Forgery, Forger

If we accept the definition usually given by canonists, forgery (Lat. falsum) differs very slightly from fraud. "Forgery", says Ferraris, who claims that his definition is the usually accepted one, "is a fraudulent interference with, or alteration of, truth, to the prejudice of a third person". It consists in the deliberate untruthfulness of an assertion, or in the deceitful presentation of an object, and is based on an intention to deceive and to injure while using the externals of honesty. Forgery is truly a falsehood and a fraud, but it is something more. It includes fraudulent misdemeanours in matters regulated by the law, and endangering the public peace. These misdemeanours are divided by canon law writers into three classes - according as the crime is committed by word, by writing, or by deed. The principal crime in each of these classes being false witness, falsification of public documents, and counterfeiting money. A fourth category consists in making use of such forgery, and is equivalent to forgery proper. This classification, while slightly superficial, is exact, and presupposes the fundamental malice of the crime in question, viz., that it is prejudicial to public security and injurious to the interests of society at large, rather than to those of the individual.

Social order is seriously affected by false witness, which cripples the operation of justice; by the change or alteration of public documents, which hinders a right and proper administration of public affairs, and lastly, by the coining of base money, which hampers trade and commerce. If forgery is committed by public officials in violation of their professional duties, the crime becomes more serious, and more prejudicial to public order. The interests of private individuals, therefore, while not excluded, are secondary when this offence is in question, and it is for this reason that the penalties incurred by forgery, or complicity therein, are independent of the amount of damage it inflicts on individuals. Oral forgeries, e. g. false oaths, false witness (canonists add the crime of the judge who knowingly pronounces an unjust sentence), are treated under TRIAL; OATH; WITNESS; JUDGE. On the other hand false coinage does not immediately concern ecclesiastical law, though some attention is paid it in the "Corpus Juris Canonici" and in various canon law treatises. John XXII punished false coinage by excommunication (Extrav. "Gradiens", Joan. XXII, de crimine falsi) and compared forgers to alchemists (Extrav. "Spondent", inter comm.). In many dioceses this crime was long a reserved sin (e.g. in Naples; "Prompta Bibliotheca", s. v.; see Neapolitan edition of Ferraris, s. v. Falsum, n. 35). By such penal measures the ecclesiastical authority merely assisted in suppressing a crime gravely prejudicial to civil welfare; it did not come before it as a crime against ecclesiastical law.

We are here concerned only with forgery properly so-called, i. e. the falsification of public documents and writings, especially Apostolic letters. What is here said of latter, is also applicable, in due measure, to all public documents emanating from the Roman Curia or episcopal courts. The canonical legislation on this matter is better understood when we recall that the more usual form of this crime, and the source of judicial inquiries and consequent penalties, was the production of absolutely false documents and the alteration of authentic decisions, for the sake of certain advantages, e.g. a benefice, or a favourable verdict.

The forging of documents for purely historical purposes, with no intention of influencing administrative or legislative authority, does not fall within our scope. (For an account of several such forgeries see A. Giry, "Manuel de diplomatique", Paris, 1894, II, 861-87, and Wattenbach, "Deutschlands Geschichtsquellen", 9th ed. appendix.) We are concerned only with the falsification of Apostolic Letters, the only form of forgery that incurs excommunication ipso facto specially reserved to the pope. The most serious form of forgery is that committed by a public functionary charged to draw up or authenticate official documents, who violates his professional duties, by the fabrication of false documents, by forging a signature, by fraudulent use of an official seal, a stamp, or the like. There is no precise text in canon law punishing these crimes, and canonists always refer to Roman law, especially to the Lex Cornelia "de crimine falsi" (ff. XLVIII). Nevertheless in ecclesiastical law they are serious crimes; and instances might be given of officials of the Roman Curia who suffered death for such forgeries. Domenico of Viterbo and Francesco Maldente were tried and executed for this crime in 1489. They had forged, among other documents, a Bull authorizing the priests of Norway to celebrate Mass without wine (Benedict XIV, "De Beatif.", II, c. XXXII, n. 2; Pastor, "History of the Popes", tr. V, 351). Again the subdatarius, Francesco Canonici, called Mascabruno, was condemned to death on 5 April, 1652, for many forgeries discovered only on the eve of his elevation to the cardinalate.

Canon law deals mainly with the attempt to put forgeries to a specific use. It connects forgery and the use of forged documents, on the presumption that he who would make use of such documents must be either the author or instigator of the forgery. In canon law, forgery consists not only in the fabrication or substitution of an entirely false document, "as when a false bulla, or seal, is affixed to a false letter" (Licet v, "De crimine falsi"), but even by partial substitution, or by any alteration affecting the sense and bearing of an authentic document or any substantial point, such as names, dates, signature, seal, favour granted, by erasure, by scratching out or by writing one word over another, and the like. The classical and oft-commented text on this matter is the chapter Licet v, "De crimine falsi" in which Innocent III (1198) points out to the bishop and chapter of Milan nine species of forgery which had come under his notice. This famous instruction was given in order to enable his correspondents to guard against future fraud. Following his teaching the gloss on this chapter enumerates among the six points a judge should examine into in order to discover a forgery:

Forma, stylus, filum, membrana, litura, sigillum.

Haec sex falsata dant scripturam valere pusillum.

In other words a document is suspect,

• If its outward appearance differs greatly from the usual appearance of such documents.

• If the style varies from the usual manner of the Curia. Chapter iv, "De crimine falsi" gives us an example of this: Innocent III declares a Bull false wherein the pope addresses a bishop as "Dear Son" and not as "Venerable Brother", or in which any other person than a bishop is styled "Venerable Brother" instead of "Dear Son", or in which the plural vos is used to address a single individual.

• If the thread which ties the leaden seal to the Bull is broken.

• If the parchment bears traces of a doubtful origin (just as we distinguish the water-marks and letter-heads of modern documents).

• If there are any erasures, or words scratched out.

• If the seal is not intact, or is not clearly defined.

If a judge discovers an evident forgery he ought to repudiate the document and punish the guilty party; but in case he considers it merely doubtful he ought to make inquiries at the office of the Roman Curia which is supposed to have issued it.

Substitution of false documents and tampering with genuine ones was quite a trade in the Middle Ages. In the chapter Dura vi, "De crimine falsi", written in 1198, (pars decisa), Innocent III relates that he had discovered and imprisoned forgers who had prepared a number of false Bulls, bearing forged signatures either of his predecessor or of himself. To obviate abuses, he orders under pain of excommunication or suspension that pontifical Bulls be received only from the hands of the pope or of the officials charged to deliver them. He orders bishops to investigate suspicious letters, and to make known, to all those having forged letters, that they are bound to destroy them, or to hand them over within twenty days, under pain of excommunication. The same pope legislated severely against forgery and the use of forged documents. In the chapter Ad falsariorum, vii, "De crimine falsi", written in 1201, forgers of Apostolic Letters, whether the actual criminals or their aiders and abetters, are alike excommunicated, and if clerics, are ordered to be degraded and given over to the secular arm.

Whoever makes use of Apostolic Letters is invited to assure himself of their authenticity, since to use forged letters is punished in the case of clerics by privation of benefice and rank, and in the case of laymen by excommunication. The excommunication threatened by Innocent III, and extended to the forgery of supplicas or pontifical dispensations, was incorporated in the Bull "In Cœna Domini" (no. 6), and passed thence with some modifications into the constitution "Apostolicæ Sedis," where it is number 9 among the excommunications latœ sententiœ specially reserved to the pope. It affects "all falsification of Apostolic Letters, even in the form of Briefs, and supplicas concerning favours sought or dispensations asked for, which have been signed by the Sovereign Pontiff, or the vice-chancellors of the Roman Church or their deputies, or by order of the pope", also all those who falsely publish Apostolic Letters, even those in the form of Brief; lastly, all those who falsely sign these documents with the name of the Sovereign Pontiff, the vice-chancellor or their deputies. The documents in question here are of two sorts:

• Apostolic Letters, in which the pope himself speaks, whether they are in the form of Bulls or Briefs (q. v.);

• Supplicas or requests addressed to the pope to obtain a favour, and to which, in proof that the request is granted, the pope or the vice-chancellor or some other official attaches his signature.

It is from these supplicas thus signed that the official document conveying the concession is drawn up. Consequently rescripts of the Roman Congregations and of other offices, which are not signed by the pope or by his order, do not come under this heading.

The acts of falsification herein punished by excommunication are fewer than formerly. In the first place, the principal crime is the only one dealt with; the aiders and abettors of the forgery are not mentioned. In the next place, by a strict interpretation, allowable in penal matters but; certainly opposed to the spirit of the Decretals of Innocent III, recent canonists exempt from the ipso facto censure forgers of entire Apostolic Letters, and bring under it only those who seriously alter authentic documents. It is certain, in any case, that the word fabricantes of the Bull "In Cœna Domini" becomes publicantes in the Constitution "Apostolicæ Sedis". There are therefore three acts contemplated by the latter text; the falsification, in the strict sense of the word, of Apostolic Letters and supplicas; the publication of false Apostolic Letters; the forging of signatures to supplicas. The "publication" which incurs this censure is not the material divulgation of a document, but presupposes that such document is offered as, and affirmed to be, authentic. Supplicas with forged signatures it would be useless to publish since they cannot take the place of the official document conveying the concession; but the officials issuing Apostolic Letters on the strength of such signed supplicas would have been misled by the false signature. It must be remembered that all other forms of forgery which escape the ipso facto excommunication are subject to penalties and censures "ferendœ sententiœ" according to the gravity of the case.

To have their full official weight before a tribunal, public documents must be presented either in the original, or in copies certified by some public officer. Hence the note of falsification does not attach to reproductions devoid of all guarantee of authenticity; nevertheless such reproductions are sometimes seriously criminal because of the perverse intention of their authors. Leitner ("Præl. Jur. Can." lib. V, tit. xx, in a note) gives two examples of fraudulent reproductions of this nature. Frederick II of Prussia forged a Brief of Clement XIII, and dated it 30 January, 1759, by which the pope was made to send his congratulations and a blessed sword to the Austrian Marshal Daun, after the battle of Hochkirch. A Bull purporting to be by Pius IX, dated 28 May, 1873, modifying the law in vigour for the election of a pope was forged, with the connivance at least, of the Prussian Government. Another false document, published by many newspapers in 1905, authorized the marriage of priests in South America, but no one placed any credence in it. (See BULLS AND BRIEFS.)

All canonical commentaries on the title De crimine falsi; Decret., lib. V. tit. XX; Extravag. of John XXII and commentary; FERRARIS, Prompta Bibliotheca, s. v. Falsum; all commentaries on the Constitution Apostolicœ Sedis, especially PENNACHI, t. I, appendix VIII, p. 293.

A. BOUDINHON