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 particu ment, though the statute has the word alter as well as forge; and in the same case it was held uo ground of defence, that before the alteration it had been paid by the drawer and re-issued. R. and R. C. C. 33; 2 East, P. C. 979, S. C. So altering a banker's one pound note, by substiing the word ten for the word one, is a forgery. Russ. and Ry. C C. 101; 2 Burn, J., 24th ed., 91; 2 East, P. C. 986. If a note be made payable at a country banker's, or at their banker's in ondon, who fails, it is forgery to introduce a piece of paper over the names of the London Fankers, who have so failed, containing the names of another banking-house in London. Russ. and Ry. C. C. 164; 2 Taunt, 328; 2 Leach, 1040, S. C.; and see 2 East, P. C. 856; 2 Burn, J. 24th ed. 492, S. C. Expunging an indorsement on a bank note with a liquor unknown, has been holden to be an erasure within 3 and 9 Wm. III, c. 20, and 3 P. Wms. 419. The instrument must, in itself, be false; for if a man merely pass for another, who is the maker or indorser of a true instrument, it is no forgery, though it may be within the statute of false pretences. 1 Leach, 229. The instrument counterfeited must also bear a resemblance to that for which it. is put forth, but need not be perfect or complete: it is sufficient if it is calculated to impose on mankind in general, though an individual skilled in that kind of writings would detect its fallacy. Thus, if it appears that several persons have taken forged bank notes as good ones, the offender will be deemed guilty of counterfeiting them, though a person from the bank should swear that they would never impose on him, being, in several respects, defective. 2 East, P. C. 950. And it has been holden that a bank note may be counterfeited, though the paper contains. no water mark, and though the word pounds is omitted, that word being supplied by the figures in the margin. 1 Leach, 174. For it was said that in forgery there need not be an exact resemblance, but it is sufficient if the instrument counterfeited be prima facie fitted to pass for the writing which it represents. 1 Leach, 179. As to how far the instrument should appear genuine, and the forging of fictitious names, see infra, div. III. II. WITH WHAT INTENT THE FORGERY MUST BE COMMITTED. The very essence of forgery is an intent to defraud; and, therefore, the mere imitation of another's writing, the assumption of a name, or the alteration of a written instrument, where no person can be injured, does not come within the definition of the offence. Most of the statutes expressly make an intent to defraud a necessary ingredient in the crime; whether it existed or not is a question for the jury to determine. But it is in no case necessary that any actual injury should result from the offence. 2 Stra. 747; 2 Lord Raym. 1461. The question as to the party's intent, is for a jury, and such jury ought to infer an intent to defraud the person who would have to pay the instrument, if it were genuine, although, from the manner of executing the forgery, or from that person's ordinary caution, it would not be likely to impose on him, and although the object was general, to defraud whoever might take the instrument, and the intention of defrauding, in particular, the person who would have to pay the instrument, if genuine, did not enter into the prisoner's contemplation. R. and Ry. C. C. 291; and see id. 769. III. HOW FAR THE INSTRUMENT FORGED MUST APPEAR GENUINE. It is of no consequence whether the counterfeited instrument be such as if real would be effectual to the purpose it intends, so long as there is a sufficient resemblance to impose on those to whom it is uttered. Whether the fraud be effeeted on the party to whom an instrument is addressed, or whose writing is counterfeited, or on a third person who takes it upon the credit it assumes, is immaterial. Thus, to counterfeit a conveyance with a wrong name, has been deemed within 5 Eliz. c. 14, though it would have been ineffectual if genuine. 1 Keb. 803; 3 id. 51. The fabrication of an order for payment of a sailor's prize-money is forgery, as we have already seen, though it be invalid as wanting the requisites required by statute. 2 Leach, 883. The offence of uttering a forged stamp will be complete, though, at the time of uttering, that part which in a genuine stamp would in terms specify the amount of duty is concealed, and in fact cut out, and though that part where the papers were entire did not contain any thing specifying the amount of duty, provided the parts left visible are like a genuine stamp. Russ. and Ry. C. C. 229, 212. We have also seen that the forgery of an instrument, as a last will, comes within the statutes, although the supposed testator is living. 1 Leach, 449. And it may be collected from a number of cases, that forgery in the name of a person who has no real existence is as much criminal as if there was an intent to defraud an individual whose writing is counterfeited. 1 Leach, 83. Thus, the making of a bill of exchange is within the acts, though all the names to it are fictitious. 2 Bast, P. C. 957. To counterfeit a power of attorney, as by the administratrix and daughter of a seaman who died childless, is capital. Fost. 116. Nor is it necessary that any additional credit should be obtained by using the fictitious name. 1 Leach, 172, and see R. and Ry. C. C. 75, 90, 209, 278. So, to put a fictitious name on a bill indorsed in blank, in order to circulate it with secrecy, is a similar offence. 1 Leach, 215. And indeed it seems that it is not necessary, to constitute forgery, that there should be an intent to defraud any particular person, and a general intent to defraud will suf fice. 3 T. R. 176; 1 Leach, 216, 217, in notes. But to support a charge of forgery, by subscribing a fictitious name, there must be satisfactory evidence on the part of the prosecutor lar cases, which are so multiplied of late as almost to become general. I shall mention the principal instances. (17) 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, [*248] 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)(18) of bills of credit issued from the exchequer; (q) of South (p) Stat. 8. 9 Wm. III. c. 20. § 36. 11 Geo. I, c 9. 12 Geo. I, c. 32. 15 Geo. II, c. 18. 13 Geo III, c. 79. (q) See the several acts for issuing them. that it is not the party's real name, and that it was assumed for the purpose of fraud in that instance. Russ, and Ry. C. C. 260. Assuming and using a fictitious name, though for purposes of concealment and fraud, will not amount to forgery, if it were not for that very fraud or system of fraud, of which the forgery forms a part. Russ. and Ry. C. C. 260. If there is proof of what is the prisoner's real name, it is for him to prove that 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. and Ry. C. C. 278; id. 405; 3 Brod. and Bing. 228, S. C.; 2 Burn, J., 24th ed. 510; Russ. and Ry. C. C. 463, S. C. A defect in the stamp will not avail the prisoner: 1 Leach, 257, 258, in notes; 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.] (17) The 24 and 25 Vic. c. 98, consolidates the various statutes on this subject, and goes with great particularity into an enumeration of the cases which shall be punishable under it. The punishment in some cases may be penal servitude for life. Besides the punishment to which the forger is subject, he becomes, at common law, infamous, and incapable of giving evidence. Co. Litt. 6, b. ; Greenl. Ev. § 373. But to have this effect, there must be both a conviction and a judgment. Rex v. Castell, 8 East, 77; Rex v. Teal, 11 id. 309; People v. Whiffle, 9 Cow. 707. The disability will be removed by a reversal of judgment, or by pardon: People v. Pease, 3 Johns. Cas. 333; and it is not competent to attach to the pardon a condition that the disability shall still remain. Id. Statutes, in some cases, have changed this common law rule, either by making the convicted party a competent witness after he has endured the punishment, or by making the infamy of a person an objection to his credibility only. (18) [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 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 v. 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 sea bonds, &c.; () 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 pre-fines; (x) or of the accountant-general and certain other officers of the court of 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 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: (a) to which may be added, though not strictly reducible to this head, the counterfeiting of Mediterranean passes, under the [*249] 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) all which are by distinct acts of parliament made felonies without benefit of clergy. By statute 13 Geo. III, cc. 52 and 59, forging or connterfeiting 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 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 (r) Stat. 9 Ann. c. 21. 6 Geo. 1 cc. 4 and 11. 12 Geo. I. c. 32. (u) Stat. 12 Geo. I, c. 32. (w) Stat. 6 Geo. I, c. 18. (x) Stat 32 Geo. II, c.14. (c) See the several stamp acts. the stamp are concealed; all the parts that are visible being like those of a genuine stamp, Rex v. Callicott, R. and R. C. C. 212. 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 v. 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 v. 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 prisoner's knowledge of the note mentioned in the indictment being a forgery. Rex v. Ball, R. and 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 v. 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 v. Smith, 2 C. and P. 633. The person whose name is forged was formerly held to be not a competent witness to prove the forgery. Rex v. Russell, 1 Leach, C. C. 8. But he has recently been made competent by the 9 Geo. IV, c. 32, s. 2.] See further as to uttering, Rex v. Anscott, 6 C. and P. 408; R. v. Harris, 7 id. 428; R. v. Page, 8 id. 122; R. v. Cook, 8 id. 582; R. v. Callicott, 4 Taunt. 300; R. v. Radford, 1 C. and K. 707; R. v. Heywood, 2 id. 352: Commonwealth v. Hill, 11 Mass. 130. 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 receipt for any note, bill, or any other security for money; or any *[250] 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, (f) is not made a capital crime. (19) These are the principal infringements of the rights of property: which were the last species of offences against individuals or private subjects which the We have before examined the method of distribution has led us to consider. 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 public pernicious consequences, against God and his holy religion. And the several heads comprehend the whole circle of crimes and misdemeanors, with the punishment annexed to each, that are cognizable by the laws of England. CHAPTER XVIII. 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 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 (e) Stat. 31 Geo. II, c. 22, § 78. (f) Fost. 116, &c. (a) Beccar, ch. 41. (19) [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, It is also forgery to fabricate a will by counterfeiting the name of a pretended 588; Fost. 116. testator, who is still living. Cogan's Case, Id. 355. If a person puts his own name to an instrument, representing himself to be a different person of that name, with 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 Hawkeswood's and Reculist's Cases, Leach, 292 and 811. stamped pursuant to the stamp acts. 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.] That a party may be convicted of forging an instrument not stamped, see further, Rex v. Teague, Russ. and Ry. 33, Reg. v. Pike, 2 Moody, 70; People v. Frank, 28 Cal. 507. 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 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 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 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. I. 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 party shall appear in court on such a day, and in the mean time shall keep the peace; (1) either [*253] 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, 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) (2) (b) See page 11. (c) See book I, page 114. (d) Cap. 18. (e) See book I, page 350. (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. and A. 278; but if a recognizance to appear at the sessions be taken, and an order of court for finding sureties applied for, articles of the peace must be exhibited. 5 Burn, J., 24th ed. 304; 1 T. R. 696.] See also Prichett v. Greatrex, 8 Q. B. 1020. (2) A secretary of state or privy counsellor cannot bind to keep the peace or good behaviour. 11 St. Tr. 317.] |