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seem proper. Whipping also was ordinarily awarded in former times, but of later years it seems never to have been adjudged. In all cases of misdemeanor, in addition to any punishment that may be awarded, the court may require the defendant to find sureties to keep the peace and be of good behavior, (i) and even a married woman may be required to find such sureties (k) But she cannot herself be bound by recognizance, because being a feme covert she cannot enter into it.(?) Where no particular punishment is prescribed by any statute for any felony, it is punishable under the 7 & 8 Geo. 4, c 28, s 8.(m)

As questions occasionally arise as to the effect of the repeal of statutes creating offences, it may be well to notice this subject. "It has been long established that when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed."(n) Where, therefore, a jus*93] tice of the peace, under the 13 Geo. 3, c. 78, s. 24, presented the *inhabitants of a parish for the non-repair of a highway, and the proceedings were removed into the Court of Queen's Bench, and the defendants pleaded, and issues of fact were joined, and a verdict found against the defendants, and the issues had been joined before, but tried after, the day on which the 5 & 6 Will. 4. c. 50, repealing the 13 Geo. 3, c. 78, came into operation, the judgment was arrested, on the ground that the power to give judgment upon a presentment made under the 13 Geo. 3. c. 78, was gone.(o) So where the liability to repair certain highways in a parish was taken away from the parish by a statute, and cast upon certain townships, and the statute gave a form of indictment against the townships for nonrepair, and one of the townships was indicted under the Act, but before the trial the Act was repealed, and a verdict was found against the township, the judgment was arrested, on the ground that, although whatever had been done under the Act before it was repealed was valid, the statute when repealed was, with regard to any future operation, as if it had never existed, and the effect of the repeal is the same whether the alteration affect procedure only or matter which is more of substance.(p) So where a prisoner was indicted for privately stealing in a shop. against the 10 & 11 Will. 3, c. 23, which was repealed after the offence was committed, but before the prisoner was tried, by the 1 Geo. 4, c. 117, s. 1, it was held that the prisoner could not be sentenced under the repealed Act.(q)

Repealing Acts, however, sometimes contain clauses for the purpose of keeping alive the statutes they repeal so far as they relate to offences committed against them, and where a bankrupt had committed an offence against the 12 & 13 Vict. c. 106, s. 251, and an information had been laid before a magistrate for that offence, and a warrant issued for the prisoner's apprehension, before the 24 & 25 Vict. c. 134 came into operation, which by sec. 230 repeals the former Act, except as to any proceeding pending," &c., " or any penalty incurred," &c., at the commencement of the Act, it was held that there was a proceeding pending within the meaning of this exception, and that the word "penalty" in it extended to any penal consequences whatever, and was not restricted to a pecuniary penalty, and, consequently, that the bankrupt might be convicted and sentenced under the former Act.(r)

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(i) Reg. v. Dunn, 12 Q. B. 1026 (64 E. C. L. R.); Rex v. Hart, 30 How. St. Tr. 1131; and see the new clause in the Acts of 1861, ante, p. 5.

(k) Rex v. Thomas, supra.

(1) Lee v. Lady Baltinglas, Styles 475; Bennet v. Watson, 3 M. & S. 1; Elsy v. Mawdit, Styles 226; Anonymous, Styles 321. In 1 Ch. C. L. 100, the reason given is that the recognizance of a married woman cannot be estreated.

(m) Ante, p. 3.

(n) Per Lord Tenterden, C. J., Surtees v. Ellison, 9 B. & C. 752 (57 E. C. L. R.). (0) Reg. v. Mawgan, 8 A. & E. 496 (35 E. C. L. R.).

(p) Reg. v. Denton, 18 Q. B. 761 (83 E. C. L. R.). (q) Rex v. M Kenzie, R. & R. 429.

(r) Reg. v. Smith, 1 L. & C. 131.

*BOOK THE SECOND.

[*94

OF OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE PUBLIC PEACE, OR THE PUBLIC RIGHTS.

*CHAPTER THE FIRST.

OF COUNTERFEITING OR IMPAIRING COIN-OF IMPORTING INTO THE KINGDOM COUNTERFEIT OR LIGHT MONEY-AND OF EXPORTING COUNTERFEIT MONEY.

Sec. 1-Of Counterfeiting Coin.

THE Legislature has made provision against the counterfeiting of the following descriptions of coin, namely:-I. The King's current gold or silver coin. II. Foreign gold, silver, or copper coin. III. The copper money of this realm.

I. The first of these, usually called the King's money, was protected by enactments, which placed the offence of counterfeiting it in the highest class of crimes, upon the ground that the royal majesty of the Crown was affected by such offence in a great prerogative of government; the coining and legitimation of money, and the giving it its current value, being the unquestionable prerogatives of the Crown. (a) But these enactments were repealed by the 2 Will. 4, c. 34, s. 1 (now repealed by the 24 & 25 Vict. c. 95)

The 26 & 27 Vict. c. 74, s. 1, enables the Queen to declare gold coins issued from Her Majesty's Branch Mint at Sydney, New South Wales, a legel tender for payments within the United Kingdom.

It appears that the coin or money of this kingdom consists properly of gold or silver only, with a certain alloy, constituting what is called sterling, coined and issued by the King's authority; and therefore such money is supposed to be referred to by any statute naming "money" generally. (b) The weight, alloy, impression, and denomination, of money made in this kingdom are generally settled by indenture between the King and the master of the mint: but the 56 Geo. 3, c. 68, provided, with respect to the new silver coinage, that the bullion shall be coined into silver coins of a standard and fineness of eleven ounces two pennyweights of fine silver, and eighteen pennyweights of alloy in the pound troy, and in weight after the rate of sixty-six shillings to every pound troy, whether the same be coined in crowns, half-crowns, shillings, or *sixpence, or pieces of

a lower denomination. (c) A proclamation has in some cases been made as a [*95

more solemn manner of giving the coin currency: but the proclamation in general cases is certainly not necessary, and in prosecutions for coining need not be proved. (d) And it is not necessary in such prosecutions to produce the indentures; though it may be of use in case of any new coin with a new impression, not yet familiar to the people, to produce either the indentures, or one of the officers of the mint cognizant of the fact, or the stamps used, or the like evidence. But in general, whether the coin, upon a question of counterfeiting or impairing it, be the King's money or not, is a mere question of fact which may be found

(a) 1 Hale 188; 1 East P. C. 148

(b) 1 East P. C. 147. And see 1 Hale, chaps. 17, 18, 19, 20.

(c) See the 12 & 13 Vict. c. 41, extending the 56 Geo. 3, c. 68.

(d) 1 East P. C 142, where see some cases in which proclamation by the writ of proclamation under the great seal, or a remembrance thereof, is considered to be necessary to prove a coin current.

upon evidence of common usage or notoriety.(e) It should be observed, that any coin, once legally made and issued by the King's authority, continued to be the current coin of the kingdom until recalled, notwithstanding any change in the authority by which it was constituted.(ƒ)1

The 24 & 25 Vict. c. 99, which came into effect on the 1st of November, 1861,(g) and applies to England, Scotland, and Ireland, enacts by sec. 1, that, "In the interpretration of and for the purposes of this Act, the expression, the Queen's current gold or silver coin' shall include any gold or silver coin coined in any of Her Majesty's mints, or lawfully current, by virtue of any proclamation or otherwise, in any part of Her Majesty's dominions, whether within the United Kingdom or otherwise; and the expression the Queen's copper coin' shall include any copper coin and any coin of bronze or mixed metal coined in any of Her Majesty's mints, or lawfully current, by virtue of any proclamation or otherwise, in any part of Her Majesty's said dominions; and the expression 'false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin' shall include any of the current coin which shall have been gilt, silvered, washed, colored, or cased over, or in any manner altered, so as to resemble or be apparently intended to resemble or pass for any of the Queen's current coin of a higher denomination; and the expression the Queen's current coin' shall include any coin coined in any of Her Majesty's mints, or lawfully current, by virtue of any proclamation or otherwise, in any part of Her Majesty's said dominions, and whether made of gold, silver, copper, bronze, or mixed metal; and where the having any matter in the custody or possession of any person is mentioned in this Act, it shall include not only the having of it by himself in his personal custody or possession, but also the knowingly and wilfully having it in the actual custody or possession of any other person, and also the knowingly and wilfully having it in any dwelling-house or other building, lodging, apartment, field, or other place, open or enclosed, whether belonging to *or occupied by himself or not, and whether such matter shall be so had for his own use or benefit or for that of any other person." (h)

*967

The words of the 2 Will. 4, c. 34, s. 21, were "coined in any of his Majesty's mints and lawfully current" in any part of his Majesty's dominions, whether within the United Kingdom or otherwise; and consequently did not include coin which was not coined in any such mint, but was current in any of the colonies by virtue of any proclamation or otherwise; this clause is so framed as to include all such coin, and by that means the provisions of this Act are extended to it.

The definition of the "Queen's current coin" is new.

In Reg. v. Rogers, 2 M. C. C. R. 85; Reg. v. Gerrish, 2 M. & Rob. 219; and Reg. v. Williams, 1 C. & M. 259, questions had arisen whether a person could be said to be in possessson of coin within the meaning of the 2 Will. 4, c. 34, s. 21, which was with his knowledge in the personal possession of another, even though he were in company and acting in concert with such other, and the words "know

(e) 1 East P. C. 149. But in the case of old coin which has gradually fallen into disuse, though still the legal coin of the King, there can be no general notoriety of the fact. (ƒ) 1 East P. C. 148, where it is said also, that this recall may be by proclamation; and long disuse may, it is conceived, be evidence of it. It has also been affected by Act of Parliament, as by 9 Will. 3, c. 2, and 6 Geo. 2, c. 26.

(g) Sec. 43.

(h) This clause is framed on the 2 Will. 4, c. 34, s. 21, and 22 & 23 Vict. c. 30.

1 The courts of Massachusetts have jurisdiction of the offence of having false money counterfeited in the similitude of any gold or silver coin current by law or usage within the State, knowing the same to be false and counterfeit, and with intent to utter or pass the same as true: Commonwealth v. Fuller, 8 Met. 313. The power vested in Congress by the Federal Constitution (Art. 157,) "to provide for the punishment of counterfeiting the current coin of the United States," may be exercised by the several States concurrently with Congress: Harlan v. People, 1 Dougl. 207. It seems that the States have no jurisdiction over the offence of counterfeiting money coined at the mint of the United States or any of its branches. But whether an indictment lies in the State courts under State statutes for counterfeiting foreign coin or passing coin so counterfeited. Quære. Rouse v. State, 4 Geo. 136.

ingly and wilfully having it in the actual custody or possession of any other person" were introduced to remove all doubt in such cases.

Sec. 2. "Whosoever shall falsely make or counterfeit any coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(i),

Sec. 3. "Whosoever shall gild or silver, or shall, with any wash or materials capable of producing the color or appearance of gold or of silver, or by any means whatsoever, wash, case over, or color any coin whatsoever, resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin; or shall gild or silver, or shall, with any wash or material capable of producing the color or appearance of gold or of silver, or by any means whatsoever, wash, case over, or color any piece of silver or copper, or of coarse gold or coarse silver, or of any metal or mixture of metals respectively, being of a fit size and figure to be coined, and with intent that the same shall be coined into false and counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin; or shall gild, or shall, with any wash or materials capable of producing the color or appearance of gold, or by any means whatsoever, wash, case over, or color any of the Queen's current silver coin, or file or in any manner alter such coin, with intent to make the same resemble or pass for any of the Queen't current gold coin; or shall gild or silver, or shall, with any wash or materials capable of producing the color or appearance of gold or silver, or by any *means whatsoever, wash, case over, or color any of the Queen's current cop[*97 per coin, or file or in any manner alter such coin, with intent to make the same resemble or pass for any of the Queen's current gold or silver coin, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years,or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(k)

The words, "by any means whatsoever," were introduced in order to include every process by which false metal can be made to appear like gold or silver, whether such appearance be produced by galvanism or otherwise howsoever.

The order of the words in the former clause was "wash, color, or case over," and it was advisedly altered.

Sec. 18. "Whosoever shall make or counterfeit any kind of coin not being the Queen's current gold or silver coin, but resembling or apparently intended to resemble or pass for any gold or silver coin of any foreign prince, state, or country, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement." (m)

Sec. 22.. Whosoever shall falsely make or counterfeit any kind of coin not being the Queen's current coin, but resembling or apparently intended to resemble or pass for any copper coin, or any other coin made of any metal or mixed metals of less value than the silver coin of any foreign prince, state, or country, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court,

(i) This clause is taken from the 2 Will. 4, c. 34, s. 3. p. 104. See the interpretation clause, ante, p. 95.

(k) This clause is taken from the 2 Will. 4, c. 34, s. 4. p. 104. See the interpretation clause, ante, p. 95.

As to hard labor, &c., see post,

As to hard labor, &c., see post,

(m) This clause is framed from the 37 Geo. 3, c. 126, s 2. As to hard labor, &c., see See the interpretation clause, ante, p. 95.

post, p. 104.

for the first offence to be imprisoned for any term not exceeding one year, and for the second offence to be kept in penal servitude for any term not exceeding seven years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement.'(n)

Sec. 23 provides for the summary conviction of persons in possession of such foreign coin as aforesaid without lawful excuse.

Sec. 14. "Whosoever shall falsely make or counterfeit any coin resembling or apparently intended to resemble or pass for any of the Queen's current copper coin, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three years, or to be imprisoned *for any term not exceeding *98] two years, with or without hard labor, and with or without solitary confinement."(o)

With respect to the offence of counterfeiting the coin in general it may be observed, that not only all such as counterfeit the King's coin without his authority, but even such as are employed by him in the mint, come within the statute, if for their own lucre they make the money of baser alloy, or lighter than by their indentures they are authorized and bound to do: for they can only justify their coining at all under such an authority; and if they have not pursued that authority, it is the same as if they had none. But it is not any mistake in weight or alloy that will make them guilty; the act must be wilful, corrupt, and fraudulent.(p)

The moneys charged to be counterfeited must resemble the true and lawful coin:(9) but this resemblance is a matter of fact of 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. (r) 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 (s)

Where, on an indictment for uttering a counterfeit half sovereign, the coin was, in reality, a Prince of Wales's medal; and though on one side it bore some resemblance to a good half-sovereign, having Her Majesty's head and the usual inscription, on the other side was the plume of the Prince of Wales, with the words "Prince of Wales's model half-sovereign," and it was held that it was a question for the jury whether this coin was intended by the maker to pass as counterfeit coin, or was merely designed for a plaything, a card-marker, &c.(t)

It is quite clear that there will be a sufficient counterfeiting where the counterfeit money is made to resemble coin, the impression on which has been worn away by time. In one case the shillings produced in evidence were quite smooth, withcut the smallest vestige of either head or tail, and without any resemblance of the shillings in circulation, except their color, 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 hav

(n) This clause is framed from the 43 Geo. 3, c. 139, s. 3. As to hard labor, &c, see post, p. 104. See the interpretation clause, ante, p. 95. See sec. 37 for the form of an indictment for a second offence, &c., post, p. 121. As to hard labor,

(0) This clause is taken from part of sec. 12 of the 2 Will. 4, c. 34. &c., see post, p. 104. See the interpretation clause, ante, p. 95.

(p) 1 East P. C. c. 4, s. 15, p. 126; 1 Hale 113; 1 Hawk. P. C. c. 17, s. 55; 3 Inst. 16, 17; 4 Blac. Com. 84.

(9) 1 Hawk. P. C. c. 17, s. 81.

(r) 1 Hale 178, 184, 211, 215.

(s) 1 East P. C. c. 4, s. 13, p. 164, citing 1 MS. Sum. 50, and Ridgeley's case, Old Bailey,

Dec. 1778.

(t) Reg. v. Byrne, 6 Cox C. C. 475, Crampton, J.

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