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Report No. 35

Appendix XIX

Summary of Capital Statutes in the 18th Century In England

In the 18th century in England the important capital offences were these1:-

(1) High Treason

Treason in all its manifestations was a capital offence under the Act of 1351.2 An Act of 17963 incorporated several provisions inserted in the meantime by enactments orders passed between 1399 and 1547.

An Act of 17034 provided, that if any officer or soldier out of England or upon the sea were to correspond with any rebel or enemy or give them advice or intelligence by letters, messages, signs or otherwise or to enter into any correspondence with them without authority so to do, he shall be guilty of treason. (By the annual Acts on mutiny and desertion, offenders found guilty of these offences were to suffer death or such other punishment as the court martial should impose).

By a statute of 1792,5 which was passed as an emergency measure, it was high treason to sell, supply or deliver to or for the use of the French Convention or the armies in their employ, during the war, any arms, etc., bank notes or provisions without a licence from the Privy Council or to buy land, etc., in France, etc.

1. Material contained in Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 611-659, has been mainly used in preparing this summary.

2. Treason Act, 1351 (25 Edw. 3 Statute 5, C. 2).

3. Treason Act, 1796 (36 Geo. 3, C. 7).

4. Mutiny Desertion Act, 1703 (2 and 3 Anne., C. 20).

5. Correspondence with Enemies Act, 1792 (33 Geo. 3, C. 27).

(2) Offences against the protestant succession

Certain offences against the protestant succession were capital. Thus, one statute punished a person who endeavoured to deprive or hinder any person who was next in succession to the Crown according to the Act of Settlement from succeeding to the Crown, etc.1

A person maliciously, etc., maintaining and affirming that any other person had any right or title to the Crown otherwise than according to the Act of Settlement, was punishable with death2

Persons holding correspondence in person, by letters, messages or otherwise with the pretender,3 and persons holding such correspondence, etc., with a son of the pretender4 were punishable with death. All such acts were regarded as high treason.

1. Criminal Procedure Evidence, etc., Act, 1702 (1 Anne. Statute 2, C. 17) section 3.

2. Security of Her Majesty's Person Act, 1707 (6 Anne., C. 7), section 1.

3. Correspondence with James the Pretender Act, 1700 (13 and 14 Williams 3, C. 3).

4. Treason Act, 1744 (17 Geo. 2, C. 39).

(3) Offences against the protestant establishment

Several statutes punished with death persons who, by writing or teaching, maintained the spiritual authority or jurisdiction of a foreign prince, or committed similar other Acts.1-4

Several other statutes supplemented or elaborated the Acts mentioned above.5-7

1. Act of Supremacy, 1558 (1 Eliz., C. 1), partially superseded by Supremacy of the Crown Act, 1562 (5 Eliz., C. 1).

2. Sea of Rome Act, 1570 (13 Eliz., C. 2).

3. Religion Act, 1581 (23 Eliz., C. 1).

4. Popish Recusants Act, 1605 (3 Jac. 1 C. 4).

5. Jesuits, etc., Act, 1584 (27 Eliz., C. 2).

6. Popish Recusants Act, 1605 (3 Jac. 1, C. 4).

7. Roman Catholic Relief Act, 1791 (31 Geo. 3, C. 32).

(4) Desertion from the armed forces

Desertion from the King's armies, whether by land or sea, was made a felony by several statutes.1-5

In 1936, an Act was passed which had the effect of imposing capital punishment on any subject of Great Britain who enlisted or entered himself to go beyond the seas to serve any foreign prince, State or potentate as a soldier without the King's consent.6

Under an Act of 1736,7 as clarified by foreign Enlistment Act,8 taking or accepting military commission or entering the military service of the French King without King's consent was similarly punishable.

Going or embarking to go to France, etc., during the war was a capital offence.9

Many acts consisting in seducing others from their allegiance and obedience to the Crown were capital offences.10

Persons rescuing, etc., Napoleon Buonaparte were punishable with death.11

An act passed as an emergency measure after the mutiny at the Nore in 1797,12 but continually prolonged and ultimately made permanent,13 punished as a capital offence a person maliciously and advisedly endeavouring to seduce any person in His Majesty's force by sea or land from his or their duty and allegiance to His Majesty, or to incite or stir up any such persons to commit any act of mutiny, or to commit any traitorous or mutinous practice whatsoever.

Remaining in communication with the crews of ships declared in a state of mutiny was a capital offence.14

1. Soldiers Act, 1439 (18 Hen. 6, C. 19).

2. Soldiers Act, 1487 (7 Hen. 7, C. 1).

3. Soldiers Act, 1511 (3 Hen. 8, C. 5).

4. Maintenance of the Navy Act, 1562 (5 Eliz., C. 5).

5. Military Service Act, 1557 (4 and 5 Phillips and Mary, C. 3).

6. Foreign Enlistment Act, 1736 (9 Geo. 2, C. 30).

7. Foreign Enlistment Act, 1736 (9 Geo. 2, C. 30).

8. Foreign Enlistment Act, 1756 (29 Geo. 2, C. 11).

9. Residents in France during the War Act, 1798 (38 Geo. 3, C. 79).

10. Residents in France during the War Act, 1798 (38 Geo. 3, C. 79).

11. Custody of Napoleon Buonaparte /Act, 1816 (56 Geo. 3, C. 22).

12. Army and Navy Seduclion Act, 1797 (37 Geo. 3, C. 70).

13. Allegiance of Sea and Land Forces Act, 1817 (57 Geo. 3, C. 7).

14. Mutinous Crews Act, 1797 (37 Geo. 3, C. 71).

(5) Injuring the King's armour

Several statutes punishable with death fall under the head 'injuring the King's armour. An Act of 15891 punished a person in charge or custody of any armour, ordnance, munition, etc., or of any victuals provided for soldiers, etc., who embezzled, purloined or conveyed away any of the goods to the value of 20 shillings.

By a later Act,2 the Judge was given power after sentence, to transport such offender, as an alternative punishment to the death penalty.

An Act of 17493 extended capital punishment to any person in the fleet who unlawfully burnt or set fire to any magazine, etc., or ship, etc., belonging and not at that time appertaining to an enemy or rebel.

Burning or destroying any of the King's ships, stores, dockyards, arsenals, victualling and materials there placed for the building of ships or magazines, etc., was made a capital offence by an Act of 1772.4

An Act of 1710 enacted that every person who shall unlawfully attempt to kill or shall unlawfully assault, strike or wound any Privy Counsellor in the execution of his office, in council or in any committee of council shall be punished with death.5 It is believed6 that this was passed after the stabbing of Harley by Anthony Guiscard during the latter's examination before the Privy Council.

By an Act of 1747,7 rebels who returned from transportation without licence or went voluntarily to France or Spain, as well as those who aided such rebels or were in correspondence with them, were punishable with death.

1. Embezzlement Act, 1589 (31 Eliz., C. 4).

2. Benefit of Clergy Act, 1670 (22 Car. 2, C. 5).

3. Navy Act, 1749 (22 Geo. 2, C. 33).

4. Dockyards, etc., Protection Act, 1772 (12 Geo. 3, C. 24), section 1. See Halsbury, 3rd Edn., Vol. 10, pp. 491 and 879.

5. Attempt on the life of a Privy Counsellor Act, 1710 (9 Anne, C. 16).

6. Radzinowicz History of the English Criminal Law, (1948), Vol. I, p. 619, foot-note 38.

7. Traitors Transported Act, 1747 (20 Geo. 2, C. 48).

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