The Sun.
London, England, 1824-11-24 00:00:00

HENRY FAUNTLEROY.

ARGUMENT BEFORE THE TWELVE JUDGES IN
THE GRAND JURY-ROOM AT WESTMINSTER,
Nov. 23.

TICE KING V. HENRY FAUNTLERQY.

The announcement that the Judges would hear this case
argued to.day, produced a very full attendance of the bar in the
Court of King's Bench, and of strangers in the avenues. Near-
ly half an hour before the Grand Jury Room was opened, a
crowd, principally consisting of Barristers, filled the passage
to the door. At length, the Judges having taken their seats,
the door was opened, and the space behind the table soon occu-
pied' chiefly by gentieMen of the bar. The Counsel for the pro-
secution and for the prisoner were seated at the table opposite
the Judges. As soon as the confusion had subsided,
The Lord (Thief Justice A unoTT called on Mr. Broderick,
who was
appointed to argue for the prisoner.
Mr. BitoriEnica: then addressed their Lordships; he said,
the unfortunate prisoner, Henry Fauntleroy, had been tried
and convicted, under the statute of the lid of Ow. 11. cap, 35,
for uttering a certain power of attorney. The indictment upon
which he was tried contained eleven. counts, three of them
charging the offence to be with an intent to defraud the Bank
of England. The Jury, however, only returned a verdict of
" Guilty of uttering the power of attorney, knowing it to be
forged." Before, however, he proceeded to state to their Lord.
ships the at.unients which he had to submit to them, lie could
not deny, but that lie felt the weight and importance of the
task' he had to peribrrn; he had to satisfy their Lordships minds,
that the indictment under' which the present unfortunate man
had been convicted was one which, in point of law, could
not be sustained ; and, in answer, he knew it would be as-
serted that an unfOrtunate man named Wait had been already
tried and convicted upon anindictrnent framed in a similar man-
lier to the present one ; and, after his case had been solemnly
argued before the.tßeive Judges, he nevertheless had been exc.
cuted. Btitirrthe case of Mr. Wait, the precise point insisted
upon was not subinitii.il to their Lordships' consideration. His
case was reported in the Ist Bingham, p. 121, and the question was
as to the admissibility of the evidence of a witness produced on
the trial, the Leartied Counsel fcir the prisoner contending that
such a whites* was not a competent witness—the question Its to
whether the instrument forged was or was not a deed; being
only slightly hinted at. 'But even slightly as it was hinted at,
hi several instances, and although it had been successfully op.

prised, yet he might say the present question was not fully gone
into. There was also another case which had Veen frequently
referred to, he meant that of the King v. Lyon, and there the
',resent question arose only incidentally ; that was, an indict-
ment under the statute 45 Geo. 111., for forging a letter of
~.attorney to obtain prize money; but tit indictment contained
:special counts, directly charging the instrument as a forged
letter of attorney, under the particular statute—consequently,
the question, whether it was, or was not a deed, and as such
within the statute of 2 Geo. H. did not arise. He, however,
lamented as much as any man could do, that he . had- to
raise the present question after an individual had already suf-
fered the last sentence of the law under an indictment simi-
larly framed, but he felt quite sure, from the experience
he had already hattiof the venerable and learned personages
whom he hid then the honour Of addressing, that he could suc-
ceed in convincing them that•the present indictment was had
in point of law, they would not, because a different decision
had been come to on a former case, where the present question
had not been fully brought before them, refuse to this unfortu-
nate prisoner the benefit to which he was by law entitled. He
(Mr. Broderick) felt confident that their Lordships would not
for one moment think of maintaining the consistency of legal
*decisions, at the eXpence of the sacritiee of human life. Their
Lordships would forget all that had already been done, and
would treat this case as a case of first impression, in rill its im-
portant bearings. Having said thus much, he thought he
might safely say, that it might be admitted, that there was no
statute in which any specific mention of uttering a forged
power of attorney, had been made by name. The statute
only went to say, that uttering forged deeds should be
deemed forgery by law ; now in the 2d, 3d, and Bth counts
in the indictment upon which. the-pre-sent defendant had been
found guilty, the power of attorney. represented to have been
forged was termed a deed, and by no other name. If, there-
fore, he could satisfy their Lordships that a power of 'attorney
did not fall within the name and description of a deed, he had
a right to call upon them to say that this indictment could not be
sustained. if even he could raise a doubt in. their Lordships'
minds—if they should even consider the phrase as ambiguous,
he should contend that the primmer was entitled to the benefit
of their Lordships' doubts i he should therefore .contend, that
under the present indictment, no offence had been proved-so as
to come within the statute of the 2d Geo. U., as theprisoma had
not forged or uttered any instrument which could be brought
within the legal description of a deed; and in order to prove
this he should have to recur to a regular series of argument.—
Now,. he contended, that from the earliest period a wide dis-
tinction had always been made by the law between letters of attor-
ney under seal, and other documents more properly, and legally
termed deeds. In Cornyo's Digest a deed was defined to be
written instrument, under hand and seal, signed, sealed, and
delivered, containing a contract: Lord Coke had laid it down
as a law that a deed must consist often component parts, that
it must be signed, sealed, anti delivered, and that it must con-
tain a matter of contract. Another Learned Judge had, also
said 'that any written instrument, before it could he called a
deed, must be written, signed, sealed, and delivered, and must
comprehend a contract between party anti patty. This doc-
trine was also laid down in Conynghant's Law' Dictionary,
and also in Wood's Law Dictionary. Now he (Mr. Brode.
rick) would contend, that' wiener of attorney did not contain
any matter of contract or grant—it was a mere delegation of a
certain power—it neither conveyed any interest nor in.
sured any interest, it was always revocable. Now a deed
could only be revoked by an instrument of the same weight
and solemnity as the deed itself ; but a letter of attorney
could be revoked in various ways, and at any time. In order
to prove this,-he would beg to refer to an argument of his
Learned Friend, Mr. Serjeant l3osanquet, in the case of " The
King against Wait."' In his argument in that case the Learn..
ed Serjeant stated that the party granting a power of attorney
to any person to transfer stock, might revoke that power by
merely attending himself the very next day and transferring
that stock in person. The game with a power to receive divi-
dends ; after the party granting the power had personally up-
peered himself and acted, the power was always considered as
revoked in various ways, and at any time. Having said thus
much, he would now refer their Lordships to the ancient
phraseology of the law, which made a distinction between deeds
, and letters'of attorney. Deeds were universally termed factx
or charter, whilst letters of attorney were universally termed
&me ; but it must be admitted that letters of. attorney were
not the only instruments under seal that rlid not come under
die legal demonstration of deeds ; a will, for instance, was
under seal, but .no one. would contend for a moment that a will
was a deed, although it was'signed, sealed, and.delivered.
Mr. JutstiefilLtYLve--,Btit it has been held over and over
again, that kis not necessary that a will should be under seal.
Mr. Bawnnicitudmitted that, but yet he still thought the
observation bore upon the present question ; however, he would
keep to his point, he maintained that a letter of attorney con-
tained no matter. of contract, and was not obligatory on the
party executing 'it t be would then refer to the case of an award ;
an arbitrator always made hisiward under seal. Yet an award
was not a deed ; 'and in the case of Dodd v. Kirwin, it was de-
cided, that an award was only a writing under hand and seal.
Mr. Justice GAZELEE.--And it has also been decided that
it is not necessary that an award should be under seal.
Mr. Ilitonnnicx submitted, that nevertheleas, these facts
went to show that there was a certain class of instruments recog-
nised by law under hand and seal, that did not come within the
denomination of deeds. Tlse statute of Eliz. c. 14, was the earliest
statute which treated the subject of forgery as a crime, and that
statute made.a special distinctien between instruments called
deeds, And other instruments tinder seal—and two other statutes
subsequently passed, expressly treated of two descriptions of
instruments, the one 45 deeds, the other as instruments un-
der seal. In the 35th Henry IV4p. 7, (in the Year Book) a
man was
.charged with forging two deeds, one being a cer-
tain feoffinent of land to. one T—, the other being a cer-
tain writing or muniment to enable C. to enter on the land, and
give possession to T.; this latter instrument cane precisely
within the nature of a letter of attorney, and after judgment
which was appealed against, it was held that the indictment
was wrong in alleging two deeds, but that it ought to have
alleged one deed only, and that the second document ought to
have been described, not as a deed,. but as a writing or mini-
meat. There were several other cases analagous to these cited.
The instrument empowers the prisoner to sell stock, and it re.
cites " that in case of mydeath, whatever the attorney to whom
the. letter is directed may do shall be deemed valid." The
Learned Counsel continued to argue, that as the word " cove-
nant" was not in the clause, it was therefore of non...efikt.--
Though there were several words in the instrument assimilate('

_ ...
to the word " covenant," yet they did not apply to the specific
meaning of that word. From the various cases which he had
cited, he would submit, in the second place, that a deed
was not a legal definition of a power of attorney, and in
that case the conviction could not be sustained. The audio-
cities on this head were very numerous. He, however, need
hardly tell their Lordships, that the strictest interpretation must
be put on the construction of penal statutes. Where the life
of a man was concerned, the strictest construction was imperative.
According to Blackstonel the crime of horse-stealing was
punishable with death, without benefit of' clergy. The same
punishment was extended to the crime of sheep-stealing, and
other cattle; and though " other" cattle must apply to those
specified in other Acts of Parliament, yet so strict was the Le;
gislature where man's life was concerned, that the cattle must
be specifically set forth. The Act of 2 Geo. 11. cap. 25, upon
which the conviction took place, recited that the Legislature
found it necessary to provide a more summary punishment than
was then, in use for the crime of forgery.
Chief Justice BEST—Does the Act of ParliaMent gay—
" signed, sealed, and delivered ?" I know that is the form,
but is it so specified ?
Mr. BRoDERICK—The Act distinctly says—" signed, seal-
ed, and delivered," and lie therefore submitted that the con•
viction could not stand. The preamble of this Act (2 (ieo. IL)
referred to the Bth of Geo, 1., for the more exemplary punish-
ment of forgery. The sections of 31 Geo. 11. cap. 22, re-enact.
ed the Bth Geo. I. but did not apply to the direct point at issue
for defrauding a corporate body.
Lord Chief Justice Annove said, that he bad carefully read
the section, and Mr. Broderick would find upon a reference
to it again, that it did apply to. the case before their Lordships.
Mr. Sergeant BOSANgUET observed,' that the section was
exactly to the purpose.
Mr. BuonErtrug was grateful to the Lord Chief Justice,
but he thought that the application of the section did not ma.
terially alter the case, or weaken his argument. He would
come to the Act of Parliament of 5 George 11. upon which this
indictment was founded. After lie recited the Act, he said, it
was clear that the Legislature had in view a more exemplary
punishment than that previously inflicted by the Act of Bth
George 1. _

. Mr. Justice BAILEY.—There were poweri of attorney signed
and sealed which were not delivered—he would like to knovt
whether there was any Act relative to the subject which re-
quired the signing, sealing, and delivering in the case of Bank
Stock.

Mr. Justice GAZELEE having made a few remarks,
11Ir. BRODERICK proceeded, and said, that the letters of at-
torney connected with the Bank, and by them recogniied, was
the same in form as those in use at present; he was alluding to
the Act in the lith Geo: I. It was quite clear from the preamble
of the 2d Geo. II.„ which referred to a more exemplary punish-
ment, that it did not refer to letters of attorney, because at
that period it was a capital offeneeto forge theth. He would,
therefore, call.their Lordships' attention to the 37th Geo. IL,
cap. 78.
Several of the Judges thought the Learned Counsel had as
good come down to the Act which passed in the 4th year of
the present reign.
Air. BRODERICK submitted, that in•the Act to which he had
referred, there appeared an important omission in the clause to
which he had directed their Lordships attention. He would

then come to the 4th Geo 111. cap. 15, which re-enacts two
of the previous Acts, without recognizing one of them which
contained some .severe penal enactments. Beyond the Acts
to, which he had alluded, there were others which related ta
letters of attorney -4 for instance, seamen's prize money;
these were not considered as deeds,, and the Legislature
never viewed them in that light. He would refer their Lord-
fillips to the recital of an Act which passed in the reign of
George 11. relative to forging letters of attorney. Then fol.
lowed another Act, the 9th-George 111. cap. 30, sec. 8, which
related to uttering only. In the 57th George 111. there was
a further Act to consolidate the former Acts. These several
Acts had made it capital to forge and utter letters of atter•
ney, but it was evident the Legislature had done away all
doubt by the 57th Geo. 111., which made it felony to forges
seaman's will. He wished it to be understood, that the drift
of his argument was to prove that the Legislature considered
letters of attorney and deeds distinct subjects of legislation....
It was not unworthy of observation, to shew what pains the
Legislature had taken to make themselves explicit, and remove •
all cause of doubt. The 7th Geo. IL, cap. 25, recites that it
does not extend to a forged warrant for the delivery of money
or goods—it recites in the preamble, that the 2d Geo. 11., did
not extend to a warrant of attorney, and .it was worthy of re-
mark, that the Act of the 45th Geo. 111., recognised and cons°•
lidated them as therein specified. If letters of attorney were
intended to have been included, was it likely that the Legis-
lature would not have specidcally provided for it in some on
or other of the Acts of Parliament which had been framed with
so much care and attention ? It might be said in answer, that
there was no Statute for punishing a person who utters a forged
power of attorney by name ; but he would appeal to the hu-
mane and Learned. Gentleman, who would be heard On the
other side, and who would not attempt to over-strain the mean-
aennaranmwenastsawt isiticahkee,xithsteyed.
ing of the Act, and say that the mischief was not provided for.
He. (Mr. Broderick). contended, that it was provided for byetlr.
put a fair and liberal construction on the Statutes. He should
trouble their Lordships no further at presents and he hoped
that the arguments he had adduced would be considered, aria
that they would be fully borne out by the constructions of the
several Statutes to which he had directed their Lordships at.,
welreiensoutbtmoibtteedbo, tubiltdi'blywnwotird'esi,fl4

ten.lll°rl.l.Sergeant BosawouET rose
Learned
Sergeant referred to theo caltsaiewtaiwwt:hti:citeaci"e(3;:k tietpretbiuollae
better
dinenslisit $
ioct:
ni
bait;
I,cnd
foi.e
ethi
his Learned Friend (Mr. B.),
which had been given on the subject by
'ca'd Coke- There was a case mentioned, where a letter ot
attorney was sent to a person, and it wa.s held, that that leas
sufficient to enable a person to execute a deed; it WAS therefore
a deed in itself. A letter of attorney, it was stated in 141i4t1
ton, was the same in effect as a warrant of
add ibY (treir,
The instrument must be something of the nature of eed.. _
.et
reason assigned was, " for a letter does sometimes signify ..
deed"—a deed of acquittance is altered to o letter of acquittance!
hence, the analogy between both the instruments. Ilis Leametit
Friend relied upon a case, hi which an action was bough
and the declaration and the writ did not agree. • lie did ittre
consider that. the case to which he had alluded, and
decision of the Court upon it, was relevant to the present
se- In that case the Counsel -wished to have the one
Chiefinst
hueat made conformable to the other, but the then Lord
Justice refused. The Learned Se jeans contended that. tirt;
was sufficient to prove that the Legislature and the llenc.lviarean7
considered that a letter of attorney was a deed, or c(Iul power,
to such. an instrument, because it was a delegata'n 1 eld
quantum sufficit, to execute any deed, if such attarT`" :the
think proper so to do. Ills Learned Friend hail said th. t
vier
covenant was extremely loose ; but he contended that the Veva
of attorney was a deed,whether so expressed or not. Ile had
It said that a maninight give a covenan t as a release to another per
son ; but he never heard of a law that compelled such peraanitl.
cpnvey the release to another person. The whole argaine vof
then ase rested on the 2d Geo. 11. cap. t 5, where the cnytt
forgery was
MI
deed, know orged 1 gr a d yt
Gtoeos.t°clk.s ethrienealw:cililtiotftic:beewelyatf shdeerti:i-ened.nl:acoatfetilitBdle. "thNtvaett;two 1.1
ItibthaeuttrtinriAegni'cit:el;r:Bo:ll:l:::!
stock generally, and it often happened that Pos°,,,n'' ts,
ing turnpike or other Acts, inserted
.partiee'r "jecthe
winch pressed more immediately on attention, ft°, or
circumstances of their being present to its
familiar to their recollection, without Vee& 'n g -Obi'
,names; and the same principle applied to the clatoelf at,
Act in question, which defined the forgery of a Peweri of
torney. The counts for uttering were those which real y
the case. In the year 1796 there were two indictor olta Mamas
Henry Weston, for forgery, and in these indictments
tots
were counts for forgery, and counts for uttering, and thes(oestan
for uttering defined the power of attorney as a deed. ~
was executed. The next case was thut of the " i'Lli!first
Burk," in 1804 ; that intlictenent had four counts; the
count was for forgery, the 2nd for utterl, and
third
njdtuteroi
cu,
erwt
piiltAh countsninEtena tor,
etdi
forei
aftr defraud
defrauding,ut
idie rethe
w asa to;
case
the
Mr.
Old Bailey, in the year 1787, eight years before 111,., Moth
ia
Thompson, upon an
atiindictmentehpowernat
ofe
matter
Pringle,
consisting of eiet :toner
i'w7ahlsi Lc
chwa weras e
ehr
erdoe ar case
ut
ht roibfnugs gwaletiorntarftieeeydr,wwbaerthdbesnrertne:::::::(tntit;
before the Learned Baron, Mr. Justice Gould, snd 31r'll;ther
Grose, and upon cowering the indictment with the
records, &e., the conviction was held to be valid. Dig re-
Mr. Sergeant Bosaw QuET having made a few conclot
marks, which consisted of a reiteration of his formai argn t the
13n ODEUICK addressed the Court, observing diao,3o
Learned Counsel had stated himself to have been taken ',Tel op.
from the shortness of the notice that had been given' "ccii by
B. might make a similar complaint. The easel. iat'lttire die
him in the course of his argument having been lan.V.:„"gerinf,
Attorney-General, were not unknown to the Learee",,,,,,t have
who in reply had sited cases which he (Mr. B. coma
had time to consider. , 0 your
Mr. Justice BAY LEY.—Then you think it essentou
argument that you should have time to reply
Mr. BRODERICK—Most certainly, my ii3r.• that 13.'"
morrow
trulocr
adjourned till
ottilm:lif
tomorrow
gou:sit
socnehoAew(Dhi
nui
soo r
gshttil
iss bull:0ot
rnuJ reasonable
na). holy to•
should be granted, but that cannot be beyond an ear tAla
in
tO
Lordship)
another
_place (alluding to the Report)..
Mr. ititODERICK thanked their Lorimar
argument, which lasted nearly three hours an
waslistened •
to with great interest. by the audhen
and the Coort

.
• , roberir3 .
COURSE OF EXCHANGh, No" I F.
6.
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Amite' dant
Ditto, at Sight :, g
Rotterdam ........ .
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Antwerp ,l 1 1 114 1,,
Hamburg!'
30 ~ 0 I.ll*
Altona ........... ..
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Paris,3 Day's sight
Ditto .......... .
es 45
.
Bourdeaux, ditto . 7 10 10006,
Berlin
Fraukforton the Main ..... ....
. 9
Petersburg!' to !,
Vienna lO % . liv,
90 •
O n
Trieste 316 0'
Madrid
Cadiz ' ;51 " •
[Blinn'
35
Barc.lana
.... •. •. _.,
eseville
Gibraltar ...................... :: .. : ... 31,
404
Leghorn - ...... .
Genoa 44i-11e:tier ,
Malta
Palermo
Lisbon
Oporto
Mo./lentil-0 -Naple. s.. 1.1.8.1 .. .154106:1
.. 0
Bahia
Dublin .... 94 - Cork, 91 re' 1-7eIII.

OJ'

BULLiON.

44 pet
0 0 '
Portugal Gold, i to Coin 1,
Foreign Gold. Bars s 17.
0 0.
New Doubloons o
******* . 4of
New Dollars ........................:.`
.• 0 of
Silver Stamford to Bare,
.................. 0

----
BIRTHS. itansgatel PP
On the 20th inst., at the Albion LibrarYl
Saville, ot a daugher.
eagen, off
On the 22d inst.,t the lady of J. C. Dianrknh
isai
a son. n fordtthe
ere
On the 20th inst., at Hampton-lodge, near
_.........0"
of Fowler Price, Esq., of a daughter,

tile:AranYthhreestacrnisiednril'esaF'ldi iIIARRIED. Georg 6
ehati.
the 23d inst. at Edmonton chunk, John,„zabeth
Re.'.lll:o'intotesfo:ll(les:f:Bac(!-sar'nutegre,hertil-rb_su_i_____oll.dttzilnelergsbia,ndttieo. 311ris.sitrie'noilos

DIED. ,
On Monday last, the 22d inst. at his house, t"'s y--
bury-place, Islington, Stephen dolder, b'sq., in
*"' „f
the Rev. Henry Kaye Bonney, pre
of
On the 20th inst., in her 80th Year,bent rs
M. 13 " L ler ocohi, and
rector.of King's Clittb, Northamptonshire.
heitil4.

at thl

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