this concession in more general 452terms, substituting “freemen” for the “barons” of the writ—an alteration which necessitated the omission from the charter of the concluding words of the writ, “in curia nostra”; because the peers of freemen, other than barons, would be found, not among the barons in the king’s court, but among the freeholders in the court baron.^[840]

The words of Magna Carta, taken in connection with the treaty of 1191 and the writ of 1213, are thus seen to have a narrower meaning than that extracted from them by subsequent commentators.

VI. Later History of “Judgment of Peers.” The claim made by the barons at Runnymede was re-asserted in somewhat varying forms by the same barons or by their descendants on many subsequent occasions. The “judicium parium” was destined to enjoy a long and brilliant career, and the interpretations put upon it by the Crown and by the opposition respectively, while interesting in themselves, afford strong confirmation of the somewhat restricted estimate of the scope of the present chapter, which has been above enunciated.

(1) The baronial contention. The earls and barons, throughout the reign of John’s unhappy son, attempted to place a broad interpretation on the privilege secured to them by this chapter—claiming that all pleas, civil and criminal (such at least as were raised against them at the instance of the Crown) should be tried by their fellow earls and barons, and not by professional judges of lower rank.

(2) The royal contention. The Crown, on the other hand, while not openly infringing the charter, tried to narrow its scope. The judges appointed by the king to determine pleas coram rege, no matter what their original status might be, became (so the Crown argued) by such appointment, the peers of any baron or earl. This doctrine was enunciated in 1233 when Henry III. and his justiciar, Peter des Roches, denounced Richard, Earl Marshal, as a traitor, in a meeting (colloquium) of Crown tenants held 453at Gloucester on 14th August of that year. Thereafter, “absque judicio curiae suae et parium suorum,” as Matthew Paris carefully relates,^[841] Henry treated earl Richard and his friends as outlaws, and bestowed their lands on his own Poitevin favourites. An attempt was made, at a subsequent meeting held on 9th October, to have these proceedings reversed on the ground, already stated, that they had taken place absque judicio parium suorum.

The sequel makes clear a point left vague in Matthew’s narrative: there had been a judgment previous to the seizure, but only a judgment of Crown officials coram rege, not of earls and barons in the commune concilium. The justiciar defended the action of the government by a striking argument: “there were no peers in England, such as were in the kingdom of France,” and, therefore, John might employ his justices to condemn all ranks of traitors.^[842] Bishop Peter was here seeking to evade the provisions of Magna Carta without openly defying them, and his line of argument was that the king’s professional judges, however lowly born, were the peers of an English earl or baron.^[843] Neither the royal view nor the baronial view entirely prevailed. A distinction, however, must be drawn between criminal and civil pleas.

(3) Criminal pleas. Offenders of the rank of barons partially made good their claim to a trial by equals; while all other classes failed. A further distinction is thus necessary. (a) Crown tenants. The conflicting views held 454by king and baronage here resulted in a compromise. In criminal pleas, the Crown was obliged to recede from the high ground taken by Peter des Roches in 1233. Unwillingly, and with an attempt to disguise the fact of surrender by confusing the issue, Bracton in theory and Henry III. in practice admitted part of the barons’ demand, namely, “that in cases of alleged treason and felony, when forfeiture or escheat was involved, they should be judged only by earls and barons.”^[844] This concession was by no means based on the broad ground taken by the Charter. Bracton does not admit that the king’s justices were not “peers” of barons; but deduces their disability from the narrower consideration that the king, through his officials, ought not to be judge in his own behalf, since his interests in escheats might bias his judgment. This is the reason why, from Bracton’s day to our own, “the privilege of peers,” which gradually assumed its modern form, has never extended to misdemeanours, since such convictions never involved forfeiture or escheat to the Crown.

The manner of giving effect to this concession is noteworthy. The judicium parium was secured to earls and barons in later reigns, not merely by giving seats on the judicial bench to a few holders of “baronies,” but by bringing the case before the entire body of earls and barons in commune concilium. What the barons got at first was “judgment” by peers. The actual “trial” was the “battle,” the fellow-peers acting as umpires and enforcing fair play.^[845] Although new modes of procedure came to prevail, the Court of Peers continued its control, and the judgment of peers gradually passed into the modern trial by peers.^[846] The subject has been further complicated by the gradual growth of the modern conception of a “peerage,” 455embracing various grades of “nobles.” In essentials, however, the rights of a baron (or of any magnate of higher grade) accused of crime have remained unchanged from the days of Henry III. to our own. The privilege of “trial by peers,” whatever the reason underlying it, still extends to treason and felony, and is still excluded from misdemeanours. When competent it still takes place before a "Court of Peers"—namely, the House of Lords if Parliament is in session, and the Court of the Lord High Steward if not. Petty offences committed by peers, like those committed by commoners, come before the ordinary courts of law. Under these limitations, then, the privilege of a peer to be tried only in the House of Lords (or in the Court of the Lord High Steward) has been for centuries a reality in England for earls and barons, and also for members of those other ranks of the modern “peerage” unknown in 1215—dukes, marquesses, and viscounts.^[847]

(b) For tenants of a mesne lord, however, no similar privilege has been established, even in a restricted form. In charges of felony, as in those of misdemeanour, all freemen outside the peerage are tried, and have been tried for many centuries past, in the ordinary courts of law. There is no privileged treatment for the knight or the landed gentleman. All are judged in the same tribunals and by the same procedure. Private feudal courts never recovered from the wounds inflicted by Henry II. The clauses of Magna Carta which sought to revive them were rendered nugatory by legal fictions or simply by neglect.

(4) Civil pleas. Various attempts were made by the barons as a class, or by its influential members, to make good a claim to judicium parium in civil cases.^[848] The chief anxiety, perhaps, of the men of 1215 was to save their estates and castles from disseisin consequent on such pleas. 456Yet the barons’ efforts in this direction were entirely unsuccessful. The House of Lords (except in cases involving the dignity or status of a peer) has never claimed to act as a court of first instance in civil cases to which a peer was a party. Noble and commoner are here perfectly on a level. No “peer of the realm” has for many centuries asked to plead before a special court of his peers in any ordinary non-criminal litigation, whether affecting his real or his personal estate.

VII. Erroneous Interpretations. The general tendency to vagueness and exaggeration has already been incidentally discussed. Two mistakes of unusual persistence require more detailed notice.

(1) The identification of judicium parium with trial by jury. The words of the present chapter form the main, if not the sole, ground on which this traditional error has been based.^[849] The mistake probably owes its origin to a not unnatural tendency of later generations of lawyers to explain what was unfamiliar in the Great Charter by what was familiar in their own experience. They found nothing in their own day to correspond with the judicium parium of 1215, so far at least as affected those who were not Crown tenants; they found nothing in Magna Carta (unless it were this clause) to correspond with their own trial by jury: therefore they identified the two, interpreting the present chapter as a general guarantee of the right to trial by jury.^[850] Mr. Reeves, Dr. Gneist, and other writers long ago exposed this error, but the most conclusive refutations are those recently given by Prof. Maitland and Mr. Pike. 457The arguments by which these writers prove that “judgment by peers” is one thing and the “verdict of a jury” quite a different thing are of a somewhat technical nature;^[851] but as their importance is far-reaching they must be explained, however briefly. They seem to be mainly three in number:

(a) The criminal petty jury cannot here be intended, since it had not been invented in 1215:^[852] to introduce trial by jury into John’s great Charter is an unpardonable anachronism. (b) The barons would have repudiated trial by jury if they had known it. They desired (here as in chapter 21) that all questions affecting them should be “judged” before fellow barons, and in the normal case, by the duellum. They would have scorned to submit to the verdict of “twelve good men” of their own locality. Their inferiors must have no voice in determining their guilt or innocence. This sentiment was shared by the tenants of mesne lords. (c) Judgment and verdict were essentially different. The function of a petty jury (after it had been invented) was to answer the specific question put to it. The insurgent barons demanded more than this: they asked a decision on the whole case.^[853] The “peers” who judged presided over the proceedings from beginning to end, appointing the proof they deemed appropriate, sitting as umpires while its fulfilment was essayed, and giving a final decision as to success or failure therein.

(2) Magna Carta and arbitrary commitment. A second erroneous theory has still to be discussed. The Petition of Right, as already stated, treats Magna Carta as prohibiting the Crown from making arrests without a warrant showing the cause of detention; and the earlier commentators 458further interpreted it as making all acts of arbitrary imprisonment by the Crown absolutely illegal, although strong reasons of state might urge the detention of dangerous individuals. Hallam, for example, declares that from the era "of King John’s Charter, it must have been a clear principle of our institutions that no man can be detained in prison without trial." Yet every king of England from the days of John Lackland to those of Charles Stewart, claimed and exercised the prerogative of summarily committing to gaol any man suspected of evil designs against the Crown or Commonwealth. Strong kings used this power freely to remove those whom they wished to silence. Frequently no cause of arrest was mentioned, no explanation given, except the words "by the king’s command." During all these centuries the legality of such procedure was never challenged as contrary to Magna Carta, or on any other ground. Even the famous protest of the judges of Queen Elizabeth, asserting the existence of legal limits to the royal prerogative of commitment, proves the lawfulness of the general practice to which it makes comparatively insignificant exceptions. Such rights inherent in the Crown, dangerous undoubtedly to liberty but yet perfectly legal, were never seriously challenged until the struggle between Charles I. and his parliaments had fairly begun. Then it was that old precedents were eagerly sought out and put to new uses. Then only was it suggested, for the first time, that Magna Carta was intended to prohibit arbitrary commitments at the command of the Crown. Such was the argument deliberately put forth in 1627 during the famous proceedings known sometimes as Darnell’s case and sometimes as the case of the Five Knights. Heath, the Attorney-General, easily repelled this contention: “the law hath ever allowed this latitude to the king, or his privy council, which are his representative body, in extraordinary cases to restrain the persons of such freemen as for reasons of state they find necessary for a time, without for this present expressing the causes thereof.”^[854] The parliamentary leaders, 459however, too grimly in earnest to be deterred by logic, were far from abandoning their error because Heath had unanswerably exposed it. They embodied it, on the contrary, in the Petition of Right, which condemned the Crown’s practice of imprisoning political offenders “without any cause showed” (or only per speciale mandatum regis) as contrary to the tenor of Magna Carta—an effective contention as a political expedient, but essentially unsound in law.

CHAPTER FORTY.

Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.

To no one will we sell, to no one will we refuse or delay, right or justice.

This chapter, like the preceding one with which it is so closely connected, has had much read into it by commentators which would have astonished its original framers. The application of modern standards to ancient practice has resulted in a complete misapprehension. The sums customarily received by John, as by his predecessors, at every stage of legal procedure, were not necessarily the wages of deliberate injustice. This is evident from several considerations. Thus litigants paid fines for redress against the Crown itself; in disputes between two private parties, the sum offered by the highest bidder was by no means always accepted; sometimes justice was rendered to one litigant gratis in spite of a heavy offer by the other. Many payments, then, were not bribes to an unjust judge, but merely expedients for hastening the law’s delays, or to ensure a fair hearing for a good plea, or to obtain some unusual but not unfair expedient, such as a peculiarly potent writ or the hearing of a case in the exchequer, which would 460ordinarily have been tried elsewhere. If the royal courts charged higher rates for justice than the feudal courts, they supplied a better article. When Henry of Anjou threw open the doors of his court to all freemen who chose to pay for writs, he found a ready market. These writs differed widely in price. Some from an early date were issued whenever applied for (writs de cursu) and at a fixed sum: others were granted only as marks of favour or after a bargain had been struck. Specially quick or cogent procedure had to be specially paid for. It would thus appear that the system of John was not open to the unqualified and violent condemnation which it usually receives. Hallam’s language is too sweeping when he says: “A law which enacts that justice shall neither be sold, denied, nor delayed, stamps with infamy that government under which it had become necessary.”^[855] It was John’s abuse of the system, not the system itself, which called for condemnation; and the worst that could be said against it, according to medieval standards, was that it lent itself too readily to abuse.

If the barons really desired that John should continue to dispense royal justice in the new fields occupied by his father, but should do so without pecuniary return, their demands were unfair and even absurd; but probably they only wished a strict adherence to the customary rules and charges which they had come to expect as normal in connection with royal tribunals. The system, indeed, has many objectionable features to modern critics; but in the twentieth century, as in the thirteenth, justice cannot be had for nothing; and the would-be litigant with a good claim but a slender purse will be well advised to acquiesce in a small loss rather than incur the certainty of losing as much again in extra-judicial outlays, and the risk of losing many times more in the judicial expenses of a protracted litigation. The lack of free justice is a reproach which the men of to-day cannot with good grace fling at the administration of John.

461As the evils complained of are often exaggerated, so also are the reforms promised by this chapter of Magna Carta. John is usually held to have agreed to the abolition of payments of every sort for judicial writs and other fees of court. Justice, unlike other valuable commodities, was, it would appear, to be obtained for nothing—an ideal never yet attained in any civilized community. A body of highly trained clerks could not be kept by the king to issue writs gratuitously to all who asked them, and a staff of judges, “who knew the law and meant to keep it,” to determine pleas which would bring in no return to the Crown.

The intention of those who framed this chapter was probably to secure a more moderate and reasonable measure of reform. Abuses of the system were to be redressed.^[856] Unfortunately it was not easy to define abuses—to determine where legitimate payments stopped and illegitimate ones began. Prohibitive prices ought not to be charged for writs de cursu; but was the Crown to have no right to issue writs of grace on its own terms? Plaintiffs who had any special reason for haste frequently paid to have their suits heard quickly: was that an abuse?^[857]

Whatever the intention may have been, the practical effect of the clause was not to secure the abolition of the sale of writs and justice. The practice under Henry III. has been described by our highest authority. "Apparently 462there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry’s early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover. Some distinction seems to have been taken between necessaries and luxuries. A royal writ was a necessary for one who was claiming freehold; it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ. Elaborate glosses overlaid the king’s promise that he would sell justice to none, for a line between the price of justice and those mere court fees, which are demanded even in our own day, is not easily drawn. That the poor should have their writs for nothing, was an accepted maxim."^[858]

Probably the practice before and after 1215 showed few material differences. Some of the more glaring abuses of the system were checked: that was all.^[859] Parliament in subsequent reigns had frequently to petition against the sale of justice in breach of Magna Carta.^[860] The king usually returned a politic answer, but was careful never to surrender his right to exact large sums for writs of grace. Richard II., for example, replied: “Our lord the king does not intend to divest himself of so great an advantage, which has been continually in use in Chancery as well before as after the making of the said charter, in the time of all his noble progenitors who have been kings of England.”^[861]

463It is thus evident that Magna Carta did not put down the practice of charging heavy fees for writs. Yet this chapter, although so frequently misunderstood and exaggerated, is still of considerable importance. It marks, for one thing, a stage in the process by which the king’s courts gradually outdistanced all rivals. In certain provinces, at least, royal justice was left in undisputed possession. In these the grievance was not that there was too much royal justice, but that it was sometimes delayed or denied. Here, then, even in the moment of John’s most bitter humiliation we find evidence of the triumph of the policy of the Crown inaugurated half a century earlier by his far-seeing father.

It is not to such considerations as these, however, that this chapter owes the prominence usually given to it in legal treatises; but rather to the fact that it has been broadly interpreted as a universal guarantee of impartial justice to high and low; and because when so interpreted it has become in the hands of patriots in many ages a powerful weapon in the cause of constitutional freedom. Viewing it in this light, Coke throws aside his crabbed learning and concludes with what is rather a rhapsody than a lawyer’s commentary: “as the gold-finer will not out of the dust, threads, or shreds of gold, let pass the least crumb, in respect of the excellency of the metal; so ought not the learned reader to pass any syllable of this law, in respect of the excellency of the matter.”^[862]

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 464consuetudines, 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.

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]

465John 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 466Act 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 467in 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 468precedents 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.”

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 469restrictions 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 470shows 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 471had 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 472very 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 473this 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]

CHAPTER FORTY-TWO.

Liceat unicuique de cetero exire de regno nostro, et redire, salvo et secure, per terram et per aquam, salva fide nostra, nisi tempore gwerre per aliquod breve tempus, propter communem utilitatem regni, exceptis imprisonatis et utlagatis secundum legem regni, et gente de terra contra nos gwerrina, et mercatoribus de quibus fiat sicut predictum est.

It shall be lawful in future for any one (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and 474merchants, who shall be treated as is above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy—reserving always the allegiance due to us.

The terms of this permission for free intercourse between England and foreign lands are peculiarly wide, the exceptions being reasonable and necessary. Prisoners obviously could not leave our shores, nor outlaws return to them: the case of merchants from hostile states had already been provided for in a liberal spirit; while the temporary restriction of intercourse with the enemy on the outbreak of hostilities was eminently reasonable.

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]

475The 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 476Richard 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 477Judicature 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 478him 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.

CHAPTER FORTY-THREE.

Si quis tenuerit de aliqua eskaeta, sicut de honore Wallingfordie, Notingeham, Bolonie, Lancastrie vel de aliis eskaetis, que sunt in manu nostra, et sunt baronie, et obierit, heres ejus non det aliud relevium, nec faciat nobis aliud servicium quam faceret baroni si baronia illa esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam tenuit.

If one who holds of some escheat (such as the honour of Wallingford, of Nottingham, of Boulogne, of Lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron, if that barony had been in the baron’s hand; and we shall hold it in the same manner in which the baron held it.

This chapter reaffirms a distinction which had been recognized by Henry II. but ignored by John. Crown tenants were divided into two classes, according as their holdings had been originally granted by the Crown, or by some mesne lord whose barony had subsequently escheated. The latter class received preferential treatment from Henry II. for reasons to be immediately explained. 479The older law of escheats was too vague to prove an effective restraint on royal prerogative; the king, when a fief had escheated to the Crown, might reckon grants made by its former owner as void, refusing to acknowledge as binding upon him the titles of the sub-tenants, treating all sub-tenancies as wiped out by the mere fact that their lord’s fief had escheated to the Crown. A mesne lord, on the contrary, had no similar rights over the sub-tenants of his tenant who had suffered escheat.

The king usually mitigated in practice the full severity of this theory, confirming as of grace, or from motives of policy, or in return for money, claims which he refused to admit as matter of right. The tenants of escheated baronies were accepted as tenants in capite of the Crown.^[890] Not only so; but Henry II. did not allow them to be prejudicially affected by the change. The king would only take from them those services and feudal dues which they had been wont to render to the lord of the barony previous to its escheat. This just and lenient policy explains the origin of the division of royal tenants into two classes; tenants who held of Henry ut de corona, and tenants who held of him ut de escaeta, ut de honore, or ut de baronia (phrases used synonymously).^[891] In respect of such obligations as were heavier for ordinary Crown tenants than for tenants of mesne lords, holders of Crown fiefs ut de escaeta were placed on the more favoured footing. Two illustrations may be given. While tenants ut de corona under Henry II. had to pay large and arbitrary reliefs, those ut de escaeta paid no more than 100s. per knight’s 480fee.^[892] Nor was their obligation of “suit” (or attendance at the feudal court of the lord of the fief) to be increased. “The tenants of any honour or manor which had come by escheat to the Crown, were not suitors of the Curia Regis, but of the court of the honour or manor which had so escheated.”^[893]

John ignored this distinction, extending to tenants ut de escaeta the more stringent rules applicable to tenants ut de corona. Magna Carta reaffirmed the distinction; and, not content with enunciating a general principle, made two particular applications of it: neither reliefs nor services of former tenants of baronies were to be augmented by reason of the fact that such baronies had escheated to the Crown.^[894] Henry III.’s Charter of 1217 emphasized a third application of the general rule, declaring that he would not, by reason of an escheated barony, claim escheat 481or custody over the sub-tenants of that barony.^[895] To understand this concession, it must be remembered that under Henry III., as under Henry II., sub-tenants of baronies were still liable to have their titles reduced through the reduction by escheat of the title of their lord; while sub-tenants of those who were themselves sub-tenants were not exposed to a similar mischance by the escheat of their immediate lord. Here also the position of Crown fiefs ut de escaeta was to be assimilated to that of fiefs of mesne lords, and differentiated from that of Crown fiefs ut de corona. Sub-tenancies of escheated baronies were not to be wiped out, but to subsist, and the Crown (or its grantee) would take the escheat subject to all liabilities to, and rights of, sub-tenants.

The Crown seems not to have strictly observed this rule in practice. Article 12 of the Petition of the Barons in 1258^[896] complained that Henry had granted charters conferring rights which were not his to give (aliena jura), but which he had claimed as escheats. An act of the first year of Edward III. narrated how the Crown had confiscated from purchasers tenements held of the Crown “as of honours,” thus treating them “as though they had been holden in chief of the king, as of the Crown.” Redress was promised by the statute:^[897] but irregularities continued throughout the earlier Tudor reigns; and the first Parliament of Edward VI. passed an act to protect purchasers of lands appertaining to honours escheated to the Crown.^[898]

482

CHAPTER FORTY-FOUR.

Homines qui manent extra forestam non veniant de cetero coram justiciariis nostris de foresta per communes summoniciones, nisi sint in placito, vel plegii alicujus vel aliquorum, qui attachiati sint pro foresta.

Men who dwell without the forest need not henceforth come before our justiciars of the forest upon a general summons, except those who are impleaded, or who have become sureties for any person or persons attached for forest offences.

These provisions were intended to redress one of the many abuses connected with the administration of the oppressive forest laws.

I. The Royal Forests. For at least a century before John’s reign the word “forest” had acquired an exact technical meaning, and was applied to certain wide districts scattered irregularly throughout England, reserved to the Crown for purposes of sport. Here the wild boar and deer of various species found shelter, in which they were protected by the severe regulations of the “Forest Law.” It was the prevalence of this code which absolutely marked off the districts known as royal forests from all that lay extra forestam; and this made an accurate definition possible. A “forest” was a district where this oppressive law prevailed to the absolute exclusion of the common law which ruled outside. The forests with their inhabitants had been deliberately omitted from the unifying process, by which the rest of England had been assimilated under a uniform lex terrae. They remained in great measure at the discretion of the Crown. This exclusion of the common law from the confines of the forests was 483the root from which many evils grew. In no other sphere was the prerogative so unfettered as within the charmed circles which marked off these royal preserves from more fortunate parts of the kingdom.

From this definition of a forest as a legal, not a physical, entity, it follows that the word is far from synonymous with terms such as “wood” or “covert,” implying merely natural characteristics. A forest was not necessarily covered with trees throughout the whole or even the greater part of its extent. Miles of moorland and heath and undulating downs might be included, and even fertile valleys, with ploughed fields and villages nestling among them. The same forest, indeed, might contain many woods, some of them on royal demesne and some the property of private owners. In certain places the king’s proprietary rights might be co-extensive with his forestal rights; but, more frequently, large tracts of the solum (whether wooded or bare) were owned by freeholders, whose rights of property tended to become merely nominal, when overridden by the king’s rights of the chase. Men might live, and did live, within the boundaries, but they could enjoy no rights of personal freedom or of property inconsistent with the rules laid down by the Crown to protect its own interests. Within the imaginary line the king’s power was supreme, and he used it frankly for the preservation of beasts of the chase, not for the good government of the men who happened to dwell there. These unhappy beings were absolutely subject to the harsh forest code, a law, in the expressive words of Dr. Stubbs, “cruel to man and beast.” If accused of forest offences, they had no protection from the common law of England any more than from the law of a foreign land. It was something, however, that even in these high placeshigh places of royal prerogative, customary rules grew up, obtained authoritative recognition, and gradually hardened into laws which set some limits, however inadequate, to royal caprice. Before John’s time the forest code, as set forth in the Assize of Woodstock, and exemplified by the practice of forest officials, had taken 484its place as a definite system of law distinct from common law and canon law alike.^[899]

II. Origin of the Forests. Before the Norman Conquest the kings of England do not seem to have laid claim to any exclusive prerogative in this respect. The only ordinance of Cnut on the subject admitted to be authentic enacted merely that every man should have his own hunting, while the king should have his.^[900] The rights of the Crown, however, were strengthened and consolidated by the events of 1066, and by the hardening of feudal theory which followed. All unoccupied waste lands became royal property; and these were the natural resorts of the larger sorts of game. The king established a claim to a preferential, and, at last, to an exclusive, right to hunt the more important species of animals ferae naturae, known as "beasts of the forest"—embracing the red deer (harts and hinds), the fallow deer (bucks and does), the roe deer of both sexes, and the wild boar, with, exceptionally in one forest, the ordinary hare.^[901] The Conqueror and his sons set great store on their hunting, and warned all intruders off the wide tracts of land claimed as royal preserves. Henry I. formulated the doctrine of the forest law, and it was probably due to him that “forest” acquired its highly technical meaning. With the special meaning came the express claim to a monopoly of hunting, together with supreme and exclusive jurisdiction. The disorders of Stephen’s reign lowered the Crown’s authority in this respect as in so much else, and Henry II. found the forests much curtailed. He had no intention to acquiesce in this, but it was not till 1184 that he attempted, by the Assize of Woodstock, to formulate the rules of the forest law. In this sphere, as in so many others, the 485process of organization was completed by Henry II. building on the foundations laid by his grandfather; and the whole structure was bequeathed in a state of high efficiency to his sons. John’s attitude to the forest laws was not entirely consistent. The monk of Barnwall, whose work is incorporated by Walter of Coventry in his own, relates to John’s credit how, in the year 1212, he attempted, among other reforms meant to propitiate the people, some relaxations in the severity of the forest code.^[902] Such clemency was exceptional. More characteristic of his normal attitude was the order issued on 28th June, 1209, that hedges should be burned and ditches levelled, so that while men starved, the beasts might fatten upon the crops and fruits.^[903]

III. Forest Officials. The local magistrates who administered the rest of England were excluded from the confines of the forests by a separate set of officials. At the head of this special organization was placed, in early times, the Forest Justiciar (called the chief forester in chapter 16 of the Carta de Foresta), whose duties were divided in the year 1238, after which there were two provinces separated by the river Trent.^[904] His appointment was permanent, and his duties, which continued between the eyres, were administrative rather than judicial. He had discretionary authority to release trespassers imprisoned for offences against the forest laws.^[905] Under his general supervision each forest, or group of forests, was 486governed by a separate warden, aided by a number of petty officials known as foresters, whose duties were analogous to those of a modern gamekeeper, but with magisterial powers in addition. Wardens were of two classes—"the one appointed by letters patent under the great seal, holding office during the king’s pleasure; the other hereditary wardens."^[906] For the king’s use there was situated in or near each forest of any extent a royal residence which, in the Middle Ages, naturally took the form of a stronghold. It was convenient that the office of warden should be combined with that of constable of this neighbouring castle.^[907] “The wardens were the executive officers of the king in his forests. Writs relating to the administration of forest business, as well as to the delivery of presents of venison and wood, were in general addressed to them.”^[908]

The office was one of authority and of profit, usually paid in kind rather than by a salary. The warden often held a fief by a tenure connected with the service, and enjoyed rights and perquisites always of a valuable nature, though varying with each forest. These were sufficient to provide him with an income adequate to his position, and to allow him to find the wages of his under-keepers, who ought thus to have been paid officials. Such was the theory; as matter of fact, the foresters, instead of receiving wages, gladly paid large sums to the warden, and recouped themselves, with an ample profit, by extortions from the humble dwellers in their bailiwicks.^[909] These unpaid foresters were expressively said “to live upon the country.” They formed a powerful official class, whose excessive numbers were a source of constant complaint. They may be classified in various ways, as, into riding and walking 487foresters (of whom there were one and four respectively in the normal case), or into foresters nominated by the wardens, and foresters in fee. These last had vested interests which the Forest Charter was careful to respect; as, where chapter 14 reserved to them the right to take “chiminage,” or way-leave, denied to other types of foresters; they might still enjoy, but not abuse, the “vested rights” reserved to them.^[910]

With these professional gamekeepers there co-operated, in later times at least, several groups of unpaid magistrates appointed from the knights and freeholders of the district. Of these honorary officials, whose original function was to supply supplementary machinery for protecting the rights of the Crown, but whose position as county gentlemen with a stake in the district led them also to act to some extent as arbitrators between the king and outside parties, there were three recognized kinds. (a) Towards the close of the twelfth century officers known as verderers (usually four for each forest) become prominent. They appear in the Carta de Foresta of 1217, but had not been mentioned in the Assize of Woodstock of 1184. It is probable that the office was devised in the interval as a check on the warden’s power, as the office of coroner had been instituted in the reign of Richard I. as a drag on the sheriff. In other important respects the duties of the verderers within the forests resembled those of coroners within the rest of the county. They were not royal employees, whose whole time was absorbed by the duties of office and remunerated by fixed salaries or by perquisites, but rather local landowners whose magisterial services were unpaid, and were presumably required only on special occasions. They were responsible directly to the king, and not to the warden; and were appointed in the county court, their “election” taking place in accordance with the terms of the writ “de viredario eligendo.” They attended the forest courts and swanimotes, and it appears from chapter 16 of Henry’s forest charter that it was their duty to bring before the Justices in Eyre lists 488of all offenders indicted in the lower courts. These “rolls of attachment” were certified by their seals.^[911] (b) The Regarders were twelve knights appointed in each forest county to make tours of inspection every third year, finding answers to a series of questions known as the “Chapters of the Regard.” In this way they reviewed the Crown’s interests alike in “the venison and the vert” (the technical names for game and growing timber respectively), and reported upon all encroachments: upon hawks and falcons, bows and arrows, greyhounds and mastiffs (with special reference to “expeditation” or cutting of their claws),^[912] and generally upon everything owned by private individuals likely to harm the beasts of the forest.^[913] (c) The Agistors are mentioned in the same clause of the Assize of Woodstock which mentions the Regarders. Four knights were appointed, apparently by the warden of each forest, whose duty it was to protect the king’s interests in all matters connected with the pasturing of swine or cattle within the royal woods. For thirty days at Michaelmas pigs were turned loose with liberty to feed on the acorns and beech mast on payment by their owners of a small fixed sum per head. The four knights were required to take note of sums thus due, known as “pannage,” and to collect them at Martinmas.^[914]

Mention ought, perhaps, to be made of the private foresters also, whom owners of woods within the forests 489were obliged to appoint. These “wood wards,” as they were sometimes called, while paid for by the owner of the wood, were expected to protect the king’s interests. In particular, they must prevent trees under their care from being destroyed or wasted: the king was an interested party in these, since they formed shelter for his game.

IV. Forest Courts. The judicial side of the forest system was developed in a manner equally elaborate. Three sets of tribunals must be distinguished: (1) The Court of Attachments (or “view of attachments”) was a petty tribunal, the chief duty of which was confined to taking evidence to be laid in due course before a higher court. Exceptionally, however, it had power to inflict fines for small trespasses against the "vert"—namely, for acts of waste not exceeding the value of fourpence. It met once in every forty days,^[915] which seems in practice to have been interpreted as once every six weeks, the meetings being always held on the same day of the week.^[916] (2) Courts of Inquisitions. When a serious trespass against the forest laws was discovered, a special court was, in early days, summoned immediately to make investigations. The foresters and verderers conducted the inquiry, but it was their right and their duty to assemble the men of the neighbouring townships to help them. In strictness, apparently, all the inhabitants might be compelled to attend. In practice, it was sufficient if four men and the reeve represented each of the four adjoining villages. Whenever a “beast” was found dead in the forest twenty men had thus to assemble, to the neglect of their own affairs; and they would be made to suffer if they failed to discover the culprit. In one district at least (Somerton) the definition of beasts of the chase extended to the ordinary hare; and we read^[917] how four townships sat in solemn judgment, and found “that the said hare died of murrain, and that they know 490of nothing else except misadventure,” and how, this verdict not giving satisfaction, the townships were fined on the pretext that they were not fully represented. The real offence was their failure to disclose the culprit, which was held to imply a desire to shield him. Some alleviation of the burden of attendance was effected when, at some date posterior to 1215, special inquisitions were superseded by one general inquisition, held at regular intervals (usually every six weeks), to cover all trespasses committed during the interval. These courts of inquiry (whether special or general) only “kept” pleas without “trying” them—that is to say, they received and recorded accusations, while the judgments were reserved for the justices. (3) The courts of the forest justices in eyre. As the smaller courts, in the normal case, received verdicts and reports, without punishing the offences reported, it is evident that the whole system ultimately depended on the justices. Their eyres, however, were held at wide intervals—apparently once every seven years during the reign of Henry III. A very full attendance of forest officials and of the public was summoned to meet them. The evidence stored up as a result of the work of the smaller courts, supplemented by the Rolls of the Regard, was laid before the justices, who summarily judged “pleas of the vert,” inflicting small amercements, and “pleas of the venison,” punishing by imprisonment those previously found guilty, until they ransomed themselves by heavy fines. These eyres came to be known as “Courts of Justice Seat,” but not until long after the reign of John. No juries were present, nor were they required; the justices punished offenders who had already been convicted by juries at a lower court.

These three classes of tribunals exercised functions analogousanalogous to those of a modern court of law. In addition, there should be mentioned two other kinds of assemblies which performed duties administrative rather than judicial, as these terms are now understood. (4) The 491regard, held once every three years—not by Crown officials, but by what was practically a jury of local knights—has already been referred to. These tours of inspection, sometime known as visitationes nemorum,^[918] and sometimes even as “views of expeditation,” were of great practical importance. The resulting report was placed before the justices of eyre as evidence of forest trespasses. (5) Three times every year, meetings, known from an early date as “Swanimotes,” were held to regulate the pasturing of swine and cattle within the royal woods. A fortnight before Michaelmas the agistors met the foresters and verderers to provide for the agisting of the king’s woods, a process which lasted for thirty days—fifteen before and fifteen after Michaelmas. At Martinmas the agistors collected the pannage in presence of the same officials. A third meeting of officials was held in June to make arrangements for excluding cattle of all kinds from the king’s woods during the period when the deer were fawning, but at this the presence of the agistors was not required.^[919]

The Carta de Foresta applies to these assemblies, and to none other, the name "Swanimotes"—a word whose correct use has been the subject of much discussion, and whose ambiguity was in later centuries the source of many errors. Its authoritative appearance in 1217 affords strong evidence of the original sense which it bore. In later days, however, it was more loosely used, being applied to inquisitions, and also to courts of attachment. This has led to much confusion, while its derivation has also been the subject of discussion. Bishop Stubbs derived it from the word “swain,” on the supposition that courts so-called were normally resorted to by the general body of swains or country people. As matter of fact (whatever doctrine may be correct philologically), these 492assemblies were connected, not with “swains,” but with “swine.” The peasantry were specially exempted; whereas all three meetings sought to regulate the entry or exclusion of pigs from the woods.

V. Chases, Parks, and Warrens. Forests were necessarily royal monopolies, and must on this and other grounds be distinguished from three things with which they are apt to be confused. (1) A “chase” was a district which had once been a royal forest, but which had, without any formal act of disafforestation, been granted by the king to a private individual. The result was to transfer the monopoly of hunting therein from the Crown to the grantee, while somewhat modifying the nature of the rights transferred. The full force of the forest laws was abated, although the extent and direction of this diminution was nowhere strictly defined, varying from chase to chase. Such provisions of the forest law as continued to be binding were no longer enforced by royal officials and royal courts, but by those of the magnate, who thus obtained a franchise over the chase and the royal beasts it contained.^[920] (2) A “park” was any piece of ground enclosed with a paling, or hedge, whether with the object of protecting wild beasts or otherwise, and the right to effect this was quite independent of royal grant. If the owner of a manor in the near neighbourhood of a royal forest wished to keep deer of his own, which he might kill at pleasure, whether for sport or for food, without infringing the forest laws, he had to stock an enclosure with beasts legally his own, and to keep them under conditions which made confusion with the king’s deer impossible.^[921] In 1234 the barons asserted their right to keep private gaols for poachers taken in their parks (in parcis et vivariis suis), but the king refused to allow this.^[922] (3) A “warren,” which might belong either to the king or to any private owner, carried with it exclusive rights of hunting within its bounds all wild animals, except those technically defined as “beasts of the forest.”^[923] In practice it chiefly embraced 493hares and foxes.^[924] Neither parks nor warrens were protected by the forest law, but by that part of the common law which related to theft and trespass. This was, however, vigorously administered for the preservation of game, so as to bear with increasing hardship on the common people, securing a monopoly of hunting to the land-owning aristocracy, and passing gradually into the modern Game Laws.^[925] Dr. Stubbs held, apparently, too narrow a conception of warren when he read it in its modern sense of “a rabbit warren.”^[926] It was a tract of land wherein exclusive rights of hunting lesser game (together with rabbits and other vermin) were preserved to its owner. The king might, and did, have his warrens and warreners, just as any subject might; and these royal warreners, like all Crown officials, great and small, might inflict cruel injustice on the common people;^[927] but their power of doing harm was less than that of foresters, as they were dependent on the common law. The forest code did not apply even to royal warrens.^[928]

VI. Forest Rights and Forest Grievances. It is not difficult to understand the store which the kings of England set upon their forests. They prized them not merely as a pleasure ground, but also as a source of revenue. Fines and amercements, individually small, but amounting to a large sum in the aggregate, flowed into the Exchequer. Great as were the pleasure and the profit to the king, the burden and loss inflicted upon the people, freeholders and peasantry alike, were greater out of all proportion. Not only were the best interests of the forest-dwellers deliberately sacrificed to the royal hunting, not only were the legal fines swelling the exchequer rendered trebly 494burdensome by the galling and wasteful manner of their collection; but the men who paid them were the victims of illegal exactions in addition. These grievances may be considered under seven heads:—(1) The extent of the forests. The Crown constantly strove to extend the boundaries; the people to contract them. The Conqueror and Rufus each “afforested” wide tracts of land, of which the New Forest is only one example. In the charter of 1100, Henry bluntly declared:—“I retain in my hand, by the common consent of my barons, my forests as my father had them.” This consent of the magnates, if more than a form and willingly given, would suggest that the barons were allowed some share in these royal rights of hunting which led them here to make common cause with the Crown. Henry, as a matter of fact, retained not only the forests of his father but those of Rufus as well, and created new ones of his own.^[929] Stephen, while retaining the forests of the two Williams, renounced those added by Henry I. Under Henry II., afforestation began anew.^[930] The words of the Great Charter leave no room to doubt that Henry of Anjou had extended the boundaries of Stephen’s forests; and that both Richard and John carried the process further, bringing within the circle of the cruel law, not only waste and moor, but also many “woods” belonging to private owners. These royal encroachments were the more oppressive, occurring as they did in an age when population was rapidly increasing and seeking an outlet in the reclamation of waste places on the debateable land which surrounded the forests. The vagueness of the frontier aggravated this grievance, as it was often 495difficult for the honest reclaimer of barren land to know whether he was committing a trespass for which he might be punished by a crushing fine.^[931]

(2) The monopoly of hunting. The Crown not only extended the bounds, but also made the law more stringent. Such privileges of hunting as the barons had were restricted as big game became scarce. The Crown’s insistence on a strict monopoly of the more exciting forms of the chase may not seem an important grievance, but it was one likely to exasperate the sport-loving nobles. John, in 1207, admitted that his barons still retained some vestiges of their right to share in the hunting of royal beasts.^[932] These rights were formally recognized and defined in 1217. Chapter 11 of the Carta de foresta allowed each magnate when passing through a forest to take one or two beasts at sight of the foresters, or, if these officials could not be found, then after blowing a horn to show that nothing underhand was being done.

(3) Interference with rights of property. Freeholders whose lands lay in districts which the king was successful in afforesting, retained their freeholds, but their proprietary rights lost half their value. They could not root out trees, to clear their own lands for cultivation; for that was to commit an assart. They could not plough up waste land or pasture (even outside the covert) and turn it into arable, nor build a mill, nor take marl or lime from pits, nor make fishponds, nor enclose any space with hedge or paling; for these acts of ownership were purprestures. They could not destroy a tree or lop off branches (except under stringent conditions), without being guilty of waste.^[933] They could not 496agist their woods until a fortnight after Michaelmas, when the agisting of the king’s demesnes was over (thus reserving for him the best market and “pannage dues”).^[934] Heavy tolls were, under the name of “chiminage,” taken from carts and sumpter-horses passing through the woods. In all these and many other ways, rights of private property in forests were so restricted as to become valueless. The Great Charter endeavoured to strike at the abuse of these Crown rights by providing machinery for the abolition of “evil customs.” The Carta de foresta entered more into detail. Not only were past trespasses of all three kinds,—wastes, purprestures, and assarts to be condoned, but the law was altered for the future. The long list of purprestures was materially curtailed: it was made lawful for a man to construct on his own freehold in the forest, mills, ponds, lime pits, ditches, and arable lands, provided these were not placed within the covert (that is in wooded places fit to shelter game) and did not infringe on any neighbour’s rights.^[935] They might also keep eyries for breeding falcons and other birds of prey, and take honey found on their own ground—rights previously denied to them.^[936]

(4) Interference with the pursuits of the poor. If the rich suffered injury in their property, the poor suffered in a more pungent way: stern laws prevented them from supplying three of their primary needs, food, firewood, and building materials. On no account could they kill deer; while difficulties surrounded the taking of timber from the woods.^[937] It is true that even the Assize of Woodstock allowed them the privilege of “estovers,” that is of cutting firewood, but only under stringent rules. All waste was strictly prohibited; and “waste” was a wide 497word covering, not merely wanton destruction, but all sales or gifts of logs; while nothing could be taken except at sight of the forester, whose consent would not be procured for nothing. This may be illustrated from a period sixty years later than John’s reign: Hugh of Stratford, who paid two and a half marks of yearly rent to the Warden for his post, recouped himself by taking “from the township of Denshanger for every virgate of land one quarter of wheat in return for their having paling for their corn and for collecting dead wood for their fuel in the demesne wood of the lord king; and from the same town he took from every house a goose and a hen in every year.”^[938] A small sum might be taken for every load of sticks; the men of Somerset complained that “from the poor they take, from every man who carries wood upon his back, sixpence.”^[939] Dwellers within or near the forests were also prohibited from keeping dogs, unless their value for other pursuits, as well as for hunting, was destroyed by the removal of three claws of the forefoot.^[940] Nor could they keep bows or arrows, so necessary for their protection amid the dangers which beset the inhabitants of lonely districts throughout the Middle Ages.^[941] No tanner or bleacher of hides could reside in the forest districts, unless within the walls of a borough.^[942]