[*1022]

*FORGERY. (a)

be com

mitted at

common

law.

PRELIMINARY NOTES.

Forgery may be defined to be the false making, or alteration of such writings, as either at common law or by statute are its objects, with intent to defraud another; each part of which definition we shall respectively examine, though not exactly in its order. First we will enquire in respect of what things the offence may be committed. Secondly, what acts are necessary to complete it, and thirdly, with what intent the party must be actuated, to render him thus highly criminal.

1

In respect I. In respect of what things may forgery be committed.-Forof what things for- gery, at common law, seems only to have been a species of fraud, gery may and is, therefore, often intermingled with false personating and other means of defrauding; like them it was a mere misdemeanour, punishable, as other offences of that degree, at the discretion of the court in which the offender was convicted. This circumstance may account for the doubts entertained by Hawkins, whether, at common law, forgery could be committed of any documents but such as were of a public kind; for in the infancy of commerce, when no peculiar severity distinguished this offence from common frauds, an accurate discrimination on the subject was of comparatively small importance, Hawk b. 1. c. 70. s. 11. These doubts were, however, entirely removed by the decision in Ward's case, who was prosecuted by information filed by the attorney general for forging a release of acquittance on a sum of money, and it was objected on his behalf, that the matter was not public in its nature

(a) As to the offence, &c. in general, see Hawk. b. 1. c. 51. and 70. Com. Dig. Forgery. 4 Bla. Com. 247. to 250. 2 East, P. C. 840.

to 1003. Bac. Abr. Forgery. Burn, J. Forgery. Williams, J. Forgery. Dick, J. Forgery.

nor under seal. These objections, were, however, over-ruled, and it was held, that forgery at common law might be committed in respect of any writing whatever, by which another might be defrauded. A distinction, at the same time, was marked out between forgery and fraud; that the last must actually take effect, [*1023] while the first was complete, though no one was actually injured, if the tendency and intent to defraud were manifest. The sentence of the defendant in this case was to pay a fine of 5001. stand in the pillory, and be committed till payment of the sum imposed on him, see this case at large, 2 Ld. Raym. 1461. The counterfeiting of the privy-seal, of a certificate of holy orders, of wills and deeds, of licenses from barons of the exchequer to compound debts, of protections to members of parliament, and of all records, was always considered as forgery, Hawk. b. 1. c. 70. s. 8, 9, 10. And where a person confined under an attachment for a contempt in a civil cause, counterfeited a discharge as from the creditor, in the original action, to the sheriff and gaoler in whose custody he was detained, by which he obtained his discharge, he was holden to be guilty of forgery, though the order was a mere nullity and the discharge under it illegal, 2 East, P. C. 862. As, therefore, every kind of writing seems on the doctrine of these cases, to be a thing in respect of which forgery, at common law, may be committed we come immediately to the cases in which the legislature has punished it with greater severity, and in far the most numerous of which it has made it capital.

of what

things for. gery may be committed by

statutes.

Records. It seems singular that the highest description of do- In respect cuments, the records of courts of justice, should not be protected with laws so severe as the lowest kind of negotiable securities. We have seen in considering larceny of these writings, that by 8 Hen. VI. c. 12. s. 13. it is felony for any clerk or other person not only to steal but to avoid" any record or parcel of a writ, return, panel, process, or warrant of attorney" of the courts of common law. This term includes every kind of alteration which affects the validity of the proceedings, whether it actually causes the judgment to be reversed, or only makes it avoidable, 3 Inst. 72. but clergy is not taken away. And we have seen that this act does not extend to judges, who are only liable to be fined under 8 Rich. II. c. 4. "for falsely entering pleas, raising rolls, or changing verdicts to the disherision of any one," ante 928*. But

Writings relating to the public funds and the stocks of public companies.

all offences of this kind, however committed, are high misdemeanors as perversion of public justice.

As soon as the national debt became so extensive, as to have for its sharers the large portion of the monied interest of the kingdom, it was thought necessary to secure the property of the holders from the depredations to which it was liable from its nature, by severe provisions. Accordingly the 8 Geo. I. c. 22. s. 1. makes it felony without benefit of clergy to forge or counterfeit any letter of attorney, or other authority or instrument to transfer, assign, [*1024] sell, or * convey any share in the stocks of public companies then established by act of parliament, or to receive any annuity or dividend from a public company, to forge the name of any proprietor of stock to such an instrument, to endeavour to procure the stock, &c. to be transferred, or the annuity or dividend received by such means, and to personate a proprietor of stock for such purposes. The provisions of this act are by 31 Geo. II. c. 22. s. 77. extended not only to all public companies established in the interim, but to all the legislature should in future sanction; and this last extension was confirmed by 4 Geo. III. c. 25. s. 15. which continued the corporation of the bank of England. Even these laws were, however, evaded; and it became necessary to provide by 33 Geo. III. c. 30. that any person who should wilfully make any transfer of interest of any kind in bank stock, annuities, or funds, not being the owner, with intent to defraud the governer and company of the bank, or any corporation or individual, s. 1.—or forge any transfer or utter when forged, with a similar intent, s. 2.—or wilfully make any false entry in the books, alter one already made or falsify accounts with such design, s. 3. should be guilty of felony without benefit of clergy. The same act punishes with transportation for seven years any person employed in the bank, who wilfully makes out and delivers a dividend warrant for more or less than the party is entitled to receive. The 9 Geo. I. c. 12. s. 4. makes it capital to forge orders for the transfer of annuities payable in the Exchequer and as any assignment or transfer of bank, South Sea, and East India stock, must be signed by the party making it, or by attornies lawfully authorized in writing under hand or seal, attested by two credible witnesses, the forging of either the name of the party himself or of witnes

ses, and the uttering or publishing any instrument so subscribed with a forged name, are by 37 Geo. III. c. 122. made felony ; but punishable only with seven years' transportation, or such lighter punishment as the court shall award. When the 35 Geo. III. c. 66. and 37 Geo. III. c. 46. made certain annuities created by the Irish parliament transferable, and the dividends on them payable at the bank of England, the forgery of receipts for subscriptions to loans and debentures, and the altering any part of them, is made capital. These statutes also re-enact the provisions of 8 Geo. I. c. 22. s. 1. and 33 Geo. III. c. 30. to which we have already alluded; they also make the forgery of dividend warrants in pursuance of their regulations, and indorsements thereon, felony without benefit of clergy. In the construction of these acts, it has been holden that a party may be indicted for forging a transfer of stock standing in the name of a person, by whom it was never accepted, and although the transfer was not attested by [*1025] two witnessses, 2 Leach, 732.: indeed it was holden that the forgery would have been complete, though no stock had ever passed to the party in whose name the defendant counterfeited the transfer, id. ibid. By 48 Geo. III. c. 1. s. 9. forging Exchequer bills is made capital: the same provision is made for counterfeiting the hand-writing of the receiver general, 46 Geo. III. c. 150. s. 110.-of the treasurer of the ordnance, 46 Geo. III. c. 45. s. 9.of the receiver general of the excise, 46 Geo. III. c. 75. s. 8.— of the receiver general of the stamp duties, 46 Geo. III. c. 76. s. 9.—of the receiver general of the post office, 46 Geo. III. c. 83. s. 9.-of the surveyor general of the forests, 46 Geo. III. c. 142. s. 14. or of their supervisors, clerks, or deputies, sufficiently authorised, to any draft, instrument, or writing whatever, in order to receive any money in the custody of the bank of England. And in all the acts for raising loans it is usual to insert a clause making it felony without benefit of clergy, to counterfeit a receipt for the payment of any part of the contributions intended, see 36 Geo. III. c. 74. s. 22. 41 Geo. III. c. 24.

of the bank

Soon after the establishment of the bank, the legislature began Notes and to protect it with peculiar care against forgery. By 8 & 9 W. III. securities c. 20. s. 36. to counterfeit the common seal of the bank, any sealed of England bank bill, or bank note, and the rasing or altering any indorsement and other

public

companies.

on them, are made felonies without benefit of clergy. (1) In the construction of the latter part of this act it has been holden, that to erase a receipt for part of the money in a bank post bill by means of a liquor is rasing an indorsement within the meaning of the legislature, 3 P. Wms. 419. 2 East P C. 882, 3. By 15 Geo. II. c. 15. s. 11. to forge any bank note, bank bill of exchange, dividend warrant, or any bond or obligation under the seal of the bank of England, or any indorsement on such instruments, and to offer such forgeries, or demand money on them knowing them to be counterfeit, are made offences of the same degree. The 11 Geo. I. c. 9. s. 6. had made the forging, altering, and erasing of any bank note or bill of any description, and the uttering, exchanging, or demanding the amount of it at the bank, felony, but not having taken away clergy, that was done by the last mentioned provision. Not only has all forgery on the bank been thus severely punished, but every act tending to it has been carefully provided for. The 13 Geo. III. c. 79. s. 1. enacts, that if any person not lawfully employed in the service of the bank, shall make or use or knowingly have in his possession, without lawful excuse, which he is compelled to establish, any frame, mould, or instrument for the making of paper with the words bank of England, visible on its substance, or make any such paper, or by any [*1026] * means procure the words to be visible on paper, he shall be guilty of a capital offence. The second section of the same act makes it a misdemeanour for any person not authorised and appointed as therein mentioned, to engrave, cut, etch, or scrape in mezzotinto, upon any plate whatever, any note or bill containing the words, "bank of England," or "bank post bill," or any words

(1) Forgery of notes of the bank of the United States, is prohibited and punished by the 18th section of the "Act to Incorporate the Subscribers to the Bank of the United States," passed April 10, 1816. Forgery of bank notes of the Incorporated Banks of the several states is punished by state laws. A false indorsement on a note of

the Bank of the United States, is not forgery under the act of congress. Such an act, by the express words of the British Statutes, made forgery; but the laws of the United States having omitted such a provision, the offence is not within the same. U. S. v. Stewart. Circuit Court United States, April Sess. 1819.