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CHAPTER THIRTY–TWO. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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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.
The Crown’s Claim to Property of Felons.
The Crown had established certain rights, not too well defined, in the property of criminals formally indicted and sentenced for felony. John, here as elsewhere, took advantage of the vagueness of the law to stretch prerogative to its limit. Magna Carta, therefore, attempted to define the exact boundaries of his rights. Custom gave the felon’s land to his feudal lord, and his chattels to the lord who tried him. The Crown encroached on the rights of both, claiming the real estate of felons, as against mesne lords, and their personal estate, as against lords who had jurisdiction.
The felon’s lands.
No difficulty arose when Crown tenants were convicted, for 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.1 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,2 who makes it perfectly clear that, before the lands were given up at the expiration of the year, houses were thrown down and trees rooted up. The lord, when at last he entered into possession of the escheated lands found a desert, not a prosperous manor.1
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 to hand over the land with all buildings and appurtenances intact.2 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.3 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.4
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.1 Magna Carta prohibited such abuses, and settled the law for centuries.2 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.3
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 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 a royal monopoly of jurisdiction over felons; and this logically implied a monopoly over their chattels—an inference confirmed by the express terms of article five of the earlier Assize. As the list of “pleas of the Crown” grew longer, so this branch of royal revenue increased proportionately, at the expense of the private owners of “courts leet.” The goods of outlaws and fugitives from justice likewise fell to the exchequer—the sheriff who seized them being responsible for their appraised value.4
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.”1
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.
It has been already shown2 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 law–worthy 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.3
If the prisoner was acquitted or died before conviction, 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 burning a house, had died in gaol non convictus. As the Pipe Roll states, his chattels did not pertain to the King.1
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.2 Prior to 1215 the usual test was ordeal of water in the ordinary case, or of the red–hot iron in the case of men of high rank and of women. If the suspected person 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 a petty jury became the normal “test” that 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 “standing mute” make his “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 a jury’s verdict was theoretically recognized, barbarous measures were in reality adopted to compel consent. The Statute of Westminster in 12753 directed that all who refused should be imprisoned en le prison forte et dure. This statutory authority for strict confinement was liberally interpreted by the agents of the Crown, who treated it as a legal warrant for revolting cruelties. Food and drink were virtually denied, a little mouldy bread and a mouthful of impure water only being allowed 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.1
Coke in commenting on this passage draws a further distinction between “conviction,” which directly resulted from a confession or a verdict of guilty, and “attainder” which required a formal sentence by the judge. In his age, apparently, it was the attaint that implied 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 in 1215, must have been immaterial then. It was under the Tudor sovereigns that the doctrine of the penal effects of attainder was elaborated. When sentence was passed on a felon, a blight fell on him: his blood was impure, and his kindred could inherit nothing that came through him. The Crown reaped the profit.2
Statutes of the nineteenth century modified the harshness with which this rule bore on the felon’s innocent relations:3 finally the Forfeiture Act of 18704 abolished “corruption of blood” and deprived the Crown of all interest in the estates of felons, alike in escheats and chattels. Thus the word “attainted” has become practically obsolete. 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.
[1 ]Pollock and Maitland, II. 500, consider that the present chapter had a distinct influence in accentuating this twofold classification of crimes.
[2 ]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.
[1 ]Is it possible that the origin of “year and waste” can be traced to the difficulty of agreeing on a definition of “real” and “personal” estate respectively? The Crown would claim everything it could as “chattels”—a year’s crops and everything above the ground.
[2 ]Second Institute, p. 36.
[3 ]See Pollock and Maitland, I. 316. “The apocryphal statute praerogativa regis which may represent the practice of the earlier years of Edward I.” Bracto (folio 129) while stating that the Crown claimed both, seems to doubt the legality of the claim.
[4 ]Cf. c. 4.
[1 ]Such at least is the most probable explanation of an entry on the Pipe Roll of 6 John (cited Madox, I. 488); although it is possible that Thomas only bought in “the year day and waste.”
[2 ]Magna Carta is peculiar in speaking of year and day, without any reference to waste. If it meant to abolish “waste” it ought to have been more explicit. Later records speak of “annum et vastum,” e.g. the Memoranda Roll, 42 Henry III. (cited Madox, I. 315), relates how 60 marks were due as the price of the “year and waste” of a mill, the owner of which had been hanged.
[3 ]Pipe Roll, 13 Henry III., cited Madox, I. 347. In Kent, lands held in gavelkind were exempt alike from the lord’s escheat and the King’s waste, according to the maxim, “The father to the bough, the son to the plough.” See, e.g. praerogativa regis, c. 16. See also Gloucester Pleas, 114, where apparently the King’s rights over half a hide were sold for 20s.
[4 ]Madox, I. 344–8, cites from the Pipe Rolls many examples.
[1 ]This case is cited by Madox, I. 347, from 18 Edward I.
[2 ]Supra, p. 88.
[3 ]See Bracton, II. folio 123, and folio 137.
[1 ]Pipe Roll, 2 John, cited Madox, I. 348.
[2 ]Cf. supra, c. 24.
[3 ]3 Edward I. c. 12.
[1 ]The Act 12 George III. c. 20, made standing mute equivalent to a plea of guilty. A later Act, 7 and 8 George IV. c. 28, made it equivalent to a plea of not guilty. See Stephen, Hist. Crim. Law, I. 298.
[2 ]This fiction of corrupt blood was apparently based in part on a false derivation of the word “attainder.” See Oxford English Dictionary.
[3 ]E.g. 54 George III. c. 145, and 3 and 4 William IV. c. 106, s. 10.
[4 ]33 and 34 Victoria, c. 23.