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Felons' Effects and the Effects of Felony in Nineteenth-Century England

Published online by Cambridge University Press:  15 February 2010

K. J. Kesselring
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On May 17, 1853, a court sentenced Francis Prout of East Stonehouse, Devon, to six months' hard labor for receiving £1 15s. in stolen money. Prout's “lodger,” a Mary Ann Foss, had stood charged with the theft at the local quarter sessions, but during her trial she denounced Prout as a brothel keeper who profited from crimes committed in his house. With no real warning, Prout found himself tried and convicted. An even more alarming surprise followed a few days later, when the local authorities decided to pursue Prout's property. They invoked the ancient practice by which felons forfeited their possessions, claiming not just Prout's moveable goods, as was common, but also his ninety-nine-year leases on two local pubs and the profits from his freehold on a pub and houses in Plymouth. The latter constituted an unusual decision, in part because the inquisition necessary to seize the property would cost about £150, and in this case no interested party stepped forward to pay the fees. But as the chairman of the quarter sessions argued, Prout's property was “chiefly acquired by the wages of prostitution.” Underneath his talk of “fallen women” and “unfortunate creatures” lay a very modern concern with the illicit proceeds of criminal activity. In such a case, the chairman opined, the property in question should be forfeit.

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Law and History Review , Volume 28 , Issue 1 , February 2010 , pp. 111 - 139
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Copyright © the American Society for Legal History, Inc. 2010

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References

1. For what follows, see especially the documents gathered in The National Archives: Public Record Office (hereafter PRO), TS 25/771 and also TS 5/42; HO 18/360/1; and C 205/16/14.

2. PRO, T 25/771, 6–7.

3. PRO, T 25/771, 12–13.

4. The literature on this topic is voluminous, especially for the earlier eighteenth-century developments, but see, in particular, Beattie, J. M., Crime and the Courts in England 1660–1800 (Oxford: Oxford University Press, 1986)Google Scholar; Philips, David, Crime and Authority in Victorian England: The Black Country, 1835–1860 (London: Croom Helm, 1977)Google Scholar; Ignatieff, Michael, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750–1950 (London: Macmillan, 1978)CrossRefGoogle Scholar; Sugarman, David and Rubin, G. R., ed., Law, Economy, and Society, 1750–1914: Essays in the History of English Law (Abingdon: Professional, 1984)Google Scholar; Wiener, Martin J., Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990)Google Scholar; Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994)Google Scholar; Emsley, Clive, Crime and Society in England, 1750–1900, 2nd ed. (London: Longman, 1996)Google Scholar; and Bentley, David, English Criminal Justice in the Nineteenth Century (London: Hambledon, 1998)Google Scholar. For the Whig classic against which many of these works situate themselves, but that remains an essential reference on matters of fact, see Radzinowicz, Leon, A History of English Criminal Law, 4 vols. (London: Stevens, 1948–86)Google Scholar. For two particularly influential works of theory, see Foucault, Michel, Discipline and Punish: The Birth of the Prison (New York: Pantheon, 1978)Google Scholar, and Garland, David, Punishment and Modern Society: A Study in Social Theory (Chicago: University of Chicago Press, 1990)CrossRefGoogle Scholar.

5. A significant body of literature on modern forfeiture law exists; see, for example, Berman, Paul Schiff, “An Anthropological Approach to Modern Forfeiture Law: The Symbolic Function of Legal Actions Against Objects,” Yale Journal of Law and the Humanities 2 (1999): 1–45Google Scholar; Ronner, Amy D., “Husband and Wife are One—Him: Bennis v. Michigan as the Resurrection of Coverture,” Michigan Journal of Gender and Law 4 (1996–1997): 129–69Google Scholar (my thanks to Tim Stretton for this reference); and Levy, Leonard W., A License to Steal: The Forfeiture of Property (Chapel Hill: University of North Carolina Press, 1996)Google Scholar. Civil forfeiture rests in part on the tradition of the deodand. For its history, see Cawthon, Elizabeth, “New Life for the Deodand: Coroners' Inquests and Occupational Deaths in England, 1830–1846,” American Journal of Legal History 33 (1989): 137–47CrossRefGoogle Scholar; Sutton, Teresa, “The Deodand and Responsibility for Death,” Journal of Legal History 18 (1997): 44–55CrossRefGoogle Scholar; Sutton, Teresa, “The Nature of the Early Law of Deodand,” Cambrian Law Review 9 (1999): 9–20Google Scholar.

6. See K. J. Kesselring, “Felony Forfeiture in England, c.1170–1870,” (forthcoming in the Journal of Legal History). For a nineteenth-century discussion of the law relating to forfeiture, see “Felony and its Incidents,” Law Magazine and Quarterly Review of Jurisprudence 18 (1837): 357–69.

7. Kesselring, “Felony Forfeiture.”

8. For one expression of the view that forfeiture violated a natural right of inheritance, see The Beauties of the British Senate: Taken from the Debates of the Lord and Commons Taken from the Beginning of the Administration of Sir Robert Walpole, 2 vols. (London, 1786), 242. For Yorke, see his Considerations on the Law of Forfeiture, for High Treason (London, 1745) and “Life of the Honorable Charles Yorke,” Law Magazine and Quarterly Review of Jurisprudence 30 (1843): 63. On shifting conceptions of property and property rights in these years, see G. R. Rubin and David Sugarman, who argue that the “much vaunted rise of absolute private property” discussed by C. B. Macpherson and others coexisted with qualified notions of property in ways that made the conception of property more flexible, subtle, and complex from the seventeenth century onward. Rubin, G. R. and Sugarman, David, “Introduction: Towards a New History of Law and Material Society in England, 1750–1914,” in Law, Economy and Society, ed. Rubin, G. R. and Sugarman, David (Oxford: Professional, 1984), 31–41Google Scholar.

9. Eden, William, Principles of Penal Law, 3rd ed. (Dublin, 1772), 37–38, 48, 249–50Google Scholar.

10. Beccaria, Cesare, On Crimes and Punishments and Other Writings, ed. Bellamy, Richard (Cambridge: Cambridge University Press, 1995), 58–59CrossRefGoogle Scholar.

11. Bentham, Jeremy, “An Introduction to the Principles of Morals and Legislation,” The Works of Jeremy Bentham, ed. Bowring, John, 11 vols. (Edinburgh, 1843), I:480–83Google Scholar. He deemed forfeiture for suicide to be even worse, a “vicarious” punishment, and one of the cases in which punishment is “in the most palpable degree mis-seated” (479–80). On forfeiture for suicide, see in particular MacDonald, Michael, “The Secularization of Suicide in England, 1660–1800,” Past and Present 111 (1986): 50–100CrossRefGoogle Scholar, and with Murphy, Terence R. in Sleepless Souls: Suicide in Early Modern England (Oxford: Oxford University Press, 1991)Google Scholar.

12. Blackstone, Sir William, Commentaries on the Laws of England, 4 vols., 13th ed. (London, 1800), 2:251–55Google Scholar. See also Cairns, John, “Blackstone, the Ancient Constitution and the Feudal Law,” Historical Journal 28 (1985): 711–17CrossRefGoogle Scholar.

13. The Speeches of Sir Samuel Romilly in the House of Commons, 2 vols. (London, 1820), 1:434; 2:3–17, and The Debate in the House of Commons, April 25, 1814, Upon Corruption of Blood (London, 1814). For the final act, see 54 George III, c. 145. An act passed in 1833 tidied loose ends: 3&4 William IV, c. 145. As for the forfeiture of personal property upon a felony conviction, there were exceptions. From the sixteenth century on, many new statutory felonies stipulated no escheat of land, and a few went further to note that no forfeiture of goods would apply, either. See, for example, the notorious “Black Act,” 9 George I, c. 22.

14. 1834 (124), Parliamentary Papers (hereafter PP), Bill to amend Law of Forfeiture as regards Goods and Property of Persons Convicted of Felony and 1834 (223), PP, Bill to amend Law of Forfeiture … (as amended by Committee).

15. 1843 (448), PP, Seventh Report of Her Majesty's Commissioners on Criminal Law, 19, 96. On the Criminal Law Commission, see Farmer, Lindsay, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45,” Law and History Review 18 (2000): 397–425Google Scholar, http://www.historycooperative.org/journals/lhr/18.2/farmer.html; and Lobban, Michael, “How Benthamic Was the Criminal Law Commission?” Law and History Review 18 (2000): 427–32CrossRefGoogle Scholar, http://www.historycooperative.org/journals/lhr/18.2/lobban.html.

16. 1845 (656), PP, Eighth Report of Her Majesty's Commissioners on Criminal Law, appendix A, 211–338.

17. Ibid., 212.

18. Ibid., 319.

19. Ibid., 252.

20. Ibid., 332.

21. Ibid., 225.

22. Ibid., 271.

23. Ibid., 307.

24. Ibid., 225.

25. Ibid., 222.

26. The statute of 7&8 George III, c. 28, noted that jurors no longer needed to answer this question.

27. PRO, T 15/12–21. While I have drawn examples from earlier and later volumes in this series, I did a systematic survey only for these ten years. For background on the Treasury and its procedures, see Roseveare, Henry, The Treasury: The Evolution of a British Institution (New York: Columbia University Press, 1969)Google Scholar.

28. London Metropolitan Archives (hereafter LMA), CC/RFG/2/4. It is difficult to determine the proportion of felony convicts this represents. Sources suggest that some 887 to 905 individuals were found guilty of indictable offences in the Central Criminal Court in this year, but without specifying how may of these were convicted of felonies as opposed to misdemeanours. See Old Bailey Proceedings Online for the 887 total; 1860 (112), PP, Committals (Central Criminal Court) for the 905 total.

29. LMA, CLA/040/03/228, CLA/040/03/226; PRO, T 15/22, 221, 245.

30. PRO, T 15/13, 403.

31. 1847–48 (502), PP, Abstract Return of Amount of Felons' Property Forfeited to Crown in England and Wales, 1842–48, 6.

32. PRO, T 15/14, 25, 32, 64

33. See, for instance, PRO, T 15/22, 6.

34. The poundage allotted to sheriffs varied over time and depending on the amount seized. In 1861, a Treasury order allowed a poundage of 7.5 percent on the first £100 and 5 percent on anything higher. PRO, T 15/14, 271. Later entries refer to a 10 percent cut.

35. LMA, CLA/035/02/005. See also CCC/RGF/9/3.

36. LMA, CCC/RFG/16/16.

37. The type of offence committed is indicated too rarely in the records to allow any sort of evaluation of whether this affected the incidence and degree of forfeiture, as one might suspect. It should be noted, however, that the records do show the occurrence of forfeitures for the full range of felonies, from petty thefts to murder.

38. LMA, CLA/040/03/226; Old Bailey Proceedings Online, October 25, 1869, Trial of Charlotte Lamb and Harriett Powell (t18691025-962), http://www.oldbaileyonline.org.

39. LMA, CCC/RFG/5/2(a).

40. LMA, CCC/RFG/13/4; Old Bailey Proceedings Online, February 4, 1850, Trial of Thomas Edwards (t18500204-408).

41. 1833 (765), PP, Felons' Property. Returns of all Property and Money of Convicted Felons … July 1823 to 1st June 1833 and 1847–48 (502), PP, Abstract Return of Amount of Felons' Property Forfeited to Crown in England and Wales, 1842–48; 1864 (136), PP, Felons' Property … from 1848 to 1863 and 1870 (125), PP, Felons' Property.

42. 21 Henry VIII, c. 11. The Larceny Acts of 1827 and 1861 noted that the financial penalties imposed on summarily convicted thieves would be used to reimburse the victims, but otherwise continued to endorse the principle that the victim had to be active in the indictment of the thief to obtain compensation, “to encourage the prosecution of offenders.” 7&8 George IV, c. 29 § 57; 24&25 Victoria, c. 96 §100.

43. See Jansson, Maija, ed., Proceedings in Parliament, 1614 (Philadelphia: American Philosophical Society, 1988), 51, 119, 126Google Scholar; Notestein, Wallace et al. , ed., Commons Debates, 1621, 7 vols. (New Haven, Conn.: Yale University Press, 1935), 2:199; 5:110; 7:129–32Google Scholar; Bidwell, William B. and Jansson, Maija, ed., Proceedings in Parliament 1626, 4 vols. (New Haven, Conn.: Yale University Press,1996), 4:91Google Scholar.

44. PRO, T 15/14, 255.

45. PRO, T 15/14, 374.

46. Kesselring, K. J., Mercy and Authority in the Tudor State (Cambridge: Cambridge University Press, 2003), 128–31CrossRefGoogle Scholar.

47. See, for example, Perkins v. Bradley (1841), 66 E.R. 1013, 1 Hare 219. The Corporation of Cambridge initially sought to obtain bank stock, worth over £600, that Henry Perkins had transferred to his solicitor just prior to his felony conviction to pay for debts and services. The Corporation withdrew its claim upon notice that its grant of felons' goods did not cover stock, which forfeited to the Crown alone; the Crown pressed its claim, arguing that the forfeiture should relate back to the commission of the felony, but failed. See also Chowne v. Baylis (1862), 54 E.R. 1174, 31 Beav. 351, although the Crown claimed its intervention here was motivated in part by a concern that the property transfer in question amounted to an attempt to compound a felony, to prevent prosecution through a pretrial payment to the victim.

48. PRO, T 15/19, 217.

49. LMA, CLA/040/03/226.

50. PRO, T 15/19, 95.

51. PRO, T 15/16, 51.

52. PRO, T 15/13, 491.

53. PRO, T 15/11, 16.

54. LMA, CCC/RFG/16/11.

55. PRO, T 15/18, 175.

56. PRO, T 15/15, 57–58.

57. PRO, T 15/16, 323.

58. PRO, T 15/21, 446–47.

59. PRO, T 15/17, 255–56.

60. See, for example, PRO, T 15/15, 451 and 461.

61. PRO, T 15/13, 296; Old Bailey Proceedings Online, November 28, 1859, Trial of Jacob, Louis, and Rosa Levy (t18591128-1).

62. PRO, T 15/20, 68.

63. Special rules applied for chattels real and chattels incorporeal. Things such as debts and bonds reverted to a woman's ownership if her husband died or was convicted before “reducing them into possession.” Chattels real, such as leases on land, did forfeit for a husband's offence, but if he died a natural death, they were treated much like real estate and passed back into her possession. For discussions of married women's property rights, see, in particular, Staves, Susan, Married Women's Separate Property in England, 1660–1833 (Cambridge, Mass.: Harvard University Press, 1990)CrossRefGoogle Scholar; Holcombe, Lee, Wives & Property: Reform of the Married Women's Property Law in Nineteenth-Century England (Toronto: University of Toronto Press, 1983)Google Scholar; and Erickson, Amy Louise, “Common Law versus Common Practice: The Use of Marriage Settlements in Early Modern England,” Economic History Review 43 (1990): 21–39CrossRefGoogle Scholar. Campaigners for reform of married women's property law frequently drew comparisons between the effects of crime and the effects of marriage in that both deprived an individual of their property rights. Upon occasion, they also used stories of the wives of felons who were left with nothing to make their points, too. See Holcombe, Wives & Property, 66, 149. I plan to look at the conjunction of married women's property law and criminal forfeiture in more detail in a future article.

64. PRO, T 15/11, 20.

65. PRO, TS 5/44, 70.

66. PRO, T 15/17, 360.

67. PRO, TS 5/44, 3–4.

68. See Table 1. The remaining 7 percent were referred elsewhere or deferred pending character references and further information. Since these particular deferrals never reappeared, one presumes that they too represent failed requests.

69. See, for example, PRO, T 15/21, 131, 235, 311.

70. PRO, T 15/15, 296.

71. Settling the property in trust for the wife of a felon made sense as a way to keep it out of the hands of the felonious husband, at least legally. But interestingly enough, the Board often made a point of settling any money it gave to a married woman for her own separate use; that is, even when it gave property to the married daughter of a felon, for example, it ensured that the property was settled for her own separate use. See, for example, PRO, TS 25/851 and TS 25/855.

72. PRO, T 1/15324.

73. After 9 George IV, c. 32 (1828), however, offenders were no longer considered legally dead once they had completed their punishments, but they started afresh rather than automatically regaining rights or property they had had prior to conviction. The property rights of transported felons became a complex matter, depending in part on whether they were sentenced to transportation or granted it in lieu of a death sentence, but also on variations in policy respecting pardons and tickets of leave. See Coombs v. Her Majesty's Proctor (1852), 163 E.R. 1409, 2 Robertson Ecclesiastical 547 and Kercher, Bruce, “Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850,” Law and History Review 21 (2003): 527–84CrossRefGoogle Scholar, http://www.historycooperative.org/journals/lhr/21.3/forum_kercher.html.

74. PRO, TS 30/1, no. 23.

75. PRO, TS 30/1, no. 76; Old Bailey Proceedings Online, January 3, 1833, Trial of William Carter (t18330103-67).

76. PRO, TS 30/3, no. 60; Old Bailey Proceedings Online, April 7, 1824, Trial of Frederick Scott (t18240407-46).

77. PRO, T 15/12, 174, 232.

78. PRO, TS 30/1, no. 25.

79. PRO, TS 30/1, no. 36; Old Bailey Proceedings Online, September 14, 1814, Trial of George Gilkes and John Radley (t18140914-49).

80. See, for example, PRO, T 15/15, p. 519, T 15/16, 380, and LMA, CCC/RFG/5/2(e) and CCC/RFG/5/2/1(d).

81. See, for example, The Times (London), May 14, 1828, 1. On summary procedures, see Smith, Bruce P., “The Presumption of Guilt and the English Law of Theft, 1750–1850,” Law and History Review 23 (2005): 133–71CrossRefGoogle Scholar, http://www.historycooperative.org/journals/lhr/23.1/smith.html; King, Peter, “The Summary Courts and Social Relations in Eighteenth-Century England,” Past and Present 183 (2004): 125–72CrossRefGoogle Scholar; and Bentley, English Criminal Justice, 19–28.

82. For the text of the act, see 18&19 Victoria, c. 62. Convictions under the Juvenile Offenders Act similarly incurred no forfeiture.

83. PRO, T 15/22, 182.

84. PRO, T 15/18, 194. See also T 15/13, 471 and 477.

85. See, for example, PRO, T 15/15, 25, 511, 523.

86. PRO, T 15/18, 13. For other examples, see T 15/13, 279 and T 15/17, 37.

87. See PRO, T 15/12, 212 and T 15/22, 245

88. See, for example, The Times, February 27, 1834, 2; July 1, 1859, 6; July 21, 1859, 6; June 16, 1864, 8; and Parliamentary Debates, 3rd series, vol. 21, cols. 863–64; vol. 154, cols. 486–90; vol. 155, cols. 135–39; vol. 175, cols. 1800–11.

89. PRO, HO 45/7662, Report of the Treasury Solicitor against the Proposed Bill to Abolish Forfeiture, May 23, 1865.

90. On the significance of “discretion” in reform debates, see in particular McGowen, Randall, “The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England,” Buffalo Law Review 32 (1983): 89–126Google Scholar.

91. See Kesselring, “Felony Forfeiture.”

92. See, for example, Philip Vernon Smith's 1870 proposal to retain forfeiture upon significant amendments, including a proposition to make its operation on real and personal property identical: “On the Law of Forfeiture for Treason and Felony,” (1870) Papers Read Before the Juridical Society, vol. 3, pt. 19, 665–88. See also Eden, Principles, 41; Yorke, Considerations, 4th ed., 1775, 95; and Barlow, Theodore, The Justice of the Peace (London, 1745), 215Google Scholar.

93. See Deane, Phyllis and Cole, W. A., British Economic Growth, 1688-1959, 2nd ed. (Cambridge: Cambridge University Press, 1967), 269–77Google Scholar, for estimates of the dramatic decline in the relative importance of landed capital. For a discussion of the relationships between landed, financial, and industrial interests see Daunton, Martin, State and Market in Victorian Britain (Woodbridge: Boydell, 2008), 148–78Google Scholar.

94. See, for example, The Times, February 7, 1844, 2; March 31, 1870, 6.

95. The Times, June 16, 1864, 8.

96. The Times, May 7, 1869, 12. The report in the Old Bailey Proceedings gives no real hint of this subtext, however; May 3, 1869, Trial of Isaac Chamberlain, Caroline Judd, and Ann Hutchinson (t18690503-487), http://www.oldbaileyonline.org.

97. The Times, June 16, 1864, April 8 and 23, 1868, 12.

98. The Times, Thursday, March 31, 1870, 6; Parliamentary Debates, vol. 200, cols. 931–38, quote at 933. Forster was a Gladstonian Liberal, the son of a banker, friend of the “commercial interests,” and a longtime MP for Walsall. See the obituary in the Birmingham Daily Post, July 28, 1891, 8, which singles out his work in securing the end of forfeiture, “the last barbarous relic of a barbarous age.” The particular case that prompted Forster's concern may have been the explosion of a boiler owned by S. Mills of Darlaston, which killed furnace man George Andrews. The inquest charging Mills with manslaughter was reported in the Birmingham Daily Post, January 15, 1864, 3.

99. 33&34 Victoria, c. 23 (1870).

100. See Holcombe, Wives & Property, 34ff.