Imágenes de páginas

letters of administration, in order to receive ruch payments (74); and tho forging or procuring to be forged, and likewise ibe 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. Ry 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 mps 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. (c) See the several stamp acts.. (b) Stat. 4 Geo. 11. c. 18.

(d) Stat. 26 Géo. 11. c. 33. (74) Vide also 3 G. III. c. 16; 26 G. III. c. the saine to be forged, in order to receiv 23. 32 G. III. c. 33 ; 55 G. III. c. 60; 57 G. any prize raoney, &c. ; or taking a false oath III. c. 127 ; 4 G. IV. c. 46: and 5 G. IV. c. to obtain a probate or letters of administra107; liy 5 of which latter statute, the pu• tion in order to receive prize money, &c.; or nishment previously due to these offences is demanding, or receiving wages. &c., know. changed to transportation for life or otherwise. ing the will to be forged, of the probate or Personating a seaman who is dead is within administration to have been obtained by a false the Act, as where a prisoner applied at the oath with intent to defraud, is made a caGreenwich hospital for prize money in the pital felony. By 1 and 2 G. IV. c. 49, s. 3. name of J. B., and J. B. was dead, and sup- procuring persons lo sign a false petition un. posed to be so at the hospital, though the pri. der this Act, or procuring others to demand soner did not obtain the money, he was con- money due, or supposed to be due, to seamen, victed of the offence. Rex v. Martin, R. and &c., under a certificate from the inspector of R. C. C. 324. So where a prisoner personal. seamnen's wills, is punishable with transportaed one “ 8. Cuff," who was dead, and whose tion for seven years; and, by s. 4, procuring prize money had been paid to his mother, it others to utter any forged leiter of attorney, was held, that it did not vary the prisoner's or other document, to obtain seamen's wages, guilt, and that he might be convicted on the &c., or procuring others to demand or receive 54 G. III. c. 93, 89. Rex v. Cramp, id. 327. such wages, &c., is punishable with death. To constitute the offence of personating the By ? G. VI. c. 16, s. 38, the personating any name of a seaman under the 57 Geo. III. c. 127, Chelsea pensioner, &c., or forging any docu. $ 4, the person entitled, or really supposed to ments, or knowingly uttering such sorgeries to be so, to prize money, must be personated; obtain any pension, &c. is punishable with personating a man who never had any con- transportation for life or otherwise. A bill, nexion with the ship, is not an offence within drawn on the commissioners of the navy for the Act. Rex ». Tannet, id. 351. And by 59 pay, may be a bill of exchange, and a person G. III. c. 56, 93, persons falsely representing may be indicted for the forgery of it as such, themselves as the next of kin of any seaman, although it is not in the form prescribed by 35 &c., or any agent whose authority is revoked, G. III. c. 94. Rex v. Chisholm, R. and R. C. offering to receive wages, pay, prize money, or C. 297. other allowance, are guilty of a misdemeanor ; (76) By 6 G. IV. c. 106, forging or ultering by $ 12, inserting a false dute in any order for the drafts or other instrument of the receiver the payment of prize money is made a misde. general or controller general of the customs, is meanor; and by Ø 17, persons really entitled a capital felony. Vide also as to stamps, 37 to prize money, &c., using false orders or cer. G. III. c. 90 ; 44 G. III. c. 98 ; 48 G. III. c. tificates to procure the same, are guilty of a 149; 52 G. II. c. 143; 55 G. IV.c. 184, and misdemeanor.

c. 185; and 6 G. IV. c. 119, which makes it a (75) See also 55 G. HI. c. 60, s. 31, and 59 capital selony to forge or utter forged stamps G. ll. c. 56, by the 18th a. of which, the false. to newspapers ; see also, 9 G. 16.c. 18, whicb ly personating officers, seamen, marines, su- makes it a capital selony to forge the stamps of Dernumeraries, &., entitled to wages, or their 'any cards or dice. opresentatives, or forging or uitering ang (77) The forgery of docunents relating to etter of attorney, order, bill, ticket, or other marriage registers and licences, is punishable certificate, assignment, last will, or other now only with transportation for life, 4 Gea. power whatsoever, in order to obtain any IV. c. 76. s. 29. prize woney, &c.; or uttering any such let. (78) This is now a capital felony. ior of attorney, order, bill, &c., knowing (79) Revived by 33 Geo. III. c. 17. 6. 23

of the corpo.ation for manufacturing plate-glass (thereby erected) or know ingly 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 (f), 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 ·

(c) Stat 31 Geo. II. c. 22, 78.

Fost 116, dc.

(80) See 45 G. III. c. 89; 49 G. III. c. 35; a bill of exchange in a form which rendered and 8 G. IV. c. 8, respecting widows' pensions, it void under the 17 Geo. III. c. 30, (see : remittance bills, the forging of which, or pr. book, 467,) was not a capital offence, because curing others to forge them, is made a felony if real, it was not valid or negotiable. Moffats punishable with transportation.

casa, Leach. 483. (81) It has frequently been determined, that Every indictment for forgery must set out drawing, indorsing, or accepting a bill of ex- the forged instrument in words and figures. change in a fictitious name is a forgery. Bolo Mason's case, 1 East, 182. land's case, &c., Leach, 78, 159, 192 ; 1 Hen. But it is sufficient to set for the receip! Black. 588; Fost. 116. It is also forgery to the bottom of an account, without setting ou: fabricate a will by counterfeiting the name of the account itself. Testick's case, ibid. 181. a pretended testator, who is still living. Co. The word purport, in an indictment for forge. gan's case, ibid. 355.

ry signifies the substance of an instrument If a person puts his own name to an instru. as it appears on the face of it; tenor means an ment, representing himself to be a different exact copy of it. Ibid. 180. Leach, 753. person of that name with an intent to defraud, The most effectual statute for the prevenhe is guilty of forgery. 4 T. R. 28.

tion of the forgery of bank notes, is the 41 But where a bill of exchange is indorsed by Geo. III. c. 41. which enacts that if any one shall a person in his own name, and another repre. knowingly bave in his possession, or in his sents himself to be that person, he is not

guilty house any forged bank notes, knowing the same of forgery, but it is a misdemeanor. Hevey's to be forged, without lawful excuse, the proo! case, Leach, 268.

whereof shall lie upon the person accused, ho A bill or note may be produced in evidence shall be guilty of felony, and shall be transportagainst a prisoner prosecuted for the forgery ed for fourteen years. of it; and he may be convicted upon the usual And if any person shall make any plate or evidence of the forgery, though it has never instrument for forging bank notes, or any part been stamped pursuant to the Stamp Acts. of a bank note, or shall knowinly have them Hawkeswood's and Reculist's cases, Leach, 292, in his possession without authority in writing and 811. For the forgery in such a case is from the governor and company of the bank of mommitted with an intent to defraud ; ar.d the England, he shall be guilty of felony, and shall legislature meant only to prevent their being be iransported for seven years. given in evidence, when they were proceeded But before this statute this must have been upon to recover the value of the money thereby an indictable offence as a misdemeanor. See secured. But Lord Kenyon has declared that ante, 99, note (7). he did not approve of the decision of the ma- By the 45 Geo. III. c. 89, the statutes for the prity of the judges in these cases. Peake, punishment of forgery are entended to every 168.' It has been declared that the forgery of part of Great Britain

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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 10 each that are cognizable by the laws of England (82), (83).6

(82) See a complete collection of the Acts any public office authorized by law, or any of Parliament relating to the crime of forgery, court of record, or of any company incorpo. (too numerous even io abstract here,) in Col. rated by this state, or the impression of any lyer's Crim. Sta. 142, et seq., with the notes such scal. 2. The altering, destroying, cor thereon.

rupting, or falsifying with intent to defraud, (83) In New York, the Revised Statutes any record that is evidence, or any record of contain the following provisions as to forgery. any judgment or enrolment of a decree, or the

Falsely altering or counterfeiting the in- return of any officer, court, &c. to any process spection bill or receipt for duties of an inspec. of any court. 3. The falsely making, forging, tor of salt, with intent lo defraud the state : or or altering any entry in any book of records, falsely altering or counterfeiting his brand, or or any instrument purporting to be any record aiding in such crime, is felony, punishable by or retum specified in the last section. 4. imprisonment in the state.prison for not less Wilfully and falsely certifying, by an officer than 3 nor more than 6 years. (1 R. S. 271, o authorized to take the proof or acknowled. 115.) Forging the name of a manufacturer ment of any instrument that may be recorded, on any barrel or cask of salt, subjects the of that the same has been acknowledged or prov. fender to a fine of 25 dollars, and dainages lo ed. 5. Counterseiting any gold or silver coins the party aggrieved. (ld. 273. 128.) Alier. current by custom or usage within this state. ing or counterfeiting hands on a flour barrel, (2 R. S. 671. $ 24, &c.) 6. Making or en. calises a forfeiture of 100 dollars for every graving, or causing to he made or engraved, cask so branded : (Id. 539, 0 21.): branding any plate in the form of any evidence of debt, casks of beef or pork without authority, is pu. &c. issued by any bank incorporated by any nishable by a fine of 15 dollars per cask : state of this, or any other country, without the (Id. 546, 0 57.): counterfeiting the brand of authority of such bank. 7. Having any such an inspector of pot and pearl ashes, is punish- plate, or impression from it, without the auable by a fine of 500 dollars. (Id. 549, 9 78.) ihority of such bank, with the intent of having Counterfeiting the brand of an inspector of any impression made and passed off, or of hav. fish oil, is punishable by a fine of 25 dollars. ing the impression filled up to be passed off, (ld. 555, $ 168.) Forging, altering, or counter. 8. Making, or causing to be made, or having, feiting any marks, or nuinbers, or weigh-nole any plate upon which are engraved any figures of an inspector of tobacco, is a misdemeanor. or words, which may be used to falsely alter

1d. 569, 181.) Counterseiting or fraudulently any evidence of debt issued by such bank, with altering or defacing the brands or other marks intent so to use the same. (2 R. S. 672, 0 30.) of any inspector, is also punishable by fine not 9. Selling, &c. or offering or receiving, for exceeding 2000 Jollars, and imprisonment not any consideration, any forged evidence of debt, exceeding 3 years. Counterfeiting or fraudu. knowingly, and with intent to have the same lenily aliering or defacing the marks put by passed. (Id. 32.) 10. Having any forged evi. the owner on a hogshend, barrel or half-barrel, dence of debt of any such bank as above speof flour, meal, beef, pork, pot or pearl ashes, cified, with intent to utter the same and to fish, fish oil, liver oil, or distilled spirits, is defraud. (Id. 36.). punishable by fine not exceeding 500 dollars, Forgery in the third degree is, or imprisonment not exceeding one year. (Id. I. Counterfeiting the gold and silver coin o! 572. $ 193, 194.) Falsely making. altering, a foreign government, with intent to export it forging, or counterseiting, any lottery ticket, and defraud the foreign government or its sub or aiding therein, or uttering the same with in- jects. (ld. $ 29.) lent to defraud, subjects the offender w impri- II. Forging, &c. with intent to defraud, and sonment. (ld.671. 0 53.) Forging, &c. any will so that any one may be injured in his person or of real or personal property, or any instrument property: '1st. Any instrument purporting to be purporting to affect real estate, or any certific any process, or any certificate, order, or allow. cate of acknowledgment or proof of any in- ance of any competent court or officer; or to strument which may be recorded; or any cer. be any pleading or proceeding filed or entered tificate purporting to be issued by the state for in any court: or to be any license or authority the payinent of money, or lo acknowledge the authorized by any statute. 2. Any instrument receipt of property; or any certificate of any purporting to be the act of another, by which interest in a public stock 'created by any law any pecuniary demand or rights of property of the state or any other evidence of any lia- may be affected, and for which a punishment bility of the state, purporting to be issued by a is not before provided. public officer; or any indorsement or other in- III. Making a false entry, or falsely alterstrument purporting to transfer the right of ing an entry, with intent to defraud, in any iny holder of such certificate, with intent to book of accounts kept in the office of the defraud, is forgery in the first degree. (2 R. comptroller, or of the treasurer or surveyor 8. 670, $ 22, 23.)

general of the stale, or of any county treasur Forgery in the second degree, is the forging, er, by which any demand, right, or claim may &c. of the great or privy seal, or the seal of be affected; or in any book of accounts kept

(6) See How a (0) at the end of the Vol. B. IV.



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 altended with many harsh and disagreeable circumstances. This preventive justice consists

in obliging those persons,

whom there

is a probable ground 10 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 suretjes 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.

(0) See page II.

by any monied corporation within the state, the act of another of the same name, with in. or kept by such corporation or its officers, and tent to create, discharge, affect, &c. any right delivered, or intended to be delivered, to any or property, is the same offence as forging the one dealing with such corporation, and by name of a person of a different name. (ld. $ which any pecuniary claim may be affected. 41.) (Id. 34, 35.)

Forgery may also be committed by the total Forgery in the fourth degree is: 1. Hav. erasure or obliteration of an instrument, or by ing any forged or counterfeited instrument, putting together parts of several genuine in the forgery of .vhich is above (i. e. in 2 R. S. struments so as to produce one. And it may 670, &c.) declared to be punishable, (except be committed though all the instrument but the those enumerated in the 36th section,) or hav- signature be printed, or by falsely inaking any ing any counterfeit of any gold or silver coin evidence of debt purporting to be issued by current in this state, knowing the forgerv or any corporation having authority for that pur counterfeiting, and intending to defraud any pose, and affixing a pretended signature of one and pass the same. (ld. 9 37, 38.) The any person as an agent or officer of such cor, uttering as true a forged instrument or coun. porntion, though such person was not such terseit coin, the forgery or counterfeiting of officer, or was not in existence. which is above (2 R. S. 270, &c.) made an Forgery in the first degree, is punished by offence, is punishable as such forgery is, imprisonment in the state-prison for not less unless, 2. The uiterer received the instru• than 10 years : in the second degree, for not ment or coin in good faith, and for a valuable less than 5 nor inore than 10: in the third de consideration without circumstances of su- gree, for not more than 5: in the fourth degree, spicion, and then it is forgery in the fourth by like imprisonment for not more than 2 years, dogree. (Id. 0 39, 40.) Making an instru- or by imprisonment in a county jail for not ment in one's own name, and passing it as more than 1 year. (2 R. S 675, 012)

can be effected by amendment, disability, or example. Bat 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 band, 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 soině court or by some judicial officer; whereby the parties acknowledge themselves to be indebted to the crown in the sum required (for instance 1001.), 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 tiine 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 deinean 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 discreLion; 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.

(e) See Book I. page 350.
( 1 Hawk. P. C. 126.

(d) Cap. 18.

(1) It is now sellled that a justice of the of the peace must be exhibited. 5 Burn J 21. peace is authorized to require surety to keep ed. 304. IT. R. 696. the peace for a limited time, as two years, ac. (2) But hy 1 and 2 Ph. & M. c. 13. in casa,

ording to his discretion, and that he need not of selony, the recognizalices are to be certified bind the party over to the next sessions only,. to the general gaol delivery. 2 B. & A. 278 ; but if a recognizance to ap: (3) A secretary of state o privy.counsellor pear at the sessions be taken, and an order of cannot bind to keep the peace or good beba court for finding sureties applied for, articles viour. 11 St. Tri. 31%.

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