129 



LAW, CRIMINAL. 



LAW, CRIMINAL. 



130 



solidation Act (11 Geo. IV. & 1 Will. IV. c. 66) it was declared to be 

 treason and punishable with death to forge the great and other royal 

 seals and the sign manual. By the 2 & 3 Will. IV. c. 123, the punish- 

 ment of death was repealed for forgery in all but the two cases of wills 

 and powers of attorney to transfer stock (it has been since taken away 

 in these cases also by the 7 Will. IV. & 1 Viet. c. 84) ; but the quality 

 of the offences enumerated in the] Forgery Consolidation Act was left 

 without alteration ; so that to forge the royal seals, &c, would appear 

 to be still treason, though no longer a capital offence. 



The judgment of death in the case of treason is that the offender, if 

 a male, be drawn on a hurdle to the place of execution, and be there 

 hanged by the neck until dead ; and that afterwards the head be 

 severed from the body of such offender, and the body be divided into 

 four quarters, to be disposed of as her Majesty shall think fit (54 Geo. 

 III. c. 146); and, if a female, that the offender be drawn to the place 

 of execution and be there hanged by the neck until dead (30 Geo. III. 

 c. 48, s. 1 ). The queen, however, may, by warrant under her sign 

 manual, countersigned by a principal secretary of state, direct, where 

 the offender is a male, that he shall not be drawn, but taken in such 

 manner as in the warrant shall be expressed to the place of execution, 

 and that he shall not be hanged, but be beheaded, whilst alive, instead 

 (54 Geo. III. c.l 46, s. 2). 



2. Proemunirei.- The penalties of prsemunire, as shortly summed up 

 by Sir Edward Coke (1 ' Inst,' 130 a.), are, " that from the conviction 

 the defendant shall be out of the king's protection, and his lands and 

 tenements " (that is, in fee-simple or for life, but not in tail beyond 

 his life interest therein), "goods and chattels, forfeited to the king: 

 and that his body shall remain in prison at the king's pleasure, or, as 

 other authorities have it, during life." These penalties were first 

 imposed by the stat. 16 Rich. II. c. 5 (commonly called the Statute of 

 Prsemunire) ; and it is by reference to that statute that all subsequent 

 preemunires have been made punishable. It was formerly supposed 

 that a person convicted of prsenmnire, being put out of the king's pro- 

 tection, might be killed with impunity, as being the king's enemy ; but 

 by the 5 Eliz. c. 1, ss. 21 and 22, it was enacted that it should not be 

 lawful to kill any person attainted in a prsemunire, saving such pains 

 of death or other hurt or punishment as theretofore might, without 

 danger of law, be done upon persons sending or bringing into the realm, 

 &c., any process, &c., from the See of Rome. The statute of Elizabeth 

 was, however, repealed by the 9 & 10 Viet. c. 59. Pnemunires, although 

 they occasion a forfeiture of the offender's lands and goods, are not 

 felonies. To constitute a felony the offence must have worked a for- 

 feiture at the common law ; but in the case of pncmunire the forfeiture 

 is made a part of the punishment by statute merely, which is not suffi- 

 cient. (4 Black. ' Comm.,' pp. 94 and 118.) 



3. Feloniet. All felonies, as stated above, were originally, with one 

 or two exceptions, punishable with death ; but the offender, unless the 

 felony was excluded from the benefit of clergy, was entitled for a first 

 offence, to be discharged from the capital punishment upon praying 

 that benefit. [BENEFIT or CLERGY.] But now, since the passing of 

 the 7 & 8 Geo. IV. c. 28, no felony is punishable with death unless it 

 was excluded from the benefit of clergy before or on the 14 Nov. 1826, 

 or has been or shall be made punishable with death by some statute 

 passed since that day. Where not capital, felonies are punishable 

 either in the manner prescribed by the statute or statutes specially 

 relating to such felonies, or, where no punishment has been or may 

 hereafter be specially provided, with penal servitude for seven years, 

 or imprisonment for any term not exceeding two years, with the 

 addition, if the court shall think fit, of whipping, where the offender is 

 a male, hard labour and solitary confinement, or any of theni. (7 & 8 

 Geo. IV. c. 28, ss. 7 and 8.) Such confinement must not, however, be 

 for a longer period than one month at a time, or three months in a 

 year. (7 Wm. IV. 4 1 Viet. c. 90, s. 5.) In the case of all felonies, 

 whether capital or not, the offender immediately on conviction forfeits 

 to the crown all the personal estate of every description, whether in 

 action or possession, or settled by way of trust, which he has otherwise 

 than as an executor ('Cro. Car.' 566), or a trustee or mortgagee (13 & 

 M Viet. c. 60), at the time of conviction (Bac. 'Abrid,,' " Forfeiture" 

 (B) ; Co.-Litt. 391 a) ; and in the case of all capital felonies, upon 



/r /<// jtttliimmt of death or out/aim/, forfeits to the crown the 

 profits of all estates of freehold (4 Black. ' Comm.,' 385), and of things 

 not lying in tenure (Bac. ' Abrid.,' " Forfeiture " (A) ), and to the lord 

 of the manor the profits of all estates of copyhold (Hawk. ' P. C.' b. 2, 

 c. 49, s. 7 ; Lord Cornwallis's case, 2 Vent. 38-9), which the offender 

 ha, otherwise than as a trustee or mortgagee (13 & 14 Viet. c. 60), at 

 the time of the offence committed, during his life ; and his blood is 

 corrupted (but not so as to obstruct descents to the posterity of such 

 i. r where they are obliged to derive a title through him to a 

 remoter ancestor (3 & 4 Will. IV. c. 106, s. 10), and after his death his 



.Ids which he holds in fee-simple are forfeited to the lord of the 



manor. (Scriven 'On Copyholds,' 523, note (d).) And also in the 



case of murder, all his freehold lands and tenements in fee-simple 



escheat (subject to what is called the crown's year, day and waste) to 



the lord of the fee. (54 Ueo. III. c. 145; Co.-Litt. 391 a; 4 Black. 



' I 'uMim.' 385.) The Court of Chancery may appoint a new trustee in 



the place of a trustee convicted of felony, and may make an order 



vesting the estate in the new trustee. (15 At 16 Viet. c. 55, s. 8.) 



The judgment of death in the case of all capital felonies, except 



ABT8 AND SCI. DIV. VOL. V. 



murder, is that the offender be hanged by the neck until dead (2 Hale's 

 'P. C.' 411); and, in the case of murder, it is the same, with th e 

 addition that the offender's body shall be buried within the precincts 

 of the prison in which he shall have been confined after conviction. 

 (2 & 3 Will. IV. c. 75, s. 16 ; 4 & 5 Will. IV. c. 26.) The court how- 

 ever la empowered, if it shall think that the offender is a fit subject to 

 be recommended to the royal mercy, to abstain from pronouncing 

 judgment of death upon him, and to order such judgment to be entered 

 of record instead ; and the judgment so recorded has the same effect as 

 if pronounced and the party were reprieved. (4 Geo. IV c 48 ss 1 

 and 2 ; 6 & 7 Will. IV. c. 30, s. 2.) * 



The following felonies are still punishable with death : 



1. Destroying ships of war or her majesty's arsenals, dock-yards, 

 naval, military or victualling stores, or other ammunition of war &c 

 (12 Geo. III. c. 24, s. 1.) 



2. Murder. (9 Geo. IV. c. 31, s. 3.) 



3. Unnatural offences. (9 Geo. IV. c. 31, s. 15.) 



4. Attempts to murder by administering poison, or by wounding, 

 or by any other means where bodily injury dangerous to life is caused 

 (7 Wm. IV. & 1 Viet. c. 85, s. 2.) 



5. Burglary, aggravated by striking an inmate. (7 Wm. IV. & 1 

 Viet. c. 86, s. 2.) 



6. Robbery, aggravated by wounding the person robbed. (7 Wm 

 IV. & 1 Viet. c. 87, s. 2.) , 



7. Piracy, aggravated by endangering the life of any person on board 

 of the vessel in respect of which the piracyis committed. (7 Wm IV 

 & 1 Viet. c. 88, s. 4.) 



8. Setting fire to a dwelling-house, any person being therein. (7 

 Wm. IV. & 1 Viet. c. 89, s. 2.) 



9. Destroying vessels with intent to murder, or whereby human life 

 is endangered. (7 Wm. IV. & 1 Viet. c. 89, s. 4.) 



10. Exhibiting false lights, &c. with intent to bring ships into danger, 

 or unlawfully doing anything tending to the destruction of ships in 

 distress. (7 \Vm. IV. & 1 Viet. c. 89, s. 5.) 



Besides the above offences, that of wilfully and without lawful 

 excuse having or being possessed of any forged stamp used in pursu- 

 ance of any Act relating to any duties on gold or silver plate made or 

 wrought in Great Britain, for the purpose of marking or stamping such 

 plate, appears to be still punishable with death. 



That offence is contained in 55 Geo. III. c. 185, s. 7, by virtue of 

 which enactment it was formerly also a capital crime to forge or utter 

 the stamps provided for marking any such plate, or to fraudulently 

 remove such stamps from one piece of such plate to another, or 

 privately and secretly to use such stamps with intent to defraud the 

 king. The punishment of death for these last-mentioned offences was 

 repealed, however, by 11 Geo. IV. 1 Wm. IV. c. 66, s. 1 (as to the 

 forging and uttering), and by 4 & 5 Viet. c. 56, s. 1 (as to the removing 

 and fraudulently using) ; but by some inadvertence (for it is clear that 

 it can never have been intended) the offence of being possessed, with- 

 out lawful excuse, of forged stamps for marking gold or silver plate 

 (the least criminal of all the acts specified in 55 Geo. III. c. 185, s. 7) 

 is still left capital. 



There are two other enactments of capital offences, which also do not 

 appear to have been repealed. The 2 Geo. II. c. 25, s. 2, and the 12 

 Geo. III. c. 48, s. 1, make it capital for offenders convicted under the 

 provisions of those statutes, to escape or break out of prison ; and these 

 enactments do not seem to have been wholly repealed, either expressly 

 or by implication. The Criminal Law Commissioners (7th Report) 

 say, " Although many Acts have been passed which punish prison- 

 breach by penalties not capital, yet these seem to be confined to 

 particular gaols and prisons, and not to affect the general enactments 

 above referred to, as regarding offenders against their provisions con- 

 fined in other prisons." 



4. Misdemeanors. The punishment in the case of misdemeanors, 

 where none is specially provided by statute, is generally fine and 

 imprisonment. The statutable punishments vary from transportation 

 for life (for which penal servitude has been substituted) to fine or 

 imprisoment. 



From what has been stated, it will be seen that the circumstance, so 

 far as punishment is concerned, which distinguishes misdemeanors 

 from all the other classes of offences, is the absence of forfeiture as a 

 necessary consequence of conviction. The distinction between pramu- 

 nires and felonies (which term, it should be remarked, in its largest 

 sense, includes treasons, on account of the forfeiture which that class 

 of crimes occasions) is, that the forfeiture which ensues upon a con- 

 viction of the former is, as before observed, in pursuance of statutable 

 provisions ; whereas in the latter case it is a common law consequence 

 of the offence, and follows as a matter of course whenever a crime is 

 declared to be a felony. There appears to be no distinction as regards 

 punishment, independently of special statutable enactment, between 

 non-capital felonies (the term is used here in its ordinary restricted 

 sense) and the non-capital treason above described ; but the difference 

 between felonies and treasons when punishable with death is very 



See B. v. Hogif, 2 M. & Ro., 381, where It was held that since the passing 

 of the 6 & 7 Will. IV. c. 30, death may be recorded in the case of murder as 

 well as other capital felonies, notwithstanding the exception contained in the 

 4 Geo. IV. c. 48. 



