CHAPTER TWENTY-THREE.

Nec villa nec homo distringatur facere pontes ad riparias, nisi qui ab antiquo et de jure facere debent.

No community or individual[616] shall be compelled to make bridges at river banks, except those who from of old were legally bound to do so.

The object of this chapter is obvious; to compel the king to desist from his practice of illegally increasing the extent of an obligation—admitted as perfectly legal within the limits defined by ancient usage—the obligation to keep in good repair all existing bridges over rivers. John might continue to exact what his ancestors had exacted; but nothing more. So much lies on the surface of the Charter, which explains, however, neither the origin of the obligation nor the reasons which made John keen to enforce it.

I. _Origin of the Obligation to make Bridges._ The Norman kings seem to have based their claim to compel their subjects to maintain such bridges as were necessary, upon an ancient threefold obligation,[616] (known as the _trinoda necessitas_) incumbent on all freemen during the Anglo-Saxon period. Three duties were[617] required of all the men of England in the interests of the commonweal: attendance on the fyrd or local militia; the making of roads, so necessary for military purposes; and the repairing of bridges and fortifications. Gradually, as feudal tendencies prevailed, the obligation to construct bridges ceased to be a personal burden upon all freemen, and became a territorial burden attached to certain manors or freeholders. In other words, it was made a part of the services incidental to the feudal tenure of particular estates. The present chapter, in forbidding the illegal extension of this burden to communities or individuals other than those who rendered it as part of the services due for their lands, seems to be only a particular application of the general principle enunciated in chapter 16. The evil complained of, however, required special treatment because of the prominence into which it had been forced by John, who had abused powers vested in his ancestors for national purposes, in order to further his own selfish pleasures, in a manner so well known to his contemporaries as not to require specification in Magna Carta.

Footnote 616:

The word “_villa_,” used at first as synonymous with “manor,” came to be freely applied not only to all villages, but also to chartered towns. Even London was described as a _villa_ in formal writs. “_Homo_,” though often loosely used, was the word naturally applied to a feudal tenant. The version given by Coke (_Second Institute_, p. 30) reads “_liber homo_,” which is also the reading of one MS. of the _Inspeximus_ of 1297 (25 Edward I.). See _Statutes of the Realm_, I. 114.

Footnote 617:

See _Rot. Claus._, 19 Henry III., cited by Moore, _History and Law of Fisheries_, p. 8.

II. _The King’s interest in the Repair of Bridges._ John’s motives for making an oppressive use of this prerogative must be sought in a somewhat unexpected quarter, in the king’s rights of falconry, and in his frequent need for ready means of crossing rivers in pursuit of his valuable birds of prey. Whenever John proposed to ride a-fowling, with his hawk upon his wrist, he issued letters compelling the whole country-side to bestir themselves in the repair of bridges in every district which his capricious pleasure might lead him to visit. Several such writs of the reign of Henry III. are still extant. The exact words of these vary somewhat, but a comparison of their terms leaves no room for doubt either as to the nature of the commands they conveyed or the reasons for issuing them. Addressed to the sheriffs of such counties as the king was likely to visit, at a convenient interval beforehand, these letters gave instructions that all necessary steps should be taken in preparation for the king’s hawking. The writs contained two commands, an order for the repair of bridges, and a prohibition against the taking of birds before the king had enjoyed his sport. Both points are well brought out in a Letter Close of Henry III., dated 26th December, 1234, which directed "all bridges on the rivers Avon, Test, and Itchen to be repaired as was wont in the time of King John, so that when the lord King may come to these parts, free transit shall lie open to him for “riviating” (_ad riviandum_) upon the said rivers." The writ then proceeded to command the sheriff to issue a general prohibition against any one attempting “to riviate” along the river banks, previous to the coming of the king (“_ne aliquis riviare praesumat per riparias illas antequam rex illic venerit_”).[618]

Footnote 618:

See _Rot. Claus._ 19 Henry III., cited in Moore, _History and Law of Fisheries_, p. 8.

The Latin verb, for which “to riviate” has been coined as an English equivalent, has long been the subject of misconception; but conclusive evidence has recently been adduced to prove that it referred to the medieval sport of fowling, that is to the taking of wild birds in sport by means of hawks and falcons.[619]

Footnote 619:

See Moore, _Ibid._, 8–16. Two links in the chain of evidence are worthy of emphasis:—(_a_) Writs of 13th November and 1st December, 1234, order repair of bridges for the transit of the king “along with his birds” (_cum avibus suis_). (_b_) A writ of 28th October, 1283, gives _aves capere_ as the equivalent of _riviare_. This writ contains a licence to the Earl of Hereford “during the present winter season to _riviate_ and to take river-fowl of this nature (_riviare et aves ripariarum hujusmodi capere_) throughout the rivers Lowe and Frome which are in defence (_in defenso_).”

These writs prove that the Crown claimed and exercised a monopoly of, or at least a preferential right to, this form of sport along the banks of certain rivers; and these “preserved” rivers were accordingly said to be placed “in defence” (_in defenso_), a phrase which occurs in many of the writs referred to, as well as in a later chapter of Magna Carta.[620]

Footnote 620:

_I.e._ c. 47 (_q.v._). Any district or object over which the king or a private individual had sole rights of any kind to the exclusion of the public might apparently be said to be placed _in defenso_ in regard to the object of such rights. In this case, the word “riviation” makes the object plain.

Two distinct hardships were thus imposed on the nation by the king’s exercise of his rights of falconry, one negative and the other positive. In the interval between the king’s intimation and his arrival at the indicated rivers, the sport of all other people was interfered with, while the obligation to reconstruct otherwise useless bridges was a more material burden on every village and individual exposed to it. A wise king would be careful to use such rights so as to inflict on his subjects a minimum of hardship. John, however, knew no moderation, placing “in defence” not merely a few banks at a time, but many rivers indiscriminately, including those which had never been so treated in his father’s day, and demanding that all bridges everywhere should be repaired, with the object, not so much of indulging a genuine love of sport, as of inflicting heavy amercements on those who neglected prompt obedience to his commands. Great consternation was aroused by John’s action at Bristol in 1209 when he prohibited the taking of birds throughout the entire realm of England.[621]

Footnote 621:

R. Wendover, II. 49 (R.S.), “_Ibi capturam avium per totam Angliam interdixit._”

Both of these grievances, thus augmented by the policy of King John, were redressed by Magna Carta, though in different clauses. In the present chapter John promised not to impose the burden of repairing bridges on those from whom it was not legally due.[622] Chapter 47, in which he agreed to withdraw his interdict from all rivers which he had placed “in defence” during his own reign, and also to disafforest all forests of his own creation, was entirely omitted in the Charter of 1216;[623] but in 1217 it reappeared in a new position and expressed in different words. The provision of the original chapter 47, relating to forests, was relegated to the _Carta de Foresta_, then granted for the first time, and the other part of that chapter, relating to falconry, was naturally enough joined to a clause which redressed another grievance growing from the same root. Chapter 19 of Henry III.’s Charter, in its final form, repeats word for word the terms of the present chapter of John, while in chapter 20 Henry proceeds to declare “that no river shall in future be placed in defence except such as were in defence in the time of King Henry, our grandfather, throughout the same places and during the same periods as they were wont in his day.”

Footnote 622:

Article 11 of the Barons had demanded that no _villa_ should be _amerced_ for failure to make such illegal repairs, thus illustrating at once John’s policy, and the point of connection between this provision and the immediately preceding chapters which dealt with amercements.

Footnote 623:

It was, however, included among the subjects reserved for further consideration in “the respiting clause” (c. 42 of 1216) under the words “_de ripariis et earum custodibus_.” Cf. _supra_, 169.

This express prohibition seems to have prevented the Crown from extending its prerogatives any further in this direction. Yet Henry III. had ample opportunities of harassing his subjects by an inconsiderate use of the rights still left to him. By issuing wholesale orders affecting every preserved river which he had an admitted right to put “in defence,” he might inflict widespread and wanton hardships. In many cases dubiety existed on the question of fact as to what banks had actually been “defended” by Henry II., and a vague general command which named no special rivers left in cruel uncertainty the district to be visited. Henry III., accordingly, either yielding to pressure or in return for grants of money, made important concessions. After the year 1241, he invariably specified the particular river along whose banks he intended to sport, and sometimes even announced the exact date at which he expected to arrive. As no writs appear subsequent to 1247, it is possible that he was induced to abstain altogether from the exercise of a right which inflicted hardships on the people out of all proportion to the benefits conferred on the king.[624]

Footnote 624:

Moore, _Ibid._, 9.

The Crown, however, had not renounced its prerogatives, and several writs still exist to show that Edward I. occasionally allowed his great nobles to share in the royal sport. Licences to this effect were granted in 1283 to the Earl of Hereford and to Reginald fitz Peter, and in the following year to the Earl of Lincoln. On 6th October, 1373, Edward III. by his writ commanded the sheriff of Oxfordshire to declare that all bridges should be repaired and all fords marked out with stakes for the crossing of the king “with his falcons” during the approaching winter season.[625]

Footnote 625:

Moore, _Ibid._, 12.

III. _Erroneous Interpretations._ There is nothing astonishing in the fact that a pastime so passionately followed as falconry was in the Middle Ages, should have left its traces on two chapters of Magna Carta, the full import of which has not hitherto been appreciated by commentators, partly from failure to bring both of them together, but chiefly because of the too precipitate assumption that the words _ad riviandum_ and _in defenso_, occurring in writs and charters, referred to _fishing_ rather than to fowling.[626]

Footnote 626:

The _Mirror of Justices_ is cited as first suggesting this. See Moore, _Ibid._, 12–16, where the gradual development of the error is traced. Coke, _Second Institute_, 30, was misled by the _Mirror_, and he has in turn misled others.

It has been confidently inferred that the framers of Magna Carta when forbidding additional banks to be put “in defence,” equally as when demanding the removal of “weirs” from non-tidal waters,[627] were influenced by a desire to preserve public rights of fishing against encroachment by the king or by private owners. In either case the motives were entirely different. In the Middle Ages, fishing was a means of procuring food, not a form of sport: to depict John and his action-loving courtiers as exponents of the gentle art of Isaac Walton is a ridiculous anachronism.

Footnote 627:

Cf. _infra_, under c. 33.

It is quite true that the value of fish as an article of diet led in time to legislation directed primarily to their protection; but apparently no statute with such a motive was passed previous to 1285.[628] It is further true that in the reign of Edward I. it became usual to describe rivers, over which exclusive rights of fishing had been established by riparian owners, as being _in defenso_;[629] but rivers might be “preserved” for more purposes than one. From Edward’s reign onwards, however, rights of fishing steadily became more valuable, while falconry was superseded by other pastimes. Accordingly a new meaning was sought for provisions of Magna Carta whose original motive had been forgotten. So early as the year 1283 the words of a petition to the king in Parliament show that “fishing” had been substituted for “hawking” in interpreting the prohibition referred to in chapter 47 of John’s Charter. In that year the men of York complained that Earl Richard had interfered with their rights of fishing by placing _in defenso_ the rivers Ouse and Yore, a proceeding they declared to be “against the tenor of Magna Carta.”[630] This error, the first appearance of which thus dates from 1283, has been accepted for upwards of five hundred years by all commentators on Magna Carta. The credit for dispelling it is due to Mr. Stuart A. Moore and Mr. H. S. Moore in their _History and Law of Fisheries_, published in 1903.

Footnote 628:

This was 13 Edward I., stat. 1, c. 47, cited Moore, _Ibid._, 173.

Footnote 629:

_Ibid._, p. 6.

Footnote 630:

_Ibid._, p. 16.