ber of special forgeries is now, therefore, liable to this substituted punishment. There are many others variously punished, but in most cases more severely so than the common law offence."

The plan adopted in the formation of the Digest is thus described:

"We have, in the first place, proceeded to define the common law offence. The general definition of the offence is in substance that which is given by Sir W. Blackstone, which we have adopted, and which is recommended by its conciseness, accuracy, and generality. We have, however, for the sake of comparison, stated those of several other very eminent judges. We have also introduced various articles for the purpose of more particularly defining and explaining the nature and extent of the offence. Having thus disposed of the common law offence, we have next proceeded to deal with the statute law upon this subject. The statute book presents a mass of enactments made from time to time, inflicting a great variety of punishments on various modifications of the general crime. The great multitude of specific enactments applicable to various subject matters raises a question of some difficulty as to the course which ought to be taken with a view to digest these provisions. After defining the common law offence, the natural course would be to distinguish such instances of the offence as by reason of the greater degree of mischief likely to result, would require more exemplary punishment; and for this purpose instruments the subject of forgery would be classed in order, according to their greater or lesser degree of importance. The statute law of England concerning forgery has not, however, been constructed on any such principles; its provisions are in numerous instances too minute and particular to admit of general extension without an entire remodelling of this branch of the law."

They admit that the crime of forgery is capable of being defined and expressed better than it hitherto has been in Eng. lish text books, in proof of which they refer to foreign codes, particularly the revised statutes of New York. But they have not thought themselves justified in recasting the law, but after much consideration, proceeded first to define the general rule of the common law, and then to arrange and

classify the statutory enactments. Another motive which influenced them in the adoption of this course, was the arbitrary and severe character of some special enactments, which could not well be included within such general provisions as they might have felt inclined to recommend. For example, the 11 Geo. IV. and 1 Wm. IV. c. 66, s. 12, renders it highly criminal for a man to have a banknote in his possession without lawful excuse, the proof lying on the accused:

"This law inverts the general principle of criminal jurisprudence, that a man is presumed to be innocent till his guilt be proved. A man may, therefore, be dealt with as an offender, not because he is really guilty, but because from accident, or otherwise, he cannot prove his innocence,-death or accident having precluded him from explaining the real circumstances of the transaction. Offences of this nature require to be most specifically stated and defined, and they must retain their arbitrary character, being incapable of generalization, as they are not founded upon principle."

The common law definition of forgery, strictly speaking, includes the uttering as well as the making of written instruments, but as the act of uttering is distinct from that of making, the commissioners have omitted it from the definition of forgery, and treated it as a separate crime. We give a specimen of the Digest:

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ART. 1.

Forgery consists in the false and fraudulent making of an instrument with intent to prejudice any public or private right.

ART. 2.

"The term instrument' shall be deemed to comprehend any written instrument, and any character, figure, impression, device, or other visible mark of distinction (whether it be made to appear upon any material, or in the substance thereof), and also any type, die, seal, stamp, plate, or other instrument for making, upon any material whatsoever, any mark or impression used as a mean for authenticating the truth or genuineness of any fact or thing whatso

ever.

ART. 3.

"The term 'written,' as used in the last preceding article, shall be deemed to apply, whether the words or figures of the instrument, or any of them, be expressed at length or abridged, and whether they be so expressed by means of writing, printing, or otherwise.

ART. 4.

"An instrument shall be deemed to be falsely made when it is not really the instrument or mean of authentication for which it is intended to be taken, but is fraudulently made with intent to obtain that credit which would be due to it if it were genuine.

ᎪᎡᎢ. 5.

"A written instrument, or other thing, the subject of forgery, shall be deemed to be falsely made, where it is falsely made in any material part.

ᎪᎡᎢ . 6.

“Any fraudulent alteration of a written instrument in any material part, whether it be by addition, diminution, erasure, transposition, or any combination of any of these acts, or any other device or means whatsoever, shall be deemed to be a false making of the written instrument so altered.

ART. 7.

"If several persons shall make distinct parts of, or shall otherwise contribute to the making of a false written instrument or other thing the subject of forgery, each of such persons shall be deemed to have falsely made such written instrument or other thing.

ART. 8.

"If any person, being deceived as to the contents of any written instrument, shall by reason of such deception be fraudulently induced to sign or otherwise execute the same, the party by whom he was so induced to sign or execute it shall be deemed to have falsely made it.

ART. 9.

"If a person fraudulently make or execute in his own name any written instrument which is false in respect of the date, or any other material part, it shall be deemed to be a false making of such in

strument.

ART. 10.

"It shall be deemed to be a false making of a written instrument if the offender falsely make it in the name of any other person, real or supposed, although such name be the offender's own name.

ART. 11.

"No fraud in respect of a written instrument or other thing will constitute forgery, unless there be a false making of such instrument or other thing within the meaning of the preceding Articles."

Offences against the Public Peace. "The French code includes under the general term of Offences against the Public Peace, coining, some kinds of forgery, corruption and

abuses of authority by public officers, and inflammatory discourses and writings by ministers of religion, and also rebellion, and seditious and tumultuous meetings. We have thought it convenient to use the term for our present purpose in a more restricted sense, and to apply it, according to its literal and popular meaning, to those offences only which, by being committed by numbers of persons, or attended with actual and open violence, directly tend to endanger the public peace, distinguishing this class of offences from crimes against the state on the one hand, and from crimes against the persons and property of individuals on the other hand."

They consider the law on this subject highly defective. A riot, rout, or unlawful assembly relating to a private quarrel, or bearing reference to a private object, is a trespass or felony at the worst; but if the object or motive be public or general, the parties are guilty of treason, though probably never guilty of a disloyal thought or intention in their lives. Then comes the difficulty of distinguishing between private and public objects, and the conflict between ancient and modern authorities as to the proper test to be applied. In the time of Charles the Second, it was held that an assembling to destroy brothels was a levying war against his majesty; and the mob who, during the Sacheverel frenzy, proceeded to pull down meeting-houses were declared guilty of treason by the unanimous opinion of the Bench. Of late, the common sense of the community, which invariably though almost imperceptibly influences the courts, has rebelled against the doctrine; and doubts were entertained in high quarters whether the case against Frost was complete for want of more distinct evidence of a traitorous design. The commissioners observe:

"It has resulted, we apprehend, from the pressure of these objections in practice, as well as from the prevalence of more enlightened views of the objects of penal laws, that in recent times this doctrine has not been strictly applied in cases of tumultuous assemblies. On the various occasions of popular disturbances which have occurred during the present century, many instances have occurred of trials and convictions for riots and unlawful meetings, in which the character of the assemblies and the object of the offenders brought them, according to the authorities, within the law of high treason.

"We reserve the full discussion of this most important subject to the more appropriate head of Offences against the State; and we merely allude to it here in order to point out that the law of tumultuous assemblies and the law of high treason are, upon the existing system, entirely dependent upon each other. Where the law of high treason ends, the law of tumultuous assemblies begins; and if the limits of the former are restricted so as to exclude all constructive treasons (which we think ought to be the case), it is obvious that the boundaries of the latter must be proportionately extended. On this account we have thought it proper, on the present occasion, to give the law in the Digest nearly as we find it laid down by the most approved authorities; merely omitting the distinction between private and public enterprizes, in conformity with the modern practice and for the reasons we have above suggested. In that part of the Digest which will contain the law of treason we shall distinctly define those tumultuous assemblies which we think ought to be classified as offences against the sovereign or the state."

In the second place, they object to the technical distinctions between riots, routs, and unlawful assemblies.

"To constitute a riot, there must be a joint design which must be executed, or at least some act must be done in part execution of it: the character of a rout is complete, as soon as some act has been done moving towards the execution of the joint design; and it is an unlawful assembly where three or more persons meet together for any unlawful purpose, or intending to execute any purpose with force, and with such circumstances as tend to excite alarm, but do no act moving towards its execution. There is no doubt an obvious distinction between these three degrees of criminality; but the point of the offence in all is the unlawful assembly. The difference between a part execution of a design, and an act moving towards such execution is extremely subtle, and might often lead to difficulties in practice; and it seems to be a simpler and more intelligible principle of arrangement to consider the unlawful assembly as the groundwork of the offence, and the part execution of the joint design or the motion towards it as aggravations."