Lindsays (London, 1835); Sir W. Fraser, History of the Carnegies
(Edinburgh, 1867); A. H. Millar, Historical Castles and Mansions
(Paisley, 1890); G. Hay, History of Arbroath (Arbroath, 1876);
D. D. Black, History of Brechin (Edinburgh, 1867).
FORFEITURE (from “forfeit,” originally an offence, and
hence a fine exacted as a penalty for such; derived through the
O. Fr. forfait, from the late Lat. foris factum, a trespass, that
which is done foris, outside), in English law, the term applied
(1) to loss or liability to the loss of property in consequence of
an offence or breach of contract; (2) to the property of which
the party is deprived.
Under the common law, conviction and attainder on indictment for treason or felony was followed not only by forfeiture of the life of the offender, but also by forfeiture of his lands and goods. In the case of treason all the traitor’s lands of whomsoever holden were forfeited to the king; in the case of felony (including felo-de-se, or suicide), the felon’s lands escheated (exceciderunt) to his immediate lord, subject to the king’s right to waste them for a year and a day. This rule did not apply to lands held in gavelkind in the county of Kent. The goods of traitors and felons were forfeited to the king. The desire of the king and his officers to realize the profits of these forfeitures was one of the chief motives for instituting the circuits of the king’s justices throughout England; and from time to time conflicts arose from attempts by these justices to extend the law of treason—under which the king levied all the forfeitures—at the expense of felony, in which the lord of the felon benefited by the escheats. As regards theft, the king’s rights overrode those of the owner of the stolen property, until, in the reign of Henry VIII., provision was made for restitution of the goods to the owner if he prosecuted the thief to conviction. In Pepys’s Diary, 21st of January 1667–1668, will be found an illustration of the working of the old law. We find that on the suicide of his brother-in-law, Pepys at once applied to the king personally and obtained a grant of the brother-in-law’s estate in favour of his widow and children should the inquest find a verdict of felo-de-se. It was common practice for persons anticipating conviction for treason or felony to assign all their property to others to avoid the forfeiture; and in some instances the accused refused to plead to the indictment and endured the peine forte et dure, until death supervened, to avoid these consequences of conviction. The royal rights to forfeitures arising within particular areas were frequently granted by charter to corporations or individuals. In 1897 the courts had to interpret such charters granted to the town of Nottingham in 1399 and 1448. All forfeitures and escheats with respect to conviction and attainder for treason and felony were abolished as from the 4th of July 1870, except forfeitures consequent upon the now disused process of outlawry, and the forfeitures included in the penalties of praemunire.
The term “forfeit” is also applied to penalties imposed by statute for acts or omissions which are neither treasonable nor felonious. In such statutes the forfeiture enures in favour of the crown unless the statute indicates another destination; and unless a particular method of enforcing the forfeiture is indicated it is enforceable as a debt to the crown and has priority as such. The words “forfeit and pay” are often used in imposing a pecuniary penalty for a petty misdemeanour, and where they are used the court dealing with the case must not only convict the offender but adjudicate as to the forfeiture.
Statutory forfeitures in some cases extend to specific chattels, e.g. of a British merchant-ship when her character as such is fraudulently dissimulated (Merch. Shipp. Act 1894, ss. 70, 76), or of goods smuggled in contravention of the customs acts or books introduced in violation of the copyright acts. Recognisances are said to be forfeited when the conditions are broken and an order of court is made for their enforcement as a crown debt against the persons bound by them.
The term “forfeiture” is now most commonly used with reference to real property, i.e. with reference to the rights of lords of the manor or lessors to determine the estate or interest of a copyholder or lessee for breach of the customary or contractual terms of tenure. It is also applied to express the deprivation of a limited owner of settled property, real or personal, for breach of the conditions by which his rights are limited; e.g. by becoming bankrupt or attempting to charge or alienate his interest. As a general rule, the courts “lean against forfeitures” of this kind; and are astute to defeat the claim of the superior landlord or other person seeking to enforce them. By legislation of 1881 and 1892 there is jurisdiction to grant relief upon terms against the forfeiture of a lease for breach of certain classes of covenant, e.g. to pay rent or to insure.
FORGERY (derived through the French from Latin fabricare,
to construct), in English law, “the fraudulent making or alteration
of a writing to the prejudice of another man’s right,” or
“the false making, or making malo animo, of any written
instrument for the purpose of fraud or deceit.” This definition,
it will be seen, comprehends all fraudulent tampering with
documents. “Not only the fabrication and false making of the
whole of a written instrument, but a fraudulent insertion, alteration
or erasure, even of a letter, in any material part of a true
instrument whereby a new operation is given to it, will amount
to forgery,—and this though it be afterwards executed by
another person ignorant of the deceit” (Russell on Crimes and
Misdemeanours, vol. ii.). Changing the word Dale into Sale
in a lease, so that it appears to be a lease of the manor of Sale
instead of the manor of Dale, is a forgery. And when a country
banker’s note was made payable at the house of a banker in
London who failed, it was held to be forgery to alter the name
of such London banker to that of another London banker with
whom the country banker had subsequently made his notes
payable. As to the fraud, “an intent to defraud is presumed
to exist if it appears that at the time when the false document
was made there was in existence a specific person, ascertained
or unascertained, capable of being defrauded thereby; and this
presumption is not rebutted by proof that the offender took or
intended to take measures to prevent such person from being
defrauded in fact, nor by the fact that he had or thought he had
a right to the thing to be obtained by the false document”
(Stephen’s Digest of the Criminal Law). Thus when a man
makes a false acceptance to a bill of exchange, and circulates it,
intending to take it up and actually taking it up before it is
presented for payment, he is guilty of forgery. Even if it be
proved as a matter of fact that no person could be defrauded
(as when A forges a cheque in B’s name on a bank from which
B had withdrawn his account), the intent to defraud will be
presumed. But it would appear that if A knew that B had
withdrawn his account, the absence of fraudulent intention
would be inferred. A general intention to cheat the public is
not the kind of fraud necessary to constitute forgery. Thus if
a quack forges a diploma of the college of surgeons, in order
to make people believe that he is a member of that body, he is
not guilty of forgery.
The crime of forgery in English law has been from time to time dealt with in an enormous number of statutes. It was first made a statutory offence in 1562, and was punishable by fine, by standing in the pillory, having both ears cut off, the nostrils slit up and seared, the forfeiture of land and perpetual imprisonment. It was made capital, without benefit of clergy in 1634. The most notable cases of those who have suffered the extreme penalty of the law are those of the Rev. Dr W. Dodd in 1777, for forging Lord Chesterfield’s name on a bond, and Henry Fauntleroy, a partner in the banking-house of Marsh, Sibbald & Co., for the appropriation by means of forged instruments of money entrusted to the bank, in 1824. “Anthony Hammond, in the title Forgery of his Criminal Code, has enumerated more than 400 statutes which contain provisions against the offence” (Sir J. T. Coleridge’s notes to Blackstone). Blackstone notices the increasing severity of the legislature against forgery, and says that “through the number of these general and special provisions there is now hardly a case possible to be conceived wherein forgery that tends to defraud, whether in the name of a real or fictitious person, is not made a capital crime.” These acts were consolidated in 1830. The later
