PROPERTY OF FELONS. (Hansard, 6 February 1844)

§ The Duke of Richmond
said, he rose, in consequence of the notice which he had given yesterday, to call the attention of the House to a circular letter addressed by the Lords of the Treasury to the clerks of the peace of the different counties, on the subject of property belonging to felons. It was dated the 2nd of December, 1843, and was signed by the assistant-secretary of that body. In bringing forward this subject he did so without meaning to impute blame to any one; but at the same time he must observe that all matters of this kind were formerly settled by application to the Secretary for the Home Department, to which department this subject naturally belonged, and he thought that the course taken by the Lords of the Treasury would not have been adopted if the question had been duly considered. As the law at present existed, the property of every person convicted of felony went to the Crown. Under these circumstances, those whose duty it was to look after these matters were naturally 261 anxious to seize as much of such property as they could; but, in acting on that principle, they ought undoubtedly to adhere strictly to the law. Still, the magistrates and the ratepayers in counties thought it very hard upon them that they should have to maintain the prisoners, and yet receive no part of the expense out of any property of which, at the time of conviction, they might be possessed. They felt it to be very hard indeed that all the property should go to the Crown, and nothing should be set aside to repay the county for the expense that had been incurred. The circular letter, however, went further, and he was sorry that the Lords of the Treasury were not better advised than to send it forth. The first paragraph of the circular directed, That in every case of committal for trial, either at the quarter or general Sessions or to the Assizes, the Magistrate should state on the back of the warrant of commitment what money, goods, or effects have been found in the possession of the prisoner, and in whose hands deposited; so that the same may be entered in the quarterly return sent to their Lordships by the clerk of the peace, and be duly accounted for to the Sheriff. Now, he had no objection to that, for at present the governor of every gaol was bound to take an inventory of all property in the possession of persona committed for trial, and they were responsible for its not being made away with; but to the second paragraph he felt the strongest objection. That paragraph ran thus:— I am further directed to suggest, that in cases where there is reason to believe that persons accused of felony have any property whatever other than that found in their immediate possession, inquiry should be made at the residence of the prisoner, or at any other place known to have been frequented by him, for the purpose of ascertaining the particulars and value of such property, and the result communicated to the clerk of the peace, in order that the same may be included in the quarterly return above-mentioned. How was this order to be carried into effect? Why, if a constable were to enter a house for the purpose of making such an inquiry, he would be liable to an action for trespass; but, supposing he were allowed to enter the House, how could he distinguish whether the property there belonged to the prisoner or not? How could he tell who had, or who had not, a legal claim to the property? Would he be allowed to examine partnership accounts? Such a proceeding was not recognized by the law of the land; and if such inquiries were made, 262 he would go to the prisoners as a visiting magistrate, and tell them to make over their property to some person before their conviction, for it did not become the property of the Crown until that conviction took place. He trusted that the noble Lord (Lord Wharncliffe) would agree with him, that the second paragraph of the letter had better be omitted, that the Lords of the Treasury should withdraw it altogether, or that it should be amended. The noble Duke concluded by moving for the production of the letter.

§ Lord Wharncliffe
had no objection to the production of the letter. By the common law of the land, as the noble Duke had correctly stated, the goods of convicted felons were forfeited to the Crown; and, until a few years ago, a regular return of such goods was made. Some very strong instances had, however, arisen, where the property of prisoners had fallen into other persons hands illegally, and had been retained by those persons. One occurred at Brighton, when 40 sovereigns were taken from a prisoner, and not given up. A still stronger case had occurred in Westmoreland, when no less a sum than 2,000l. was kept back, and was with difficulty, and after a long lapse of time recovered. He admitted, that in particular cases, the recommendation contained in the second clause of the letter could not be acted upon; the first clause was perfectly right; the constables were bound to state the amount of money found on the persons of prisoners, and magistrates ought to attend to that suggestion. The second clause he did not think the Treasury expected to be obeyed in the way the noble Lord suggested; it was not intended to put the magistrates or clerks of the peace or of assize to any expense; but was intended as a suggestion to the magistrates that they should do something more than merely commit the prisoners. The object of the principal recommendation was, that on every apprehension the officer should be compelled to mark on the back of the commitment the amount of money found upon the prisoner. He thought that it would be well for the magistrates to attend to that suggestion, which he conceived would be attended with beneficial results. It was also recommended, that when the constable took the prisoner into custody he should inquire into the property possessed by the prisoner; but he knew not on what principle 263 his noble Friend could suppose that it was thereby intended that the constable should inquire into the undivided profits of partners.

Lord Brougham
was very glad that this subject had been brought under their Lordships' notice. It was quite impossible to defend the second paragraph of the letter, which was directly contrary to law. It was there recommended, that the constable should inquire into the amount of property belonging, or which he had "reason to believe," belonged to a prisoner. It was utterly impossible to defend such a clause, inasmuch as it encouraged an officer to commit a trespass.

Lord Campbell
conceived, that it was the duty of the Secretary for the Home Department, or the Lords of the Treasury, to have submitted this letter to his noble and learned Friend the Lord Chancellor, or to the Attorney-general before it was issued. The second paragraph was evidently contrary to law. With respect to the forfeiture of the property of felons, he was of opinion, that the sooner the law relative to it was revised the better. As the law stood, if a convicted felon were possessed of 100,000l., it was all forfeited to the Crown. Now, surely, some portion of it ought to be reserved to meet prosecution or other expenses.

§ The Duke of Richmond
thought it would be desirable to have a letter written to the different clerks of the peace, directing that the second clause (which he thought ought to be omitted) should not be acted on.