66

"shall have been killed, or wounded, it shall and may be lawful "to and for the judge of his majesty's high court of admiralty, "or his surrogate in the port of London, or the mayor, bailiff, or "chief officer in the several out-ports of this kingdom, upon the “petition of the master or seamen of such ship, so defended as "aforesaid, to call unto him four or more good and substantial "merchants, and such as are no adventurers or owners of the "ship or goods so defended, and have no manner of interest therein, and by advice with them to raise and levy upon the respective adventurers and owners of the ship and goods so defended, by process out of the said court, such sum or sums "of money as himself and the said merchants, by plurality of voices, shall determine and judge reasonable, not exceeding "two pounds per centum of the freight, and of the ship and "goods so defended, according to the first costs of the goods; "which sum or sums of money so raised shall be distributed among the captain, master, officers, and seamen of the said "ship, or widows and children of the slain, according to the direction of the judge of the said court, or his surrogate in the "port of London, or the mayor, bailiff, or chief officer in the "several out-ports of this kingdom, with the approbation of the "merchants aforesaid, who shall proportion the same, according "to their best judgment, unto the ship's company as aforesaid, having special regard unto the widows and children of such as "shall have been slain in that service, and such as have been "wounded or maimed."

66

combination for

† Sect. 46. By 11 and 12 Will. 3. c. 7. s. 12. And for the Reward to disbetter and more effectual prevention of combinations and con- coverer of any federacies for the running away with or destroying of any ship, running away goods or merchandizes, it is further enacted, "That a reward of with ship, &c. "ten pounds for every ship or vessel, of one hundred tons. “or under, and fifteen pounds for every ship or vessel of a greater burthen, shall be paid by the captain, commander, or "master of every ship or vessel, wherein any such combination or confederacy shall be set on foot for the running away with " or destroying any such ship, or the goods and merchandizes "therein laden, to such person as shall first make a discovery "thereof, upon due proof of such combination or confederacy; "the same to be paid at the port where the wages of the seamen "of the said ship are or ought to be paid, after such discovery "and proof made."

ships to lose wages.

+ Sect. 47. By 11 and 12 Will. 3. c. 7. s. 17. 66 And for the Seamen desertprevention of seamen deserting of merchant ships abroad in parts ing merchant beyond the seas, which is the chief occasion of their turning pirates, and of great detriment to trade and navigation in general;" it is enacted, "That all such seamen, officers or "sailors, who shall desert the ships or vessels wherein they are “hired to serve for that voyage, shall for such offence forfeit all "such wages as shall be then due to him or them."

+ Sect. 48. By 8 Geo. 1. c. 24. s. 2. it is enacted, "That Ships and the "every ship or vessel which shall be fitted out with a design to goods forfeited, "trade with, or supply, or correspond with any pirate, and all bato, th " and every goods and merchandizes put on board the same for the discoverers. “any

crown, half to

Seamen maimed

in fight against pirates, shall rewards in 22 and

ceive the re

23 Car. 2. c. 11.

and be admitted into Greenwich Hospital.

Masters or sea

ing themselves

against pirates, &c. forfeit their wages and suffer six months imprisonment.

any intent or purpose to trade with any pirate, felon or robber "on the seas, shall be ipso facto forfeited; one moiety thereof to "the use of the king's majesty, his heirs and successors, the "other moiety to the person or persons who shall first make "discovery, and give information of such intent or design; and "such person or persons, who shall first make such discovery, "shall and may sue for and recover the said ship or vessel, and "all and every the goods and merchandizes on board the same, "in the high court of admiralty."

66

Sect. 49. By 8 Geo. 1. c. 24. s. 5. "To the end that a further encouragement may be given to all seamen and mariners to fight and defend their ships from pirates, it is enacted, "That "in case any seaman or mariner on board any merchant ship or " vessel, or any other ship or vessel, shall be maimed in fight against any pirate, every such seaman and mariner, upon due "proof of his being maimed in such fight, shall not only have " and receive the rewards already appointed by a statute made "in the twenty-second and twenty-third years of the reign of king Charles the Second, intituled, An act to prevent the delivering up of merchant ships, and for the increase of good and "serviceable seamen, but shall also be admitted into and provided "for in Greenwich Hospital, preferable to any other seaman or "mariner who is disabled from service, or getting a livelihood, "merely by his age."

66

66

66

Sect. 50. By 8 Geo. 1. c. 24. s. 6. it is further enacted, men not defend- "That in case any commander, master, or other officer, or any seaman or mariner of any merchant ship or vessel which carries guns and arms, shall not, when they are attacked by any pirate, or by any ship or vessel on which any such pirate is on board, fight and endeavour to defend themselves, and their said ship or vessel, from being taken by the said pirate, or shall utter any words to discourage the other mariners from defending the "ship, and by reason thereof the said ship or vessel shall fall "into the hands of such pirate; then, and in every such case,

Masters shall

not advance to any seaman above half his

66

66

every such commander or master, or other officer, and every seaman or mariner, who shall not fight and endeavour to defend "and save the said ship or vessel, or who shall utter any such "words as aforesaid, shall lose and forfeit all and every part of "the wages due to him and them respectively, to the owner and "owners of the said ship or vessel, and shall not be permitted to "sue for or recover the same, or any part thereof, in any court "either of law or equity, and as a farther punishment shall suffer "six months imprisonment."

+ Sect. 51. By 8 Geo. 1. c. 24. s. 7. "And for prevention of seamen or mariners deserting (3) merchant ships or vessels. abroad in the plantations, or in any other parts beyond the seas, wages while be- which is the chief occasion of their turning pirates, and of great yond sea. detriment to trade and navigation, and is chiefly occasioned by the owner or owners of ships or vessels paying wages to the seamen or mariners when abroad:" it is enacted, "That no "master or owner of any merchant ship or vessel shall pay or advance,

66

(3) For penalties on Captains leaving seamen abroad, vide ante, p. 120.

advance, or cause to be paid or advanced to any seaman or "mariner, during the time he shall be in parts beyond the seas, any money or effects upon account of wages exceeding one moiety of the wages which shall be due at the time of such payment, until such ship or vessel shall return to Great Bri"tain or Ireland, or the plantations, or to some other of his majesty's dominions whereto they belong, and from whence they "were first fitted out; and if any such master or owner of such "merchant ship or vessel shall pay or advance, or cause to be "paid or advanced, any wages to any seaman or mariner above "the said moiety, such master or owner shall forfeit and pay "double the money he shall so pay or advance, to be recovered " in the high court of admiralty, by any person who shall first discover and inform of the same."

CHAP. XXI.

OF FORGERY.

OF Forgery there are two kinds; First, by common law. Se- Britt. 16. condly, by the statute.

Sect. 1. FORGERY by the common law seemeth to be an offence in falsely and fraudulently making or altering any matter of record; or any other authentic matter of a public nature; as a parish register, or any deed or will; punishable by fine and imprisonment, and such other corporal punishment as the court in discretion shall think proper. (1)

For the better understanding whereof I shall endeavour to shew,

1. In what cases the making or altering of a writing shall be said to be so far false and fraudulent, as to amount to forgery.

2. That a man may be guilty of forgery in respect of all the abovementioned writings, and no other.

Sect. 2. As to the first particular, it is said to be possible for a man knowingly to make a deed in his own name, and also to sign and seal it himself, which yet, in judgment of law, may be no better than a downright forgery; as if a man make a feoffment of certain lands to J. S. and afterwards make a deed of

(1) This definition of forgery is wholly inapplicable to the crime as now constituted by a va riety of statutes, and indeed it seems hardly to have been a correct definition at common law; for, although Hawkins says that a man cannot be guilty of forgery in other writings than those specified, viz. "any matter of record, or any authen"tic matter of a public nature," yet in a subsequent case, in which the whole of that matter was fully discussed by the court, (R. v. J. Ward, 2 Lord Raymond, 1461,) they held that at com. mon law it was forgery to make false private writings, as a bill of sale, bill of lading, an acquit

feoffment

Fleta, 2. c. 22.

tance, a warrant of attorney, a bill of exchange. And they made this distinction between forgery at common law, and cheats by means of false tokens, under the stat. 33 Hen. 8. c. 1. that by the statute it was necessary the party should receive an actual prejudice, which was not necessary in forgery; in the latter case, it was sufficient if the party might be prejudiced by it.-See also E. P. C. vol. 2. 862. Forgery, in its now en larged sense, is defined to be the " fraudulent "making or alteration of a writing to the preju"dice of another man's right."

3 Inst. 169. Pulton, 46.

27 H. 6. 3. Moor, 655.

feoffment of the same lands to J. D. of a date prior to that of the feoffment to J. S. in which case he is said to be guilty of forgery, because he knowingly falsifies the date, in order to defraud his own feoffee, by making a second conveyance which at the time he had no power to make. Also it is said, that his Con. Dyer, 288. crime would have been no less, if by his conveyance he had

759.

Noy, 101.

S Inst. 170.

3 Inst. 171.

3 Modern, 66.
8 Modern, 192.
Fitzgib. 261.
12 Mod. 493.
496.
Strange, 69.
3 Inst. 169.
Moor, 619.

3 Inst. 169.

Vide Moor, 619.

3 Modern, 66.

Vide 2 R. Ab. 28, 29.

11 Coke, 27.

Foster, 116.

Pulton, 46.

21 H. 6. 4.

Noy, 99.
Moor, 655.
Salk. 375.

passed only an equitable interest for good consideration, and had afterwards by such a subsequent antedated conveyance endeavoured to avoid it. Also in many other cases a writing may be said to be forged where neither the hand nor seal of any one are forged; as where one being directed to draw up a will for a sick person, doth insert some legacies therein of his own head; or where one finding another's name at the bottom of a letter at a considerable distance from the other writing, causes the letter to be cut off, and a general release to be written above the name, and then takes off the seal, and fixes it under the release; or where one inserts into an indictment the names of those against whom in truth it was not found; or where one makes any fraudulent alteration of the form of a true deed in a material part of it; as by making a lease of the manor of Dale appear to be a lease of the manor of Sale, by changing the letter D. into an S. or by making a bond for five hundred pounds, expressed in figures, seem to have been made for five thousand, by adding a new cypher. But Sir Edward Coke seems to say, that a deed so altered may more properly be called a false than a forged writing, because it is not forged in the name of another, nor his seal nor hand counterfeited. But I see no good reason why such an alteration of a deed should not as properly be called forgery, as the entire making of a new deed in another's name; for in both cases not only the fraud and villainy are the very same, but also a man's hand and seal are falsely made use of to testify his assent to an instrument, which after such an alteration is no more his deed than a stranger's. Also the notion of forgery doth not seem so much to consist in the counterfeiting a man's hand and seal, which may often be done innocently, but in the endeavouring to give an appearance of truth to a mere deceit and falsity, and either to impose that upon the world as the solemn act of another, which he is no way privy to, or at least to make a man's own act appear to have been done at a time when it was not. done, and by force of such a falsity to give it an operation, which in truth and justice it ought not to have, as appears by the foregoing cases in this section, to most of which Sir Edward Coke himself seems to agree.

Sect. 3. But it seemeth to be clear, that he who writes a deed in another's name, and seals it in his presence, and by his command, is not guilty of forgery, because the law looks on this as the other's own sealing.

Sect. 4. Also it hath been adjudged, that he shall not be punished for forgery who raseth out the word libris out of a bond made to himself, and putteth in marcis, because here is no appearance of a fraudulent design to cheat another, and the alteration is prejudicial to none but to him who makes it, whose security for his money is wholly avoided by it; yet it is said, that

it would be forgery, if by the circumstances of the case it should any way appear to have been done with an eye of gaining an advantage to the party himself, or of prejudicing a third person. Also it is holden, that such an alteration, even without these circumstances, is a misdemeanor, though it be no forgery.

Sect. 5. It hath been resolved, that a man shall not be adjudged guilty of forgery for writing a will for another without any directions from him, who becomes non compos before it is brought Moor, 760. to him; for it is not the bare writing an instrument in another's name without his privity, but the giving it a false appearance of having been executed by him, which makes a man guilty of forgery.

Sect. 6. It is said, that regularly a man cannot commit an act Moor, 760. of forgery by a bare nonfeasance, as by omitting a legacy out of Noy, 101. a will, which he is directed to draw for another. Yet it hath been holden by some, even in this very case, that if the omission of a bequest to one cause a material alteration in the limitation of a bequest to another, as where the omission of a devise of an estate for life to one man causeth a devise of the same lands to another to pass a present estate, which otherwise would have passed a remainder only, he who makes such an omission is guilty of forgery. In this case the first enquiry should be, with what intention the omission was made.

Sect. 7. It seemeth to be no way material, whether a forged instrument be made in such a manner, that if it were in truth such as it is counterfeited for, it would be of validity, or not; and upon this ground it hath been adjudged, that the forgery of 1 Sid. 142. a protection in the name of A. B. as being a member of parliament, who in truth at the time was not a member, is as much a crime as if he were.

AND NOW I am to shew, in the second place, that a man may be guilty of forgery at common law in respect of any of the abovementioned writings, and of no other.

Sect. 8. And FIRST it is clear, that one may be guilty thereof 1 R. Ab. 63.76. by the common law, by counterfeiting a matter of record; for Yelv. 146. since the law gives the highest credit to all records, it cannot but C. Eliz. 178. be of the utmost ill consequence to the public, to have them 3 Mod. 66. either forged or falsified.

8 Mod. 192.

12 Mod. 493. 496. Strange, 69.

68.

Sect. 9. SECONDLY, Also there seemeth to be no doubt but (a) 1 R. Abr. that one may be guilty of this crime by the common law, by C. Car. 326. forging any other authentic matter of a public nature, as a (a) 1 Jones, 325. privy seal, or a (b) licence from the barons of the Exchequer to (6) 1 R. Ab. 65. compound a debt, or a (c) certificate of holy orders, or a (d) pro- (c) 1 Lev. 138. tection from a parliament man. (d) 1 Sid. 142.

2 Buls. 137.

Owen, 47.

Sect. 10. THIRDLY, It is also unquestionable, that a man may (e) 1 R. Ab. 66. be in like manner guilty of forgery at common law, by forging Raymond, 81. a (e) deed; and surely there cannot be any reason to doubt, but 1 Sid. 278. that one may be equally guilty by forging a (ƒ) will, which can- 3 Leon. 170. not be thought to be of less consequence than a deed. But I (f) Moor, 760. Noy, 101. do not find this point any where directly holden. Dyer, 302. It is now made felony by 2 Geo. 2. c. 25. Vide postea, Private Documents. Sect.