The Magna Carta Project

Citation

Clause 32 made no significant changes from No. 22 among the Articles of the Barons. An impersonal statement of what the king was not to do became a personal undertaking to the same effect, using the royal `we’, and both `lord’ and `land’, singular in the Article, became plural in the Clause, but the essential content remained the same. The Clause had little in common with those on either side of it. It came after a group of four clauses principally concerned with abuses linked to castles, and preceded one designed to keep the Thames and other English rivers clear of fish-traps, but whereas Clause 33 was included primarily to protect the interests of London, Clause 32 was intended to safeguard those of lords in the lands of their free tenants if these fell into the king’s hand because their holders had been convicted of felony.

The laws of forfeiture

Forfeitures of land for the serious offences against the king and his peace which came to be defined as treason and felony can be traced back at least to the reign of King Alfred, when, however, a distinction was made according to the nature of the offence and the identity of the original grantor of the property concerned.1 The law-codes show that in pre-Conquest England land granted by the king, known as `bookland’, reverted to him, while other property reverted to the offender’s lord. But anyone who conspired against the king became `liable to forfeit his life and all that he owns’.2 The Leges Henrici Primi show that the distinction between `bookland’ and other forms of tenure was still observed in the early twelfth century,3 and this is confirmed by a case recorded in the Abingdon Abbey chronicle, telling how in 1112/13 one Ralph, the son of Walter the ditcher, committed theft (furti crimen) and therefore lost a hide of land at Dumbleton, Gloucestershire, but having obtained a pardon from Henry I, he came to terms with the abbot of Abingdon, to whom the property had reverted, and received a horse, money and wheat in return for it.4 Despite his seemingly rustic parentage, Ralph was apparently a man of status and means, for whom a horse was a serviceable gift, and with access to the king and queen, as well as to the abbot. But although his offence had been such that he needed a royal pardon before he could live safely in England, the king’s interest thereafter did not extend as far as Ralph’s land, which passed to his lord.

Changes in the claims the king could make on the lands of free men and women who committed felonies came about in the reign of Henry II, but the pace of change may have been uneven, resulting in differences between the accounts given by the two principal manuals of government, both dating from the later years of the reign. According to the Dialogus de Scaccario, tenants-in-chief convicted of crime (scelus – the term `felony’ was not used) forfeited everything to the king, lands and chattels alike. As for humbler criminals (scelerati), their goods went to the king, but their `immoveable possessions’ became their lords’.5 The distinction where lands were concerned was thus effectively that made in earlier periods, but the legal treatise Glanvill, which was probably written a few years after the Dialogus, added a significant refinement to it (as well as defining as `felony’ the offences which entailed such penalties). The chattels of sub-tenants went to the king, their lands to their lords, but only after a full year, during which the issues became the king’s, while at the end of that time the king was also entitled to devastate the property in order to remove everything of the least value on it – he could `pull down houses and root up trees’.6 The aim of this procedure was probably to make the king’s right to a felon’s chattels as extensive as possible, but inevitably it compromised, if only temporarily, the rights of lords in lands to which they had previously expected an undisputed reversion, one which, Glanvill continued, they still enjoyed when their tenants were convicted of theft, then still an offence falling under the jurisdiction of the sheriff.

Neither the Dialogus and Glanvill gave much space to treason, described by them as lèse-majesté, but their coverage shows that for both treatises the penalties included total forfeiture – in Glanvill’s words, `all his goods and chattels shall be confiscated and his heirs disinherited for ever’.7 It seems likely that Henry II’s attempts to curb lawlessness had entailed the strengthening, or revival, of an ancient link between felony and treason, whereby the former was approximated to the latter by the argument that the felon who broke the king’s peace had in the process also broken his oath, taken when he became a member of a tithing, to observe and uphold it, and so became a traitor, deserving as such of the heaviest penalties.8 The Assize of Northampton of 1176 not only revised the peace-keeping measures contained in the Assize of Clarendon ten years earlier, but added to it the requirement that his justices should take oaths of fealty `from all, namely from earls, barons, knights and free tenants, and also villeins (rusticis), who wish to remain in the kingdom’, and added that anyone who refused to take the oath `should be arrested as the king’s enemy’.9

It seems unlikely that those who did take the oath and subsequently broke it were seen in a different and less hostile light. That felony might indeed be associated with treason against the king, and therefore potentially liable upon conviction to entail forfeiture of lands as well as of chattels, is suggested by an action heard in the bench in Trinity term 1200, in which Robert son of Berta, defending his right in lands at Creeksea, Essex, argued that he should not have to answer the plaintiff, Jordan son of Avice, `whose father was wicked (nequam) and lost a foot and an arm under the assize of Clarendon, and he was born of a wicked body ...’.10 Jordan had claimed the property as the heir of his mother. Robert’s argument treated this normally important detail as irrelevant, asserting instead that as the son of a convicted felon Jordan was so tainted in blood that he could not under any circumstances lay claim to another man’s free tenement. His contention was resisted by his opponent and could not be sustained, and proceedings ended in a settlement which partitioned the disputed land between the parties.11 But the argument was nevertheless significant, for if a plaintiff who was himself a man of no particular standing could reason in this way, in an action over only a modest amount of land, it seems unlikely that the crown’s agents never made similar claims.

The implications of Robert’s argument were thus potentially serious for lords, and give weight to F.W. Maitland’s perception, in his analysis of the treatment of felons’ lands, that the issue gave rise to a conflict between king and barons which was finally resolved by a compromise.12 The rule that gave those lands back to the lords after a year and a day in the king’s hands, ravaged of everything on them, probably formed an important part of that compromise, one to which Clause 32 itself bore witness, in that it concerned itself only with felony and made no mention of treason. The barons would probably not have denied that a traitor’s lands should be forfeit to the king, but they were seemingly unconcerned with a possibility that rarely arose. The criminality which was all too often inherent in homicide, robbery and acts of violence was a different matter, and they wanted to safeguard their rights against its consequences for their own rights.

Establishing protocols

Establishing that rule was one thing, inducing the king to observe it quite another. The temptation for the crown and its agents to hold on to land that should have been only temporarily forfeited was probably always strong, as can be deduced from a well-known case from the 1180s recorded by Roger of Howden.13 Gilbert of Plumpton, a younger son of a landowning family of Percy tenants in Yorkshire,14 fell foul of the justiciar Ranulf de Glanville in 1184 by abducting and marrying Maud, the daughter of Roger de Guillevast, an important tenant of the honour of Richmond.15 Glanville, who was also sheriff of Yorkshire, had intended Maud, and her inheritance, for his under-sheriff Reiner, and to bring about their marriage arranged for Gilbert to be charged with theft and robbery, committed in the course of Maud’s abduction. Removed to Worcester for trial in the curia regis, Gilbert was convicted and sentenced to be hanged, only to be saved at the last minute by the intervention of Bishop Baldwin of Worcester, who had the execution deferred on the grounds that it was wrong to hang a man on what was both a Sunday and the feast of St Mary Magdalene (22 July). Henry II was then persuaded to grant a reprieve to Gilbert, who nonetheless remained in prison for the rest of the reign, and seems to have been treated as a convicted felon, since he forfeited both lands and chattels. In the years 1184-5 the sheriff of Yorkshire accounted for a total of 58s. 8d. from lands and for £19. 19s. 9d. from the sale of chattels (as a younger son of what Howden called a `noble’ family, Gilbert could have expected to be richer in movable than immovable property), while in 1186 a further 30s. were paid in from the sale of chattels and houses (de domibus suis venditis), the latter doubtless constituting the proceeds of a year’s waste.16 The lands of Gilbert’s wife, moreover, appear to have been treated as though they were her husband’s, for in 1190, following the succession of Richard I, Nigel of Plumpton paid 100 marks `for the release of Gilbert his brother and for his having his wife back with her land.’17 Gilbert thus lost his own estates (which were also stripped bare) and those of his wife for between five and six years, even though neither he nor Maud’s father were tenants-in-chief, so that these properties should have reverted to the mesne lords of whom they were held.

It is possible to see in the treatment of Gilbert of Plumpton signs both of the elision of felony and treason suggested by the Assize of Northampton, and of the compromise over felons’ lands, represented by their being wasted, which arose from that elision and was recorded by Glanvill. It is probably immaterial that waste was neither referred to by Clause 32 nor accounted for as such in exchequer records – it seems likely that it was automatically included among the issues of felons’ lands, as indeed, is suggested by the comprehensive order sent to the sheriff of Oxfordshire in 1207, that `he seize into the king’s hand all the lands, tenements and chattels of Jordan of Bilney, who was hanged for the death of Richard of Alderford, of which he was convicted, and sell all his chattels and answer for them, together with the issues of those lands, at the king’s exchequer.’18 It is noteworthy, however, that Jordan’s lands and chattels had apparently not been taken into the king’s hands before his execution, since evidence from other cases shows that it became standard practice for them to be seized at the moment of a suspect’s arrest, to make sure of their possession and also, no doubt, to provide for their owner’s maintenance while he was in prison. In 1205 William de Duin, a Hampshire landowner, proffered thirty marks and two palfreys, `for having his inheritance of which he was disseised’ for a homicide `with which he was charged and not outlawed ...’19 – in this and similar cases it was the accusation, not the conviction, which initially led to the sequestration of lands and chattels, which could thus have been in the king’s hands for months, if not years, before (if their owner was convicted) they were finally declared forfeit.

Glanvill is silent on this point, but although evidence from the reigns of Henry II and Richard I is almost entirely lacking, it seems probable that where the lands of convicted, as opposed to suspected, felons were concerned, the procedure laid down in that treatise had become generally accepted by the end of the twelfth century, and perhaps a good deal earlier. The detail supplied by Howden suggests that the case of Gilbert of Plumpton was in every respect irregular; it shows what could happen to a man who fell foul of a powerful royal servant, but there is no reason to believe that Gilbert’s difficulties were typical. For the king, and especially for one like King John, this development was probably an unwelcome one. He stood in constant need of lands which he could give away in order to win, retain or reward service, one which was conventionally met from such sources as escheats and wardships, less conventionally through the arbitrary dispossessions of estates – disseisins – whereby the Angevin kings disciplined and punished their free subjects. The loss of Normandy in 1204 put a great many properties at King John’s disposal, through the forfeitures of men who retained their cross-Channel lands by giving their loyalty to Philip Augustus, but consequently lost their English ones because they were now seen as his enemies by King John. (Such confiscations, and the grants of land made from them, were usually recorded as being only temporary, and could have been reversed had John recovered his lost duchy – needless to say, this did not happen.)20 The men dispossessed were, in effect, traitors, and their being treated as such seems to have been regarded as entirely justified. Confiscations from convicted felons were equally legitimate, and could have been similarly useful, either in replenishing the king’s store of patronage, or simply as sources of revenue. But despite such windfalls the demand was always greater than the supply.

Circumventing the rules

Where a felon was the tenant of a mesne lord, his estates (when freely held – it was by no means rare for free men to hold lands by villein tenure as well) were not, after the initial year and day, at the disposal of the king. But John, at least, found other ways of exploiting them (the inadequacies of the sources make it impossible to say if any of his predecessors acted in this way). Late in 1204 one William of Stroby, a Lincolnshire landowner (in 1202 he secured two and a half bovates in Stroby itself)21 was outlawed for forging the king’s seal – an act of treason which should have put his lands at the king’s disposal. But the issue of ownership was not seen as clear-cut, for Adam of Essex, a royal clerk, proffered two palfreys (he later added a third) both to have all William’s lands `from the fees of the lord king and of others’, and also `so that the lord king may act towards the lords [efficiat erga dominos] of whom William held, that they may give Adam what William held from their fees and take homage for it and make him their charters for it ...’.22

King John responded in two stages, firstly by ordering the sheriff of Lincolnshire on 11 September 1204 to hand over William’s lands to Adam, complete with all his chattels and stock, and then on 28 November by notifying the sheriff formally of the grant of the lands as `our escheat for the felony he did in forging our seal ...’23 – the interval is probably to be explained by William’s attempting to come to come to terms with the king, for which he was granted a safe conduct on 13 October,24 but which did not in the end prevent his being outlawed. But despite the nature of the offence, John did not press his own claim on William’s lands, for he did as Adam requested. In a charter issued on 17 March 1205 he recorded that `William of Stroby, on account of the felony which he committed concerning our seal which he falsified, because of which felony he fled and was outlawed in Lincoln county court, lost and forfeited according to the custom of our kingdom all his lands, tenements and fees and all the rights which he had in everything without any recovery for himself or his heirs ...’.But despite this sweeping assertion of forfeiture, John went on to record how William de Grenesby and Richard of Sutton came into his court and there granted all the property which William of Stroby had held from them to Adam of Essex and took his homage for it.25

Another case, from a little earlier in his reign, similarly shows John arranging for a grant by himself to be confirmed by a mesne lord. In Easter term 1198 Alice of Whatley appealed Malger of Milbourne of killing her husband Robert, a Somerset landowner. Alice’s account of the crime was received with scepticism from the start, and she quickly fell under suspicion herself.26 Later in 1198 she was arrested and taken to Westminster,27 and though her case was slow to come to trial, early in 1201 she was brought before King John at Louth in Lincolnshire, as he made his way northwards, where she was convicted of her husband’s death and sentenced to be burnt – the usual penalty for a woman convicted of petty treason. Robert of Whatley was a tenant-in-chief, and in 1199 the wardship of his heir and lands, which were centred upon Milborne and Stowell, was granted to Walter FitzGodfrey for fifty marks (the money was paid a year later, but the wardship later came into the hands of the king’s steward, Peter of Stoke).28 Alice, however, was an heiress who held lands independently of her husband, and these, despite their having been held of a mesne lord, William FitzJohn of Harptree, were treated as having escheated to the crown, even though petty treason does not appear to have entailed the all-embracing forfeitures incurred by treason against the king.29

However, John disposed of Alice’s lands almost immediately, by granting them to Simon FitzRobert, also known as Simon of Wells, a royal clerk who had risen in the service of Hubert Walter and later became bishop of Chichester. It has been suggested that he was Robert’s son,30 but there is no good evidence that he was a kinsman of either Robert or Alice, and his acquisition of the latter’s estate appears to have made for purely material reasons – he proffered twenty marks and a palfrey for the land and everything on it, that sum being specifically calculated to include the value of the king’s waste.31 John accepted the proffer, which was quickly paid, but he did not make the necessary grant himself, for on 7 February 1201 he issued a charter at Durham setting out how, following Alice’s conviction and execution, William FitzJohn had come into his court at Pickering in the North Riding of Yorkshire, and gave Simon everything in his fee at Stowell, including the advowson of the church, as land which had escheated to him through Alice’s felony, and took his homage for it. John’s role in this transaction was limited to confirming it.32 But once Simon had received the land, he seems to have been expected to part with some of it, albeit in exchange, for on 22 February, by when the king was at Carlisle, he granted Simon an estate in the manor of Milborne called `Burgelay’, which had been held jointly by Robert and Alice of Whatley, in return for a virgate from Alice’s inheritance.33

In both these cases John received modest payments, but the ultimate beneficiaries were royal servants. Although the king did not deny the underlying rights of the mesne lords concerned, it seems certain that they were pressurized into going along with his proposals – it is difficult to see why William FitzJohn should have been with the court at Pickering, unless it was to dispose of Alice of Whatley’s property, while Adam of Essex in effect paid the king to apply constraints. But the extent to which John played a controlling part in such transactions is most fully brought out by the aftermath to the case of William of Stroby’s estate. In 1218 William’s widow Maud brought an action of dower against one Richard of Chacombe, who was earlier recorded as holding a third of a fee in Stroby as an `escheat by felony’34 – no doubt the property which Maud now claimed, presumably conveyed to Richard by Adam of Essex some time after 1205. The case was remanded to the Lincolnshire eyre which opened in November that year, where Maud renewed her action, claiming that her husband had been outlawed `unjustly and by the lord king’s will’. But the justices found that her opponent had `produced the charter of the lord king John touching William’s outlawry, which was not, nor could it be, denied, and Maud has not denied the outlawry, whether it was just or unjust, and has said nothing else ...’, and so her action was dismissed.35 The charter in question must have been that of 17 March 1205 setting out how the mesne lords had given William of Stroby’s lands to Adam of Essex. But its most important constituent at this juncture was less their grant than the fact of William’s outlawry, of which the charter provided an irrefutable record, and of the forfeiture which resulted from it. It also (though this was not mentioned at the eyre) demonstrated how the king had then exploited that forfeiture by indirect means, for his own benefit and that of his servant.

Overt exploitation

Where a tenant-in-chief was the victim of forfeiture, John was ready to take the fullest possible advantage of the event. William de Martivas, the holder of a forest serjeanty at Writtle, Essex, was outlawed for an unidentified felony, probably in 1201.36 Two years later, on 30 June 1203, John granted the serjeanty and the carucate of land which supported it to Brian of Therfield, apparently a member of the royal household, since he was variously referred to as an usher (ostiarius) and a water-carrier (aquarius); for this he had proffered ten marks and two palfreys.37 But after a further two years William attempted a comeback, proffering 100 marks and a palfrey for a safe conduct to come to England `to speak with the king and for having his land of which he was disseised.’38 Letters patent were duly issued on 1 March, to remain valid until Pentecost (29 May),39 but when William arrived he was arrested (the bearer of a Norman toponymic, he may have tried to recover his possessions by implying that he had suffered forfeiture in 1204 and was now asking to be allowed to return to the king’s allegiance, only to be taken into custody as an outlawed felon; his subsequent fate is unknown). Meanwhile the size of William’s proffer seems to have suggested to John that Brian had given nowhere near enough for the serjeanty, with the result that he was now obliged to make a second, and much larger bid for it, one almost identical with William’s, of 100 marks.40 This he soon came under pressure to pay. His debt was entered on the 1206 pipe roll, and he probably paid the first £38. 13s. 4d. soon afterwards,41 for at Michaelmas 1207 successive notes were entered on the memoranda roll that he still owed £28, which he should have paid a year ago, that the matter should be discussed with the king, and finally that the land for which Brian had made fine was to be taken into the king’s hand, since he had not observed his terms.42 Unsurprisingly, by Michaelmas 1208 Brian had cleared his debt.43

It is unlikely that John was gentler with the forfeitures of others, when they fell into his hands. Direct evidence is lacking, but it is surely a pointer to the same conclusion, and also to a tendency on the part of the king’s agents to hold onto lands after the year and a day were up, that a royal order might be needed to secure the return of forfeited properties, and that mesne lords could also find it necessary to pay to recover the lands of tenants which had passed into the king’s hand when their holders were convicted of felony. Following the execution of Jordan of Bilney, John could freely grant away the land in Norwich `which he held of us’, but he had earlier instructed the sheriff of Norfolk to hand over to the earl of Clare `the land which was Jordan of Bilney’s in your bailiwick of the earls’ fee as we have rendered it to him ...’.44 No money is known to have changed hands in this case (which also points to potential conflicts of interest when the same man was both a tenant-in-chief and the tenant of a mesne lord), but others were less fortunate. The amounts varied. In 1200 (in a case which shows that John raised money by this means from the earliest years of his reign) William of Easton, probably in Somerset, paid only one mark `for having ten acres of land which were in the king’s hand because one of his men was outlawed and his land was in the king’s hand for a year, and if this is so let him have seisin.’45  But in 1204 Thomas de Aula, a landowner on the Isle of Wight, accounted for forty marks and a palfrey `for having the land of his fee in Briddlesford which escheated to him because of the felony of William of Briddlesford who held it of him and lost it by felony’,46 and proceeded to pay off his debt over the next five years.47 In August 1213 Earl William of Devon had to proffer only three palfreys, or £15, for the lands of Hugh de Saucey in Ingsdon and Shilstone in Devon, after `Hugh was hanged by judgment of the king’s court and [the land] was in the lord king’s hand for a whole year and one day ...’. But this relatively modest proffer may have been due to the land having meanwhile been in the hands of Roger de Reimes, another Devon landowner, who was to have any chattels he had installed on it and also recompense for his outlay there.48 As it was, the earl seems to have paid only about two thirds of his debt.49

Shortly afterwards, on 14 October 1213, Philip of Timberland, a Lincolnshire knight, proffered ten marks for the land in Bleasby which the outlaw Walter of Holton had held of him. In this case the sheriff was administering the property, and had raised 3s. 4d. from it before Philip paid to recover possession.50 Then, as later, the ruthless exploitation of confiscated property while it was in the king’s hand, culminating in its wasting, provided a strong inducement to lords to pay for its recovery before this process was completed, and this may have been a consideration behind the proffer made by Philip of Timberland. But in the case of Hugh de Saucey the king had had his year, day and waste before arrangements were made for the earl to have the lands back, and indeed, John made sure that this was so, telling the sheriff to hand the property over `if it shall appear to him that the land has been for so long in the king’s hand and [is] of the earl’s fee ...’.

There may even have come to be formal inquests held in such cases, to ensure that the king’s rights had been maintained, before those of a lord were upheld by the return of the property. Hence, perhaps, the inquest held in the bench in Hilary term 1201 as to `how the land of Somercotes [Lincolnshire], which three men held of the abbot and monks of Jervaulx, so it is said, came into the hand of the lord king.’ It found that the three men were brothers called Alan, Guy and William, of whom Alan and William were impleaded for their shares of the property, which amounted to 180 acres. A jury of knights for the grand assize was summoned, but when proceedings should have resumed before justices itinerant, the defendants did not appear, and so their lands were taken into the king’s hand because of their default. Meanwhile the third brother, Guy, had been appealed of theft, convicted and hanged, with the result that his land, too, was taken into the king’s hand, `and held now for almost a year and a half, together with the lands of his brothers, which were then found unoccupied (vacue) as they made off because of the hanging of Alan ...’.51 Consequently order was given that the lands should be returned to the abbot of Jervaulx, who is not recorded as having had to pay anything for their recovery, possibly because Guy’s lands, at least, had been withheld for nearly six months after they should have been returned to the abbot. But other mesne lords found it expedient, or were obliged, to make an extra payment in order to secure possession. In 1214 Geoffrey of Claypole proffered, and subsequently paid, 40s. to recover a toft in Grantham, forfeited by Richard FitzRobert who had been outlawed for homicide, `which messuage is of Geoffrey’s fee according to the inquest held on [the king’s] order.’52 Similarly on 26 July 1215 Alan FitzTurbern proffered 20s. to have seven acres of land in Easton, Lincolnshire, which had been held of him by William Bret, now outlawed for homicide – `as an inquest held into this and transmitted to the lord king attests ...’. Alan cleared his debt in 1221.53 In both these cases the inquests seem to have been held at the king’s command, but the landowners concerned had to pay to have their findings implemented.

Alan FitzTurbern had made his proffer a few weeks after the granting of Magna Carta should have made it unnecessary, but perhaps the clearest example of the kind of malpractice against which Clause 32 was directed comes from the earliest years of Henry III’s reign. It was presented at the 1221 Worcestershire eyre that Osbert of Quinton, who had been outlawed for killing Roger Culvert, possessed a hide of land worth 7s. 2d. per annum. That hide had been in the hands of two successive sheriffs for no fewer than five years, that is, from around the time of King John’s death in 1216, yielding total issues of 37s. 10d. (a sum which may have included the waste). Only at the eyre, which took place in two sessions in June and August 1221, was order given that the land be returned to Robert of Bockleton, `the lord of the fee’, and even then its issues were to be accounted for at the exchequer.54

Although the retention of Osbert’s estate may well have been at least partly due to the confusions – and opportunities for misconduct – of Henry III’s minority (neither of the sheriffs involved in this case was punished), there can be no doubt that it entailed injustice and loss for Robert of Bockleton, of a kind that Glanvill would have recognised as such, and which Clause 32 was intended to prevent. The Clause implies, though it cannot confirm, that the abuse involved in this case was one frequently perpetrated, while the surviving evidence also indicates that it was one which could affect, or threaten to affect, tenants-in-chief and mesne lords of every kind, small-scale landowners as well as magnates – anyone possessing lordship over free lands. All found it objectionable, whether because it placed obstacles in the way of their securing their lands, and forced those concerned to pay for their removal, or because it had the capacity to undermine rights of tenure, and consequently all had an interest in its prohibition.