Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti.
Earls and barons are not to be amerced except by their peers, and not except in proportion to the nature of the offence.
Clause 21 was the apparently unplanned follow-up to Clause 20 – it has no equivalent among the Articles of the Barons. Clause 20 had laid down how amercements (monetary penalties, most often imposed in courts) were to be dealt with where the mass of the population was concerned – they were to be proportionate to the offence, and assessed by the transgressor’s neighbours. Clause 21, concerning itself with the wealthiest and most powerful of the king’s subjects, retained its predecessor’s stress on proportionality, but entrusted the task of assessment not to an offender’s neighbours but to his social equals. In doing so it marked an important stage in the emergence of the magnates as a separate stratum in English society. In the years around 1200 this process was still incomplete. The titles of earls had yet to become fixed, while barons could be either the fellow-magnates of the earls or just tenants-in-chief, men holding lands – any lands, not necessarily large estates – directly from the crown, or possibly royal servants. For all such men, earls and barons (however defined), the punishment of their offences was traditionally reserved to the crown, which sometimes meant an amercement imposed by the king himself but more often entailed one assessed in the exchequer, an institution which could be relied upon to uphold royal interests.
Although the amercements imposed on magnates were not necessarily exorbitant, they could still be substantial, especially in the later years of John’s reign, and the same was true of some of the fines they were obliged to pay – although they were nominally negotiated settlements, fines could be effectively penal, above all when they were demanded as a way of recovering the king’s favour, lost for some often undefined transgression. In Clause 21 the magnates not only demanded fairer treatment than they were receiving from either the king or the strongly royalist exchequer, they also wanted such treatment to reflect their own distinct status in the realm, at a time when they were coming to be separated from the lower ranks of landowning society – although the process was still incomplete, by 1215 a baron was increasingly likely to be a major landowner with a substantial following. However, they failed to specify how the assessment appropriate to their rank was to be made, and as a result lost most of the advantages Clause 21 was intended to secure for them. The leading officials of the exchequer were also known as barons, and by the 1230s were once more assessing amercements imposed upon magnates, on the grounds that they enjoyed the same baronial status. This was not at all what the drafters of Magna Carta intended.
Clause 55 (The 1215 Magna Carta)
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