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, &c.

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, 1791, 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,

1791.

The State

V.

Washington.

N. B. The

Chief Justice
Rutledge, and
Mr. Justice
Bay, took
their seats on

the bench this
day, for the
first time after

Holmes rose, and stated the following grounds, in arrest their appoint of judgment, viz.

1. That the indictment is faulty, and defective. 1. Because it concludes "against the peace and dignity of the "same state;" the word "state" being wrongly added, and not in the constitution.* 2. Because it charges, that "John "Edwards, late treasurer," &c. instead of "John Edwards, "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 writing obligatory, as charged in the indictment; not such an one as comes within the act.t

* The words of the constitution are, "all prosecutions shall be carried on "in the name, and by the authority, of the state of South-Carolina, and con"clude, against the peace and dignity of the same." Art. 3. s. 2.

An act of assembly, passed 5th March, 1736, the 3d section, copied verbatim from 2 Geo. II. c. 25. except a few words, which are copied verbatim from 7 Geo. II. c, 22.

ment.

1791.

The State

Washington.

4. That the acquittances and receipts, charged in the in dictment, 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 com prehended 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 Sylla and Cæsar 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 it.

The words are, 66 any deed, will, testament, bond, writing obligatory, "bill of exchange, or promissory note for payment of money, or any acquit"tances or receipts, either for money or goods, &c. with intention to defraud "any person whatsoever; or shall utter or publish as true, any," &c. &c.

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 much 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 under 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, " as being obligations," but the latter is not. Why was it deemed necessary, by the legis lature, 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 the law is, not to enlarge, by construction, the meaning of an act which is so highly penal.

1791.

The State

V.

Washington.

1791.

The State

V.

Washington.

2. The next subject of the indictment is the receipts indorsed 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 Hale, 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.

1. The 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 delegated 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. Croke. It will be asked, are all the indents of the state, therefore, void, because one commissioner only has signed them? 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 off 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. 172. Jacob, 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 very 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