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CHAPTER TWENTY–ONE. - 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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Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti.
Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offence.
Amercement of earls and barons. It is noteworthy that the Articuli Baronum contain no provisions corresponding to this chapter, which forms in one sense a supplement to chapter 20, and in another to chapter 39 of John’s Charter. How is the omission from the earlier document to be explained? Was it an oversight? Was the present clause added at Runnymede as an afterthought for the sake of symmetry? Had the barons no personal grievances under this head to redress? Were they too disinterested to urge them? Or was the grievance of so notable a kind and so hard to remedy that they hesitated till the last moment before committing themselves to any form of expression? There is no contemporary evidence on which to base a conclusive answer to these questions; but much may be said for answering the last of them in the affirmative.
The equally natural question as to what the actual words of the Charter stood for in the minds of the barons is also hard to answer. When they mentioned amercement per pares suos, what exactly did they desire? Bracton1 has a famous gloss on this chapter, in which these words seem at first sight to be replaced by the phrase “et hoc per barones de scaccario vel coram ipso rege.” Is this to be taken as an honest paraphrase? or does it represent a deliberate attempt by Crown lawyers to pervert the plain words of the Charter to authorize precisely what they had been originally intended to forbid?—to substitute the decision of a small knot of royal officials for that of the community of feudal barons? While the problem is perhaps insoluble, some suggestions may be founded on a consideration of the actual practice before and after 1215.1
The plea rolls contain no distinct evidence of two stages in the amercement of barons, corresponding to those described in connexion with commoners. It is clear, however, that the justices on circuit had no power to fix the amercements imposed on them: in their case a blank was usually left to be afterwards filled in at the exchequer. “For this purpose, a separate roll or schedule was prepared containing the names of the amerced barons with the offences for which they were penalised, and this was sent to the exchequer with the other estreats.”2
This was the course followed at an eyre held at Hertford in 1198–9: when a list of the amerced was prepared and definite sums were entered after each ordinary offender’s name, blanks were left after the names of Gerard de Furnivall and Reginald de Argenton, each of whom was reserved for special treatment “as a baron,” and as such “to be amerced at the Exchequer for a disseisin.” The Pipe Roll of John’s first year shows that this procedure was carried out.3
Magna Carta, then, had good precedents for insisting that barons ought not to be amerced by the justices of eyre in the course of their circuits; but what exactly did it mean by demanding amercement “by their peers”? In asking amercement per pares suos, were they merely acquiescing in John’s current practice? Did they desire to substitute the decision of a full commune concilium, as defined in chapter 14, for that of the King’s professional justices? Did they merely ask for the presence of a few barons at the exchequer, when one of their own class was being amerced? Or, did they refer to a second stage of procedure in which the amercements of barons should be taxed or reduced by other barons, just as (in the procedure referred to in chapter 20) amercements of commoners were taxed by a jury of neighbours?
If the last query could be answered in the affirmative, a clue would be afforded to the interpretation of Bracton’s gloss:—“Comites vero vel barones non sunt amerciandi nisi per pares suos et secundum modum delicti et hoc per barones de scaccario vel coram ipso rege.”1 The words “et hoc” may here refer merely to the first stage in the process, the provisional fixing of the amount at the exchequer secundum modum delicti, while the function of the baron’s “peers” was to “tax” this amount, with reference to the circumstances of the defaulting baron. If this interpretation of Bracton be admissible and if he has accurately paraphrased the substance of this chapter, then the barons were asking no more for themselves than they had already asked for their humble dependents. They were unlikely to ask less.
In the fourteenth century several cases are recorded in the course of which defaulters, in the hope of escaping with smaller payments, protested against being reckoned as barons. Thomas de Furnivall, for example, in the nineteenth year of Edward II. complained that he had been amerced as a baron “to his great damage, and against the law and custom of the realm,” whereas he really held nothing by barony. The King directed the Treasurer and Barons of Exchequer “that if it appeared to them that Thomas was not a baron, nor did hold his land by barony, then they should discharge him of the said imposed amercement; provided that Thomas should be amerced according to the tenor of the great Charter of Liberties,”2 that is to say, as a simple freeholder according to the provisions of chapter 20. It is clear that Thomas de Furnivall was confident that a local jury would “tax” him at a lower figure than that fixed by the Exchequer barons. A few years earlier the Abbot of Croyland had made a similar claim, but without success.1
At a later date, barons and earls were successful in securing by another expedient some measure of immunity from excessive exactions. They had established, prior to the first year of Henry VI., a recognized scale of amercements with which the Crown was expected, in ordinary circumstances, to content itself.2 In the reign of Edward VI. a duke was normally amerced at £10, and an earl or a bishop at 100s.3
[1 ]III. folio 116b.
[1 ]A valuable volume of evidence has been collected by Harcourt, Eng. Hist. Rev. XXII. 733 ff.; though his conclusions are mainly negative. See also his Steward, ff. 289.
[2 ]Harcourt, ibid., 736. Pike, House of Lords, 256–7, shows how barons were assessed sometimes—(a) before the barons of exchequer; or (b) before the full King’s Council; or (c) at a later date, even before the justices of Common Pleas. They were never assessed, however, before the justices on circuit.
[3 ]See Pike, House of Lords, 255.
[1 ]Bracton, f. 116b.
[2 ]Madox, I. 535–8.
[1 ]See Madox, ibid., and also Pike, House of Lords, 257. Mr. Pike, p. 255, rightly says that what was originally a privilege had become a burden.
[2 ]See Pike, ibid.
[3 ]Madox, Baronia Anglica, 106, seems to view these sums as fixing a minimum, not a maximum. “If a baron was to be amerced for a small trespass, his amercement was wont to be 100s. at the least; he might be amerced at more, not at less. This, I think, was the meaning of the term amerciater ut baro.” He adds that a commoner for a similar trespass would get off with 10s., 20s., or 40s.