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]]