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Report No. 35

(31) Offences by Bankrupts

By an Act of 17321 later made permanent,2 death penalty without benefit of clergy was appointed for bankrupts who failed either to surrender themselves to the Commissioners within 42 days after notice or to submit to being examined or fully to disclose their estates and effects or to deliver their estates and effects for the benefit of their creditors or who removed, concealed or embezzled any part of their estate to the value of 20 pound, etc.

Another Act3 provided death penalty for a person who refused to deliver a schedule of his estates and effects to a creditor (apparently after an order of the court). The Act recited, that several persons who were prisoners for debt chose to continue in prison, and to spend their substances there than to discover and deliver up to their creditors their estates, etc.

1. Bankrupts Act, 1732 (5 Geo. 2, C. 30), section 1.

2. Bankrupts Act, 1797 (37 Geo. 3, C. 124).

3. Insolvent Debtors Relief Act, 1755 (28 Geo. 2, C. 13), section 39

(32) Forgery

At common law, forgery was a misdemeanour only. In 1562,1 an Act was passed to broaden the legal concept of forgery and to establish a new system of punishment. Section 1 of the Act recited, that the "wicked, pernicious and dangerous practice of making, forging and publishing false charters, evidences, deeds, etc., had of late time been very much practised", to the High displeasure of God and the great injury of the subjects and this was due chiefly to the reason that the punishments were small and mild.

After providing the punishment of cutting off ears, slitting the nostrils, etc., for certain types of forgery, the Act (section 7) punished offenders convicted for the second time of forgery with death without benefit of clergy. The Act was virtually superseded by later Acts, but formally remained in force till 1830. There were certain other capital statutes (too numerous to be mentioned here) punishing various types of forgery with death.2 These related to forgery of deeds, bonds, bills, shares of public companies, stamps, and marks, forgery of the seal of Bank of England, bank notes, etc. It is well known that this severity of punishment for forgery induced many bankers to petition for lesser punishment,3 as it had rendered conviction difficult.

1. Forgery Act, 1962 (5 Eliz., C. 14).

2. See Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 644-650.

3. See Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 550, 555, 557, 592 and petition on p. 730.

(33) Personation

The offence of falsely personating another with intent to defraud was a misdemeanour at common law. But, by several statutes,1 personation of certain classes of person, such as, proprietors of shares in stock of bodies corporate, or personation of officers, seamen, etc., or of a certain pensioner, or personating the nominees of life, annuities, etc. was made a capital offence.

1. See Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 651-652.

(34) Destroying ships to the prejudice of insurance companies

By an Act of 1717,1 superseded by a later Act,2 if any owner or captain, master, etc., of any ship or vessel wilfully cast away, burnt or otherwise destroyed the ship, etc., with intent to prejudice the insurers, he was guilty of felony without benefit of clergy.

There were also earlier statutes under which the acts in question were feloniously punishable with death. One of these statutes recited,3 that it often happened that masters and mariners of ships, having insured or taken upon Bottomry, greater sums of money than the value of their adventure, wilfully cast away, burnt or otherwise destroyed the ships, to the merchants and owners' great loss. The impact of the Act of 1717 lay in its extending the offence to the owner, etc., who defrauded the insurers.

1. Stranded Ships Act, 1717 (4 Geo. 8, C. 12).

2. Continuance Act, 1724 (11 Geo. 1, C. 29).

3. Merchant Shipping Piracy Act, 1670 (22 and 23 Car. 2, C. 11), section 12.

(35) Coinage

Many offences connected with coinage, such as counterfeiting, bringing false money into the realm, and impairing coins were made capital offences.1

1. See Radzinowicz History of English Criminal Law, (1948), Vol. I., pp. 652-654.

(36) Arson

Several kinds of arson were made capital by statutes and it is enough to note the Act of 1722,1 which appointed absolute capital punishment for setting fire to any house, barn or out-house, to any hovel cock, mow or corn, hay or wood. A later Act2 punished with death setting on fire any mine, pit, or depth of coal, etc.

Still another Act3 made it a capital offence to set on fire or otherwise destroy ships of war, on float or in process of building, arsenals, magazines, victualling offices, or any of the buildings erected therein or belonging thereto.4

Several statutes made it a capital offence to set on fire one's own house, or building, engine or erection used for carrying on any trade or manufacture, with intent to injure or defraud.5

1. The Waltham Black Act, 1722 (9 Geo. 1, C. 22), section 1.

2. Offences against the Persons Act, 1737 (10 Geo. 2, C. 32), section 6.

3. Dockyards, etc., Protection Act, 1772 (12 Geo. 3, C. 24), section 1.

4. The Act of 1772 is still in force, and the offence is a capital one, but the court may abstain from pronouncing sentence of death and may order the judgment to be entered in record.

See Halsbury, 3rd Edn., Vol. 10, p. 434, foot-note (d) and p. 435, foot-note (i).

5. Radzinowicz, History of English Criminal Law, (1948), Vol. I, p. 655.

(37) Wilful destruction otherwise than by fire

Wilful destruction otherwise than by fire of certain kinds of property, such as linen cloth, or linen yarn, etc., certain woollen textile, stocking or lace, frame machine or other machines, engines, etc., belonging to collieries and mines, building or engines used in carrying on any trade or manufacture, were punishable with death.1

Beside this, a captain, master, etc., who wilfully cast away, burnt or otherwise destroyed a ship, or a person who did these acts to the prejudice of the owner of the ship or any merchant whose goods were loaded thereon or who destroyed any goods in any ship in distress were punishable with death2

1. Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 655-656.

2. Radzinowicz History of English Criminal Law, (1948), Vol. I, p. 657.

(38) Piracy

In the middle ages, piracy was regarded as a kind of treason if the offender was not an alien. If the offender was an alien, it was a felony. In more recent times, piracy was held to be robbery or unauthorised depredation on the high seas.1

It was not a felony at common law, and the first statute made it a capital offence though not a felony, and some doubts survived as to whether the benefit of clergy was available in respect of this offence.

An Act of 17002 declared that the King's subject who committed an act of hostility on the high seas against any other subject of the King by commission of any foreign power or under pretended authority from any person whatsoever, should be considered guilty of piracy and punished with death, and loss of lands, etc., as pirates, felons and robbers upon the seas ought to have and suffer.

Section 9 of the same Act made a certain number of other acts of piracy liable to the same punishment. Later Acts made supplementary provisions.3

The law on the subject is now contained in the Act of 1837,4 under which piracy is punishable with death where any person on or belonging to the vessel attacked is assaulted with intent to murder or wounded or has his life endangered, or with imprisonment for life or for any shorter term in other cases.5

1. Radzinowicz History of English Criminal Law, (1948), Vol. I, p. 657.

2. Suppression of Piracy Act, 1700 (11 and 12, Will, 3, C. 11), section 8.

3. Radzinowicz History of English Criminal Law, (1948), Vol. 1, p. 658.

4. The Piracy Act, 1837 (7 Will. 4 and 1 Vict., C. 88).

5. See Halsbury, 3rd Edn., Vol. 10, p. 654, para. 1245.



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