Chapter Thirty–two, (1): The felon’s lands.

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 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.

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. 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, 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.

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. 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. 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.

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. Magna Carta prohibited such abuses, and settled the law for centuries. 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.