Definition
Forgery is the false making or material alteration of a written instrument, with intent to defraud, where the instrument — if genuine — would have apparent legal efficacy or could serve as the basis of a legal liability. The offense reaches both outright fabrication (creating a document from scratch and falsely attributing it) and material alteration (changing a genuine instrument in a way that affects its legal operation).
Two related but distinct meanings appear in legal sources:
1. As a criminal offense: The act of fraudulently making, altering, or completing a writing so that it purports to be something it is not — typically the act of another person, or an instrument with different terms than those actually agreed to — for the purpose of deceiving someone to their prejudice.
2. As a physical artifact: The forged document itself. A fraudulent deed, a counterfeit will, or a falsified signature may each be called "a forgery." This object-meaning appears frequently in evidence discussions and property disputes where the instrument's authenticity is contested.
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Common Language
Modern common usage (Wiktionary): The crime of fraudulently making or altering a writing or signature purporting to be made by another; also, the thing falsely made. Colloquially extended to any fabricated or counterfeit item.
Historical common usage (Webster's 1913): The act of forging metal into shape (obsolete); and the crime of fraudulently making or altering a written instrument for the purpose of deceit and fraud.
The metalworking sense — forging in the sense of shaping by hammer and heat — is the root of the word and persists in ordinary English (a "forged" blade). In law, this sense is entirely irrelevant. The legal definition is confined to written instruments and fraudulent attribution. A researcher encountering "forgery" in older general texts should confirm the context before assuming criminal law is implicated.
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Common Confusion
Forgery is frequently conflated with counterfeiting. The distinction matters. Forgery traditionally concerned private written instruments — deeds, wills, contracts, checks, signatures — whereas counterfeiting concerned government-issued instruments, particularly currency and official seals. Modern statutes have blurred this line in some jurisdictions, folding both into broad fraud offense categories. In historical sources, the distinction was sharp and jurisdictionally significant; penalties often differed.
Forgery is also sometimes confused with uttering a forged instrument, which is a separate offense. Forgery is the making; uttering is the knowing presentation of the forged instrument as genuine. A person who did not make the forgery but passed it can be guilty of uttering without being guilty of forgery, and vice versa. Historical sources treat these as distinct crimes; many modern statutes still do.
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Core Elements
At common law, forgery required:
1. A false making or material alteration — The instrument must be fabricated or changed. Signing one's own name to a document does not become forgery merely because the document contains false statements; the falsity must go to the instrument's apparent origin or terms.
2. A writing of legal significance — The instrument must be one that, if genuine, would have apparent legal efficacy or could ground a legal liability. A worthless or legally inoperative document could not be the subject of forgery at common law. This requirement has been broadened by statute in most jurisdictions.
3. Intent to defraud — The making or alteration must be done with fraudulent purpose. Good-faith alteration, even if technically unauthorized, does not satisfy this element.
4. Prejudice to another's right (common law formulation) — Blackstone's formulation requires that the forgery be to the prejudice of another man's right. This element overlaps with intent to defraud but historically emphasized actual or potential harm to a third party's legal position.
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Recognized Forms
/SUBTYPES
Forgery has been recognized in several formal subcategories, particularly in statutory treatment:
- Forgery of public instruments: Affecting government records, court documents, public seals, official certificates. Treated as more serious, often a higher-grade felony.
- Forgery of private instruments: Affecting private contracts, commercial paper, deeds, wills.
- Forgery by material alteration: Changing a genuine instrument (e.g., raising the amount on a check) as opposed to creating a wholly false one.
- Forgery of signatures: A specific and common form; the false attribution of another's signature to an instrument.
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Why It Matters in Research
The common law definition of forgery was narrow in one critical respect: the instrument had to be of apparent legal efficacy. A document with no legal effect could not be forged. This limitation generated extensive litigation and many acquittals on technical grounds. Researchers reading historical cases should watch for this issue — what looks like a clear fraud may have been unchargeable as forgery because the instrument lacked the necessary character.
Modern statutes — typically titled something like "forgery and fraud" or structured in tiers by instrument type — have largely abolished the legal-efficacy requirement. When researching across time periods, the applicable statutory definition governs; do not assume common law elements apply to a post-statutory case.
The commercial paper context is a distinct research track. Under negotiable instruments law (now governed by Article 3 of the Uniform Commercial Code), forgery of a signature has specific allocation-of-loss consequences between drawers, drawees, and holders. This is not primarily a criminal analysis but a civil liability framework. The two tracks — criminal forgery and UCC forgery/alteration — use the same vocabulary but serve different functions. Researchers who start in one and need the other should cross to the negotiable instruments materials explicitly.
Jurisdictional variation in what documents are covered, what grades of offense apply, and whether uttering is merged into forgery or charged separately is substantial. Historical state codes diverge widely. When using a pre-1900 case to illuminate the doctrine, confirm the state's statutory scheme at that time.
The evidence-law usage — where "forgery" refers to the contested document itself — surfaces in cases involving will contests, deed authenticity disputes, and fraud actions. In this context, "proving a forgery" means establishing the document's inauthenticity, not securing a criminal conviction.
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Historical Dictionary Support
The historical dictionaries converge on the Blackstone formulation: "the fraudulent making and alteration of a writing to the prejudice of another man's right" (4 Bl. Comm. 247). Both Black's editions and Bouvier track this closely. Burrill adds the Latin-law connection (crimen falsi) and the Old French root, usefully noting that forgery at common law included every alteration or addition to a true instrument — not merely wholesale fabrication.
East's Pleas of the Crown (cited in both Burrill and Black's) offers the complementary formulation: "a making, malo animo, of any written instrument for the purpose of fraud and deceit." The malo animo requirement — bad intent — confirms that the mental element was essential, not merely definitional.
Bishop's Criminal Law, cited in Black's and Bouvier for the "legal efficacy" formulation, represents the mature common law synthesis. This is the most precise statement of the common law offense and the one most useful for understanding pre-statutory case law.
What the historical dictionaries underserve: the UCC dimension is entirely absent (as expected, given vintage), and the question of digital or electronic forgery is obviously not addressed. Researchers working in modern commercial or cybercrime contexts will find the historical entries foundational but insufficient.
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Jurisdictional Note
State statutes vary significantly in how they grade forgery offenses, which instruments are covered, and whether uttering is a merged or separate offense. Federal forgery statutes address specific categories (federal documents, currency, government obligations) and are not general-purpose. Researchers should not assume the common law elements survive intact in any given jurisdiction's modern code.
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Encyclopedia Cross-Reference
Forgery and Counterfeiting (The Law Mind Criminal Law Encyclopedia)
Negotiable Instruments — Forgery and Alteration (SS3-401, 3-407) (The Law Mind Contracts & Commercial Law Encyclopedia)
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