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and do not give the instrument the legal effect of a cove- 1824 nant.
'KING Secondly, although the term deed might, at common Fauntleroy. law, in strictness comprehend a power of attorney, still it was not within the intention of the Legislature in passing the statute 2 Geo. 2, c. 25; and that is not only to be collected from the distinction laid down in the authorities referred to, but from the general tenor of all the statutes which have been passed touching the crime of forgery; and the fact of there being some statutes relating to deeds, and others to powers of attorney, raises a strong presumption to shew that the Legislature considered them as distinct objects of penal legislation. Every statute ought to be construed and expounded, not according to the letter, but according to the intent of Parliament (a). Penal statutes must always be construed strictly, and cannot be extended to other cases than those intended by the Legislature, although they come within the mischief contemplated, and intended to be remedied (6): and a case out of the mischief so intended to be remedied, must be construed to be out of the provision, although it be within the words of the statute (c). And to collect such an intent, the preamble and reason of passing an act of Parliament must be considered (d). The preamble of the statute 2 Geo. 2, c. 25, recites that “whereas the wicked, pernicious and abominable crimes of forgery, perjury, and subornation of perjury, have of late time been so much practised, to the subversion of common truth and justice, and prejudice of trade and credit, that it is necessary, for the more effectual preventing of such enormous offences, to inflict a more exemplary punishment on such offenders, than by the laws of
(a) Com. Dig. tit.“ Parliament,” R. 10; 10 Rep. 57 b; 2 Roll. Abr. 318; Plowd. Com. 353, 363.
(b) Per Lord Kenyon, in Jenkin. son v. Thomas, 4 Term Rep. 666.
(c) 2d Inst. 386; 5 Barn. & Ald. 501.
(d) Com. Dig. tit. “Parl.” R. 11; Plowd. Com. 173, 204.
this realm can now be done.” The statute then proceeds to enact, “ that if any person shall forge or counterfeit &c. or shall utter or publish as true, any false, forged, or counterfeited deed, will, testament, bond, &c. with intent to defraud any person, knowing the same to be false, forged, or counterfeited, then every such person being thereof lawfully convicted, shall suffer death as a felon, without benefit of clergy.” Here, therefore, it is clear, that the intention of the Legislature, as manifested in the preamble, was to inflict a more severe and exemplary punishment on persons who forged deeds than the law had before authorised; but such intent was inoperative as applied to powers of attorney for the transfer of stock; because by a prior statute (a), in the preamble of which deeds are not mentioned, it was made a capital offence to forge a letter of attorney for the transfer of the capital stock of Joint Stock Companies. The Legislature could not, therefore, have meant by the word deed in the statute 2 Geo. 2, c. 25, to include a letter of attorney, against the forgery of which the 8 Geo. 1, c. 22, already contained a specific enactment. The statute 31 Geo.2, c. 22, s. 78, after reciting that doubts might arise whether the punishment inflicted by the statute, 2 Geo. 2, c. 25, extended to the commission of the several species of forgery therein mentioned with intent to defraud any corporation, re-enacted the latter statute, and supplied the defect; and it is a strong and almost convincing fact, that, by the 77th section of the statute 31 Geo. 2, the punishment imposed by 8 Geo. 1, is extended to the forging any letter of attorney relating to the transfer of stock or funds established or to be established since the passing of the 8 Geo. 1; for if it had been the intention of the Legislature, that a letter of attorney should be comprised under the term deed used in the statute 2 Geo. 2, c. 25, and in the 78th section of 31 Geo. 2, c. 22, this provision would have been
1824 The KING
altogether nugatory. The 77th section, therefore, expressly relating to letters of attorney, and the 78th to deeds, incontrovertibly proves that they were looked upon by the Legislature as objects of distinct provisions, and that it was never intended that letters of attorney for the transfer of stock should be, as is now supposed, included under the word deed. It is also clear that the forgeries of powers of attorney and of deeds have invariably called for separate enactments, as will appear on examination of the various statutes on this subject.
To say that letters of attorney do not necessarily import instruments signed, sealed, and delivered, but also comprehend instruments simply under hand, which the Legislature intended to protect from forgery, is no answer to the argument; for, even allowing that attornies may, for some purposes, be appointed by mere writing under hand, it is well known, and must have been within the view of the Legislature, that letters of attorney for the transfer of stock as well at the time of the passing of the statute 8 Geo. 1, as since, were and have necessarily been, in compliance with the Bank regulations, signed, sealed, and delivered, and it was evidently intended, by the 8 Geo. 1, and 31 Geo. 2, c. 22, s. 77, that the forgery of such instruments should be prevented.
By 4 Geo. 3, c. 25, the charter of the Bank of England was continued, and the 15th section extended the provisions of the statutes 8 Geo. 1, and 31 Geo. 2, c. 22, s. 77, to the capital stock of bodies politic or corporate which then were, or thereafter should be, established by any act of Parliament; and letters of attorney are therein only mentioned, and not deeds. So also, the 37 Geo. 3, c. 122, inflicts the punishment of transportation on persons forging the names of attesting witnesses to letters of attorney for transferring government stocks, &c. but does not extend to deeds; and the 45 Geo. 3, c. 89, which consolidates the provisions of 2 Geo. 2, c. 25, and 7 Geo. 2, c. 22, re
specting deeds, &c. extends such provisions to every part of The King Great Britan, and does not contain the words “letters of FAUNTLEROY. attorney.” The 31 Geo. 2, c. 10, 3. 23, and 9 Geo. 3, c. 30,
s. 6, relate respectively to the forging of letters of attorney to receive seamen's wages, and to the uttering of them. The 45 Geo.3, c. 72, s. 121, and 57 Geo. 3, c. 127, s. 4, re-enact, consolidate, and extend the provisions of 31 Geo. 2, c. 10, s. 23, and 9 Geo.3, c. 30, s. 6, and all of them ex pressly treat of letters of attorney, but make no mention of deeds. The letters of attorney for receiving seamen's wages, alluded to in these several statutes, are signed, sealed and delivered, like the present; and to make the forgery of such instruments felony by express enactments would have been altogether nugatory and futile, if the statute 2 Geo. 2, c. 25, had been meant to include them under the general word, deed. As, therefore, the forging of letters of attorney has been made a matter of distinct legislation, and, inasmuch as enactments such as those referred to would have been clearly unnecessary, if letters of attorney were comprised within the term deeds, the just application of the acknowledged rules of construction naturally leads to the conclusion, that the Legislature could not have intended to include letters of attorney in the statute 2 Geo. 2, c. 25. Unless, therefore, this mode of construction be adopted, in all the statutes relating to this subject, the Legislature must be deemed to have used language without a distinct and definite meaning, and to have made enactments totally inconsistent and at variance with each other. It is, therefore, utterly impossible that the offence set forth in this indictment can be considered to be within the words or intent of the statutes on which the conviction rests. Although, therefore, a power of attorney may be a deed, yet it is not within the meaning of the statute on which the prisoner has been convicted; and therefore the uttering it, knowing it to be forged, is not a capital offence within the terms of that act.
Mr. Serjeant Bosanquet, for the Crown.—The first pro 1$24. position advanced on behalf of the prisoner, that a power The King of attorney signed, sealed and delivered, is not a deed, is tau altogether untenable; a contract or bargain is not the essence of a deed. The definitions referred to from Lord Coke, and on which many, if not all, the subsequent authorities are founded, convey too limited a meaning of the word “ deed;" and even that learned writer himself, in numerous other passages, speaks of instruments as deeds which have no relation whatever to contracts between party and party. Thus, a release, which does not necessarily arise out of a matter of contract, must be by deed (a); so a confirmation (6). A disclaimer by deed is not found. ed on a contract (c). În Coke Littleton (d), it is laid down, “ that the authority to deliver seisin must be by deed, for a letter of attorney is as much as a warrant of attorney by deed, for literæ do signify sometime a deed, as literæ acquietanciæ do signify a deed of acquittance; and herewith agreeth Britton (e).” This authority not only proves that a contract is not essential to make a deed, but is an answer to that part of the argument on the alleged difference of signification between the terms charta or facta, and literæ, and which has been so much dwelt on. Lord Coke also expressly says in Goddard's case (f), “ there are but three things of the essence and substance of a deed, that is to say, writing on paper or parchment, sealing, and delivery.” So, in Rolle's Abridgment(g), it is laid down, that there ought to be these things to the making of a deed, that is to say, writing, sealing and delivery. The whole of the quotation from Spelman, as to the definition of a deed, was not cited: it is “ Factum à forensibus nostris dicitur scrip .