(1): Amercement of freeholders.

No one could expect to pass through life (perhaps hardly through a single year) without being subjected to amercements. 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.

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.

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. (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.

The Pipe Rolls afford illustrations of the practice. In the fourteenth year of Henry II. 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.”

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. 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.