It was declared, that any person who knowingly and designedly, by false pretence or pretences, shall obtain from any person money, goods, &c. with intent to cheat or defraud any person of the same, shall be fined and imprisoned, or put in the pillory, or whipt, or transported for seven years. And by the 52d of George III. this statute has been re-enacted

with additions.

Now these statutes appear, on the face of them, to be very clear, and to draw strongly marked distinctions. Com

mon

sense could never pre-suppose, that a false pretence, unaccompanied by counterfeiting, could be deemed a capital offence, within the meaning of the 2nd and 7th of Geo. II. Yet by some unhappy mode of reasoning among the great lawyers in Trinity term, 1754, and by the subsequent effect of Precedent, it has since that time been held, in all our law books, that fulse-making has a sense different from counterfeiting, though used synonymously in the statute; and consequently we find numerous decisions, followed by public Executions; in which the oracles of law, confining the whole of their reasoning to the generic terms, falsely making, have drawn inferences which have confounded the capital crime of counterfeiting, with the less penal one of falsely pretending.

The great oracle of law, Lord Coke, defines forgery to be an act done in the name of another; and his authority, if authority ought to have any influence in the court of common sense, is at least on a par with that of the eleven Judges, who decided, in 1754, that the act of 7 Geo. II. meant any false deed, and not any deed of any person, or of another! 2 East, P. C. cap. xix. sect. 46.

But whatever be the abstract definition of the crime, both the crime and its penalty must be considered as distinctly defined in the existing statutes; and by those definitions alone, can they now be investigated. The question is less, what is forgery than what is the crime so called, for which the punishment of death is inflicted by the laws of England? Let us therefore, in the further consider. ation of the subject, consider only the precise letter of the statutes.

It is evident, by referring to the phraseology of the act, that the words falsely making, as abstracted from the context, and applied in a generic sense, are strictly synonymous with counterfeiting or forging; which latter also, in their

legal sense, in all our statutes, and in all our old law books, are used synony mously, and have the same legal sense. It is probable that the words, falsely making, were introduced for the purpose of avoiding any quibble on the word counterfeit, as when a culprit, having forged a draft, in the name of any known person, without imitating his handwriting, might pretend it was no counterfeit; but the words, falsely making, would in such case bring him within the statute.

With reference to the basis of the de cision of 1754, which has served as a precedent to all subsequent decisions, viz. "that it is not necessary that the note or bill should be the obligation of any known person, because the terms of the statute are any note or bill, and not any note or bill, of any person,” it may be asked, whether it is not however an essential feature of every note or bill, that it should be the note or bill of some person? Can a note or bill, as a pretended security, in a legal and tan gible shape, be a note or bill, unless it be the instrument actually and substantially of some existing person, or purports to be so? Is a note or bill any thing if it be not the obligation of some real person? Would not the words, of any person, have been superfluous in the statute; and are they not as much implied as though they existed, because any note or bill must necessarily imply, as a note or bill, the note or bill of some or any person?

To forge is an active and transitive, not a neuter and intransitive, verb. It always implies both agent and patient. We cannot forge in a neutral sense, but only in an active and transitive sense upon some other person. Its legal syno nyme counterfeit necessarily implies also the existence of some person whose act or writing is falsely imitated.

The words any bill are governed by all the verbs, falsely make, forge, or counterfeit, as used synonymously in re gard to their object, any bill; and in regard to each, the words, of any person, are alike omitted. But can it be contend. ed, in regard to the words, counterfeit any bill, that the other words, of any per son, are not essential to the sense? could not counterfeit any bill of a nonentity-because there could be no origi nal from which to copy or counterfeit. An original is therefore necessarily sup posed by the very terms and conse quently the crime designated is the coun

We

terfeiting

terfeiting of any bill of any person-for it could be no counterfeit if it were not an imitation of the act of some person. Just so the words 'falsely make any bill, imply pretence in the making, or false hood in regard to something, and not in regard to nothing. Every bill inust essentially, as such, be the bill of somebody; and if it is correctly written in the usual form of words, it is true as a mere bill, and the question of falsehood applies only to the person whose bill it purports to be, who must be a real person, or it can be no bill. Falsely to make a bill does not therefore apply to the terms and mere words of the bill, on the face of it; but to the responsee, who is falsely made so, and about whom no falsehood could exist if he were not some person.

Had it been in the contemplation of the legislature to enact, that the making a fictitious bill should be equivalent, as a crime, to the falsely making any bill purporting to be a true bill, the expressions making a false bill, or making a Ectitious bill, could only have expressed its design. But then the synonymous verbs could not have applied to the same object, and it could not have stood 'counterfeiting or forging a false bill,' which would have been nonsense; so that no fictitious bill, or bill of a non-entity, could have been in the contemplation of the framers of this statute. And if the making of a fictitious bill is not within the statute, much less is a fictitious indorsement within its cognizance; because an indorsement can only be cognizable as a counterfeit, and no counterfeit exist, except with reference to some ori. ginal. In a purely fictitious indorsement, no original is assumed by an utterer, or can be conceived by a resciver, if it be really fictitious.

can

Again, what is the legal definition of a bill, or note? It is the obligation of A. to pay B. or his assignee, a given sum of money at a future time. Then, by substituting these synonymous words in the clause of the statute for the word bill, we shall have it, if any person shall falsely make, forge, or counterfeit any obligation of A. to pay B. or his as signee, a given sum of money at a future time, he shall be guilty,' &c. Hence the very idea of the bill so falsely made, &c. being the bill of some person, is understood by the very terms and sense of the statute. The omission of the words, of any person, in the statute, does not therefore vary the sense; but they are implied by the very terms; and it

must be a forgery of any bill of some person, to constitute the felony; and not of any bill of no person, or of a non-entity, as is now mistakenly maintained in our law books.

Further, it is essential to the crime that the bills or notes be so falsely made, forged, or counterfeited, with an intent to defraud; but to every fraud there must be two parties, the party imposing, and the party imposed upon; and the latter must believe, that he gains a guarantee which he does not gain, or he is not imposed upon. If then the drawer, or other party to any bill or note, be a non-entity, it is evident that the receiver cannot know such person, and therefore take the bill on the credit of such person; consequently he receives the bill on the credit of other parties, and is in no way defrauded by a fiction of non-entity, of whose responsibility he can know nothing. Whereas, on the other hand, the fraud is fully perpetrated, and the intent is partly ascertained, if a real name be counterfeited, and falsely made a party to the bill.

And consequently, in these various senses a bill drawn or indorsed in the name of non-existing person, is not a Falsehood, because nothing is asserted of any body; nor a Forgery, because nobody is forged upon; nor a Counterfeit, because it is the imitation of no original; and therefore, in neither case, is within the meaning of the statute of the 2nd and 7th of Geo. 11. It is simply a false token, or false pre tence, within the meaning of the 52nd of Gco. III.

And in all such trials the law specially requires, that the making and uttering should be with a present intent to defraud. The intention is not therefore to be inferred, either from the making or the uttering; but from collateral circumstances, is to be carefully investigated, and maturely considered by the jury. On this point juries ought to enquire with the maturest diligence; just as they consider and examine the intention in a charge of homicide, which, if not wilful, is no felony. They ought to be as fully satisfied of the WILFUL INTEN TION to DEFRAUD, as of the distinct ACTS OF MAKING OF UTTERING, before they find a verdict of GUILTY, and consign a man, according to the usage of the executive, to certain DEATH.

If to commit the acts with an intention to defraud, subjects the accused to the penalties of the statute; of course, to commit them without such intention, ex

Са

empio

SIR,

THE present prevalence of apoplectic paralytic complaints in Great Britain, even amongst the young of both sexes, of the soberest habits and most slender forms, induces me to inquire, through the medium of your miscellany, if any of your medical correspondents have yet been able to discover, or ima gine any adequate cause for this great evil? Can it be attributed to the very general use of tea? Are such complaints as prevalent on the Continent, or in other Countries where coffee is more used than tea? Do these complaints prevail in an equal degree amongst the lower classes of the people, as amongst those of middle and upper life? Has it been ob served, whether or not those, whose prin. cipal food is of milk and vegetables, with a smaller proportion of flesh meat, ale, wine or spirits, than is generally taken, are liable to these complaints? Are the coal-heavers, and other labourers about London, who eat so much, and drink such quantities of ale and porter, more frequently affected by them than people of the same class of more moderate habits?

By attention to such points as these, we might advance a few steps towards discovering the cause of these mournful and hopeless diseases, and of course obtain a little insight, as to the probable means of prevention, if not of cure.

PUBLICOLA.

For the Monthly Magazine. CONTRIBUTIONS to ENGLISH SYNONYMY. To pardon-To forgive. TYMOLOGICALLY, the idea of giving up a debt incurred must in here in both words; but to pardon is used of civil, and to forgive of religious, delinquency. To pardon, is employed by the state; to forgive, by the church. To pardon the trespass of a poacher; to forgive the trespass of a sabbathbreaker. To pardon a crime; to forgive a sin. We petition the king for

pardon to a condemned wretch; we implore forgiveness of our transgressions from heaven.

A consequence of this habitual appropriation of the words is, that we attach ideas of superior rank to one who pardons, and of superior purity to one who forgives. For a rude expression, pardon, for an impure allusion, forgiveness is solicited; Pardon me, Sir; forgive me, Madam.

Excuse-Apology.

An excuse is an unsuccessful, an apology is a successful defence of conduct deemed in the first instance blame-worthy. A good excuse may be a bad apology. Malady--Disorder

Disease— Distem per-Complaint.

Malady is the more vague, compre. hensive, and learned of these terms; though applicable to all the subdivisions of bad health, in conversation it is seldom applied. Disorder describes any malady in which the organization is supposed to be in fault, in which the orderly secretions, or extravasations, are interrupted. Disease describes any malady attended with loss of ease, whether pain or languor predominates. Distemper describes a malady, which disturbs rather the humors, or temperature, than the solid parts of the system. Com plaint describes a malady arising from the sympathy of the different organs.A common malady; a consumptive dis order; a painful disease; a catching distemper; a sneezing complaint.

Duty-Obligation.

Duty is an obligation imposed from within; obligation is a duty imposed from without. To attend public wor ship is a duty, inasmuch as piety inspires it; and an obligation, inasmuch as the magistrate enjoins it. The priest considers it as a duty to officiate; as an obligation, to officiate in black.

Disaster-Calamity-Misfortune.

A disaster is an unlucky accident, attributed to the stars (dis and astrum) or order of nature. A calamity is a sudden evil of the same class-(calamitosus, storm-crushed). A misfortune is an important loss or suffering, attributed to chance, but the infliction rather of man and circumstance than of nature and fate.

A sad disaster happened: the chaisehorse took fright, and they were overturned. My neighbour has incurred a great calamity; fire balls fell in his stack

yard,