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letters of administration, in order to receive such payments (74); and the forging or procuring to be forged, and likewise the uttering, or publishing, as true, of any counterfeited seaman's will or pow- [*249] er (a) (75) 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 (6); the forging or imitating of any stamps to defraud the public revenue (c) (76,) and the forging of any marriage-register or licence (d) (77); 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 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 (78). 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. (79) on such as counterfeit the common seal
(a) Stat. 31 Geo. II. c. 10. 9 Geo. III. c. 30. (b) Stat. 4 Geo. II. c. 18.
(74) Vide also 3 G. III. c. 16; 26 G. III. c. 23. 32 G. III. c. 33; 55 G. III. c. 60; 57 G. III. c. 127; 4 G. IV. c. 46: and 5 G. IV. c. 107; by 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 v. Martin, R. and 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 G. III. c. 93, § 89. Rex v. Cramp, id. 327. To constitute the offence of personating the name of a seaman under the 57 Geo. III. c. 127, 4, the person entitled, or really supposed to be so, to prize money, must be personated; personating a man who never had any connexion with the ship, is not an offence within the Act. Rex v. Tannet, id. 351. And by 59 G. III. c. 56, 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 misdemeanor; by 12, inserting a false date in any order for the payment of prize money is made a misdemeanor; and by 17, persons really entitled to prize money, &c., using false orders or certificates to procure the same, are guilty of a misdemeanor.
(75) See also 55 G. III. c. 60, s. 31, and 59 G. III. c. 56, by the 18th s. of which, the falsely personating officers, seamen, marines, supernumeraries, &., 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
(c) See the several stamp acts.
(d) Stat. 26 Geo. II. c. 33.
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 and 2 G. 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 G. VI. 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 G. III. c. 94. Rex v. Chisholm, R. and R. C. C. 297.
(76) By 6 G. 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. G. III. c. 90; 44 G. III. c. 98; 48 G. III. c. 149; 52 G. III. c. 143; 55 G. IV. c. 184, and c. 185; and 6 G. IV. c. 119, which makes it a capital felony to forge or utter forged stamps to newspapers; see also, 9 G. IV. c. 18, which makes it a capital felony to forge the stamps of any cards or dice.
(77) The forgery of documents relating to marriage registers and licences, is punishable now only with transportation for life, 4 Geo. IV. c. 76, s. 29.
(78) This is now a capital felony.
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) (e), 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 [*250] 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 (80). 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 real or fictitious person (ƒ), is not made a capital crime (81).
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:
(e) Stat 31 Geo. II. c. 22, ◊ 78.
(80) See 45 G. III. c. 89; 49 G. III. c. 35; and 8 G. 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.
(81) It has frequently been determined, that drawing, indorsing, or accepting a bill of exchange in a fictitious name is a forgery. Bolland's case, &c., Leach, 78, 159, 192; 1 Hen. Black. 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 indorsed 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 misdemeanor. 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
(f) Fost. 116, &c.
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, East, 182.
But it is sufficient to set for 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 shall be transported for fourteen years.
And if any person shall make any plate or instrument for forging bank notes, or any part of a bank note, or shall knowinly 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 misdemeanor. 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
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 misdemeanors, with the punishment annexed to each that are cognizable by the laws of England (82), (83).6
(82) 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. Sta. 142, et seq., with the notes thereon.
(83) In New-York, the Revised Statutes contain the following provisions as to forgery. Falsely altering or counterfeiting the inspection bill or receipt for duties of an inspector of salt, with intent to defraud the state: or falsely altering or counterfeiting his brand, or aiding in such crime, is felony, punishable by imprisonment in the state-prison for not less than 3 nor more than 6 years. (1 R. S. 271, 115.) Forging the name of a manufacturer on any barrel or cask of salt, subjects the of fender to a fine of 25 dollars, and damages to the party aggrieved. (Id. 273, 128.) Altering or counterfeiting brands on a flour barrel, causes a forfeiture of 100 dollars for every cask so branded: (Id. 539, § 21.): branding casks of beef or pork without authority, is punishable by a fine of 15 dollars per cask : (ld. 546, § 57.): counterfeiting the brand of an inspector of pot and pearl ashes, is punishable by a fine of 500 dollars. (Id. 549, § 78.) Counterfeiting the brand of an inspector of fish oil, is punishable by a fine of 25 dollars. (Id. 555, § 168.) Forging, altering, or counterfeiting any marks, or numbers, or weigh-note of an inspector of tobacco, is a misdemeanor. (ld. 569, 181.) Counterfeiting or fraudulently altering or defacing the brands or other marks of any inspector, is also punishable by fine not exceeding 2000 dollars, and imprisonment not exceeding 3 years. Counterfeiting or fraudulently altering or defacing the marks put by the owner on a hogshead, barrel or half-barrel, of flour, meal, beef, pork, pot or pearl ashes, fish, fish oil, liver oil, or distilled spirits, is punishable by fine not exceeding 500 dollars, or imprisonment not exceeding one year. (Id. 572, 193, 194.) Falsely making, altering, forging, or counterfeiting, any lottery ticket, or aiding therein, or uttering the same with intent to defraud, subjects the offender to imprisonment. (Id.671, 53.) Forging, &c. any will of real or personal property, or any instrument purporting to affect real estate, or any certificate of acknowledgment or proof of any instrument which may be recorded; or any certificate purporting to be issued by the state for the payment of money, or to acknowledge the receipt of property; or any certificate of any interest in a public stock created by any law of the state or any other evidence of any liability of the state, purporting to be issued by a public officer; or any indorsement or other instrument purporting to transfer the right of any holder of such certificate, with intent to defraud, is forgery in the first degree. (2 R. S. 670, 22, 23.)
Forgery in the second degree, is the forging, &c. of the great or privy seal, or the seal of
any public office authorized by law, or any court of record, or of any company incorporated by this state, or the impression of any such seal. 2. The altering, destroying, corrupting, or falsifying with intent to defraud, any record that is evidence, or any record of any judgment or enrolment of a decree, or the return of any officer, court, &c. to any process of any court. 3. The falsely making, forging, or altering any entry in any book of records, or any instrument purporting to be any record or return specified in the last section. 4. Wilfully and falsely certifying, by an officer authorized to take the proof or acknowledment of any instrument that may be recorded, that the same has been acknowledged or proved. 5. Counterfeiting any gold or silver coins current by custom or usage within this state. (2 R. S. 671. § 24, &c.) 6. Making or engraving, or causing to be made or engraved, any plate in the form of any evidence of debt, &c. issued by any bank incorporated by any state of this, or any other country, without the authority of such bank. 7. Having any such plate, or impression from it, without the authority of such bank, with the intent of having any impression made and passed off, or of having the impression filled up to be passed off. 8. Making, or causing to be made, or having, any plate upon which are engraved any figures or words, which may be used to falsely alter any evidence of debt issued by such bank, with intent so to use the same. (2 R. S. 672, § 30.) 9. Selling, &c. or offering or receiving, for any consideration, any forged evidence of debt, knowingly, and with intent to have the same passed. (Id. 32.) 10. Having any forged evidence of debt of any such bank as above specified, with intent to utter the same and to defraud. (Id. 36.)
Forgery in the third degree is,
I. Counterfeiting the gold and silver coin of a foreign government, with intent to export it and defraud the foreign government or its subjects. (Id. § 29.)
II. Forging, &c. with intent to defraud, and so that any one may be injured in his person or property: 1st. Any instrument purporting to be any process, or any certificate, order, or allowance of any competent court or officer; or to be any pleading or proceeding filed or entered in any court: or to be any license or authority authorized by any statute. 2. Any instrument purporting to be the act of another, by which any pecuniary demand or rights of property may be affected, and for which a punishment is not before provided.
III. Making a false entry, or falsely altering an entry, with intent to defraud, in any book of accounts kept in the office of the comptroller, or of the treasurer or surveyor general of the state, or of any county treasurer, by which any demand, right, or claim may be affected; or in any book of accounts kept
(6) See Hov. n. (6) at the end of the Vol. B. IV.
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 misdemeanors. 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 at tended 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 securites 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 misdemeanors: 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 [*252] human *punishments in a large and extended view, we shall find
them all rather calculated to prevent future cimes, 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
(a) Beccar. ch. 41.
by any monied corporation within the state, or kept by such corporation or its officers, and delivered, or intended to be delivered, to any one dealing with such corporation, and by which any pecuniary claim may be affected. (Id. 34, 35.)
Forgery in the fourth degree is: 1. Hav. ing any forged or counterfeited instrument, the forgery of which is above (i. e. in 2 R. S. 670, &c.) declared to be punishable, (except those enumerated in the 36th section,) or having any counterfeit of any gold or silver coin current in this state, knowing the forgery or counterfeiting, and intending to defraud any one and pass the same. (Id. ◊ 37, 38.) The uttering as true a forged instrument or counterfeit coin, the forgery or counterfeiting of which is above (2 R. S. 270, &c.) made an offence, is punishable as such forgery is, unless, 2. The utterer received the instrument or coin in good faith, and for a valuable consideration without circumstances of suspicion, and then it is forgery in the fourth degree. (Id. 39, 40.) Making an instrument in one's own name, and passing it as
(b) See page 11.
the act of another of the same name, with intent to create, discharge, affect, &c. any right or property, is the same offence as forging the name of a person of a different name. (Id.§ 41.)
Forgery may also be committed by the total erasure or obliteration of an instrument, or by putting together parts of several genuine instruments so as to produce one. And it may be committed though all the instrument but the signature be printed, or by falsely making any evidence of debt purporting to be issued by any corporation having authority for that pur pose, and affixing a pretended signature of any person as an agent or officer of such corporation, though such person was not such officer, or was not in existence.
Forgery in the first degree, is punished by imprisonment in the state-prison for not less than 10 years: in the second degree, for not less than 5 nor more than 10: in the third degree, for not more than 5: in the fourth degree, by like imprisonment for not more than 2 years, or by imprisonment in a county jail for not more than 1 year. (2 R. S. 675, § 42.)
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 (c), 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 1007.), with condition to be void and of none effect, if the *par- [*253] ty shall appear in court on such a day, and in the mean time shall keep the peace (1); either generally, towards the king and all his liege people; or particularly also, with regard to the person who craves the security. Or, if it be for the good behaviour, then on condition that he shall demean and behave himself well (or be of good behaviour), either generally or specially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a justice of the peace, must be certified to the next sessions (2), in pursuance of the statute 3 Hen. VII. c. 1, and if the condition of such recognizance be broken, by any breach of the peace in the one case, or any misbehaviour in the other, the recognizance becomes forfeited or absolute; and being estreated or extracted (taken out from among the other records) and sent up to the exchequer, the party and his sureties, having now become the king's absolute debtors, are sued for the several sums in which they are respectively bound.
2. Any justices of the peace, by virtue of their commission, or those who are ex officio conservators of the peace, as was mentioned in a former volume (e) (3), may demand such security according to their own discretion; or it may be granted at the request of any subject, upon due cause shewn, provided such demandant be under the king's protection; for which reason it has been formerly doubted, whether Jews, pagans, or persons convicted of a praemunire were entitled thereto (f). Or, if the justice is
(c) See Book I. page 114. (d) Cap. 18.
(1) It is now settled that a justice of the peace is authorized to require surety to keep the peace for a limited time, as two years, according to his discretion, and that he need not bind the party over to the next sessions only, 2 B. & A. 278; but if a recognizance to appear at the sessions be taken, and an order of court for finding sureties applied for, articles
(e) See Book I. page 350.
of the peace must be exhibited. 5 Burn J. 24. ed. 304. 1 T. R. 696.
(2) But by 1 and 2 Ph. & M. c. 13. in cases of felony, the recognizances are to be certified to the general gaol delivery.
(3) A secretary of state or privy-counsellor cannot bind to keep the peace or good behaviour. 11 St. Tri. 317.