I.: Magna Carta favours alien Merchants.

The better opinion would seem to be that this chapter applied to foreign traders from friendly states. Attempts have been made, indeed, to argue that denizens were to benefit equally with strangers: 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. His main argument was that certain statutes of Edward III., in seeking to confirm and expand the provisions of Magna Carta, did clearly embrace denizens as well as aliens. Yet the framers of an Act 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 here Magna Carta referred chiefly, perhaps exclusively, to merchants of foreign lands. Denizens trading in England did not require those “safe conducts” which form the chief concession in this chapter. 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 in a previous part of the Great Charter. Alien merchants, however, required protection, since they had, strictly speaking, no status in the eye of the law, and held their privileges from the King. 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 and patent rolls afford 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 in England and Richard’s other lands, in time of war as well as peace.

At the commencement of John’s reign, traders resident in England collectively 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.

These arrangements were temporary. John did not intend that any 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.” 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 declaratory of 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. There were thus precedents for those rules for foreign traders, which have aroused the admiration of Montesquieu.