[695]. Cf. Sir James Ramsay, Angevin Empire, p. 476, who considers that chapters 28 and 30, in the branches of prerogative with which they respectively deal, "leave the king’s personal right open."
[696]. See Coke, Second Institute, 36.
CHAPTER THIRTY-TWO.
Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terre dominis feodorum.
We will not retain beyond one year and one day, the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs.
I. The Crown’s Claim to the Property of Felons. The Crown had gradually established certain rights, not too clearly defined, in the property of all criminals formally indicted and sentenced for felony. John, here as elsewhere, took full advantage of the vagueness of the law to stretch prerogative to its utmost limit. Magna Carta, therefore, attempted to define the exact boundaries of his rights. The old customary law seems invariably to have given the chattels of a condemned man to the owner of the court which tried him, and the desire for such perquisites must have created an unfortunate bias against the accused. It was not possible, however, to adopt so simple a rule with regard to the real estate of felons, for this was claimed as escheat by the feudal lord from whom the lands were held. Custom gave the land of a felon to his feudal lord, and his chattels to the lord who tried him. The Crown gradually encroached on the rights of both, claiming the real estate of felons, as against mesne lords, and their personal estate, as against the lords who had jurisdiction.
(1) The felon’s lands. No difficulty arose when Crown tenants were convicted, since there the king was lord of the fief as well as lord paramount, and claimed the whole lands as escheat. When the condemned man was the tenant of a mesne lord, however, a conflict of interests occurred, and here a distinction, which gradually became hard and fast, was drawn between treason and felony.[[697]] Treason was an offence against the person of the sovereign, and it was probably on this ground that the king made good his claim to seize as forfeit the entire estate, real and personal, of every one condemned to a traitor’s death. With regard to ordinary felons, what looks like a compromise was arrived at. The king secured the right to lay waste the lands in question and to appropriate everything he could find there during the space of a year and a day; after which period he was bound to hand over the freehold thus devastated to the lord who claimed the escheat. Such was the custom during the reign of Henry II. as described by Glanvill, who makes it perfectly clear that before the lands were given up at the expiration of the year, the houses were thrown down and the trees rooted up, thus purging away the taint of crime and enriching the exchequer with the price of the timber and building materials.[[698]] The exercise of this right of waste inflicted upon the lord of the escheat an amount of damage out of all proportion to the benefit it brought to the king. The lord, when at last he entered into possession of the escheated lands, found a desert, not a prosperous manor.[[699]]
Coke has attempted to give a more restricted explanation of the Crown’s rights in this respect, maintaining that the “year and day” was not an addition to, but a substitute for, the earlier right of “waste,” that the king renounced his barbarous claims in return for the undisputed enjoyment of the ordinary produce for one year only, and agreed, in return for this, to hand over the land with all buildings and appurtenances intact.[[700]] The authorities he cites, however, are inconclusive, and the weight of evidence on the other side leaves little room for doubt. Not only does the phrase “year day and waste” commonly used, create a strong presumption; but Glanvill’s words in speaking of the earlier practice are quite free from ambiguity, while the document known as the Praerogativa Regis is equally explicit for a period long after Magna Carta.[[701]] Waste, indeed, was a question of degree, and the Crown was not likely to be scrupulous in regard to felons’ lands, when it allowed wanton destruction even of Crown fiefs held in honourable wardship.[[702]] A year was by no means too long for a thorough exercise of the right of waste.
Wide as were the legal rights of the Crown, John extended them illegally. When his officers had once obtained a footing in the felon’s land, they refused to surrender it to the rightful lord after the year and day had expired. In 1205, Thomas de Aula paid 40 marks and a palfrey to get what he ought to have had for nothing, namely the lands escheated to him through his tenant’s felony.[[703]] Magna Carta prohibited such abuses for the future; prompt evacuation must henceforth take place when the year was over; and this settled the law for centuries.[[704]] The Crown long exercised its rights, thus limited, and Henry III. sometimes sold his “year day and waste,” for considerable sums. Thus, in 1229 Geoffrey of Pomeroy was debited with 20 marks for the Crown’s rights in the lands of William de Streete and for his corn and chattels. This sum was afterwards discharged, however, on the ground that the king, induced to change his mind, doubtless by a higher bid, had bestowed these rights on another.[[705]]
(2) The felon’s chattels. From an early date the king enjoyed, like other owners of courts, the right to the goods of the offenders he condemned. When Henry II. reorganized the entire system of criminal justice, and formulated, in the Assizes of Clarendon and Northampton, a scheme whereby all grave offenders should be formally indicted, and thereafter reserved for the coming of his own justices, he established what was practically a royal monopoly of jurisdiction over felons; and this logically implied a monopoly over their chattels as well—an inference confirmed by the express terms of article five of the earlier Assize. As the list of “pleas of the Crown,” which is in this connection identical with the list of “felonies,” grew longer, so this branch of royal revenue increased proportionately at the expense of the private owners of “courts leet.” Even in the ten years between the criminal codes of 1166 and 1176, two new offences were added to the list, forgery and arson. The goods of all outlaws and fugitives from justice likewise fell to the exchequer—the sheriff who seized them being responsible for their appraised value.[[706]]