An amercement is a financial penalty in English law, common during the Middle Ages, imposed either by the court or by peers.
While it is often synonymous with a fine, it differs in that a fine is a fixed sum prescribed by statute and was often voluntary, while an amercement is arbitrary. Amercements were commonly used as a punishment for minor offences (such as trespassing in the king's forest), as an alternative to imprisonment."Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914): Chapter 20"
Etymology The noun "amercement" derives from the verb to amerce: a king would amerce his subject, who had broken a law. The term is of Anglo-Norman origin (Law French, from French, from Latin), and literally means "being at the mercy of": a-merce-ment (the English word mercy is cognate).
History Early Norman rule A system of amercements was in place as early as the Norman Conquest of 1066, but was still regarded as an innovation when Henry I acceded to the throne in 1100. As the number of entities having legal jurisdiction over a given location increased, the sums demanded from a wrongdoer who wished to buy himself back under protection of the law had become increasingly burdensome. He had to satisfy claims of the victim's family, of the victim's lord, of the lord within whose territory the crime had been committed, perhaps of the church whose sanctuary had been invaded, of other lords who could show an interest of any sort, and finally of the king as lord paramount. It became practically impossible to buy back the peace once it had been broken. The Crown, however, stepped in, and offered protection on certain conditions: the culprit surrendered himself and all that he had to the king, placing himself “in misericordiam regis”, and delivering a tangible pledge (vadium) as evidence and security of the surrender. Strictly speaking, the man's life and limbs and all that he had were at the king's mercy. The Crown, however, found that excessive greed could be self-defeating, and generally contented itself with moderate forfeits. Rules of procedure were formulated: the amounts taken 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.
Thus a sort of tariff grew up, which the Crown usually respected in practice, without abandoning the right to demand more. Such payments were known as “amercements.” For petty offences, men were constantly placed “in mercy”: for failure to attend meetings of a hundred or county; for false or mistaken verdicts; for infringements of forest rights. The Charter of Henry I (chapter 8) had promised a remedy, drastic indeed but of a reactionary and impossible nature. His promise, to abolish altogether the system of amercements (then of recent introduction) and to revert to the earlier Anglo–Saxon system of bots and wites, was made only to be broken. No one could expect to pass through life (perhaps hardly through a single year) without being subjected to amercements.
Magna Carta Three chapters of Magna Carta are occupied with remedies for this ill. Chapter 20 seeks to protect the ordinary layman; chapter 21, the barons; and chapter 22, the clergy. Three subdivisions—the freeman, the villein, and the merchant—are treated here.
Amercements are much mentioned in Magna Carta, particularly article 20:
Amercement of freemen
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, safeguards were devised for freemen. (a) For a slight 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: threepence 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 could the offender be pushed absolutely to the wall: his means of livelihood must be saved to him. Even if all other effects had to be sold off to pay the amount assessed, he was to retain his “contenement,” a word to be afterwards discussed. (d) Another clause provided machinery for giving effect to these rules. The amount must be fixed, not arbitrarily by the Crown, but by impartial assessors, “by the oath of honest men of the neighbourhood.” In the reissue of 1216 “honest men” became “honest and lawworthy (legalium) men,” a purely verbal change.
There were apparently two steps in the fixing of amercements. (a) In the case of a commoner, the penalty under normal circumstances would be assessed provisionally by the king's justices on circuit, with the assistance of the sheriff. It was their duty to see that the amount was proportionate to the gravity of the offence. (b) Thereafter, the sheriff or his serjeants, in full county court, with the assistance of twelve neighbours, taxed the amercements, reducing them in accordance with their knowledge of the wrong–doer's ability to pay.
The Pipe Rolls afford illustrations of the practice. In the fourteenth year of Henry II a certain priest (who, in this respect, stood on 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 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.”
Magna Carta in this chapter, treating of the amercements of freeholders, merchants and villeins, makes no reference to the part played by the king's justices, but only to the functions of the jury of neighbours. All this is in marked contrast with the provisions of chapter 21, regulating the treatment to be accorded to earls and barons who made default.
Amercement of villeins
The early history of villeins as a class is enveloped in the mists that still surround the rise of the English manor. Notwithstanding the efforts of Frederic Seebohm to find the origin of villeinage in the status of the serfs who worked for Roman masters upon British farms long before the Teutonic immigrations began, an older theory still holds the field, namely, that the abject villeins of Norman days were descendants of free–born ceorls of Anglo–Saxon stock. On this theory, most of England was once cultivated by Anglo–Saxon peasant proprietors grouped in little societies, each of which formed an isolated village. These villagers 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 Norman conquerors. 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 villeins in the thirteenth century has been ascertained with certainty. Economically they were part of the equipment of the manor of their lord, whose fields they had to cultivate as a condition of being left in possession of acres, in a sense, their own. The services exacted, 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 obligations were discharged, little time was left him for the ploughing and reaping of his own holding. The normal villein possessed his virgate or half virgate (thirty or fifteen scattered acres) under a tenure known as villenagium, sharply distinguished from the freeholder's tenures. He was a dependent dweller on a manor which he dared not quit without his master's leave.
It is true that he had 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 pleaded elsewhere than before the court customary of that manor over which the lord's steward presided with powers wide and undefined. Politically his position was peculiar: allowed none of the privileges, he was yet expected to perform some of the duties, of the freeman. He attended the shire and hundred courts, and acted on juries, thus suffering still further encroachments on the scanty portion of time he might call his own, but preserving for a brighter day a vague tradition of his earlier liberty.
This chapter extends some measure of protection to villeins. Two questions, however, may be asked:—What measure? and from what motive? One point 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 merchant in similar plight—his means of livelihood being saved to him. The word now used is neither “contenement” nor merchandise, but waynagium, the meaning of which has been the subject of discussion. Coke defined it as “the contenement of a villein; or the furniture of his cart or wain,” and Coke has been widely followed. The word, however, has apparently no connexion with wains or wagons, but is merely a Latinized form of the French word gagnage, of which Godefroy gives five meanings: (a) gain; (b) tillage; (c) crop; (d) land under the plough; (e) grain. Professor Tait is inclined to read the word, in its present context, as equivalent either to “crops” or to “lands under cultivation,” and to translate the clause “saving his tillage.” What was the motive of these restrictions? It is usually supposed to have been clemency, the humane desire not to reduce a poor wretch to absolute beggary. It is possible, however, to imagine a different motive; the villein was the property of his lord, and John must respect the vested interests of others. That the King 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 were there introduced—villanus alterius quam noster: the king was not to inflict crushing amercements on villeins “other than his own,” thus leaving villeins on royal manors unreservedly in his power.
Amercement of merchants
The trader is in the same position as the liber homo, except that it is his “merchandise,” not his “contenement,” that is protected. The word is capable of two somewhat different shades of meaning. Narrowly interpreted, it may refer to his wares, the stock–in–trade without which the pursuit of his calling would be impossible. More broadly viewed, it might mean his business itself, his position as a merchant. The difference is of little practical import: in either view the Charter saves to him his means of earning a living.