The Magna Carta Project

Citation

An extension of Clause 41, licensing merchants to trade freely from and with England, except in times of war, Clause 42 granted the same right to come and go to everyone, while underlining the king’s claim on the allegiance of those who went abroad, and intimating that in wartime such freedom to travel was liable to be briefly restricted.  It also, in an elaboration upon its first appearance in the 33rd of the Article of the Barons, explicitly denied its benefits to offenders against the king’s peace and the inhabitants of lands hostile to the king, just as Clause 41 did to merchants in certain circumstances (a limitation repeated at the end of Clause 42).  Among the Articles, no. 33 was separated from no. 31, which became Clause 41, by an article which, although principally concerned with scutages and aids, closed with a sentence upholding the liberties of London, `both by water and by land’.  This last provision, which was separated from the rest of the article to become the basis of Clause 13 in Magna Carta, when taken together with the articles on either side of it, might seem to suggest that all three were essentially mercantile in their associations, and were largely intended to benefit the city of London.  It is hard to see, however, that Clause 42 gave the Londoners any more than they could already claim under Clause 41, as, indeed, Clause 42 appears to acknowledge in its closing sentence, referring directly back to its predecessor, and it seems likely that its benefits were intended to be more widely spread.

Inevitably, the clause was conditioned by England’s being largely an island-kingdom, and by the opportunities which this geographical accident created for keeping watch over boundaries which were to a considerable extent also coastlines.  Evidence for attempts to prevent people from entering and leaving the kingdom is in fact scanty, but it is clear that mechanisms developed to control the movements of merchants could also be used to supervise the comings and goings of others, whoever they might turn out to be – the unfortunate king’s reeve from Dorchester who confronted three ships off the south coast of Wessex around the end of the eighth century, and tried to send them to the king’s residence, thought he was dealing with merchants, only to discover too late that they were Vikings.1 This unfortunate incident apart, early recorded instances of supervision and control very largely involved ecclesiastics, which is doubtless mainly a reflection of their constant recourse to – and the crown’s consequent suspicion of – the papal curia in Rome.  When Archbishop Anselm set out for Rome in November 1097, he was treated `like a fugitive and a common criminal’, not being allowed to embark until all his luggage had been opened and searched on the beach, probably for potentially incriminating documents.2  Fifty years later, when another archbishop, Theobald, wanted to go to a council summoned by the pope to Rheims, he had to cross the Channel in a small boat, because King Stephen not only forbade him to go, but also had the ports watched by his officials.3  Angevin kings appear to have been particularly suspicious of anything that might allow papal jurisdiction to ramify at the expense of their own.  During his protracted lawsuit (1158-63) for the Sackville inheritance, Richard of Anstey thought it necessary, or prudent, to obtain permission from Henry II in person before appealing to the pope,4 and it was with the king’s consent, that English bishops attended a council held by that pope at Tours in 1163 - Alexander III thought it expedient to thank the king afterwards, and to promise not to treat this as a precedent.5  It was in line with this outlook that the fourth of the following year’s Constitutions of Clarendon laid down that `It is not lawful for archbishops, bishops and beneficed clergy of the realm to depart from the kingdom without the lord king’s leave’, and that those who did go abroad should, if the king so wished, give security that they would do nothing contrary to royal interests.6  Following his quarrel with Henry II to which the Constitutions gave rise, Thomas Becket himself fled the country in November 1164, despite the king’s order that the shores everywhere should be watched.7

Archbishops and bishops, who usually travelled with retinues, were doubtless relatively easy to detect.  Individuals, whether ecclesiastics or laypeople, must have had a better chance of making an unobserved crossing, though the possibility of severe punishment for abetting, or at least failing to prevent, such movements must have done much to encourage alertness in the ports.  According to Edward Grim, when Becket made an earlier attempt to flee abroad in 1164, the ship carrying the archbishop turned back into port after the sailors agreed that they were foolish to risk their own and their families’ ruin by ferrying the king’s enemy out of the realm.8 Becket’s six-year exile, accompanied as it was by a continuous papal involvement in efforts to resolve his dispute with the king, seems to have stimulated further efforts at control, to the extent that late in 1169, facing the prospect of ecclesiastical censure, Henry effectively put the whole of England out of bounds to the pope’s intervention, in ordinances which included a ban on men in orders entering or leaving the kingdom without a passport.9  When Becket returned from exile in December 1170, the sacrist of Canterbury, who had travelled separately, was refused entry to the kingdom because he had come without the necessary letters,10 and William Fitz Stephen, the archbishop’s biographer, thought it outrageous that Thomas should have been cross-questioned at his landing about the bona fides of his retinue, in case any of its members was a foreigner – `Such demands, whether for letters or an oath [of fealty], should be and are accustomed to be demanded of those who have probably come to spy out the weaknesses of the kingdom.  It is unheard of for such demands to be made of the archbishop of Canterbury ...’.11

Becket’s murder, on 29 December 1170, led to the abandonment of the Constitutions of Clarendon, but the armoury of control which Henry II had assembled was not therefore dismantled, and in particular he and his successors continued to try to regulate, and where necessary forbid, access to, and approaches from, the papal curia.  In 1178, for instance, papal legates, coming to summon prelates from Britain and Ireland to the Lateran Council convoked for the following year, needed Henry’s permission to fulfil their mission, and the legate who travelled to Scotland and Ireland was obliged to swear that he would do nothing harmful to the kingdom of England.12 Early in the next reign Richard I refused to let his half-brother Geoffrey, archbishop-elect of York, send agents to Rome to collect his pallium, and allowed severe restrictions to be placed on the activities of the papal legate, Giovanni di Anagni.13  It is not surprising that under John, the years of an interdict upon the realm (1208-1214) and of the king’s excommunication (1209-1213) should have seen a drastic fall in the number of appeals to Rome and of appointments of papal judges-delegate,14 but even before then such contacts were liable to curtailment at the king’s pleasure.  Writing to John in February 1203, Innocent III complained that the king, furious at not getting all his petitions accepted, `publicly prohibited any citizen of your realm from attempting to receive a legate or nuncio of the Apostolic See anywhere in your kingdom and especially in England ...’, and that John was doing his utmost to prevent judges-delegate from trying cases, even though, according to Innocent, `we have always been careful to safeguard your jurisdiction ...’.  As far as the ban on legations was concerned, the pope conceded that John had subsequently withdrawn his decree, as `thoughtlessly issued’, but proceeded to administer a stiff rebuke, in words which show clearly how he regarded royal policy as essentially arising from the king’s own erratic personality - `it is unheard of for any prince to act in such a manner, a king of your understanding ...’.15

The king’s lay subjects were probably liable to similar restrictions, and on very similar grounds, but the evidence is very meagre.  In 1180 Randulf Fitz Walter, a Yorkshire landowner, was required to pay £100 `because he left the king’s land without licence and that he may be quit of an amercement for a man whom he pledged’; but it is impossible to say which part of his double offence did most to incur this substantial penalty, which it took Randulf five years to pay, and the pipe roll entry gives no hint as to where Randulf went to incur the king’s displeasure.16  William de Longchamp, bishop of Ely, was an ecclesiastic, but it was for his conduct of secular affairs as justiciar, the effective head of the government in Richard I’s absence, that he was disgraced in 1191.  He fled to Dover, but his efforts to leave the kingdom were thwarted by an order from the king’s justices to the burgesses of the town, who were clearly expected to keep watch over their own port, that he was not to be allowed to cross the Channel, while it was with the permission of Count John that he finally left.17

According to Howden’s account of Longchamp’s departure, John dedit illi licentiam transfretandi, which could mean that a written document was involved. Safe conducts for merchants occur regularly among the records of John’s reign, but there are very few references to other lay-people needing royal consent to their movements.  The letters of protection granted in January 1201 to Warin Fitz Gerald, a chamberlain of the exchequer who was named as one of the king’s faithful counsellors when John granted Magna Carta (he deserted the king a year later), may have had something of the character of a passport – Warin was about to go on pilgrimage – but could have been only an extension of the protection granted to crusaders.18  The king’s power to requisition shipping for his own purposes, as he did, for instance, in Wales and the Cinq Ports in the late winter and early spring of 1208,19 or to keep ships in port, as in March 1213, when the bailiffs of Portsmouth were instructed to allow no vessels to leave without a special order,20 was doubtless capable of being used with regard to individuals other than merchants, even though no clear instances have been noticed of its being so.

Although it is possible that the pressure for Clause 42 came primarily from the circle of Archbishop Langton, its potential application was too wide for it to be convincingly presented as purely, or even mainly, benefiting the church.21  It seems more likely that, as with several other clauses, it was primarily intended to bring regularity and precision into situations where routines had yet to be established.  How uncontrolled the existing state of affairs could be is shown by a lawsuit of 1210, in which two citizens of Cologne complained that they had been arrested and imprisoned in London, and claimed that their letters of protection, which were ignored by the sheriffs, had been issued not by the English king but by John’s nephew and ally Otto, the German emperor, as if any such letters had equal validity in England.22  There is certainly no recorded evidence that the men had been authorised to come to England by anyone acting in King John’s name.  The additional constraints added to the original Article may point to the same conclusion, though they may also have been in some way related to the presence among the king’s opponents in 1215 of two leading barons who had been outlawed and were also closely associated with John’s enemies, with William the Lion, king of Scots, in the case of Eustace de Vesci, and with Philip II, king of France, in that of Robert Fitz Walter.  Possibly the addition was partly intended to underline the now-lawful status of these men, and of others like them.  But whatever their purpose, perhaps as a result of the civil war of 1215-17, which saw invasions of England from both Scotland and France, it must have been thought unwise for the government to lose the opportunities for supervision afforded by control of an island’s coasts, and correspondingly desirable that the king should retain a general power to control the movements of men into and out of England.  Consequently the whole Clause was dropped from later reissues.