
    The State against Washington.
    
    Although the general °Ín-A <lent of this state, is not made a eapi-tal offence, by the act of assembly which authorises the issuing of the same; yet the forging a receipt on the hack of such indent, for the accruing annual interest, which appears lo he payable" from the face of it, with an intent to give the said indent currency, an<j uttering the same in order to defraud, is felony without the benefit of clerg)-, under the statute of Geo. XL c. 25. made of force in this state.
    An indictment, stating an offence against the stale, and concluding with the words cc against Sf the peace and dignity oí' the same/’ is not tauh), but good within the terms of the new constitution of X790,
    FORGERY. The indictment in this case was as fob Lws : “ The jurors of and for the district of Charleston <c “ “ 4t <c aforesaid, in the state aforesaid, on their oath, present, that John Edwards, of the city of Charleston aforesaid, Esquire, some time past was, by the legislature of the state aforesaid, appointed to, and, for some time thereafter, and before the day of taking this inquisition, acted in, the office and appointment of a commissioner of the treasury a 0f the state aforesaid, and in the said office was, by the 1 7 
      e-É legislature of the said state, entrusted with and authori-c* sed, as a commissioner of the treasury, in the power of a signing and issuing indented certificates from the said “ treasury j whereby the public treasury of the said state of u South-Carolina, is made liable, and the faith of the said a state of South-Carolina pledged, by said indented certifU “ cates, for the payment of the sums of money stipulated to t£ be paid in such indented certificates . and to receive the a same in payment for purchases of confiscated property at “ the said treasury^ And the jurors aforesaid, upon their £t oaths aforesaid, do further present, that Thomas TVal-M singham, otherwise called Thomas Welsh, otherwise called “ Thomas Wells, otherwise called Thomas Washington., late u of the state of Georgia, but now of the city of Charles- “ Ion, in the district of Charleston, and state of South-54 Carolina, on the 18th day of January, in the year of our ic Lord, 1791, with iorce and arms, at the city of Charles« w ton, in the district of Charleston, and state of South-(i Carolina aforesaid, feloniously did falsely make, forge “ and counterfeit, and also feloniously did cause and pro-cc cure to be falsely made, forged and counterfeited ; and CE feloniously also did willingly act and assist in the false making, forging and counterfeiting, a certain writing obli-4£ gatory, written and filled up by hand-writing, in a certain CE partly printed paper, called a blank indented certificate; "i and thereby purporting the same, by such writing and such filling up, in the said partly printed paper, called a ‘£ blank indented certificate aforesaid, with the printed part 41 thereof together, to be an indented certificate, commonly u called & general indent oí the said state of South-Carolina, “ and as filled up in hand-writing, at the treasury of the said H state of South-Carolina, to wit, at the city of Charleston, a in the district of Charleston, and state of South-Caru-44 Una aforesaid ; and to be issued and signed by the said John Edwards, by the name of John Edwards, as a com» rnxssioner of the treasury of the said state, pursuant u> an act of the general assembly of the said state, passed. “ the 16th day of March, in the year of our Lord, 1783, “ and thereby obliging the said commissioners of the said “ treasury, on behalf of the said state of South-Carolina, “ to pay at the said treasury, to one Thomas Reynolds, his- “ executors, administrators, or assigns, the sum of 86/. i£ 2s, Ad. on demand, for one year’s interest on the principal 11 sum of 1,230/. 5s. 8d, sterling, in part of the said writing “ obligatory, and the like interest-annually, by resolution of “ the general assembly, and the principal sum of 1,230/. 5s, 8d. sterling on the 12th day of April, 1787 ; or to re- “■ ceive the said writing obligatory, written and filled up in ££ writing, as a writing obligatory as aforesaid, in the afore-:i said partly printed paper, called a blank indented certifi-c< cate, and thereby purporting the same by such writing, u filled up and written in the said partly printed paper, to- “ gether with the printed part thereof, and signed as afore- “ said, to be an indented certificate, commonly called a ge-41 neral indent, in pa)Tnent for any purchases, he, the said “ Thomas Reynolds, his executors, administrators or as-£t signs, may make, at any public sales of confiscated pro» a perty; (except such as should be ordered by the legislature “ for special purposes ;) which last mentioned false, forged, and counterfeit writing obligatory, written and filled up 5£ in writing, as a writing obligatory as aforesaid, in the- “ aforesaid partly printed paper, called a blank indented “ certificate, and thereby purporting the same, by such ££ writing filled up and written, in the said partly printed paper, together with the printed part thereof, and signed “ as aforesaid, to be an indented certificate, commonly call» “ ed a general indent of the said state of South-Carolina a aforesaid, is in the words, figures, and cyphers following, to wit, ‘ South-Carolina. Pursuant to an act of the ge» “ neral assembly, passed the 16th of March, 1783, we, the n commissioners of the treasury, have this day delivered to 4£ Thomas Reynolds, this our indented certificate, for the sum a of 1,230/. 5s. 8d. sterling, for cattle, corn, and militia “ duty, in 1781, as per account audited. The said Thomas 
      ,;f Reynolds, his executors, administrators or assigns, will w be entitled to receive from this office, the sum of 88/. 2s. “ 4*5?. on demand, for one year’s interest, on the principal sum of 1,230/. 5s. 8d. and the like interest annually, per iC resolution of the general assembly. The said Thomas “ Reynolds, his executors, administrators or assigns, will f,‘ be entided also to receive, and shall be paid, if demand” 46 ed, the principal sum of 1,230/. 5s. 8d. sterling, on the 'A 12th day of April, 1787; and the said Thomas Reynolds, a his executors, administrators or assigns, may make any 5< purchases, at any public sales of confiscated property, (ex-a cept such as shall be ordered by the legislature for special “ purposes,) and this indent shall be received in payment. « For the true performance of the several payments in man= u ner above mentioned, the public treasury is made liable, <£ and the faith of the said state pledged by the aforesaid act. H Given under our hands and seals, at the treasury office in “ Charleston, the 12th day of April, 1785. John Edwards« e£ commissioners of the treasury. 1,230/. 5s. 8d. principal. “ 86/. 2s. Ad. annual interest. No. 1587. Exd. Book Y. “ E. A.’ which said last mentioned writing obligatory, writ” “ ten and filled up in writing, as a writing obligatory afore-w said, in the aforesaid partly printed paper, called a blank a indented certificate, together with the printed part of such “ paper, and signed as aforesaid, and thereby purporting u to be an indented certificate, commonly called a general a indent, in the said words, figures and cyphers, then did, “ and still doth import and signify, that the said cornmis- “ sioners of the treasury, on behalf of the said state of South-u Carotina., then were, and still are liable, to pay the inte» “ rest money, to wit, 86/. 2s, Ad. annually, and the said principal sum of 1,230/. 5s. 8d. sterling, to the said Tho» ££ mas Reynolds, his executors, administrators or assigns. 5t or to receive the said last mentioned writing obligatory, “ written and filled Up as a writing obligatory aforesaid, in u the aforesaid partly printed paper, called a blank indented n certificate, together with the printed part of such paper. “ and signed as aforesaid, and thereby purporting to be art “ indented certificate, commonly called a general indent, “ in payment of any purchases he, the said Thomas Rey- “ nolds, his executors, administrators or assigns, may “ make, at any sales of confiscated property ; (except such. “ as shall be ordered by the legislature for special purposes;) s‘ and which said writing obligatory, written and filled up in !t writing as a writing obligator}’, in the aforesaid partly u printed paper, called a blank indented certificate, together u with the printed part of such paper, and signed as afore- “ said, and thereby purporting, in the whole, to be an in- “ dented certificate as aforesaid, he, the said Thomas WaU iC singham, otherwise, &c. &c. &c. then and there didfelo- '£ niously and falsely make, forge and counterfeit; and did M also cause and procure to be falsely made, forged and coun- “ terfeited ; and also did willingly act and assist in the false “ making, forging and counterfeiting the same,' with an in-a teution to defraud the said John Edwards, andthe commis-u sioners of the treasury of the state aforesaid, and the said 51 state of South-Carolina, against the form of the act of the 54 general assembly of force in the state of South-Carolina, “ and in such case made and provided, and against the peace “ and dignity of the same state.”
    
    The second count charges, “ That the said Thomas Wal- “ singham, otherwise, &c, &c. &c. afterwards, to wit, on “ tire 18th day of January, 1791, with force and arms, “ &c. feloniously did utter, and publish as true, a certain u false, forged, and counterfeited writing obligatory, writ-41 ten and filled up as a writing obligatory, in a certain part- “ printed paper, called a blank indented certificate, toge- “ thcr with the printed part of such paper, and thereby, in “ the whole, purporting to be an indented certificate, com-s‘ monly called a general indent of the said state of South- “ Carolina, and to be issued and signed by the aforesaid John Edwards, formerly one of the commissioners of ‘‘ the said treasury of the state of South-Carolina, by the 15 name of John Edwards, as a commissioner of the t.rea« sury, and entrusted by the said cíate, for issuing indent» u ed certificates of the said state from the treasury, where-46 by the said treasury is made liable, and the public iaith is a pledged, for payment of the sums stipulated to be paid “ in such certificates, and as one of the said commission» ers, and pursuant to an act of the general assembly of the “ said state, passed the 16th day of March, 1783 ; which “ said last mentioned false, forged, and counterfeit writing “ obligatory, written and filled up, fee. is in the words, u figures, and cyphers following, to wit, (here the indent in» “ serted verbatim as before,) which said false, forged, and 56 counterfeit, &c. the said Thomas TValsingham, otherwise, “ &c. &c. Skc. did utter and publish as true, with an inten-u iion to defraud one folia David Vale, of the city of Charles» “ ton aforesaid, merchant; he, the said Thomas Waking-a ham, otherwise, &c. ike. ike. at the time of uttering and ee publishing, &c. &c« then and there well knowing the same 46 to be false, forged, and counterfeited, against the form K of the act,” &c. ('concluding as before.)
    The third count was in these words “ And the jurors 56 aforesaid, upon their oaths aforesaid, do further present, u that the said Thomas Walsingham, otherwise, &c. &c. ike. 51 on the 18th day of famiary, 1791, with force and arms, “ at, &c. &c„ feloniously did falsely make, forge, and coun- “ terfeit ¡ and feloniously did falsely procure to be made, “ forged, and counterfeited ; and feloniously did willingly il act and assist, in the false making, forging, and counter» “ feiting, a certain acquittance and receipt for money, on a 9‘ certain paper, purporting to be an obligation, called an i£ indent, for payment of money, and for the sum of 172/. “ 4s. 8d. and as signed by one Thomas Reynolds, being dou» 46 ble the amount of 86/. 2s. 4d. and subscribed with the a name of Thomas Reynolds; which said false, fio}jgtd,,and 46 counterfeit acquittance, and receipt formoney, in wrlthis*. M on the paper alores aid,is in the words and figures following, * to wit, ‘ Received 14th October, 1785, two years interest on 86/. 2s. 4d.
    
    s the within indent. Thomas Reynolds* 864 2s. 4dT 
      “ With an Intention to defraud the said Thomas Reynolds, “ against the form,” &c. (concluding as before.)
    The fourth count was, “ For uttering as true, the said “ last mentioned false, forged, and counterfeited acquittance “ and receipt for money, with an intention to defraud the iC said John David Vale, well knowing, &c. &c. against the “ form,” &c. (concluding as before.)
    The fifth count was like the third, only setting forth another false,forged,and counterfeitedreceiptfor money, in these words : “ Received 8th February, 1788, two years’ interest
    86/. 2s. 4d.
    
    
      u Benjamin Lee. 86/. 2s. 4d.n With an intention to defraud the said Benjamin Lee, (concluding as before.)
    The sixth count was like the fourth, only charging, that he littered., Eke. the false, Eke. acquittance and receipt mentioned in the last count, with an intention to defraud the said John David Vale, (concluding as before.)
    The seventh count was like the third and fifth, only setting forth another false, &c. acquittance and receipt, in these words : “ Received 6th August, 1789, two years’ interest to • 86/. 2s. 4d.
    
    “ 1st Aprilh&t. John Hill. 86/. 2s. 4d.n With an intention to defraud the said John Hill, (concluding as beforeJ
    
    The eighth count was like the fourth and sixth, only-charging, that he uttered, &c. the false, &c. acquittance and receipt mentioned in the last count, with an intention to defraud the said John David Vale, (concluding as before.)
    The ninth count was like the second, only that it charged the uttering and publishing the aforesaid false, forged, and counterfeited writing obligatory, with an intention to defraud the aforesaid John/Edwards, and the commissioners of the treasury aforesaid, (concluding as before.)
    The tenth count was for uttering as true, the acquittance and receipt mentioned in the third count, with intention to defraud the said Thomas Reynolds, (concluding as before.')
    
    
      
      Jf. B. The Chief Justice and Mr. Justice Btaty took their seats on the bench this day, for the fin-t time after-their appointment.
    The eleventh was a similar count, upon the acquittance and receipt set forth in the fifth count, with intention to defraud the said Benjamin Lee, (concluding as before.)
    The twelfth, and last count, was like the two last, only upon the acquittance and receipt set forth in the seventh count, with intention to defraud the said John Hill., (concluding as before.)
    To the foregoing indictment the prisoner pleaded not guilty, and put himself upon his country, <kc.
    After a deliberate, lengthy, and impartial trial, the jury-brought in their verdict, “ guilty.”
    
      Holmes then gave notice to the attorney-general, that he intended to move in arrest of judgment.
    And now, on Wednesday, the 9th of March, li'91, the prisoner was brought again to the bar ; (present, his honour the Chief Justice, Mr. Justice Grimke, and Mr. Justice Bay;) and being asked, in the common form, what he had to offer why judgment should not be passed against him,
    
      Holmes rose, and stated the following grounds, in arrest of judgment, viz.
    1. That the indictment is faulty, and defective. 1. Because it concludes “ against the peace and dignity of the. ie same state ;n the word a state” being wrongly added, and not in the constitution. 2. Because it charges, that “ John w Edwards, late treasurer,” &c. instead of “ John Edwards, a treasurer at the time the indent was issued
    
    2. That the indent issued by one treasurer, was not legally issued, nor such an indent as the law prescribed to be issued ; and is so far illegal that no criminal prosecution can be grounded upon it.
    3. That the writing, which was forged, was not a xvriting obligatory, as charged in the indictment ; not such an one as comes within the act.
    
    
      4. That the acquittances and receipts, charged in the indictment, are none of them such as come within the act.
    
    Upon these grounds he moved, in behalf of the prisoner, that the judgment be arrested.
    Lowndes, for the prisoner.
    We cannot now deny the guilt of the prisoner at the bar, he having been found guilty by a jury ; we can only contend that his guilt is not comprehended within the act under which he has been indicted» In cases like this, where life is concerned, the court will be exceedingly cautious of enlarging or extending by construction. No regard will be had to the turpitude of the guilty,provided it is not a capital crime ; for it is to be remembered, that the law is to act upon offences, and not upon offenders. Though the laws of Sylln and Lcesar were of the latter kind, and have properly been said to have been written in characters of blood, they were made to answer the purposes of tyranny and ambition, and can form no proper precedent in a free country, which boasts of its citizens being .liable to no punishment which is not, together with the crime, properly and legally defined.
    The indictment suggests the following heads, under which I shall arrange my arguments. It charges the prisoner in a two-fold form: 1. For counterfeiting the indent; and, 2. For counterfeiting the receipts. It is a general rule, and a good one, that where a statute uses an expression, known at common law, it shall be taken in the same sense it was known to have at the common law. The clause of the statute, under which this indictment is framed, uses the words “ writing obligatory and these words are chosen, on the present occasion, to signify an indent which is not under seal. In 3 Bac. Abr, 690. this term is defined and explained. It is there laid down to be an instrument under seal; a seal is held to be necessary in the formation of ifc-if this be the legal signification, the court will not resort to common acceptation in a case so highly penal. Had the legislature intended that the words “ writing obligatory” should have been so comprehensive, why did they add the long list of other words in the same clause ? They might all have been as well comprehended under the general terms. A bill of exchange is as mad a writing obligatory as an indent, in this enlarged acceptation. He cited 4 Black, Com. 247. and 1 Hawk. P. C. 186. In the latter, the difference taken between statute merchant and statute staple, is, that the former is raider the seal of the party, and the latter not; (having only the seal of the staple ;) and, therefore, that the former is within the statute, w as being obligations” but the latter is not. Why was it deemed necessary, by the legislature, to pass acts making it felony to counterfeit the state money ? They are bills of credit — -they are writings obligatory as much as indents- — they are receivable at the treasury, yet the legislature must have thought that, otherwise it would not be felony to counterfeit them. So, also, they were obliged to pass a law to make it felony to counterfeit the existing certificates of the state, in the year 1776. (Pub. Laws, 283.) This shews that there had been an omission in the laws before, yet the present statute was then in force. The number of acts lately' passed in England, providing against the counterfeiting of particular papers, shew, that the parliament did not think the statute of 2 Geo. II. (from which ours is copied,) would comprehend'them ; and, yet, many of those were as much writings obligatory as our indents. Thus, in the opinion of our own legislature, and of the parliament of Great Britain, those words are not so comprehensive as Mr. Attorney-General would contend. The statute of Edw. VI. against stealing horses, was held not to extend to him. who stole a horse. So the stat. of George, about stealing cattle, was obliged to be amended afterwards. 1 Black. Com. 88. This shews how cautious tbe law is, not to enlarge, by construction, the meaning of an act which is so highly penal.
    
      2. The next subject of the indictment is the receipts in» dorsed upon the indent. These are said to be counterfeited with intention to defraud several. But whom can they defraud ? Not the public; because they went to discharge and not to charge them. Say, then, it was the party who held the indent; but it came into his hands with the receipts upon it. The law intended such a fraud as went to devest some person of an existing right. If it be said that it was a fraud because it gave a specious fairness to the indent itself; I reply, that if the indent be no forgery within the act, the-receipts cannot be so. For, considered apart from the indent, they are but an idle, unmeaning shred of paper. If considered conjunctively, it would be to derive a crime from a principal matter which is no crime in itself; a method which, in a capital case, can never be admitted. Wherever any receipt or acquittance has been adjudged to be within the statute, it has uniformly been where such receipt could stand alone, and work its mischief by itself; according to the cases in 1 Piale, P. C. 683. “ If A. make a deed,” &c. and ibid. 685. “ If A. writes a letter,” &c. Upon the whole, therefore, as the indent is no writing obligatory, criminal as it may be to forge it, such forging cannot be felony under this act ; and, as the receipts, considered in themselves, (and they must be so considered,) have^no meaning, and, of course, can effect a fraud upon no one, the judgment upon this indictment must lie arrested.
    
      Hall, for the prisoner,
    laid down the following grounds : First, that this is no indent in law. Secondly, that it is no writing obligatory. Thirdly, that the acquittances and receipts are not such as come within the act. And, fourthly, that the indictment is faulty in its conclusion.
    J. 1'he act of assembly, which prescribes that indents shall be issued, (Pub. Laws, 322.) says, the commissioners shall give a treasury indent. The indent in question was signed by one treasurer only. As the act against forgery is • highly penal, it ought not to be extended, by construction. It is a rule in law, that all dele gated powers must be pursued strictly. Many cases to this point. 8 Mod. 304, If process be directed to the sheriffs of London, and one dies, the process is gone. Same doctrine in Cowp. 26. Rex v. Crake,, It will be asked, are all the indents of the state, therefore, void, because one commissioner only has signed them r Admit they were so ; the life of the prisoner is paramount to that consideration. But it is quite unnecessary, now, to decide the question in a civil view. It may be said, too, that this forgery is as dangerous, and destructive, as if it were a regular indent. No matter for that. The act is express. Penal statutes are to be construed strictly. 1 Black. Com. 88. Counterfeiting the great seal is felony; yet, to take it oif from one patent and affix it to another, purporting to be a grant of the king, is no counterfeiting.' 3 P. Wms. 431.
    2. But even if it be ruled to a be good indent, still it is no writing obligatory. It requires a seal. 1 Inst. If2. Jacoby tit.- Obligor, where the import of the word is laid down. If a writing obligatory could be without seal, why need the act to have enumerated a promissory note ; it being equally a writing obligatory. It appears from 4 Blac. 249. that the stat. 2 Geo. II. c. 25. did not extend to him who forged an acceptance of a bill of exchange. It is veiy manifest, that the legislature, in 1737, could never have had indents in view ; they were neither in existence, nor in contemplation. It has often been held, that new games which have been invented, are not within prior statutes. The legislature of Great Britain were obliged to pass a special act, making it felony to counterfeit East-India bonds, though they were writings obligatory. 4 Blac. Com. 248. If the legislature thought that the bills of credit, issued by the state, were writings obligatory, and within the act, why need they, in the year 1776, have passed an act making it felony to counterfeit them ? The same may be said of the present paper medium.
    3. This is not a receipt within the act. If the indent itself was not good, the receipt must fall with it. The receipt could not be intended to defraud any person ¿ it could tend only to the disadvantage of him who made it.. There is a case in LeaclCs Crozvn Law, p. 9. (RussePs case,) where a man was indicted for forging an acquittance and receipt. It is a more regular receipt than the one on the back of this indent; yet he was acquitted, by reason of the uncertainty and vagueness of the receipt. But the receipt in the present case, was not a receipt for money, which the act requires: no money is ever appropriated by law, or paid for the inte» rest upon general indents ; it is paid by special indents, issued for the express purpose. But if bank bills have been adjudged not to be money, surely special indents are not money.
    4. The indictment is faulty. Precision and certainty are always requisite, in order that a prisoner may know how to make his defence, and that he may not be liable to be brought twice into jeopardy for the same offence. The constitution has prescribed a form in which the indictment shall conclude ; that form has been deviated from ; and this vitiates the whole indictment. It also alleges, that John Edwards, “ late commissioner of the treasury,” issued it, instead of u commissioner at the time the indent was is- “ sued for he might lately have been treasurer, and yet not have been so, at the time of the issuing of that indent.
    Holmes, for the prisoner.
    I shall proceed in this case according to the method first laid down. The first exception is, that the indictment is faulty in the conclusion, as it concludes “ against the peace and dignity of the same “ state whereas the constitution prescribes that it should conclude “ against the peace, and dignity of the same.” It may perhaps be said, and I will for the present admit, that in England,, the word “ slatef would be rejected as surplusage. But .still I contend, that had the form been prescribed by an act of parliament, they would not have rejected any word, as the deviation would have been fatal. A fortiori, when the form of an indictment is prescribed by our constitution, which is the highest authority, 
      the government knows the court must be bound implicitly to follow it.
    Another objection is, that the indictment states the indent to have been made by John Edwards, “ late treasu» ¿í ter J whereas it ought to have said, “ treasurer at the a time of issuing the indent.” It may be alleged, that this is plainly obvious from the face of the indent; but no circumlocution, no latitude of intendment, ought to be admitted in a case like this. In the case of Hex v. Knight, Salk. 375. Ld. Raym. 527. nuper receptor was held not to mean king’s receiver, at the time of the indorsement.
    These grounds, however valid,' are inferior to those which remain, and to which I shall now proceed j fully persuaded, that upon investigation, they will be found abundantly formidable, if not ultimately fatal to this indictment.
    2. The indent issued by one treasurer was illegally issued, and was not such an indent as the law prescribed and required; and, of course, no criminal prosecution can be grounded upon it. The body of the indent purports to be issued under the act of the 16th of March ; the indictment charges it so ; and we are therefore precluded from saying any thing about the act of the 12th of March; no arguments are to be drawn from it. The act says, “ the com-. a missioners shall give a treasury indent,” &c., It is impossible to understand this in any other sense than that “ the a commissioners shall sign,” See. The treasurers so understood it themselves; accordingly they framed the indent, beginning “ We, the commissioners,” &c. yet, with a strange inconsistency, only one commissioner signed the indent. The want of two commissioners signing the instrument, would have rendered it incomplete even in a civil suit; two persons cannot be j ointly charged, where one only signs a bond or note, though it run in the name of both. It is true, the plaintiff might have had relief in equity; but this very circumstance would prove its inadequacy in a court of Jaw. Shall it then be said, that in a criminal prosecution. for a capital offence, that it shall be sufficiently formal to take away .life, when it could not have borne a civil suit ? that less certainty, less formality, is requisite in a criminal, than in a civil procedure ? The very reverse of this is the uniform and humane doctrine of the law. In the case of Rex v. Moffatt, Leech, 368. it is decided, upon mature deliberation, that as the bill of exchange, if real, could not have leen valid or negotiable, the forging of it-was not a capital offence. [Here Mr. Holmes took up, and answered at length, several cases cited by Mr. Attorney-General, at the trial, and which he supposed would again be cited on the present occasion, viz. Ann Lewis’s case, Foster, 116. Logan’s case, Leech, 389. and John Sterling’s casé, Leech, 103.] Upon the whole, he concluded, that the indent was not such a one as the act prescribed, being signed only by one commissioner of the treasury. That it was not, therefore, a valid indent, and, of course, the forging of it was not a capital offence. He then proceeded.
    3. The third general ground,, and one on which I chiefly rely is, that the indent charged to be forged, under the name of a writing obligatory, is not a writing obligatory, in the meaning of the act against forgery ; and of consequence, does not come within the act. I premise that there is no distinction, and the gentlemen for the state will not be able to shew any, in law, between a writing obligatory, and an obligation. The terms, in the understanding of law, mean precisely the same thing. Every term must be taken, and explained according to the learned in the art to which it relates, and when a statute uses a term or phrase, known at common law, it shall be taken and understood in the common law sense. These positions I need not prove ; they are familiar to the court, and are always recognised in legal discussions. Let us then try the question by these rules. It is clear, in the first place, that the terms “ writing obliga- “ tory,” cannot intend a moral obligation / itmust, therefore, be understood to mean a legal obligation; what the law denominates such, not what may be implied in vulgar parlance» It is essential, then, to a legal obligation, or what the law calls sometimes by that name, but more frequently by the term “ writing obligator}’,” that it be underhand and seal. This is laid down in every law book, ancient and modern. I will cite a few, as specimens of the whole : 1 Wood’s Convey. 767. 1 Hazuk. P. C. 188. 1 Wood’s Convey. 766. 3 Inst. 171. and 2 i?«c. Abr. 57-1. The reason why a statute merchant is forgeable under the act, and a statute staple is not, is laid down to be, that the former is under the seal of the party, and the latter is not. ('See pari;■* cularly the case above cited from. Hawkins.') In Leech, S6» Dick’s case, the twelve judges of England were divided whether a Scotch bank bill came under these words ; and the prisoner was discharged upon the royal pardon. If this last case forms no authority in favour of the argument, it is equally true, that it furnishes nothing against it. From the whole tenor of all the authorities, therefore, it is maní-, fest, that writing obligatory means an instrument under seal. The indents were not under seal, and therefore they come not under the description in this indictment. I will now proceed to shew, that the court can indulge no latitude of construction, nor call in the aid of intendment, to sup* port the indictment; but that it must be so legally explicit as to support itself. Dangerous indeed would be the principle, if once adopted, that the court may, in doubtful cases, wander into the fields of imagination, and gather up remote intendments, implications, and inferences, to sustain a prose, cution, where life is concerned in the event. It is a principle which this court, I am sure, would veiy cautiously, if not very unwillingly exercise, but which the law, for the wisest reasons, has committed to the breast of no tribunal. Lord Mansfield says, in so many words, “ that an indict-H ment must be explicit enough to support itself.” In Leech, 377. Sea’s case, a man was indicted for stealing a great coat out of a coach-house, which the coachman had hung up there. The stat. 11 Wm. excludes from the benefit of clergy, “ those who shall in any shop, warehouse, coach-. 
      “ house, or stable, privately and feloniously steal any goods, “ wares, or merchandises, of the value of 5s.” Upon this statute he was indicted; and it having been uniformly held, that the goods stolen must be such as are proper to, and are usually kept in the respective places which the act describes, this great coat was held not to come within the act, and the prisoner was acquitted. \_Mr. Holmes then proceeded to cite and comment largely upon the following cases, in support of this doctrine, viz. Lyon's case, Leech, 190. Ellor’s case, id. 299. Thompson’s case, id. 309. Aickle’s case, id. 378. Cook’s case, id. 109. Woolridge’s case, id. 281. Far ley’s case, id. 75. (also 2 Blue. Rep. 682.) Greeks case, id. 432. Morris’s case, id. 403,404.408. Skutt’s case, id. 110.] There are various acts of parliament, he farther observed, which have been successively made, enumerating different subjects of forgery, many of which might as well have come under the denomination of writings obligatory, as that which is now attempted to be brought within it. 4 Blac. Com. 247. 250. This shews incontrovertibly, that the stat. of Geo. II. from which ours is copied, hath not been deemed so general and comprehensive, as is now contended. Inferences equally strong may be drawn from many of our own acts of assembly ; for they have from time to time enumerated particulars : tobacco notes, paper medium, bills, special indents, &c. these were as much writings obligatory as the general indents.
    4. The acquittance and receipt, indorsed upon the indent, is not such as comes under the act. 1. It is not a receipt for money; the interest of the general, being paid by special indents; and that by the positive institution of the law itself. Neither is money or goods mentioned in the receipt % but even if goods were mentioned, they are not charged in the indictment. The receipt, therefore, instead of being for money, was for special indents. This receipt must be taken and considered, either as connected with, or distinct from the principal indent itself. If it depends on the indent, and as I have already shewn, that was void in itself, or is insufficiently described in the indictment, (he receipt must fall with it. If the receipt be considered b}r iisdt’, it has neither meaning nor tendency, and mast fall by reason of its own insignificancy. But here I shall, perhaps, be met by an objection, upon which some stress will be luid : these receipts were calculated, and had a tendency to give more plausibility to the principal forgery, the indent itself. But if the indent is not a writing oblgatory, it is no forgery under this indictment: it can reflect no properties upon any thing else, which itself does not possess. All the counts are separate and independent ; they must stand or fall by their own intrinsic qualities ; they cannot borrow from one another ; and at all events, one bad one cannot supply the defect of another. But it is also laid in the indictment, to Stave been done with an intention to defraud several persons. In whatever point of view it be considered, it could tend to the injury of no person, but him to whom the indent be-? longed at the time of the alteration. Could it defraud the men whose names were mentioned or subscribed to the receipts 1 No: for they had successively parted with their property in the indent. It had passed them in the course of transfer; it went therefore neither to charge them with the payment of any money, nor to diminish any sums they might be entitled to receive. Could it injure John D, Vale ? No : for he paid no money for the ¿sums mentioned in the receipts, but for the balance due upon the indent, after deducting the receipts. Could it injure John Edwards ? No ; for he, as John Edwards, was never liable to pay the indent. Could it injure the state ? No; for it went to exonerate ^ and not to charge the cíate. The debt due from them upon the face of the indent, was diminished by the amount of the receipts upon the back of it. Nay, the whole transaction has operated to the benefit of the state ; for the indent, which was at first good for a small sum, by-being thus altered, has become void even for that. If it injured any one, therefore, it was the person who held the indent at the time of die forgery. But if no person is hurt, but the person doing the act, it is no forgery» Forge» ry is where a person fraudulently makes and publishes false writings, to the prejudice of another marts right. Salk. 375, Ld. Raym. 787.
    Lastly. The uncertainty how this receipt could operate, prevents its being within the act. RusselPs case, in Leech, p. 9. was an instance, where the prisoner was discharged, because the acquittance or receipt was “ a confused memo. “ randum, the import of which it was impossible to collect “with precise certainty.” Upon the whole, therefore,how criminal soever the prisoner at the bar may have been; how much soever the public mind may be outraged by his proceedings ; neither his baseness, nor their irritation, can change the law; neither can they subvert those salutary principles which its cooler wisdom has prescribed, for the equal safety of all men. And the law having declared, that •where the offence is indeterminate or imperfectly described, it cannot bring its penalties to bear upon the offender; I trust that, in this instance, the judgment will be arrested.
    Read, for the state.
    In compliance with a request which had been made to me, to assist the honourable gentleman who prosecutes for the state, I shall endeavour to answer the arguments of the prisoner’s counsel; in doing which, I shall pursue the same method which they adopted. And though njany of the arguments, at first sight, carry with them a considerable degree of plausibility, yet, unfortunately for the prisoner, they vanish upon a nearer view, and, ultimately, they admit of such complete answers, as will destroy the grounds on which he hopes for a discharge from this prosecution. The first objection is, that the indictment itself is defective ; we must inquire what an indictment is, and what are its leading properties. Of the former, we have an account in 4 Black. Corn* 302. and of the latter, in 306. “ They must have a precise and sufficient £i certaintyand again, “ The offence itself must be set S£ forth with clearness and certainty.” I will apply this doctrine to the case before the court. It is plain, in the first place, that it is not inconsiderable slips, or minute omissions that will vitiate, provided the offence be described. The concluding words in the indictment were first objected to. (The court stopped CoL Read on this part. Tit. Chief Justice. Our minds are made up upon that part; clearly the conclusion is right, and pursues the constitution. Had the indictment stopped at the word “same,” as the prisoner’s counsel contend, it would have made nonsense, for the immediate antecedent is, “ the act of the general assembly f and the indictment would, in such case, have concluded, not against the peace and dignity of the state, which the constitution requires, but against the peace and dignity of the act of the general assembly, The addition of the word. “ state,” therefore, was necessary.)
    
      Read proceeded. The second objection under the first ground was, that the indictment states the indent to have been issued by John Edwards, “ late treasurer,” instead of a treasurer at the time the indent was issued.” This objection would have come with considerable force, had the present been an indictment against John Edwards, for malfeasance in office. It would then have been apposite j the indictment must indeed have stated expressly that he was treasurer, or in office, at the time of the offence; because, as treasurer, he would have been accused ; and the fact of nis being treasurer, being a part of the gist of the crime, it must be “ clearly and certainly” set forth. With this distinction, let us enter into the case of Rex v. Knight and Burton, Ld. Satjm. 527. which has been, relied upon for the prisoner. Knight was charged as {v nuper receptor gene« “ ralis custuniarunif Lite receiver of the general customs ; and, as such, falsely indorsed several exchequer bills. Here the exception was taken, that the defendant was charged as 
      late receiver, instead of receiver at the time of making the false indorsement, &c. and the judgment was arrested. But here, as I have just observed, the indictment was against the officer himself for a malfeasance in office. It charged him with a particular offence in office, without alleging that he was an officer at the time. It was quite unlike the present case. In the one, it was essential; in the other, it was in» ducement. This distinction destroys the force of that case, and with it, the objection that has been made on the present occasion.
    2. That the indent was issued by one treasurer only. By recurring to the act, under which the indents were issued, we find nothing to warrant this exception. “ The treasu- “ rers shall givcf &c. What does this mean ? Why, that the treasurers shall deliver forth the engagements of the' state. It does not say, nor imply, that both shall sign; nay, it does not say that cither shall sign. Now, who can say that this indent was not delivered forth by both ? The con» trary does not appear. But I contend, that one was sufficient. What were the reasons for having two treasurers l Not surely, that both might be constantly employed in the same act. It would be unnecessary and absurd. Suppose one of them should be gone into the country for a few days, or be sick and unable to attend, must the public business stop for that reason ? Surely not. On the contrary, it is to provide for the more easy and more certain despatch of the business of so extensive a department, that two persons are appointed. Had this been a new offence, created by statute, (and not known at common law,) where greater precision is requisite, the objection might have had more force. But this incident is clearly warranted by law. It is in the common form in which indents are issued and known j the public consider them valid, by receiving them; the state, l>3r providing for their payment ; and the law, by re-cognising them in various acts, which have subsequently been passed relative to them. They are, therefore, a legal subject of forgery.
    
      3. I allege, that this Indent is a writing obligatory. In 2 Black. Com. £11. debts due by statute are anterior to all others — -anterior to bonds. Certainly they must be considered so in criminal as well as civil cases. It is a writing obligatory in another view. It is the engagement of the state under seal. I say under seal 5 for the seal of the state is affixed to the act under which they are issued. It is' the only way in which the state can make a writing obligatory. They must pass an act, and ratify it with their seal. Upon this indent the state may be sued under the federal government. I say, that debt only would lie in such case, in which they would be charged under their own seal. But the jury have saved much argument, by finding it to be a writing obligatory ; we cannot now contradict the finding of the jury. An argument has been drawn from the act of the 26th of March, 1784. In 1785, the legislature found that the special indents were not protected by law ; they passed a clause in the tax law, making it felony to counterfeit them. This they pursued in the subsequent tax bills. Why did they not provide for the general indents in like manner ? Were they not aware that the latter were equally liable to be forged ? Or, were they objects of less consequence ? No ; but they knew that the general indents were provided for, and protected by the general law. This was a silent legislative con. struction of the law before the court, and ought to have great weight. It is true, the paper currency and tobacco notes have been specifically mentioned; but this does net invalidate the answer already given. It is clearly a writing obligatory; because it is written; imports an obligation upon the face of it, binding the state for the payment of money , and draws its force and efficacy from the seal of the state. An action of debt would lie upon it, and the general issue would be non est factum.
    4. I come now to the fouith ground — upon the receipts. The gentleman in behalf of the prisoner argued from the case in Ld. Raym. 527. that if the forgery could injure no one but the parly himself, it is no crime. The case before-the court essentially differs from that case, as I have already shewn in one instance, and as I will now shew in another. There it was a forgery of an acquittance upon the back of a valid writing; here it was upon the back of a forged one ; not indeed to exonerate, but to give force and efficacy, plausibility and success, to the forgery itself. It is said that this indent is no forgery within the act; I trust I have shewn that the indent is a forgery within the act. But I allege that a derivative may sometimes be the greatest crime ; it often stands so related to the principal, as to give effect to both. The principal may be that which directly does the injury, provided it be successful; the a ttendant may be that which gives the success. It was so in the present case. If it be alleged, that the names subscribed to the several receipts, are fictitious ones, still the crime is not lessened; for Ann Lewis’s case, in Foster, 116. furnishes an answer. There she had been indicted for feloniously uttering and publishing a counterfeit deed, purporting tobe a power of attorney, from Elizabeth Tingle, &c. It appeared that no such person as Elizabeth 7 ingle was ever in rerum natura. Upon this a doubt arose, under the words of Lord Coke, viz. “ That the act must be done in the name of another “ person.” But upon full consideration, the judgment was given against the prisoner. In a late case in England, it has been laid down, that the intent to defraud is the chief ingredient in forgery. (Read had a note of that case published in a newspaper, but the court inclined that it would be improperly read as an authority.) The case cited by the gentleman for the prisoner, from Leech, 277. Sea,s case, cannot be law; it is repugnant to common- sense, that because a great coat was not usually deposited in a coach-house, it did not come within the act, the words of which are general. It is a forced construction; and one of that kind does more injury, by tempting to the hopes of impunity, than twenty pardons for capital offences. [Here he took up the cases cited from Leech, and went through them minutely; distinguishing them from the case before the court, and shewing them not to apply.] Another ground taken by the counsel for the prisoner is, that the receipts •were not for money ; but that they are for special indents. It is now too late to controvert that fact. It is fully charged In the indictment to be for money, and the jury have found It so. Wo cannot travel out of the record ; we must take the verdict to be true. But it has also been argued, that no one was injured or defrauded: I answer, John David Vale was both defrauded and injured. The whole transaction went to work a fraud and injury upon him. He bought the forged indent, and must now lose the money he paid for it. I had almost forgotten to answer the case in Leech, 368. Moffat?s case. There he had forged an inland bill of exchange, which bill was not drawn in the form prescribed by the act of parliament, and it was therefore held to be no capital offence. This case %vas much relied upon ; hut it is to be observed, that an act of parliament had made all bills not drawn in that form void. But has any act of assembly declared our indents wid, because one treasurer only had signed them ? By no means ; but the very reverse. The legislature has recognised them in various acts. Amongst otliers, they have enacted, that the holders shall not be allowed, in the courts of the state, to set them up in discount, where they were prosecuted for taxes. Surely if the indents were void in themselves, such an interference would have been quite unnecessary. Every act which appointed special indents to be issued, for payment of the interest arising upon the general indents, is a legislative confirmation of the latter, and forms an insuperable barrier against the argument drawn from the circumstance of their being signed by one treasurer only. Thus, then, notwithstanding the learning, ingenuity and eloquence, which have been employed in behalf of the unfortunate prisoner at the bar; close and subtile as the reasoning and distinctions have been, he cannot be screened from that sentence which the law has affixed to his crime. The crime is amply and aptly charged in the indictment; the jury have brought it home to him by a general verdict of “ guilty.” That ver» diet cures most of the exceptions taken, even if they were ,. , T . ,. , , . . ' . valid. It convicts him, amongst other things, ox gorging uttering an acquittance and receipt for money, with in-* tention to defraud John D. Vale. This, of itself, would be' enough to subject him to the penalties of the law ; to preclude all hopes of escape, by the aid of legal exception.
    Moultrie, attorney-general.
    This case has already been so well argued, and the objections on behalf of the prisoner so ably and satisfactorily answered, that I shall just touch some of them, and, in general, add a few observations and some additional cases. 1. The first subdivision under the first general ground has been overruled. 2. That the indent was issued by John Edwards, late treasurer. The indictment recites the commission, alleges that John Edwards was entrusted to sign and issue indents, and that die state was bound for the payment of the money. If we can prove-that he was so authorised and entrusted, the time when is immaterial, provided also we can prove that an indent, issued and signed by him, has been forged. This is laid in the indictment, and found by the jury. If John Edwards were not treasurer at the time of issuing the indent, it would have been a proper ground before the jury, who would have inquired into the fact. But, under the verdict, that fact is now to be intended ; the verdict cures the defect, if this waá one ; though it has been full}1- shewn to be sufficiently explicit.
    2. The second general ground is, that the indent is not regularly issued ; inasmuch as that one treasurer only signed it, when the law delegated that authority to both. We must recur to the acts under which the indents were issued. The first act was of the 12th of March, 1783, and gives the power to “ the commissioners of the treasury, or either of them? Thé next act was of the 16th of March, 1783 ; but does this second act contravene the former ? It says, indeed, that “ the commissioners shall give such creditor a treasury “ indent.” But this was not delegating a new power. The-ü'easurei s. “ or either” of them, possessed the power under an act passed four days before. If this latter act gave the original power of itself, then it might with some shadow of plausibility be argued, that it was joint and not several. But they possessed the power jointly and severally, under the former act: and the only question is, whether the, words of the latter, by re-enacting one part of the former, impliedly (for it cannot be contended that it expressly) repealed- the other ? Surely not; for the words are not con-* trary or repugnant; and the rule is “ leges posteriores priores u contrarias abrogante 1 Black» Com. 89. And the learned judge expounds it thus, “ But this is to be understood only when the latter statute is couched in negative terms; or where its matter is so clearly repugnant, that it necessarily implies a negative. Now apply this doctrine : 1. There are no negative words in the latter statute, so it comes not within the first branch of the definition. 2. The matter is not at all repugnant; for it is very consistent that two persons or agents should have powers jointly and severally, td act in their office or agency. It is the most common method of giving powers. And, 3. The words are so far from being so repugnant, as necessarily to imply a negative; they are so fully consistent, that it is impossible to imply one<, It has been said, that the indents began “ We, the commissioners,” &c. Granted. But did either of the acts prescribe any form l No % it left that part to the discretion oF the treasurers; and their agreeing to, and adopting a partis• cular form, does not govern the law. But admitting for & moment, all that is contended on this point, I deny the inference» I contend, that if the indent were even illegal, by reason of its being signed by one treasurer only ; still it is forgery under the act, to counterfeit such indent, if it purported on its face to be good, and was generally received as such. I prove it from Stirling’s case, Leech, lu3. He had been convicted for forging the last will and testament of Jjiizabeth Shutter ; in which he had devised and bequeathed to himself 3501. South Sea annuities ¡, himself named sole executoi-. He proved the will, by taking the usual oaths before the surrogate. He took the probate, and entered it at the South Sea House: and afterwards sold out 350/. stock. The supposed testatrix was herself produced at the trial as a witness, who swore, that neither the will, nor the hand-writing, was her’s. The doubt was, whether, as the supposed testatrix was living, the prisoner could be said to have forged her last will and testament, as the law knows of no such instrument until after the death of the person making it. But the court determined, “ that an instrument may “ be the subject of forgery, although, in fact, it should ap- “ pear impossible for such a one to exist; provided the in» “ strument purports on the face of it, to be good and valid, “ as to the purposes for which it toas intended to be made.” The prisoner received sentence of death. The case cited for the prisoner, from Leech, 368. ('Mojfatt's case,) does not apply. There a statute prescribed and required a particular form for an inland bill of exchange. But the law has prescribed no particular form for the indents; it left that matter to the discretion of the commissioners of the treasury.
    3. The import of the word “ obligation,” has been much dwelt upon. But this word is neither found in the statute, nor implied in the indictment; “ writing obligatory” is the phrase. Now what is the meaning of these words ? The Word “ writing,” is a noun-substantive ; a general term expressing something that is written, but indicating nothing in particular. “ Obligatory” is an adjective, descriptive of its quality. Now no one can say, that an indent is not a writing; and it is obligatory, because it obliges the treasurers of the state to pay the money stipulated therein. It imposes an obligation upon the state to receive it in payment at the treasury. It creates a public debt; it imposes a public obligation. The whole object of the statute of 5 of Eliz. relates to lands ; the case cited from Haxvk. 186. depends entirely on that statute, which says, “ bill, &c. seal* “ edS The statute of frauds intervened, which very mate-iially changed the nature of contracts. It enabled lands to pass by writing without seal. It then became necessary to , c - , . , . , pass the statute or George ; where the legislature, as a no-men generalissimum, use the words “ writing obligatory,” to comprehend all cases and all writings introduced by the statute of frauds. [Here Mr. Attorney cited Eq. Ca. Abr. 21. ca, 10. Id, 22. ca. 1?. 1 Hatch 342. (new edit.) and 2 Bac. Abr. 571.] It has been said by the gentlemen for the prisoner, that general words are never added after particular ones : I reply, that it is very common. In Crow. Cir. Comp. 491. the words “ ship or other vessel.” Id. 365. “ bond or warrants” In our act of assembly against gaming, particular games are first set down, and then added these general words, “ or any other pastime or game.” Again, Crow. Cir« Comp. 263. “ or dead victual whatsoever.” Thus, from these considerations, which have been enforced by the gentleman who preceded me, it is abundantly manifest, that this crime is well described, under the words c( writing obligatory,” and the arguments against it obviated. Now, there are four charges in this indictment. 1. For forging. 2. For uttering the indent itself. 3. For forging. And, 4. For uttering the acquittances and receipts. I trust I have already proved, that the indent Is a writing obligatory. The words of it are strong and pertinent, viz. “ The treasury is made liable, and the faith of “ the state pledged,” It has already been well observed, that the legislature considered them so. They passed a law to prevent the treasurers from being sued upon them; they passed another law to prevent the holders from setting them up in discount against the public demands for duties and taxes. In 2 Black. Com. 511. a debt due by statute is laid down as paramount and prior to a debt due by bond. It is, therefore, the highest and the greatest. But omne majtm continet in se 'minus ; the greater always comprehends tireless. The same law is laid down in Law of Ev. p. 7. The words “ for payment of money,” in the act, are not annexed to the words writing obligatory; those fellow the word' “ promissory note.” A writing obligatory is a compulsory contract, whether it be made for payment of money, or not. t But there is a case in Leech, 389. Cogan s case, which comeg ]lome to t¡le argument before the court. There the intention to defraud is put as the gist of the crime. It is there said not to come within the letter, but within the meaning of the law. It is impossible to excite areal doubt in the mind of any one, but what this crime comes within the meaning of the act. But the verdict of the jury in the present case, cuts off much argument that might otherwise be used. They have found the indent to be a writing obligatory. The court cannot travel out of the finding of the jury. The case of Ilex v. Elliott, Leech, 185. has considerable application to this case, There the prisoner had forged a bank note ; but it was done upon a paper which had not the common water-marks, which distinguish the real bank notes, and the promise was ^ to pay to Mr, Joseph Cooke, or “ order, fifty f without adding pounds, shillings, or pence. The judge left it with the jury to say, whether the word fifty imported pounds ; and they found him guilty upon the count which charged him with forging “ a certain promis? “ sory note for the payment of money, with intention to de» “ fraud the bank of England.” Two exceptions were taken in arrest of judgment: 1. That it could be no counterfeit of a bank note, because it wanted the water-marks. 2, That it was charged to be for payment of money ; but by the very tenor of it, non constat to be for money-?-as it says fifty, without saving whgt. But the judges held the verdict to be legal, It resembling the original, and having an aptness to impose, seems to be the ground of conviction; so, in the present case, the indent not only had an aptness to impose, but it really did impose. In Leech, 239. LavelPs case, a bill of exchange was drawn on Messrs, Drum-. “ mond, Charing-Crossf and laid to be drawn on “ Messrs, “ Drummond Es? Co. Charing-Cross.” The court rejected the words ci? Co. and held the conviction to be legal; adding, that f any person can be intended fro.m the wards, who that 
      
      prison is, and whether he was the meditated object of the fraud, are matters for the consideration of the jury. So, also, the verdict in the present case has established who the meditated object of the fraud was, viz. John D. Vale. Hence, therefore, wc cannot contradict this verdict; that he forged and uttered this writing obligatory with an intention to defraud John D. Vale.
    
    o and 4. I come now to the acquittances and receipts. It is said, that this is not such an acquittance and discharge, as the act requires. John Stirling’s case, in Leech, 103. furnishes an answer. The judges lay it down, “ that an in-•a strument may be the subject of forgery, although, in fact, 51 it should appear impossible for such an instrument, as the “ instrument forged, to exist; provided it purports on the '• face of it to be good and valid, as to the purposes for which it was intended to be made.” Now this receipt not only purports to be a receipt for money ; but it was actually so. In Dr. Dodd’s case, as it is abridged in Croxu. Cir. Comp, the receipt on the back of the bond was in figures, with the sign of pounds, shillings, and pence, prefixed; the same as on the back of this indent. But the indictment charges it to be a receipt for money; and the jury have found tic This is conclusive. It was a question proper for their considei-ation, the same as the word fifty was, in Elliott’s case, already cited ; their finding is therefore definitive. I will add one case under this head, which is Stubb’s case, prow. Cir. Comp. 293. There was a separate count upon the ^ receipt, which it is said,Mpurports to be a receipt, acquittance and discharge.” No exception taken that it was not expressly charged to be such. But this is an acquittance by the funding system, which says, the money shall be paid,, &c. The receipt, therefore, was good for money, for it acquits the public of, and from so much money as is expressed to have been received. The last part of the charge is, the intention to defraud. This, no doubt, is essential, consistent with the crime; without this, the crime would be. incomplete, and the prisoner could not be punished by our law. But there is no necessity for going into reasonings or cases? to establish this; because it is amply charged by the indictment, and found by the jury. We cannot contradict the veredictum of the jury, before whom it was an essential question of pure fact. The court are bound down to take it for true. Thus I have gone through the several objections ; which, though plausible at first impression, all admit of most conclusive and satisfactory answers. The prisoner, therefore, being legally convicted, it is my duty to move your honours, that the sentence of the law be pronounced upon him.
    The prisoner was remanded.
    
      Cur. adv. vult.,
    And now on Monday, the 14th of March, 1791, the prisoner was again set to the bar, present, Mr. Chief Justice, Mr. Justice Grimke, and Mr. Justice Bay ; when the Chief Justice delivered the opinion of the court.
    
      
       The report of tins case was taken by a gentleman of the bar at the time of the trial, who very obligingly favoured me with it for publication ; to whom, on the present, as well as many oilier similar occasions, I am under great obligations.
    
    
      
      
         The words of the constitution are, all prosecutions shall be carried on u in the name, and by .the authority, of the state of South-Carolina, and con-u elude, against the peace and dignity of the same? 3 Art. 3. s. 2.
      
    
    
      
       An act of assembly, passed 5th J'laj'ch, 1736, the 3d section, copied verbatim from 2 Geo. II, c. 25, except a few words, which arc copied verbatim* from 7 Geo. II. c, 22.
    
    
      
       The words are, “ any deed, will, testament, bond, writing obligatory.. 6i Vitt of exchange, or promissory nolo for payment of money, or any acquit-caneen or receipts, either for money or goods, &c. with intention to (h.fra\c. r' any person whatsoever ? or shall utter or publish as true, uuy,” See, &.<e
    
    
      
       This being a case of original impression, and of much public expectation, and gentlemen of the bar not willing to come forward against a prisoner in a capital case, at the instance of the prosecutors, Mr. Jlttorney-Ge'pcral applied to the governor, to assign him counsel to assist on behalf of the slate ; thereupon liis excellency appointed colonel Read, who, at his instance, join,-, eel in the argument.
    
   Rutledge, Ch, J.

The indictment against the prisoner is very specially drawn, and contains several counts. It charges him in the words of the act of assembly, with having falsely made, forged and counterfeited; with having caused and procured to be falsely made, forged and counterfeited ; and with having willingly assisted in the false making, forging, and counterfeiting a writing obligatory, which is commonly called, and well known by the name of an indent of this state ; the writing is set forth verbatim. It also charges him with having uttered as true, a forged and counterfeit writing obligatory, purporting to be an indent, and set forth verbatim, knowing it to be so,' And it charges him in like manner with forging, with procuring to be forged, and with assisting in 'the forgery of several receipts for money, on the said indent; and with uttering as true, such forged receipts for money on said indent, knowing such receipts to be forged. And all these acts are laid to be done with ip-tent to defraud the several persons mentioned in the indictment, and contrary to the act of assembly, in such case made and provided. The prisoner being found guilty, has offered, in arrest of judgment, the following objections. [Mr. Chief Justice here stated the several objections, precisely as they had been laid down by the counsel for the prisoner, vide ante.'] These several points have been argued with ability and ingenuity, at the bar; we have heard them with great attention, and have since maturely considered them. With regard to the first objection, we consider it as we did at the argument, as of no weight. The indictment, had it stopped at the word “ same,” would have been faulty, and not as the constitution directs. It directs, that all prosecutions shall be carried on in the name, and by the authority of the state of South-Carolina, and conclude against the peace and dignity of the same» In this clause of the constitution, state is the .antecedent to the word same, to which it refers, and there was no need to add the word state. But towards the end of this indictment, act of assembly, not state, is the antecedent. There was a necessity, therefore, to add the word state after the word same; otherwise the conclusion would have been against the peace and dignity (not of the state, but) of the act of assembly. Another objection was, that the acquittance and receipt charged, was not such as come within the act. This act, which was passed the 5th of March, 1736, was made, as the title declares, for putting in force part of the statutes of 2 and 7 Geo. II. and incorporates such parts thereof as relates to this offence. And the third clause, on which the present indictment is founded, is in these words. [Here Mr. Chief Justice read the clause ; which being lengthy, I refer the reader to the public laws, page .] The arguments in support of this objection, were substantially as follow : That to make forgery, felony within this act, it must be done with intention to defraud ; and that these receipts were not intended to defraud. Who, say they, were to be defrauded ? Not the treasurers, because several years interest were released : Not the party to whom the indent was transferred, because he took it with the receipts upon it, and, consequently, had no right to the interest which appeared to have been paid. That the law means a receipt, the forging of which would tend to deprive some person of his right; but this is only á relinquishment by the prisoner, of his claim on the treasury for so much interest; therefore, that the receipt could only injure himself. The forging such a receipt was compared to the case of Rex v. Knight, Salk. 375. Another ground was, that if the counts on the indent itself be not felony, (which they had before contended, on the ground of its not being a writing obligatory, within the act,) those on the receipts cannot be felony; for it cannot be more cx-iminal to-counterfeit the receipts, than the indent; unconnected with which, the receipt is perfectly innocent. The last ground was, that the receipts were neither for money nor goods, which the act requires they should be. But special indents are paid for the interest on general indents; therefore, the receipts must be considered for special indents only, and they are not for money. That money has no ear-mark, which special indents have ; neither are they goods. The receipt, therefore, being neither for money nor goods, comes not within the*act. These arguments rest on three grounds ; 1. That the receipt was not given with intention to defraud. 2. That if it was not felony to counterfeit the indent, it could not be felony to forge the receipt. 3. That the receipt was not given for money ox goods. Although these arguments may at first view appear ingenious and plausible, yet, on examination, they will be found altogether destitute of solidity. The only point on which we agree with the prisoner’s counsel, is, that to make forgery, felony under this act, it must be done with intention to defraud. It surely must. It is the essence of the crime. But they say these receipts were not intended to defraud either the treasurers or Vale. But the jury have found that it wa3 with intent to defraud both. They were the judges of that fact: we cannot say they were mistaken. It is of no consequence whether any person was actually defrauded or not; if the forgery was done with intention to defraud, it is sufficient, and that is found. We will cite some leading cases, which warrant this opinion. From 1 Hawk. P. C. c. 70. s. 2. “ The no-44 tion of forgery doth not seem so much to consist in the u counterfeiting a man’s hand, which may often be done in» u nocently, but in the endeavouring to give an appearance 54 of truth to a mere deceit and falsity ; and to impose that 54 upon the world as the solemn act of another, which he is 44 no way privy tof &c. This was the idea of forgery at common law; it is the same under the statute. Strange, 747. Ward's case. It is not necessary to shew an actual prejudice; a possibility is enough. And a case from Stiles, p. 12. is there referred to, of an indictment at common law, for forgery of a letter of credit to raise money; and no body, says the book, imagined that the indictment did not lie, though it was not said that he actually received money on the letter of credit. 2 Black. Rep. 787. That it is sufficient to aver a general intention to defraud a certain per» son, which intention must be made out by facts at the trial. It is not necessary to set forth particularly the manner in which the fraud is to operate. Solemnly adjudged by all the judges at Lord Mansfield’s chambers.

The case quoted by the prisoner’s counsel, that of erasing the word 44 pounds” in a bond, and inserting marks, is not a forgery, because the sum is thereby lessened, which cannot injure the obligor, but affects only the obligee, will be found, on examination, not to have any avail in a case like this. The law there laid down is good j but the reason on which it is grounded does not apply here. 1 Hawk. c. 70. s. 4. (2 Bac. 567.) 44 It is no forgery in one who raseth the word 44 libris in a bond given to himself, and inserts marcis ; be» “ cause here is no appearance of a fraudulent design to cheat 44 another, the alteration being prejudicial to him who makes 44 it. But it would be forgery, if by the circumstances of 44 the case, it should any way appear to have been done with 44 an eye of gaining an advantage to the party himself, who “ makes it, or of defrauding a third person.” This was the case of .a good bond ; of a bond made to the man himself; it was a case at common law ; yet there it was said it would be forgery, if done with an intention to defraud. Leech, 189. Harrison's case. Prisoner was convicted' on the statute of 2 Geo. II. c. 25. and 31 Geo. II. c. -22. (which extends the former to corporations,) for forging a receipt for money, with intention to defraud the London Assurance Company, He was accountant to the company, who kept their cash at the bank of England, where they had paid 21 Oh which was entered by Clifford, a cashier at the bank, in their bank book thus : “ 1777, June 16th. Bank notes. “ Clifford. 210/.” The prisoner altered this entry by prefixing the figure 3, which made it read 3,210/. The question referred to the twelve judges was, whether this was a receipt within the meaning of the statute ? And they were unanimously of opinion it was, I mention this case to shew, thatalthough it might have been urged, that this could not have been done with intention to defraud the London As* suranco Company, because it appeared to be for their advantage to have credit for 3,000/. more than they had paid j yet no such objection was made, or it was not regarded. They could have no right to credit for more than they had paid ; and the conviction was held tobe legal. From .these cases, and a variety of others that might be adduced, it is clear, that in order to make forgery felony under this act, it is only necessary that it should be done mala fide, with intention to defraud some person. It is not necessary to lay or to prove, that any person was actually defrauded. And this upon good reasons ; because the forgery may be discovered, and the party apprehended for prosecution, before the fraud intended could be thoroughly effected. The intention constitutes the crime.

The counsel for the prisoner contended further, that if the counterfeiting the indent was not felony, counterfeiting the receipts could not be felony ; for it cannot be more criminal to counterfeit the receipt, than the indent; and um connected with the indent, the receipt is perfectly innocent. But this we conceive to be false and inconclusive reasoning; and that the transactions of counterfeiting the indent, and forging the receipt, may be considered and determined upon, as totally independent of each other. The charge with respect to the receipt is for forging a receipt for monei with intention to defraud certain persons. And it is of no consequence on what those receipts were written ; whether on the back of an indent, on the back of a lottery ticket, on a sheet of paper, or on the margin of a newspaper. If the receipt was for money; if it was forged; if it was forged with intention to defraud any person, that is sufficient to constitute it felony under the act. It was further alleged, that these receipts are not for money or goods, but must be considered as given for special indents, "which are neither one nor the other. It is clear that the receipts are not for goods ; but it is laid in the indictment that they were for money; and the fact is so found by the jury. There are two modern cases that shew, that the court have not been very strict on this head, where the intention to defraud has been manifest, always keeping that in view as the foundation of every thing. The one was the case of fames Elliott, in 1777, Leech, 185. He was indicted .for forging a bank note, whereby Thomas Thompson, for the governor and company of the bank of England, promised to pay Joseph Crooke, or bearer, on demand, fifty ; and the indictment charged it to be a promissory note for the payment of money. It was contended for the prisoner, that the word pounds being omitted in the body of the note, it was not a note for payment of money ; or if it was, it was totally uncertain what coin, whether pounds or shillings ; and that on such an uncertainty in a declaration, a plaintiff would be nonsuited. The judge left it with the jury to consider, whether the word fifty imported pounds ; and they found the prisoner guilty on that count which charged him with hcming forged a promissory note for payment of money,with intention “to defraud the bank of England,And on this ob» jection being renewed, by way of motion in arrest of judg-mcnt’ before judges at- Serjeants-Inn, they were unani» mously of opinion the verdict was legal. The other case was that John Taylor, 1779, Leech, 214. He was indicted for that having in his possession," a bill of exchange drawn by Thomas Harper on Joseph Cuff, for 20/.. he forged a receipt and acquittance for the said sum, as follows, viz. u Rec’d. William Wilson,” with intent to defraud the said Joseph Cuff, He was convicted; and the twelve judges were of opinion the conviction was legal. With respect to the special indents, the tax act under which they were issued made them redeemable or exchangeable at the treasury, for gold or silver, at certain periods, &c. that the man who had them, might, probably, if he kept them by him, get the full amount. But if he chose to part with them, he could at any time get money for them, though he could not dispose of them at par. However, it does not ap~ pear, that special indents were paid. They might have been, and they might not have been considered as money. The fact we suppose is, that neither money nor special indents were paid, because the receipt is chai’ged to be forged, and found so. It is said to be for two years’ interest; but it is also said to be for 86/. 2s. 6d. making total two years’ interest. Though the receipt is for those sums, in figures, the operation is the same as if it had been in words at length. We are, therefore, of opinion, that this objection must be overruled. It is immaterial to consider any of the other objections which have been offered; because the first and last objection being overruled, it follows, that the prisoner is lawfully convicted of having forged a receipt for money, with intention to defraud the persons mentioned in the indictment; and that such a forgery is, by the act of assembly, felony without benefit of clergy. We would not, however, be understood, as according to the doctrine laid down by the prisoner’s counsel in their other objections. We have been more diffuse in delivering this opinion than is usual, or perhaps was necessary. But this be* Zng a case of great importance to the public and to the prisoner, and his counsel appearing to lay great stress on this objection, we considered it proper to state thus fully the reasons upon tvhich our decision is founded.

1 heprisoner being asked by the clerk, what he had further to offer why sentence of death should not be pronounced against him according to law; replied, that he had nothing further to offer.

His honor the Chief Justice then (calling him prisoner) briefly stated to him the crime for which he had been indicted ; the deliberate trial thereupon, in which he had the assistance of able counsel, and that he had been duly convicted by the oaths of twelve of his peers; that he had af-terwards appealed to the court upon several legal exceptions in arrest of judgment; that those exceptions had also been ably argued by his counsel, patiently attended to, and maturely considered .by the court, and for the substantial reasons this day stated by them, had also been overruled. That having now nothing further to offer, it was incumbent on the court to pronounce the sentence of the law against him. Thátthe laws of his country demanded no less than his life as the penalty of his crime. His honour then dilated upon the enormity and ruinous tendency of this crime, in all countries, and especially in a commercial community, and strongly painted the heinousness of the guilt, in a civil, a moral, and a religious view. That as a citizen, he had grossly infringed the public rights; as a man, he had broken through the obligations of honour and integrity j and as a Christian, he had violated the most wholesome precepts of religion. That from a person of his education, and habits, better things were to have been expected. That the court pitied his delusion, and hoped tliat he felt on that solemn occasion as he ought to feel; recommending to him, , , ° 7 in a very pathetic manner, to employ that little interval of .^ieh remained, in making his peace with that God whose law he had offended; and suggesting, as an additional motive, that from the malignity of his offence, the court could not flatter him with any hope of pardon. He then concluded an affecting address, and sentenced him, the prisoner at the bar, to be taken to the place from whence he came, from thence to the place of execution, and there, on Wednesday, the 23d of the present month, between the hours of ten and two, to be hanged by the neck until his body is dead, and prayed that the Lord might have mercy on his soul!

He was executed according to sentence, but not dn the 23d of Marckf as the court had granted him one week’s respite in order to settle his private affairs, which had been complicated, and in á great state of derangement. 
      
       The reader must have observed, that he was indicted under several names. He had long gone Ly the name of Washingtoii,- hut it had often been suspected, and from circumstances latterly transpired, is not now doubted to haye been an assumed name. It is said that, hb real name was Welch,
      
     