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1-164 (Text)

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author,male,Shepherd, S. and R. Gifford,un addressee,male
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Government English
Imperial Correspondence
Bennett, 1979
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1-164-plain.txt — 5 KB

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We have had the honor to receive Your Lordship's letter of 29th July transmitting to us the copy of a letter, which has been addressed to Your Lordship by the Judge Advocate of New South Wales on the subject of a conviction, which had taken place in that colony of two offenders for forging and uttering, knowing to be forged, a store receipt, purporting to be drawn by the Commissariat Clerk stationed at Windsor and passed by him in the Government account; and requesting that we would take the case as stated in the Judge Advocate's letter into our consideration.  
The Judge Advocate in his letter states it as his opinion that the offence, with which the parties are charged and of which they have been found guilty is not a felony and that the crime of forgery committed in South Wales can only be punished as a misdemeanor at Common Law.
He appears to have founded this opinion on a supposition that the enactments in the 45 Geo. 3rd are specifically confined to Great Britain, and that the law making forgery a capital felony in England depends upon that Act; but, looking at the former statutes upon the subject, as well as considering the preamble and the words of the 8 sect. of the 45 Geo. 3rd itself, we are of opinion this Act is not to be construed as confining either the provisions of the former Acts, making felony a capital crime or the enactment of this statute itself to Great Britain, but as extending all the provisions of the former Acts to every part of Great Britain, many of which did not at the time extend to one part namely Scotland.
The first Act recited in the 45 Geo. 3rd is the 2 Geo. 2nd, chap. 25; this makes the forgery of certain instruments therein enumerated a capital felony, but it specifically provides that it shall not extend to that part of Great Britain called Scotland; the 7 Geo. 2nd and the 31 Geo. 2nd were passed, the one to supply omissions of, and the other to remove doubts that had arisen, upon the 2d Geo. 2nd; and, being made with reference to and as amendments of the former Act, they did not extend to Scotland in consequence of the proviso contained in such former Act; on referring to the title as well as the preamble of the 45 Geo. 3rd it is obvious that the main object of that Act was to extend the provisions of the former statutes relative to forgery to Scotland, and therefore it re-enacts almost in specific terms such acts of forgery as were already capital offences in England, and then enacts that the clauses and provisions of that Act shall extend to every part of Great Britain. No new felony is created by this statute nor is any former Act thereby repealed; it merely re-enacts the provisions of former statutes for the purpose of extending them to Scotland. We are therefore of opinion the 45 Geo. 3rd does not restrain the operations of any former Act, nor of that Act itself to Great Britain, but specifically extends both the one and the other to every part of Great Britain for the purpose of including Scotland.
This being so, the question, as far as it relates to the present case, is whether forgery would be a capital felony in New South Wales, if the 45 Geo. 3rd had contained no enactment relative to its extending to every part of Great Britain.
The criminal law of England is the law, by which crimes committed in New South Wales and the nature of their punishment are to be ascertained and decided; for without resorting to the general principle that in all new settled colonies, not acquired by conquest or cession, the settlers carry the law of England with them. The Act of Parliament of 27 Geo. 3rd chap. 2, by which His Majesty is empowered to establish a court of criminal jurisdiction for the trial and punishment of offences enacts that such court is to be established for the trial and punishment of all such outrages and misbehaviours, as if committed within this realm, would be deemed according to the laws of this realm to be treason or misprision thereof felony or misdemeanor; and, by the Charter of Justice granted by His Majesty under this statute, a court is established which is "to try and punish all treasons, misprision of treason, murders, felonies, forgeries and other crimes committed in New South Wales, such punishment to be 'inflicted, being according to the laws and customs of that part of Great Britain called England as nearly as may be";  whatever question might arise whether a felony created since the 27 Geo. 3rd would become a felony in New South Wales, unless the provisions of the Act were in terms extended to the colonies or to the particular settlement of New South Wales, it is clear that all criminal laws, which were in force in the 27th Year of the King extend to New South Wales unless repealed. The 45 Geo. 3rd repeals none of the former Acts relative to forgery; it merely repeats the enactments of former subsisting statutes and extends them all to the parts of Great Britain to which some of them did not before extend.
We are therefore of opinion that the law of England making forgery a capital crime in the cases enumerated in the statutes in force in the 27 Year of His Majesty applies to the Colony of New South Wales in the same manner as it applied to that colony before the 45 Geo. 3rd. And that, if the forged receipt in question is a receipt for money or goods, it is a capital forgery, having been so made by the 2d Geo. 2 chap. 25, which statute remains unrepealed.