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postponed. (r) And a provision is also made for the certificate of a former conviction being sufficient evidence of that fact in cases
where persons are tried for second offences.(s) Of counterfeit- III. The statute 15 Geo. 2. c. 28. s. 6. reciting that the coining ing copper mo- or counterfeiting the copper money of this kingdom was only a ney.
misdemeanor, and the punishment often very small, enacts that any person making, coining, or counterfeiting any brass or copper money, commonly called a halfpenny, or a farthing, his aiders, abettors, and procurers, shall suffer two years' imprisonment, and find sureties for good behaviour for two years more. (t) But the, 11 Geo. 3. c. 40. s. ). makes the offence felony, enacting “ that “ if any person shall make, coin, or counterfeit, any of the copper “ monies of this realm commonly called a halfpenny or a farthing, “ such offender, his counsellors, aiders, abettors, and procurers, “ shall be adjudged guilty of felony.” But clergy is not taken away, and the punishment under this statute appears to be only a year's imprisonment; which punishment is founded on the general statute of 18 Eliz, c. 7. s. 3.(u)
The statute 37 Geo. 3. c. 126, enacts that the provisions of the 15 Geo. 2. c. 28., relating to the copper monies of the realm commonly called a halfpenny and a farthing, and also the statute 1] Geo. 3. c. 40., and all other acts concerning the copper monies of the realm commonly called a halfpenny and a farthing, or any other copper money of the realm, shall extend “to all such pieces “ of copper money as shall be coined and issued by order of His “ Majesty, his heirs and successors, and as shall by his or their " royal proclamation be ordered to be deemed and taken as cur“ rent money of this realm,” in the same manner as if such pieces had been particularly mentioned and described in such acts respectively. From the manner in which the King's proclamation is here made necessary to the currency of the coin, it seems to be required in proof of any indictment upon this statute.(w)
It is stated as a question whether under this statute it is not optional to prosecute either for a misdemeanor as the offence is made by the statute 15 Geo. 2.; or for a felony as it is made by that of the 11 Geo. 3.; since the provisions of both statutes are extended to any new copper coinage. But yet it is observed, that such an option, without varying circumstances, is unusual, and incongruous with the general rule of law, that the misdemeanor is
merged in the felony. (x) The offence of With respect to the offence of counterfeiting the coin in general counterfeiting it may be observed, that not only all such as counterfeit the King's the coin may be committed by officers in (r) Sect. 4.
(1) If offenders being out of prison the mint. (8) Sect. 5. By the 6th section of impeach two others so that they shall
the act persons having more than five be convicted, the offenders so impieces of such counterfeit foreign peaching shall be pardoned; sect. 8. coin in their possession are liable to (u) Rex v. West and Others, 1 East. a penalty not exceeding 40s. nor less P. C. c. 4. s. 11. p. 162. The stat. 18 than 10s. upon conviction before a Eliz. c. 7. s. 3. provides that upon aljustice of the peace. And by sect. 8. lowance of clergy the offenders may no proceeding touching the convic- be imprisoned for any time not ex. tion of any offender before any justice ceeding a year. of the peace shall be quashed for want (w) i East. P. C. c. 4. s. 2. p. 149. of form, or removed by certiorari. (3) i East. P. C. c. 4. s. 11. p. 162.
coin without his authority, but even such as are employed by him
for it must be laid and proved to be done traitorously.(y)
counterfeiting. which the jury are to judge upon the evidence before them; the rule being, that the resemblance need not be perfect, but such as may in circulation ordinarily impose upon the world. (a) Thus a counterfeiting with some small variation in the inscription, effigies, or arms, done probably with intent to evade the law, is yet within it; and so is the counterfeiting in a different metal, if in appearance it be made to resemble the true coin. (6)
It is quite clear that there will be a sufficient counterfeiting Round blanks within the statutes, where the counterfeit money is made to re
vis made to pe like shillings
worn smooth semble coin, the impression on which has been worn away by time. by circulation. In one case the shillings produced in evidence against the prisoner were quite smooth, without the smallest vestige of either head or tail, and without any resemblance of the shillings in circulation, except their colour, size, and shape; and the master of the mint proved that they were bad, but that they were very like those shillings the impression on which had been worn away by time, and might very probably be taken by persons having less skill than himself for good shillings. And the Court were of opinion that a blank that is smoothed, and made like a piece of legal coin, the impression of which is worn out, and yet suffered to remain in circulation, is sufficiently counterfeited to the similitude of the current coin of this realm to bring the counterfeiters and coiners of . such blanks within the statute; these blanks having some reason. able likeness to that coin which has been defaced by time, and yet passes in circulation. (c) In a subsequent case the point received the more solemn consideration of the twelve judges, the counsel for the prisoners having objected, upon the fact of no impression of any sort or kind being discernible upon the shillings produced in evidence, that they were not counterfeited to the likeness and similitude of the good and legal coin of the realm. But the Judges were of opinion, that it was a question of fact whether the counterfeit monies were of the likeness and similitude of the lawful current silver coin called a shilling. And the jury having so found it, the want of an impression was immaterial; because, from the impression being generally worn out or defaced, it was notorious that the currency of the genuine coin of that denomination was not thereby affected; the counterfeit therefore was.
(y) I East. P. C. c. 4. s. 15. p. 166. 1 Hale 213. I Hawk. P. C. c. 17. s. 55. 3 Inst. 16, 17. 4 Bla. Com. 84.
(2) I Hawk. P. C. c. 17. s. 81. (C) 1 Hale 178, 184, 211, 215.
(6) i East. P. C. c. 4. s. 13. p. 164, citing 1 MS. Sum. 50. and Ridgeley's casc, Old Bailey, Dec. 1778.
(c) Wilson's case, Old Bailey, 1783. i Leach 285.
the statute 8
perfect for circulation, and possibly might deceive the more readily from having no appearance of an impression; and in the decep
tion the offence consists. (d) Where the
:But where the imitation of the real coin has not proceeded so false coin is so far as to fabricate a false coin sufficiently perfect to be circulated, imperfect as the offence of counterfeiting will not, it seems, be complete. not to be passable, the of Thus where the prisoner had forged the impression of a halffence of coun- guinea on a piece of gold, which was previously hammered, but terfeiting will
was not round, nor would pass in the condition it then was, upon not be complete.
reference to the judges, it was held that the crime of counterfeiting was incomplete. (e) And where the prisoners were convicted upon a count in the indictment framed upon the statute 25 Edw. 3. c. 2. and upon the evidence it appeared that no one piece of the base metal found upon the prisoners was in such a state as to make it
passable, the conviction was held to be wrong. (5) As to what Besides the offence of counterfeiting to the resemblance which will be a co- has been already mentioned, the statutes extend to the offence of louring within
colouring any false coin or blanks of base metal; and it has been & 9W.3. c. 26. made a question upon the statute 8 and 9 W.3. c. 26. s. 4. what
will amount to a colouring. In an indictment upon this statute the jury found the prisoners guilty upon very clear and satisfactory evidence: but it appeared that the colour of silver was produced by melting a small portion of good silver with a large portion of base metal, and throwing it, after it had been cut into round blanks, into aqua fortis, which has the effect of drawing to the surface whatever silver there may be in the composition, and giving the metal the colour and appearance of real silver. A doubt therefore arose, whether this process of extracting the latent silver by the power of the wash from the body to the surface of the blank was colouring with “a wash and materials” within the meaning of the statute; or whether the Legislature did not intend such a colouring only as is produced by some external application on the surface of the blank. But the judges thought that this process of extracting the latent silver from the body to the surface of the base metal by the power of aqua fortis was a colouring within the words of the statute; (g) and they also thought that it might be charged as a colouring with silver ; for the effect of the aqua fortis is to corrode the base metal, and leave the silver only on the superficies; and so the copper is coloured or cased with silver. (h)*
And though it be necessary that the blanks should be rubbed after they are taken out of the wash, in order to give them the appearance of silver, the preparing and stecping them in the wash will be a colouring within the statute. A case was reserved · (d) Rex v. Patrick and John Welsh, And qu. if the case was not disposed 1 Leach 364. I East. P. C. c. 4. s. 13. of upon a defect in the judictinent. p. 164. : .
Besides the count on the 25th Edw. 3.
(g) Rex v. Lavey and Parker, I.
for the opinion of the Judges upon the following facts. The prisoner was apprehended in the very act of steeping round blanks composed of brass and silver in aqua fortis : none of them were in a finished state; but many were taken out of the liquor, and others were found dry. These blanks exhibited the appearance of lead, and some of them had the impression of a shilling, and by rubbing them they might be made perfectly to resemble silver coin; but in their then state the jury found that none of them would pass current. The question was, whether the offence was completed, inasmuch as the colour of silver had not been produced on any of the blanks. There was some difference of opinion amongst the judges. One judge said, he understood the words “ colour, &c.” to mean producing on the piece of metal the colour of silver, which was not done here; for, without rubbing, the money coined would not pass : and another observed, that the word in the statute was " producing” in the present tense, and not materials which would produce. But the other judges (0) thought the conviction right. They considered that the offence was complete when the piece was coloured; for it was then coloured with materials which produce the colour of silver; and that it was not necessary that the piece so coloured should be current, for the colouring of blanks was an offence within the clause. And it was observed, that a contrary construction would prevent any conviction until a wash was discovered, which would in the first instance produce a perfect bright shilling or sixpence. (K)
It should be observed, that if there be a counterfeiting in fraud Counterfeiting of the king, the offence within the respective statutes is complete before any uttering, or attempt to utter. (1)
There appears to have been a difference of opinion with respect of principals to receivers of such as counterfeit money, whether they are guilty and accessoof more than misprision of treason. (m) Lord Hale says, that though the more probable opinion may be that such receivers are traitors, yet the more merciful opinion is against such a construction; (n) and a case appears to have been ruled upon this milder ground. (0) But the case did not pass without doubt; and the more strict construction is stated to have been adopted by the best modern authorities, in which it was considered to result necessarily from the general rule of law, that whatever will make a man accessory before or after in felony will make him a principal in treason; and that the stat. 25 Edw. 3. having declared these offences to be high treason, the consequence follows of
(0) Absent Perryn, B. and Buller, J. trate or person having authority to (k) Rex v. Case, i East. P. C. c. 4. take the examination. The punishs. 14. p. 165, 166. I Leach 151. ment for misprision of high treason is note (a).
the loss of the profits of lands during (0 3 Inst. 61. i Hale 215, 228. life, forfeiture of goods, and impri1 Hawk. c. 17. 8. 55. 1 East. P. C. sonment during life: but misprision C. 4. s. 13. p. 165.
of petty treason is only punishable by (m) Misprision of treason is where fine and imprisonment, as in case of a person knowing of a treason, but misprision of felony. I Hale 214, 371, no party or consenter to it, does not 3, 4, 5. 3 Inst. 24. 4 Blac. Com. 120. reveal it by a fair and full disclosure | East. P.C. c. 3. in convenient time to the king, or (n) i Halo 237. bis privy couosel, or to some magis. (o) Conier's case, Dy. 296 a,
course. (p). With respect to the light in which accomplices or receivers are considered in those offences concerning the coin which amount only to felony, it is settled that they follow the general rule' applicable to felony. Two agree to counterfeit, and one does it in consequence of that agreement; they are both guilty. One counterfeits, and another by agreement beforehand afterwards puts it off; the latter is a principal: so if he put it off afterwards, knowing that the other coined it; for that makes him an aider : so if he furnished the coiner with tools, or materials for coining. (9)
Procurers who are named in the statutes 1 Mary, stat. 2. c. 6. and 14 Eliz. c. 3. are not mentioned in the statutes 37 Geo. 3. c. 126.: but the offence being made felony all the incidents of felony at common law are attached to it; and consequently there may be accessories. But it is questioned if they are liable to transportation, or to any other punishment than is authorised by the general act of the 18th Eliz. c. 7. s. 3. (r)
With respect to the evidence in cases which amount to treason, it appears that there is not the same necessity for two witnesses to prove the treason as in the higher species of that offence; but the offenders may be indicted, tried, convicted, or attainted by such like evidence, and in such manner and form as felons in general; except that they are entitled to a peremptory challenge of thirty-five. (s) Proof that a man occasionally visited coiners; that the rattling of money was occasionally heard with them; that he was seen counting something as if it was money when he left them; that, on coming to the lodgings just after the apprehension, he endeavoured to escape, and was found to have bad money about him; is not sufficient 'evidence to implicate him, as counselling, procuring, aiding, and abetting the coining. Two women were indicted for colouring a shilling and sixpence, and a man (Isaacs) as counselling them, &c. The evidence against him was, that he visited them once or twice a week; that the rattling of copper money was heard whilst he was with them; that once he was counting something just after he came out; that on going to the room just after the apprehension he resisted being stopped, and jumped over a wall to escape ; and that there were then found upon him a bad three shilling piece, five bad shillings, and five bad sixpences; but upon a case reserved the Judges thought the evidence too slight to convict him. (2) . In many instances of offences relating to the counterfeiting coin, the Legislature have made special provisions for securing the base coin, and also the tools of the offenders ; in order that they may be produced in evidence, and afterwards be disposed of
Coining tools and base money to be produced in evi
(p) I East. P. C. c. 2. s. 35. p. 95, some length) he shall forbear to ad. where it is also stated, as greatly vance any direct opinion of his own. strengthening this coustruction, that ... (9) i East. P. C. C. 4. s. 31. p. 186. otherwise the receipt of a common (r) i East. P. C. c. 4. s. 10. p. 161. felon would be a bigber offence than See as to the stat. 19 Eliz. ante, p. 58, the receipt of a traitor of this kind, note (u).which appears to be incongruous. (s) 1 East. P. C. c. 4. s. 31. p. 187. But Mr. East says, that having con. (2) Rex v. Isaacs, Hil, T. 1813. MS. tented himself with stating how the Bayley, J. question stands, (which he does at