I

The practice of stripping offenders of all they possessed had Anglo-Saxon precedents and developed its standard common law features by the late twelfth century.Footnote ¹⁰ The formula for forfeiture held that traitors lost all lands and all goods to the king. In contrast, felons forfeited their goods to the king, and their lands escheated to their lord after the king had taken the profit and waste of those lands for a year and a day. Such a fate applied when the offender had been deemed guilty by a jury, or had absconded and become outlawed. Even if felons successfully pleaded benefit of clergy after conviction and before sentencing, they still lost their goods; they saved their life and lands, but not their chattels. Nor did a post-conviction pardon save the offender from forfeiture unless it specifically included a gift of the felon's goods.Footnote ¹¹ Forfeiture provisions did not apply in the same manner throughout the country: variations existed in Gloucester, Redesdale, and most notably in Kent. There, a felon lost his goods, but upon execution his lands passed immediately to his heir, a practice summed up in the saying, ‘the father to the bough, the son to the plough’.Footnote ¹² But generally, the standard formula applied: from traitors, all lands and personal possessions to the king in perpetuity; from felons, all personal possessions to the king and all lands to the lord of the fee, after the king's year and a day.Footnote ¹³

Court records have fostered a misconception that such forfeitures had all but ceased by the early modern period. Surviving assize records note the nearly formulaic response of trial jurors to the standard query about a felon's goods that, to their knowledge, the felon had none; one might then think that the jury had saved the felon's effects from forfeiture. As Sir Thomas Smith's sixteenth-century description of court business intimates, however, this was not so. After the jurors gave their verdict, Smith noted, ‘The clark asketh what lands, tenements, or goods, the prisoner had at the time of the felony committed, or at any time after. Commonly it is answered that they know not, nor it shall not greatly need, for the sheriff is diligent enough to enquire of that, for the Prince and his own advantage, and so is the escheator also.’Footnote ¹⁴ Indeed, coroners, escheators, sheriffs, and others left records in their capacities as revenue collectors which clarify that they found and seized goods even when trial jurors denied knowledge of a felon's possessions. The escheat of land required an inquisition, but sheriffs could and did collect felons' effects by virtue of their office alone, and they did so regardless of the jurors' statements about felons' property. The jurors at the 1579 trial of Henry Mellershe of Croydon, for example, found him guilty of murder but said that, to their knowledge, he had no goods or chattels; yet, the local sheriff duly submitted a return noting the horse, profits of two leases, and cash that he had seized from Mellershe's family. William Payne, an Essex labourer convicted of manslaughter in 1594, faced a similar fate: according to the relevant assize records, jurors disavowed knowledge of any goods and chattels, but elsewhere the sheriff recorded the seizure of goods valued at roughly £5 from Payne.Footnote ¹⁵ Unfortunately, the nature of record keeping and survival – and, as will be seen, the very way in which forfeiture operated – mean some basic questions about the practice cannot be answered. We cannot learn the proportion of felons who had their goods seized, whether this varied over time, or whether the likelihood of seizure depended on the type of crime, for example. But if we turn away from criminal court records to look elsewhere, we do at least find plenty of evidence that felony forfeiture continued throughout the sixteenth and early seventeenth centuries.

It continued, but subject to a number of changes. Sixteenth-century lawmakers introduced several key innovations. Most notably, in 1547 they ensured that the widows of felons might retain their dower in their husbands' freehold land, and for most felonies created after that year they protected the heir's rights to the felon's real estate.Footnote ¹⁶ In the 1530s and 1540s, some writers had criticized felony forfeiture for unfairly punishing the innocent more so than the guilty; wives, heirs, and creditors all suffered for the sins of another.Footnote ¹⁷ In response, legal writers came to defend forfeiture as a valuable deterrent precisely because of these effects on the innocent, arguing that a potential offender might forbear out of concern for kin or creditors. Its justification relied on it being a punishment that imposed a hardship.Footnote ¹⁸ Members of parliament took action that left both critics and defenders of felony forfeiture unsatisfied: while they offered some protections for land, they left all goods subject to forfeiture, prompting continued complaint. So, too, did the failure to offer any protection to creditors like that offered to widows and heirs: despite at least five legislative attempts over the early seventeenth century to ensure that creditors be able to claim from the estates of felons, no such measure passed. As the draft of one of these bills noted, ‘it is agreeable to justice that the fuller punishment of the nocent or guilty do not any ways involve or draw on the overthrow or prejudice of those that be innocent and guiltless’.Footnote ¹⁹ Would-be law reformers of the civil war and interregnum period accordingly launched volleys of criticisms against felony forfeiture.Footnote ²⁰

Developments took place in the enforcement of the law, too, that changed the number and nature of those who profited from crime and serve as the focus for the remainder of this article. In theory, the ability to profit from felony forfeitures was limited to kings and lords. In practice, however, it was always quite broadly dispersed, and became even more so in the late Elizabethan and early Stuart years. In contrast to other aspects of criminal justice that became more tightly controlled and centralized in the early modern period, forfeiture became less so. Felony forfeiture became increasingly privatized and increasingly politicized.

II

Who stood to profit from criminal convictions? Lords had long done so. They held rights to the land escheated by felons by the nature of the bond between lord and tenant, but they also frequently obtained the rights to felons' personal possessions by royal grant. The medieval and early modern crown regularly bestowed upon lords, bishops, and boroughs the privilege of collecting the goods and chattels of felons. The grant might cover the assets of any of their own tenants who became felons or of any felon convicted of a crime committed on their lands. In any given region, then, quite a number of people had claims to felons' forfeited chattels. In the Sussex coroners' records calendared by R. F. Hunnisett, for example, goods of felons were seized to the use of the crown, the archbishop of Canterbury, the bishop of Chichester, the duke of Norfolk, the earl of Arundel, Lord Abergavenny, and the mayor and burgesses of Chichester.Footnote ²¹

Beyond the lords and corporations with special blanket grants of felons' goods, other individuals profited from felony forfeiture by petitioning for and receiving the grant of a particular offender's possessions. John Gildon and Thomas Fulbroke, for example, obtained from Henry VII the goods and chattels of Thomas Huchins, a Wiltshire convict.Footnote ²² One of the first signs of royal favour for Catherine Howard was the rather unromantic gift of the goods and chattels of two Sussex murderers.Footnote ²³ In 1633, Charles I gave Halton Barwick, one of his falconers, the goods Thomas Whitaker forfeited upon his conviction for manslaughter.Footnote ²⁴ Examples of such individual grants could be multiplied many times over. Petitioners for the effects of a particular felon moved quickly, often acting upon news of an offence committed, and well before conviction. And they sought such grants not just from the crown, but also from other lords or corporations that received felons' goods. For example, upon John Browne's conviction for felony in the late 1540s, his possessions went to the bishop of Peterborough, who decided to give one third of the value of the goods to Browne's wife, Alice, but granted the other two-thirds to his own servant, John Mountsteving.Footnote ²⁵ In 1590, Anthony Ashley, a clerk of the privy council, paid the London sheriffs £20 in hopes of obtaining the forfeitures of a man charged with manslaughter. As it turned out, the individual was acquitted, and it seems that, even had he been convicted, the goods would have gone to the dean of St Paul's rather than the corporation of London. Ashley had to turn to his bosses on the privy council to have his £20 payment returned. Nonetheless, his attempt shows that persons besides the crown received requests for forfeitures, and the speed with which petitioners moved to profit from others' wrongdoing.Footnote ²⁶

These two means of sharing the wealth – grants in perpetuity to a lord or corporation of the rights to felons' goods for a particular area, and grants to an individual petitioner of an individual felon's lands or possessions – had long precedent. Queen Elizabeth and her Stuart successors developed a new element, however, in farming out forfeitures, giving favoured individuals rights over felons' forfeitures in return for a portion of the proceeds. In 1579, for example, Queen Elizabeth granted one of her equerries the concealed chattels of up to thirty convicted felons that he would discover, with one fifth of the value to be rendered at the Exchequer.Footnote ²⁷ King James preferred to give the right to collect all forfeitures in a given area for a given amount of time in return for a rent or a proportion of the proceeds, or even both. In 1605, for example, he leased to James Anderton the right to gather the goods of felons and outlaws in Lancashire.Footnote ²⁸ In 1619, he granted to Roger Thorpe, one of his gentlemen ushers, the power to search for any concealed profits due the crown from felony convictions within the duchy of Lancaster from 1578 to 1617. Half of the proceeds would go to the king, and half to Thorpe.Footnote ²⁹ Such grants of the farms of forfeitures continued under King Charles. In 1637, Michael Oldisworth presented a proposal for the mutual benefit of Charles and himself, maintaining that within the stannaries of Devon and Cornwall, negligible returns of felons' goods had been made over the past few years. He asked for and received a grant of the same for thirty-one years, promising to pay the king £10 annually from the proceeds.Footnote ³⁰ King Charles gave a consortium of London merchants similar rights to the forfeitures of felons in Liverpool.Footnote ³¹ In 1627, William Belou received a grant to repay a debt of £5,000, to be raised out of the lands or goods of felons not then discovered, initially with one third to go to repayment of the debt, and the remainder to the king.Footnote ³² Other such examples exist, as do a number of petitions and proposals for similar farms of forfeitures.Footnote ³³

In an era in which the crown reworked felony forfeiture provisions to allow the lucrative milking of recusants, and in which the crown notoriously granted monopolies and farms on penal statutes, such an innovation is almost to be expected.Footnote ³⁴ ‘Projects’ began in the 1550s to encourage entrepreneurial endeavours, but by the end of the century, they came to be used for the privatization of crown finance. Royal councillors endorsed revenue farming as a way ideally to increase revenues, but at the least to stabilize and make them predictable; such farms also helped satisfy demands for patronage.Footnote ³⁵ Felons' forfeitures, like so much else, became wrapped up in this projecting mentality. The ability to profit from forfeitures, already broadly dispersed, thus became even more broadly shared with the late Elizabethan and early Stuart fondness for government by licence.

How much profit did these people make? For the crown and some traditional grant holders, the answer is ‘not much’. The town of Great Yarmouth has a good run of surviving chamberlains' accounts which show nearly negligible proceeds from forfeitures. Great Yarmouth brought in only £73 from felons' goods between 1581 and 1612, averaging less than £2 10s a year, out of total annual revenues of over £1,600. When the unusually high amount of £24 seized from one felon in 1599 is deducted, the average annual proceeds become even more meagre.Footnote ³⁶ Similarly, between 1574 and 1642, Ipswich had annual receipts of forfeitures ranging from a high of £17 to lows of 4d, with an overall average of not much more than £1 a year, when total receipts ran around some £600 a year.Footnote ³⁷ Indeed, the value of the goods forfeited by a felon might not even cover the cost of that felon's execution. The town made a little profit, but not much, from the conviction of the aptly named cutpurse John Wallet: the chamberlain valued his goods at £3 2s 4d, but paid 14s for Wallet's board while he awaited trial and another 5s for the hanging itself. The dry financial accounts sometimes make evident just how inconsequential the seizures were: two boys, who cost 3s 4d to execute, forfeited only ‘one sheet with other trash’, valued at 2s. From another felon, the chamberlain recorded the receipt of bits of iron ‘and some other trifles’ worth 2s 2d.Footnote ³⁸ True, the town's officials did not always seek to maximize possible returns, instead showing some discretionary lenience. Like others convicted of manslaughter, Peter Jeames managed to avoid execution for his offence, and was allowed to redeem his goods at a favourable rate.Footnote ³⁹ And true, there could be occasional windfalls. In 1597, for example, gentleman Edmond Dockett had to pay the town of Plymouth £132 to redeem the goods he forfeited on his conviction for manslaughter.Footnote ⁴⁰ Perhaps because of such occasions, corporations fought doggedly to protect their claims to felony forfeitures from rival jurisdictions. A corporation's right to collect felons' effects represented an entitlement to be defended for the sake of prestige or the occasional rich felon more so than regular income. In general, the financial value of the proceeds was minor.

Certainly, felony forfeitures were incidental to crown revenue. The 1552 revenue commission noted the receipt of only £41 6s from felons' goods in the previous year.Footnote ⁴¹ A memorandum prepared in 1610 recorded tallies from the previous seven years that ranged from a low of £17 0s 19d to a high of £186 14s 3d, with a seven-year total of only £459 5s 7d.Footnote ⁴² Some years proved better than others: in 1589 the crown received over £605 from felons' goods, but even this was a tiny proportion of total revenues.Footnote ⁴³

Why so little? The 1552 commissioners believed that sheriffs had seized much more from felons but had ‘evil answered’ or ‘very slenderly answered’ for the same.Footnote ⁴⁴ From scattered evidence, it seems the commissioners were right, that sheriffs, undersheriffs, bailiffs and others routinely pocketed the proceeds of seizures, failing to report them altogether or undervaluing the goods received.Footnote ⁴⁵ Furthermore, the crown had already granted away felons' goods in large and populous areas of the country. The three grants to the corporation of London and the deans and chapters of Westminster and St Paul's alone must have denied the crown a good many forfeitures. Finally, the individuals typically charged with offences tended not to be terribly wealthy, while individual petitioners anxious for profit avidly sought any felons who were well endowed.

Indeed, for the crown, felons' forfeitures had more political than financial value. Royal officials made occasional attempts to bring more of the forfeitures into the Chamber or Exchequer, most notably with the farms and leases of forfeitures. Otherwise, as tokens of patronage, forfeitures served primarily as a means for the crown to reward and favour. Grants of forfeitures sometimes allowed the crown to show discretionary magnanimity to the family of the condemned, or to a victim of an offence. More frequently, as Joel Hurstfield demonstrated for the revenues of fiscal feudalism more generally, grants of forfeitures served as commodities for a crown at pains to reward its servants.Footnote ⁴⁶ This proved particularly true under King James. When the earl of Salisbury tried to rein in James's grants with the ‘Book of Bounty’, a list of items fit to be given to importunate suitors, the forfeitures of felons appeared high on the list of permissible gifts. The book banned suits for fines in Star Chamber and upon penal statutes as dangerous to the king's interests, but otherwise expressed a willingness that ‘those monies which do arise by the faults of offenders may sometime serve for matter of bounty’.Footnote ⁴⁷ In the struggle to balance revenue and recompense in the midst of mounting financial difficulties, the proceeds of justice became ever more important as a source of reward.

Arguably, then, the main financial beneficiaries of forfeiture were the individuals who petitioned for particular grants or for farms of forfeitures. The courtiers who kept their ear to the ground and their eye on the assize dockets, seeking the stray gentleman or wealthy merchant charged with a felony, seemed to find the practice worth their time. The man who begged a courtier to help him get a grant of one felon's possessions, promising him half the proceeds, or £600, certainly had a nice profit in sight, as did the courtier.Footnote ⁴⁸ James Levingston, a servant of James's bedchamber, variously collected the forfeitures of traitors, recusants, and felons alike, including the goods of one Peter Smithweek, charged with a ‘foul murder’.Footnote ⁴⁹ Presumably Levingston found his repeated suits for forfeitures worth the effort, as did the men who farmed such things of the king. So, too, one suspects, did the bailiffs and undersheriffs who made the seizures and compositions find themselves with the occasional bonus to supplement their more meagre incomes. For such individuals, the sort of forfeiture that appears negligible on the accounts of the crown or a borough offered a more meaningful boon. Philip Smith, for example, leased the profits of the hundred of Chippenham from Sir Anthony Mildmay. The rights attached to this hundred included the goods, chattels, and credits of felons. Smith maintained that his usual practice for profiting from this lease was to make composition with family members. For the benefit of the wife and children of one felon Smith sold the goods to the offender's brother for the sum of £7. After the suicide of Robert Hobbes, his widow Susan purchased the household goods from Smith for a little more than £22.Footnote ⁵⁰ When we remember that an agricultural labourer in the early seventeenth century earned about 8d per day, and that the family of an arable farmer with some thirty acres might survive on roughly £11 to £14 a year,Footnote ⁵¹ it becomes clear that while forfeiture was an unpredictable source of income, it occasionally offered substantial payouts to individuals.

III

Thus, the ability to profit from forfeitures was broadly dispersed, and became more broadly dispersed as Elizabeth and the early Stuarts increasingly sought political, rather than purely financial, gain from the practice. What effect did such profit-taking have on the operation of the law?

Felony forfeiture sometimes led to a reluctance to enforce the law as written, serving as an incentive for jury nullification. People occasionally objected to stripping a felon's family of all its possessions and to denying creditors a chance for repayment. This sort of opposition appears most clearly in suicide cases.Footnote ⁵² In addition to family, friends, or simply self-interested neighbours absconding with goods before officials could inventory or seize them, coroners and their juries sometimes labelled a self-slaying accidental rather than felonious suicide in order to avoid forfeiture. To give just one example: when William Ponder of Dodford killed himself, neighbour Thomas Baylie went to the bailiff's home to help him select men of the adjoining townships who he deemed suitable for the coroner's jury. Baylie then returned to Ponder's widow, and reportedly assured her that ‘I have been abroad and laboured of them of the inquest that dwell abroad out of Dodford … be merry, for thou hast no cause to the contrary, so that thine own neighbours will be thy friends.’ He felt confident that the inquest jurors drawn from Dodford would find a suitable verdict, and had helped pick men from the neighbouring townships who he hoped would be similarly inclined. He admitted to addressing the jury once it convened, saying, ‘Remember yourselves, Mr Worley [the grant holder] hath no need of the poor woman's goods and therefore give them not from her.’ The jury found a verdict of accidental death; the widow got to keep her goods. The coroner in the case seemed content to acquiesce as long as Baylie paid the fee he obtained only in cases of felonious death.Footnote ⁵³ As Michael MacDonald and Terence Murphy note in their study of early modern suicide, ‘there are hundreds of suits in the surviving records of Star Chamber in which families, neighbours, and coroners and their juries were charged with concealing the goods of suicides’, a good number of which involved false verdicts from juries.Footnote ⁵⁴

Of course, trial jurors for other felonies had little ability to frustrate the law's forfeiture provisions, other than by finding an individual not guilty. If they found an individual guilty of an offence for which he might claim benefit of clergy, they could save the offender's lands as well as his life, but still not the goods.Footnote ⁵⁵ They could and generally did declare that an offender they deemed guilty had no goods or chattels to forfeit, but, as noted earlier, that seems not to have mattered much. Creditors, friends, and family of the condemned found other ways to evade the law's forfeiture provisions, hiding goods, witnessing jail-yard property conveyances of dubious legality, and so forth. Evidence of such evasions suggests that forfeitures did impinge upon some individuals' responses to crime and to the procedures of the criminal law. As MacDonald and Murphy note in respect to suicide forfeitures, ‘charity, class interest, local solidarity, and traditional values concerning inheritance set up eddies of defiance’.Footnote ⁵⁶ Forfeiture sometimes sparked opposition to the law as written.

Yet, one suspects that a more pervasive effect of forfeitures, and especially of the growing range of people with the ability to profit from them, was to ensure a ready supply of individuals with a vested interest in seeing the law enforced, or at least in securing their own benefit. Much study of the early modern courts has emphasized the diffusion of discretionary decision making throughout all stages of the process, from accusation to indictment and through to conviction. The historiographical focus is usually on how this broad participatory base served to mediate between central and local notions of order, to moderate an unyielding law to make it fit individual and local circumstances.Footnote ⁵⁷ When we look at forfeitures, however, and the individuals who hoped to profit from them, we see people with a concrete economic interest in limiting the discretion of local jurors or other local agents of the law. Here we find evidence that the broad participatory nature of law enforcement did not necessarily reflect or promote some sort of communal moral consensus. Indeed, much of the evidence for the operation of the law's forfeiture provisions comes from court cases launched by aggrieved grant holders who thought a local coroner, sheriff, or jury had somehow deprived them of their rightful goods. Not just friends and family, but also traditional office holders found themselves supervised and sanctioned.

With the ability to profit from criminal convictions so broadly dispersed, in fact, sometimes not just one but several grantees stepped in with competing claims, leaving felons or their families literally at a loss. Philip Stockwell, for example, faced dual demands for his property, even after he obtained a pardon for manslaughter. Upon Stockwell's arrest, the mayor and bailiffs of Windsor seized his goods, whereupon his wife paid forty marks composition in order to keep the household items. Soon after, however, the dean of the queen's chapel of Windsor claimed the right to Stockwell's goods and tried seizing them once more. A court found the dean's claim better than the mayor's, but the latter refused to return the composition money he had taken from Stockwell's wife.Footnote ⁵⁸ Similarly, John Goodchild compounded with the agents of Lord Thomas Howard, lord of the manor, for the sheep, bullocks, and such like that his father forfeited upon his felony conviction at the Bury St Edmunds assizes, only to find that Sir Nicholas Bacon, as lord of the liberty, had the better claim to most of the items. Goodchild lost both the livestock and the composition money.Footnote ⁵⁹ Even were these rival claimants more interested in staking claims to entitlements and power rather than immediate pecuniary gain, their efforts had similar effects. Trial jurors may have said these men had nothing to forfeit, but grant holders and their agents proved ready to find and fight for whatever scraps became available.

Thus, potential profit-takers had an interest in limiting local discretion and in seeing the law enforced in ways that secured their benefit. This did not always mean heightened rigour. Some people received pardons they might not otherwise have obtained, precisely because someone had an interest in obtaining their forfeitures. Petitioners sometimes had to request a pardon for the convict in order to assure a profit from the lands: if the offender's lands were entailed to pass to an heir immediately upon his death, the petitioner might seek a pardon for the offender's life as well as the grant of his forfeitures. James granted at least a few such forfeitures accompanied by pardons, in order to allow entailed lands to be enjoyed properly.Footnote ⁶⁰ In his petition to Queen Elizabeth, Laurence Smith made the link explicit: he asked that she recognize his past service with a gift of all the lands and tenements she received upon Rowland Cole's conviction for burglary, lands which promised a yearly revenue of £60. Smith also asked the queen

Occasionally contemporaries worried that the financial interests of private men in the law's operation led to lax prosecution. Such complaints about slack enforcement appeared most often with respect to the seizures from recusants and upon penal statutes – there farmers frequently had an interest in compounding to avoid the costs and risks of prosecution.Footnote ⁶² Conversely, some feared that felony forfeitures provided incentive for unduly rigorous prosecutions or even wholly fabricated charges. Back in the 1540s, Henry Brinkelow, for example, worried that interest in forfeitures ‘helped many an honest man to his death’.Footnote ⁶³ Were such concerns justified? The supporting documentation for a few pardons suggests that the individuals in question had been falsely charged out of a desire for their goods. The 1524 signed bill for the pardon of Joan Burleton, for example, noted that she was now deemed innocent of poisoning her husband after having been indicted ‘by the procurement, instance, and special labour of certain malicious gentlemen … desiring her goods and tenements’.Footnote ⁶⁴ Other individuals, perhaps not innocent, certainly found themselves more rigorously prosecuted than they might otherwise have done. Christopher Carlell received from Queen Elizabeth a promise of the forfeitures of one William Vaux should Vaux be convicted of murder. According to his own wife, Carlell took charge of Vaux's prosecution, only to see the jury acquit him. Carlell had Vaux indicted once more for the same offence, the second time successfully. Whether Vaux was innocent or not, we cannot now know, but clearly the interest in his property contributed to his conviction and ultimately his execution.Footnote ⁶⁵ Even if no injustice was done in fact, forfeiture allowed people to believe, or at least to argue, that greed rather than guilt led to an individual's death. Thomas, Lord Dacre was executed for murder; his son-in-law later maintained his innocence, opining that ‘he was cast away through two privy counselors that gaped after his living’.Footnote ⁶⁶ The third earl of Castlehaven made similar accusations of conspiracy when attempting to regain properties forfeited upon his father's conviction.Footnote ⁶⁷

Concerns about false convictions or at least, in Sir Edward Coke's words, ‘violent prosecutions’ grew with the movement towards farms and the heavier reliance on forfeitures as gifts for suitors.Footnote ⁶⁸ Grants made before an individual's conviction became especially contentious, prompting fears that the petitioner might in some way pervert the course of justice. Even Salisbury, Caesar, and the others involved in the drafting of King James's ‘Book of Bounty’ shared or reacted to this concern. Their tortured editing and re-editing of the section relevant to felony forfeitures first made no mention whatsoever of pre-conviction suits, then imposed a blanket ban, and finally moved on to various rewordings of a line which said, essentially, that pre-conviction suits might still be made, but the petitioner must not speak with the trial judges or meddle with the case in any way.Footnote ⁶⁹ Their fine-tuning of the language in the book, issued in 1610, was for naught. MPs in the parliament of that year complained about a variety of the crown's fiscal expedients in the debate on the ‘Great Contract’; they included in their list of grievances not just the losses suffered by felons' creditors but also the ‘begging of men's lands … before their conviction’. Facing a barrage of complaints about prerogative finance, James sought to forestall further criticism on this particular matter. He pledged that ‘he never would grant any man's suit in that behalf, … he did detest any such suit, and promised absolutely that he would never grant any hereafter’. He said, furthermore, that ‘he would [hold] him unadvised and undutiful that should attempt him in any such suit’.Footnote ⁷⁰

The Commons entered the pledge in their journal, but before long James resumed making pre-conviction grants of felons' forfeitures. He promised Gabriel Hippisley, one of his equerries, the estates of William Robinson and five others who stood charged with a felony in Yorkshire, for example. Adam Hill, a page of the bedchamber who had a fondness for forfeitures, obtained a grant of the estate of one Nicholas Luck, should he have the misfortune of being convicted.Footnote ⁷¹ Having in previous parliamentary sessions attacked monopolies and grants to compound with those who broke penal laws, Sir Edward Coke introduced a bill in 1628 to abolish the practice of begging felons' forfeitures before conviction. Coke depicted such grants as part of a more pervasive problem with the triumph of private over public interest in the turn to government by licence. The bill reappeared in 1629 but both times disappeared after the second reading and committal.Footnote ⁷² It was only many years later that concerns about this practice manifested themselves more successfully, in the Bill of Rights. Its drafters insisted ‘that all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void’.Footnote ⁷³

Interest in the forfeitures of felons, then, opened opportunities for conflict. The potential for problems grew when Elizabeth and the early Stuarts turned to farming out forfeiture collection, altering the number of people who might profit from crime and the manner in which they did so. Patent holders were not answerable to local communities or local expectations of appropriate behaviour in the same way as village constables and other such officials were; nor, perhaps, were they as constrained as the agents of traditional grants holders, such as lords of liberties who had rights over their own lands alone.Footnote ⁷⁴ Patent holders and farmers – and not just farmers of forfeitures – fit poorly into existing models that focus on the primacy of negotiation in relations of power and authority in the early modern state. We are told that ‘ruling was a repeated exercise in compromise, cooperation, and cooptation because, in the absence of a large salaried bureaucracy, the need for participation set strict limits on the capabilities of administration’.Footnote ⁷⁵ But historians such as Joan Thirsk, John Cramsie, and others remind us that the late Elizabethan and early Stuart crown found ways of dealing with ‘the absence of a large salaried bureaucracy’ other than relying on local community leaders.Footnote ⁷⁶ The farmers of felons' forfeitures were but a handful of the much denounced ‘caterpillars of the commonwealth’ that overran Elizabethan and early Stuart England. When William Lambarde wrote of ‘flies that feed upon the sores of diseased cattle’, he had in mind informers, another group of men who notoriously sought profit from wrongdoing.Footnote ⁷⁷ Yet these flies and caterpillars often disappear from our accounts when we turn to discussions of how the broad participatory base of the early modern state helped legitimate its power as authority.

Of course, one must be careful to avoid exaggerating just how new and different these licencees were. One could argue that they represented a difference in degree more than in kind. In respect to forfeitures, for example, Henry VII gave Sir Edward Belknap the new and short lived office of surveyor of the king's prerogative, responsible for collecting felons' forfeitures, among other things. He promised Belknap no fixed salary, but rather a ninth part of all profits. In 1538 Henry VIII appointed Tristram Teshe the general receiver of all lands and possessions in the north acquired by attainder. Teshe received a salary, but also an additional £1 on every £100 collected.Footnote ⁷⁸ More generally, as one early seventeenth-century observer asked, what was the difference between traditional grants of liberties and the new patents? Defending patents for the fines on penal statutes, he pointed to the hundreds of liberties and franchises given over the years to boroughs, lords of manors, and others, all of whom routinely dealt with offenders as they saw fit, as well as diverting profits from the king's coffers.Footnote ⁷⁹ The Scottish courtiers, assorted sycophants, and mercenary middlemen blamed for profiting from felony forfeitures may not have been any more rapacious than a manorial lord with rights to felons' goods. Certainly, sheriffs, bailiffs of liberties, and others proved sufficiently avid in their own hunt for felons' forfeitures that we cannot draw the distinction between traditional officers and grant holders and the newer patentees too neatly.Footnote ⁸⁰

Nor can we dismiss the distinction, though, if for no other reason than that a good many contemporaries thought it existed and thought it mattered a great deal. Yes, felony forfeiture had long had the potential for abuse and conflict, and that potential did increase over the late Elizabethan and early Stuart years. But the context had changed as well. John Guy, Michael Braddick, and others have noted that the use of the word ‘state’, in the sense of a public realm separable from and above private interests, first appeared and then became quite common from the 1590s.Footnote ⁸¹ Richard Cust has recently described the emergence over the late sixteenth and early seventeenth centuries of the ‘public man’, in whose political vocabulary the contrast between ‘public’ and ‘private’ became ‘highly charged terms with a moral force and potency which allowed them to stand for fundamentally opposed approaches to government and magistracy’. This new and polarizing style of politics and political actors drew upon zealous Calvinism, classical republicanism, and – one might add – a native rhetoric of the common weal.Footnote ⁸² These same years, of course, coincided with both the rise of government by licence and the rise in complaints against it. We need not even look to the implacable opponents of informers, patentees, and monopolists to find discussions of the dangerous disjunction of public and private: Caesar, Salisbury, and others of King James's own councillors frequently noted the problems of promoting the profit of ‘particular and private men’ over public necessities.Footnote ⁸³ The published ‘Book of Bounty’ itself highlighted the difficulty, contrasting the service of ‘public ministers’ in the pursuit of justice with the craven actions of ‘private men, who for the most part care not how they molest or strain the subject’.Footnote ⁸⁴ Jurors listened to charges informing them of a duty ‘to serve not your own private affections, but the necessities of the public state’.Footnote ⁸⁵ Defenders of projects used the same language, merely arguing that public good and private gain could be compatible. The new terminology is significant. The frequent contrasts and comparisons of public and private interests that might diverge, the discussions of who or what the public consisted of, and the repeated invocations of a ‘state’ suggest an altered intellectual context, not just new and problematic financial practices.Footnote ⁸⁶

But here we begin to move rather too far away from felons and their forfeitures. What, concretely, can we conclude from this survey of the practice of felony forfeiture in the sixteenth and early seventeenth centuries? Some basic questions will have to remain unanswered; we simply do not know how frequently or how thoroughly felons' belongings were seized, and that limits what we can say. Felony forfeiture did not bring the crown nearly the material resources as did forfeiture for treason – undoubtedly critical in the foundation of the Tudor dynasty, and later in the north and in Ireland. Rather, the crown milked it unsystematically for immediate political gain, using it as a token of patronage. Consequently, it was profoundly a source and site of conflict. We are counselled more and more to see state formation not as something done to people, but with people. And it was. But too often this participation is read as consensus. It was instructional, yes, but integrative only in a narrow sense of the word. Nor was it static, unchallenged, or unchanging. If ‘the legal system exemplifies the participatory nature of English government in the seventeenth century’, that participation came under attack when the crown turned to licensees and the proceeds of justice to help solve its financial problems.Footnote ⁸⁷ And royal councillors thought felons' forfeitures were one of the relatively ‘safe’ types of grants to be made from judicial revenues. Once we restore profit-takers to accounts of the operation of early modern law, we will need to rethink common suppositions about the nature of participation and discretion. When we look at forfeitures, we find people interested in personal profit more than the common peace.