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

by William Sharp McKechnie

CHAPTER TWENTY.

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 small 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 his offence, yet saving always his “contenement”; and a merchant in the same way, saving his wares; 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 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.