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Report No. 35

(11) Smuggling

Smuggling, it appears, was carried on by great gangs carrying firearms or others offensive weapons, and several officers of Customs and Excise had been "wounded, maimed, and some of them even killed in execution of their office."1 Hence an Act of 17462 made it a capital offence to assemble armed, to the number of three or more, in order to assist in landing or carrying away prohibited, uncustomed or re-landed goods; to pass, masked or disguised, with prohibited, uncustomed or re-landed goods; to maim or wound. officers going on boards, ship within a port; to shoot at or dangerously wound officers on board such ships in execution of their duty, etc.

The Act of 1746 was supplemented by an Act of 1784,3 making it a capital offence to shoot at or upon any ship, boat or vessel belonging to His Majesty within four leagues of the coast or to shoot at naval, customs and excise officers.

An act of 18124 relaxed the law, but still retained death penalty for serious offences against the public revenue.

An act of 18255 consolidated the law again, and made it still more lenient, but continued death penalty for certain offences of smuggling, e.g., three or more persons armed with firearms assembled to assist in the illegal exportation of goods, etc., and persons shooting at a boat belonging to the navy.

1. Preamble to Offences against the Customs Act, 1746 (19 Geo. 2, C. 34).

2. Offences against the Customs Act, 1746 (19 Geo., C. 34), sections 1, 2.

3. Smuggling Act, 1784 (24 Geo. 3, sess. 2.47) section 11.

4. Land Tax Certificates Forgery Act, 1812 (52 Geo. 3, C. 143).

5. Customs Act, 1825 (6 Geo. 4, C. 108), sections 56, 57.

(12) Counterfeiting stamps, etc.

Several statutes imposed capital punishment for forging or counterfeiting duty stamps on various kinds of goods, or forging debentures relating to excise duties and certain other documents executed under revenue laws.1

1. These were later embodied in-

(i) Customs and Excise Act, 1787 (27 Geo. 3, C. 13).

(ii) Stamps Act, 1797 (37 Geo. 3, C. 90).

(13) Petty treason

Petty treason was an aggravated form of murder, and consisted in the homicide of

(i) a master by his servant;

(ii) a husband by his wife; or

(iii) an ecclesiastical superior by his inferior.

It was a capital offence.1-2 It had this feature in common with treason, that it amounted to a violation of the confidence on which the particular relationship was founded.

Men convicted of high or petty treasons were, after execution, to be disembowelled and quartered, and woman so convicted were (after execution) burnt.3 In actual practice some leniency in execution was observed in most cases.4

Petty treason was abolished by a later Act.5

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

2. Benefit of Clergy Act, 1496 (12 Hen. 7, C. 7).

3. See Radzinowicz History of English Criminal Law, (1948), Vol. 1, pp. 209 to 211, 220, 221.

4. Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 223-225.

5. Offences against the Person Act, 1828 (9 Geo. 4, C. 31), section 2.

(14) Murder

Murder was felony at common law. The punishment for murder had been made the object of two statutes.1-2 But the matter was definitely settled by an Act of 1547.3 That Act excluded, the benefit of clergy, any person "attained or convicted of murder of malice prepense or of poisoning with malice prepense " The specific mention of poisoning was due to the case of the Bishop of Rechester's Cook who had put some poison into a vessel of yeast, thereby causing the deaths of several persons.

1. The Benefit of Clergy Act, 1531 (23 Hen. 8, C. 1).

2. Standing Mute, etc., Act, 1533 (25 Hen. 8,. C. 3).

3. Treason and Felony Act, 1547 (1 Edw. 6, C. 12) sections 10 and 13.

(15) Bastard Child-Killing

An Act of 16231 enacted (in substance) that if any woman who is delivered of any issue of her body, male or female, which would be a bastard, she endeavours privately so to conceal the death thereof that it may not come to light (i.e. the fact whether it was born alive or not is concealed by her action) then she shall suffer death as in the case of murder unless she could prove at least by one witness that the child was born dead. Thus, in substance, concealment of birth amounted to a presumption of murder; this is explained by the fact that in such cases it was difficult to prove that the child had been born alive.2

This Act evoked great controversy, particularly because it was contrary to the presumption of innocence. Courts, it appears, went to extreme limits in narrowing down its scope, e.g., (i) by holding that there was no concealment if the mother had called for help or had confessed that she was about to have a child, or (ii) by requiring some sort of evidence that the child, had been born alive, or (iii) by holding that there could be no concealment if any person be present, even though that person was privy to the guilt.3

One of the arguments used against the Act was that it was infinitely better that ten guilty persons should escape rather than that one innocent person be hanged. This law asserted that 10 innocent persons should be hanged, so that one guilty person does not escape.4

The Act was replaced in 1803 by a statute which redrafted the definition of the offence of murdering the bastard children,5 bringing it in line with the general position.

1. Concealment of Birth of Bastards Act, 1623 (21 Jac. 1, C. 27) made perpetual by the Continuance of Act, 1640 (16 Car. 1, C. 4).

2. See Radzinowicz History of English Criminal Law, (1948), Vol. I, p. 629 and the preamble to the Act quoted at p. 431.

3. See Radzinowicz History of the English Criminal Law, (1948), Vol. I, pp. 433-434.

4. See Radzinowicz History of English Criminal Law, (1948), Vol. 1, p. 435.

5. Lord Ellenborough's Act, 1803 (43 Geo. 3, C. 58), section 3.

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