# United States v. Watkins

> U.S. Circuit Court for the District of District of Columbia · July 15, 1829 · 28 F. Cas. 419

URL: https://www.frixlaw.com/law-library/cases/8687069

## Case

- **Full name:** UNITED STATES v. WATKINS
- **Court:** U.S. Circuit Court for the District of District of Columbia
- **Decided:** July 15, 1829
- **Citations:** 28 F. Cas. 419; 3 Cranch 441
- **Precedential status:** Published
- **Opinion:** Dissent by Cranch
- **Judges:** Adjourned, Bench, Crajnch, Cranch, Day, Fever, Follows, Ill, Leave, Monday, Obliged, Resumed, Thrus, Thruston, Ton, Tuesday, Upon, When
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CRANCH, Chief Judge
(dissenting). With the highest respect for the weight and authority of the judgment delivered by the majority of the court, I am, nevertheless compelled to dissent from their opinion. This is the fourth indictment against the defendant, to which he has demurred. It is in these words: “District of Columbia, Washington County, ss.: The grand inquest, for the body ■of Washington county, do, upon their oaths present: That Richard D. Harris, being a navy agent of the United States, at Boston, •on the thirtieth ’day of September, in- the year ■eighteen hundred and twenty-seven, and- having, on that day, made out his abstract of expenditures, as such navy agent, as required by the rules and orders of the navy department of the United States, for the third quarter of that year, ending on the said thirtieth -day of September, which abstract was headed .and entitled, ‘Abstract B, of expenditures during the 3d quarter year 1827, ending Sept. -30th, by Richard D. Harris, navy agent, Boston,’ and purported to set forth the expenditures disbursed and paid by the said' Harris as such navy agent, for and on account of the United States, and contained, among other ■charges of expenditures as aforesaid, the following three items and charges under the head of ‘Arrearages prior to 1827:
—which said abstract was in the words and figures following; (here was inserted the abstract,) which said drafts, so stated and referred to in the said three items and charges, were drafts drawn by said Watkins on the said Harris, navy agent as aforesaid, and ■dated on the fourteenth day of August, and the fourth day of September, and the nineteenth day of September, respectively, the year last aforesaid, in favor of Charles S. Fowler, and sold and delivered by said Watkins to •said Fowler; and the said Harris, having transmitted the said abstract to the said Wat!kins, as 4th auditor of the treasury of the United States, who was the proper officer to receive the same; and the said Watkins, having received the same, the said Watkins aft-erwards, to wit, on the first day of November, in the year last aforesaid, at the county aforesaid falsely and fraudulently, 4 altered the said abstract, by erasing therefrom the words
*T. Watkin’s draft
do. do.
do. do.’
opposite to the said dates of September 1st 10th, and 22d, prefixed to the aforesaid three items and charges in the said abstract under the head of ‘arrearages prior to 1827,’ here-inbefore set out, with intent to defraud the United States, to the great damage of the United States, and against the peace and government thereof. Thomas Swann, Attorney United States.”
It is contended, on the part of the defendant, that this indictment, if it describes any offence, must be considered either as an indictment for a fraud or a forgery; that, as an indictment for a fraud, it is bad, because there is no averment of an injury actually done; that as an indictment for forgery it is also bad for several reasons: (1) Because the offence is not set forth in the usual technical language descriptive of the crime of forgery, so that the grand jury might be aware of the nature of the offence with which they were charging the defendant. (2) Because the par per altered is not such a paper, per se, as can be the subject of forgery by alteration. (3) Because it does not appear by any circumstances stated in the indictment, that the United States could be injured by the alteration.
1. Under the first objection, it was contended that the word “forged” was a technical term, as necessary, in the description of forgery at common law, as the terms “felonice” in felony,, “burglariter” in burglary, and “proditorie” in treason. But this position does not seem to me to be supported by the authorities. There has been no case cited in which it has been so ruled. On the contrary, the elementary writers, when they enumerate the crimes which must be described by certain terms of art, or technical phrases, do not inelude forgery in their list of crimes, nor the word “forged” in their list of terms. But when they come to define forgery, they call it “the false making, or alteration of such writings as, either at common law or by statute, are its objects, with intent to defraud another.” 3 Chit. Cr. Law, 1022 . And East, P. C. 852, says: “Forgery at common law denotes a false making, (which includes every alteration of, or addition to, a true instrument,) a making, malo animo, of any written instrument, for the purpose of fraud and deceit.” “This definition,” he says, “results from all the authorities, ancient and modern, taken together.” Hawk. P. C. bk. 2, c. 25, § 57, after stating the cases in which no periphrasis, or circumlocution, will supply those words of art which the law has appropriated for the description of the offence, namely, murder, larceny, mayhem, felony, burglary, and treason, says, “that in other cases it is generally a good rule in indictments, as well as appeals, that the special manner of the whole fact ought to be set out with such certainty, that it .may judicially appear to the court that the indictors have not gone on insufficient grounds.” It is true that the indictments for forgery generally use the term “forge,” espe- *446 daily where the forgery consists in the false making of the writing; and the statutes having used that word in describing the crime, it became necessary to use it in indictments under those statutes, as part of the description of the offence. But when the forgery has been committed by alteration of an instrument by erasure only, the word “forge” does not seem to be properly applicable to, or descriptive of, the act done. There is a precedent in 3 Chit. Cr. Law, 1017 , in which the words are “falsely alter,” by deceitfully and falsely inserting and forging the name J. A., and "by deceitfully and falsely adding” s to the word bailiff. In the present indictment the word “forge” could not, with propriety, be introduced, unless the indictment were to charge the defendant with forging the whole abstract. It is said, indeed, that “if any part of a true instrument be altered, the indictment may lay it to be a forgery of the whole instrument” (2 East, P. C. 978), and proof of altering a part will support the. indictment. “It is more usual, however, and perhaps more prudent,” says Archbold (Cr. Pl. 191), "at least in one set of counts, to charge it as an alteration merely, and to allege the alteration specially.” See, also, Harrison’s Case, 2 East, P. C. 980, 988, to the same effect. The case of Mycall, cited from 2 Mass. 136 , was shortly this: Á magistrate of Worcester county issued a writ of attachment, directed to the sheriff of Essex county, and to the constable of Harvard within the same county, whereas Harvard was in Worcester county, and not in Essex. The writ having been returned served by a constable of Harvard, the magistrate, before the trial, erased “Essex’ ’ and inserted “Worcester.” The indictment charged that the defendant did unlawfully erase the word “Essex,” and did falsely and unlawfully insert, in the place thereof, the word “Worcester;” thereby unlawfully and falsely changing the same from &c. to &c., with intent to injure and defraud J. 11., against the peace &c. After a verdict of guilty, and a motion in arrest of judgment, the court stopped the defendant’s counsel, who was about to argue the point, and said: “If the facts stated in the indictment constitute a crime at common law, it is forgery: but there is not the necessary technical precision in the indictment to support a conviction of forgery, and judgment must be arrested.” The attorney-general had before stated to the court that it was not the intention of the grand jury to charge the defendant with forgery. It will be observed, in that case, that the court did not specify iii what particulars the indictment wanted precision; they did not say that the word “forge” was necessary; nor is it so said in any other case which has come to my knowledge. But in the case of Rex v. Stevens, 5 East, 259; Lord Ellenborough, in delivering the opinion of the court, said: “Every indictment or information ought to contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy; and, except in particular eases where precise technical expressions are required to be used, there is no rule that other words shall be employed than such as are-in ordinary use.” Forgery at common law is but a misdemeanor, and ranks with cheating- and fraud, both as to the moral turpitude of the offence, and the degree of punishment.. It is a branch of the crimen falsi, and differs-principally from any other kind of indictable fraud in this: that it requires the use of a particular sort of means to effect the fraud,, and is complete whether the intended injury be effected or not. There seems to be no reason, why it should not be sufficient in an indictment for this, as for any other misdemeanor, to state all the facts which, in law, constitute the-crime. I have not been able to find any precedent of an indictment at common law, for a forgery committed by erasure merely. I am-therefore not satisfied that a forgery, at common law, by erasure only, may not be sufficiently set forth, without using the word “forge” or the word "counterfeit.” 5
After the judges had delivered their opinions, Mr. Key, for the United States, made a motion, which, at the request of the court, he reduced to writing, as follows: “The court having delivered their opinion, on the demurrer, that the indictment in the above case is-defective in not charging the alleged false and fraudulent alteration of the abstract by the-technical term ‘forged,’ the counsel for the United States produced to the court an indictment returned ‘ignoramus’ by the grand jury, which is a literal copy of the indictment upon which the judgment of the court-had been just delivered, with the exception, that it contained the words ‘forged and’ in addition to the terms in the indictment now decided on. And the counsel for the United' States producing a new bill of indictment-similar to the one now decided on, except th.it-the technical term ‘forged’ is used in addition to the words charging" the offence; and' stating that they were about to send the-same to the grand jury, prayed the court to send for the grand jury and instruct them to the following effect: That the facts and intent found, in the indictment just decided on by the grand jury, as therein stated, constitute, in law, the offence of forgery at common law; and that the grand jury, if they find, in a bill of indictment, all the facts and intents necessary to constitute a legal Of-fence, are bound to call the offence, in the indictment, by its necessary legal and technical name.”
Mr. Key contended that the court has a right to instruct either the grand or the petit jury upon the law of the case, either on *447 behalf of the government or of the prisoner. The grand jurors are not lawyers; they may reject proper testimony, or receive improper. Such instruction may be required by either party; and without such a right justice cannot be done. If the grand jury ask instruction as to matter of law, the court never refuses to give it; not because it is asked, but because it is wanted. If it appear, by any other means than asking, that they want the instruction, the court will give it. It appears in Dalton’s Sheriff (page 515) that the grand jury may be brought into court and hear the witnesses in open court, where the court can instruct them. Suppose the evidence be all in writing, and the grand jury reject it—or suppose they return an insensible indictment; the court will instruct them. The jury, indeed, may possibly disregard the instruction of the court as to matter of law, but this is no reason why the court should not instruct them. The right to ask instruction to the grand jury is reciprocal. It belongs to both parties; and this is a ease in which, if in any, it ought to be asked and granted. 2 Holt, P. C. 157. In 1 Burr’s Trial, 157 , the motion to instruct the grand jury was made by Mr. Burr, debated, opposed, but granted by Chief Justice Marshall. So it has been always usual, in the general charge to the grand jury at the beginning of the term, to give them information as to the law of such cases as may be likely to come before them.
Mr. Jones, for defendant.
We are continually doomed to be assailed with novel and irregular projects. The regular course is to-send up the bill and the evidence, and the grand jury proceeds to consider the case, ex parte.
The court in charging the grand jury does not anticipate the questions which may be involved in the issue to be tried. The instruction is wholly ex parte. Neither the accused, nor the government has a right to-call upon the court to instruct the grand jury upon the merits of the charge. The court will not, in their charge, instruct the grand jury upon the whole facts of the individual case, and commit itself and prejudice the cause ex parte. It is only upon, general principles which are clear, that the court will charge a grand jury. This is a glaring invasion of the regular practice in/ this and all other courts in this country, and in England. There is no case where the court has charged the grand jury upon the particular circumstances of the individual case. The case of admissibility of evidence is a very different matter, and depends on a different principle. The old practice mentioned-in Dalton’s Sheriff is obsolete. Grand juries are never called to the bar to hear the evidence. Hale only says that the grand jury is to return the bill “a true bill;” or “ignoramus,” they cannot say that the killing was se defendendo, 2 Hale, Hist. P. C. 157-159. In Burr’s Case the instructions prayed went only to the admissibility of evidence, and were-mere abstract propositions of law. The chief justice did not give the instructions as prayed, but only as to the admissibility of the evidence, and said, that it must be given to the grand jury in general terms; and that it must be different from instructions to the petit jury. Kobinson’s Report of Burr's Trial [Case No. 14,693]. Such a proposition as this was never made to the worst of English judges in the worst of times. It is not necessary, as contended by the counsel of the United States.
The charge by the United States against the grand jury is, that they mistook the law, in refusing to find the indictment which charged forgery, eo nomine; and the proof is, that they found the other indictment, which does not, in-terms, charge a forgery. The United States acquiesced in the return of ignoramus upon the first, by sending up the seeond. The time to object was when the first indorsement was returned, and before they sent up the second. If the jury was of opinion that the offence was not. under all the circumstances, forgery, they did right to reject it; and they found the second indictment because it did not charge forgery, but some other offence. They had a right so to suppose. We will not now argue upon the merits of the instruction prayed. The present question is only preliminary; namely, whether the court will give any instruction at all. It is a motion ex parte. The prisoner is not yet before the court, for he is not now charged judicially, before this court, with any offence, and therefore has no right to appear; and if any thing is said by us in his behalf upon this motion, it is ex gratia, and as amici curiae. To go into the merits of the instruction would be to forestall the trial, and anticipate the opinion of the court. Upon the merits of the question, the court is not committed. It does not follow that the jury mistook the law because they found one of the indictments, and rejected the other. He does not mean to discuss the merits of the instruction; but, in order to constitute any offence does it not require some inferences of fact from the facts stated in the indictment, which inferences can only be made by the jury.
*447 This is a case in which it is necessary to instruct them. The fact that they rejected the bill which contained the word “forged,” and found the same bill without that word, shows that the reason why they rejected the first, was, that they thought the second bill did not charge forgery. But the facts contained in it did amount to forgery, and they ought to have found the first bill. It is evident, then, that they mistook the law. The grand jury have found all the facts which constitute the crime of forgery, and yet the prisoner escapes because a particular technical word is omitted! Is it fit that a culprit should escape on such a ground? Suppose the grand jury should find that the prisoner killed a man with malice aforethought, but should refuse to insert the word murdered, in the indictment, the court would send them back and instruct them that the facts found amount to murder, and that they ought so to find. It would be a disgrace to the court that should refuse so to instruct them. The abstract was such a writing as might be the subject of forgery, and this he understands to be the opinion of this court, or they would suffer him to argue this motion. If a grand jury should refuse to find a bill 'for treason, although they should have found all the facts which constitute treason, he would, if he were prosecutor, move the court to discharge them, and have another grand jury immediately summoned, and should think it his duty to send up another indictment for treason. No grand jury can conscientiously reject a bill from feelings of tenderness, when the facts are clearly proved which constitute the offence. What will be the appearance of our records, if these two indictments should remain upon them, as the matter now rests ?
It is conceded by the United States, that the altered instrument must be a paper by which the United States might be defrauded; but whether it be such a paper is a fact which must be found by the jury, and they have supposed circumstances in which it might happen that they might be defrauded by it; but those circumstances ought to be stated in the indictment. One indictment re--jected by the grand jury puts an end to the prosecution of that offence for that term, and the court will not suffer a new indictment to be sent up to the grand jury, at the same term, if the rejected indictment was a good one. There is no instance in which the court has instructed the jury to find a bill which they rejected, after it has been returned and recorded. 4 Bl. Comm. 308; 1 Chit. 314, 315; 3 Hen. VII c. 1.
Mr. Coxe, on the same side,
contended that by giving the instruction the court prejudicate the whole case, and deprive the defendant of the benefit of a demurrer, by deciding, upon an ex parte hearing, that the indictment was good in law as an indictment for forgery. That the grand jury did not misunderstand the law. They supposed the first was an indictment for forgery, and therefore refused to find it. They supposed the second was not an indictment for forgery, and therefore they found it. In these opinions they have been sustained by the judgment which the court has pronounced upon the second indictment.
Mr. Swann, attorney for the United States, in reply,
contended that the court had the same power over- the grand, as over the petit jury, and the same right to instruct them as to the law of any case before them. Suppose some great and unexpected crime should be committed during the sitting of the court, not noticed in the general charge, could not the court instruct them as to the law of the case, in a supplemental charge? If they should find a bill for murder, without the word “murdravit,” the court would instruct them to insert that word in the indictment, and this may be done at the instance of the United States attorney. So in the present case, the grand jury have found all the facts which amount to forgery; and as the court has decided that the word “forged” is necessary, they will order the grand jury so to find it.
CRAMCH, Chief Judge, delivered the opinion of the court (THRUSTOX, Circuit Judge, dissenting) upon the motion to instruct the grand jury. The counsel for the United States have moved the court to instruct the grand jury, “that the facts and intents, found by them in the indictment, which was decided by the court to be insufficient because it did not use the word ‘forged’ or ‘counterfeited,’ constitute in law, the offence of forgery at common law; and that if. they find, in a. bill of indictment, all the facts and intents necessary to constitute a legal offence, they are bound to call the offence, in the indictment, by its legal and technical name.1' The circumstances which have led to this motion are these: In the early part of this term an indictment was found against the present defendant, for a fraud upon the United States, by means of false pretences, in a transaction with Mr. Harris, a navy agent at Boston. That indictment was, upon demurrer, adjudged insufficient, for want of proper averments in regard to the pretences used. Among those pretences was an allegation of the same facts, relative to the alteration of the abstract B., which, with the addition of the words “forge and,” before the word “alter,” constituted another bill, which was afterwards sent up to the grand jury, and returned “ignoramus.” This bill being thus returned, and filed in the court, the counsel for the United States sent up to the grand jury another bill exactly like it, but leaving out the words “forge and,” before the word “alter,” which the grand jury returned “a true bill;” the only difference between the two bills being, that the former charged that the defendant did “falsely and fraudulently forge and alter” the abstract; and the latter, that the defendant did “falsely and fraudulently alter” the abstract. Both averred the intent to defraud the United States. This latter indictment the court adjudged to be insufficient, because it did not use the word “forge,” or the word “counterfeit.”
It is stated, in argument, by the counsel for the United ■ States, that when the bill, which used the word “forge,” was sent up to the grand jury, the indictment for defrauding the United States by false preten-ces, which the court had, upon demurrer, adjudged to be insufficient, was also sent up, in order to show the grand jury that they had already found all the facts stated in the *449 indictment for forgery, although they had not used the word “forge.” The grand jury, after consultation, informed the attorney of the United States that they could not find the hill with the word “forge” in it, and wished to know whether they might strike it out: to which he replied that they could not alter the bill, but must find or reject it as it was. That, in his opinion, the facts stated in the indictment amounted to forgery at common law, and would justify them in finding the bill as it was sent to them; and, that if they were not satisfied with this opinion, they had better ask the advice of the court. They said they were willing to find the bill without the word “forge.” To which the attorney replied, that if they did not agree to find the bill as it was, he would send them another exactly like it, but omitting that word, and the court would decide whether the facts amounted to forgery. The grand jury, without asking the advice of the court, returned the bill, containing the word “forge,” ignoramus; upon which the other bill, which omitted that word, was sent up, and the grand jury returned it “a true bill.” Upon long argument and great deliberation, the court, upon demurrer, decided that it did not charge the offence with sufficient legal precision, because it did not aver, in express terms, that the defendant “forged,” or “counterfeited,” the abstract. But the court did not give any opinion upon the question, whether the facts stated in the indictment did, in ¡law, constitute the offence of forgery at common law. Whereupon the counsel of the United States made the motion to instruct the grand jury, which is now the subject of consideration, and which, at the request of the court, they reduced to writing, in the following terms, namely— (Here the chief justice read the motion in the words before stated, and proceeded—) It will be perceived that this is, in effect, a motion to the court to send back to the grand jury an indictment, which the same grand jury had, some days before, at the same term, returned “ignoramus,” with an instruction that, if they should find the facts stated in it to be true, they should return it a true bill. Such a motion is certainly unprecedented in this court, and no case has been found, even in the acts of the most arbitrary of the English judges, in the worst of times, which could justify the court in giving the instruction asked, in the particular circumstances of this case. On the contrary, in 3 Harg. St. Trials, 152, it appears that Chief Justice Scroggs, Chief Justice North, Mr. Justice Jones, and Mr. Baron Weston, were impeached by the house of commons, in 32 Car. II; and one of the charges against them was, that they had discharged the grand jury before they had finished their business, because they had asked the court to present their petition to the king, praying him to call a parliament Yet the counsel for the United States contend, that if this court should be of opinion that the grand jury refused to find that bill, from an unwillingness to convict the accused of the crime of forgery, the court ought to discharge this grand jury, and hold the party bound to answer to another, which should be immediately summoned.
The opinion of the chief justice of the supreme court of the United States, in the case of Colonel Burr, has been cited in support of this motion. But the motion in this case is far more extensive than the motion in that; and the instruction now asked goes far beyond that which was actually given by the chief justice. There, the instructions prayed were confined to the admissibility and competence of evidence in general. Here, they extend to all the particular facts charged in the bill, as constituting an offence. To give this instruction, therefore, is to prejudge the whole question, which would arise upon a demurrer to the indictment. There, the opinion actually given, extended only to papers of a certain description, which might, possibly, be offered as evidence to the grand jury. 1 Robertson’s Report of Burr’s Trial, p. 202. Here, it is not confined to the admissibility or competency of the evidence, but takes in the whole merits of the case, upon the particular facts alleged in the bill. There, the motion was originally.made immediately after the chief justice had delivered his general charge to the grand jury, at the opening of the court, and before any bill had been sent up; and the instruction was given while the bills were pending before the grand jury. Here, the instruction is prayed after the grand jury have acted upon the case, and returned the bill ignoramus. There is, therefore, no similarity whatever in the circumstances of the two cases, except that the prayer for instruction did not, in either case, come from the grand jury themselves.
There is no doubt that this court may, in its discretion, give an additional charge to the grand jury, although they should not ask it; and, when they do ask it, the court, perhaps, may be bound to give it, if it be such an instruction as can be given without committing the court upon points which might come before them on the trial in chief. This is the utmost extent of the dictum of the chief justice, in the trial of Colonel Burr; for he there said—“That it was usual, and the best course, for the court to charge the jury generally, at the commencement of the term, and to give their opinion upon incidental points as they arose, when the grand jury should apply to them for information; that it was manifestly improper to commit the opinion of the court on points which might come before them, to be decided on the trial in chief; that he had generally confined his charges to a few general points, without launching into many details. One reason was, that some of the detailed points might never arise during the session of the grand jury, and any instructions on them would, of course, be unnecessary; another was, that some of these points might be *450 extremely difficult to be decided, and would require an argument of counsel, because there was no judge or man who would not often find the solitary meditations of his closet very much assisted by the discussions of others; that he would have had no difficulty, however, in expanding his charge, if he had been particularly requested to do it, if he could have anticipated any necessity for it; and that he would have no difficulty in giving his opinions, .at this time, on certain points on which he could obtain a discussion by counsel, provided he did not thereby commit his opinion on the trial in chief." 1 Burr’s Trial, p, 174.
When an instruction to a grand jury is asked, either by the accused or the prosecutor, it is a matter of discretion with the court to give the instruction or not; and, in exercising that discretion, they will take into consideration all the circumstances under which the instruction is prayed, and the extent of the prayer. The counsel for the United States, however, have contended, that whenever the court shall perceive that the grand juiy have erred in matter of law, by rejecting a bill which they ought to have found, and it is presumed that their doctrine includes also the finding a bill which they ought to have rejected, the court ought to instruct them as to the law, if asked so to do by either party. But to what purpose should the court instruct them after they have acted upon the case, and found or rejected the bill, unless a new bill should be sent to them for the same offence, by means of which they could correct their mistake? This is now proposed by the counsel for the United States to be done, by sending up to the same grand jury a new bill, exactly like that which they have rejected. This is, in effect, to return them the same bill. But this is contrary to the well-established immemorial usage of courts in England and in this country. The usage is stated by Sir W. Blackstone; who says, that when the bill is returned “ignoramus,” or “not found,” the party is discharged without further answer; but a fresh bill may afterwards be referred to a subsequent grand jury. Vol. 4, pp. 305, 308. It is also stated by Archbold (Cr. Pl. 34), by Chitty (1 Cr. Law, 325), and by. other elementary writers; and, after a diligent search, we have found no ease, nor dictum, to the contrary. Nor have we found any case in which it has been decided by a court, either in this country or in England, that the grand jury should be discharged because they had found or rejected a bill, contrary to the instruction of the court, and a new grand jury, for that reason, summoned to attend at the same term. The usage is supported by the same principles which support the trial by jury; for of what value would the trial by jury be, as the “palladium” of personal liberty, unless the jury should be independent, and could give their verdict, especially in criminal cases, freely and according to the dictates of their consciences? Sir William Blackstone says, that the trial by jury is the grand bulwark of an Englishman’s liberties. “The antiquity and excellence of this trial, for settling of civil property,” he says, “has been before explained at large; and it will hold much stronger in criminal cases, since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject, than in disputes between one individual and another, to settle the metes and boundaries of private property. Our law has, therefore, wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown.” “The founders of the English law have, with excellent forecast, contrived that no man shall be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should be afterwards confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none, will be so hardy as to make,) but also from all secret machinations which may sap and undermine it, by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet, let it be again remembered, that delays and little inconveniences, in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.” And Sir Matthew Hale (2 Hale, Hist. P. C. 160) says—“But, in my opinion, fines set upon grand juries by justices of the peace, oyer and terminer, or jail-delivery, for concealments or non-presentments, in any other manner” than by another inquest, under the statute of 3 Hen. VII. c. 1, “are not war-rantable by law; and although the late practice hath been for justices to set fines arbitrarily, yea, not only upon grand inquests, but also upon the petit jury, in criminal cases, if they find not according to their directions, it weighs not-much with me, for these reasons: (1) Because I have seen arbitrary practice still going from one thing to another. The fine set upon grand inquests began; then they set fines upon the petit juries, for not finding according to the directions of the court; then, afterwards, the judges of nisi prius proceeded to fine juries in civil causes, if they gave not their verdict according to direction, e.ven in *451 points of fact. (2) My second reason is, because the statute of 3 Hen. VII., c. 1, prescribes a way for their finding, which would not have been if they had been arbitrarily subjected to a fine before. (3) It is of very ill consequence; for the privilege of an Englishman is, that his life shall not be drawn in danger, without due presentment or indictment; and this would be but a slender screen or safeguard, if every justice of peace, or commissioner of oyer and terminer, or jail-delivery, may make the grand jury present what he pleases, or otherwise fine them.”
The principal value of a grand jury, as a protection to the personal liberty of the citizen or subject, consists in the independence of the jurors. That independence, in order to be valuable at all, must be such as to prompt and enable them to oppose or to disregard what they may deem the arbitrary and illegal instructions of the court; and to render that independence available, the right of a grand iury to find or reject a bill, without assigning any reason therefor, and thereby to take upon themselves the decision of both law and fact, must be maintained inviolate, however true it may be, in theory, that ad.quaestionem juris non respondent juratores. And the same principle is applicable, with equal force, to the right of the petit jury to find a general verdict, in criminal cases. So strongly has this principle been adhered .to by the people of England, that not a case, it is believed, can be found among the decisions of the most arbitrary judges, in the most turbulent times, in which a new trial has been granted in a criminal cause, because the verdict of acquittal was against the plainest evidence, and the most positive instruction of the court in matter of law. Hawkins (bk. 2, c. 47, §§ 11, 12) says: “It hath been adjudged that if a jury acquit a prisoner of an indictment of felony, against manifest evidence, the court may, before the verdict is recorded, but not after, order them to go out again and reconsider the matter; but this is, by many, thought hard, and seems not, of late years, to have been so frequently practised as formerly.” “However, it is settled, that the court cannot set aside a verdict which acquits a defendant of a prosecution properly criminal, las it seems they may a verdict that convicts him,) for having been given contrary to evidence, and the directions of the judge.” If a verdict of acquittal, found upon consideration of the evidence on both sides, is thus peremptory and intangible, a fortiori, should the return of “ignoramus,” by a grand»jury, upon consideration of the evidence on the part of the prosecution alone, be equally sacred; at least during that term. This rule, which we think as well settled as that in respect to the verdict of the petit jury, seems to us to render it- improper that we should now give the instruction which is asked by the counsel for the United States. But there are other reasons why we should not give it, some of which have been before intimated. One is, that the instruction extends to the whole case as stated in the bill, and is, in effect, an instruction that the bill, if found, will be a sufficient indictment, in law, to charge the defendant with the crime of forgery at common law; thereby forestalling the opinion of the court upon all questions of law which might arise on demurrer. Such a commitment of the opinion of the court, upon points which may arise in a subsequent stage of the prosecution, we consider (to use the language of the chief justice of the United States) to be “manifestly improper.”
Upon this subject Lord Coke, in his 3d Inst, p. 29, has the following observations: “And to the end that the trial may be more indifferent, seeing that the safety of the prisoner consisteth in the indifferency of the court, the judges ought not to deliver their opinion beforehand, of any criminal ease that may come before them judicially.” “And therefore the judges ought not to deliver their opinions beforehand upon a case- put and proofs urged on one side, in the absence of the party accused.” "For how can they be indifferent, who have delivered their opinions beforehand without hearing of the party, when a small addition or subtraction may alter the case? And how doth it stand with their oath who are sworn that they should well and lawfully serve our lord the king and his people, in the office of a justice, and that they should do equal law and execution of right to all his subjects.” And again, in the next page he says: “The king’s learned counsel should not, in the absence of the party accused, upon any case put, or matter showed by them, privately pre-occupate the opinion of the judges.” But upon a point so clearly supported by the principles of natural justice, it is needless to state authorities. Another reason why the court should not give the instruction, is, that it is a very debatable question whether the facts stated in the bill which is now proposed to be sent up, or rather sent back, to the grand jury, do, in law, constitute the offence of forgery, at common law. Much may be said, and much has been said, on both sides. The court did not find itself obliged to decide that question upon the former argument, and therefore declined. For the same reason it declines now. These reasons for not giving the instruction, it will be perceived, are equally valid, whether the grand jury did or did not, act under a mistake of the law. That question, the court does not undertake to decide in this stage of the prosecution, for the reasons before stated. For the same reasons the court deems it to be its duty to refuse to instruct the grand jury as prayed by the counsel for the United States. See 1 Chit. Cr. Law, 696 . Judges not to give their opinion prematurely.
THB.USTON, Circuit Judge, dissented from the opinion of the court, as follows: This is a motion on the part of the counsel of the United States to instruct the grand jury in the following terms: (Here the judge read the motion in the terms before mentioned.) The *452 prosecution presents very extraordinary incidents which have occurred in the various efforts of the prosecutors to reduce their charges to legal forms, so as to present some specific charge which may put the accused on his trial before a jury of his peers. Among the numerous bills of indictment which have been preferred, and found by the grand jury, not one has had sufficient technical precision to stand the test of the touchstone of the laW. They have been found, in the opinion of the court too inartiflcially drawn up, and therefore, not sufficient to compel the accused to deny the charges, and submit to trial. They have been all, therefore, upon demurrer, deemed insufficient and invalid. But, notwithstanding, I have seen in every one of those indictments sufficient evidence of crime imputed to the accused, although their forms have been defective. I have seen substantial evidence of gross frauds against the public, and, (as at present advised,) of forgery at common law. Two distinct charges have been attempted to be preferred against the accused; the one for fraud, the other for forgery. The one for fraud has been divided Id to, I think,- three independent grounds of accusation; for fraud committed in transactions with certain navy agents- at different times. So that though there are as many as three grave charges against the accused, supported by such facts and intents, found by the grand jury, as satisfy the court that the accused ought to be put to answer them, yet, in- some six or seven weeks spent in disquisitions on technical niceties, we have not advanced one inch, but are brought by the ambages of the law, after a six weeks’ tour through fields and wastes of thorny- subtleties, to the point from which we started; and yet it is remarkable that all those indictments have been deliberately prepared by two distinguished and learned counsellors; and although, to my conception, they exhibited to the accused, in every instance, according to common sense, and common understanding, manifest and clear information of the crimes imputed to him, so as to enable him to know how to defend himself; which is, I believe, the only essential matter required by the law as regards certainty and precision in indictments; yet they were deficient in legal in-tendment; the averments were wanting, or wanting in the right place, or were inarti-ficially made, a fatal “as,” in one instance infected the averment, and defeated the charge of false pretences. In a second indictment for fraud at common law merely, without false pretences, I had the misfortune to differ from •the two other judges; and after all that I have heard, I am still at a loss to discern in what it was deficient; but it has been so ruled, and I bow with deference to the judgment of the court. In the next indictment for forgery, where I was one of the majority of the. court, the indictment failed because the. word “forged” was wanting. Now, at this moment, .after further reflection, I am not clear that I was right in deeming this word so essential in a charge of forgery, that it cannot be dispensed with and supplied by what may be supposed equivalent words. But I considered it one of those, of which there are a number well settled, that no paraphrase will do where there are no equivalent words, as there are none for that very classical and elegant word, “murdravit,” in an indictment for murder. I have heard from very good authority, that learned lawyers have differed in opinion as to the judgment of the court on this indictment; some maintaining the word “forged,” in an indictment for forgery, to be indispensable; others holding to the contrary. I said I was not clear that I was right in the opinion I gave as to the word “forged,” and what judge can be clear in such niceties? I thought, however, I was right as the law now stands, and so I gave my opinion. And as to distinct and clear perceptions of law, on points of special pleading, or indeed, almost any other points, founded on common law, and the decision of courts, and not on statutory enactments, (laying aside-those great departments of the law which define the general rights of persons and' things, and are, perhaps, reasonably definite and settled,) few judges will have the boldness to assert that they are fortiinate enough to entertain them. Advance into the intricate fields of practice, of special pleading, of the innumerable cases growing out of nisi prius trials, and what perplexities occur? And where is the law, in these latter branches to be found? In thousands of books daily issuing from the press, in reports, treatises, and elementary writers, of which' we have bales and boxes flowing in from England, and from the state courts of twenty-four states, from the supreme court, from the circuit courts of the United States, which far surpass all human power to read and understand; and if they could be read and understood, they are beyond the means of any judge to procure. There is not a term of the court in which I am not surprised with some new book brought forward as authority, I never heard of before; they have supplanted the good old authorities and reporters which I was familiar with in my younger days, and which one seldom hears cited now. These multiplied instruments of puzzling and perplexing a court, in the' hands of ingenious counsel, afford, I trust, an apology for judges who hesitate or doubt on difficult cases, inasmuch as, from the very nature and character of language in general, the indefinite meaning of words, and more especially from the discrepancy that necessarily must exist between any ease pending before a court, and any other adjudged case, in circumstances and incidents; it is a very difficult matter to discern when a precedent appears to it, and when not. It may truly be said, therefore, that nothing is more uncertain than the law; if it were not so, how do those frequent reversals occur in the appellate courts, of the decisions of the-most learned judges? Among *453 the most renowned jurisconsults in the United States, was a reverend gentleman who was considered as the most learned man of his day, as well as the most eminent lawyer, and whose name is to be found among the distinguished patriots who asserted our independence, and signed its charter; and since this gentleman became a judge or chancellor of Virginia, his opinion on law matters was deemed infallible, yet no judge ever had the misfortune to meet with more reversals of his decrees, so that he was at length driven to publish a book in vindication of his opinions. A rare book, but which I once met with, and was greatly amused with his acrimonious strictures on the appellate court. If such be the fate of so great a man, shall we not be excused, if we have been mistaken? and more particularly as we have crude points growing out of the most intricate branch of •the law, namely, special pleadings? Now if two learned counsellors have not been able to frame one single indictment, (out of a number, some six or seven,) which has stood judicial scrutiny, it affords a proof that this department of the law is exceedingly unsettled and doubtful, and yet, .let any man, i>ot learned in the law, take any one of these indictments, and be asked if he- does not clearly discern the nature of the accusation, and if it does not afford a satisfactory notice to the accused, of. the offence with which he is charged, and I think he would answer affirmatively—the common sense and legal sense are at variance. Then, if I had the power, I would do away yrith all this artificial logic and reduce pleading and all judicial proceedings to more plainness and simplicity. Now, suppose instead of all the forms, averments and intents required, it seems, in an indictment for forgery, that now subsist, such an indictment as the following, merely by way of example were substituted: A. B. you are Indicted for forgery in making certain alterations, with a fraudulent intent to defraud the United States, in a certain abstract returned by- Harris, navy agent, and which abstract is in the following words (here insert It,) which alterations are as follows, you erased the words, &c., &c. Now will any man say he would not have sufficient notice, from such a statement, to enable him to defend himself? Take a civil case, trover for instance, instead of those foolish fictions and falsehoods of the loss of the horse by the plaintiff, and the finding him by the defendant, the plaintiff were to file his declaration in the following words: I have sued you for a horse (here describing him,) which you have in your possession, and which I claim to be mine. Or a note of hand; I have sued you on a note of hand, a copy of which here following, (insert a copy of the note.)' And so, or some such simple but clear exposition, of the cause of action in every case. Shall I be deemed to have travelled out of the line of my judicial functions in suggesting these evils of our present, system, and the advantages of some legislative correction of them? They have been for a long time forcibly pressed on my mind and I have been tempted, from the six or eight weeks’ discussion of the subject, in the case of Mr. Watkins, to give vent to them. We have the example of a very eminent lawyer in England, who has taken up the matter there, and suggested many beneficial clauses in the laws; but he took care to withhold his good until he had made his fortune, and reaped the golden harvest of the existing vicious system. Let not these few cursory observations subject me to the criticisms of the gentlemen of the long robe. I pretend not to be able to suggest a corrective of the evils of such deep root and long standing. I hope some abler hand will do this. I know they are evils of great magnitude, and vast injury to society. It would not avail now to add more on this topic, and it is time to take up the consideration of the question before us.
We are asked to instruct the grand jury, “that the facts and intents,” in the indictment (which the court adjudged not sufficient as an indictment for forgery for want of the words “forged,” and “counterfeited” as one of those,) amount to the crime of forgery at common law; “and that the grand jury if they find in a bill of indictment all the facts and intents necessary to constitute a' legal offence, are bound to call the offence in the indictment, by its necessary legal and technical name.” It is with much solicitude that I enter on the examination of this proposition, because it is one of those cases in which we have few lights to guide us; that is of rare occurrence and precedents are hardly to be met with. The first point to be considered is, do the facts and intents, found by the grand jury in the two indictments, the one which was returned by the grand jury, “ignoramus,” where the word “forged” was inserted; and the second returned “a true bill” where that word was wanting, but which were identical in every other respect, amount in law, to forgery at common law? Now this point was fully argued on the demurrer to the indictment; but the court having adjudged it lost for the want of the word “forged,” refused to give an opinion on any other point I was, myself, willing, at that time, to have given an opinion; nor did I see any just ground to refuse to do so; but I acquiesced in the judgment of a majority of the court.
I now pronounce my opinion, that the facts and intents, so found, do amount to forgery at common law. In 2 East, P. C. p. 850, the writer says it was never doubted that forgery, at common law, extended to the falsification of records and other instruments of a public nature; and, after a review of the opinions of the most respectable authorities, as to what private instruments there may be forgery of, at common law, concludes the paragraph (page 861) with these words—“but the following case has now settled the rule,” that the counterfeiting of any writing with a *454 fraudulent intent, whereby another may be injured, is forgery at common law. The cáse alluded to is Ward’s Case, reported in 2 Ld. Kaym. 1461. It was not contended, in the argument, that the abstract set out in the indictment, of (as) a public instrument, was not one of which forgery might be committed; it was declared only that it was (not) a public instrument. It behooves us, then, to consider the character of this paper. A navy agent is a public officer, into whose hands large sums are confided, to be disbursed for the public service. An abstract is, as far as I understand it, a condensed statement of those disbursements, returned to the proper accounting officers of the treasury department, and there filed, as the account of the agent of those disbursements; the public is a party to it; it informs them how the money, intrusted to the agent, has been employed; and, if this be so, why is it not an instrument of a public nature? But admit the paper not to have been a public paper, but a private one; suppose it to have concerned the interests of the navy agent only. A material alteration of an instrument of this sort, according to Ward's Case, would be forgery at common law; and then the alteration might, perhaps, have been alleged to injure the agent, because it would have the effect of preventing his obtaining a credit with the government for the moneys paid to the drafts of the accused. Whether the government would, or will, give the agent credit for those moneys or not, is immaterial. The agent may, certainly, it appears to me, be prejudiced by this alteration. But however that may be, it is of no importance if the instrument be of a public character; of which, it seems to me, there can be no doubt.
It remains to be considered, whether or not the public may be injured or prejudiced by this alteration. And surely they may be, and, indeed, have been injured by it. Has not their money been withdrawn from public purposes, its true destination, and gotten into the hands of an individual, for private purposes? This is unquestionable. Now this took place in 1827, and was not detected until 1829. Why? Because the items, charging that money to the accused, were obliterated. They could not, therefore, have the means of calling their agent to account for it. Then, whatever may have been their ulterior views, as to making the agent responsible for this misapplication of public funds in his hands, they have been deprived of the means of doing so for a year and a half. If the accused be responsible, they have equally. been deprived of the means of calling him to account. If this be no detriment,’ or prejudice, then the public not only may have been, but actually have been, prejudiced by this alteration, or falsification of the abstract. In fact, their money is gone, and it is no argument that the navy agent is responsible for it. If my check on the bank is forged, is it less a fraud, on me, that if the money be paid on such forged check, I may recover it of the bank? Then the instrument is one susceptible of forgery, and the public may be prejudiced, and the alteration of it in a material part is forgery. Now for the aver-ments and intents. The alteration is charged to have been falsely and fraudulently made, with intent to defraud the United States. Here there is charged falsification, or alteration of a public instrument, in a material part, with sufficient averments and intents, and this constitutes forgery; and the charge in the indictment, as laid, amounts to forgery, but the technical words, “forged” or “counterfeited,” are wanting; and although the charge in the indictment amount to forgery, yet is the indictment not good for want of those, or one, at least, of those technical words.
The only, but indeed the most difficult and momentous question, which now remains to be considered is: Shall this court instruct-the grand jury, that they should supply or insert those words; or, in the words of the instruction, call the offence in the indictment by its necessary, legal, and technical name? We have been warned that this proposition leads us into almost untrodden ground. That the provinces of the court' and grand juries are so distinct, that we must not, unadvised, invade their sanctuary. That supplemental charges are rarely made, and only on genuine and abstract topics. That we are now called on to give a specific instruction in a particular case. I confess I am in great perplexity, from the novelty, as well as the great importance of the proposition. But all that is left for us, in the dearth of precedents, is’to try the question by the touchstone of reason, with such lights as the few eases cited afford; of which, perhaps, the strongest are reflected by the observations of the enlightened chief judge in Burr’s Trial, and to which I shall confine myself. Instructions to grand juries, after their retirements, are of very rare occurrence, from the nature and character of their institution. The court can never be informed that the grand jury desires their advice, unless they themselves suggest it. And, as indictments are generally prepared by learned counsel, few cases occur, of informality or inaccuracy, in the technical part of the instrument. It can rarely happen that an application can be made to the court, to supply any formal defect in the bill, after it is returned into court. Hence, perhaps, the want of precedents. Instruction to petit jurors, at the instance of either party, is of every day’s occurrence; and, on principle, it is not easy to discern the difference between an instruction to a petit and a grand jury, except what grows out of the organization and the peculiar character of each of those tribunals. In trials before the court, by petit juries, the judges hear all the evidence and the case set out in the declaration. They have it all before them, and never refuse to instruct, if required by either party, on the *455 law of the case; leaving the facts exclusively to the consideration of the jury. But they hear nothing of the investigations before the grand juries; and, until the bill or presentment is returned, are utterly ignorant of what the jury are about. Then if a party, whose case is before the grand jury, or the attorney for the United States, were to ask the court for instructions upon the facts, could the court grant instructions? Shall the party accused, against whom a bill is filed, ask the court to instruct the jury that certain facts, stated in the instructions prayed for, do not constitute, in law, larceny, or forgery, or robbery, or whatever charge the accused apprehends may be laid against him before the grand jury? Or, on the other, (hand,) shall the prosecutor ask the opposite, that such do amount to such or such an of-fence? Clearly, for obvious reasons, the court would reject such an application. They have not heard'the testimony, and, therefore, cannot discern that the instruction prayed is founded on the- facts of the case; nor that the grand jury desire information; and the court will not, unadvisedly, commit themselves on propositions connected with particular cases. The character and credit of the judge might be in jeopardy by such a proceeding. Hence it may well be asserted, as a general rule, that a court will not give supplemental charges to a grand jury, especially touching a case before them. But, as to supplemental general charges, I do riot see why a judge may not have the grand jury brought into court at any time, to supply an omission in his charge before their retirement. Suppose a judge had omitted to animadvert upon some particular statutory offence, which he is. by the same statute, required especially to call the grand jury’s attention to, shall he not be permitted to supply this omission in a supplemental charge? Suppose he had omitted to notice some particularly prominent mischief, which required the corrective notice of the grand jury, shall he not, also, give a supplemental charge in this case? It seems to be as untenable a general proposition, that a court or judge ought not to make general supplemental charges, as that no circumstances can occur in which they can instruct and charge in particular cases; but instances of either character are exceedingly rare, and, therefore, the want of precedents is considered as equivalent to a want of power. But as rare as precedents are, we have a notable one in the report of Burr’s Trial. Let us examine carefully the reasoning of the judge in that case; and, as whatever law opinion he has pronounced, ought, deservedly, to be of the highest authority, I shall take it for my guide, as far as it is applicable to the ease before the court.
I have not been able to find what charges the chief justice had prepared to give the grand jury, as it does not appear in the volumes submitted by the counsel to the court, namely, 1 Robertson’s Report of Burr’s Trial. But the chief justice says, in page 175, that he had drawn a charge, and submitted it to Mr. Hay; nor does it appear, that I can find, that he ever gave his charge to the grand jury; but there does not seem to be any doubt that he would have given it, if subsequent events had made it necessary. From this proceeding, then, I understand that the chief justice was prepared to charge or instruct the grand jury, on a particular case before them, and before a bill was found, on points of law bearing on that case. I do not know, either, whether the prepared charge embraced all the points submitted to the court by Mr. Burr; but it is a fair presumption that it did, as the chief justice made no exception to any of them. In page 74, the chief justice says—“It was manifestly improper to commit the opinion of the court, on points which might come before them to be decided on the trial in chief.” Not improper to charge or instruct, but to commit the opinion of the court. And, in page 175, he says—“He would have no difficulty, at this time, in giving his opinions on certain points, on which he could obtain a discussion by the counsel,” with a proviso, “still, that he did not thereby commit his opinion on the trial in chief.” Then the chief justice had no hesitation to charge the grand jury, in a particular case before them, on certain points; and if the points are those stated in Burr’s seven propositions,—and we have no reasons to suppose otherwise,—we see what they are. Now let us examine those, and see whether the Instruction prayed for from this court would be more a committal of our opinions on the trial in chief, than those would have been in that case. If the instructions embraced those seven propositions,—and it is very reasonable to suppose they did, as they alone were prayed for of the court, and it is not to be presumed that the chief justice would volunteer instructions,—can any man read them and say, that, if not all, most of them might be the subject of contest on the trial in chief? Mr. Hay, in his objections to them, intimates that they may be subjects of discussion which might consume much time; then they were not all self-evident propositions; and. if so, I cannot observe why they might not, if given in charge to the grand jury, be as much a committal as any other matter of law, for every one of those points might be disputed, and some of them successfully; for I can hardly suppose them all true, under all possible circumstances and modifications. But perhaps, the chief justice’s prepared instructions did not embrace all, or any of these points. Brit he certainly prepared and offered to give instructions. Could the chief justice mean, by not committing his opinion, that the instruction embraced only self-evident propositions? There are not many such in law, nor could an instruction be well needed on a self-evident point; but *456 they could not be self-evident points, because tbe chief justice says (page 175) be would have no hesitation in giving his opinions, at this time, on certain points on which he could obtain a discussion by counsel, provided, ¿tc.; therefore they were not self-evident, but disputable points, and he would be sure to meet them again on the trial in chief. What, then, is a committal of opinion? Does it mean an opinion given on a point, which cannot recur on the trial in chief? I should be glad to be informed what sort of point of law this could be. If the chief justice would not have met these points again, on the trial in chief, after this declaration of non-committal, I can only say that the counsel would1 have conducted their client’s cause with very little astuteness, and that is not to be presumed. Nor can I hardly imagine a point, on which instruction can be given to a grand jury in a matter of law, touching a case before them, which may not be contested, and the opinion of the court required on the trial in chief. But it was urged by the defendant’s counsel, who did not deny that instructions were given, that they were confined to the competency or admissibility of evidence; and what points are more disputed, or more difficult, often, of solution, than the competency of evidence? If a judge can instruct a jury on this point, I do not see why he may not on any other.
One word more, on the limitation which the chief justice establishes to instructions to be given to a grand jury; it is, “that thereby he did not commit his opinion on the trial in chief.” As far as I can understand this limitation, it means this, that he will not anticipate opinions in this stage of the proceedings, which he may, afterwards, on more full and solemn argument and consideration, be exposed to the necessity of revoking on the trial in chief. There is good reason in this; and if I could discern what points such might be, I should not hesitate to approve this limitation, and to be governed by it. At all events, however difficult it may be to characterize or generalize instructions, that may or may not be given, we shall, before we conclude, examine the instructions prayed in the case before us, and see how far a judge would commit his opinions on giving them; and I think I shall be able to show that no instruction could be well asked for, in which less hazard of committal could be incurred. Then it is manifest that, in the opinion of the chief justice, there is no impropriety in giving opinions or instructions to the grand jury in particular cases, then under examination by them; and, as to this, the chief justice uses strong language. He says, that he would have no difficulty in giving his opinions at this time.' Now let us see what difference there was in the case before the chief justice, when instructions were asked from him, and the one before this court, in which instructions are asked from us. In that ease, instructions were asked and agreed to be given before any bill was found; the instructions, then, must have had an influence on the grand jury,—they must have been led by them. But, in the case before this court, the jury have acted untram-melled, by their own light. They have found the bill. We are not asked to tell them what they might, and what they might not lawfully do; we are only requested to inform them of the effect, in law, of what they have already done, and merely to supply a. matter of form; to give a legal name, in the language of the instruction prayed, to what they have done. Now, if the day shall ever come, (which may God avert from us,) when courts might be supposed corruptly to favor prosecutions on the part of the government, there might be some danger of their interfering with grand juries, while the party charged was under examination before them; because they might artfully lead them to find bills against innocent persons, and on frivolous accusations. When the bill is found, the jury have performed their office; the act is entirely theirs; they have not been directed, instructed, or influenced by the court.
I have already given my opinion as to the legal import and effect of the facts and intents found in the indictment before us. I have said that, in my judgment, they amount to forgery; and of this opimon, I believe, were the other judges, or, at least, I so understood them, although they refrained from pronouncing it. This point has been solemnly argued on demurrer; the character of the abstract was examined; it was denied, by the counsel for the accused, to be a public paper, and, therefore, not susceptible of forgery; and if it were, it was denied that, by the alteration of it, the United States could be prejudiced. These points having been fully discussed, we were called upon to give an opinion on them. Now, as -to these main points, no instruction is prayed for; we are only asked to instruct the jury that the bill found by them charges forgery. They are not, therefore, to do any thing more; not to act again on these points. The only thing they would be required to do, would be to supply a matter of form,—to call the thing by its right name. Now, in instructing the jury to do this, it is impossible we can commit our opinions; because the counsel for the accused can never urge that this word “forged,” if inserted in the indictment. can vitiate it. On the contrary, they argued that the indictment was bad without it. The question can never occur again, on the import and effect of this technical phrase.
It was argued, by the counsel for the accused, that if- the court should instruct the jury to insert the necessary technical words, it would be impeaching the integrity of the jury; inasmuch as it would be an insinuation that the jury had. found the essence of the crime, but had refused to give it a name. God forbid that I should impeach the integrity of the jury. 1 would much rather applaud their diffidence, their reluctance to de *457 cide doubtful points of law,—points which have admitted of very long and able attempts of learned counsel at the bar, whether the facts and intents found amounted to forgery or not; and of this the jury might well doubt, and, therefore, might well hesitate to find the first indictment, where forgery was charged in all the forms of law. Without violating every principle of that comity, of that respectful consideration due from one tribunal of the same court to another, no other interpretation can be put on their doings in regard to these two bills. But we are not driven to the necessity of resorting even to common courtesy for this interpretation; we have evidence of it. The attorney for the United States informs us, “that when the first indictment was before the grand jury, they asked him whether they might strike out the word ‘forge,’ and find the facts and intents alone. The attorney said no; he would prefer laying before the grand jury a new indictment, in the same words, without the technical word ‘forge,’ and the court might then decide whether the facts and intents set forth in the bill amounted to forgery'or not.” These are the very words of the attorney. Now, as far as motives can be proved, does not this statement of the attorney come as near positive proof as may be, that the jury were influenced by doubts as to the legal character of the of-fence, growing out of the facts and intents found. He informs them they might so find the bill, and “the court might decide on the ■effect of the finding;” they therefore found the facts and intents. Had the jury been influenced by improper motives, by any unwarrantable lenity towards the accused, they would hardly have discussed this matter with the attorney for the United States. No other -construction can be put upon their doings, than that they very laudably refrained from -committing themselves on a doubtful point of law. But the attorney told them “the court might decide;” and thereupon they found the facts and intents. Decide what? Why, the law, of which the jury were doubtful. Decide, for what purpose? To inform the minds ■of the jury? If so, it is a submission, through the attorney, of the law of the case to the court; and the court ought, therefore, to decide it, and inform the jury of that decision. This, then, is tantamount to asking an instruction; not, to be sure, through their foreman, but through their law adviser, the attorney for the United States.
But suppose the attorney had permitted the jury to strike out the word “forged” in the first bill, and they had returned it a true bill, —and this, perhaps, would have been the most simple course of proceeding; would not the court, under the general authority given to them, when grand juries return presentments and bills into court, to “alter matter of form, not matter of substance,” have been bound, on inspecting the bill and finding that the facts and intents found amounted to forgery, to inform the jury of the fact, and that the word “forged” was a formal technical word, necessary to give a legal name to the offence? It seems so to me. Suppose, in Burr’s Case, the jury had found all the facts and intents necessary to constitute treason, and the chief justice, on inspecting the bill returned into court, had found the technical word proditorie wanting, would he not have been in the line of his duty in saying to the jury,—“Gentlemen, you have returned a good bill for treason, except in one word; you have omitted the word proditorie, (or treacherously, in English.) It is a word sanctioned by immemorial use, and, therefore, indispensable in an indictment for treason; be pleased to insert it. You have found the substance, but omitted a form.” I see no objection to such a proceeding. If this be the case, can the scruples of the attorney, as to the jury’s striking out the word “forged,” in the first indictment, and submitting a second to them, of the identical tenor of the first, without this word, alter the case?
From the foregoing observations and reasoning, (if these remarks may be dignified with such a name,) I am led to the following conclusions. That we have the highest authority for saying that the court may give general supplemental instructions to a grand jury; that they may go further and instruct them on points of law touching cases' under examination before the grand jury and before the bill is returned by them; and, a fortiori, on matters of law growing out of the indictment itself when found by the grand jury, that the only limit is, that the court will not, in the exercise of this discretionary power, (not that they may not) commit their opinion on the trial in. chief. That in instructing the jury that the word “forged” was a necessary form in an indictment for forgery, after they had found the essence of the offence, could not commit the opinion of the court on the trial in chief, because it could never be the subject of future debate, inasmuch as the counsel for the accused themselves, maintained that this word was necessary to give effect to an indictment. That as to the essence of the offence found in the indictment in question, it is incumbent to inform the jury that it is forgery, or there must be a failure of justice, inasmuch as we have undoubted evidence of an offence having been committed, or, at least, the strongest probable cause for believing that it has been committed; and unless we act on the case in the manner required of us, the offender, so far from being punished, if guilty, eannot even be brought to trial. That if, by this refusal of the court to do what is required, there be a failure of justice, it is the strongest evidence that the court cannot be right. That it is a solecism to suppose an offence of great moral turpitude, and of dangerous example, and evil to (he community, can be perpetrated, and yet that the laws afford no means of bringing the guilty to atone for his offence. That it is of the utmost importance to the well being of *458 society that whilst courts are protecting with jealous care the personal rights of individuals, they forget not their duty to the people and the rights of the community; and, finally, that as 1 am of opinion that the facts and intents found in the indictment amount to the crime of forgery at common law, it is incumbent upon me under the circumstances of the case, and for the reasons assigned above, to tell'the jury so, and that they ought therefore to give validity to their act, and sanction and vigor to the law, “by calling the offence in the indictment,” (to pursue the language of the instruction,) “by its necessary, legal, and technical name.”
The result of these opinions was, that the motion to instruct the grand jury was overruled. Before that motion was made, namely, before the 25th of June, the grand jury had found three other indictments against this defendant, upon three separate transactions:
(1) The first was upon a transaction for $750 with Mr. J. K. Paulding, navy agent at New York. It avers that the defendant, T. W., was 4th auditor of the treasury of the United States, and as such, required by law to receive all accounts accruing in the navy department, or relative thereto; to keep all accounts of the. receipts and expenditures of the public moneys of the United States in regard to that department, and of all debts due to the United States, or moneys advanced relative to the said department; to receive from the second comptroller the accounts relative to the said department, which had been finally adjusted, and to prepare such accounts with their vouchers and certificates, and to record all warrants drawn by the secretary of the navy, the examination of the accounts of which is by law assigned to the said 4th auditor; and to make such reports on the business of the said 4th auditor as the secretary of the navy should deem necessary and. require for the services of that department. It further avers that Samuel L. Southard was secretary of the navy of the United States, and as such had authority to issue requisitions to the secretary of the treasury of the United States, countersigned by the second comptroller and registered by the 4th auditor, for moneys appropriated by law for the use of the navy department; whereupon the secretary of the treasury was authorized by law to grant his warrants on the treasurer of the United States for the amounts, and according to the sums of the said requisitions. That J. K. Paulding was a navy agent, residing in the city of New York, and was required by law to render his accounts to the 4th auditor. That on the 2d of March, 1827, an act of congress ( 4 Stat. 206 ) was passed, making appropriations for the support of the navy of the United States, in which the sum of $20,000 was appropriated “for arrearages prior to the first day of January, 1827.” That the defendant, so being 4th auditor as aforesaid, and being an evil-disposed person, and devising and intending fraudulently and unjustly to obtain and acquire for himself and for his own private use the money of the United States, with force and arms, on the 16th of January, 1S2S, at Washington county, in the District of Columbia, falsely and fraudulently wrote and addressed, and caused to be sent to the said J. K. Paulding, navy agent as aforesaid, in the city and state of New York, a letter in the words and figures following, to wit (here was inserted the letter of the 16th of January, 1828, which was inserted in the first indictment which was quashed on demurrer). It then avers that the defendant drew the draft on J. K. P., navy agent in New York, for $750, in favor of C. S. Fowler, at one day’s sight, and sold it to Mr. Fowler, and received therefor the sum of $750, and kept and disposed of the same for his own use. That on the 16th of January, 1828, Mr. Paulding, as navy agent, wrote and sent to Mr. ¡Southard, the following letter:
“Navy Agent’s Office,
“New York, 16th January, 1828.
“Sir: Be pleased to direct a warrant to issue in my favor for the sum of $12,139.12, to be charged to the following appropriations, viz.:
Pay Aft.$ 1,942
“ Shore stations. 1,058 25
“ Civil establishment . 643 32
“ Repairs .'. 2,488 54
“ Medicines . 1,000
“ Increase. 2,904 90
“ Slocps of war. 2,102 11
$12,139 12
—Required for the purposes expressed in the list herewith inclosed. I have the honor to be, very, respectfully, your obedient servant, “J. K. Paulding.”
“Hon. Samuel L. Southard, Secretary of the Navy Department, Washington.”
—Which letter was received by Mr. Southard, at Washington, on the 19th of January, 1828. That the said T. W., “being then and there 4th auditor of the treasury department of the United States as aforesaid, and being an evil-disposed person, and devising and intending fraudulently and unjustly to acquire for himself, and for his own private use, the money of the United States, and well knowing the premises, with force and arms, on the said nineteenth day of January, which, was in the year of our Lord one thousand eight hundred and twenty-eight, as aforesaid, at the county of Washington aforesaid, did falsely, fraudulently, deceitfully, knowingly, and designedly, apply to the said Samuel L. Southard, then being secretary of the navy of the United States as aforesaid, to add to the said sum of twelve thousand one hundred and thirty-nine dollars and twelve cents, for which the said J. K. Paulding had requested a warrant to be issued as aforesaid, the sum of seven hundred and fifty dollars, and did then and there pretend to the said Samuel L. Southard, secretary of the navy of the United *459 States as aforesaid, that the said sum of seven hundred and fifty dollars, was required for the use and service of the navy of the United. States, for the payment of claims settled and adjusted under the appropriation for ar-rearages due by the navy department prior to The first day of January, which was in the year of our Lord one thousand eight hundred and twenty-seven, and to cause the same to be placed in the hands of the said J. K. Paul-ding, navy agent as aforesaid, for the purpose aforesaid, at the same time, and together with the said sum of twelve thousand and one hundred and thirty-nine dollars and twelve cents, for which the said J. Iv. Paul-ding had required a warrant to be issued as aforesaid; and he, the said Tobias Watkins, did then and there unlawfully, f.audu-lently, deceitfully, knowingly, and designedly, cause and procure to be issued by the said Samuel L. Southard, then being secretary of the navy of the United States as aforesaid, a requisition to the treasurer of the United States for the additional sum of seven hundred and fifty dollars, and did cause and procure the said sum of seven hundred and fifty dollars • to be added to the said requisition of twelve thousand one hundred and thirty-nine dollars and twelve cents, which he, the said J. K. Paulding' had requested to be issued as aforesaid, and thereby caused the sum of twelve thousand eight hundred and eighty-nine dollars and twelve cents to be included in the said requisition, instead of the said sum of twelve thousand one hundred and thirty-nine dollars and twelve cents, so required to be so issued by the said J. K. Paulding as aforesaid; which said requisition, so caused and procured to be issued as aforesaid, is in the words and figures following” (here was inserted the requisition verbatim, including the sum of $750, under the head of “Arrearages prior to 1827”), “which said sum of twelve thousand eight hundred and eighty-nine dollars and twelve cents, in the said requisition mentioned, was, in conformity thereto, by warrant from under the hand of the'secretary of the treasury of the United States, drawn out of the treasury thereof, and placed in the hands of the said J. K. Paul-ding, navy agent as aforesaid, the said sum of twelve thousand eight hundred and eighty-nine dollars and twelve cents, then and there being the property of the United States, with intent to defraud the United States out of the said sum of seven hundred and fifty dollars, in the said requisition mentioned and included as aforesaid, and by means thereof, and of the warrant of the secretary of the treasury issued thereon in manner aforesaid, drawn from the treasury of the United States; whereas, in truth and in fact, he, the said Tobias Watkins, at the time of making the said false pretences, well knew that the said sum of seven hundred and fifty dollars, in the said requisition included, was not required for the use and service of the navy of the United States, and that it was not necessary to draw the same from the treasury of the United States, for the payment of claims settled and adjusted under the appropriation for arrearages due by the navy department of the United States prior to the first day of January, which was in the year one thousand eight hundred and twenty seven, nor to place the same in the hands of the said J. K. Paulding, navy agent as aforesaid, for the purpose aforesaid; and whereas, in truth and in fact, he, the said Tobias Watkins, at the time of making the said false pre-tences as aforesaid, did not intend that the said sum of seven hundred and fifty dollars in the said requisition included, and, by means thereof, ,n manner aforesaid, drawn from the treasury of the United States, should be applied to the use and service of the navy of the U nited States, nor to claims settled and adjusted under the appropriation for arrearages due by the navy department prior to the first day of January, which was in the yea- one thousand eight hundred and twenty-seven, nor that the same should be placed in the hands of the said J. K. Paul-ding, navy agent as aforesaid, for the purposes aforesaid; but then and there intended fraudulently to defraud the United States of the same, and to convert the said sum of seven hundred and fifty dollars to his own use and benefit, and did thereby defraud the said United States of the said sum of seven hundred and fifty dollars, to the great damage of the United States, to the evil example of all others in like cases offending, and against the peace and government of the United States. Thomas Swann, Attorney U. S.”
(2) The 2d of the said three indictments was upon a transaction with Mr. Paulding for $300, and had two counts. The first count states that the defendant, on the eighth of October, 1827, being 4th auditor, &c., and intending fraudulently and unjustly to obtain and acquire to himself from J. K. Paulding, navy agent at New York, the sum of $300 of the moneys of the United States in the hands of the said J. K. Paulding, “unlawfully. fraudulently, and deceitfully” wrote and caused to be sent to the said J. K. Paulding, navy agent at New York, the following letter, purporting to be dated and written from the office of the 4th auditor, &c. “Treasury Department, 4th Auditor’s Office, 8th October, 1827. Sir; I have this day drawn on you in favor of Charles S. Fowler for three hundred dollars, which you will please to charge to ‘Arrearages prior to 1827;’ under which head a remittance will be made to you immediately on the secretary’s return to the city. In the mean time be pleased to pay the draft out of any unex-pended balance in your hands, to be replaced on receipt of the treasurer’s remittance. I am, sir, very respectfully your obedient servant. T. Watkins.” It then avers that the defendant drew the draft, sold it to C. S. *460 Fowler, received the sum of $300 and converted it to his own use; and that the draft was afterwards paid by J. K. Paulding out of the moneys of the United States in his hands. “And the jurors aforesaid, upon their oath aforesaid, do find that the said letter thus written and dated, and addressed and sent from the said treasury department and the office of the 4th auditor thereof, purported to be and was fraudulently intended by said Watkins, to appear as an official letter of said Watkins, and was so written, dated, addressed, and sent to deceive the said Paulding by such appearance, and to induce him to pay the draft aforesaid, out •of the moneys of the United States in his hands; and the said Paulding was so deceived, and did, in consequence of such deceit, so pay the same out of the said moneys of the United States in his hands. And the jurors aforesaid, upon their oath aforesaid, do find that the letter aforesaid, so written, dated, addressed, and sent as aforesaid, purported to be, and was fraudulently intended by. said Watkins to appear, and did appear, as an official letter of the said WAtkins, and as representing that the said sum of money, therein mentioned, was to be paid for the public service of the United States, and that the draft, therein mentioned, was drawn on account of the public service of the United States, and to deceive the said Paulding by such appearance and to induce him to pay the same out of the moneys of the United States in his hands; and the said Paulding was thereby so deceived, and did pay the same out of the said moneys of the United States in his hands. And the jurors aforesaid, upon their oath aforesaid, do find, that, at the time of writing, addressing, and sending said letter, and of making said draft, the public service of the United States did not require the payment of the said sum of money in the said letter and draft mentioned, and the said Watkins well knew the same not to be so required, and that said Watkins had no authority to draw for the said sum of money, ■or to write the said letter of advice on account of the public service of the United States, as an official letter of him, the said Watkins, 4th auditor as aforesaid, and well knew he had no such authority; and that said Watkins wrote and dated, and addressed and sent the said letter, and made the said draft, ostensibly for the public service- as aforesaid, but falsely and fraudulently for his own use and benefit, and to deceive the said Paulding as aforesaid, and to defraud the United States; and that by means of the said letter and draft, so written, dated, addressed, and sent as aforesaid, he, the said Watkins, did unlawfully, fraudulently, and deceitfully, obtain to and for his own use and benefit, the said sum of three hundred dollars of the moneys of the United States, from, and out of, the hands of the said Paulding, navy agent as aforesaid, to the great deeeit, fraud, and damage of the United States, and against the peace and government of the United States.” The second count stated, that the defendant, then fourth auditor, &c., intending to deceive and defraud the United States of the sum of $300 of the moneys of the United States, on the 8th of October, 1827, having informed J. K. Paulding, navy agent at New York, by letter of that date, and dated “Treasury Department, Fourth Auditor’s Office,” that he had drawn on him in favor of C. S. Fowler for $300, to be charged to “arrearages prior to 1827,” and that, under that head a remittance would be made to him immediately on the return of the secretary of the navy to the city, and desiring the said J. K. Paulding to pay the draft out of any unexpended balance in his hands, to be replaced on his receipt of the treasurer’s remittance, made the said draft and sold it to O. S. Fowler, and received from him therefor, the sum of $300, and applied the same to his own use; which draft was afterwards paid by the said J. K. Paulding out of the moneys of the United States in his hands. “And the jurors aforesaid, on their oath aforesaid, present that the said letter was written, and addressed, and sent, as aforesaid, fraudulently, and with the intent to impose on the said Paulding the belief that the said draft was made on account of, and intended, to be applied to the public service of the United States, and to induce him to pay the same, and with intent to defraud the United States. And that the said draft was fraudulently made and sold as aforesaid, with the intent that the same should be paid by said Paulding, under such belief and inducement as aforesaid, out of the moneys of the United States in his hands as aforesaid; and with the intent thus to obtain and apply to his own use the said sum of three hundred dollars of the moneys of the United States, and with intent to defraud the United States. And the jurors aforesaid, upon their oath aforesaid, present, that by means of the said letter so written, addressed, and sent, the said Paulding was imposed on to believe that the said draft was made on account of, and intended to be applied to, the public service of the United States, and was thereby induced to pay the same out of the moneys of the United States in his hands, and did, under such belief and inducement, pay the same out of the said moneys of the United States in- his hands. And the said Watkins did, by said imposition and deceit, thus used and practised upon the said Paulding, and by the said letter so written, addressed, and sent as aforesaid, defraud the United States of the said sum of three hundred dollars, to the great wrong of the United States, and against the peace and government thereof. Thomas Swann, Attorney U. S.”
(3) The third of the said three indictments was upon a transaction of $2,000 with Mr. Ham-bleton, a purser in the navy of the United States at the navy-yard in Pensacola. This *461 indictment states that the defendant was fourth auditor of the treasury of the United States, and recites his duties; that Samuel L. Southard was secretary of the navy, and had authority to issue requisitions to the secretary of the treasury for moneys appropriated for the service of the navy of the United States, whereupon the secretary of the treasury had authority to grant his warrants on the treasury of the United States, for the amount of such requisitions. That Samuel Hambleton was a purser in the navy of the United States, residing at the navy-yard of the United States, at Pensacola. That the defendant, béing fourth auditor, &c., “and intending fraudulently and unjustly to acquire for himself, and for his own private use, the money of the United States, and well knowing the premises, with force and arms, on the 6th of March, 1827, at the county of Washington aforesaid, did falsely, fraudulently, deceitfully, knowingly, and designedly write, address, and cause to be delivered to the said Samuel L. Southard, secretary of the navy, as aforesaid, a letter, in the words following, to wit: “Fourth Auditor’s Office, 6th March, 1827. Sir,—-I will thank you to cause' a requisition to be issued in favor of Purser S. Hambleton, for $2,000, under the head of ‘Pay Afloat,’ made payable to my order, at the request of Mr. Ham-bleton, for the purpose of paying his drafts on me to that amount. I am, sir, respectfully, your obedient servant, T. Watkins. The Secretary of the Navy.”
It is then averred that, confiding in the said letter, and believing that the said purser had requested such a requisition to be issued for $2.000, and that that sum was required for the use and service of the United States, Mr. Southard, as secretary of the navy, issued the requisition, as requested. That the said sum of $2,000, in conformity with the said requisition, was, by warrant from the secretary of the treasury, drawn out of the treasury of the United States, and placed in the hands of the defendant; “Whereas, in truth and in fact, the said T. Watkins, at the time he wrote his letter aforesaid to the said Samuel L. South-ard, secretary of the navy, as aforesaid,” “had not been requested by the said S. Ham-bleton, purser, as aforesaid, to cause any requisition to be issued in favor of him,” “payable to the order of him, the said T. Watkins, as aforesaid, for the said sum of $2,000; nor had the said S. Hambleton drawn any drafts upon him, the said T. Watkins, for the said $2,000; and whereas, in fact and in truth, the said Tobias Watkins, at the time he wrote his letter, as aforesaid,, did not intend that the said sum of $2,000 should be applied to the use of him, the said S. Hambleton, purser, as aforesaid, or to the use or service of the navy of the United States, or to the payment of any .such drafts, as aforesaid, but then and there intended to defraud the United States of the same, and' to convert the said sum of money to his own proper use and benefit; and did, by means of the pretences aforesaid, defraud the said United States of the said sum of $2,000, and did thereby then and there convert and appropriate the said sum to his own proper use and benefit, to the great damage of the United States, to the evil example of all others in like cases offending, and against the peace and government of the United States.”
There was a second count in this indictment, containing the same preliminary allegations as in the first count, and averring that the defendant, “intending fraudulently and unjustly to acquire for himself, and for his own private use, the money of the United States, and well knowing the premises, with force and arms, on the said sixth day of March, 1827, aforesaid, at the county aforesaid, did falsely, fraudulently, deceitfully, knowingly, and designedly apply to the said Samuel L. Southard, then being secretary of the navy of the United States, as aforesaid, to cause a requisition to be issued on account of the said S. Hambleton, purser, as aforesaid, for the sum of $2,000, under the head of ‘Pay Afloat,’ to be paid to him, the said Watkins; and did then and there pretend to the said Samuel L. Southard, secretary of the navy of the United States, as aforesaid, that the said sum was required for the use and service of the United' States; and did then and there pretend that the said 5. Hambleton, purser, as aforesaid, had drawn drafts upon him, the said Tobias Watkins, to the amount of the said $2,000, and that he, the said S. Hambleton, had requested the said requisition to be issued, for the purpose of. meeting and paying his said drafts. And the said Samuel L. Southard, confiding in the statement and representation so made to him by the said Tobias Watkins, as aforesaid, and believing the said sum of $2.000 was required for the use and service of the United States, and that the said S. Hambleton had drawn drafts upon him, the said Tobias Watkins, to the amount of the said $2,000, and that he, the said S. Hambleton, had requested a requisition to be issued,” &c., required a letter to be written by the said Watkins to him, the said Mr. Southard, secretary of the navy, &c., which letter (namely, the letter of March 6, 1827, set forth in the first count,) was written, &c., and caused the said requisition to be issued, &c.; whereupon the secretary of the treasury issued his warrant to the treasurer, &e., for the said sum of $2,000, in favor of the defendant, whereby the said sum was drawn out of the treasury of the United States, and placed in the hands of the defendant. “Whereas, in truth and in fact, the said sum of money, in the said requisition mentioned, was not required for the use and service of the United States; and the said Watkins, at the time he applied to the said Samuel L. Southard, to cause the requisition to be issued, as aforesaid, that is to say, on the said sixth day of March, 1827, well knew that the same was not so required for the use *462 and service of the United States; and that the said Watkins had not been requested by the said Samuel Hambleton to apply to the said Southard, secretary, as aforesaid, for any such requisition to be issued, as aforesaid; nor had the said S. Hambleton, purser, as aforesaid, drawn drafts upon him, the said Watkins, to the amount of $2,000; nor had the said Hambleton requested the said requisition to be issued, for the purpose of meeting and paying such drafts. And whereas, in truth and in fact, the said Tobias Watkins, at the time he made his said application for the requisition aforesaid, and wrote and delivered the letter, as aforesaid, did not intend that the said $2,000 should be applied to the use of him, the said S. Hambleton, purser, as aforesaid, nor to the use or service of the navy of the United States, or to pay any such drafts of the said Hambleton; but then and there intended to defraud the United States of the same, and to convert the said sum of-money to his own proper use and benefit; and did, by means of the false and deceitful means aforesaid, defraud the said United States of the said sum of $2,000, and did then and there convert and appropriate the same to his own proper use and benefit; to the great damage of the United States, &c. Thomas Swann, Attorney, United States.”
Mr. R. S. Coxe, for defendant,
observed that the objections which he should take would go- to the gist of the transaction, and to the whole merits of the case. His first objection was, that this court has no jurisdiction of the case, whether sitting as a state court, under the adopted laws of Maryland, or, as a federal court, exercising the powers and jurisdiction of the other circuit courts of the United States. In these indictments, every thing is alleged to have been done officially, and the offences charged are charged as official misdemeanors. In the former cases, the acts done were not charged as having been done officially. These are cases of one officer of the United States imposing upon another officer of the United States, and obtaining the money of the United States. They are entirely and exclusively offences against the United States, as the government of the Union, in its federal and national character. The offence would have been the same, if it had been committed in any one of the states, instead of this district. It is a charge of violating his official duty, and employing his official powers and means to improper and private purposes. It is only a violation of his official duty; a breach of contract between him and his government. 2 Bl. Comm. (Chit-. Ed.) 108; Co. Litt. pp. 234a, 232b, § 378. The United States has no common law. No state court can punish an officer of the United States for a violation of his duty, nor prevent or punish the destruction of the property of the United States, 4>y any person. The constitution of the United States provides for impeachment of the officers of the United States, and defines treason. And congress has defined by law all the offences which can be committed against the United States, and provided for their punishment. Those offences must be in regard to those things of which the United States have jurisdiction; and those offences can be tried and punished only'in the courts of the United States,—courts of purely federal jurisdiction. Congress has made the office of fourth auditor, and has defined its duties; and has exclusive jurisdiction over the whole subject-matter of these indictments. A man could not be punished in a state court, under any statute of a state, or under the common law of any state, for burning a navy-yard of the United States; nor could he be punished by the courts of the United States, because there is. no statute of the United States to punish such burning. McCulloch v. Maryland, 4 Wheat. [17 U. S.] 411, 416. The constitution must give congress jurisdiction over the subject, and congress must legislate upon it, before the courts of the United States can exercise jurisdiction over the offence, (or, rather, over the act done.) Whatever congress have the power of prohibiting, and have not prohibited, is lawful, and cannot be made penal, by a state law. The federal jurisdiction, if it- exists at all, is exclusive. The United States has a right and the power to protect itself, and' to punish its officers for malversation in office. Gibbon v. Ogden, 9 Wheat. [22 U. S.] 17, 209; Houston v. Moore, 5 Wheat. [18 U. S.] 22. The negotiation with Great Britain, respecting the suppression of the slave trade, failed upon the ground that the United States could not give power to the courts of another nation to punish the violation of the laws of the United States. The judicial power must be co-extensive with the legislative; and e converso. The state courts cannot decide what are the duties of an officer of the United States. Why do these indictments aver the duties of the officer? Because the act done was a violation of official duty. Because, in order to show an offence, it was necessary to aver that the act was done officially. This court, then, if sitting as a state court, could not decide these points. If this indictment had been found in a state court, and the defendant had contended that he had a right, by virtue of his office, to do the act, and the state court had decided against that right, the cause might have been removed to the federal court under the 25th section of the judiciary act of 1789. Cohen’s Case was brought before the supreme court of the United States, because he claimed a right to sell the lottery ticket under an act of congress. The defendant, in the present case, was arrested in Pennsylvania by ’the warrant of a district judge, because he was charged with an offence against the United States. See the judiciary act of 1789 (section 33).- This is one of the cases expressly stated by Mr. Justice Story in U. S. v. Coolidge [Case No. 14,857], as being within the exclusive cognizance of the federal-courts. In the former opinion of this court, this was said to be an indictable fraud, because it was a fraud upon the United States—upon the public. But in a Maryland court it would not be a fraud on that public;—that public would be the state of Maryland—not the United States;—it would, therefore, not be an indictable fraud in Maryland. It could not be sustained in a state court by virtue of a law merely municipal, because it is an offence against the United States only. The judicial tribunals of one country will not enforce the municipal laws of another, especially the criminal laws; and in this respect the state tribunals and the United States tribunals are as distinct as the tribunals of different nations. They are, in truth, distinct sovereignties. In a prosecution under the state law, the executive of that state alone has the power to pardon. 1 Kent, Comm. 301, 313.
*462 To each of these three indictments the defendant’s counsel filed a general demurrer.
The constitution of Maryland was abridged by the constitution of the United States, and when congress adopted the common law of Maryland, it took it as it was modified by the constitution and laws of the United States. The common law of Maryland never extended to offences against the United States. The Militia Case, 5 Wheat. [18 U. S.] 17. By the constitution of the United States, the judicial power of the United States shall extend to all cases of law and equity arising under the constitution and laws of the United States, and such jurisdiction, at least in criminal cases, is exclusive. Martin v. Hunter, 1 Wheat. [14 U. S.] 329-331, 333. Cohen’s Case, 6 Wheat. [19 U. S.] 381.
The treasury, and the offices and officers of the United States, are the creatures of the constitution and laws of the United States, and the right of legislation respecting them is exclusive. The laws of the United States can only be executed by the courts of the United States. McCulloch v. Maryland, 4 Wheat. [17 U. S.] 401; Gibbon v. Ogden, 9 Wheat. [22 U. S.] 196, 197, 209; Com. v. Thompson, 1 Va. Cas. 319 ; U. S. v. Smith, 1 South. [4 N. J. Law] 33; 1 Kent, Comm. 312, lect. 16.
What difference is made by the power of exclusive legislation over this district, given by the constitution of the United States, art. 1, § 8? If this court could not, either as a state court, or as a court of the United States, take cognizance of this case, how can it by the junction of the two jurisdictions? This clause of the constitution operates no change; it only authorizes legislation. Neither the Maryland act of cession of December 23, 1788, nor the act of acceptance of July 16, 1790, nor the act of February 27, 1801, changed the law. The laws of Maryland were to remain in force; no new offence was to be created by the change of jurisdiction; nothing was added to the list of crimes punishable by the laws of Maryland. This offence, then, was not an offence against the state of Maryland, nor punishable by that law. This court, in its former opinion, has not decided this point, for the court expressly said that the defendant was not, in that indictment, charged with any official misconduct. Again, the public, to be defrauded, must be the public in whose court the indictment is pending.
The second objection is, that the offence was not consummated in this county. All the facts which constitute the offence must have been committed within the jurisdiction of the court before which the trial is to be had. Such is the rule of the common law. Here the indictments charge that J. K. Paulding was a navy agent at the city of New York; that the intent was to get the money of the United States out of the hands of that navy agent in New York. The crime consists of two distinct facts—the intent, and the obtaining the money; the means are not of themselves unlawful unless accompanied by the intent, and an actual injury. But time and place are material, and must be alleged. If the offence be commenced in one county and consummated in another, the venue cannot at common law be laid in either county, and the offender cannot be convicted. Archb. 11; 1 Chit. Cr. Law, 177 , 178; 2 Cur. Hawk. 255, 325.
The third objection is, that the pretences are not well set forth. In this respect, Mr. Coxe contended that these indictments were liable to the same objections which the court decided to be fatal to the former indictments upon the same transactions; and as to the transaction of $2,000 with Mr. Hambleton, it appeared, upon the face of the indictment, that more than two years had expired before the indictment was found. Starkie, 58, 64, 67, 71; 6 Dane, Abr. 154 , § 22; Goding v. Ferris, 2 H. Bl. 14; 2 Laws U. S. p. 99, April 30, 1790, §31; 1 Chit. Cr. Law, 151 , 223. In the first and third of these indictments the false pre-tence alleged is a mere naked lie, which is not an indictable offence at common law. 1 Cur. Hawk. 318, note. It is not averred that the sum of $750, drawn from Mr. Paulding, was obtained by any false pretence. The pretence is only averred to be with intent to place the money in the hands of Paulding,—not to draw it out. Then as to the $300 transaction, there is no distinct offence charged—no averment of any false pretence. The intent averred is to obtain money from Paulding, not from the United States. The only averments are, that he wrote the letter and drew the draft.
Mr. Key and Mr. Swann, contra,
took nearly the same ground as in the former eases. They contended that the charge is not for misfeasance, or nonfeasance in office. His official station only furnished him the means of perpetrating the fraud. The offence would have been the same if he had not been in office. This is as much a common-law offence as if one of the high officers of the government should commit murder, or larceny, or assault and battery. The averment of his official character was only to show how the deceit was effected.
As to the objection that the money was paid in New York, and therefore the offence was not complete here, the payment of the money by Mr. Paulding to Mr. Fowler is not a necessary ingredient in the offence. The whole fraud was committed here. The pretence, the letter, the draft, the requisition, the receipt of the money by the defendant, were all done by him here. He could not be tried in New York, for he had committed no offence there. The only reason for averring that the money was paid by Paulding was to show that the fraud liad been effectual. 1 Chit. 190-193; U. S. v. Wright [Case No. 16,773], in this court, April, 3822.
As to the objection to the false pretence, that it was a naked lie—a naked lie, in a fraud upon the public, is sufficient. “False preten-ces” are not necessary words in the indictment. Falsehood is enough. A falsehood is a false pretence. Imposition is sufficient. Jones’ Case, Leach, 204; 2 East, P. C. 838. As to Hambleton’s Case, it does not appear on the face of the indictment, when the indictment was found, although the act is said to have been committed on the 6th of March, 1827. But the day is immaterial, and the limitation cannot be taken advantage of by demurrer. It must'be pleaded; for the United States may reply that the defendant fled from justice, which they cannot do upon demurrer. This objection would not be good upon a motion in arrest of judgment U. S. v. Porter [Case No. 16,072], in this court, at December term, 1812; Archb. 14; 7 Wm. III. c. 3; Starkie, 64; 5 East, 259; 1 Chit. 223; Lee v. Clarke, 2 East, 333; Loyd v. Williams, 3 Wils. 258; 1 Chit. 283-285. The proviso in the act of April 30, 1790, § 32 ( 1 Stat. 119 ),-is only applicable to of-fences created by the statutes of the United States; for the United States had no criminal common law, and there could be no common-law misdemeanors against the United States to which the limitation could apply.
Mr. Jones, in reply.
By the act of congress of the 27th of February, 1801 ( 2 Stat. 103 ), the laws of Maryland were to remain in force here as they existed in Maryland on that day, and were to bé administered here exactly as, and no otherwise than, they could have been administered by the courts in Maryland; and there can be no common-law offence here which would not have been a common-law of-fence in Maryland. This court is only a court of the District of Columbia, with the super-added jurisdiction of a circuit court of the United States.' As a circuit court of the United States they cannot exercise jurisdiction of these offences, because they are not created by an act of congress; and as a court of the District of Columbia, they can only exercise the jurisdiction which a state court could exercise. Then, what is the nature and essence of the offences charged in these indictments? It is true that in some senses, all offences committed within this district, are offences against the United States. The United States is the territorial sovereign of this district; and every offence must be either against a statute of the United States, or would have been an offence against the state of Maryland. Every immoral act is not necessarily a common-law of-fence. Common-law offences are all defined; for although it is said to be lex non scripta; yet its evidences are written, in the reports of the judgments of the courts, and in the elementary treatises of the sages of the law. No such offence as this, against the United States, is knowp to the common law of Maryland; therefore this offence could not be tried in the state courts of Maryland.
The argument, that what would be in Maryland a common-law offence against the sovereignty of Maryland, would be here a common-law offence against the sovereignty of this district, has grown out of the same confusion of ideas. There can be no common-law of-fence here, but against the United States as the local sovereign; but if it be an offence against the United States, as the national sovereign, it cannot be a common-law offence. If the offence affect the treasury of the United States, if it affect the whole nation, it is an offence against the United States, as sovereign of the Union, and cannot be punished unless the offence has been defined, and its punishment prescribed by statute. The officers of the general government have no local habitation, and cannot be punished for an act done here, for which they could not be punished in any of the states. These offences depend essentially on the performance, or non-performance of the official functions of a public officer, which affect the Union at large. Our objection turns exclusively upon the quality of the act, not upon the official character merely of the defendant. The means and the turpitude of this offence, grew out of his connection with the United States as a public officer. Before the argument from the analogy of sovereign can apply, the offence must be an offence against the local sovereign of the district. The United States as the local sovereign of this district, is as distinct from the United States as the sovereign of the Union, as two independent sovereignties.
These principles are applicable to the present case. They are not opposed to the opinion heretofore given by this court, because the court then decided that those indictments did not charge official misconduct. If these indictments do not charge official misconduct, they charge no offence.
As to the $750 case, two distinct charges are made in the same count, and it is therefore bad. It charges: (1) That the defendant wrote a letter of advice, and drew a draft, and received the money from Mr. Fowler, and applied it to his own use. (2) That he obtained the requisition, &c. The intent only is averred to be the offence, the intent to acquire for his own use the money of the United States; that he pretended, &c., and procured the money to be placed in the hands of the navy agent;- but no deceitful practice is averred by which the defendant got the money out of the hands of the navy agent. How could his official character be the means of effecting the fraud, without misconduct in office? It must he a breach of his official trust. If he assumes to do an act which he has no authority to do, his office is not the means of effecting the fraud. The defendant had no authority to do what he did, and therefore the secretary of the navy, and the navy agent, could not be deceived by any pretence of such authority. They both knew the extent of his authority. His official character, therefore, could induce no confidence quoad hoc, namely, the necessity of placing this money in the hands of the navy agent. The secretary of the navy had no right to trust the assertion of the defendant. He could not be deceived, unless the defendant had a public prima facie authority to do what he did. It is not averred that he wrote the letter as 4th auditor; but being 4th auditor. The averments of his official character and duties, therefore, are not made for the purpose of showing the means by which the deceit was practised.
As to the $300 cáse, it is not pretended that the defendant had authority to write the letter, and therefore it could not appear to be an official letter. If he had authority, then it was an official misdemeanor. In the first and third of these indictments, a misrepresentation is averred, but that misrepresentation could not deceive the secretary of the navy, because he had no right to look to the defendant for information upon matters of which the secretary was, or ought to have been better informed than the defendant. The pretence was too shallow to deceive. If there was no pretence, nor deceitful practice, there was no indictable fraud. Stripped of its official character, it is worse than the fonner one upon the same fact. Deceitful practices must be set out; the means must be effectual, and the fraud must be effected by those means.
Then as to the averments of place and time: (1) As to place. If the fraud be not carried into effect, it is not indictable. It is not a public offence unless consummated. The place must be stated, to show that the court has jurisdiction. All the acts necessary to complete the offence must be done within this county. The law of England is very strict on this point. The payment of the money in New York was necessary to complete the offence; for if Hr. Paulding had not paid the draft, the United States would not have been defrauded. 2 Hale, P. C. ec. 3-5; 1 Chit. 190-192. But it is said

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8687069. Public record. Not legal advice.