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 wainnagio suo, si inciderint in misericordiam nostram; et nulla praedictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de visneto.
A free man is not to be amerced for a small offence except in proportion to the nature of the offence, and for a great offence he is to be amerced in accordance with its magnitude, saving to him his livelihood, and a merchant in the same manner, saving to him his stock in trade, and a villein is to be amerced in the same manner, saving to him his growing crops, if they fall into our mercy. And none of the aforesaid amercements is to be imposed except by the oath of trustworthy men of the vicinity.
The drafters of Clause 20 probably had in mind clause 8 of Henry I’s coronation charter, which had promised an end to the practice whereby under William I and William II anyone committing an offence had been obliged to offer all his moveable goods as a pledge for the resulting amercement, which in future would be exacted in proportion to the offence (secundum modum forisfacti).1 No such clause found a place in the `Unknown Charter’ drawn up early in 1215, even though it shared a good deal of common ground with Henry I’s charter, but a version of Clause 20 appeared as Article 9 among the Articles of the Barons. The immediate context of both was the same, in that each followed a clause concerned with the hearing of assizes, and then formed part of a short sequence dealing with the imposition of amercements – perhaps the fact that judicial proceedings generated a great many amercements made this arrangement seem appropriate. But there were also differences between Article 9 and Clause 20 which, although small, are still important, and show how concerned the draftsmen of the Charter could be to achieve clarity and precision.
In terms of presentation, the Clause differs from the Article in being formulated as an emphatic negative. It states what is not to be done, whereas the Article confines itself to setting out what ought to happen. Where content was concerned, both Article and Clause gave space to others besides the free men to whom the benefits of Magna Carta were usually reserved. The inclusion of merchants was probably a concession intended to benefit the city of London, and incidentally other urban communities as well, by ensuring that no traders, whatever their origins, who infringed English laws and customs, were so heavily penalised as to endanger their capacity to import wholesale the valuable goods whose sale by retail was monopolised by Englishmen. The appearance of this provision at the end of the Article may show that it was a last-minute addition, and as such it probably had the effect of blunting the force of the other two provisions, and especially the one which (uniquely in Magna Carta) protected the livelihood of villeins. The latter was not included out of any tenderness for the rights of the unfree, but rather to complement the safeguards provided for those of their lords, the free men with whom both Article and Clause commence. Not only were free men not to be amerced to the extent of endangering their livelihoods (contenementum – a word expressive of status as well as material resources), but care was also taken to ensure that serfs were not subjected to demands which might have had the effect of making their masters’ estates unviable. When Article 9 was revised as Clause 20, the sub-section dealing with merchants was placed after that relating to free men, to whom, indeed, they were closer in status, while the one relating to villeins came third, with an additional phrase which effectively spelt out their continuing subjection by making it plain that they – and only they - were to be protected solely against the excessive demands of the king, and not those of their lords (this is made especially clear in the French version of the Charter).2 A discrete concluding sentence laid down that in every case amercements were to be assessed by trustworthy neighbours, acting under oath.
The word `amercement’ seems to have been originally applied to the process of assessment whereby it was decided how much someone whose wrong-doing had placed him in, or more idiomatically at, the mercy of his lord, should pay to redeem his offence. But during the twelfth century the process of assessment was elided with the penalty which resulted from it, so that an amercement became the term conventionally used to define a monetary penalty.3 Today it would be called a `fine’, but in medieval England a fine represented a deal struck between two (or more) parties – in fiscal terms it was the sum which a petitioner, litigant or offender agreed to pay in order either to bring proceedings to an end or to obtain a favour or benefit – release from custody, for example. Nominally, at least, there was an element of negotiation about a fine, whereas an amercement was effectively an imposed punishment, limited in its amount only by undefined custom and by the means of the offender.
Many of the largest debts incurred by the subjects of the Angevin kings took the form of fines, having been agreed upon, whether or not under duress, in the king’s dealings with the person or community concerned. Amercements were overwhelmingly levied in courts. Any lord with a court could use it to impose amercements for offences against the peace or the by-laws, but in most such courts both misdeeds and penalties were relatively insignificant. The king’s courts, with their well-nigh limitless jurisdiction, were potentially a very different matter. According to the early twelfth-century treatise Leges Henrici Primi, the offences which placed a man in the king’s mercy included treason, coining, rape, the slaying of royal servants, and `manifest theft punishable by death’,4 all of which could entail the severest physical punishment for those convicted of them, while the author of the Dialogus de Scaccario, writing late in Henry II’s reign, maintained that even the smallest offence putting someone `in the king’s mercy’ could lead to the offender losing all his moveable goods, while serious crimes could result in the loss of lands, limbs and lives.5
In fact, although serious crimes continued to be punishable by death or mutilation, the royal courts throughout the twelfth century commonly preferred to impose financial penalties for offences against the king’s majesty. The sums involved could, however, be substantial. Although amercements are rarely distinguishable from fines in the pipe roll for 1130, it would appear that the former included payments of seven marks for concealment of a thief, ten marks for making a statement which could not be proved, and twenty, forty and even 100 marks `for breach of the peace’, along with murder fines (amercements despite their name) on communities, which could amount to twenty, twenty-five, thirty, and in one case sixty marks (though this last fine was pardoned), while then as later the penalties for offences against the king’s forest were severe, with amercements of 100 marks being imposed `for the plea of a hind’ and 200 marks for `a plea of a stag’.6 During the reign of Henry II that king’s legal reforms saw a general flattening-out of the level at which amercements were imposed. Very large numbers of people came within the orbit of his courts, and especially the eyres held at increasingly regular intervals by justices itinerant, where they were placed in the king’s mercy, both as individuals and as members of communities, for every kind of legal shortcoming and procedural infringement. A typical example of the result is provided by the recorded issues of the 1194 Yorkshire eyre, which shows the sheriff accounting for £68. 13s. 4d. made up of undifferentiated `little amercements’, after which there comes a huge mass of individual entries, extending over several pages in the printed edition. Imposed for default, for failing to prosecute, for making a false claim, for failing to produce the person pledged, and for all the other minor offences which came within the cognizance of an eyre, they include just one amercement of 40d., for infringement of the assize of wine (probably the sort of `little amercement’ usually accounted for within the sheriff’s lump sum), otherwise it is clear that except for the very poor, 6s. 8d. had become the standard minimum rate, and also the sum by far the most commonly demanded. It was increased to 10s. or 13s. 4d. in numerous cases, with multiples of these figures being levied on serious offenders or the better-off, but it became relatively unusual for more than £5 to be taken.
Unusual but not unknown. Although there was a steady trend towards many more but smaller amercements, it would not be true to say that larger sums were never exacted. The threat of total forfeiture persisted under Henry II – in 1164, according to William FitzStephen, Thomas Becket complained that he had been treated unjustly in being condemned to be in the king’s mercy, and so `to lose all his movable goods’ (in poenam pecuniariam omnium bonorum mobilium)7 – and some very heavy amercements were imposed. In 1170 the failure of the men of the Isle of Wight to appear before the king’s justices cost them £100,8 and when in 1172 five men were amerced for at first denying having any of the abbot of Hyde’s chattels and then admitting that they had them, one man was charged with 26s. 8d., a second with 40s., and two more with £13. 6s. 8d. apiece, while Ralph the cook was required to find £100.9 Four years later the abbot of Peterborough was recorded as owing 200 marks `for the man whom Peter de St Medard killed’,10 and in 1185 a default on the part of the earl of Gloucester’s steward cost him fifty marks.11 Peter son of Adam, because he ignored a summons to attend the chancellor on the king’s business, was amerced of £100 in 1192,12 while William of Holme, who released a suspected killer to pledges and seemingly kept no record of the latter’s names, was required in 1194 to pay £46. 10s. 10d. for his deficiencies.13 Retribution following the great rebellion of 1173/4 included an amercement of 500 marks upon Gospatric FitzOrm `because he surrendered the king’s castle of Appleby to the king of Scots’,14 and more typically, offences against the king’s forests also continued to be severely dealt with – in 1176 four Yorkshire barons were amerced of £100 each pro foresta, while Herbert FitzHerbert had to pay as much as 500 marks for a like offence in Hampshire.15
No later than the 1160s the justices could take local advice as to how what must sometimes have been serious offences should be punished, though they do not always seem to have accepted it. In 1168 it was recorded that Samuel the priest of Pilton, Somerset, had earlier been amerced of 100 marks before William FitzJohn, an experienced royal justice, after being initially been assessed (admensuratus) at forty marks by his neighbours – per sacramentum vicinorum suorum.16 FitzJohn probably regarded Samuel’s unidentified offence as meriting a heavier punishment, but he clearly ignored, as the assessors presumably did not, the question of whether the priest could actually afford to pay such a sum, and in the end the king pardoned Samuel £40 of his debt on account of his poverty (he paid the remaining £20 within the next five years, suggesting that his `poverty’ was in fact a somewhat relative condition). As the number of amercements increased, and with them their contribution to the king’s revenues, so the issue of their assessment, in relation both to the offences for which they were imposed and to the means of the offenders who were being punished for them, became more pressing. That a financial penalty should be proportionate to the offence was a principle to which Henry I’s charter of 1100 had paid lip service, and it was also upheld by both Roman and canon law.17 But although it has been observed that the term delictum, as used in Clause 20, and here translated as `offence’, was being employed in the same sense by the learned law of the twelfth and thirteenth centuries, the latter’s influence was probably slight.18 By the 1180s there are clear signs in the emergent literature of English common law and exchequer procedure that thought was being given to questions of proportionality, thought which without any discernible reference to the teachings of the learned law went some way towards anticipating Clause 20 of Magna Carta..
Thus when the treatise known as Glanvill, written in the last years of Henry II’s reign, discussed the aids which lords could demand from their free tenants, and also the penalty for encroachments on the king, seemingly by tenants-in-chief, it placed limits on what could be required, in both cases so as to safeguard for those affected the property that they needed to enable them to maintain their status – their contenementum, the same term used in the Charter. In the latter case, moreover, any amercement was to be assessed `by oath of the lawful men of the neighbourhood’ – per iuramentum legalium hominum de visneto, a phrase strikingly close to the one used in the same context by Magna Carta (per sacramentum proborum hominum de visneto).19 Another treatise, the Dialogus de Scaccario, which was perhaps written a few years before Glanvill, described in a passage full of praise for Henry II how the king’s justices itinerant `spared the labours and the possessions of the poor’,20 and in later chapters devoted to the processes of distraint for the payment of amercements (pena ... pro excessu), it placed certain limits on the goods that might lawfully be taken, and in addition prescribed that a knight was always to be allowed to keep a horse, to enable him to retain his status (dignitate). If a knight was a true fighting man, moreover, he was to be entitled to keep his weapons as well as his mount, so that he could still maintain the dignity of knighthood.21 Contenementum implied social rank as well as wealth;22 the Dialogus, in describing the government’s pursuit of the latter, showed as much concern as Clause 20 to uphold the former.
Clause 20 had a multiple focus, upon the size of the amercements imposed by the king and his agents, on the effects these might have on those subjected to them, and on the manner of their assessment. The Charter accepted that serious offences might merit weighty punishments, and expressed concern only that amercements should not be so heavy as to ruin offenders, either socially or economically. Subject to that restriction, the king’s traditional power to require any payment he chose for admission to his mercy remained to outward appearances untouched. That power was, however, called into question by the Clause’s last sentence, laying down that all the amercements referred to were to be imposed by the oath of honest men of the neighbourhood. The imprecision is striking. The great men of the realm, the earls and barons, secured the insertion of a clause (no. 21) specifying that the assessment of their amercements was to be reserved to their peers, but no such provision was made for their social inferiors. Possibly the drafters of the Charter felt unable to devise a formula which simultaneously covered free men, merchants and villeins. It must have been assumed that although local worthies, whatever their social level, might sometimes choose to uphold communal values by imposing stiff penalties, the overall effect of their decisions would be to keep amercements down; when the men of Dunwich secured a charter from King John in 1200 which included the privilege of separate representation by a jury of twelve men before justices itinerant, and the accompanying concession that should this jury incur an amercement, the sum was to be decided upon `by six trustworthy men of their borough, and by six trustworthy men outside the borough’,23 the underlying presumption was certainly that this would result in smaller payments at future eyres.
There had been attempts before 1215 to limit the size of amercements, or at any rate to create conditions in which they could be controlled. Less than a decade earlier the North Yorkshire baron Peter de Brus had issued a charter for the knights and free tenants of Langbaurgh wapentake, in which he conceded that amercements were to be assessed in accordance with the means, as well as the offence, of the transgressor.24 (He did not say who was to make the assessment, though presumably men attending the wapentake court would have been involved.) A number of boroughs had secured charters during the twelfth century which set specific limits on the amercements which could be imposed in their courts,25 but there is nothing to suggest that such privileges were intended to protect their citizens against the demands of the crown. London’s royal charter of the early 1130s had declared that no Londoner was to be amerced of more than 100s. (still a substantial sum), but although this was effectively confirmed by Henry II when he granted that no citizen was to be `fined at discretion except according to the law of the city which they had in the time of King Henry my grandfather’,26 that did not prevent William son of Isabel from being amerced of 1000 marks (£666. 13s. 4d.) in 1185, for offences which included taking a bribe to allow a suspected forger to be released to inadequate pledges.27 William’s transgressions may well have been serious, but the size of his amercement probably owed more to his wealth – a financier and property-owner, he was one of London’s sheriffs at the time28 – than to his misdeeds. A panel of neighbours could have been expected to deal less harshly with him, and indeed, where poor people were concerned the king’s government seems to have been content to leave the task of assessment to the judgment of their peers, as, indeed, they did in London itself; when the disturbances provoked by William FitzOsbert were punished in 1196, according to the chronicler Ralph de Diceto, `the poor gave adequate satisfaction according to the assessment of the neighbours’ (pro vicinorum arbitrio).29
It was not, however, the crown’s demands upon the poor that the drafters of Magna Carta were primarily concerned to control (the king and his justices did in fact on a few occasions remit amercements entirely because of an offender’s poverty).30 The king’s power to amerce, as already noted, was in theory subject to few limits, and inevitably it was principally directed against such of the rich and powerful as he wished either to exploit or dominate. The most spectacular payments exacted from their subjects by the Angevin kings of England took the form of fines, but amercements, too, had an important place in the armoury of casual and supplementary payments (in accidentibus, plus in accessoriis ...) with which, as Gerald of Wales observed, Henry II and his successors compensated themselves for shortfalls in more conventional revenues.31 Clause 20 distinguished between small and large offences, and ordered that each should be punished in accordance with its magnitude. The king’s justices no doubt decided on the seriousness of an offence, and on the punishment it merited. Where the penalty took the form of an amercement, to leave its assessment to royal officers was to invite oppression and extortion, and indeed, the very fact that Clause 20 also stipulated that amercements should be assessed by neighbours, in line with the practice described by Glanvill and recorded in the early years of Henry II’s reign, underlines the extent to which the king and his agents had by the early thirteenth century come to control the consequences of judgments in royal courts. Without the safeguard provided by the Clause, the weight of those judgments, which could at any time be heavy under Henry II and Richard I, eventually became still more so, in both scale and frequency, under John.
The process was a slow one, however, and charting its development is made more difficult by problems of definition. For much of his reign John raised much more money by fines than amercements, but fines could themselves be the products of amercements, since men and women could find themselves in the king’s mercy and then bargain to be released from it. They could also make agreements to reduce their amercements, presumably either because the latter had been set too high or because the king preferred to take whatever money was available rather than wait for more at a later date. In 1208, for instance, three Yorkshiremen who had been amerced at a total of £206. 13s. 4d. for forest offences agreed to pay £100 and a palfrey `for having quittance of the aforesaid amercements’, and then paid their revised debt within twelve months.32 What their initial transgression had been it is impossible to say – the records speak only of `default’, a term of wide application – and this highlights a further difficulty, that of assessing the seriousness of offences on the basis of records which were usually more concerned to register debts than to provide an explanation for them.
There were certainly occasions when substantial amercements arose from what appear to have been serious misdeeds or from actions which any king would have wished to punish severely. For instance, the large sums which in 1198 were imposed on individuals and communities in East Anglia for sending corn to the king’s enemies in Flanders, in some cases amounting to hundreds of pounds, could be justified by the offenders’ having in effect tried to frustrate a vital strand in Richard I’s foreign policy.33 The amercements imposed on the abbots of Malmesbury and Stanley and the archdeacon of Dorset, of 100 marks, sixty marks and twenty marks respectively, which are recorded on the fine roll as having been imposed in 1201 `for contempt of the king’s court’, can be seen to have resulted from a summons to attend the coram rege court to face a charge of hearing a plea in Court Christian concerning tithes allegedly due from a royal serjeanty. They had neither obeyed the summons nor offered excuses (`essoins’) for their non-attendance, and though their punishment may have been harsh, it was not incomprehensibly so.34 It is at least possible that Geoffrey Salvage, who in 1204 paid an amercement of 200 marks `for his custody of Woodstock’, on condition that he accounted for his outlays and receipts, had been seriously incompetent, or dishonest, in his management of an important royal manor.35
But it was in any case accepted that the rich should pay more than the poor, either in contributing to a common amercement or when being assessed individually. When in 1180 the burgesses of Colchester incurred a heavy amercement for releasing a thief (indisputably a serious offence), amounting in all to £93. 13s. 4d., it can have aroused no surprise that the range of the seventeen amercements imposed on individuals was wide; one man paid as much as twenty-five marks, and three contributed twenty marks each, but four gave only one mark apiece, while a single payment of five marks came from all the other burgesses of the town acting together.36 Most recorded amercements were imposed before royal justices, and these show a consistent pattern, for most of John’s reign, of many small sums interspersed with occasional much larger ones. The proceeds of the 1203 Yorkshire eyre, for instance, were recorded as consisting of a single lump sum accounted for by the sheriff, a total of £924. 10s. 5d. which would have been largely made up of the amercements imposed on humble people, no doubt involving sums too small to be regarded as worth recording separately, and then a considerable number of individual amercements owed by communities and individuals, mostly of sums between 6s. 8d. and 20s., but including a small number of much larger debts, exacted either for offences which were regarded as unusually serious or simply because those upon whom they were levied had the means to pay them. This last category included such penalties as the £200 exacted from the township of Beverley `for badly kept measures’, the sixty and eighty marks owed by Mauger le Vavasur and Otto of Barkston respectively `for concealment’, forty marks due from William of Marton, presumably a coroner, `for a badly kept roll’, and sixty marks charged against Hugh FitzGernegan simply `for an amercement’ (de misericordia).37
King John was an exceptionally mobile ruler, who often heard lawsuits in the course of his travels. Some of the actions he heard involved important people or serious matters, and might lead to substantial amercements, but overall the financial issues of his sessions long resembled those of his justices. Probably during September 1207, for instance, proceedings `in the king’s eyre in Dorset and Somerset’ resulted in a total of sixteen amercements, eleven of them of 6s. 8d., one of 20s., one of 40s., one of £5, one of £20 (`for disseisin’), and one, on the Dorset knight William of Whitfield, of 200 marks (£133. 6s. 8d.) `for default concerning Swyre church’, a sum which an act of royal grace promptly reduced by half.38 In the previous year John had been in Yorkshire, where `amercements by the king’ were charged against the heads of a number of religious houses `for disseisin’; the sums involved ranged from ten to forty marks, of which the latter, upon the abbot of Sawley – a house far less prosperous than Roche or St Mary’s, York, whose abbots were both amerced of twenty marks - was then pardoned by the king who had imposed it.39 Though not massive, these were larger than average amercements (when John was in Yorkshire in 1205, the recorded issues of his `eyre’ there consisted entirely of sums between 6s. 8d. and 20s.),40 exacted from important people.
The king’s caprice could doubtless always decide the size of an amercement, and custom also accepted, if grudgingly, that the penalties demanded for infringements of forest law might be arbitrarily determined, since the forest was `subject to the sole judgement of the king or his specially appointed deputy’, and subject to laws `based on the will of princes.’41 Amercements for forest offences could certainly be heavy under John, but so they had been under his predecessors, and under any king they could be cancelled or reduced as readily as they had been imposed. In 1206, for instance, the abbot of Furness in Lancashire was recorded as owing 200 marks and two palfreys to be quit of the 500 marks `with which he was amerced out of the king’s mouth (per os Regis) concerning the forest ...’.42 The pattern for the penalties imposed at a forest eyre was very similar to that of an eyre for common pleas. After forest justices had visited Yorkshire in 1208, for instance, the pipe roll recorded the sheriff as accounting for nearly £190 in undifferentiated amercements, and then listed a number of mostly modest debts, among which sums the thirty marks owed by Robert de Stuteville and the fifty marks owed by William Fairfax stood out.43
How all these amercements were assessed is unrecorded. Many, as the well-nigh unavoidable punishments for infringements of regulations, property disputes and brawls among neighbours, were probably automatically imposed at what were effectively standard rates, with the wealthy paying somewhat more than the rest to make up for what could not be extracted from the poor, and larger amercements being imposed on hundreds and wapentakes in proportion to their size and prosperity. A whole county naturally paid more still – in 1202, for instance, Westmorland paid a common amercement of sixty marks `for concealment’,44 while in 1203 a similar offence cost Lancashire 100 marks45 – and as already seen, large amercements could on any occasion be imposed on men (and, indeed, women – the dowager countess of Clare was amerced of forty marks for disseisin by the king in 1206)46 of substance. For these the justices, or the king, no doubt took advice, as William FitzJohn had done, from men of the county, who, however, were probably more likely in such cases to be royal officials than freely-chosen representatives of their communities, large or small.
Royal justices of all kinds, not to mention the king himself, descended on the English shires almost every year during John’s reign, and their constant demands must have made the price of justice feel decidedly weighty. That it did not seem intolerable was probably because it was so widely diffused, and also because the king’s largest exactions still took the form of fines, which retained the character of freely-negotiated agreements; amercements, by comparison, were still relatively modest in scale. That may have begun to change in 1209, when a further forest eyre in Yorkshire – the king was engaged in an active campaign to recover lost forest rights there during these years - resulted in the sheriff accounting for only £10. 17s. 3d. in undefined amercements, but more and larger demands being made on individuals. Adam of Staveley was amerced of £40 and two palfreys (in effect another ten marks), Robert le Vavasur and Robert de Stuteville of 100 marks each, the abbot of Whitby of £62. 14s., Guiomar son of Warner of £50, Gilbert of Acton of fifty marks, and there were numerous other amercements involving sums that were not much smaller.47 Ordinary eyres in this year were less exacting in purely fiscal terms, but in some cases suggest that the net for the king’s demands was now being spread very widely indeed. The sheriff of Lincolnshire accounted for only about £90 (the manuscripts conflict as to the exact sum) in amercements, but in doing so he presented a startling 641 tallies,48 suggesting that money was being taken from almost anybody who had some, often in tiny amounts. It is also noticeable that a large number of the individual amercements, usually of modest sums, which were recorded on the pipe roll were entered without any reason being given, as if it had ceased to matter why those affected had come to be in the king’s mercy.
Then in 1210 King John and his agents threw restraint to the winds and without any apparent concealment began using judicial visitations simply as a means of raising money, and perhaps also instilling discipline, through substantial amercements which were commonly imposed on decidedly nebulous grounds. Little can be said of the men appointed to serve as `autumnal justices’ (as they are commonly called - in fact they circulated in high summer, and `harvest-time’ would be at least as appropriate an epithet) except that they appear to have been of only local standing, chosen essentially because they could be expected to know about the means of the men they were required to target.49 They visited most of the counties of England, and imposed penalties on individuals – never on communities - which were few in number, by comparison with those resulting from ordinary eyres - but often considerable in amount. The justification for them in a large majority of cases (eighty-eight out of 104) was an undefined `trespass’, though procedural deficiencies - `false speaking’, for instance, or failure in attaint (that is, failing to prove that a jury had given a false verdict) – were also sometimes cited.50
Not everybody penalised by these visitations can be identified, but the evidence strongly suggests that the targets for this fiscal onslaught were less the great men of the realm than the important men of the shires. A very few were minor barons or of near-baronial rank. John le Vicomte (amerced of sixty marks) was lord of the modest Northumberland barony of Embleton,51 and William de Montagu (fifty marks) was a minor tenant-in-chief in Somerset who was related to the barons of Chiselborough,52 while Richard Engaine (£200 and four fox-hounds), held a serjeanty in Cambridgeshire and around 1215 inherited half the Northamptonshire barony of Bulwick through his mother.53 Others were royal servants. Roger de la Dune (200 marks) had been constable of the Tower of London,54 and Richard of Seething (200 marks)55 and Alexander of Pointon (100 marks)56 both acted as justices itinerant, while Gilbert of Abinger (100 marks) and Gilbert Prodome (fifty marks) held assizes in Surrey in the same year that they were themselves amerced for `trespass’ there.57 Henry of Cobham (thirty marks), a member of a rising Kentish family, was the beneficiary in 1208 of an extended royal charter confirming him in his estates,58 and had clearly also gained from his employment by Reginald of Cornhill, one of John’s leading agents, so much so that after his patron’s death in 1209/10 he proffered 1000 marks `for having the king’s benevolence’.59
Many of those amerced in 1210 were knights who served as electors or jurors of the grand assize – the five Cumberland men amerced of a total of 260 marks all acted in this capacity60 – and others carried out other judicial or administrative functions as well. William Puignant (sixty marks), was a knight of the grand assize in Kent, where in 1212 he was also one of twelve knights summoned to investigate whether Archbishop Hubert Walter had died possessed of Shirley moor.61 In the latter year Robert le Vavasur (100 marks), a knight of the grand assize in Yorkshire, was recorded as one of a group of knights – they also included Alan of Wilton (100 marks) - appointed to act for the sheriff in holding pleas in Yorkshire county court.62 Philip of Burnham (forty marks), a knight of the grand assize in Norfolk, was a commissioner appointed in 1213 to investigate the losses suffered by the church in the diocese of Norwich during the interdict.63
A number of the men targeted by the `autumnal justices’ were tenants-in-chief, admittedly sometimes in a very small way – Henry de Furnell (£100) held a third of a fee in Devon,64 Roger de St John (sixty marks) two thirds of a fee in Oxfordshire.65 Such men and others who did not hold directly from the crown might nevertheless be substantial landowners by reason of mesne tenures which also linked them to men greater themselves. In some cases these were ecclesiastical magnates. Guy of Helbeck, Westmorland (sixty marks), was a tenant in Otterington, North Yorkshire, of part of the bishop of Durham’s barony of Allertonshire,66 and Joscelin of Walpole (200 marks) held a number of estates in East Anglia from the bishop of Ely,67 while Richard of Gosfield (sixty marks) was several times recorded as appearing in court on behalf of the abbot of Bury St Edmunds.68 Others held of secular barons. Thus Fulk Baynard (sixty marks) held eight and a half fees of Robert FitzWalter,69 Thomas of Astley (sixty marks) was a tenant of the earls of Warwick,70 and Gilbert Prodome held one fortieth of a fee of the Say barony of West Greenwich.71
The motives behind this campaign of financial oppression are made harder to fathom because a significant proportion of many amercements was pardoned. Among those recorded for Norfolk and Suffolk, for instance, nearly all on the grounds of unspecified `trespass’, Richard of Seething was only required to pay half of what he owed, which he did in the following year, and Alexander of Dunham likewise paid only half his amercement of 100 marks, while Richard of Gosfield was pardoned twenty out of sixty marks. Fulk Bainard, on the other hand, was granted no such remission, while Joscelin of Walpole had paid all his 200 marks within a few months.72 The largest single amercement arising from the entire circuit, one of 500 marks upon the Northamptonshire landowner (and future sheriff) Henry of Braybrooke, was swiftly reduced to 300 marks by a royal writ.73 But even when they had been reduced by a third or a half, the amercements imposed by the `autumnal justices’ were still heavy, and perhaps felt heavier still because the offences for which they were imposed commonly merited much lighter penalties. Braybrooke’s alleged offence, like that of many, was defined only as `trespass’, a vague term which was indeed sometimes used to justify a heavy penalty – in 1206, for instance, `trespass’ cost the town of Ipswich 100 marks before the king himself74 – but more often implied only a minor transgression.
The justices’ record of the financial issues of the 1202 Lincolnshire eyre shows that `trespass’ was commonly the term employed to describe the peccadilloes of local officials, whose shortcomings in failing to hold an inquest, producing the first finder of a corpse, failing to have a view made of disputed property, or arranging without permission a settlement between a woman and the man she had accused of raping her, usually cost them 6s. 8d. or 13s. 4d. each. The same was the case when `trespass’ was applied to offences by communities or private individuals. It was the transgression of two men who admitted conniving at the shaving of a prisoner’s head so that he could enjoy benefit of clergy (it cost one of them two marks and the other 6s. 8d.), and of a tithing which had buried a corpse before it had been viewed by a coroner or serjeant – it had to pay £2.75 The exception to this rule was Walter of Beelsby, seemingly the serjeant of a wapentake whose `trespass’ cost him fifty marks, after he had been twice put in mercy for different offences (it was in fact the first of these – failing to prosecute – which was entered on the pipe roll).76 The justices probably felt that his misdeeds were serious enough to call for severe punishment, and also that he could afford to pay a larger than average sum.
Even after his initial amercement had been cut by forty percent, Henry of Braybrooke’s remaining debt of 300 marks thus constituted a much heavier penalty than anything usually imposed for `trespass’, and the same was true of most of the amercements imposed by the `autumnal justices’. These certainly had their place in John’s efforts to maximise his revenues, but they were probably not only intended to raise money. Rather they represented the intensification of a campaign of exploitation and control, undertaken at a time when John’s domination of the whole of the British Isles was approaching its peak They were not aimed at the highest echelons of English society, whose members had for years been exposed to John’s exactions through the fines demanded of them for succession to their inheritances, marriages, wardships and the like, but rather at a level of society which the king may well have felt had hitherto been insufficiently exploited.
The men singled out for amercement in 1210, it may be suggested, were those whom Bracton shortly afterwards referred to as buzones, defined as `the greater men of the country ... on whose nod the views of the others depend ...’.77 Such men had indeed contributed indirectly to scutages and directly to taxes like the thirteenth of 1207, and they had been repeatedly hit by the demands of the king’s justices, but the amercements usually imposed by the latter were seldom substantial. In what is now TNA, JUST 1/1039, for instance, the record of proceedings in Yorkshire in four separate sessions between 1202 and 1208, the lowest amercement was 6s. 8d., but the highest on an individual was only 40s. (the township of Richmond had to find 100s. for failing to prosecute a homicide properly).78 In a few cases, moreover, amercements were pardoned altogether because of an offender’s poverty. By the time John’s affairs approached their crisis, it may be surmised, he had come to see such visitations as representing a missed opportunity, financially. But it was typical of John that he should also have tried to make political capital out of his own demands, by softening the blow somewhat for those he regarded as his friends, or perhaps by reminding those affected of the benefits which might result from his friendship for those who enjoyed it (and of course of the disadvantages which followed for those who did not).
If such was the king’s policy, it cannot often be shown to have had the desired effect – it is far more likely to have angered those who were hit by severe amercements for ill-defined offences, while those who were still obliged to pay half or two thirds of considerable sums are unlikely to have felt particularly grateful for not being required to pay even more. In the case of William de Perci (100 marks), the king’s ability to intervene on William’s behalf in a family property dispute was probably sufficient to retain his allegiance,79 while in 1217 it could be said of the Gloucestershire landowner Adam FitzNigel (thirty marks) that he `is and was faithfully and constantly in our fealty and service’,80 but among those whose loyalties can be traced such men were unusual. In Northumberland, for example, John Vicecomes (sixty marks) and William Maulovel (thirty marks) both rebelled,81 as did Simon of Driby in Lincolnshire (£100, half of it pardoned),82 Walter de Abernun in Surrey (100 marks),83 Richard of Stitchcombe in Wiltshire (fifty marks, thirty of them pardoned),84 Robert le Crevequor in Kent (100marks),85 and Wymar of Bassingbourn in Cambridgeshire (100 marks, sixty of them pardoned).86 Among those already mentioned, Fulk Bainard, William de Montagu, Richard Engaine, Alexander of Pointon, Robert le Vavasur, Alan of Wilton, Joscelin of Walpole and Thomas of Astley all joined the king’s adversaries, as did Henry of Braybrooke, who had joined their ranks by November 1215.87
By 1215 men like Braybrooke had been subjected to still further demands by the king and his justices. The visitation by the `autumnal justices’ was followed later in 1210 by a circuit akin to a conventional eyre headed by Richard Marsh, one of John’s leading councillors, and this was itself then followed up, probably in 1211, by sessions held by other justices who amerced at least some of the men convicted either before Marsh and his associates or in the court coram rege which had continued to sit after the common bench was closed in 1209. The amercements imposed in these subsidiary sessions were mostly small, and many of them were accounted for by sheriffs in often modest lump sums – just £24 from Bedfordshire and Buckinghamshire, for instance, and £58. 6s. 8d. from Nottinghamshire and Derbyshire,88 though as usual Yorkshire was hit harder, with the sheriff accounting for a total of £500. 6s. 8d. from what may have been three separate visitations.89 But there were also some large individual amercements. In Lincolnshire, for example, Nicholas of Shelton owed £100, and four men were amerced of 100 marks apiece, while others were expected to pay sums ranging from fifty to eighty marks; each was recorded simply as accounting for an amercement – de misericordia – without any indication being given of their offence.90 Similarly in Buckinghamshire and Bedfordshire, Fulk of Hyde was amerced of 120 marks and Nigel of Caldecote of 100, while five more men were amerced of sums ranging from fifty to eighty marks, again with no reason being given.91
In one case from 1211, however, the justification for fiscal punishment was made clearer (if still not ideally precise), when forty-eight Kentishmen were amerced `on account of the impress of the king’s seal’ (propter impressionem sigilli regis).92 Presumably some kind of falsification was involved, in what was undoubtedly a serious matter – forging the royal seal was a form of treason, and merited the severest penalties. The amercements imposed came to 1150 marks (£766 13s. 4d.), a round sum which suggests that this was the initial punishment imposed either on the whole county or on a community within it, and then divided up between the people involved. The divisions were anything but equal, however. Two men – Reginald of Luddesdown and Geoffrey de la Dene – had to pay 300 marks each, but the next largest amercement was of only forty marks (in three cases). Another three men had to find thirty marks apiece, while the remaining forty were amerced of sums between twenty marks and 26s. 8d. A large proportion of the entire sum had been paid by Michaelmas 1214. The pipe roll contains nothing to suggest how the division of this amercement was made, or by whom, but the king’s (unnamed) justices must have been closely involved, and if they took advice from local men it may well have been concerning the means of those involved in the offence against the king’s seal, rather than their relative culpability It is undeniably possible that Luddesdown and Dene were regarded as the ringleaders in some enterprise of falsification, obliged to pay large sums to save their lives, but it seems just as likely that they were targeted because they were the richest among those concerned in the transgression – Luddesdown was lord of the manor of Great Buckland, near Rochester,93 while Dene was another former employee of Reginald of Cornhill, and as such wealthy enough a year earlier to proffer 700 marks for the king’s good will.94
The evidence for the years immediately before Magna Carta is less than ideally full – the pipe roll for 1213 is lost – but it seems clear that although John showed himself to be intermittently aware of the resentment his financial demands was arousing, heavy amercements continued to be imposed. Perhaps inevitably, Yorkshire was the county hardest hit. A case heard in the court coram rege concerning an appeal of theft which led to a duel being waged in Yorkshire county court resulted in amercements totalling £361. 13s. 4d. being imposed on the knights who held the plea in the sheriff’s absence; two men were amerced of £100 each.95 They may well have mishandled the case, but the penalties seem unduly large. Among those required to pay smaller sums were Alan of Wilton (fifty marks) and Robert le Vavasur (twenty marks), who had been amerced by the `autumnal justices’ in the previous year. In the same year the communities of Yorkshire were penalised by a forest eyre. The whole county had to pay £200 `for trespass’, as did the city of York and town of Beverley (the latter was pardoned). Scarborough was amerced of £100, but pardoned fifty marks, but there was no pardon for Ainsty wapentake (200 marks), the soke of Snaith (£100) or Doncaster (£40).96 Forest eyres in other counties do not appear to have resulted in individuals and communities being subjected to large fines and amercements, but the sums accounted for by some sheriffs - £358. 17s. 6d. from the relatively poor county of Cumberland,97 for instance - show that these visitations must still have been cumulatively burdensome. By 1214 the exchequer’s fiscal apparatus was beginning to break down, but it could still record amercements imposed by the justiciar, Peter des Roches, in Sussex, which included one of £200 levied upon James FitzAlard (seemingly a leading burgess of Winchelsea) `for a false claim’98 – a substantial penalty for a commonplace offence.
Amercements, it has been said, constituted `the oppressive side of Angevin government’.99 They were always potentially burdensome, the more so because they were arbitrary in imposition and unpredictable in scale, and particularly when they arose from offences against the forest laws. They began to seem insupportable, ultimately to the extent of giving rise to political resistance, when in around 1210 they started to take the shape of heavy exactions upon the well-to-do men of the shires, apparently targeted for what they were rather than for anything they had actually done. The fact that little or nothing can be said of a number of the men upon whom the amercements of the `autumnal justices’ impinged, is perhaps a measure of the extent to which wealthy and influential families could put down roots in the shires, while remaining largely unconnected to and unaffected by the workings of the king’s government. John’s desperate need for money may have made him anxious to exploit the resources of this level of society, but it was a reckless venture on his part, and one which risked, and eventually entailed, severe repercussions for his style of government.
The justices of 1210 may have been local men, but as effectively royal agents they were not at all what the barons and their followers had in mind in 1215 when they demanded assessment of amercements by `trustworthy men of the vicinity’. In the context of Magna Carta, `trustworthy’ was a loaded word, voicing the determination of the rebels to keep the king’s officers at arm’s length in the localities, while giving freer play to local and regional outlooks and responses. Clause 20 was to apply to all the king’s subjects, free and unfree. The very fact that the magnates found it necessary to insert a separate clause (no. 21) demanding special treatment, in the form of assessment by their peers, when they became liable to amercement, is one of the clearest signs of the pressure from levels of society below the ranks of the baronage which contributed to the formulation of Magna Carta. And it also aspired to affect the whole of the king’s realm, making no exception for the royal forests, though this ultimately proved to be unachievable, and when a separate charter for the forests was drafted in 1217, the very severe penalties associated with the law of the forest were largely reinstated in it.100 But although the expectation that assessment by friends and neighbours would usually have the effect of keeping amercements down, and so of preventing the heavy exactions which John was taking in the years before 1215, was implicit in Clause 20, to outward appearances it left the king’s right to impose fiscal penalties intact. The underlying purpose of the clause, it may be surmised, was to rebalance relationships between the king, his officials and his justices on the one hand, and the localities on the other, in favour of the latter. When circumstances warranted, the crown could still, in theory (and occasionally in practice), exact large sums by way of amercements, but its need to act with local agreement severely restricted its ability to do so by employing what under King John had been effectively force majeure.
W. Stubbs (ed.), Select charters to the reign of Edward the first, 9th edn., ed. H.W.C. Davis (Oxford, 1913), 119.
J.C. Holt, Magna Carta and medieval government (1985), 252.
I have followed the analysis of J.P. Collas (ed.), Year books of Edward II xxv: 12 Edward II, part of Easter, and Trinity, 1319, Selden Society 81 (1964), xxii-xxxiii, drawn to my attention by Paul Brand.
L.J. Downer (ed. and trans.), Leges Henrici Primi (Oxford, 1972), 116-19.
E. Amt and S.D. Church (eds. And trans.), Dialogus de Scaccario (Oxford, 2007), 168-9.
Details from J.A. Green (ed. and trans.), The great roll of the pipe for the thirty-first year of the reign of King Henry I, Michaelmas 1130, Pipe Roll Society new series 57 (2012).
R.C. Van Caenegem (ed. and trans.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii, 441.
T. Madox, The history and antiquities of the excheqier, 2 vols. (2nd edn., 1769), i, 553 and note (x).
Ib., i, 559 and note (p).
Ib., i, 544 and note (m).
Ib., i, 552 and note (p).
Ib., i, 564 and note (a).
PR 6 Richard I (1194), 82.
PR 22 Henry II (1176), 119.
Ib., 112-16, 193.
PR 14 Henry II (1168), 141. The amercement is first recorded, but without details, PR 12 Henry II (1166), 97; its final payment is entered PR 18 Henry II (1172), 73.
R.H. Helmholz, `Magna Carta and the ius commune’, University of Chicago Law Review 66 (1999), 297-371, at 327-9.
J. Hudson, `Magna Carta, the ius commune, and English common law’, J.S. Loengard (ed.), Magna Carta and the England of King John (Woodbridge, 2003), 99-119, at 106-7.
G.D.G. Hall (ed. and trans.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd. edn., Oxford, 1993), 112, 114.
Dialogus de Scaccario, 116-17.
For a discussion of the word see J. Tait, `Studies in Magna Carta I; waynagium and contenementum’, English Historical Review 27 (1912), 720-8.
T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837), 51.
Holt, Magna Carta and medieval government, 199-200.
J.C. Holt, Magna Carta (2nd. edn., Cambridge, 1992), 58, 332-3.
W. de G. Birch, The historical charters and constitutional documents of the city of London (2nd. edn., 1887), 3-6.
PR 31 Henry II (1185), 222.
C. Brooke and G. Keir, London 800-1216: the shaping of a city (1975), 220-1.
Van Caenegem, English lawsuits, ii, 693.
e.g. Curia Regis Rolls ii, 1201-1203 (1925), 295; Curia Regis Rolls vi, 1210-1212 (1932), 220, 382.
G.F. Warner (ed.), Giraldi Cambrensis opera viii: De principis instructione liber (Rolls Series, 1891), 316.
PR 10 John (1208), 155.
PR 10 Richard I (1198), 92-3.
T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835), 134; Curia Regis Rolls i, Temp. Rich. I-1201 (1922), 426.
Rotuli de Oblatis et Finibus, 215.
PR 26 Henry II (1180), 7.
Details from PR 5 John (1203), 216-22.
PR 9 John (1207), 62.
PR 8 John (1206), 209.
PR 7 John (1205), 60-1.
Dialogus de Scaccario, 90-1
Rotuli de Oblatis et Finibus, 365; PR 8 John (1206), 73.
PR 10 John (1208), 156-7.
PR 4 John (1202), 157.
PR 5 John (1203), 233.
PR 8 John (1206), 32.
Details from PR 11 John (1209), 122-3
PR 13 John (1211), xxxv-xxxvj.
Details from PR 12 John (1210), xv-xvj.
PR 12 John (1210), 37; I.J. Sanders, English baronies: a study of their origins and descent, 1066-1327 (Oxford, 1960), 42.
PR 12 John (1210), 58; The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), i, 80, 81, 84, 86; Sanders, English baronies, 34.
PR 12 John (1210), 38; Book of fees i, 9, 18; Sanders, English baronies, 23.
PR 12 John (1210), 181; T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus.), 43..
PR 12 John (1210), 34; D. Crook, Records of the general eyre, Public Record Office handbooks 20 (1982), 68.
PR 12 John (1210), 37; Crook, Records of the general eyre, 64-8.
PR 12 John (1210), 39, 162-3.
Rotuli Chartarum, 178-9.
PR 12 John (1210), 120.
Ib., 36; Curia Regis Rolls vi, 194, 345.
PR 12 John (1210), 120; Curia Regis Rolls vi, 193, 271.
PR 12 John (1210), 40-1; Curia Regis Rolls vi, 112, 114-15.
PR 12 John (1210), 34; Rot.Lit.Claus., 165; Curia Regis Rolls v, 1207-1209 (1931), 37, 131, 214.
PR 12 John (1210), 58; Book of fees i, 96.
PR 12 John (1210), 106; Book of fees i, 102.
PR 12 John (1210), 7; Book of fees i, 24.
PR 12 John (1210), 35; Book of fees i, 629-31.
PR 12 John (1210), 34; B. Dodwell (ed.), Feet of fines for Norfolk, 1201-1215, and for Suffolk, 1199-1214, Pipe Roll Society new series 32 (1958 for 1956), nos. 370, 488, 526.
PR 12 John (1210), 34; Book of fees i, 576.
PR 12 John (1210), 99; Book of fees i, 508.
Book of fees i, 474.
PR 12 John (1210), 34-5.
PR 8 John (1206), 32.
Details from D.M. Stenton (ed.), The earliest Lincolnshire assize rolls, A.D. 1202-1209, Lincoln Record Society 22 (1926 for 1924)
PR 4 John (1202), 235; Earliest Lincolnshire assize rolls, nos. 818, 848, 1055.
S.E.Thorne (ed. and trans.), Bracton on the laws and customs of England ii (Cambridge, Massachusetts, 1968), 327 (f. 115b).
Details from C.T. Clay (ed. and trans.), Three Yorkshire assize rolls for the reigns of King John and King Henry III, Yorkshire Archaeological Society, Record Series 44 (1911 for 1910), 1-42.
PR 12 John (1210), 41; Rot.Lit.Claus., 250, 308; J.C. Holt, The Northerners: a study in the reign of King John (Oxford, 1961), 21, 67.
PR 12 John (1210), 97; Rot.Lit.Claus., 313.
PR 12 John (1210), 37; Rot.Lit.Claus., 289, 374.
PR 12 John (1210), 37; Rot.Lit.Claus., 309, 376.
PR 12 John (1210), 39; Rot.Lit.Claus., 270.
PR 12 John (1210), 88; Rot.Lit.Claus., 307.
PR 12 John (1210), 120; Rot.Lit.Claus., 232.
PR 12 John (1210), 38; Rot.Lit.Claus., 238.
PR 13 John (1211), 143, 216-17.
Ib., 28-9, 56-7.
E. Hasted, The history and topographical survey of the county of Kent, 12 vols. (2nd. edn., Canterbury, 1797-1801), iii, 367-74.
PR 12 John (1210), 120.
PR 14 John (1212), 38; Curia Regis Rolls vi, 214-15, 216.
PR 14 John (1212), 38-9.
PR 16 John (1214), 165-6; Curia Regis Rolls vi, 53, 90-1
W.L. Warren, The governance of Norman and Angevin England, 1066-1327 (1987), 159.
H. Rothwell (ed.), English Historical Documents iii: 1189-1327 (1975), 339 (clause 10).
Clause 60 (The 1215 Magna Carta)
John grants freedom of election (The Itinerary of King John)
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.