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.
[580]. See Charter of Henry I. c. 8, which however, condemns the whole practice among the other innovations of the Conqueror and Rufus.
[581]. See Dialogus de Scaccario, II. xvi.