That there should be a valid and subsisting policy is equally essential. Unless there was such a policy, covering the identical property, upon the very voyage in which the vessel was engaged, covering such a risk, and known to the accused, the law cannot intend that he designed to prejudice the underwriter. The rule of law is, that if every fact laid in the indictment may be true, and yet the accused may be innocent of any offence, the indictment is defective. #fnn [1] If essential to lay it in the indictment, it is equally essential to establish it by testimony. Unless, therefore, it be proved, that there was a valid policy, there could be no underwriter who could be injured. There might be a policy covering the vessel against capture by the enemy, against destruction by fire, upon a different voyage from that which the vessel was pursuing. Under such circumstances, the law would not infer the intention to prejudice the underwriter. The case of the King v. Gillson, #fno [2] appears decisive of this question, so far as its authority is recognized. And, in the case of the United States v. Johns, the Court held, it was essential to prove a valid subsisting policy.
As to the supposed analogous cases of forgery cited on the part of the prosecution, all cases of forgery necessarily imply, that the instruments are in themselves invalid; that they are false in reality is of the essence of the crime, which consists in the representation of such void instruments to be valid, with intent to deceive somebody. Such deception is practised upon third persons, not upon those whose names are forged. Were a man indicted for representing a forged will to be a genuine one, with intent to defraud a person shown to be dead, or never to have been in rerum natura, it might bear upon the former point raised in this case. Upon this point they can have no bearing whatever. Unless the instrument charged to be forged is proved to be false, there can be no conviction for forgery. Unless, in this case, the policy is proved to be valid, we insist the same conclusion follows. The essence of that crime is the representation of a false instrument to be a genuine one; the gist of the offence here is, that a party was in such a predicament that he might be injured by the act of the prisoner, and, consequently, that the policy was a valid one. The deception in that case might be equally successful, and, therefore, equally injurious, whether the bill purported to be made by a dead man or by a living one, whether the person who purported to be the drawer of a bill of exchange, was in existence or not; and, therefore, that circumstance could make no difference. In this case, no person could be injured unless there was a valid policy of insurance, and, therefore, the proof of such policy is essential. If it be essential that a valid policy should be proved, (which, in itself, includes the proof of a legally subsisting corporation,) in what manner, and by what species of evidence, is this to be made out? By producing the act of incorporation or charter. Was, then, the exemplification of the acts of the Massachusetts legislature, in this case, sufficient? The statute of Congress directs, that the legislative acts of the several States should be proved by the annexation of the great seal. But this provision was merely in affirmance of the common law, and was not designed to dispense with any of the rules of the common law. The seal of the State proves itself, and may also prove the truth of the certificate which it purports to sanction, but that certificate ought to show, in its terms, that it was affixed by some one having authority to affix it. These papers are, evidently, from the face of them, torn from some printed book, full of erasures and interlineations not enumerated in the certificate. These printed papers are not connected directly with the seal. The seal is on a distinct piece of white paper, and by a single thread these pretended acts of the legislature are connected with that. Some essential parts are again connected with those through which the thread passes by wafers. Does the seal prove these? If a thread or wafer were now to be used to connect either, or any of these sheets, with a newspaper, it would be equally well authenticated. These acts are not fully given. They do not include the evidence of enactment, nor do they contain the attestation of those officers whose signatures are essential. These are constituent parts of every legislative act. They are all upon the original rolls. The evidence offered is, then, merely of extracts, or parts of the acts, not entire copies.
It is not only essential that the act should be exhibited, but it should also be proved that the Company went into existence, and continued to subsist. The grant of the charter must be accepted by the voluntary consent of those whom it designed to incorporate, otherwise it will be void. #fnp [3] The corporation might also have become extinct,-it may have been dissolved,-the charter may have been forfeited.
As to the question whether a corporation is a person, within the meaning of the act of Congress, the case from Leach and East is the only case which has been referred to, in which the question has occurred in a criminal prosecution. It has been suggested, that it is doubtful whether such a question was, in fact, decided. East states it positively; in the last edition of Leach, the assertion is reiterated, and it is sanctioned by the last editor of Comyn's Digest, and other authorities. #fnq [4]
Mr. Justice STORY delivered the opinion of the Court.
The first question for consideration is, whether the evidence of the act of incorporation of the Boston Insurance Company, disclosed upon the record, was admissible as a sufficient verification thereof. It is matter of most serious regret, than an exemplification so loose and irregular, should have been permitted to have found its way into any Court of justice. As it has, it is our duty to decide upon its legal sufficiency. It is under the seal of the State, and verified by the signature of its Secretary.
It is said that this is not enough, and that it ought to be shown, that the Secretary had authority to do such acts. This objection must be decided by an examination of the act of Congress of the 26th of May, 1790, prescribing the mode in which the public acts, records, and judicial proceedings of each State, shall be authenticated, so as to take effect in every other State. That act provides, 'that the acts of the legislatures of the several States, shall be authenticated by having the seal of their respective States affixed thereto.' No other of further formality is required; and the seal itself is supposed to import absolute verity. The annexation must, in the absence of all contrary evidence, always be presumed to be by a person having the custody thereof, and competent authority to do the act. We know, in point of fact, that the constitution of Massachusetts has declared, 'that the records of the Commonwealth shall be kept in the office of the Secretary.' But our opinion proceeds upon the ground, that the act of Congress requires no other authentication than the seal of the State.
The other objections to the exemplification are, that the acts are printed copies, with erasures and written interlineations, not so annexed as to afford perfect certainty that they are the identical copies to which the Secretary's certificate was originally annexed. We think these objections cannot be maintained in point of law. The copies must be presumed to be the original copies, in the same state in which they were originally annexed. Any subsequent alteration or subtraction would be a public crime of high enormity; and the commission of a crime is not to be presumed. The certificate of the Secretary, taken together, shows that he did not mean to state that the printed copies had not been varied by writing, so as to be true copies, for he adds the phrase, they are now true copies of the original acts. The original print is still visible throughout, and the alterations in writing are mere verbal alterations, not in the slightest degree varying the sense or effect of any single clause in which they occur; and, to afford additional proof of identity, the Secretary has on each copy annexed his own signature, with an attestation of its being a true copy. There is, therefore, no presumption, from the face of the papers, or otherwise, of any alteration or addition since the seal of the State was annexed. The annexation of the usual attestation of the enactment and signatures to the acts was not necessary. It is sufficient that their existence and time of legal enactment is shown.
Our opinion, therefore, upon this question is, that the papers were properly admitted in evidence.
The next question is, whether before the policy of insurance, underwritten by the Boston Insurance Company, could be given in evidence, it was necessary to prove that the subscription to the stock, and the payment of such subscription as required by the act of incorporation had been made. In our opinion, it was not. This is not the case where a suit is brought by the corporation to enforce its rights, where, if the fact of its legal existence is put in controversy upon the issue, the corporation may be called upon to establish its existence. The case of Henriques and Van Moyses v. The Dutch West India Company, cited in 2 Lord Raym. 1535. as decided before Lord King, whatever may be its authority, was of that sort, and, therefore, carries with it an obvious distinction; nor is this the case of a quo warranto, where the government calls upon the company to establish its legal corporate powers and organization. The case here is of a public prosecution for a crime, where the corporation is no party, and is merely collaterally introduced as being intended to be prejudiced by the commission of the crime. Under such circumstances, we think, nothing more was necessary for the government to prove, than that the company was de facto organized, and acting as an insurance company and corporation. The very procurement of a policy by the prisoner, to be executed by the company, was of itself prima facie evidence for such a purpose. In cases of the murder of officers, it is not necessary to prove that they are officers by producing their commissions. It is sufficient to show that they act de facto as such. In cases of piracy, it has been held sufficient to establish the proprietary title to the ship by evidence of actual possession of the party claiming to be owner. These are analogous cases, and furnish strong illustrations of the general principle.
The same answer may be given to another objection, and that is, that the policy ought to have been proved to be executed by the authority of the company, in such manner as to be binding on them. The actual execution of the policy by the known officers of the company de facto, is sufficient.
The next question arises upon the instruction of the Court, 'that it was not material whether the company was incorporated or not; and it was not material whether the policy were valid in law or not; that the prisoner's guilt did not depend upon the legal obligation of the policy; but upon the question whether he had wilfully and corruptly cast away the vessel, as charged in the indictment, with intent to injure the actual underwriters.' We think this opinion correct. The act of Congress of the 26th of March, 1801, ch. 40. on which this indictment is framed, declares, 'that if any person shall, on the high seas, wilfully and corruptly cast away, &c. any ship or vessel, of which he is owner, &c. with intent or design to prejudice any person or persons that hath underwritten, or shall underwrite, any policy or policies of insurance thereon, &c. the person or persons offending therein, &c. &c. shall suffer death. The law punishes the act when done with an intent to prejudice; it does not require that there should be an actual prejudice. The prejudice intended is to be to a person who has underwritten, or shall underwrite, a policy thereon, which, for aught the prisoner knows, is valid; and does not prescribe that the policy should be valid, so that a recovery could be had thereon. It points to the intended prejudice of an underwriter de facto. The case of the King v. Gillson, (1 Taunt. Rep. 95. 2 Leach, 1007.) did not turn upon this point. That was an indictment for maliciously setting fire to a house, with intent to defraud the London Assurance Company of houses and goods from fire. It was necessary to prove that the household goods in the house had been actually insured for the prisoner by the company. A policy had been executed by the company, on these goods, in another house, and subsequently, upon the removal of the prisoner to the house set on fire, a memorandum was endorsed on the policy, agreeing that the removal of the goods should be allowed. This memorandum was unstamped, and by statute was not admissible in evidence. Six Judges against five held the evidence inadmissible, upon the ground that the prohibition was intended to be universal. The existence, therefore, of the insurance itself, could not be established. If there had been proof that the policy was executed, the question might have arisen, whether it was necessary further to prove its legal validity in all other respects. The argument at the bar, drawn from the known law as to forgeries, is, we think, pertinent. In those cases, when they depend on the common law, actual prejudice is not necessary to be proved; and, of course, the validity of the instrument is entirely waived.
Another question, not raised in the Court below, has been argued here, and upon which, as it is vital to the prosecution, we feel ourselves called upon to express an opinion. It is, that a corporation is not a person within the meaning of the act of Congress. If there had been any settled course of decisions on this subject, in criminal cases, we should certainly, in a prosecution of this nature, yield to such a construction of the act. But there is no such course of decisions. The mischief intended to be reached by the statute is the same, whether it respects private or corporate persons. That corporations are, in law, for civil purposes, deemed persons, is unquestionable. And the citation from 2 Inst. 736 establishes, that they are so deemed within the purview of penal statutes. Lord Coke, there, in commenting on the statute of 31 Eliz. ch. 7. respecting the erection of cottages, where the word used is, 'no person shall,' &c. says, 'this extends as well to persons politic and incorporate, as to natural persons whatsoever.' In the case of the King v. Harrison, (1 Leach, 180. 2 East's Pl. Cro. 927. 988.) it may, perhaps, be matter of some doubt, whether the point was actually decided by the Court. But, if it was, it mainly rested upon a peculiarity of construction which grew out of the statute of 31 Geo II. ch. 22. s. 78. which professed to cure doubts of the meaning of these words in other antecedent statutes upon similar subjects, leaving that on which the indictment was framed untouched. Finding, therefore, no authority at common law, which overthrows the doctrine of Lord Coke, we do not think that we are entitled to engraft any such constructive exception upon the text of the statute.
Upon the whole, it is to be certified to the Circuit Court of Virginia, that the decisions of that Court, upon the points of law arising at the trial, were correctly decided.
CERTIFICATE. This cause came on to be heard on the certificate of division of opinions of the Judges of the Circuit Court, &c. On consideration whereof, it is ADJUDGED by the Court, that it be certified to the said Circuit Court, that the points of law ruled by the said Circuit Court at the trial of the cause, and upon which the same Court, upon a motion for a new trial, were divided in opinion, were, in all respects, correctly decided by the said Court at the said trial.