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ledge, but there is in such cases strict proof that those bills are forged.
No such evidence is given here, nor is the bill even produced. It there-
fore may be, that the bill alluded to in the letter is in some respects
irregular, but still it may not be a forgery. "(t)

The punishment of forgery at common law is, as for a misdemeanor. Punish-
by fine, imprisonment, and such other corporal punishment as the court, ™*"*-
in their discretion, shall award (/t) The punishment ordained for the
offence by the statute law will be mentioned, wath the other enactments
of the different statutes, in the succeeding chapters.

A consequence of the judgment for forgery was an incapacity to be Incompe-
a witness until restored to competency by the king's pardon. (y) **^"^y ^'^ ^°

(ff) Phillips' case, 1 Lew. 105. The result of the case is not stated, but it is s.nid that the
learned judge subsequently expressed the following opinion : " That the i)rosccutor could
not give in evidence anything that was said by the prisoner at a time collateral to a former
uttering, in order to show that what he said at the time of such former uttering was false,
because the prisoner could not be prepared to answer or cx])lain evidence of tliat descrip-
tion. That the prisoner is called upon to answer all the circumstances of a case under con-
sideration, but not the circumstances of a case which is not under consideration : that the
prosecutor is at liberty to show other cases of the prisoner having uttered forged notes, and
likewise his conduct at the time of uttering them. But that what he said or did at another
time, collateral to such other utterings, could not be given in evidence, as it was impossible
that the prisoner could be prepared to combat it."

(h) Reg. V. Cooke,» 8 C. & P. 580, Patteson, J.

(e) Rex V. Forbes," 7 C. & P. 224. See this case, ante, p. .^41.

tji) 1 Hawk. P. C. c. 70, s. 1. 4 Bla. Com. 247. Bac. Ab. Forgeri/. 2 East, P. C. c. 19, B.
69, p. 1003. The corporal punishment of the pillory may not now be inflicted for this oflence ;
56 Geo. 3, c. 138. 1 Vict. c. 23.

(y) Co. Lit. G 6. 2 Hawk. P. C. c. 46, s. 101. Com. Dig. Testmoign, A. 3. But see now
the 9 Geo. 4, c. 32, s. 3, in the Chapter on Evidence. C. S. G.

» Eng. Com. Law Reps, xxxiv. 538. '' lb. xxxii. 497.



408 OF FOKGERY. [BOOK IV.

a witness And the 12 Greo. 1, c. 29, provides, that in case persons convicted of
after judg- f^j-g^ry gijall afterwards practise as attorneys, solicitors or law agents.
Attorneys tlic court where the suit or action is brought shall, on complaint, ex-
oonvicted amine the matter in a summary way, in open court, and cause the
"nd'aft'oT- offender to be transported for seven years.

wards prac- The principal statutes relating to the crime of forgery having been
tising. consolidated by the 1 Wm. 4, c. G6, which contains general provisions
applicable to all the offences affected by that act, it is thought expe-
dient to introduce those provisions in this place, in order that they may
be more readily referred to in the subsequent chapters.
1 Wm. 4j e. The 1 Wm. 4, c. 66, s. 1, reciting that " several offences relating to
^^* forged writings, and to other forged and counterfeit matters, and to false

personation, false oaths, false entries, and other false matters, are now
by virtue of several statutes, punishable with death ; and that it is ex-
pedient that none of these offences shall hereafter be punishable with
death, unless the same shall be made punishable with death by this act;
and also that the statutes concerning such of these offences, whether
punishable with death or otherwise, as may more frequently or seriously
affect the interests of his majesty or his subjects, should be amended,
No forge- and consolidated into this act," enacts, " that where by any acts now
ries or other JQ force any person falsely making, forging, counterfeiting, erasing,
fences, ° or altering any matter whatsoever, or uttering, publishing, offering,
which are disposing of, putting away, or making use of any matter whatsoever,
"hlf ^''n '^'' knowing the same to be falsely made, forged, counterfeited, erased, or
tinue so un- altered, or any person demanding or endeavouring to receive or have
less ex- ^ thing, or to do or cause to be done any act, upon or by virtue of
made cap- any matter whatsoever, knowing such matter to be falsely made, forged,
ital by this counterfeited, erased, or altered, would, according to the provisions con-
- fsQ taincd in any of the said acts, be guilty of felony, and liable to suffer
death as a felon ; or where by any acts now in force any person falsely
personating another, or falsely acknowledging any thing in the name of
another, or falsely representing any other person than the real party to
be such real party, or wilfully making a false entry in any book, account,
or document, or in any manner wilfully falsifying any part of any book,
account, or document, or wilfully making a transfer of any stock, an-
nuity, or fund, in the name of any person not being the owner thereof,
or knowingly taking a false oath, or knowingly making a false affidavit
or false affirmation, or demanding or receiving any money or other
thing by virtue of any probate or letters of administration, knowing
the will on which such probate shall have been obtained to have been
false or forged, or knowing such probate or letters of administration
to have been obtained by means of any false oath or false affirmation,
would, according to the provisions contained in any of the said acts,
be guilty of felony, and liable to suffer death as a felon ; or where by
any acts now in force any person making or using, or knowingly having
in his custody or possession, any frame, mould or instrument for the
making of paper, with certain words visible in the substance thereof,
or any person making such paper, or causing certain words to appear
visible in the substance of any paper, would, according to the provi-
sions contained in any of the said acts, be guilty of felony, and liable
to suffer death as a felon; then, and in each of the several cases as
aforesaid, if any person shall, after the commencement of this act be
convicted of any such felony as is hereinbefore mentioned, or of aiding,



act,



CHAP. XXXII. § v.] OF THE PUNISHMENT. 409

abetting, counseling, or procuring the commission tbcreuf, such per-
son shall not suffer death for the same, unless the same shall be made
punishable with death by this act, and if the same shall not be made AH forgo-
punishable with death by this act, in such case every person who s^iall, J^^^^ J^^p^J,"
after the commencement of this act, be convicted of any such felony, and not de-
or of aidin<', abettinf;, counseling or procuring the commission thereof, f''.""'-''^ f° ^^

D' o' D I o ' tins act,

shall be liable, at the discretion of the court, to be transported beyond shall bo
the seas for life, or for any term not less than seven years, or to be iui- 1".'"'-'""*!

witli triins-

prisoned for any term not exceeding four years nor less than two years; pyrtation.
provided always, that nothing herein contained shall aflfect or alter any Siivin^' of
acts relating to the coin of this realm, or to any coin of any other realm ",|^J'jy''"J^"p
lawfully current within this realm."

Sec. 23, reciting the 5 Eliz. c. It, and that there arc certain acts by Puni-;!!-
which persons convicted of certain oilences mentioned in those acts are ""jlj!'^"*^ ^'"^
subjected to the same pains and penalties as are imposed by the said act m, adoiited
of Queen Elizabeth for the offences first enumerated in that act, and V ''t''^^"''
that the said act is thereinafter repealed and that it is expedient to sub- ed, and
slitutc other punishments in lieu of the punishments of that act, enacts, others sub-
that '' every person who shall, after the commencement of this act, be
convicted of any offence which is now subjected, by any act or acts, to
the same pains and penalties as are imposed by the said act of Queen
Elizabeth for any of the offences first enumerated in that act, shall be
guilty of felony, and shall, in lieu of such pains and penalties, be liable,
at the discretion of the *court, to be transported beyond the seas for *410
any term not exceeding fourteen years, nor less than seven years, or to
be imprisoned for any term not exceeding three years nor less than one
year."

By sec. 24, " If any person shall commit any offence against this act. All forgers

or shall commit any ofi'ence of forging or altering any matter whatso- ""^ n,"y'^be

ever, or of offering, uttering, disposing of, or putting off any matter tried in the

whatsoever, knowing the same to be forged or altered, whether the '^'^""'>'

' o i-Tii ii- where they

offence in any such case shall be indictable at common law or by virtue are aj.pre.
of any statute or statutes, made or to be made, the offence of every such hcnded or
offender may be dealt with, indicted, tried, and punished, and laid and ^^jy
charged to have been committed, in any county or place in which he
shall be apprehended or be in custody, as if his ofi'ence had been actually
committed in that county or place ; and every accessory before or after
the fact to any such ofi'ence, if the same be a felony, and every person
aiding, abetting, or counseling the commission of any such ofi'ence, if
the same be a misdemeanor, may be dealt with, indicted, tried, and
punished, and his offence laid and charged to have been committed in
any county or place in which the principal ofi'ender may be tried."

I3y sec. 2.5, "In the case of every felony punishable under this act, As to the
every principal in the second degree, and every accessory before the fact, j',['|'i|y''*g.*
shall be punishable with death, or otherwise in the same manner as the cond do-
principal in the first degree is by this act punishable; and every acccs- S'"*^"^""^.^^
sory after the fact to any felony punishable under this act shall, on
conviction, be liable to be imprisoned for any term not exceeding two
years."

By sec. 2G, '< "Where any person shall be convicted of any offence The court
punishable under this act, for which imprisonment may be awarded, it i,ard labour
shall be lawful for the court to sentence the offender to be imprisoned, or solitjiry
with or without hard labour, in the common gaol or house of correction, ''



410 OF FORGERY. [BOOK IV.

mont for and also to direct that the offender shall be kept in solitary confinement
a5a?n*'uliis ^^"^ ^^^ wholc OF anj portion or portions of such imprisonment, as to the
act. court in its discretion shall seem raect."(_y)

As to of- By sec. 27 " Where any offence punishable under this act shall be
fences com- pQjj^jj^i^fgjj within the jurisdiction of the Admiralty, the same shall be
sea. dealt with, inquired of, tried, and determined in the same manner as any

other offence committed within that jurisdiction."
Rule of in- By sec. 28, '-'Where the having any matter in the custody or posses-
tfon'jis'Vo ^""^^ ^^ ^^y person is in this act expressed to be an offence, if any per-
criininal son shall have any such matter in his personal custody or possession, (/c)
possession, Qj. siiall knowingly and wilfully have any such matter in any dwelling-
parties in- house or other building, lodging, apartment, field, or other place, open
tendedtobo or incloscd, whether belonging to or occupied by himself or not, and
whether such matters shall bo so had for his own use or for the use or
benefit of another.^ every such person shall be deemed and taken to have
euch matter in his custody or possession within the meaning of this act;
and where the committing of any offence with intent to defraud any per-
son whatsoever is made punishable by this act, in every such case the
word " person" shall throughout this act be deemed to include his
majesty or any foreign prince or state, or any body corporate, or any
*411 company or society of persons *not incorporated, or any person or num-
ber of persons whatsoever who may be intended to be defrauded by such
offence, whether such body corporate, company, society, person, or
number of persons shall reside or carry on business in England or else-
where, in any place or country, whether under the dominion of his ma-
jesty or not; and it shall be sufficient in any indictment to name one
person only of such company, society, or number of persons, and to
allege the offence to have been committed with intend to defraud the
person so named, and another or others as the case may be."
This act By sec. 29, << This act shall not extend to any offence committed in

not to ex- Scotland or Ireland."

tend to ...

Scotland or By scc. 30, " where the forging or altering any writing or matter
Ireland, whatsoever, or the offering, uttering, disposing of, or putting off any
to the forg- writing or matter whatsoever, knowing the same to be forged or altered,
ing or ut- jg in this act expressed to be an offence, if any person shall, in that
Enr'-lTuul P^^i"'' 0^ ^^^^ United Kingdom called England, forge or alter, or offer,
documents utter, dispose of, or put off, knowing the same to be forged or altered,
to"br\n."cfe ''^"3' ^"^^ writing or matter, in whatsoever place or country out of Eng-
or actually land, whether under the dominion of his majesty or not, such writing
g^f? *'"^.°^ or matter may purport to be made or may have been made, and in
.>ind to forg- whatever language or languages the same or any part thereof may be
ing or nt- expressed, every such person, and every person aiding, abetting, or
England Counseling such person, shall be deemed to be an offender within the
bills of ex- meaning of this act, and shall be punishable thereby in the same manner
promissory ^^ ^^ *^^ writing Or matter had purported to be made or had been made
notes, in England ; and if any person shall in England forge or alter, or offer,

purporthi^t^' utter, dispose of, or put off, knowing the same to be forged or altered,
to be pay- any bill of exchange or any promissory note for the payment of money,
or any indorsement on or assignment of any bill of exchange or promis-
sory note for the payment of money, or any acceptance of any bill of
exchange, or any undertaking, warrant, or order for the payment of



able out of
England.



y) See the 1 Vict. c. 90, s. b,post, p. 413.

k) See vol. 1, p. 83, as to the construction of these -words in the 2 Wm. 4, c. 34, s, 8.



CHAP. XXXII. § v.] OF THE PUNISHMENT. 411

money, or any deed, bond, or writing obligatory for the payment of
money, (whether sueh deed, bond, or writing obligatory shall be made
only for the payment of money, or for the payment of money together
with some other purpose,) in whatever place or country out of England,
whether under the dduiiuion of his majesty or not, the money payable
or secured by such bill, note, uudeitaking, warrant, order, deed, bund,
or writing obligatory may be or may purport to be payable, and in
whatever language or languages the same respectively or any part
thereof may be expressed, and whether such bill, note, undertaking,
warrant, or order be or be not under seal, every such person, and every
person aiding, abetting, or counseling such person, shall be deemed to
be an offender within the meaning of this act, and shall be punishable
thereby in the same manner as if the money had been payable or had
purported to be payable in England."

The 2 & 3 Wm. 4, c. 128, s. 1, reciting that by the 1 Wni. 4, c. CG, 2 A :; Wm.
<' it was provided, that if any person should after the commencement of „' ^'' '
that act be convicted of any forgery, or other offences therein named or hereattor
described, for which he would at the time of the passing of that act convietod
have been liable to the punishment of death, he should not suffer death punishable
for the same, unless the same should be made punishable with death by "''''> ""^^'li
that act ; and whereas by the law *and practice now prevailing in Scot- ^.jjgj „^.{^
land and in Ireland the penalty of death may be awarded, in certain shall wi
cases, for forgery, for uttering counterfeit instruments, and for false per- |,"',^j[j ^^^
Bonation ; and whereas it is expedient to abolish the punishment of shall bo
death for offences of that nature, except so far as relates to wills and •ra'ifporicd
certain powers of attorney, as hereinattcr mentioned, enacts, " that ^ifA-io
where any person shall after the passing of this act be convicted of any
offence whatsoever for which the said act enjoins or authorizes the in-
fliction of the punishment of death, or where any person shall after the
passing of this act be convicted in Scotland or Ireland of any offence
now punishable with death, which offence shall consist wholly or in part
of forging or altering any writing, instrument, matter, or thing what-
soever, or of offering, uttering, or disposing of any writing, instrument,
matter, or thing whatsoever, knowing the same to be forged or altered,
or of falsely personating another, then and in each of the cases afore-
said the person so convicted of any such offence as aforesaid, or of pro-
curing or aidinjx or assistin"; in the commission thereof, shall not suffer
death, or have sentence of death awarded against hiiu, but shall be
transported beyond the seas for the term of such offender's life. "(a)

By sec. 2, "Notwithstanding anything hereinbefore contained this This net
act shall not be construed to affect or alter the said recited act, or any "'^ )" ^■•^-
other act or law now in force, so tar as the same may autiiorize the punisb-
punishmcnt of death to be inflicted upon any person convicted, cither ments for
in England, Scotland, or Ireland, of forging or altering, or of offering, u'jtyrin^
uttering, or disposing of, knowing the same to be forged or altered, any wills an J
will, testament, codicil, or testamentary writing, with intent to defraud p,,',^.',''^" „f
any body corporate or person whatsoever, or of forging or altering, oruttomuy.
of uttering, knowing the same to be forged or altered, any power of
attorney or other authority to transfer any share or interest of or in any

(</) By tlic 3 & 4 Wm. 4, c. 44, s. 3, all persons punishable under this scciion wore made
liable, previously to their bcinnf transported, to be imprisoned with or without hard lal)Our
in the common gaol or house of correction for any term not exceeding four years nor lea*
than cue year.



412 OF FORGERY. [BOOK IV.

stock, annuity, or other public fund which now is or hereafter may be
transferable at the Bank of England or South Sea House, or at the
Bank of Ireland, or to receive any dividend payable in respect of any
such share or interest, with intent to defraud any body corporate or
person whatsoever, or of procuring, aiding, or assisting in the commis-
sion of any of the said oifences, but that the punishment for each and
every of the said offences, and for procuring, aiding, or assisting in the
commission thereof, shall continue to be the same as if this act had not
been passed."
1 Vict. c. The 1 Vict. c. 84, entitled, "An act to abolish the punishment of
rit's here^*^' ^^^^*'^ in cases of forgery," in sec. 1, recites so much of the 1 AVm. 4,
tofore pun-c. 66, as enacts that every person guilty of certain offences therein men-
'^•'th'^H^ . tioned, viz., the offences, which arc mentioned in the second section of
i>y the ro- ' 2 & 3 Wm. 4, c. 123, shall suffer death as a felon, and as enacts that
cited acts, a every principal in the second degree, and every accessory before the
■shablo f'lct, should bc punishable with death or otherwise in the same manner
horoafter. as the principal in the first degree was by that act punishable ;" and
also recites the 2 & 3 Wm. 4, c. 59, s. 19, the 2 & 3 Wm. 4, c. 123, s.
*413 2, the 2 & 3 Wm. 4, c. 125, s. 64, the 5 & 6 Wm. 4, *c. 45, s. 12, and
the 5 & 6 Wm. 4, c. 51, s. 5, and that it is expedient that none of the
hereinbefore mentioned offences should be punishable with death, and
enacts, " that if any person shall after the commencement of this act
(1st of October, 1837) be convicted of any of the offences hereinbefore
mentioned, such person shall not suffer death, or have sentence of death
awarded against him or her for the same, but shall be liable, at the dis-
cretion of the court, to be transported beyond the seas for life, or for
any term not less than seven years, or to be imprisoned (?) for any term
not exceeding four years, nor less than two years."
Persons See. 2, recites the 2 & 3 Wm. 4, c. 123, s. l,(m) the 3 & 4 Wm. 4,

withtans'- ^- ^^' ^- 2 ''^ ^^^ the 3 & 4 Wm. 4, c. 44, s. 3, and enacts that " so
portation much of the three lastly hereinbefore in part recited acts as relates to
^r ^^h*' *^^ punishment of persons convicted of offences for which they are
recited liable Under the said act of the second and third years, or the said act
acts, how of the third and fourth years respectively of his late majesty's reign, to
'be transported for life, shall from and after the commencement of this
act be and the same is hereby repealed ; and that from and after the
passing of this act, every person convicted of any of such offences shall
be liable, at the discretion of the court, to be transported beyond the
seas for the term of the natural life of such person, or for any term not
less than seven years, or to be imprisoned (?;) for any term not exceed-
ing four years nor less than two years."
Hard la- By sec. 3, " when any person shall be convicted of any offence pun-

hnpriron^ ishable under this act, for which imprisonment may be awarded, it shall
inent. be lawful for the court to sentence the offender to be imprisoned, with
Solitary q^ without hard labour, in the common gaol or house of correction ; and
Tnent. ^^so to direct that the offender shall be kept in solitary confinement for

any portion or portions of such imprisonment, not exceeding one month
at any one time, and not exceeding three months in any one year, as to
the court in its discretion shall seem meet."

The 1 Vict. c. 90, s. 4, reciting that " by the laws now in force it is
lawful for the court before whom any person shall be convicted of cer-

(Z) With or without hard labour. See sec. 3, infra. (m) Ante, p. 411.

(n) With or without hard labour. See the next section.



CHAP. XXXIII.] OF FORGING RECORDS AND JUDICIAL PROCESS. 413

tain oiFences for which imprisonment or imprisonment with hard labour
may be awarded, to direct that the offender shall be kept in solitary
confinement for the whole or any portion or portions of such imprison-
ment, or of such imprisonment with hard labour," enacts, '' that after
the commencement of this act (1 Oct. 1837) it shall not be lawful for
any court to direct that any offender shall be kept in solitary confiuc-
ment for any longer periods than one month at a time, or than three
months in the space of one year."



♦CHAPTER THE THIRTY-THIRD. *414

OF THE FORGING, ALTERING, &C., OF RECORDS AND JUDICIAL PROCESS.

It is clear that, by the common law, a person may be guilty of for-
gery by falsely and fraudulently making or altering any matter of re-
cord ; for, since the law gives the highest credit to all records, it cannot
be but of the utmost ill consequence to the public to have them either
forged or falsified. (a) If, therefore, a man should insert in an indict-
ment the names of those against whom in truth it was not found, it
would be forgery. (^^)"|"

Even if the offence should not constitute a forgery; yet in no in-
stance can the counterfeiting or alteration of any judicial process or
matter be less than a very high misdemeanor, as tending to stop or im-
pede the course of justice, or to encroach upon the judicial power. (c)
The defacing or rasure of any record, without due authority, is an
offence at common law, highly punishable b}' fine and imj)risonment.(r/j
And it has been holden that any person making or knowingly using a
false affidavit, taken abroad, (though a forging could not be assignable
on it here,) in order to mislead our own courts, and to prevent public
justice, is punishable by indictment for a misdemeanor. (r)

Judges are highly punishable at common law for ofiences of this
kind.(y') And the statute 8 Rich. 2, c. 4, applies expressly to judges
as well as to clerks.

The 8 Rich. 2, c. 4, enacts, that "i{ any judge or clerk" offend by S Rich. 2, c.

(a) 1 Hawk. P. C. c. YO, s. 1, 8. Bac. Ab. Forgery (H). Roll. Ab. G5, 76. Yelv. H6. Cro.
Eliz. 178.

(b) Rex V. Marsh and other?, 3 Mod. GG. 1 Hawk. P. C. c. 70. s. 2.



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