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CHAPTER TWENTY. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et villanus eodem modo amercietur salvo waynagio suo, si inciderint in misericordiam nostram; et nulla predictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de visneto.
A freeman shall not be amerced for a slight offence, except in accordance with the degree of the offence; and for a grave offence he shall be amerced in accordance with the gravity of the offence, yet saving always his “contenement”; and a merchant in the same way, saving his “merchandise”; and a villein shall be amerced in the same way, saving his “wainage”—if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighbourhood.
This is the first of three chapters that seek to remedy abuses connected with royal amercements. To understand what these were requires some knowledge, not only of the system of legal procedure of which they formed part, but also of previous systems.
Three stages of criminal law.
The efforts made in medieval England to devise machinery for suppressing crime took various forms. Three periods may be distinguished.
The earliest method of redressing wrongs was retaliation, or the bloodfeud. The injured man, or his heir, took the law into his own hands and exacted satisfaction by the aid of battle–axe or spear.
At some early, but uncertain, date it became customary to accept money in lieu of vengeance. The new practice, at first exceptional, was gradually extended. It was made compulsory to offer solatium in money, and, finally, to accept it when offered. The right of private revenge was lawful only after the aggrieved individual had demanded, and been refused, compensation at the recognized rate. Various codes formulated rules for determining the amounts thus payable. Each man had his money value or wer (from the simple freeman, reckoned at 200 shillings, up to prelates and lay nobles, estimated at much higher figures). Slighter wrongs could be compensated by smaller sums, known as bots: so much for a foot, or an eye, or a tooth. The King or other lord exacted further payments from the wrong–doer, under the name of wites, which are sometimes explained as the price charged by the magistrate for enforcing payment of the wer or bot; sometimes as sums due to the community, on the ground that every evil deed inflicts a wrong on society in general, as well as upon its victim.
A third system succeeded. This is found in working order soon after the Norman Conquest, but was still regarded as an innovation at the accession of Henry I. It is known as the system of amercements. None of our authorities contains an entirely satisfactory account of how the change took place; but the following suggestions may be hazarded. The sums demanded from a wrong–doer, who wished to buy himself back under protection of the law, became increasingly burdensome. He had to satisfy claims of the victim’s family, of the victim’s lord, of the lord within whose territory the crime had been committed, of the church, mayhap, whose sanctuary had been invaded, of other lords who could show an interest of any sort, and finally of the King as lord paramount. It became practically impossible to buy back the peace once it had been broken. The Crown, however, stepped in, and offered protection on certain conditions: the culprit surrendered himself and all that he had to the King, placing himself “in misericordiam regis,” and delivering a tangible pledge (vadium) as evidence and security of the surrender.1 Strictly speaking, the man’s life and limbs and all that he had were at the King’s mercy.2 The Crown, however, found that it might defeat its own interests by excessive greed; and generally contented itself with moderate forfeits. Rules of procedure were formulated: the amounts taken were regulated partly by the wealth of the offender, and partly by the gravity of the offence. Further, it became a recognized rule that the amount should be assessed by what was practically a jury of the culprit’s neighbours; and attempts were also made to fix a maximum.3
Thus a sort of tariff grew up, which the Crown usually respected in practice, without abandoning the right to demand more. Such payments were known as “amercements.” For petty offences, men were constantly placed “in mercy”: for failure to attend meetings of hundred or county; for false or mistaken verdicts; for infringements of forest rights. The Charter of Henry I. (chapter 8) had promised a remedy, drastic indeed but of a reactionary and impossible nature. His promise, to abolish altogether the system of amercements (then of recent introduction) and to revert to the earlier Anglo–Saxon system of bots and wites, was made only to be broken.4
Magna Carta and Amercements.
No one could expect to pass through life (perhaps hardly through a single year) without being subjected to amercements.1 Three chapters of Magna Carta accordingly are occupied with remedies. Chapter 20 seeks to protect the ordinary layman; chapter 21, the barons; and chapter 22, the clergy—thus anticipating the conception of three estates of the realm;—commons, nobles, clergy. The “third estate” is analysed for purposes of this clause, into three subdivisions—the freeman, the villein, and the merchant.2
Amercement of freeholders.
The great object of the reforms here promised was to eliminate the arbitrary element; the Crown must conform to its own customary rules. With this object, safeguards were devised for freemen. (a) For a slight offence, only a petty sum could be taken. This was nothing new: the records of John’s reign show that, both before and after 1215, very small amounts were often taken: threepence was a common sum. (b) For grave offences, a larger sum might be assessed, but not out of proportion to the offence. (c) In no case could the offender be pushed absolutely to the wall: his means of livelihood must be saved to him. Even if all other effects had to be sold off to pay the amount assessed, he was to retain his “contenement,” a word to be afterwards discussed. (d) Another clause provided machinery for giving effect to these rules. The amount must be fixed, not arbitrarily by the Crown, but by impartial assessors, “by the oath of honest men of the neighbourhood.” In the reissue of 1216 “honest men” became “honest and lawworthy (legalium) men,” a purely verbal change.3
There were apparently two steps in the fixing of amercements. (a) In the case of a commoner, the penalty under normal circumstances would be assessed provisionally by the King’s justices on circuit, with the assistance of the sheriff. It was their duty to see that the amount was proportionate to the gravity of the offence.1 (b) Thereafter, the sheriff or his serjeants, in full county court, with the assistance of twelve neighbours, taxed the amercements, reducing them in accordance with their knowledge of the wrong–doer’s ability to pay.2
The Pipe Rolls afford illustrations of the practice. In the fourteenth year of Henry II.3 a certain priest (who, in this respect, stood on the same footing as a layman) had been placed “in misericordiam” of 100 marks by William fitz John, one of the King’s justices, but that sum was afterwards reduced to 40 marks “per sacramentum vicinorum suorum.” It seems a safe inference that, on the priest pleading poverty, the question of his ability to pay was referred to local recognitors with the result stated. This priest was subsequently pardoned altogether “because of his poverty.”4
Magna Carta in this chapter, treating of the amercements of freeholders, merchants and villeins, makes no reference to the part played by the King’s justices, but only to the functions of the jury of neighbours.5 All this is in marked contrast with the provisions of chapter 21, regulating the treatment to be accorded to earls and barons who made default.
Amercement of merchants.
The trader is in the same position as the liber homo, except that it is his “merchandise,” not his “contenement,” that is protected. The word is capable of two somewhat different shades of meaning. Narrowly interpreted, it may refer to his wares, the stock–in–trade without which the pursuit of his calling would be impossible. More broadly viewed, it might mean his business itself, his position as a merchant. The difference is of little practical import: in either view the Charter saves to him his means of earning a living.1
Some boroughs, indeed, had anticipated Magna Carta by obtaining in their own charters a definition of the maximum amercement exigible, or in some cases of the amercing body. Thus, John’s Charter to Dunwich of 29th June, 1200,2 provides that the burgesses shall only be amerced by six men from within the borough, and six men from without. The capital had special privileges: in his Charter to London, Henry I. promised that no citizen in misericordia pecuniae should pay a higher sum than 100s. (the amount of his wer).3 This was confirmed in the Charter of Henry II., who declared “that none shall be adjudged for amercements of money, but according to the law of the city, which they had in the time of King Henry, my grandfather.”4 John’s Charter to London of 17th June, 1199, also referred to this;5 and the general confirmation of customs, contained in chapter 13 of Magna Carta, would further strengthen it. In all probability, the earlier grant covered trivial offences only (such as placed the offender in the King’s hands de misericordia pecuniae). The present chapter is wider in its scope, applying to grave offences also, and embracing merchants everywhere, not merely the burgesses of chartered towns.
Amercements of villeins.
The early history of villeins as a class is enveloped in the mists that still surround the rise of the English manor. Notwithstanding the brilliant efforts of Mr. Frederic Seebohm6 to find the origin of villeinage in the status of the serfs who worked for Roman masters upon British farms long before the Teutonic immigrations began, an older theory still holds the field, namely, that the abject villeins of Norman days were descendants of free–born “ceorls” of Anglo–Saxon stock. On this theory, most of England was once cultivated by Anglo–Saxon peasant proprietors grouped in little societies, each of which formed an isolated village. These villagers were slowly sinking from their originally free estate during several centuries prior to 1066: but the process of their degradation was completed rapidly and roughly by the Norman conquerors. The once free peasantry were crushed down into the dependent villeins of the eleventh and twelfth centuries.
Whichever theory may be the correct one, the position, economic, legal, and political, of villeins in the thirteenth century has been ascertained with certainty. Economically they were part of the equipment of the manor of their lord, whose fields they had to cultivate as a condition of being left in possession of acres, in a sense, their own. The services exacted, at first vague and undefined, were gradually specified and limited. They varied from century to century, from district to district, and even from manor to manor; but at best the life of the villein was, as a contemporary writer has described it, burdensome and wretched (graviter et miserabiliter). After his obligations were discharged, little time was left him for the ploughing and reaping of his own holding. The normal villein possessed his virgate or half virgate (thirty or fifteen scattered acres) under a tenure known as villenagium, sharply distinguished from the freeholder’s tenures. He was a dependent dweller on a manor which he dared not quit without his master’s leave.
It is true that he had rights of a proprietary nature in the acres he claimed as his own; yet these were determined, not by the common law of England, but by “the custom of the manor,” or virtually at the will of the lord. These rights, such as they were, could not be pled elsewhere than before the court customary of that manor over which the lord’s steward presided with powers wide and undefined. Politically his position was peculiar: allowed none of the privileges, he was yet expected to perform some of the duties, of the freeman. He attended the shire and hundred courts, and acted on juries, thus suffering still further encroachments on the scanty portion of time he might call his own, but preserving for a brighter day a vague tradition of his earlier liberty.
This chapter extends some measure of protection to villeins. Two questions, however, may be asked:—What measure? and from what motive? One point is clear: the villeins were protected from the abuse of only such amercements as John himself might inflict, not from the amercements of their manorial lords; for the words used are “si inciderint in misericordiam nostram.” A villein in the King’s mercy shall enjoy the same consideration as the freeholder or merchant in similar plight—his means of livelihood being saved to him. The word now used is neither “contenement” nor “merchandise,” but “waynagium,” the meaning of which has been the subject of discussion. Coke defined it as “the contenement of a villein; or the furniture of his cart or wain,” and Coke has been widely followed. The word, however, has apparently no connexion with wains or wagons, but is merely a Latinized form of the French word “gagnage,” of which Godefroy gives five meanings: (a) gain; (b) tillage; (c) crop; (d) land under the plough; (e) grain. Professor Tait is inclined to read the word, in its present context, as equivalent either to “crops” or to “lands under cultivation,” and to translate the clause “saving his tillage.”1 What was the motive of these restrictions? It is usually supposed to have been clemency, the humane desire not to reduce a poor wretch to absolute beggary. It is possible, however, to imagine a different motive; the villein was the property of his lord, and John must respect the vested interests of others. That the King might do what he pleased with his own property, his demesne villeins, seems clear from a passage usually neglected by commentators, namely, chapter 16 of the reissue of 1217. Four important words were there introduced—villanus alterius quam noster: the king was not to inflict crushing amercements on villeins “other than his own,” thus leaving villeins on royal manors unreservedly in his power.1
It must not be thought, however, that the position of the King’s villeins was worse than that of villeins of an ordinary unroyal manor. On the contrary, it has been clearly shown2 that the King’s peasants enjoyed privileges denied to the peasants of other lords. Magna Carta protected a lord’s villeins from the King, not from the lord who owned them. That “great bulwark of the people’s rights” left the bulk of the rural population of England at the mercy of their lords. The King must not take so much from any lord’s villeins as to destroy their usefulness as manorial chattels; that was all.3
The difference between fines and amercements.
In the thirteenth century, these terms were sharply contrasted. “Amercement” was applied to sums imposed in punishment of misdeeds; the law–breaker had no option of refusing, and no voice in fixing the amount. “Fine,” on the contrary, was used for voluntary offerings made to the King to obtain some favour or to escape punishment. Here the initiative rested with the individual, who suggested the amount to be paid, and was, indeed, under no legal obligation to make any offer at all. This distinction between fines and amercements, absolute in theory, could readily be obliterated in practice. The spirit of the restriction placed by this chapter and by the common law upon the King’s prerogative of inflicting amercements could often be evaded. The Crown might imprison its victims for an indefinite period, and then graciously allow them to offer large payments to escape death by fever or starvation in a noisome gaol: enormous fines might thus be taken, while royal officials were forbidden to inflict arbitrary amercements.
With the gradual elimination of the voluntary element the word “fine” came to bear its modern meaning, while “amercement” dropped out of ordinary use.”1
This word, which occurs in Glanvill2 and in Bracton,3 and also (in its French form) in the Statute of Westminster, I.,4 as well as in Magna Carta, has formed a text for many commentators from Coke’s days to our own. By comparing the entries from exchequer rolls brought together by Madox,5 it appears that to save a man’s “contenement” was to leave him sufficient for the sustenance of himself and those dependent on him. The word comes from the French “contenir,” and has many shades of meaning, as capacity, maintenance, appearance, social condition or grade. A free man is not to be so crushed by an amercement that he cannot maintain himself in his former condition.6 Several entries on Exchequer Rolls of Henry III. and Edward I., collected by Madox,1 throw light on the way in which a “contenement” might be saved to the man amerced. Thus in 40 Henry III. the officials of the exchequer, after discussing an offender’s failure to pay an amercement of 40 marks, ordered inquiry to be made, “how much he was able to pay the King per annum, saving his own sustenance and that of his wife and children,” an excerpt which illustrates the more humane side of exchequer procedure. In 14 Edward I. again, the officials of that day, when ferreting out arrears, found that certain poor men of the village of Doddington had not paid their amercements in full. An inquiry was set on foot, and the barons of exchequer were ordered to fix the dates at which the various debtors should discharge their debts (evidently an arrangement for payment by instalments) “salvo contenemento suo.”2
These illustrations of the procedure of later reigns, agreeing closely with the rules laid down by the Great Charter, show how a man’s contenement might be saved to him without loss to the Crown. Magna Carta apparently desired that time should be granted in which to pay up debts by degrees. Meanwhile, the amerced freeman was not forced to part with what was necessary to maintain him, with his wife and family, in his proper station in life.
[1 ]See Charter of Henry I. c. 8, which, however, condemns the whole practice among the other innovations of the Conqueror and Rufus.
[2 ]See Dialogus de Scaccario, II. xvi.
[3 ]Cf. Pollock and Maitland, II. 511–4. There were, however, exceptions, e.g. Henry II. would not accept money payments for certain forest offences: mutilation was inflicted. See Assize of Woodstock, c. 1, and contrast Forest Charter of 1217, c. 10.
[4 ]Cf. Pollock and Maitland (II. 512), who describe Henry’s promise as “a return to the old Anglo–Saxon system of pre–appointed wites.” In order to avoid confusion, no mention has been made in the account given above of a classification of amercements into three degrees, which increases the obscurity surrounding their origin. The Dialogus de Scaccario, II. xvi., tells how (1) for grave crimes, the culprit’s life and limbs were at the King’s mercy, as well as his property; (2) for less important offences, his lands were forfeited, but his person was safe; while (3) for minor faults, his personal effects only were at the King’s disposal. In the last case, the offender was “in misericordia regis de pecunia sua.” Thus to be “in mercy” did not always mean the same thing. Further, a villein or dependent freeman on a manor might fall into the “mercy” of his lord, as well as of the King. The records of manorial courts are full of amercements for petty transgressions of customs of the manor.
[1 ]“Very likely there was no clause in Magna Carta more grateful to the mass of the people than that about amercements.” Maitland, Gloucester Pleas, xxxiv.
[2 ]Even Coke (Second Institute, p. 27) has to confess that for purposes of this chapter he must abandon the attempt made elsewhere (ibid., p. 4 and p. 45) to bring villeins into the class of freemen.
[3 ]Adams, Origin, 257, thinks the addition made it clear that villeins could not amerce the liber homo; but were not the four legaliores homines of each village described in Assize of Clarendon, villeins? Harcourt, Steward, 221 n., insists that the clause does not secure “trial by peers” in the feudal sense, for the jury of neighbours need not be “peers of a tenure.”
[1 ]Harcourt, Engl. Hist. Rev., XXII. 733–4. See also Dial. de Scac., p. 207 n.; Maitland, Gloucester Pleas, xxxiv. Amercements apparently might also be provisionally fixed by the justices of the bench or the barons of exchequer, who might (where arrears were still unpaid) reduce their figures of previous years.
[2 ]Harcourt, ibid.
[3 ]Madox, I. 527.
[4 ]See, however, on whole subject, Harcourt, ibid.
[5 ]Reeves, History of English Law, I. 248 (Third Edition) says: “Upon this chapter was afterwards framed the writ de moderata misericordia, for giving remedy to a party who was excessively amerced.”
[1 ]Cf. Professor James Tait, Engl. Hist. Rev. XXXVII., 720 ff., who thinks that any attempt to exempt merchant “wares” from amercement was inconsistent with the right to distrain goods for debt, as illustrated by many cases given by Gross, Sel. Cases in Merchant Law (Selden Society), passim.
[2 ]Rotuli Chartarum, 51.
[3 ]See Select Charters, 108.
[4 ]See Birch, Historical Charters of London, p. 5.
[5 ]Ibid., p. 11.
[6 ]See English Village Community, passim.
[1 ]See Engl. Hist. Rev., XXXVII. 724, where Mr. Tait argues “for a broader and less concrete interpretation of the term . . . than has hitherto been put upon it.” The villein was not to be ruined by impounding his seed–corn or growing crops any more than by depriving him of his plough or plough team. See also A. F. Pollard, Engl. Hist. Rev., XXXVIII. 117, and cf. waynagium in c. 5, supra. The Mirror of Justices, p. 169, has a gloss on this passage, in which it is the villein’s “gaigneur” that is saved to him, and this is apparently identified with the villenagium held by him. Mr. Tait’s view has been adopted here; but the word has sometimes a more restricted meaning, e.g. in Hoveden, iv. 48, where 100 acres of land are reckoned to the “waynage” of each plough.
[1 ]The view here taken of the motive for protecting villeins is strengthened by the use of the peculiar phrase, “vastum hominum” in chapter 4 (q.v.). Thomson, Magna Charta, p. 202, seems completely to have misunderstood this 16th chapter of the reissue of 1217, construing the four interpolated words in a sense the Latin will not bear, viz.: “A villein, although he belonged to another.”
[2 ]Notably by Professor Vinogradoff in his Villeinage in England, passim.
[3 ]The gulf which separated villein from freeman in this matter is shown by the Pipe Roll of 16 Henry II. (cited Madox, I. 545); Herbertus Faber debet j marcam pro falso clamore quem fecit ut liber cum sit rusticus. A villein might be amerced for merely claiming to be free. It is difficult to reconcile any theory of the villein’s freedom with the doctrine of Glanvill, V. c. 5, who denies to everyone who had been once a villein the right to “wage his law,” even after emancipation, where any third party’s interests might thereby be prejudiced. R. Hoveden, iv. 46, speaking of the carucage of 1198, explains that for perjury a villein forfeited his best ox to his lord (not to the King).
[1 ]C. 55, which supplements this chapter, cancels amercements unjustly inflicted in the past.
[2 ]IX. 8.
[3 ]III. folio 116b.
[4 ]3 Edward I. c. 6.
[5 ]See II. 208–9.
[6 ]Prof. Tait’s conclusions (op. cit.) have here been accepted with some hesitation. “Contenement,” he urges, “is not a compound from tenement.” He admits, however, following Godefroy, that in one instance the word does mean “tenement.” He does not notice the striking analogy between the use of “contenement” in this chapter and that of “tenement” in c. 11 supra; nor does he discuss the evidence of the contemporary Histoire de Guillaume le Maréchal, where the word appears seven times with various meanings, e.g. capacity, manner of being, conduct, and equipment. M. Paul Meyer has collected these in his index. Mr. Tait goes too far when he asserts that to make freehold liable to amercement shows “a complete misconception of that form of punishment,” p. 726. There were three degrees of amercement; and only for the mildest of the three was the forfeit limited to the culprit’s personal estate (de pecunia). See supra, p. 286, n. Again, a man might be forced to sell his freehold to meet a heavy pecuniary mulct. Under Henry’s Charter, in its final form, no ecclesiastic could be amerced except in accordance with his “tenement,” which suggests an analogy with the saving of a freeman’s “contenement” in the present passage.
[1 ]See II. 208–9.
[2 ]See Madox, ibid.