[602]. See Madox, Ibid.
CHAPTER TWENTY-ONE.
Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti.
Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offence.
The amercement of earls and barons. The barones majores, as matter of course, intended to secure for themselves privileges at least equal with those of the ordinary freeholder. In assessing their amercements, both the gravity of the offence and their ability to pay (as measured by their property) would naturally be considered. Magna Carta mentions only the former criterion—it was, indeed, unnecessary to call the king’s attention to the fact that more could be taken from their wealth than from the ordinary freeholder’s comparative poverty. The saving of a “contenement” to them would also naturally be assumed. One vital difference, however, was distinctly stated. The amercing body was not to be a jury of good men of the locality; but a jury of their “peers.”[[603]] The barons here asked only what was their undoubted right—to have the amount of their forfeits determined neither by their feudal inferiors (freeholders of their own or of other mesne lords) nor yet by Crown officials, but by magnates of their own position and with interests in common. This was not an innovation. Mr. Pike[[604]] has shown how, in Richard’s reign, barons were not amerced with the common herd: at an eyre held at Hertford in 1198-9, a list of those amerced was drawn up and definite sums were entered after each name, with two exceptions, Gerald de Furnivall and Reginald de Argenton, each of whom was reserved for special treatment “as a baron.” A local jury had evidently on the spot assessed the amercements of villeins and ordinary freeholders (in exact accordance with the rules of chapter 20); but the following entry was made opposite each of the two barons’ names “to be amerced at the Exchequer for a disseisin.” The Pipe Roll of John’s first year shows that this was subsequently done.[[605]]
Magna Carta, then, had good precedents for insisting that barons ought not to be amerced by the justices of eyre in the course of their circuits; but what exactly did it mean by demanding amercement "by their peers"? Did this merely mean that a few peers, a few Crown tenants, should be present at the exchequer when they were amerced; or was it a demand for the assembling, for that purpose, of a full commune concilium like that defined in chapter 14?
The Crown, in the following reign, placed its own interpretation on these words, and succeeded in turning into a special disadvantage what the barons had insisted on as a privilege. Bracton[[606]] repeats this chapter verbatim, but adds what seems to be an official gloss, qualifying it by these words: “et hoc per barones de scaccario vel coram ipso rege.” Barons, under this interpretation of Magna Carta, had their amercements assessed neither by the whole body of “their peers” in a full council, nor yet by a select jury of those peers empannelled in the exchequer for that purpose, but by royal officials, the barons of exchequer, or the justices of King’s Bench. Thus the words of the Charter were perverted by the ingenuity of the Crown lawyers to authorize precisely what they had been originally intended to forbid.[[607]]
In the fourteenth century several cases are recorded, in the course of which defaulters, in the hope of escaping with smaller payments, protested against being reckoned as barons. For example, a certain Thomas de Furnivall in the nineteenth year of Edward II. complained that he had been amerced as a baron “to his great damage, and against the law and custom of the realm,” whereas he really held nothing by barony. The king directed the Treasurer and Barons of the Exchequer “that if it appeared to them that Thomas was not a baron, nor did hold his land by barony, then they should discharge him of the said imposed amercement; provided that Thomas should be amerced according to the tenor of the great Charter of Liberties,”[[608]] that is to say, as a simple freeholder according to the provisions of chapter 20. It is clear that Thomas de Furnivall was confident that a local jury would amerce him at a lower figure than that fixed by the exchequer barons. A few years earlier the Abbot of Croyland had made a similar plea, but without success.[[609]]
At a later date barons and earls were successful in securing by another expedient some measure of immunity from excessive exactions. They had established, prior to the first year of Henry VI., a recognized scale of amercements with which the Crown was expected, in ordinary circumstances, to content itself.[[610]] In the reign of Edward IV. a duke was normally amerced at £10, and an earl or a bishop at 100s.[[611]]