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exportation, is felony, subject to transportation for seven years. By statute 28 Geo. II. c. 19. to set fire to any goss, furze, or fern, growing in any forest or chase, is subject to a fine of five pounds. By statutes 6 Geo. III. c. 36 and 48. and 13 Geo. III. c. 33. wilfully to spoil or destroy any timber or other trees, roots, shrubs, or plants, is for the two first offences liable to pecuniary penalties; and for the third, if in the day time, and even for the first if at night, the offender shall be guilty of felony, and liable to transportation for seven years. By statute 9 Geo. III. c. 29. wilfully and maliciously to burn or destroy any engine or other machines, therein specified, belonging to any mine; or any fences for inclosures pursuant to any act of parliament, is made single felony and punishable with transportation for seven years, in the offender, his advisers, and procurers. And by statute 13 Geo. III. c. 38. the like punishment is inflicted on such as break into any house, &c. belonging to the plate-glass company with intent to steal, cut, or destroy, any of their stock or utensils, or shall wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief.
III. Forgery, or the crimen falsi, is an offence, which was punished by the civil law with deportation or banishment, and sometimes with death." It may with us be defined, at common law, to be, "the fraudulent making or alteration of a writing to the prejudice of another man's right:" for 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
o Inst. 4. 18.7.
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, when paper credit was first established, have inflicted capital punishment on the forging, altering, or uttering as true, when forged, of any bank bills or notes, or other securities; P of bills of credit issued from the exchequer; of south-sea bonds, &c.;" of lottery-tickets or orders; of army or navy debentures; of East India bonds;" of writings under seal of the London, or royal exchange assurance;" of the hand of the receiver of the pre-fines; or of the accountant-general and certain other officers of the court of chancery; 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 administration, in order to receive such payments; and the forging or procuring to be forged, and likewise the uttering, or publishing, as true, of any counterfeited seaman's will or power: 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; the forging or imitating of any stamps
P Stat. 8 & 9 W. III. c. 20. § 36. 11 Geo. I. c. 9. 12 Geo. I. e. 32. 15 Geo. II. c. 13. 13 Geo. Il c. 79.
4 See the several acts for issuing them.
r Stat. 9 Ann. c. 21. 6 Geo. I. c. 4 & 11. 12 Geo. I. c. 32. s See the several acts for the lotteries.
t Stat. 5 Geo. I. c. 14. 9 Geo.
I. c. 5.
u Stat. 12 Geo. I. c. 32.
z Stat. 8 Geo. I. c. 22. 9 Geo. I. c. 12. 31 Geo. II. c. 22. §77. a Stat. 31 Geo. II. e. 10. 9 Geo. III. c. 30.
b Stat. 4 Geo. II. c. 18.
to defraud the public revenue; and the forging of any marriage register or licence; all which are by distinct acts of parliament made felonies without benefit of clergy. By statute 13 Geo. III. c. 52 and 59. forging or counter feiting 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. (31) By statute 12 Geo. III. c. 48. certain frauds on the stamp duties, therein described, principally 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. 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, indorsement, or assignment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person, or corporation, is made felony without benefit of clergy. And by statute 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 to defraud, whether in the name of a real or fictitious person, is not made a capital crime.
These are the principal infringements of the rights of e Stat. 31 Geo. II. c. 22. § 78. f Fost. 116, &c.
c See the several stamp acts. d Stat. 26 Geo II. c. 33.
(31) Made felony without benefit of clergy by the 24 Geo. III. sess. 2. c. 53, s. 16.
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 kiug 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 consequences, against God and his holy religion. And these several heads comprehend the whole circle of crimes and misdemesnors, with the punishment annexed to each, that are cognizable by the laws of England.
OF THE MEANS OF PREVENTING OFFENCES.
We are now arrived at the fifth general branch, or head, under which I proposed to consider the subject of this book of our commentaries; viz. the means of preventing the commission of crimes and misdemesnors. And 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 misdemesnors: but there also it must be understood rather as a caution against the repetition of the
a Beccar, ch. 41.
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, than to expiate the past: since, as was observed in a former chapter, all punishments inflicted by temporal laws may be classed under three heads; such as tend to the amendment of the of fender 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 effected by amendment, disability, or example. But the caution, which we speak of at present, is such as is intended merely for prevention, without any crime actually committed by the party, but arising only from a probable suspicion, that some crime is intended or likely to happen; and consequently it is not meant as any degree of punishment, unless perhaps for a man's imprudence in giving just ground of apprehension.
By the Saxon constitution these sureties were always at hand, by means of king Alfred's wise institution of decennaries or frankpledges; wherein, as has more than once been observed, the whole neighbourhood or tithing of freemen were mutually pledges for each other's good behaviour. But this great and general security being now fallen into disuse and neglected, there hath succeeded to it the method of making suspected persons find particular and special securities for their future conduct: of which we find mention in the laws of king Edward the confessor; d "tradat fidejussores de pace et legalitate tuenda." Let us therefore consider, first, what this security is; next, who, may take or demand it; and, lastly, how it may be discharged,
1. This security consists in being bound, with one or more securities, in a recognizance or obligation to the king, entered on record, and taken in some court or by some judicial officer; whereby the parties acknowledge themselves to be indebted to the crown in the sum required, for instance 100l. with condition to be void and of none effect, if the party shall appear in court on such a day, and in the mean time shall keep the peace; either c See Vol. I. pag. 130. d Cap. 18.
See pag. 10.