Star.
London, England, 1824-11-03 00:00:00

Mit FAUNTLEROY.

In the STAR of yesterday, we gave an outline of the
argaments, at the Old Bailey, in arrest of judgment,
in the case of Mr: Fauntleroy ; and, in a part of .our
impression, we gave the result of the application. We
now give a more detailed account of the proceedings.
When Baron GAttnow had taken his seat on the
Both, and the prisoner llad been placed at the bar,
Mr. ALLEY rose to Odds ess the Court ; he said he did
not think it was necessary to have the record read. His
Lordship was, doubtless, aware that the conviction of
thepisoner had taken plice,.not generally, but on the
counts of the indictment, charging him with having
uttered a forged power of attorney for the sale of Stock,
knowing it to be forged at the time of uttering it. Had
the conviction taken place on the indictment generally,
I.hich wo:ild have declared the prisoner to have been
vilty of forging the instrument, he would not have had
to trouble his Lordship on the present occasion. There
was an express Act of Parliament which made the forg-
ing of a power of attorney a capital offence. Up to the
reign of Geo.ll. it was not made a capital offence to utter
a forged deed. By the BthGeo.l. it was a capital offence to
lyrge a bond or security for money, &c. but the penalty
did not extend to the act of uttering such an instrument.
It was therefore dear, that under the Act of the Bth of
Geo. I. judgment of death could not be pronounced on
a conviction for uttering the instrument knowing it to
befogged. By a subsequent Act, the 4th of George H.
it was made (cap. 7.) a capital offence to forge certain
instruments therein enumerated, but of which a power
of attorney was not one. That Act extended only to
individual cases, but it was subsequently enacted that
it should extend to offences committed against corpo-
rations. It was his object to contend, that under nei-
ther of the two statues which he had just mentioned
was it a capital offence to forge a power of attorney ;
for, otherwise, those whose duty it was to frame the
laws of the country must, at a subsequent period, hayr
been guilty of great oversight, to say the least of it,
when they specially enacted that it was a capital of-
fence to forge such an instrument. Had the offence
been capital under the two statutes to which I.e had
referred, why should the Legislature have felt it neces-
sary to pass an Act declaring expressly that the
forging powers of attorney was a capital offence P
By the 57th of George II!. it was made a capital
offence to forge a letter of attorney to obtain a sea-
man's wages, or to utter such a forged instrument know-
ing it .to be counterfeit. That Act shewed that it was
not in the contemplation of the Legislature, that to
forge a power of attorney was a capital offence under
the two statutes beforementioned ; for, if so, what was
the use of the fresh enactment ? The words employed
in the Act of George H. were 1, bills, bonds, notes,
deeds, &c."—the words " power of attorney" did not
occur in it. He believed, also, that the Act upon which
the Three per Cent Consols were raised was passed sub-
sequently to the Act of George 11. If that were so, it
was impossible that the Legislature could have intended
by that Act to have afforded protection to a species of
property which did not exist. The instruments which
the Legislature had in contemplation when it enacted the
statute of George 11. were those which per se were valu-
able and convertible into cash. That wax not the case
with a power of attorney. A power of attorney was not
valuable in itself, but acquired a value-only in reference
to something else. A bond was a deed oT intrinsic value,
letause it was a security fol. money ; but a letter of
attorney was not a security for money. If the
power of attorney was comprehended under the worst
"deed" in the statute of George 11. the subsequent
statutes which were passed to declare the forging-of a
power of attorney a capital offence, were, to say the
least, unnecessary. His Lordship. knew, from the ex-
perience which he had acquired in conducting the pro-
secutions of the Bank, that that body sometimes prose-
cuted parties for personating, sometimes for forging
dividend warrants, sometimes for other things; but he
did not recollect a case in that Court, and there was
not one to be found in the books, to justify such a pro-
secution as the present. When he said that there had
never been a case similar to the present, he might per-
haps except one on which a question arose, but not like
that now at issue, whicHswas decided some time ago,
and had been reported by Mr. Bingham.
Mr. BRODRICK, in support of his Learned Friend's
argument, found it necessary to refer to the indictment
against the prisoner, which, it would be recollected,
centained 11 counts.

Mr. Baron G ARROW—It was only on the second count
that the prisoner was convicted.
Mr. BRODRICK begged his Lordship's pardon. It
was not specifically on the second count.—(The Learned
Gentleman here recapitulated the various counts.)—
The verdict of the Jury was not that the prisoner was
guilty of forging a certain deed. •
Mr. Baron GARROW.—The verdict must be taken in
popular language for this—" We have no evidence be-
fore us on which to convict the prisoner on any other.
count than the second, and therefore we acquit him of
the rest and find him guilty of uttering."
Mr. BRODRICK had no objection to take the fact to be
as his Lordship stated it. The object of the present
motion was, not that there should be no judgment, but
that there should not be judgment of death. The
second and third counts of the indictment called the
instrument " a deed." Those counts, therefore, must
be taken to rest upon the 2d Geo. 11. cap. 25, which
enacts, that " if any person shall falsely make, forge,
or counterfeit, or cause or procure to be falsely made,
forged, or counterfeited, or willingly act or assist in the
false making, forging, or counterfeiting any deed, &c."
or shall utter any such deed, he shall be deemed guilty
of felony. That was the effect of the act of the 2d
Geo. 11. the 31st Geo.- 11. cap. 22. sec. 78, merely ex-
tended the enactments of the former Act to the cases
of corporations.
Mr. Baron GAnnoW.--That took place in Harring-
ton's case.

Mr. BRODRICK.—His Lordship was right. The ques-
tion then was, whether . the power of attorney, wind'
uns called a deed in the indictment, was a deed within
the meaning of the Act of Geo. 11. He thought he
would be able to prove to demonstration that the Le-
gistature had not so considered it. The first statute to
v:hich his Learned Friend had directed the attention of
the Court was the Bth of Geo. I. which was the first of
a series of statutes designed for the protection of the
stock of public companies. That statute, however,
confined the capital punishment to the forging of a
power of attorney, and not to the uttering of one know-
leg it to be forged. That statute, therefore, was
clearly hot within the range of the present indict-
ment. Besides, that statute applied to Stock vested at
the time it pasted, and not to Stock subsequently created.
statute of the 2.1 George 11. WAS that upon which
tat: itAil4tiliela was framed. His argument, then,-Wa'

that it was necessary fo come to one of tuna infeiences—
either that the Legislature, in the statutes which it
had passed subsequently to The 2d -of George IL had
employed unnecessary words, or that, in Parliamebtary
interpretation, a power of attorney was not included
under the word " deed" in the 2d of George 11. "If the
Bank could have prosecuted under the Act%f the 2d
George 11. it was quite useless to use the words power
of attorney in the 31st of George 11. Either it was ne-
cessary to suppose that the Legislature had committed
an act of supererogation, or to come to a more rational
conclusion, that. Parliament did not consider that a
warrant of attorney was comprehended under the word
" deed," in the 2.1 George H. There might, he ad-
mitted, have been a conviction under the 37th of George
111. cap. 122, which enacted, " That if any person
should forge or counterfeit the names of any persons as
witnesses to a power of attorney for the transfer of
Bank stock, he should be liable to transportation for
seven years."
Mr. Baron Gaartow.—Not under the present indict-
ment, which thatged the forging of the writing of-
the principal.
Mr. BRODRICIC.--It was given in evidence that the
names of the witnesses were forged.
Mr. Baron Gartao*.--But with what view was that
done? It was given in evidence that the names of the
witnesses were forged in order to assist the proof with
respect to the forgery of the writing of the principal.
Suppose that Miss Young had by some arts been pre-
vailed upon to put her genuine signature to the instru-
ment, but that the names of Messrs. Watson and Tyson,
the witnesses, had been proved to be forged, could the
prisoner have been convicted .upon the present indict-
ment? Certainly not. It would then have been necessary
to frame an indictment on the Statute to which the
Learned Counsel had alluded, and on conviction, the
prisoner would have been liable to transportation.
Mr. BRODRICK said he would not trouble his Lord-
ship with any further observations on that point. The
57th of George IIL cap. 127, sec. 4, to which his
Learned Brother had reterred, alluded to the forging
and uttering, amongst other things, of powers of attor-
ney for obtaining seamen's wages. Why did the Le-
gidature make use of the words " power of attorney ?"
They were evidently unnecessary, if a power of attorney
was included by the word " deed" in the 2d George 11.
He again reverted to the proposition with which he had
set out—namely, that it was either necessary to suppose
that the Legislature had unnecessatily made use of the
words, or that it did not contemplate that the 2d Geo.
11. comprehended powers of attorney, but only instru-
ments which might be immediately converted into
money. A power of attorney might, to be sure, be.
considered a deed, inasmuch as it was signed and sealed:
but it was per se of no value whatever. It was a mere
authority to another person to act. He felt that he had
nothing further to offer to his Lordship's attention. He
trusted that he had made his argument understood, and
left it to his Lordship's consideration.
Mr. C. PHILLIPS followed on the same side, and pur-
sued the same line of argument which had been marked
out by the Counsel who had preceded. In order to
prove that the instruments to which the 2d George 11.
applied, were only instruments immediately convertible
into money, the Learned Gentleman stated that the,
statute, after reciting the word " deed," ended by say.
ing, " or other securities for money."
• Mr. Serjeant BOSANQUIT rose to reply at a quarter to
three o'clock. It was his duty to address his Lordship
with a few observations, and he apprehended they need
be few. So long as he had had the honour of being'
Counsel for the Bank, he had never heard arguments'
of this description advanced. The Learned Serjeant
then adverted to the case of the late Mr. Waite, inthat
case it was not deemed necessary to have any &tont as
to where the forgery took place. In that case there
was an argument on the case as to the putting away,
and the result of the deliberation which took place was,
that it did not matter whether the forgery took place at
Bristol or in London, and the consequence was, that that
,Gentleman underwent the execution of the law.
I Mr. Baron GA RROW said he well recollected the ar-
' guments, which were ably urged on both sides, in the
Exchequer Chamber, relative to that important case.
Mr.Serjeant BOSANHUET proceeded—There was an
extraordinary feeling in the argument, for it would ap-
, pear that a power of attorney must be made a deed.
In the case of the " King v.Waite," this was ably argued
by Mr. Campbell, that it should be a power of attorney
by deed : in the case of seamen's wages, the power
should be under the denomination and hand and seal of
a deed ; but in this case, will my Learned Friends say
for one moment, that in the 57th of the late King a
power of attorney was not to be protected? Who
can doubt but it intended to protect all deeds of
covenant and settlement, as well as securities for
money ? The Learned Counsel then said, the Act re-
cites " any deed, will, or testament, or security for
money," &c. and then comes down to a promissory note.
it was true that the term was associated with those in-
struments, and no doubt intended to be included in the
application of the terms therein expressed. In the Act
of Geo. 11. there was no provision made for the uttering
of such deeds as this, but ;twos provided for by the Act
of the 45th of Geo. 111. when the punishment of forgery
was made more effectual. Shortly after that Act passed,
a person was tried for uttering a bill of exchange, and
he suggested to hts Learned Friend who defended the
prisoner, to try the effect of the 2d of Ged. 11. but the
objection was over-ruled.
Mr. LAW followed on the same "side, and endeavoured,
at some length, to support the arguments of his learned
tinder. He concluded by observing, that if the statute,
of the 2d of Geo.ll. did not apply to the present case, be
knew of no other that did. '
Mr. ALLEY shortly replied to the observations of the
Counsel for the prosecution, and expressed his convic-
tion that the observation with which his Learned Friend
(Mr. Law) had concluded would have no weight with
his Lordship. the Court would be bound by the law
of the case, without regard to the manner in which its
decision might affect the prisoner.
Mr. Baron GARROW then proceeded to deliver his
decision. The awful period had arrived when, accord-
ing to the forms of the law, that unhappy person at the
bar was called upon to declare whether he had anything
to say why the Court should not pass judgment on him
to die. He regretted that the interval occupied in the
present proceedings (not improperly, for it was the duty
of the prisoner's legal advisers to catch at everything
which might afford a chance of averting, his sentence)
should interrupt the course of thought which he hoped
and believed the prisoner, since his trial, had indulged
in. It was a great consolation to him, in determiuing
the present question, to know that the prisoner's fate
did not depend on his very fallible judgment, but that
down to the very moment for sealing the warrant for car-

•
Tying the, sentence into elocution, if any doubts should.
arise iA the Minds of the law:officers of the CrlissSr, they.
would be submitted to the united wisdom of all the Judges
of the country: He was at present only called nr,on to.de-
liver his opinion. with respect td the objection which had
been raked, and he was bound tasay that he entertained
no doubts on the subject. The law required, that on the
face ortbe record, the offence with which the prisoner was
charged should, for the information of the present age
ai well as of the latest posterity, be fully stated, to jus-
tify the coming judgment. The indictment stated, that
the peisron about to receive judgment uttered, knowing
it to be forged, a power of attorney purporting to be
executed by Frances Young. This was stated to be in
violation of the statute; which hid provided the punish-
ment of death for all who should utter any Singed deed,
knowing it to be forged. The forged instrument set
forth in the indictment had all the formalties of a

power of attorney. It was sealed, and purported to be
attested by two witnesses ; so that if it had been genuine,
it would have operated for the purposes for which it was
intended. It hAd been said, that the word " deed"
contained in the statute was to be understood, not as
applying universally, but as limited and circumscribed,
to instruments of a certain character, of which the pre-
sent forged document was not one. That argument
had) is his opinion, been sufficiently answered at the
bar. It had been remarked, that the Court would not
allow its judgment to be influenced by the probability
of a prisoner escaping unpunished. Judges were bound
to administer the law as they found it. lithe law would
not reach the offender, he mist go unpunished, and the
powers of the law must be extended so as to bring fu.
cure offenders within its reach. It was the duty of the

Court to read the law as it was. He must look
to the Act of Parliament—that was the text on which

he was to comment—that was the role by which his
conduct was to be governed—the compass by which he
would steer his course. He found, then, that the statute
mentioned the word " deed" without any qualification.
Them was no exception in favour of a power of attorney.
Not even in favour of life to a prisoner, did he dare to
write those words in any statute ; it would be as un-
pardonable as to write in terms of blood something to
aggravate his guilt. He could find nothing in the ar-
guments to convince him that the Legislature, in speak-
ing of a " deed," meant an instrument convertible into
money. He was indeed at a loss to know what deed could
be predicated as not convertible into money. A bill on
goods was convertible into money as soon as they could
be sold. A building lease was convertible into money
as soon ; for the moment the holder procures ground
and building materials, he may sell it. Those were
instruments not convertible into money but by some
'act to be done by the holders of them. That was the
'case with the deed set out in the indictment: by pre-
tenting it at the Bank, the prisoner was enabled to get
into his own hands 5,0001. stock. It was a deed as
much convertible into money as any class of deeds
whith could be referred to. But what was' to be done
in cases where deeds are not immediately convertible
into money ? He would suppose A was about to marry
B; With whom he received a large portion. When they
married, the parties entered into deeds of settlement,
the effect of which was to keep the property in the
hands of both parties for certain uses ; on the death of
one .party, to go to the other ; and on the death of
both, to go to the children. Could any one say that
this wit a deed convertible into money ; and yet would
any one say that it was excluded from' the protection
'of the statute ? In short, if the present case were ex-
cluded from the operation of the statute, all kinds of
deeds would be equally excluded. He might have
contented himself with stating that the question had
already been argued and determined. He alluded
to the case of Waite. Mr. Waite was a Gentleman
practising at Bristol as an Attorney. In an evil
hour' he executed a forged power of attorney, au-
,thorizing a person in London to transfer a quantity
of Stockb The person in London, believing the
instrument to be genuine, acted upon it. Mr. Waite
was indicted, not for forging, but for uttering the instru-
ment in London, knowing it to be forged. Mr. Waite
was convicted, and beyond all doubt properly con-
victed; but a question arose as to the competency
of a witness, which was argued with great ability,
amongst others by Mr. Serjeant Bosanquet and the
Learned Mr. Campbell. The Judges would never have
entertained such a question for a moment, with the fact
staring them in the face, that the instrument which had
formed the subject of the trial was not a deed in the
contemplation of the stUtute. He felt bound to say that
he would have felt no difficulty or hesitation in deciding
against the point which had been raised on behalf of
the prisoner. He would conclude, that in delivering
that opinion, he experienced consolation in knowing,
that, to the latest period previous to the execution of
the sentence (if it should be carried into execution), the
prisoner would have the benefit of the united wisdom
and learning of those who presided over the adminis-
tration of the law in this country.
The RECORDER expressed his concurrence with the
opinion which the Learned Judge had pronounced.
Mr. Fauntleroy rose, and read the following statement :
My Loan—l am well aware that no emergencies,
however pressing—that no embarrassments, however
great, can be listened to as an excuse tot the offence of
which I have been. found Guilty; but I trust it may be
considered as some palliation in a moral point of view,
that a desire to preserve myself and others from bank-
ruptcy, and not personal aggrandizement or selfish
gratification alone, urged and impelled me to the acts I
have committed; and when I first deviated from recti-
tude, it was owing to an acute, although, I admit, mis-
taken feeling, to obtain temporary relief; and not from
any deliberate intention to defraud. GOD knows my
heart, and the truth of my present declaration, that I
hoped, and fully intended to make restitution, imme-
diately the expected prosperity of the house would have
enabled me. This must, I think, my Lord, appear evi-
dent, from my having frequently replaced the money
withdrawn ; and the Bank books will prove, that many
of the sums mentioned in the document written in
1816, have been since reinvested by me to the
credit of the parties. That document, my Lord,
has been supposed to have been prepared in con-
templation of flight: this idea is, boa ever, erroneous,
and is sufficiently refuted by my continuance at my
residence and business for years subsequently. The
only object and intention of that paper was, in the
event of sudden death, before the whole of the money
should be reinvested. to absolve every one beside myself
even from suspicion. Unfortunately for me,a succession of
adverse events, which I could neither avert nor control,
(and part of which I detailed at length on my trial),
led on from one false step to another, until the affairs of
the house became so involved that extrication was im-
possible. In these difficulties, I offered myself as the
I only sacrifice ; and it is my duty, as a man and as a

.

~;..