The Magna Carta Project

Clause 41 was principally a concession to the city ofLondon, which by opening its gates to the rebellious barons on 17 May 1215 made it at least temporarily impossible for King John to resist their demands for sweeping reforms.

The reigns of Richard I and of John himself had seen heavy new customs duties imposed on merchants trading to and fromEngland, while the wars of both kings against Philip II ofFranceand his allies led to frequent restrictions on the movement of people and goods. Under this clause, foreign merchants were to be able to trade freely withEngland, paying only the traditional customs on the goods they imported and exported. In times of war they were to be treated in the same way that English merchants were treated in the hostile territories. Clause 41 remained in force after 1215, and seems to have been generally observed.

Clause 41 was a large part of the price demanded by the city ofLondonfor supporting the barons against King John. Since the mid-1190s England’s foreign trade had been exploited by the crown as a source of revenue, through the imposition of a series of new customs duties, which raised a good deal of money, on top of the relatively light duties which were traditionally paid. The movements of foreign merchants, too, had been subjected to constant restriction and interference, dictated by the policy of Richard I, and then John, with regard to their countries of origin. When thecountyofFlanders, for instance, changed sides from being an ally ofEnglandagainst the king ofFranceto supporting the French against the English, its merchants were often discriminated against in English ports. London’s position at the centre of English trade made such policies highly unpopular with its leading citizens, and in 1215 they were able to demand, and obtain, a ban on new customs duties, and permission for merchants from overseas to trade freely withEngland. It was accepted that that freedom might have to be curtailed in wartime, but the action taken against foreign traders inEnglandwould depend on the way English merchants were treated in the countries with whichEnglandwas at war. The clause remained in force after 1215, and no new customs duties of any significance were imposed for another sixty years.

Citation

(a) Context and purpose

As the king and the barons competed for the support of London in the early summer of 1215, John’s charter for the capital of 9 May granted the citizens only the freedom to elect their mayor and a general confirmation of their existing rights, the latter qualified by a reservation of his chamberlain’s authority to exploit the city’s trade.1  It was nowhere near enough.  On the 17th the baronial forces entered London, and a month later clause 41 granted two of the demands made by the Londoners in a list drawn up earlier in the year, that `evil’ customs and exactions (`maltotes’) should be abolished, and that foreign merchants should be able to come freely to England.2  It differed in some respects from the corresponding clause among the Articles of the Barons, however, in particular by suggesting that thought was given to trade outside London, for whereas article 31 spoke only of giving merchants freedom to come and go and to buy and sell, and of their freedom from novel customs duties, the Charter extended their safe conduct specifically to cover the whole country.  Clause 41 also clarified the Article’s remit to show that it was essentially concerned with foreigners.  This was spelt out in a concluding sentence about the treatment of merchants in wartime, one whose provisions were developed in the Clause 42 of the Charter, providing for a general freedom of movement between England and other countries, and the restrictions which might need to be imposed upon it.

There was a limit, however, to the amount of rethinking, or rearranging, that the king’s clerks, or the men instructing them, were prepared to do.  Among the Articles, nos. 31 and 33, which became Magna Carta clauses 41 and 42, were separated by no. 32, primarily concerned with scutages and aids, but with a concluding passage about urban liberties, led by those of London, tacked on to it.  In the Charter this Article became clauses 12 and 13, the latter in the form of a general statement guaranteeing their ancient privileges to London and other towns, and saying nothing about taxes.  It might thus appear that Clause 13 would have been better placed where it was before, rather than being left among a group of clauses dealing with fiscal levies.  Its separation from Clauses 41 and 42 may not, however, have been as illogical as might at first sight appear, for its coming next to Clause 41 might well have drawn attention to the way in which it was bound to nullify at least some of the latter’s effects.  The Londoners wanted foreign merchants for the goods they brought and for the stimulus given to their own trade by the commodities which aliens made available, both for retail and for supplying to their best customer, the royal court, whose needs the Londoners largely met even when it was not resident in or near the city.  In his life of St Thomas of Canterbury, written in the early 1170s, William FitzStephen listed some of the costly goods which overseas traders imported, naming wine, gold, jewels, olive, oil, spices, furs, incense and silks, to which can be added cloth, wax (for seals as well as candles) and dyestuffs.3  But the Londoners had no intention of allowing foreigners greater access to English markets than they could avoid, and Clause 13, by safeguarding their traditional privileges, helped them to prevent overseas merchants from engaging in retail trade and – Clause 41’s provision for freedom to buy and sell throughout the country notwithstanding – from using London as a base for commercial activity elsewhere in England.

(b) Early customs

English kings, for their part, had long valued trade, and where possible promoted it, for the goods it made available, and also for the revenues it could provide.  Both Offa and Cnut had obtained concessions for English traders from continental rulers,4 and more recently, in 1180, Philip II of France and Henry II had granted security in identical terms to merchants from each other’s lands.5  That did not, however, extend to freedom from import and export duties. The `ancient and rightful customs’, as these had become established in England by the late twelfth century, consisted essentially of lastage, an impost payable on exports, scavage, a levy on imports, and a duty on the import of wine, payable by the barrel, which was supplemented by the king’s right of `prise’, a form of purveyance which originally entitled him to take what he wanted against future payment, but which by around 1200 became a fixed due.6  A `maltote’ was any unwarranted, or simply innovative, tax.  It was probably in the latter sense that John himself granted French merchants coming into Normandy freedom from the `maltote’ which they had had to pay during the reign of Richard I.7  Richard’s reign had also seen the first nation-wide English customs levy, which was doubtless also seen as a `maltote’.8  Payable at the rate of a tenth, it was probably imposed in 1195, possibly very suddenly, since in 1196 Simon of Kyme was recorded as having fined by 1000 marks `for the ships and merchandise of foreign merchants which he allowed to depart from Boston fair.’9  Presumably they had been permitted to leave without paying the levy expected from them.  The tenth remained in force until the end of Richard’s reign, and its yield was considerable - £549. 4s. 2d. from Norfolk and Suffolk in 1195, £379. 4s. from London a year later, with the latter supplemented by a further £96. 6s. 8d. from merchants paying for permission to import and sell woad.10  That Hugh Oisel, a merchant from Ypres who became a citizen of London, should in 1196 have with his brother offered fifty marks for a two-year licence to trade to England without paying the tenth, illustrates its value and impact.11

Needing support at the beginning of his reign, John discontinued the tenth, which would have sorted ill with his charter for London of 17 June 1199, in which he granted (essentially in confirmation of rights first given by Henry I) `that all the citizens of London be quit of toll and lastage and all other customs throughout all our lands and throughout the seaports on this side of the sea and overseas ...’.12  Less than a year later, on 5 April 1200, he notified the Londoners, and the officials in other ports, that all foreign merchants were to be free to come to and go from England with their wares, paying `the due and rightful and wonted customs’.  Shortly afterwards an identical grant was made directly to the merchants of Flanders and Hainault.13  All were to enjoy the same peace in England as English merchants enjoyed in the lands from which the foreign traders came, a cautionary note which foreshadowed the proviso of 1215, and, like that proviso, stemmed from the principle of reprisal which throughout early medieval Europe gave a measure of protection to merchants by placing members of an offending community in danger of retaliation in the country to which they traded.14  To be effective, reprisals commonly needed government support, which would have to be paid for – in 1203 one Nicholas Morel owed £100 `for arresting merchants of Ghent who took £300 from him at Ghent.’15

(c) The fifteenth and other levies

The grants of 1200 were made during the weeks leading up to the Anglo-French treaty of Le Goulet, concluded on 22 May.  Almost exactly two years later the French king once more attacked the duchy of Normandy, and John, needing money and now feeling no obligation to refrain from exploiting Anglo-French commerce, had by 13 July 1202 imposed a new levy of a fifteenth, specifically directed against merchants from France and Flanders (which from having been allied to England had now come increasingly under French control).16  Although the rate was lower than Richard I’s tenth, the yield was impressive – just over £4950 was accounted for between July 1202 and November 120417 – and it is not surprising that in an ordnance issued at Winchester on 4 June in either 1203 or 1204 (the dating is ambiguous) John should have extended and regularized it, appointing groups of officials in every seaport to collect and record its issues.18  Foreign merchants may have been targeted at first, but from the fact that in 1206 the citizens of London paid 200 marks to be quit of it, it would appear that the fifteenth came to be demanded from English merchants as well.19

Since the terms of a safe conduct granted to foreign merchants two days after the issue of the Winchester regulations show that the fifteenth was exacted on top of, not instead of, the usual customs,20 it may be assumed that those who paid it would have regarded the former, too, as a `maltote’, and its abolition was accordingly provided for in the Anglo-French truce agreed upon in October 1206, which laid down that merchants should come and go paying only `the lawful ancient customs’.21  This clause may not have taken immediate effect – it seems likely that the `maltote’ [mala tolta] from which one Richard de Haverland was exempted in December 120622 was still the fifteenth – but on 13 July 1207 the bailiffs who had been administering and collecting the fifteenth were instructed to submit their final accounts for its issues.23  It seems clear, however, that John was reluctant to lose it, and looked for substitutes.  A duty on woad, which was either continued (it was recorded in 1202)24 or revived, was prominent among them, no doubt because this important dyestuff was principally imported from Picardy, part of the county of Flanders.  An account submitted by the keepers of the seaports in 1211, covering their receipts between Michaelmas 1210 and the following mid-March, contained nearly £380 from woad, another £313 12s. from customs on other goods (as recorded, entirely foodstuffs), £5. 7s. 9½d. from wine, at 4d. the barrel, and £7. 11s. 9½d. received for licensing ships to depart.25  The last item points to the restrictions which John’s increasingly embattled régime was now placing on the movements of merchants and their goods, partly as a means of harassing the king’s enemies, and partly as a means of raising money by charging for release from the constraints thus imposed.  Presumably it was for essentially fiscal reasons that when two merchants from Bayonne in Gascony received letters of safe conduct to come to England to trade in February 1214, it was stipulated that their passports were to be valid only once.26

(d) The treatment of merchants

As this last case shows, many licenses to trade were granted to individuals.  In 1202, for instance, two men, undoubtedly foreigners but described as `merchants of the earl of Leicester’, were granted permission `to go and return and trade, with all their things and wares, throughout our land of England ...’, between 11 July and 29 September, and they were also exempted from paying the fifteenth,27 and two years later Nicholas the Dane of Lund, styled `our demesne merchant’ - probably meaning that he had denizen status28 – was declared quit of all customs duties, on condition that every time he came to England he brought the king a goshawk (birds of this kind from Scandinavia were highly valued).29  Such privileges were usually paid for in cash, as when Simon Curlevach agreed in 1208 to pay £5 for being allowed to take five lasts of hides to St-Valéry in Normandy and come safely back,30 but sometimes also in kind.  Thus in 1208 Hugh of Wells had given a barrel of wine for licence to export 600 horse-loads of grain,31 and a year later one Gerard le Sentier gave two barrels for letters patent licensing him to import a whole shipload of wine.32  But those involved were no less likely to be whole communities, or even nations.  In November 1202 merchants from Portugal were given a general license, and protection, to come to England with their wares, on condition that they paid the usual customs,33 while in 1210, and again in 1213, John followed Richard I’s example by making a generous grant of privileges to the men of Cologne, permitting them to buy and sell throughout the realm, at fairs, in London, and everywhere else, though `saving the liberty of our city of London’ (possibly meaning that they would have to negotiate their own terms with the Londoners).34

Inevitably the king’s finances, and also his political stance, determined his commercial policy.  In May 1213 merchants from Scotland, still feeling the effects of King William’s humiliation by King John in 1209, were granted `free transit’ throughout England with their goods, which were to be released by the officials who had sequestrated them,35 but in August 1214, shortly after the battle of Bouvines had brought Flanders securely under French control, order was given for the arrest of all Flemish merchants in England along with their goods.36  A further order later in the month allowed merchants from Scotland and the lands of John’s ally the German emperor to leave English ports, but the Flemings remained in custody.  English merchants were permitted to go wherever they wanted, but they had first to find security that they would not sail to the lands of the king’s enemies.37  On 26 April 1215, as the political crisis came to a head, a general order commanded that no ships should leave English ports, and that those at sea should return home.38  Throughout John’s reign, his government both imposed heavy taxes on trade and interfered continually with the movements of merchants.

(e) Enforcement

In the immediate aftermath of the issue of Magna Carta, John’s government seems to have taken steps to enforce clause 41.  On 21 July the French king was notified that the authorities in London had been commanded to allow French merchants to leave the city with their goods, and that if this was not done then the French would be entitled to take retaliatory action against the Londoners,39 while on 8 September, in what appears to have been a direct reference to this clause, John informed King Philip that he had quitclaimed all `maltotes’ and would not take them in future.40  Four days later French merchants were given a safe-conduct to trade with England, also with an assurance that `we will not take `maltotes’ or have them taken by our men’.41  But at the same time hostile action against English merchants brought retaliation, very much as prescribed by the Charter – on 8 September order was given for the arrest of Flemish merchants and their goods, until restitution was made to a merchant of Rye of his ship and chattels, seized at Damme on the orders of the countess of Flanders.42  Even after French knights began to arrive in England to support the baronial cause, some French and Flemish traders continued to receive kid-gloved treatment; on 13 April 1216, for instance, Antony of Ghent was given a safe-conduct to come to England with his merchandise, along with an assurance that if war broke out with Flanders then he and his wares would be allowed to leave the country.43  But others seem to have been less gently handled, for on that same day, as John responded to the threat of a large-scale French invasion, the sheriff of Lincolnshire was ordered to have a record made of the goods of French merchants at Lincoln and Grimsby, `until we have taken advice as to whether we should return them to them ...’.44  A month earlier the arrest had been ordered at Yarmouth, and no doubt elsewhere, of Scottish ships, merchants and goods.45  English merchants, even when trading within England, had to find security that they would not `resort to land in enmity to the king, or to the king’s enemies ...’.46  Not for the first or last time, commercial interests took second place to political ones, while still remaining resilient in difficult circumstances.