FORGERY (from the French forger, signifying accudere, fabricare, to beat on an anvil, forge, or form), may be defined at common law to be the fraudulent making or alteration of a writing, to the prejudice of another man’s right; or it is the crime of imitating the subscription of another, adhibiting it to a deed, and putting that deed to use by acting under it, receiving property in virtue of it, founding on it as a title to sue or to defend, or transferring it to another. In considering forgery, it is necessary to attend, first, to the mode of proof by which the crime is established; and, secondly, to the punishment which is inflicted on the perpetrator thereof.

The proof of forgery is either direct or indirect. The direct proof consists in the examination of the writer of the deed, and of the witnesses who sign the deed and attest the subscription. As the subscription of witnesses is an attestation to which the law gives effect to the extent of receiving it on their death as evidence of the regularity of the deed, and as weight is given to the subscription of a witness, even where he does not recollect having adhibited it; so, to cut down a deed regularly attested, the instru-nιentary witnesses, as they are called in Scotland, must be brought to swear to circumstances of sufficient force to invalidate the evidence given by their subscriptions; a species of proof which the law does not and indeed cannot reject. The indirect mode of proof consists in an investigation of all the circumstances from which it may be inferred that the person by whom a deed is said to have been executed actually did not subscribe; as, for instance, an error in the date, an alibi, the stamp, the contexture of or date [7:9:748]impressed upon the paper, or a comparatio literarum. The comparison of the handwriting is made with genuine subscriptions of the same date as that alleged to have been forged; and where the real subscriptions differ materially from the one founded on, the forgery of the latter may be pronounced on with a considerable degree of certainty. The indirect mode of proof, however, is not resorted to where the direct mode is practicable.

Until recently the punishment of forgery was not expressly laid down by statute; but by the common law and practice of the country, conviction was usually followed by a capital punishment in all cases of gross forgery; whilst those of less moment, as forgeries of executions, or where the evidence was not in every respect conclusive, were commonly visited with what in Scotland is denominated an arbitrary punishment, that is, with imprisonment or transportation. Latterly, however, the severity of the law in this particular has been considerably mitigated, and the punishment of death restricted to those cases of forgery which are not only the most aggravated in their own nature, but at the same time calculated to prove most extensively injurious to the interests and well-being of society. By the 2d and 3d William IV. c. 123, entitled an “act for abolishing the punishment of death in certain cases of forgery,” it is enacted that where any person shall thereafter be convicted of any offence whatsoever for which the 1st William IV. c. 66 (entitled an “act for reducing into one all such forgeries as shall hereafter be punished with death, and for otherwise amending the laws relative to forgery”) enjoins or authorizes the infliction of the punishment of death, or for any offence which shall consist wholly or in part of forging or altering any writing, instrument, matter, or thing whatsoever, or of offering, uttering, or disposing of any writing, instrument, matter, or thing whatsoever, knowing the same to be forged or altered, or of falsely personating another, such offender shall not suffer death, or have sentence of death awarded against him, but shall be transported beyond seas for the term of such offender’s life. But it is at the same time specially provided that nothing in this act shall be construed to extend to the forging or altering, offering, uttering or disposing of, knowing the same to be forged or altered, any will, codicil, or testamentary writing, with intent to defraud any body corporate or person whatsoever, or of forging or altering, or of uttering knowing the same to be forged, any power of attorney or other authority to transfer any share or interest in any stock, annuity, or other fund, transferable at the Bank of England or South-Sea House, or Bank of Ireland, or to receive any dividend payable in respect of such share or interest, with intent to defraud any body corporate or person whatsoever, or of procuring, aiding, or assisting in the commission of such offences, for all which offences the punishment of death is to continue the same as if this act had not been passed. And further, by 2d and 3d William IV. c. 44, it is enacted that persons punishable with transportation for life under the foregoing act shall be liable, previously to their being transported, in case the court before which they are convicted shall think fit, to be imprisoned, with or without hard labour, in the common gaol or house of correction, or to be confined in the penitentiary for any term not exceeding four years nor less than one. Such is now the state of the law on this subject. As it formerly stood its excessive severity had rendered it to a certain extent inoperative; for as the natural feelings of mankind revolt at the indiscriminate sacrifice of human life for offences of a secondary description, judges and juries had tacitly combined to evade giving it effect in the less aggravated class of cases, and thus to reconcile with public opinion the practical administration of justice in this particular. But as all such evasions, however humane in their spirit, are pregnant with manifold evils, it is to be hoped that the mitigation which has taken place will augment the efficacy of the law by increasing the certainty of the punishment it awards, and that hence will result a diminution in the number of offences of this kind, which the excessive but irregular severity of the law, as it formerly stood, had failed to produce. (a.)