Magna Carta: A Commentary on the Great Charter of King John / With an Historical Introduction

CHAPTER NINETEEN.

Et si in die comitatus assise predicte capi non possint, tot milites et libere tenentes remaneant de illis qui interfuerint comitatui die illo, per quos possint judicia sufficienter fieri, secundum quod negocium fuerit majus vel minus.

This supplement to the preceding chapter prescribed the course to be followed when the press of other business had prevented some of the assizes on the agenda from being disposed of on the court day. The shiremoot lasted for one day only, and to hold an adjourned session of all the suitors on the morrow would inflict hardship on those whose presence was required elsewhere. The framers of the charter were met by a dilemma in seeking to combine the rapid dispatch of business with the minimum of inconvenience to those who came to make the court.

The Articles of the Barons had made two definite demands not readily reconciled; namely that none save jurors and the parties to pending suits should be summoned to meet the justices of assize on their quarterly rounds (article 8); and that assizes should be “shortened” (article 13), which simply meant that the law’s delays should cease.

The terms of Magna Carta, as befitted a carefully-drawn, business-like document, were more precise. They made it clear that assizes in the normal case should be held in the county court—a point upon which the Articles had been silent. This was a salutary provision, since a healthy publicity accompanied the proceedings of the full shire-moot. Nothing was said of “shortening” the procedure; and the Charter showed its appreciation of the fact that there might be more business than could be got through in one day. If that happened, a compromise must be made between the claims of litigants wishing their pleas hastened and the desire of other people to be discharged from further attendance. The justices were directed to complete their labours on the morrow, but were forbidden to retain anyone in attendance except the actual parties to suits and a sufficient number of jurors. Those whom Magna Carta thus compelled to wait a second day were exactly those whose presence the Articles had stipulated for upon the first day—not admitting, indeed, the possibility that a second day might be required. The discrepancy between the schemes of the two documents might be explained on the supposition that the device of timing the visit of the justices with the date of holding the monthly shiremoot was only thought of after the Articles of the Barons had been sealed.^[578]

The Charter of 1217 made a different provision for the same contingency. Unfinished assizes need no longer be taken in their own county on the day following the county court, nor, indeed, on any other day. The judges received full authority to bring them to a conclusion elsewhere on their circuit according as it might suit their convenience. This concession to the justices, taken in connection with the further provisions of 1217, reserving all darrein presentments, together with other assizes of any difficulty, for the decision of the bench, shows a comparative disregard of the convenience of jurors, who might, in the option of the justices, find themselves compelled either to follow the assizes from shire to shire, or else to undertake the irksome journey to Westminster, from which the Charter of 1215 had relieved them.^[579]

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.

This is the first of three consecutive chapters which seek to remedy grave abuses connected with royal amercements. To understand fully what these were requires some knowledge, not only of the system of legal procedure of which they formed part, but also of previous systems.

I. 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.

(1) The bloodfeud. The earliest method of redressing wrongs of which any evidence survives was the practice of retaliation, or the bloodfeud. The injured man, or his heir if he were dead, took the law into his own hands and exacted satisfaction by the aid of battle-axe or spear. This right of vengeance, formerly clothed with the entire sanction of the law, had practically disappeared before the dawn of authentic history in England; but its previous existence may be confidently inferred from certain traces which it left on the laws of a later period.

(2) Fixed money-payments. At some early, but uncertain, date it had become customary to accept money in lieu of vengeance. The new practice, at first exceptional, and applied to cases only of accidental injury, was gradually extended to all cases in which the wronged individual was willing to accept a compromise. It was made compulsory on evil-doers to offer solatium in money for every crime committed, and finally it was made compulsory also upon the injured man to accept it when offered. At this stage the right of private revenge had become almost a thing of the past. It was lawful only after the aggrieved individual had demanded, and been refused, compensation at the recognized rate.

Various codes formulated intricate rules for determining the amounts thus payable. Each man had his own money value or wer (from the simple freeman, reckoned at 200 shillings, up to the prelates and lay nobles, estimated at much higher figures). These were the legal values at which each man’s life was appraised. Smaller wrongs could be compensated by smaller sums in name of damages, known as bots: so much for a foot, or an eye, or a tooth. The king or other feudal lord exacted further payment 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.

(3) Amercements. A third system succeeded. This was of extreme simplicity and differed widely in many ways from the complicated system it superseded. It is found in full working order very shortly 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 into the protection of the law, and into the community of well-doers, became increasingly burdensome. He had to satisfy the 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.^[580]

Although in theory the wrongdoer put his property unreservedly at the king’s disposal, there was a tacit understanding that he should receive in return, not only a free pardon, but also the restoration of the balance of his effects, after the king had helped himself to a share. Such a course, at first optional, would gradually come to be followed with absolute uniformity. By-and-by, it was assumed that every culprit wished to avail himself of this means of escape, and thus the words “in mercy” were written in court records as a matter of course, after the name of every one convicted of a crime.

It is easy to understand why the Norman kings favoured this system; for the Crown thus got whatever it chose to demand, while other claimants got nothing. Gradually, then, the old complicated system of wers and bots and wites became obsolete and was in time forgotten altogether; the system of amercements reigned in its stead. Strictly speaking, the man’s life and limbs and all that he had were at the king’s mercy.^[581] The Crown, however, found that it might defeat its own interests by excessive greed; and generally contented itself with exacting moderate sums. Soon, rules of procedure were formulated for its own guidance. The amounts taken in each case 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.^[582]

Thus a sort of tariff grew up, defining the amounts to be exacted for various offences of most general occurrence. The Crown and its officials usually respected this in practice, but never formally abandoned the right to demand more. Such payments were known as “amercements” and were always technically distinguished from “fines” (or voluntary offerings). Records, still extant, of the reign of John show us that for very petty offences, men were constantly placed “in mercy”; for example, for failure to attend meetings of the hundred or county court; for false or mistaken verdicts; for petty infringements of the king’s forest rights; and for a thousand other trivial faults. Every man who raised an action and failed in it was amerced. It will be readily understood how important it was that these amercements, forming so tempting a source of revenue to the exchequer, should not be abused. The Charter of Henry I. (chapter 8) had promised a remedy, drastic indeed but of a reactionary and impossible nature. He there agreed to abolish altogether the system of amercements (then of recent introduction) and to revert to the earlier Anglo-Saxon system of bots and wites, already discussed. This promise, like others, of Henry I. was made only to be broken.^[583]

II. Magna Carta and Amercements. All classes had an interest in this subject, since no one could expect to pass through life (perhaps hardly through a single year) without being subjected to one or more 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 vaguely anticipating the conception of three estates of the realm;—commons, nobles and clergy. The “third estate” is further analysed for the purposes at least of this clause, into three subdivisions—the freeman, the villein, and the merchant.^[584]

(1) The amercement of the freeholder. 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, various safeguards were devised to regulate the amercing of freemen. (a) For a petty 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: three-pence 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 must the offender be pushed absolutely to the wall. His means of livelihood must be saved to him. Even if all other effects of the defaulting freeman had to be sold off to pay the amount assessed, he was to retain his ancestral freehold (or “contenement,” a word to be afterwards discussed). He might, however, find himself liable for a large sum which he had to pay off by instalments during many years. (d) Another clause provided machinery for giving effect to all these rules. The amount of the amercement must be fixed, not arbitrarily by the Crown, but by impartial assessors, “by the oath of honest men of the neighbourhood.”

It seems probable that all these provisions were declaratory of existing usage, that is of the usage of John’s reign; but, apparently, a different procedure and one less favourable to wrong-doers had been in vogue, so recently as the reign of Henry II. Amercements had then been assessed, not by local jurors but, by the barons of the exchequer, who might, however, where arrears were still due, revise their own findings of previous years.^[585]

The Pipe Roll of the fourteenth year of Henry II.^[586] shows how a certain priest, who in this respect stood on precisely 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 how 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.” His case illustrates how an important change was gradually effected. Local jurors first assisted, and then superseded, the barons of exchequer in assessing the amounts payable as amercements. This important boon, which transferred the decision from unsympathetic Crown officials to the defaulter’s own neighbours, was confirmed by Magna Carta to all clergy and to all members of the third estate. It will be shown, in connection with chapter 21, how earls and barons lost a similar privilege.^[587]

(2) The amercement of the merchant. The provisions in favour of freeholders were extended to members of the trading classes. One modification, however, had to be made. In the normal case, the merchant’s means of livelihood were his wares, not his freehold. These wares, accordingly, were saved to him, not his “contenement” (if he had one). The traders of many favoured towns, however, had already gained special privileges in this as in other matters, and these had received a general confirmation from chapter 13 of the Great Charter. Some boroughs had anticipated Magna Carta by obtaining in their own special charters either a definition of the maximum amercement exigible, or in some cases, by a definition of the amercing body. Thus, John’s Charter to Dunwich of 29th June, 1200,^[588] 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 the Londoners, Henry I. had promised that no citizen in misericordia pecuniae should pay a higher sum than 100s. (the amount of his wer).^[589] 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.”^[590] John’s Charter to London of 17th June, 1199, also specially referred to this;^[591] and the general confirmation of customs contained in chapter 13 of Magna Carta would further strengthen it. In all probability, it 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 great offences as well as to small ones, and embracing merchants everywhere, not merely the burgesses of chartered towns.

(3) The amercement of the villein. The early history of villeins as a class is enveloped in the mists which still surround the debateable question of the rise of the English manor. Notwithstanding the brilliant efforts of Mr. Frederic Seebohm^[592] to find the origin of villeinage in the status of the serfs who worked for Roman masters upon British farms or villae long before the Teutonic immigrations began, an older theory still holds the field, namely, that the abject villeins of Norman days were the descendants of the free-born “ceorls” of Anglo-Saxon times. On this theory—the orthodox one, and rightly so, since it is supported by the greater weight of evidence—most of England was once cultivated by free Anglo-Saxon peasant proprietors originally grouped in little societies each of which formed an isolated village. These free villagers were known as “ceorls,” to distinguish them from the gentry or nobility called “eorls,” who enjoyed social consideration but (so it is usually argued) no unfair political advantages on the score of their noble blood. The “ceorls” 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 harsh measures of the Norman conquerors. The bulk of 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 the villeins in the thirteenth century has at the present day been ascertained with accuracy and certainty. Economically they were reckoned part of the necessary equipment of the manor of their lord, whose fields they had to cultivate as a condition of being left in possession of acres which had once been, in a more real sense, their own. The services to be exacted by the owner of the manor, 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 manifold obligations were discharged, little time was left him for the ploughing and reaping of his own small holding. The normal villein possessed his portion of land, of a virgate or half virgate in extent (thirty or fifteen scattered acres) under a tenure known as villenagium, sharply distinguished from the freeholder’s tenures, whether of chivalry, serjeanty, or socage. He was a dependent dweller on a manor which he dared not quit without his master’s leave. It is true that he had certain 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. Legally speaking, the villein was a tenant-at-will whom the lord could eject without the interference of any higher tribunal than his own. Politically, however, the position of the villein was peculiar. While allowed to enjoy none of the privileges, he was yet expected to perform some of the duties, of the freeman. He attended at the shire and hundred courts, acted on juries, and performed other public functions, thus suffering still further encroachments on the scanty portion of time which he might call his own, but preserving for a brighter day some vague tradition of his earlier liberty. The fact that such public duties were performed by the villein, lends strong support to those who argue in favour of his descent from the old “ceorl” who enjoyed all the rights, as well as performed all the obligations, of the free. Such duties would never have been required from a race of hereditary slaves; but it is easy to understand how men originally free might be gradually robbed of their legal rights, while left to perform legal duties of a kind so useful to society and to their masters.

The words of this chapter of Magna Carta undoubtedly extend some measure of protection to villeins. Two questions, however, may be asked:—What measure, and from what motive? Answers are called for, because of the importance attached to this clause by writers who claim for Magna Carta a popular or democratic basis. One thing 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 the merchant enjoys in similar plight—his “wainage,” that is his plough with its accoutrements, including possibly the oxen, being saved to him. What is the motive of these restrictions? It is usually supposed to have been clemency, the humane desire not to reduce the poor wretch to absolute beggary. It is possible, however, to imagine an entirely different motive; the villein was the property of his lord, and the king must respect the vested interests of others. That he 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 limiting the restraints on the king’s power are there introduced—villanus alterius quam noster. The king was not to inflict absolutely crushing amercements on any villeins “other than his own,” thus leaving the villeins on ancient demesne unreservedly in his power.^[593]

It must not be thought, however, that the position of the king’s villeins—“tenants on ancient demesne,” as they were technically called—was worse than that of the villeins of an ordinary unroyal manor. On the contrary, it has been clearly shown^[594] that the king’s peasants enjoyed privileges denied to the peasants of other lords. Magna Carta—that "bulwark of the people’s rights"—thus left the great bulk of the rural population of England completely unprotected from the tyranny of their lords in amercements as in other things. The king must not take so much from any lord’s villeins as to destroy their usefulness as manorial chattels; that was all.^[595]

(4) The difference between fines and amercements. In the thirteenth century these terms were sharply contrasted. “Amercement” was applied to such sums only as were imposed in punishment of misdeeds, the law-breaker amending his fault in this way. He had no option of refusing, and no voice in fixing the amount assessed upon him. “Fine,” on the contrary, was used for voluntary offerings made to the king with the object of procuring some concession in return—to obtain some favour or to escape some punishment previously decreed. 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 as it was 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 usually be evaded by calling the sums exacted “fines.” For example, 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. The letter of Magna Carta was in this way strictly observed, since the prisoner was nominally as free to abstain entirely from offering as was the king to reject all offers until the figure was sufficient to tempt his greed. Enormous fines might thus be taken; while royal officials were strictly 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.^[596]

(5) Contenement. This word, which occurs in Glanvill^[597] and in Bracton,^[598] and also (in its French form) in the Statute of Westminster, I.,^[599] as well as in Magna Carta, has formed a text for many laboured and unsatisfactory explanations from the days of Sir Edward Coke^[600] to our own.

There seems to be no real obscurity, however, since it is clearly a compound of "tenement"—a word well known as an exact technical term of feudal conveyancing—and the prefix “con.” A “tenement” is precisely what a freeman might be expected to have, namely, a freehold estate of his own. The “con” merely intensifies the meaning, emphasizing the closeness of the connection between the freeman and his land. Any other tenements he had might be taken away, without inflicting extreme hardship; but to take from him his "contenement"—his ancestral lands—would leave him poor indeed.

The word occurs, not only in Glanvill and Bracton, but also in several entries on the Exchequer Rolls of Henry III. and Edward I., collected by Madox,^[601] and by him collated with other entries which 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 the case of an offender who had failed 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 also 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.”^[602]

These illustrations of the actual procedure of later reigns, in agreeing so closely with the rules laid down by the Great Charter, show how a man’s contenement might be saved to him without any loss to the Crown. Magna Carta apparently desires that time should be granted in which to pay up debts by degrees. Meanwhile, the amerced man was not forced to sell such holding (or wares, or wainage) as was necessary to maintain him with his wife and family. Leniency, in the long run, might prove best for all concerned, the Crown included.