Definition
De moderata misericordia capienda (Latin: "for taking a moderate amercement") is a common law writ directed to the lord of a court not of record, commanding that only a reasonable and proportionate amercement be levied against a party. The writ arose when a person had been excessively amerced — that is, fined beyond what the offense or circumstances warranted — in a manorial or other inferior court lacking the status of a court of record. It served as a corrective remedy, compelling the lord or his bailiff to reduce the penalty to a moderate and lawful amount before collection proceeded.
The writ was grounded in Chapter 14 of Magna Carta (1215 and its reissues), which established that a free man should be amerced only in proportion to the gravity of the offense, and that the amercement must not deprive him of his means of livelihood. De moderata misericordia capienda was the procedural instrument by which that constitutional guarantee was made enforceable at the level of the individual litigant.
---
Common Confusion
Amercements and fines were distinct in medieval and early modern law, though the distinction has largely collapsed in modern usage. A fine was a fixed, agreed sum — often part of a final concord or settlement — while an amercement was an ad hoc pecuniary punishment assessed at the discretion of the court or lord. De moderata misericordia capienda applied specifically to excessive amercements, not to fines proper. Researchers encountering either term in historical records should not treat them as interchangeable.
---
Why It Matters in Research
This term belongs to a narrow corridor of legal history — the medieval and early modern enforcement mechanisms attached to Magna Carta's proportionality guarantees. Researchers will encounter it almost exclusively in treatises on common law writs, abridgments, and historical commentary on Magna Carta rather than in case reporters, because the writ operated in courts not of record, which by definition left minimal written traces.
Several navigational considerations apply:
First, the writ's Latin name appears in variant spellings and abbreviations across historical sources. The terminal element is sometimes rendered capienda, sometimes capiendo, and occasionally omitted altogether in older abridgments that reference it only by function. Keyword searches in digitized sources should account for this variation.
Second, the Magna Carta chapter numbering is not consistent across editions and eras. Chapter 14 in some reckonings corresponds to different chapters in others, depending on whether the source uses the 1215 original, the 1217 reissue, or the 1225 reissue. Researchers citing the Magna Carta foundation of this writ should verify which version of the text their source is referencing.
Third, the writ's practical relevance diminished as courts not of record declined in importance through the seventeenth and eighteenth centuries. By the time American common law was consolidating in the early republic, the writ was largely a historical curiosity rather than a living remedy. Its appearance in American legal dictionaries reflects inherited English learning rather than active American practice.
Fourth, the broader Magna Carta proportionality principle that underlies this writ has had significant modern legal life — in Eighth Amendment jurisprudence, in excessive fines clause doctrine, and in due process analysis — even though the writ itself did not survive as a practical tool. Researchers working on the history of proportionality in punishment or the constitutional lineage of the excessive fines clause will find this writ relevant as an ancestor concept.
---
Historical Dictionary Support
Black's Law Dictionary (2nd Ed., Supplemental) provides the core identification: a writ "founded on Magna Charta, (c. 14,)" lying for one "excessively amerced in a court not of record," directed "to the lord of the court, or his bailiff." The entry is spare but accurate in its essentials.
The Black's entry does not address the procedural mechanics of how the writ was obtained, what showing was required to establish that an amercement was excessive, or what the lord was commanded to do in specific terms. Historical treatise literature — particularly Fitzherbert's Natura Brevium and later abridgments — contains fuller treatment of the writ's operation. Researchers needing more than the Black's sketch should proceed directly to those sources rather than expecting further elaboration from dictionary literature.
The writ sits within a family of remedies designed to police inferior and private jurisdictions from above, a category that historical dictionaries treat unevenly. Black's coverage of this particular writ is functional but minimal by comparison with the attention given to more frequently invoked common law writs.
---
Jurisdictional Note
The writ is purely English common law in origin and has no recognized American procedural counterpart. Its relevance to American legal research is historical and doctrinal rather than practical.
---