"cheon, matrix, stamp, die, edger, cutting engine, or other tool or "instrument before mentioned." And every such offender and offenders, their counsellors, procurers, aiders, and abettors, shall be guilty of high treason, and being thereof convicted or attainted shall suffer death, as in case of high treason.

&c. high trea

The second section of the same statute creates another offence, Conveying out and enacts, "that if any person shall, without lawful authority of the mint "for that purpose, wittingly or knowingly convey, or assist in the any puncheon, "conveying out of His Majesty's mint in the tower of London, or son; "out of any other of His Majesty's mints, any puncheon, counter"puncheon, matrix, die, stamp, edger, cutting engine, press, or "other tool, engine, or instrument, used for or about the coining " of monies, there, or any useful part of such tools or instruments,' such offenders, their counsellors, procurers, aiders or abettors, as also all and every person and persons knowingly receiving, hid- And receiving, ing, or concealing the same, shall be adjudged guilty of high trea- hiding, &c. the same, also high son, and being convicted or attainted thereof, shall suffer death, as treason. in case of high treason.

ог

within six

months, and in some cases

months.

This statute was only temporary, but afterwards made perpetual Prosecution by 7 Anne, c. 25. s. I.; and by the second section of that statute the prosecution of such as offend against the said act of 8 & 9 W. 3. c. 26. by making or mending, or beginning or proceeding to make within three mend any coining tool, or instrument therein prohibited, may be commenced within six months after such offence committed. The act of W. 3. provides that no prosecution shall be made for any offence against that act, unless such prosecution be commenced within three months (c) after such offence committed. In cases still within this provision it is incumbent on the prosecutor to shew that the prosecution was commenced within three months. And it has been holden that proof by parol that the prisoner was apprehended for treason respecting the coin, within the three months, will not be sufficient, if the indictment be after the three months, and the warrant to apprehend or to commit be not produced. The indictment was for having in possession a die on which was impressed the resemblance of the head side of a shilling. The offence appeared to have been committed above three months before the indictment was preferred; and neither the warrant to take or to commit, nor the depositions before the magistrates, were given in evidence; but parol evidence was given that the prisoner was apprehended upon transactions for high treason respecting the coin within the three months. On a case reserved the Judges were of opinion that this evidence was not sufficient, and a pardon was recommended. (d)

Several points have arisen as to the tools or instruments which are to be considered as within the words of the statute 8 & 9 W.3. In one case the prisoner was indicted for having in his custody a press for coinage without any lawful authority, &c. One of the questions raised was, whether a press for coinage was one of the

Having possession of a press for coinage, or

a mould, is tools or instruments within that clause of the act on which the in- within 8 & 9 dictment was founded: and a majority of the Judges held that it

(c) Vide Willace's case, anté, p. 56.

note (1); and post, 79, note (h).
(d) Rex v. Phillips and Another,

Mich. T. 1818, MS. Bayley, J. Russ.
& Ry. 369.

W. 3. c. 26.

What shall be considered a puncheon within the meaning of the statutes.

was. (d) In another case the prisoner was indicted for having in his custody and possession, without any lawful or sufficient excuse, one mould made of lead, on which was made and impressed the figure, stamp, resemblance, and similitude of one of the sides or flats of a shilling, viz. the head side of a shilling: and the prisoner being convicted, it was submitted to the Judges whether the mould found in the prisoner's custody was comprised under the general words "other tool or instrument before mentioned," so as to make the unlawful custody of it high treason; and also whether, if it were so comprised, it should not have been laid in the indictment to be a tool or instrument in the words of the act. And the Judges were unanimously of opinion that this mould was a tool or instrument mentioned in the former part of the statute, and therefore comprised under these general words; and that as a mould is expressly mentioned by name in the first clause of the act which respects the making or mending, it need not be averred to be a tool or instrument so mentioned. (e)

A case has also been decided as to what shall be considered a puncheon within the meaning of this statute. The prisoner was indicted for having in his custody and possession a puncheon made of iron and steel in and upon which was made and impressed the figure, resemblance, and similitude of the head side of a shilling, without any lawful authority, &c. It was fully proved that several puncheons were found in the prisoner's lodgings, together with a quantity of counterfeit money, and that he had them knowingly for the purposes of coining: but the opinion of the Judges was taken as to the point, whether the puncheon in question was or was not a puncheon within the meaning of the Legislature, upon the following evidence of the engraver of the mint.

The puncheons found in the prisoner's custody were complete and hardened ready for use but it was impossible to say that the shillings which were found were actually made with these puncheons, the impressions being too faint to be exactly compared ;

(d) Bell's case, Fost. 430. In this case the suffering the defendant to be convicted of high treason, subject to the opinion of the Judges, instead of directing a special verdict, which ought to have been done, was much censured among the Judges, and also by Lord Hardwicke when the defendant's pardon came to the great seal.

(e) Lennard's case, 1 Leach 90. 1 East. P. C. c. 4. s. 17. p. 170. Another point was afterwards raised in this case upon the form of the indictment. The doubt was, whether the mould which was found in the prisoner's custody, it having only the resemblance of a shilling inverted, viz. the convex parts of the shilling being concave in the mould, and vice versa, the head or profile being turned the contrary way of the coin, and all the letters of the inscription reversed, was not properly an instrument which would make

and impress the resemblance, stanp, &c. rather than an instrument on which the same were made and impressed, as laid in this indictment, the statute seeming to distinguish between such as will make and impress the similitude, &c. as the matrix, die, and mould; and such on which the same is made and impressed, as a puncheon, counter-puncheon, or pattern. But a great majority of the Judges were of opinion that this evidence sufficiently maintained the indictment; because the stamp of the current coin was certainly impressed on the mould in order to form the cavities thereof. They agreed, however, that the indictment would have been more accurate had it charged that “he had in his custody "a mould that would make and impress the similitude, &c." and in this opinion some, who otherwise doubted, acquiesced.

66

1

but they had the appearance of having been made with them. The manner of making these puncheons is as follows: a true shilling is cut away to the outline of the head; that outline is fixed on a piece of steel, which is filed or cut close to the outline, and this makes the puncheon; the puncheon makes the die, which is the counter-puncheon; a puncheon is complete without letters, but it may be made with letters upon it; though from the difficulty and inconvenience it is never so made at the mint; but after the die is struck the letters are engraved on it; a puncheon alone, without the counter-puncheon, will not make the figure; but to make an old shilling or a base shilling current, nothing more is necessary than the instrument now produced. They may be used for other purposes, such as making seals, buttons, medals, or other things, where such impressions are wanted.

Eleven of the Judges (absente Lord Č. J. De Grey) were unanimously of opinion that this was a puncheon within the meaning of the act; for the word "puncheon" is expressly mentioned in the statutes, and will, by the means of the counter-puncheon or matrix, "make or impress the figure, stamp, resemblance, or simi"litude of the current coin;" and these words do not mean an exact figure, but if the instrument impress a resemblance in fact, such as will impose on the world, it is sufficient, whether the letters are apparent on the puncheon or not; otherwise the act would be quite evaded, for the letters would be omitted on purpose. The puncheon in question was one to impress the head of King William; and the shillings of his reign, though the letters are worn out, are current coin of the kingdom. The puncheon made an impression like them, and the coin stamped with it would resemble them on the head side, though there were no letters. This was compared to the case mentioned by Sir Matthew Hale,(ƒ) that the omission or addition of words in the inscription of the true seals, for the purpose of evading the law, would not alter the case. (g)

It has been decided that having a tool or instrument (of such sort as is included in that branch of the statute 8 & 9 W. 3. c. 26. which makes it treason to have the same knowingly in the party's custody) in possession for the purpose of coining foreign gold coin not current here, is not within the statute. A majority of the Judges considered that this act was only intended to prevent the counterfeiting the current coin of this kingdom, and not foreign coin. But Lord C.J. Ryder and Mr. J. Foster dissented; considering that the act, though principally levelled against counterfeiters of the current coin of the kingdom, was not confined solely to that object. That the intention of the Legislature was to keep out of private hands, as far as possible, all means of counterfeiting the coin; and therefore make it high treason to be knowingly possessed of such instruments, in fact, without lawful authority or sufficient excuse. That it was therefore incumbent on the defendant to shew such lawful authority or sufficient excuse. But that, supposing his mere intention to be an ingredient in the case, the

(f) 1 Hale 184. 2 Hale 212, 215. Robinson's case, 2 Roll. Rep. 50. East. P. C. c. 2. s. 25. p. 86.

(g) Ridgelay's case, 1 Leach 189. 1 East. P. C. c. 4. s. 18. p. 171.

Having a tool

or instrument in possession for the purpose of coining foreign gold coin, & 9 W. 3. c. 26. Sed qu.

is not within 8

Proof of a die

iron or steel.

intention found of using the tool or instrument in question for the purpose stated did not amount to a sufficient excuse; and upon the fullest consideration afterwards Mr. Justice Foster was of opinion that the case did fall within the act; in which opinion it appears that Lord Hardwicke fully concurred. (h)

On an indictment for having in possession a die made of iron made either of and steel, proof of a die made of either material will be sufficient: and it seems that if the indictment should state that the die were made of iron, steel, and other materials, proof that it was made of any material would be sufficient; and that it would not be necessary even to prove the exact material. In a case where the indictment was for having in possession a die made of iron and steel, a witness who saw the die said it was made of iron; another of the witnesses who had not seen it, said that dies were usually made of steel, and that iron dies would not stand: and upon the point being saved whether this evidence would support the indictment, the Judges held that it would, for it was immaterial to the offence of what the die was made, and proof of a die either of iron or steel, or both, would satisfy this charge. (i)

It is not necessary to prove money made

with the instru

ment.

Having tools

for coining in possession, with intent to

use them, is a

misdemeanor at common law.

The tool or in

not bear an

cxact resem

It was agreed by all the Judges, that in proceedings upon this statute 8 and 9 W. 3. c. 26. it is not necessary to prove that money was actually made with the instrument in question. (7)

The having tools for coining in possession, with intent to use them, has been held to be a misdemeanor at common law. An indictment, which was framed as for a misdemeanor at common law, charged that the defendant, without any lawful authority, had in his custody and possession two iron stamps, each of which would make and impress the figure, resemblance, and similitude of one of the sceptres impressed upon the current gold coin of this kingdom, called half-guineas, with intent to make the impression of sceptres on divers pieces of silver coin of this realm, called sixpences, and to colour such pieces of the colour of gold, and fraudulently to utter them to his Majesty's subjects as lawful halfguineas, against the peace, &c. Lord Hardwicke, at the assizes, doubted whether the bare possession was unlawful, unless made use of, or unless made criminal by statute: but upon the indictment being_removed into the Court of King's Bench by certiorari, (k) Page, Probyn, and Lee, Justices, held, that the bare having such instruments in possession, with the intent charged, was a misdemeanor. (1)

It seems that the degree of similitude to the real coin which the strument need tools or instruments must be capable of impressing in order to bring the case within the statute 8 and 9 W. 3. c. 26. must be blance to the governed by considerations similar to those which have been stated with respect to the counterfeit coin itself. (m) Whether the instrument in question be calculated to impress the figure,

coin.

(h) Bell's case, 1 East. P. C. c. 4. s. 17. p. 169, 170. Fost. 430, and Preface to the 3d edition of Fost. p. 8.

(i) Rex v. Oxford, East. T. 1819. MS. Bayley, J. and Russ. & Ry. 382. S. P. Rex v. Phillips, Russ. & Ry. 369.

(j) Ridgelay's

case, East. P. C.

c. 4. s. 18. p. 172.

(k) The defendant was brought up by Habeas Corpus, and committed to Newgate.

(1) Rex v. Sutton, Rep. temp. Hardw. 370. But see the remarks on this case, ante, p. 46.

(m) Ante, p. 59. et sequ.

stamp, resemblance, or similitude of the coin current is a question for the jury and it is clear, that the offence is not confined to an exact imitation of the original and proper effigies of the coin. (n)

The 8 and 9 W. 3. c. 26. s. 5. enacts, that "if any puncheon, "die, stamp, edger, cutting engine, press, flask, or other tool, "instrument, or engine, used or designed for coining or coun"terfeiting gold or silver money, or any part of such tool or "engine, shall be hid or concealed in any place, or found in the "house, custody, or possession of any person, not then employed "in the coining of money in some of his Majesty's mints, nor "having the same by some lawful authority, then any person "discovering the same may seize and carry them forthwith to "some justice of peace of the county or place, to be produced in "evidence at the trial of the offender;" and further provides, that they shall afterwards be defaced and destroyed by order of the Court.

(n) 1 East. P. C. c. 4. s. 18. p. 171,

Seizing tools,

&c. to pro

duce in evidence.