49 which the offender may suffer fine, imprisonment, and pillory. And also, by a variety of statutes, a more severe punishment is inflicted on the offender in many particular cases, which are so multiplied of late as almost to become general. I shall mention the principal instances. By statute 5 Eliz. c. 14, to forge or make, or knowingly to publish or give in" evidence, any forged deed, court-roll, or will, with intent to affect the right of real property, either freehold or copyhold, is punished by a forfeiture to the party grieved of double costs and damages; by standing in the pillory and having both his ears cut off and his nostrils slit and seared, by forfeiture to the crown of the profits of his lands, and by perpetual imprisonment. For any forgery relating to a term of years, or annuity, bond, obligation, acquittance, release, or discharge of any debt or demand of any personal chattels, the same forfeiture is given to the party grieved; and on the offender is inflicted the pillory, loss of one of his ears, and a year's imprisonment: the second offence in both cases being felony without benefit of clergy. Besides this general act, a multitude of others, since the revolution, (wher. paper-credit was first established,) have inflicted capital punishment on the forging, altering, or uttering as true when forged, of any bank bills or [*248 notes, or *other securities;(p) of bills of credit issued from the exche 50 (P) Stat. 8 & 9 W. III. c. 20, 36. 11 Geo. I. c. 9. 12 Geo. I. c. 82. 15 Geo. II. c. 18. 13 Geo. III. c. 79. he used the assumed name before the time he had the fraud in view, even in the absence of all proof as to what name he had used for several years before the fraud in question. Russ. & Ry. C. C. 278. And see Russ. & Ry. C. C. 405. 3 Brod. & Bing. 228, S. C. 2 Burn, J., 24th ed. 510. Russ. & Ry. C. C. 463, S. C. A defect in the stamp will not avail the prisoner, (1 Leach, 257, 258, in notis. 2 East, P. C. 955;) and it has even been decided that, if there be no stamp at all on a counterfeit promissory note, it may still be forgery, (2 Leach, 703,)—though this case seems to go too far; for how can a promissory note without the appearance of a stamp have such a similitude to a genuine instrument as is requisite to constitute forgery? But, though the validity of the instrument if real is thus immaterial, it must not appear on its face, so that no one of common understanding would give it credit. Thus, it will not be forgery to fabricate a will for land as attested by only two witnesses. 2 East, P. C. 953. Nor is it felony to counterfeit a bill of exchange for a sum more than twenty shillings and less than five pounds, without mentioning the abode of the payee and being attested by a subscribing witness; as such an instrument is, by 17 Geo. III. c. 30, absolutely void. 1 Leach, 431. These cases will sufficiently explain the law on this subject.-CHITTY. The punishment of pillory is now taken away, by 56 Geo. III. c. 138. Besides this punishment, the defendant is holden incapable of being examined as a witness till restored to competence by the king's pardon. Com. Dig. Testmoigne A. 3, 4. And, by 12 Geo. I. c. 29, in case persons convicted of forgery shall afterwards practise as attorneys, solicitors, or law-agents, the court where they practise shall examine the matter in a summary way and order the offender to be transported for seven years.-CHITTY. 50 As to the further provisions relative to this description of forgery, vide 41 Geo. III. c. 39; 45 Geo. III. c. 89; 52 Geo. III. c. 138, and 1 Geo. IV. c. 92, under which last act, relating to bank-notes, by s. 11, persons engraving, cutting, etching, scraping, or by other means marking upon any plate of copper, brass, steel, &c. any engraving, &c. for the purpose of producing a print or impression of all or any part of a bank-note, or a blank banknote of the said governor and company, without their authority, or having unlawfully in their possession any such plate, &c., or wilfully disposing of any such blank bank-note or part of such bank-note as aforesaid, are liable to transportation for fourteen years. By s. 2, persons unlawfully cutting, etching, &c. or procuring, &c., or assisting in making upon any plate of copper, brass, steel, &c., any line-work, as or for the groundwork of a promissory note or bill of exchange, which shall be intended to resemble the groundwork of a bank-note of the governor and company, or any device, the impression from which shall contain the words "Bank of England" in white letters upon a black or dark ground, with or without white lines therein, or shall contain in any part thereof the numerical sum or amount of such note or bill in black and red register-work, or shall show the reversed contents thereof, or shall contain any words, figures, characters, or patterns intended to resemble the ornaments on such note, or any word, figure, &c. in white on a black ground, intended to resemble the amount in the margin of such note, or using such plate or other instrument intended to represent the whole or part of any such note, or knowingly having in their possession any such plate, &c., or disposing of any such 51 quer; (g) of South-Sea bonds, &c.;(r) of lottery tickets or orders;(s) of army or navy debentures;(t) of East India bonds;(u) of writings under the seal of the London or royal exchange assurance; (w) of the hand of the receiver of the prefines(x) or of the accountant-general, and certain other officers of the court of 82. (9) See the several acts for issuing them. () Stat. 9 Anne, c. 21. 6 Geo. 1. c. 4 and 11. 12 Geo. I. c. (See the several acts for the lotteries. (*) Stat. 5 Geo. I. c. 14. 9 Geo. I. c. 5. (*) Stat. 12 Geo. I. c. 32. paper impressions, or knowingly having such in their custody, are guilty of felony and liable to transportation for fourteen years. The bank having preferred one indictment for uttering a forged note, and another for having the same in possession, and having elected to proceed on the latter charge, it was held that, although facts sufficient to support the capital charge were made out in proof, an acquittal for the minor offence ought not to be directed, because the whole of the minor charge was proved and did not merge in the larger. R. & R. C. C. 378. On an indictment for forging a bank-note, the cashier who signed "for the governor and company of the bank of England" is a competent witness to prove the forgery; for he is not by such a signature personally responsible for the payment of the note, (1 Leach, C. C. 311. R. & R. C. C. 378;) but he is not an essential witness, as his handwriting may be disproved by other witnesses. Rex vs. Hughes, and Rex vs. M'Guire, 2 East, P. C. 1002. 1 Leach, C. C. 311. What circumstances are sufficient to constitute the offence of uttering, which must be attended with a guilty knowledge, and what proofs required to substantiate it, may be deduced from the following abstract of decided cases which have been selected from among many others. Where a prisoner, charged with uttering a forged note to A. B., knowing it to be forged, gave forged notes to a boy who was not aware of their being forgeries, and directed the boy to pay away the note described in the indictment at A. B.'s for the purchase of goods, and the boy did so and brought back the goods and the change to the prisoner; it was held by the twelve judges an uttering by the prisoner to A. B. Rex vs. Giles, Car. C. L. 191. So the delivering a box containing, among other things, forged stamps to the party's own servant, that he might carry them to an inn to be forwarded by a carrier to a customer in the country, is an uttering. And if the delivery be in one county, and the inn to which they are carried by the servant in another, the prisoner may be indicted in the former. The offence of uttering a forged stamp will be complete although, at the time of uttering, certain parts of the stamp are concealed, all the parts that are visible being like those of a genuine stamp. Rex vs. Collicott, R. & R. C. C. 212. It is not necessary that a promissory note should be negotiable, in order to be a promissory note within the 2 Geo. II. c. 25, so as to be the subject of an indictment for forging or uttering it. Rex vs. Box, id. 300. An indictment, on 45 Geo. III. c. 89, for uttering forged notes, need not state to whom they were disposed: it is sufficient to state that the prisoner disposed of the notes with intent to defraud the bank, he knowing them at the time to be forged, and although the person to whom they were disposed purchased them as and for forged notes, and purchased them on his own solicitation and as agent for the bank, for the purpose of bringing the prisoner to punishment. Rex vs. Holden, id. 154. Uttering a forged order for the payment of money under a false representation is evidence of knowing it to be forged. Id. 169. To prove the guilty knowledge of an utterer of a forged bank-note, evidence may be given of the prisoner's having previously uttered other forged notes, knowing them to be forged. Rex vs. Whiley, 2 Leach, C. C. 983. So upon an indictment for uttering a forged note, evidence is admissible of the prisoner's having at a former period uttered others of a similar manufacture, and that others of similar fabrication had been discovered on the files of the bank with the prisoner's handwriting on the back of them, in order to show the pri soner's knowledge of the note mentioned in the indictment being a forgery. Rex vs. Ball, R. & R. C. C. 132. But in order to show a guilty knowledge on an indictment for uttering forged bank-notes, evidence of another uttering, subsequent to the one charged, is inadmissible, except the latter uttering was in some way connected with the principal case, or it can be shown that the notes were of the same manufacture; for only previous or contemporaneous acts can show quo animo a thing is done. Rex vs. Taverner, Car. C. L. 195. So, if a second uttering be made the subject of a distinct indictment, it cannot be given in evidence to show a guilty knowledge in a former uttering. Rex vs. Smith, 2 C. & P. 633. The person whose name is forged was formerly held to be not a competent witness to prove the forgery, (Rex vs. Russell, 1 Leach, C. C. 8;) but he has recently been made competent, by the 9 Geo. IV. c. 32, s. 2.—CHITTY. 51 See also the 48 Geo. III. c. 1. 58 Geo. III. c. 23, s. 38. R. & R. C. C. 67.-CHITTY. 5 This is now a clergyable felony. 4 Geo. IV. c. 60, s. 11.—CHITTY. chancery;(y) of a letter of attorney, or other power to receive or transfer stock or annuities, and on the personating a proprietor thereof to receive or transfer such annuities, stock, or dividends;(2) also on the personating, or procuring to be personated, any seaman or other person entitled to wages or other naval emoluments, or any of his personal representatives; and the taking or procuring to be taken any false oath in order to obtain a probate or letters of administra tion, in order to receive such payments;53 and the forging or procuring to be forged, and likewise the uttering or publishing as true, of any counterfeited seaman's will or power;(a) to which may be added, though not strictly reducible to this head, the counterfeiting of Mediterranean passes under the hands of the lords of the admiralty, to protect one from the piratical States of Barbary;(b) the forging or imitating of any stamps to defraud the public revenue, (c) and the forging of any marriage register or license; (d)56 all which are, by distinct (7) Stat. 12 Geo. I. c. 32. (*) Stat. 8 Geo. I. c. 22. 9 Geo. I. c. 12. 31 Geo. II. c. 22, § 77. (*) Stat. 31 Geo. 11. c. 10. 9 Geo. III. c. 30. (*) Stat. 4 Geo. II. c. 18. (e) See the several stamp-acts. 53 Vide also 3 Geo. III. c. 16; 26 Geo. III. c. 23; 32 Geo. III. c. 33; 55 Geo. III. c. 60; 57 Geo. III. c. 127; 4 Geo. IV. c. 46; and 5 Geo. IV. c. 107; by sect. 5 of which latter statute the punishment previously due to these offences is changed to transportation for life or otherwise. Personating a seaman who is dead is within the act; as where a prisoner applied at the Greenwich Hospital for prize-money in the name of J. B., and J. B. was dead, and supposed to be so at the hospital, though the prisoner did not obtain the money, he was convicted of the offence. Rex vs. Martin, R. & R. C. C. 324. So where a prisoner personated one "S. Cuff," who was dead, and whose prize-money had been paid to his mother, it was held that it did not vary the prisoner's guilt, and that he might be convicted on the 54 Geo. III. c. 93, s. 89. Rex vs. Cramp. id. 327. To constitute the offence of personating the name of a seaman under the 57 Geo. III. c. 127, s. 4, the person entitled, or really supposed to be so, to prize-money, must be personated: personating a man who never had any connection with the ship is not an offence within the act. Rex vs. Tannet, id. 351. And, by 59 Geo. III. c. 56, s. 3, persons falsely representing themselves as the next of kin of any seaman, &c., or any agent whose authority is revoked offering to receive wages, pay, prize-money, or other allowance, are guilty of a misdemeanour. By sect. 12, inserting a false date in any order for the payment of prize-money is made a misdemeanour; and, by sect. 17, persons really entitled to prize-money, &c. using false orders or certificates to procure the same are guilty of a misdemeanour.- CHITTY. See also 55 Geo. III. c. 60, s. 31, and 59 Geo. III. c. 56, by the 18th section of whicn the falsely personating officers, seamen, marines, supernumeraries, &c. entitled to wages, or their representatives, or forging or uttering any letter of attorney, order, bill, ticket, or other certificate, assignment, last will, or other power whatsoever, in order to obtain any prize-money, &c., or uttering any such letter of attorney, order, bill, &c., knowing the same to be forged, in order to receive any prize-money, &c., or taking a false oath to obtain a probate or letters of administration in order to receive prize-money, &c., or demanding or receiving wages, &c., knowing the will to be forged, or the probate or administration to have been obtained by a false oath with intent to defraud, is made a capital felony. By 1 & 2 Geo. IV. c. 49, s. 3, procuring persons to sign a false petition under this act, or procuring others to demand money due, or supposed to be due, to seamen, &c., under a certificate from the inspector of seamen's wills, is punishable with transportation for seven years; and, by s. 4, procuring others to utter any forged letter of attorney or other document to obtain seamen's wages, &c., or procuring others to demand or receive such wages, &c., is punishable with death. By 7 Geo. IV. c. 16, s. 38, the personating any Chelsea pensioner, &c., or forging any documents, or knowingly uttering such forgeries to obtain any pension, &c., is punishable with transportation for life or otherwise. A bill drawn on the commissioners of the navy for pay may be a bill of exchange, and a person may be indicted for the forgery of it as such, although it is not in the form prescribed by 35 Geo. III. c. 94. Rex vs. Chisholm, R. & R. C. C. 297.— CHITTY. 55 By 6 Geo. IV. c. 106, forging or uttering the drafts or other instrument of the receiver-general or controller-general of the customs is a capital felony. Vide also, as to stamps, 37 Geo. III. c. 90; 44 Geo. III. c. 98; 48 Geo. III. c. 149; 52 Geo. III. c. 143; 55 Geo. IV. c. 184 and c. 185; and 6 Geo. IV..c. 119; which makes it a capital felony to forge or utter false stamps to newspapers. See also 9 Geo. IV. c. 18, which makes it a capital felony to forge the stamps of any cards or dice.-CHITTY. The forgery of documents relating to marriage registers and licenses is punishable now only with transportation for life. 4 Geo. IV. c. 76, s. 29.-CHITTY. VOL. II.-33 513 acts of parliament, made felonies without benefit of clergy. By statute 13 Geo. III. c. 52 and 59, forging or counterfeiting any stamp or mark to denote the standard of gold and silver plate, and certain other offences of the like tendency, are punished with transportation for fourteen years. By statute 12 Geo. III. c. 48, certain *frauds on the stamp-duties therein described, principally *249] by using the same stamps more than once, are made single felony, and liable to transportation for seven years. And the same punishment is inflicted, by statute 13 Geo. III. c. 38,58 on such as counterfeit the common seal of the corporation for manufacturing plate-glass, (thereby erected,) or knowingly demand money of the company by virtue of any writing under such counterfeit seal. There are also certain other general laws with regard to forgery, of which the first is 2 Geo. II. c. 25, whereby the first offence in forging or procuring to be forged, acting or assisting therein, or uttering or publishing as true, any forged deed, will, bond, writing obligatory, bill of exchange, promissory note, endorsement, or assignment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person, (or corporation,)(e) is made felony without benefit of clergy. And, by statutes 7 Geo. II. c. 22 and 18 Geo. III. c. 18, it is equally penal to forge or cause to be forged or utter as true a counterfeit acceptance of a bill of exchange, or the number or principal sum of any accountable receipt for any note, bill, or any other security for money, or any warrant or order for the payment of money or delivery of goods. So that, I believe, through the number of these general and special provisions, there is now hardly a case possible to be conceived wherein forgery that tends *250] to defraud, *whether in the name of a real or fictitious person,(ƒ) is not made a capital crime.60 () Stat. 31 Geo. II. c. 22, § 78. 57 This is now a capital felony.-CHITTY. 68 Revived, by 33 Geo. III. c. 17, s. 23.-CHITTY. (S) Fost. 116, &c. 59 See 45 Geo. III. c. 89, 49 Geo. III. c. 35, and 8 Geo. IV. c. 8, respecting widows' pensions, remittance-bills, the forging of which, or procuring others to forge them, is made a felony punishable with transportation.-CHITTY. It has frequently been determined that drawing, endorsing, or accepting a bill of exchange in a fictitious name is a forgery. Bolland's case, &c., Leach, 78, 159, 192. 1 Hen. Bla. 588. Fost. 116. It is also forgery to fabricate a will by counterfeiting the name of a pretended testator who is still living. Cogan's case, ibid. 355. If a person puts his own name to an instrument, representing himself to be a different person of that name, with an intent to defraud, he is guilty of forgery. 4 T. R. 28. But where a bill of exchange is endorsed by a person in his own name, and another represents himself to be that person, he is not guilty of forgery, but it is a misdemeanour. Hevey's case, Leach, 268. A bill or note may be produced in evidence against a prisoner prosecuted for the forgery of it; and he may be convicted upon the usual evidence of the forgery, though it has never been stamped pursuant to the stamp-acts. Hawkeswood's and Reculist's cases, Leach, 292 and 811. For the forgery in such a case is committed with an intent to defraud; and the legislature meant only to prevent their being given in evidence when they were proceeded upon to recover the value of the money thereby secured. But lord Kenyon has declared that he did not approve of the decision of the majority of the judges in these cases. Peake, 168. It has been declared that the forgery of a bill of exchange in a form which rendered it void under the 17 Geo. III. c. 30 (see 2 book, 467) was not a capital offence, because if real it was not valid or negotiable. Moffat's case. Leach, 483. Every indictment for forgery must set out the forged instrument in words and figures. Mason's case, 1 East, 182. But it is sufficient to set forth the receipt at the bottom of an account without setting out the account itself. Testick's case, ibid. 181. The word purport in an indictment for forgery signifies the substance of an instrument as it appears on the face of it: tenor means an exact copy of it. Ibid. 180. Leach, 753. The most effectual statute for the prevention of the forgery of bank-notes is the 41 Geo. III. c. 41, which enacts that if any one shall knowingly have in his possession or in his house any forged bank-notes, knowing the same to be forged, without lawful excuse, the proof whereof shall lie upon the person accused, he shall be guilty of felony, and hall be transported for fourteen years. These are the principal infringements of the rights of property, which were the last species of offences against individuals or private subjects which the method of distribution has led us to consider. We have before examined the nature of all offences against the public or commonwealth; against the king or supreme magistrate, the father and protector of that community; against the universal law of all civilized nations; together with some of the more atrocious offences of publicly pernicious consequence against God and his holy religion And these several heads comprehend the whole circle of crimes and misdemeanours, with the punishment annexed to each, that are cognizable by the laws of England."1 CHAPTER XVIII. OF THE MEANS OF PREVENTING OFFENCES. *WE are now arrived at the fifth general branch or head under which And I proposed to consider the subject of this book of our commentaries, viz., [*251 the means of preventing the commission of crimes and misdemeanours. really it is an honour, and almost a singular one, to our English laws, that they furnish a title of this sort, since preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice,(a) the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances. This preventive justice consists in obliging those persons whom there is a probable ground to suspect of future misbehaviour to stipulate with and to give full assurance to the public that such offence as is apprehended shall not happen, by finding pledges or securities for keeping the peace, or for their good behaviour. This requisition of sureties has been several times mentioned before as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanours; but there also it must be understood rather as a caution against the repetition of the offence than any immediate pain or punishment. And, indeed, if we consider all human *punishments in a large and extended view, we shall find them all rather calculated to prevent future crimes [*252 than to expiate the past; since, as was observed in a former chapter, (b) all punishments inflicted by temporal laws may be classed under three heads: such as tend to the amendment of the offender himself, or to deprive him of any power to do future mischief, or to deter others by his example; all of which conduce to one and the same end of preventing future crimes, whether that can be And if any person shall make any plate or instrument for forging bank-notes, or any part of a bank-note, or shall knowingly have them in his possession without authority in writing from the governor and company of the Bank of England, he shall be guilty of felony, and shall be transported for seven years. But before this statute this must have been an indictable offence as a misdemeanour. See ante, 99, note 7. By the 45 Geo. III. c. 89, the statutes for the punishment of forgery are extended to every part of Great Britain.-CHITTY. By statute 11 Geo. IV., and 1 W. IV. c. 60, all the statutes making this offence capital, as well those mentioned by Blackstone as all others, were repealed; but some of the statutes not having this effect mentioned by him were left unrepealed. Forgeries are now punished either with transportation for life (which is now the severest punishment which can be awarded to this crime) or for a term of years, or imprisonment for a term of years, according to the nature of the forgery,-and for all these penal servitude may now be substituted.-STEWART. 61 See a complete collection of the acts of parliament relating to the crime of forgery (too numerous even to abstract here) in Collyer's Crim. Stat. 142, et seq., with the notes thereon.-CHITTY. |