The magnates in 1215 made no attempt to interfere with this branch of administration, tacitly acquiescing in Henry II.’s encroachments on their ancestors’ criminal jurisdictions and perquisites. Under Henry III. and Edward I. the forfeited goods of felons continued to form a valuable source of revenue. In 1290 the widow of a man who had committed suicide, and therefore incurred forfeit as a felo de se, bought in his goods and chattels for £300, a high price, in addition to which the Crown specially reserved its “year day and waste.”[[707]]
II. Indictment, Conviction, and Attainder. The Crown could not appropriate the property of men merely suspected of crime, however strong might be the presumption of guilt. Mere accusation was not enough; a formal judgment was required. The Charter refers to the lands of a “convicted” offender, and conviction must be distinguished from indictment on the one hand, and from attainder on the other; since these formed three stages in the procedure for determining guilt.
(1) Indictment. It has already been shown[[708]] how Henry of Anjou tried to substitute, wherever possible, indictment by a jury for private appeal in criminal suits. The Assize of Clarendon authorized such indictments to be taken before sheriffs, and we learn from Bracton that immediately the formal accusation had been made the sheriff became responsible for the safety of the accused man’s property, both real and personal. With the help of the coroners and of lawful men of the neighbourhood he must have the chattels appraised and inventoried, and hold them in suspense until the “trial,” providing therefrom in the interval “estovers,” that is, sufficient sustenance for the accused and his family.[[709]]
If the prisoner was acquitted or died before conviction, then the lands and chattels were restored to him or to his relatives, the Crown taking nothing. Reginald of Cornhill, sheriff of Kent, was discharged in 1201 from liability for the appraised value of the goods of a man who, after indictment for the burning of a house, had died in gaol non convictus. As the Pipe Roll clearly states, his chattels did not pertain to the king.[[710]]
(2) Conviction. If the sheriff presided over all preliminary procedure connected with indictment, only the justices could “try” the plea, that is, give sentence according to success or failure in the test appointed for the accused man to perform.[[711]] Prior to 1215 the usual test, in accordance with the Assize of Clarendon, was the ordeal of water in the ordinary case, or of the red-hot iron in the case of men of high rank, or of women. If the suspected man failed, sentence was a mere formality; he had “convicted” himself of the felony. As a consequence of the condemnation of ordeal by the Lateran Council of 1215, the verdict of guilty pronounced by what was virtually a petty jury, became the normal “test” which branded an offender as convictus. This was long looked on as an innovation, and accordingly the law refused to compel the accused, against his will, to trust his fate to this new form of trial. He might refuse to “put himself upon his country,” and by thus “standing mute,” as the phrase was, make his own “conviction” impossible, saving himself from punishment and depriving the king of his chattels and “year and day.” For centuries those responsible shrank from the obvious course of treating silence as equivalent to a plea of guilty; but while liberty to refuse to submit to a jury’s verdict was theoretically recognized, barbarous measures were in reality adopted to compel consent. The Statute of Westminster in 1275[[712]] directed that all who refused should be imprisoned en le prison forte et dure. The object seems to have been to ensure that obstinate offenders should not escape altogether unpunished, although they saved their property by avoiding a technical conviction. This statutory authority for strict confinement, however, was very liberally interpreted by the agents of the Crown, who treated it as a legal warrant for revolting cruelties, aimed at compelling the stubborn to put themselves upon a jury. Food and drink were virtually denied to them, a little mouldy bread and a mouthful of impure water only being allowed them upon alternate days; and at a later date the prisoner was slowly crushed to death under great weights “as heavy, yea heavier than he can bear.” Brave men, guilty, or mayhap innocent, but suspicious of a corrupt jury, preferred thus to die in torments, that they might save to their wives and children the property which would upon conviction have fallen to the Crown. The fiction was carefully maintained that the victim of such barbarous treatment was not subjected to “torture,” always illegal at common law, but merely to peine forte et dure, a perfectly legal method of persuasion under the Statute of 1275. This procedure was not abolished until 1772; then only was an accused man for the first time deprived of his right to "have his law"—his claim to ordeal as the old method of proving his innocence. Until that date then, a jury’s verdict was treated as though it were still a new-fangled and unwarranted form of “test” usurping the place of the ordeal, although the latter had been virtually abolished early in the thirteenth century.[[713]]
(3) Attainder. Coke in commenting on this passage draws a further distinction between “conviction” which resulted immediately either from a confession or from a verdict of guilty, and “attainder” which required in addition a formal sentence by the judge. In his age, apparently, it was the sentence of attaint which implied the forfeiture; looking as usual at Magna Carta through seventeenth-century glasses, he seems surprised to find “convicted” used where he would have written “attainted.” Yet this distinction, if recognized at all in 1215, must have been quite immaterial then. It was under the Tudor sovereigns that the doctrine of the penal effects of attainder was fully elaborated. When sentence was passed on a felon, a blight as it were fell immediately upon him: his blood was henceforth in the eye of the law impure, and his kindred could inherit nothing that was his or that came through him. No one could be treated as a blood relation of one whose entire blood was tainted; and the Crown naturally reaped the profit.[[714]]
A series of statutes of the nineteenth century modified the harshness with which this rule bore on the felon’s innocent relations;[[715]] and finally the Forfeiture Act of 1870[[716]] abolished “corruption of blood” and deprived the Crown completely of all interest in the estates of felons, alike in escheats and in chattels. Thus the word “attainted” has become practically obsolete, and the distinction insisted on by Coke has ceased to have any importance in modern law. A criminal who is fulfilling the term of his sentence is known, not as a man attainted, but simply as a “convict,” the same word as was used in Magna Carta.
[697]. Pollock and Maitland, II. 500, consider that the present chapter had a distinct influence in accentuating this twofold classification of crimes.
[698]. Glanvill, VII. c. 17. Cf. Bracton, folio 129, for a graphic description of “waste,” which included the destruction of gardens, the ploughing up of meadow land, and the uprooting of woods.