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FELONY FORFEITURE AND THE PROFITS OF CRIME IN EARLY MODERN ENGLAND*

Published online by Cambridge University Press:  27 April 2010

K. J. KESSELRING
K. J. KESSELRING*
Affiliation:
Dalhousie University
*
Department of History, Dalhousie University, Halifax, NS, Canada, B3H 4P9kjkessel@dal.ca
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Abstract

For much of English history, the law punished felons not just with death, but also with the loss of their possessions. This article examines the practice of felony forfeiture in the sixteenth and early seventeenth centuries, focusing on who profited and with what effects. It argues that recognizing the role such profit-takers played challenges common depictions of the nature and meaning of participation in law and governance. The heightened use of judicial revenues as tokens of patronage under Elizabeth and the early Stuarts impinged upon participatory aspects of the law's operation.

Type
Research Article
Information
The Historical Journal , Volume 53 , Issue 2 , June 2010 , pp. 271 - 288
Copyright
Copyright © Cambridge University Press 2010

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Footnotes

*

The author wishes to thank Cynthia Neville, Tim Stretton, and Todd McCallum, as well as the participants in seminars held at the University of Teesside and the Institute of Historical Research, for their comments on earlier versions of this article. The author also wishes to thank the Social Sciences and Humanities Research Council of Canada for funding the research upon which the article is based.

References

1 The National Archives (TNA), STAC 2/26/199 and 2/26/430.

2 For the continuation of felony forfeiture through to 1870, see K. J. Kesselring, ‘Felons’ effects and the effects of felony in nineteenth-century England', Law and History Review, 28, (2010), pp. 111–39.

3 See, for example, Sir William Blackstone, Commentaries on the laws of England (13th edn, 4 vols., London, 1800), iv, pp. 97–8.

4 But see Michael MacDonald, who pays the subject some attention in his writings on suicide: ‘The secularization of suicide in England, 1660–1800’, Past and Present, 111, (1986), pp. 50–100, and with Terence R. Murphy in Sleepless souls: suicide in early modern England (Oxford, 1991). See also the excellent piece by David C. Brown, ‘The forfeitures at Salem, 1692’, William and Mary Quarterly, 3rd ser., 50 (1993), pp. 85–111. Leonard W. Levy offered a useful overview of the history in his engagement with modern manifestations of forfeiture: A license to steal: the forfeiture of property (Chapel Hill, NC, 1996). R. A. Houston's forthcoming work on suicide in Scotland and northern England from 1500 to 1850 also devotes much attention to suicide forfeitures and their collection; my thanks to Professor Houston for generously sharing drafts of several chapters prior to their publication.

5 Key works advocating the ‘negotiation’ model include Paul Griffiths, Adam Fox, and Steve Hindle, eds., The experience of authority in early modern England (Basingstoke, 1996); Michael J. Braddick and John Walter, eds., Negotiating power in early modern society: order, hierarchy, and subordination in Britain and Ireland (Cambridge, 2001); Steve Hindle, The state and social change in early modern England, c. 1550–1640 (New York, NY, 2000); and Michael J. Braddick, State formation in early modern England, c. 1550–1700 (Cambridge, 2000).

6 Wood, Andy, ‘Subordination, solidarity, and the limits of popular agency in a Yorkshire valley’, Past and Present, 193, (2006), pp. 41–72CrossRefGoogle Scholar, quote at p. 72. See also Hindle, Steve, ‘Imagining insurrection in seventeenth-century England: representations of the Midland rising of 1607’, History Workshop Journal, 66, (2008), pp. 21–61.CrossRefGoogle Scholar

7 John Walter, Crowds and popular politics in early modern England (Manchester, 2006), p. 10.

8 Ethan Shagan, ‘The two republics: conflicting views of participatory local government in early Tudor England’, in John McDiarmid, ed., The monarchical republic of early modern England (Aldershot, 2007), pp. 19–36. See also J. C. Davis, ‘Afterword: reassessing radicalism in a traditional society: two questions’, in Glenn Burgess and Matthew Festenstein, eds., English radicalism, 1550–1850 (Cambridge, 2007), esp. pp. 366–7.

9 See Braddick, State formation, pp. 3, 178.

10 Patrick Wormald, The making of English law: King Alfred to the twelfth century: legislation and its limits (Oxford, 2000), pp. 19, 144–9; and John Hudson, The formation of the English common law: law and society in England from the Norman Conquest to Magna Carta (New York, NY, 1996), pp. 161–2.

11 See Ferdinando Pulton, De pace regis et regni (London, 1609), pp. 216–40; Sir Edward Coke, The first part of the institutes of the laws of England, or a commentary upon Littleton, ed. Francis Hargrave and Charles Butler (19th edn, 2 vols., London, 1832), ii, pp. 351a, 392b; The works of Francis Bacon, ed. James Spedding et al. (7 vols., London, 1858–61), vii, pp. 485–8; and Sir Matthew Hale, Historia placitorum coronae, ed. W. A. Stokes and E. Ingersoll (2 vols., Philadelphia, PA, 1847), i, pp. 239–57, 353–69, 413, 492–3, 703.

12 Statutes of the realm, ed. A. Luders et al. (11 vols., London, 1810–28), i, pp. 223–6, Prerogativa Regis; TNA, SP 14/185, no. 44.

13 For a more detailed discussion of the precedents and procedures described in this paragraph, see Kesselring, K. J., ‘Felony forfeiture, c. 1170–1870’, Journal of Legal History, 30, (2009), pp. 201–26CrossRefGoogle Scholar.

14 Sir Thomas Smith, De republica anglorum, a discourse on the commonwealth of England, ed. L. Alston (Cambridge, 1906), p. 102.

15 For Mellershe: TNA, E 199/43/31 and ASSI 35/21/3, m. 31; for Payne: E 199/12/28 and ASSI 35/37/1, m. 26.

16 See, for example, Hale, Historia placitorum coronae, i, pp. 253, 353, 258, and for a more detailed discussion of the changes, Kesselring, ‘Felony forfeiture’.

17 See Thomas Starkey, Dialogue between Pole and Lupset, ed. K. M. Burton (London, 1948), pp. 115, 177; and Henry Brinkelow, The complaynt of Roderyck Mors (London, 1548), sigs. C3r–C4r.

18 See, for example: William Staunford, Les plees del coron (London, 1560), p. 194d; Pulton, De pace regis et regni, fos. 237d–238; T. E., The lawes resolutions of womens rights (London, 1632), p. 152.

19 The issue of felons' creditors was discussed in the parliaments of 1610, 1614, 1621, 1624, and 1626. Journals of the House of Lords, ii (1578–1614), p. 661; Maija Jansson, ed., Proceedings in parliament, 1614 (Philadelphia, PA, 1988), pp. 51, 119, 126; Wallace Notestein et al., eds., Commons debates, 1621 (7 vols., New Haven, CT, 1935), ii, p. 199, v, p. 110, vii, pp. 129–32; William B. Bidwell and Maija Jansson, eds., Proceedings in parliament, 1626 (4 vols., New Haven, CT, 1996), iv, p. 91. For drafts of two of the bills, see Parliamentary Archives, HL/PO/JO/10/1/19 and HL/PO/JO/10/1/22; the quotation is taken from the former.

20 Donald Veall, The popular movement for law reform, 1640–1660 (Oxford, 1970), esp. pp. 114, 131, 235.

21 R. F. Hunnisett, ed., Sussex coroners' inquests, 1485–1558 (Sussex Record Society, vol. 74, Lewes, 1985), passim; idem, ed., Sussex coroners' inquests, 1558–1603 (Kew, 1996), passim; idem, ed., Sussex coroners' inquests, 1603–1688 (Kew, 1998), passim.

22 TNA, STAC 1/1/3.

23 J. S. Brewer, J. Gairdner, and R. H. Brodie, eds., Letters and papers … of the reign of Henry VIII (21 vols., London, 1862–1910, 1929–32), xv, p. 295.

24 Calendar of privy seals, signed bills, & c, Appendix 1 to the forty third annual report of the deputy keeper of the public records (London, 1882), p. 474. For other such grants given by Charles I, see also pp. 5, 67, 98, 128, 135, 498, and British Library (BL), Harleian MS 1012, a docket book of patents, pp. 9, 10, 34, 28, 42d, 53, 58d, 65d.

25 TNA, SP 10/8, no. 49.

26 J. R. Dasent, ed., Acts of the privy council of England, new series: 1542–1631 (45 vols., London, 1890–1964), xx, pp. 3, 26.

27 Calendar of the patent rolls preserved in the Public Record Office, Elizabeth I (9 vols., London, 1939–86), viii, no. 169 (CPR) See also: CPR, vii, no. 2869 (1578), a grant for concealed forfeitures of traitors, among other things, with one third of the value to go to the crown.

28 Calendar of state papers, domestic series … 1547–1625 (12 vols., London, 1856–72), viii (1603–10), p. 227 (CSPD).

29 TNA, E 128/38/1.

30 Calendar of state papers, domestic series … Charles I (23 vols., London, 1858–97), xxii (1637), p. 300 (CSPD Charles); BL, Harleian MS 1012, p. 33.

31 TNA, E 165/93.

32 CSPD Charles, xiii (1627–8), p. 437. Belou subsequently complained, however, that he made little profit as low-level officials embezzled the proceeds from poor felons and the king granted to individual petitioners the proceeds from wealthy felons. CSPD Charles, xv (1629–31), p. 475, and xvi (1631–3), p. 65.

33 For other proposals for farms of forfeitures, see CSPD, vi (1601–3), p. 140; TNA, SP 14/180, no. 95; BL, Add. MS 10038, fo. 254.

34 For procedures and debates involving revenue from recusants, see M. Questier, C., ‘Sir Henry Spiller, recusancy, and the efficiency of the Jacobean Exchequer’, Historical Research, 66, (1993), pp. 251–66CrossRefGoogle Scholar.

35 For projects and revenue farming, see in particular Joan Thirsk, Economic policy and projects: the development of a consumer society in early modern England (Oxford, 1978); John Cramsie, Kingship and crown finance under James VI and I, 1603–1625 (Woodbridge, 2002); Linda Levy Peck, Court patronage and corruption in early Stuart England (Boston, MA, 1990); Ashton, Robert, ‘Revenue farming under the early Stuarts’, Economic History Review, n.s., 8 (1956), pp. 310–22CrossRefGoogle Scholar; and Robert Ashton, ‘Deficit finance in the reign of James I’, Economic History Review, n.s., 10 (1957), pp. 15–29.

36 Norfolk Record Office, Y/C 27/1. Felony forfeitures continued to be recorded in the Great Yarmouth audit books in years after 1612, but were subsumed under a more general subheading of ‘all goods escheated, forfeited, and coming to this town by any felony, pirate goods, deodands, waifs, strays, and other escheats’.

37 Suffolk Record Office, Ipswich (SRO), C/3/2/1/2, fos. 72 and 206d, and C/3/2/1/1–2, passim.

38 SRO, C/3/2/1/2, fos. 9, 10, 11, 72, 231.

39 SRO, C/3/2/1/2, fos. 149 and 242.

40 R. N. Worth, ed., Calendar of the Plymouth municipal records (Plymouth, 1893), p. 139.

41 BL, Add. MS 30198, fo. 7d. See also J. Alsop, D., ‘The revenue commission of 1552’, Historical Journal, 22, (1979), pp. 511–33CrossRefGoogle Scholar. For crown revenues more generally over this period, see O'Brien, Patrick and Hunt, Philip, ‘The rise of a fiscal state in England, 1485–1815’, Historical Research, 6, (1993), pp. 129–76CrossRefGoogle Scholar.

42 BL, Lansdowne MS 166, fos. 159–61d.

43 BL, Lansdowne MS 165, fo. 150.

44 BL, Add. MS 30198, fo. 40.

45 For similar complaints, see BL, Harleian MS 4807, fo. 20, and TNA, STAC 2/24/436. The clerks of the parcels, who received fees for entering sheriffs' and escheators' accounts of forfeitures, in the 1620s launched a campaign to ensure better accounting, but with little success. They claimed both that some escheators, etc., simply failed to levy seizures, but also that a good many also concealed the profits. See: TNA, E 215/1706, LR 9/103, E 126/2, fo. 239, E 126/3, fo. 78d.

46 Joel Hurstfield, ‘The profits of fiscal feudalism, 1541–1602’, Economic History Review, 2nd ser., 8 (1955), pp. 53–61.

47 A declaration of his majesties royall pleasure, in what sort he thinketh fit to enlarge, or reserve himselfe in matter of bountie (London, 1610), quotation at p. 24; reprinted in 1619 and in Commons debates, 1621, vii, pp. 491–6.

48 TNA, SP 14/31, no. 68.

49 TNA, SP 14/154, no. 22, E 214/1343; BL, Salisbury MS 128, no. 157. From King Charles, Levingston also received a grant of three-quarters of the money received from sums sheriffs held back from the king; Calendar of privy seals, p. 78.

50 TNA, STAC 8/2/37.

51 Peter Bowden, ‘Agricultural prices, farm profits and rents’, in Joan Thirsk, ed., The agrarian history of England and Wales (8 vols., Cambridge, 1967–), iv, p. 657.

52 Whether this opposition is more easily seen in such cases because of distinctive attitudes to self-slaying or simply because the records are more easily found is difficult to determine. As the king's almoner typically had the right to the forfeitures of suicides, a search of Star Chamber records for almoners as plaintiffs readily results in a trove of disputed forfeiture cases.

53 TNA, STAC 5/A10/20.

54 MacDonald and Murphy, Sleepless souls, p. 78. See also Carol Loar, ‘Conflict and the courts: common law, Star Chamber, coroners’ inquests, and the king's almoner in early modern England', Proceedings of the South Carolina Historical Association (2005), pp. 47–58.

55 Henry Alexander, at least, accused a jury of doing just this. Having received from King James a grant of the lands and goods one Richard Bankes would forfeit if convicted of murder, Alexander later accused the coroner and trial jurors of confederating to have Bankes found guilty merely of manslaughter, and thus saving Bankes's freehold from escheat: TNA, STAC 8/46/18.

56 MacDonald and Murphy, Sleepless souls, p. 86.

57 Works espousing this view draw especially on Cynthia Herrup's foundational study, The common peace: participation and the criminal law in seventeenth-century England (Cambridge, 1987).

58 TNA, REQ 2/30/22 (6 Eliz).

59 TNA, REQ 2/87/43 (37 Eliz).

60 BL, Salisbury MS, vol. 127, no. 121; TNA, SP 14/109, no. 81; SP 14/68, no. 38.

61 BL, Salisbury MS, P. 820. For similar requests in respect to traitors' forfeitures, see Kesselring, K. J., ‘Mercy and liberality: the aftermath of the 1569 Northern Rebellion’, History, 90, (2005), pp. 221–2CrossRefGoogle Scholar.

62 See, for example, Journals of the House of Commons (CJ), ii (1640–3), p. 38.

63 Brinkelow, The complaynt of Roderyck Mors, sigs. C3r–C4r.

64 TNA, C 82/541/264.

65 TNA, SP 14/43, no. 21.

66 Essex Record Office, D/DL/L11 (dorse).

67 See Cynthia Herrup, A house in gross disorder: sex, law, and the 2nd earl of Castlehaven (Oxford, 1999), p. 104.

68 Robert C. Johnson et al., eds., Commons debates 1628 (6 vols., New Haven, CT, 1977), ii, p. 44, and iii, p. 411.

69 Peter Davison, ‘King James's Book of Bounty: from manuscript to print’, The Library, 5th ser., 28 (1973), pp. 26–53. See, for example, TNA, SP 14/37, nos. 17, 70, and 76, and SP 14/97, no. 20, for four of the drafts with changes to this section in each.

70 Elizabeth Foster Read, ed., Proceedings in parliament, 1610 (2 vols., New Haven, CT, 1966), ii, pp. 359, 368, 382, 383; CJ, i, pp. 447–8. For the broader debate on the Great Contract, see Alan G. R. Smith, ‘Crown, parliament and finance: the great contract of 1610’, in Peter Clark et al., eds., The English commonwealth, 1547–1640 (Leicester, 1979), pp. 111–27, 237–9.

71 TNA, SP 14/145, no. 26, SP 14/142, no. 47. For Hill, see also SP 14/109, nos. 4 and 5, for grants of the goods of a Northamptonshire coinclipper and an Irish murderer.

72 CJ, i, pp. 874, 897, 920, 921–2. I have been unable to find drafts of these acts, unfortunately. Significantly, in his Third part of the institutes (London, 1644), p. 229, Coke claimed such begging of forfeitures before conviction was already illegal, citing 21 James, c. 3, the ‘Act concerning monopolies and dispensations with penal laws,’ as having endorsed the principle that ‘placitum coronae ought not to become in effect placitum privatum’.

73 See Lois Schwoerer, The declaration of rights, 1689 (Baltimore, MD, 1981), p. 96. The practice of felony forfeiture after the Revolution of 1688/9 requires more study, especially given the increasing reliance upon rewards and thief takers thereafter. For a preliminary discussion, suggesting that while manorial lords continued to collect such forfeitures, the crown largely abandoned the use of felons' effects as patronage grants after 1689, see Kesselring, ‘Felony forfeiture,’ pp. 218–19, 222–4.

74 See Braddick, State formation, pp. 40–3. Braddick discusses the role of and increasing crown reliance upon these ‘caterpillars’, men inhabiting the ‘twilight world of government and self-service’, and acknowledges briefly that they posed difficulties as they were not constrained by social expectations in the same way as gentry commissioners and village officers. Cramsie makes a similar observation: Crown finance, p. 64.

75 Herrup, Common peace, p. 206. It is this aspect of her work that has thus far proven most influential, but see also her speculation that ‘an additional peculiarity of the late sixteenth and early seventeenth century legal structure may be that middling men found themselves both newly active in the legal process and newly threatened in their activism’. Calling for a history of participation attentive to change, she pursues this observation in her essay ‘The counties and the country: some thoughts on seventeenth-century historiography’, in Geoff Eley and William Hunt, eds., Reviving the English revolution: reflections and elaborations on the work of Christopher Hill (London, 1988), pp. 289–304.

76 See the works cited in n. 35, and also A. Hassell Smith, County and court: government and politics in Norfolk, 1558–1603 (Oxford, 1974), which discusses the contested role of patentees in local administration. Smith further suggests that the crown granted such patents not just for revenue and reward, but perhaps also precisely as ‘a means of overcoming the tardiness and obstructiveness which many justices displayed towards statutes and council orders’ (p. 229).

77 Conyers Read, ed., William Lambarde and local government: his ‘Ephemeris’ and twenty-nine charges to juries and commissions (Ithaca, NY, 1962), p. 107. See Cramsie, Crown finance, p. 33, for a list of other projects and uses of the proceeds of justice.

78 W. C. Richardson, Tudor chamber administration, 1485–1547 (Baton Rouge, LA, 1952), pp. 195ff, 388.

79 TNA, SP 14/20, no. 23.

80 For some of the criticisms levelled against such traditional office holders in these years, see J. S. Cockburn, A history of English assizes, 1558–1774 (Cambridge, 1972), pp. 104–5; TNA, E 215/1131.

81 Braddick, State formation, pp. 19–20; John Guy, Tudor England (Oxford, 1988), p. 352.

82 Richard Cust, ‘The “public man” in late Tudor and early Stuart England’, in Steven Pincus and Peter Lake, eds., The politics of the public sphere (Manchester, 2007), pp. 116–43, quote at 121. For the addition of native common weal traditions, see also Rollison, David, ‘The spectre of the commonalty: class struggle and the commonweal in England before the Atlantic world’, William and Mary Quarterly, 63, (2006), pp. 221–52Google Scholar; Andy Wood, The 1549 rebellions and the making of early modern England (Cambridge, 2007); and Shagan, ‘Two republics’.

83 See Pauline Croft, ed., ‘A collection of several speeches and treatises of the late Lord Treasurer Cecil and of several observations of the lords of the council given to King James concerning his estate and revenue in the years 1608, 1609, and 1610’, Camden Miscellany 29 (London, 1987), pp. 245–317, quote at p. 274. Of course, these men also profited from such patents themselves. For Salisbury's prodigious income, see L. Stone, ‘The fruits of office: the case of Robert Cecil, first earl of Salisbury, 1596–1612’, in F. J. Fisher, ed., Essays in the economic and social history of Tudor and Stuart England (Cambridge, 1961), pp. 89–116.

84 A declaration of his majesties royall pleasure … in matter of bountie, p. 24.

85 BL, Add. MS 48109, fo. 36, one of Sir Christopher Yelverton's jury charges.

86 For this point, in addition to Cust, see also Paul Slack, From Reformation to improvement: public welfare in early modern England (Oxford, 1999), pp. 75–6, on the shift from ‘common weal’ to ‘public good’, and Christopher Brooks, Law, politics and society in early modern England (Cambridge, 2008), p. 139. Brooks observes as a notable feature of the impositions debate of 1610 that both sides were ‘deeply conscious of a distinction, which had hitherto not been so highly developed, between the interests of the crown as distinct from those of its subjects, and between the public interests of the nation as a whole versus those of private individuals’.

87 Herrup, Common peace, p. 205. See above, n. 75.