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From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial RevolutionAuthor(s): Randall McGowenSource: Past & Present, No. 165 (Nov., 1999), pp. 107-140Published by: Oxford University Press on behalf of The Past and Present SocietyStable URL: http://www.jstor.org/stable/651286Accessed: 21/07/2010 10:47

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FROM PILLORY TO GALLOWS: THE PUNISHMENT OF FORGERY IN THE AGE

OF THE FINANCIAL REVOLUTION*

As the highly contentious debate over the criminal law neared its climax in the 1820s, the controversy came to centre on the just- ice and humanity of imposing the death penalty for the crime of forgery. 'It could not be denied', announced Sir James Mackintosh in 1823, 'that in the course of the last ten years, no capital punishment had excited so much odium, and rendered the administration of public justice so unpopular as that in cases of forgery'. The history of the offence seemed, at least to the advoc- ates of reform, to summarize the central features of a capital code that defied reason and morality. The marquis of Lansdowne offered a version of this history in the midst of the debate over Robert Peel's proposals for consolidating the law with respect to forgery in 1830. It was, he reminded his fellow peers, a 'little more than 120 years since the crime of forgery was made punish- able with death'. At first the law protected only 'the paper of the Bank of England'. But, in 1728, 'a large addition was made ... [covering] all securities and transferable money-papers whatever. From that period, many years have never elapsed without adding to what I must call a most sanguinary code'. 'There are now', he reported, 'about 120 statutes against forgery on the Books, and out of these, upwards of sixty inflict the penalty of death'. As proof of this fact, he referred to a parliamentary report of 1824, 'in which will be found thirty-eight folio pages taken up with a simple enumeration, and nothing beyond, of all the Statutes then in existence against forgery'. This great mass of legislation was, Lansdowne implied, of a piece with much of the rest of the capital code. It arose out of narrow economic interest or from the activit- ies of 'the head clerk of each department' of the revenue. It passed through the inattention of 'a careless Legislature'. The effect was to multiply offences needlessly: 'the Statutes that exist

* An early version of this article was presented at a meeting of the North American Conference on British Studies, Asilmomar, California, in October 1997. The authors wishes to thank John Beattie, Peter King, Margot Finn, and, above all, Joanna Innes, for their comments and encouragement.

are a sea of confusion through which not even the most skilful lawyers can dive to collect a definite notion of the principles on which the enactments have been made'. But confusion was the least of his concerns; the most serious charge was that this legisla- tion treated life with levity. It reflected the fatal flaw that disfig- ured the entire capital code, too high a valuation of property, too flagrant a disregard for humanity.1

Conservatives struggled to meet these charges. The issue remained so long in dispute because Tories like Peel strenuously resisted the efforts to mitigate the punishment affixed to the offence. 'The crime of forgery', he remarked in 1830, 'had appeared to him to occupy a most important station in the list of offences'. He opposed what he saw as ill-considered efforts to strip the nation of a safeguard crucial to the protection of its prosperity. For Peel, as well as the judges in the Lords, forgery was the point where the impatient rush to overthrow the capital code should come to halt.2 By the 1830s, however, Peel was having little success in convincing MPs. The reform argument had carried all before it, imposing a powerful interpretation of the eighteenth-century criminal law upon public opinion. In this narrative, the so-called 'bloody code' appeared to be casually created, largely inhumane and haphazard, and yet fundamentally the same throughout. For many years historians were content to echo this characterization of the code.3 More recently, scholars have challenged it, especially the tendency to treat the legislation in a monolithic fashion. They demand that we pay more attention to the particular histories of specific measures. The early results of these investigations suggest that legislators were more attentive to the content and purposes of penal acts than is usually accepted and, that these acts were, at least some of the time, more carefully crafted than has been credited.4 Still, the great bulk of the capital

1 Hansard, new ser., ix (1823), 421; xxv (1830), 581-5. 2 Ibid., xxiii (1830), 1176. 3 In particular, Leon Radzinowicz, A History of English Criminal Law, 5 vols. (New

York, 1948), i, 3-79; but see also Douglas Hay, 'Property, Authority, and the Criminal Law', in Douglas Hay et al. (eds.), Albion's Fatal Tree (New York, 1975), 19-22; John H. Langbein, 'Albion's Fatal Flaws', Past and Present, no. 98 (Feb. 1983), 116-19.

4 Joanna Innes and John Styles, 'The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England', in Adrian Wilson (ed.), Rethinking Social History (Manchester, 1993); J. M. Beattie, 'London Crime and the Making of the "Bloody Code", 1689-1718', in Lee Davison et al. (eds.), Stilling the Grumbling

(cont. on p. 109)

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code weighs upon the imagination; it seems to capture some truth about the eighteenth century that we are reluctant to surrender.

The goal of this article is to examine one episode in detail, the origin of the forgery statute of 1729, to see what it can contribute to the debate over the character of the eighteenth-century crim- inal law. Forgery acts have long figured prominently in discus- sions of the century's criminal legislation. Historians as different as Leon Radzinowicz, Douglas Hay and J. H. Langbein all enlist the frequent occurrence of such measures to support their differ- ent interpretations. Yet the 1729 statute presents problems for all of these accounts. The complications appear in Lansdowne's version of events. While he emphasized the steady but piecemeal growth of this category of the law, he acknowledged that the measure passed in 1729 (not 1728) marked an abrupt departure. If he had discussed it in more detail, he could not but have noted the other ways in which it differed from the majority of the century's capital statutes. It was a sweeping and general, rather than a narrow and specific, bill. And, unlike so many other measures, which were seldom if ever used, a small but steady stream of forgers died upon the gallows, most tried under this statute. Indeed, as its centrality in the debates of the 1820s suggests, forgery came to occupy an almost unique place in the minds of both those who demanded reform of the criminal law and those who defended the traditional legal order.S

Thus, we are faced with a double challenge, both to explain the peculiar nature of this statute and to understand the unusual attention given to the crime. In order to answer these questions we must look to the sensational episode that produced this legisla- tion. While this investigation will lead us through the intricacies of the world of London finance, the source of the measure, I will argue, lay elsewhere. It arose with the judges and legal advisors to the crown. For them, the case drove home an alarming conclu- sion about the importance of private credit to national prosperity, and the vulnerability of such credit to a particularly sinister kind of fraud. They articulated this concern in the moral and economic categories most familiar to them. They resorted to the death (n. 4 cont.) Hive (New York, 1992); David Lieberman, The Province of Legislation Determined (Cambridge, 1989), 26-7; Clive Emsley, Crime and Society in England, 1750-1900 (London, 1996), 10-11.

5 2 Geo. II, c. 25, made permanent by 9 Geo. II, c. 18; Edward Hyde East, Pleas of the Crown, 2 vols. (London, 1802), ii, 919-24.

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penalty after considerable deliberation, and their sustained sup- port for its application, often in the face of appeals from members of the financial community, demonstrates their enduring commit- ment to that view. The history of this statute supports the conclu- sions of the revisionists that the capital code was far from monolithic and homogeneous. It also suggests that economic interest alone will not explain either the passage of the measure or the status of forgery over the the following century. Finally, I hope to show that criminal legislation can be used to illuminate other areas of eighteenth-century life. It can, for instance, register the subtle changes in the way contemporaries thought about a society that was ever more dependent on paper.6

I

In the last years of the seventeenth and the early years of the eighteenth centuries, England experienced a revolution in finance that was widely remarked upon by contemporaries and has, in recent decades, attracted the renewed interest of historians. The transformation of public finance has received more attention, but the shifts in the scale of 'private' finance were even more dra- matic. There was nothing particularly novel about the growing use of paper instruments. On the contrary, such notes had long been employed in commerce and were increasingly used in per- sonal transactions. Eric Kerridge argues that 'the old-established bills obligatory and the newly invented bills of exchange' circu- lated widely in inland trade by the mid-seventeenth century. The end of the century saw judicial rulings that gave them legal protection, and parliamentary legislation, culminating in the Promissory Notes Act of 1704, which secured their 'full negoti- ability'. In London the rise of banks assisted in the explosion of paper. Through these facilities and instruments the English cre- ated a system 'that was highly responsive to the community's demand for money'. Notes of hand were employed in all sorts of situations, not only for extraordinary transactions such as the transferring of funds from one place to another, but in everyday purchases as well. Economic writers noted with a mixture of admiration and surprise that paper circulated just like specie.7

6 Innes and Styles, 'Crime Wave', 246-55. 7 Eric Kerridge, Trade and Banking in Early Modern England (Manchester, 1988),

45-75; B. L. Anderson, 'Money and the Structure of Credit in the Eighteenth (cont. on p. Il )

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Yet this rising tide of 'private' paper had not produced any alteration in the criminal law. By the 1720s the law with respect to forgery appeared reasonably settled. A number of statutes

passed between 1690 and 1714 made forgery in connection with the revenue felony. The Bank of England secured a capital statute to protect its paper in 1697. In subsequent years the South Sea

Company and several insurance companies received a similar

protection. But the tide of capital legislation stopped here. The vast majority of financial operations involving paper found no mention in these statutes. Forgeries of notes of hand issued by private persons, and even of the paper circulated by the people coming to be called bankers, remained misdemeanours under an Elizabethan act of 1563. The penalty upon conviction, by the late seventeenth century, was a spell in the pillory and a fine, some- times combined with a term in prison. These forgeries arising out of private transactions were not clearly distinguished from other forms of cheats, such as the use of false pretences to secure

goods or the schemes employed by stockjobbers.8 The law singled out those crimes that attacked the paper of the government -

exchequer bills, excise stamps - or public corporations as deser-

ving of the death penalty. Despite the occasional occurrence of a considerable forgery upon an influential person, there was no call for increasing the severity of the punishment for the crime.

The situation changed dramatically in 1728. In the autumn of that year the papers contained news of a sensational crime. 'We (n. 7 cont.

Century', Business Hist., xii (1970), 89-93; Peter Earle, The Making of the English Middle Class (London, 1991), 135-7, 365-6; J. Milnes Holden, The History of Negotiable Instruments in English Law (London, 1955), 36-98; Julian Hoppit, 'The Use and Abuse of Credit in Eighteenth-Century England', in N. McKendrick and R. B. Outhwaite (eds.), Business Life and Public Policy (Cambridge, 1986), 65-7; Frank Melton, Sir Robert Clayton and the Origins of English Deposit Banking, 1658- 1685 (Cambridge, 1986), 87-9, 95-7.

8 For some examples of these offenses, see The Cheating Age Found Out: When Knaves was Most in Fashion (London, 1705). Defoe accused stockjobbers of practicing 'a trade founded in fraud, born in deceit, and nourished by trick, cheat, wheedle, forgeries, falsehoods, and all sorts of delusions': Daniel Defoe, 'The Anatomy of Exchange Alley', in The Versatile Defoe, ed. Laura Ann Curtis (New Jersey, 1979), 263. For an early instance of the prosecution of forgery, see Old Bailey Sessions Papers, 15-16 Jan. 1690, the case of Robert Young, 'known to have followed the practice of forgery for a long time'. See also ibid., 8-13 Dec. 1714 (Stephen Mead for uttering banker's note), 14-17 Jan. 1715 (Robert Williams forging the duke of Bolton's hand); Melton, Sir Robert Clayton, 108. Sir Stephen Evance, goldsmith, was the victim of a forgery committed by Thomas Ward involving a note for £666 6s. 1 ld. Ward was found guilty, fined £200 and stood three times in the pillory. Narcissus Luttrell, A Brief Historical Relation of State Affairs, 6 vols. (Oxford, 1857), vi, 144.

1ll

hear', one private newsletter hastened to alert its recipients, 'of a very notorious fraud that was discovered yesterday'.9 The crime attracted such attention, at least in part, because of the identity of the victims: it touched several members of parliament. One victim, Thomas Gibson, belonged to the firm of Gibson, Jacob and Jacomb, which numbered among its clients Robert Walpole. Robert Jacomb, in particular, had handled Walpole's investments during the South Sea crisis and offered him advice on how the government might respond to the situation. Gibson was said to have made 'a timely loan' to Walpole, and both partners benefited from Walpole's patronage.10 In addition to Gibson, another MP, Samuel Edwards, was a target of the scheme. Edwards, who had married into the Godolphin family, occupied several offices con- nected with the revenue. He served 'as cashier and later paymaster of Exchequer bills, and director in several lotteries'. In short, both victims were men, as the popular phrase of the time put it, 'of very great credit'. They were intimately associated with the intersections of the world of finance and politics."

No doubt the identity of the victims played a large part in the uproar created by the crime. But the name of the accused figured at least as much in arousing interest in the case. 'So many for- gerys', the newsletter reported, 'are charged upon William Hales now in Newgate as the like hath not been known'.12 Hales belonged to a well-known family. Descended from a Baron of the Exchequer under Henry VIII, the Hales formed a respected Kentish clan. William was the ninth of twelve children. The eldest son was Sir Thomas Hales, an MP for Canterbury, a commissioner for forfeited estates between 1716 and 1725, and a strong supporter of the Whigs. His son, also Thomas, was an MP and occupied a household post at the court of George II. Of the brothers closest to William in age, Robert was a secretary to the Privy Council. He had inherited a considerable fortune from his grandfather and acquired, while on the grand tour, a facility with languages that he employed to advance his political career.

9 British Library, London (hereafter Brit. Lib.), Egmont Papers, Add. MS 47,081, fos. 200, 202 (handwritten newsletter, 10, 12 Sept. 1728).

O1 Romney Sedgwick, The House of Commons, 1715-1754, 3 vols. (New York, 1970), ii, 62-3, 170-1; Diary of the First Earl of Egmont, Viscount Perceval, 3 vols. (Hist. MSS Comm., lxiii, London, 1920), i, 118; P. G. M. Dickson, The Financial Revolution in England (London, 1967), 170.

" Sedgwick, House of Commons, ii, 5.

12 Brit. Lib., Egmont Papers, Add. MS 47,081, fo. 202 (12 Sept. 1728).

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Another brother, Stephen, was perpetual curate of Teddington, Middlesex, and a widely respected scientist, fellow of the Royal Society since 1718, and the acclaimed author of Vegetable Staticks (1727). The two brothers were enthusiastic advocates of religious causes. They played a prominent role in the governance of the Society for the Promotion of Christian Knowledge, supporting it with their time and money.13

While his brothers pursued their careers, William Hales was launched upon a different path. In 1693 he was apprenticed to a goldsmith, Sir Stephen Evance, and in time he became the latter's partner. Evance was a prominent London figure, a receiver of the excise, one-time royal jeweller, as well as banker for the Hudson's Bay Company and dealer in African and East India stock. By 1703, William had become a freeman of the Goldsmiths' Company; by 1705, he had become a liveryman. Although the precise details remain obscure, the firm of Evance and Hales failed in 1721. His conduct in that crisis still attracted negative comment seven years later, and he had not been granted a certi- ficate that declared he had dealt honourably with his creditors and so was free to recommense business. Despite the collapse of his bank, Hales continued to be involved in major financial trans- actions. At the time of his capture, he was described as engaged in a protracted case in Chancery, seeking to recover £30,200 that he said he had lost at the hands of Gregory Page, a wealthy director of the East India Company. Speculation was rife that it was the knowledge that he would lose this suit that led him to commit the forgeries.14

13 D. G. C. Allan and R. E. Schofield, Stephen Hales: Scientist and Philanthropist (London, 1980), 1-5; Sedgwick, House of Commons, ii, 96-7; Dickson, Financial Revolution in England, 449.

14 At one point it was rumoured that Hales would be charged with forging Page's hand to a note for £8,000. John Raynor repeated the story that Evance was a frugal man, worth at least £100,000. He was undone 'through the indiscretion (if not worse) of two stock jobbing partners', one of whom was Hales. Evance committed suicide, but his estate paid all his creditors in full. John Raynor, Readings on Statutes: Chiefly those affecting the Administration of Public Justice in Criminal Cases passed during the Reign of George II (London, 1775), 169; Allen and Schofield, Stephen Hales, 1-5; F. G. Hilton Price, London Bankers (London, 1890), 128; Luttrell, Brief Historical Relation of State Affairs, iv, 228; Dickson, Financial Revolution in England, 252, 491-5. Evance is mentioned in Daniel Defoe, Colonel Jack (Oxford, 1989), 20-1; Select Trials at the Old Bailey, 4 vols. (1742), repr. in 2 vols. (New York, 1985), iii, 102; Brit. Lib., Egmont Papers, Add. MS 47,081, fos. 202, 209, 243 (12, 21 Sept., 29 Oct. 1728); Melton, Sir Robert Clayton, 209-10.

113

The story revealed at the subsequent trials at the Old Bailey in December and January only served to heighten both the inter- est in and the alarm generated by the case. It appeared that Hales had turned to forgery at a time of great desperation. He had used forged notes to borrow money in an effort to forestall his complete ruin. Especially disconcerting was the discovery that two other men were likely involved in the crime. One of these was a clergyman named Thomas Kinnersley. 'It is', Philip Yorke announced, 'a very melancholy thing that when a scene of forgery of this nature is going on ... we should see one charged therewith that hath a right to appear here in that habit, and thinks fit to appear here in it'. The connection between the two men dated from the period when both Evance and Hales had lived in Kinnersley's parish. The prosecutors showed that Hales and the minister met regularly at several different coffee-houses, asked for private rooms, sometimes sat in the dark and 'stayed some time together'. During these sessions, over a period of 'four or five months', Yorke charged, they conspired together. The other participant, or so many believed, was William's brother, Robert. William, apparently, had long involved his brother in his financial dealings; their fortunes had declined together. It looked to many as if these reverses had led the normally upright Robert to follow his disreputable brother in a scheme of doubtful legality. Some people feared that Hales, with his extensive family connections and influence, might well escape the charge. Gibson petitioned the king that the government undertake the prosecution.15

The seriousness of the case, as well as the social standing of the people involved, led to the presence of an extraordinary array of legal talent. Yorke, the attorney general, conducted the case, with the assistance of Charles Talbot, the equally able solicitor general. In his opening charge, Yorke voiced the anxiety that inspired government attention. This was, he said, 'the first case of the most extraordinary scene of forgery that hath come under examination in this place'. Yorke did not mean that the Old Bailey had not seen other instances of the crime. Rather he indicated that these forgeries, 'committed in such a manner, and

15 A Complete Collection of State Trials, ed. T. B. Howell, 24 vols. (London, 1813), xvii, 230, 237-8, 291; Allan and Schofield, Stephen Hales, 1-5; Townsend to Philip Yorke, 15 Nov. 1728: Brit. Lib., Hardwicke Papers, Add. MS 36,137; Brit. Lib., Egmont Papers, Add. MS 47,081, fo. 202 (12 Sept. 1728). Both Edwards and Gibson ordered that the trials be taken down in shorthand.

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attended with such circumstances', suddenly cast the offence in a new light, 'as make it necessary to be prosecuted with the greatest weight and solemnity, for an example and terror to others'. 16

II

The various frauds committed by Hales were clever and complex. They involved at least five notes of hand totalling many thousands of pounds. The case opened to examination a system of exchange founded upon paper instruments whose worth relied upon per- sonal credit and reputation. Notes were hand-written; their value depended, not upon the person who presented them, but on the credit of the persons whose names appeared on them. One did not need to know all of the names on a bill; the signature of one highly esteemed person was enough to influence a person to take it. The more impressive the name, the more easily the instrument passed into circulation. 'Every one knowing', observed Justice Page, 'Mr. Gibson's very great credit', would be disposed to honour a bill bearing his signature. At one bank they 'gave such credit to Mr. Gibson's name', that they readily accepted the note. One victim of the fraud, in taking the note offered to him, testified that he 'knew that Mr. Edwards was a gentleman of great credit'. Edwards was widely respected as 'a person of very great dealings and considerable substance'. Another man who took one of the bills, upon seeing Edwards' signature on the note, said that he had not bothered to look for Kinnersley's endorse- ment. Kinnersley, Yorke told the court, was unable 'to give currency to the note, it being in his name'. It was Edwards's signature, and it alone, that 'gave circulation to the note'.17 A signature was believed to be a unique act, easily recognized even

16 Complete Collection of State Trials, ed. Howell, xvii, 171, 262; Brit. Lib., Egmont Papers, Add. MS 47,081, fo. 277 (7 Dec. 1728). Serjeants John Strange and Edward Whitaker also appeared for the prosecution. Because the forgery for which he was tried was a misdemeanour, Hales was able to employ 'three eminent counsel'. The presence of defence counsel helps to explain the great care taken by the prosecution in presenting its case, and the great length of the trial. Forgery was a difficult offence to prove; 'such iniquities are deeds of darkness', one prosecutor acknowledged, 'and those who commit them do not call witnesses to attest the performance'. On defence counsel in the eighteenth century, see J. M. Beattie, 'Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries', Law and Hist. Rev., ix (1991), 221-6.

17 Complete Collection of State Trials, ed. Howell, xvii, 237-8, 277, 289, 291-4.

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between people only casually acquainted, if one took sufficient care. It was the absolute conviction in the authenticity of Edwards's or Gibson's hand on the part of everyone who encoun- tered the notes that allowed the scheme to proceed as far as it did. This certainty overrode all other doubts about the irregularity of the notes or the manner of their transaction. Paper instruments were slight and insubstantial things; they were mere scraps with a bit of writing and a collection of names upon them. It required a name and a signature to give them life.18

Hales secured the all-important signatures by a ruse. He approached Gibson and Edwards with a request for several franks. members of parliament possessed the privilege of free postage, and, while it was supposedly an abuse for MPs to pass on franks to friends, the practice was winked at by officials.19 Edwards was a near neighbour of Hales, living in Duke Street. He had supplied the latter with franks for several years. His 'good nature', Yorke explained, 'induced him to accommodate him according to his desire with them, supposing they were only desired to send news to his friends in the country'. On another occasion, Hales approached an old acquaintance, Philip Booth, a bookkeeper to Gibson, with a request that he secure several franks from his employer. Hales told him that he was going to write to Booth's relation, 'to send news into the country'. In turning their signa- tures to his own purposes, Yorke charged, Hales took 'advantage' of 'an act of kindness and civility done' to him.20

A franked note was little more than a sheet of paper with a superscription bearing the name of the intended recipient, and, underneath, the word 'free' and the signature of the person authorized to post it. For an experienced financier like Hales, the creation of a negotiable instrument from this document presented little challenge. In one instance, Hales had his brother Robert write a note promising to pay Samuel Edwards £800. Edwards's

18 For a fuller discussion of this point, see Randall McGowen, 'Knowing the Hand: Forgery and the Proof of Writing in Eighteenth-Century England', Hist. Reflections, xxiv (1998).

19 For a short history of franking that includes a discussion of this case, see Gentleman's Mag., lvi (Sept. 1784), 647-9.

20 Complete Collection of State Trials, ed. Howell, xvii, 165, 175, 212-17, 220. Such informal networks for disseminating news were important in the early eighteenth century, especially for those, like Hales, who were known to deal in stocks on behalf of people outside the capital. When Hales was taken, he was found in possession of two blank covers signed by Lord Guilford. Brit. Lib., Egmont Papers, Add. MS 47,081, fo. 202.

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signature on the reverse side of the note became the endorsement, upon whose credit it could be put into circulation. 'No other purpose', Yorke explained, 'seems aimed at in the endorsing but to set the note a going'. 'The endorsement', one judge suggested, 'is complete authority to impower the person in whose possession the note is, to receive the money, and likewise to charge the person that so endorsed it with the reimbursement of the money'. Once he had the note, Hales approached Robert Harle, a secretary to the Million Bank, with a request to borrow £450 on the strength of the bill. In so doing, one judge pointed out, he staked 'the credit of Mr. Edwards as a security for the money'. Harle later admitted that he was so thoroughly convinced by Edwards's signature that he only had cause to suspect the note when word of Hales's fraud spread in September.21 A second instrument, for £1,260, was employed to borrow £750 from Thomas Bird, an officer of the Hudson's Bay Company, while a third for £1,650 was used to secure £400 from Charlton Thrup. A fourth note made a different use of Edwards's signature. In this one Edwards appeared to promise to pay £4,700 to one Samuel Lee. Lee, it was revealed at the trial, was 'one that is worth nothing: he is a sea-faring man, and his wife was nurse to Mr. Hales' children'. The bill persuaded Sir Biby Lake to stand bail for Hales, who 'had been harrassed with several judgments against him'. Hales had been arrested upon his failure to pay a note, also signed by Robert, that he had given to Dr Mapleton of Canterbury. He went to Lake for help, 'to keep off the evil day as long as possible', but the latter insisted upon 'good security'. Lake told the court that when he examined the note and saw Edwards's signature, he 'thought it was very good security to me for such a sum'.22

Up to this point, Hales had made use of the forgeries to raise funds to forestall his insolvency. He presented the notes himself to friends and acquaintances; they were not negotiated. With the Gibson note, it appeared that Hales had resolved upon a more alarming course. In this instance, he actually negotiated the instrument with the intention of raising an extraordinary sum of money so that he could flee the country. This phase of his scheme exposed even more fully his daring and ingenuity. Taking the frank, he tore off the superscription, and altered the word 'free'

21 Complete Collection of State Trials, ed. Howell, xvii, 212-17, 220, 226, 270. 22 Ibid., 237-8, 277, 289, 291-4.

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by erasing the 'ee' and putting an 'o' between the 'f' and the 'r'. Thus, the note read:

August 27, 1728 I promise to pay George Watson, esq. or bearer, the sum of six thousand four hundred pounds, at demand, the like value received. For myself and partners,

Thomas Gibson

Despite the imperfections of the note, Hales knew that as long as the signature appeared genuine few would question a small erasure or even its peculiar shape.23

Once he had created the note for £6,400, Hales faced the greatest obstacle to his success. He was both well-known and a bankrupt. If he personally tried to negotiate such a large note, he would immediately arouse suspicion. Even the appearance of his name on the instrument would put people on their guard. To get around this difficulty, he employed a young man, Thomas Rumsey, who had 'been to sea ever since six years of age', to circulate the note for him. Hales, Rumsey later testified, had cultivated his acquaintance for several months. 'He had been so very kind to me', Rumsey told the court, 'and I had so good an opinion that he designed no ill, that I readily did as he ordered me'. Rumsey's naivete served Hales's plot. He coached the young man carefully. When Rumsey was about to enter an establish- ment, Hales 'considered the questions which were likely to be asked, and gave him instructions how to make proper answers, and some of them in writing'. He told him to wear 'a particular suit of clothes', bought him a pocket-book and a 'dark perriwig'. If questioned, Hales told him to say that his name was Thomas Fowler and that he lived at the upper end of Bond Street. Thus equipped and instructed, Hales sent Rumsey off to visit the leading financial institutions of London.24

In all of these preparations Hales offers us a window on seem- ingly contradictory features of the world of London finance. On the one hand, this society operated on the basis of familiarity, both with the rules and customs of banking and exchange, and with the quirks and peculiarities of the individuals who dealt in it. It remained remarkably personal: people recognized names, as well as particular ways of conducting business. There was an

23 Ibid., 165-6, 194-5, 220, 226, 270. The prosecution suggested that there was no such person as George Watson.

24 Ibid., 169-70, 176-8.

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intimacy to the business community upon which it depended for its security, not only against forgery, but also against fraud and bankruptcy.25 Hales exploited such knowledge at every turn. He dated the note he was to negotiate for the day before he knew Gibson was to depart for Bath. He set his plan in motion on a Saturday, because he believed that none of the offices would have an opportunity 'of making inquiries' until the following Monday. When Hales sent Rumsey to a bank, he was careful to provide him with names to be employed on the notes. 'For the stratagem', Yorke explained, 'was to make use of the names of persons that dealt at the several shops, in order to gain credit to the transac- tion'. At Hoare's, for instance, Rumsey requested, a note for £4,300 payable to Sir Richard Grosvenor, the wealthy Tory devel- oper and MP, and a second note for £2,100 payable to Sir John Hyde Cotton, another prominent Tory MP. These names were not crucial to the further negotiation of the notes, but they lent a plausibility to the transaction.26

Even as the recognizability of the handwriting spoke of the intimate quality of commercial life of London, the employment of Rumsey indicated a different aspect of that community, the increasing impersonality of exchange. Many of the financial operations in the metropolis were carried out by anonymous agents - bill porters, clerks and servants of all sorts. Hales sent Rumsey, dressed 'like a man of business', to the bankers and stockbrokers of the City. Once garbed in the appropriate fashion, possessed of a proper knowledge of what he was about, no one questioned this stranger. Each financial institution accepted his request to exchange large notes for smaller ones as no more than a normal transaction, even though the sums involved were enorm- ous. At Hoare's the clerk completed the exchange of instruments 'without observing much this note'. The routine face of London

25 The considerable degree of familiarity that characterized City finance almost frustrated Hales's scheme at the outset. The first shop to which he sent Rumsey, Snow and Potlock's, an old London bank, refused to take the note because it was not all in Gibson's hand. Potlock, 'observing the appearance of the note for 6400 1. that it was written on a dirty scrap of paper, and the difference of handwriting in it, would have nothing to do with that'. 'I would not meddle with it', he said. Yet the conviction that the signature was genuine prevented him from raising an outcry. He was content to be prudent. Hoare's showed no such reluctance in taking the note: ibid., 167, 169-70, 184.

26 Sedgwick, House of Commons, i, 584-5, ii, 87-8; Melton, Sir Robert Clayton, 212-16; D. M. Joslin, 'London Private Bankers, 1720-1785', Econ. Hist. Rev., 2nd ser., vii (1954), 176-7.

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finance was crucial to the next phase of Hales's plan. Not content with his initial conversion of Gibson's supposed note, Hales had Rumsey go to Brassey's bank in order to convert the notes from Hoare's into still smaller notes. Then he sent him to a broker, one John Halsey, to buy stock, both South Sea and East India, in the name of Samuel Palmer. These hurried transactions all occurred on Saturday evening, as Hales rushed 'to darken and intricate the affair'. He aimed, Yorke concluded, 'to negotiate and exchange them for other notes from hand to hand, in order to entangle the affair, and make it difficult to trace out the cheat'. On the following Monday, Rumsey went to Alderman Hankey's shop, where 'they having no difficulty about exchanging [the remainder of] Mr. Hoare's notes, accepted them, and gave him two of their own'. Hales was engaged in the last stage of his plot when, on the same day, he sent his tailor back to Brassey's to get £650 endorsed off a note for £1,200, accepting Bank of England notes in exchange. Even the reappearance of one of their notes within such a short time failed to arouse suspicions, for the ease and convenience of such large transactions was one mark of the strength and sophistication of London finance.27

The conspiracy was uncovered almost by accident. In the normal course of business, a servant of Hoare's carried the £6,400 note to Gibson's. He gave the instrument to a servant there, asking him to pay the money into Hoare's account at the Bank. Before this transaction could be completed, another servant, hap- pening to return to the office, expressed confusion at seeing the note. 'I was very much surprised', the clerk later testified, 'it being wrote by a strange hand, and knowing, by many years experience, that Mr. Gibson never signed any promissory notes without writing the whole'. It was so different in style, and in the entire way of proceeding, that he 'thought that there might be some wickedness at the bottom'. He checked the books where Gibson entered a record of such transactions, but found no men- tion of it. At this point he showed the note to Gibson's partner, Jacomb, whose first doubts were confirmed when he observed the erasure. Jacomb set out to trace its path, and, finding that part had been paid in Bank notes, he applied to that corporation to stop payment. The Bank co-operated. When Rumsey

27 Complete Collection of State Trials, ed. Howell, xvii, 167-71, 205. Palmer's role in the scheme is unclear. He fled the country before the trials. For another example of this ruse, see Defoe, Colonel jack, 21.

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appeared, he was seized. He soon agreed to lead officials to Hales, who was waiting for him at a nearby coffee-house.28

III

This case shocked people because it exposed the vulnerability of the system of paper credit. When news of the detention of Hales got about, one witness reported, it 'caused a pretty great deal of noise'. 'Such as had notes of Mr. Hales for their security, were alarmed'. Samuel Edwards, when shown a note bearing his signa- ture, 'was very much startled'.29 The alarm swelled as people considered the number and size of his frauds, and the identity of the perpetrator. Hales was no young clerk who had been tempted to commit forgery in order to escape the consequences of a dissolute life. He was a man of knowledge, a man who understood the complicated secrets of exchange, who possessed the intimate details of people's lives, and who showed he was ready to turn this expertise to evil purposes. But Hales was more villainous yet. He was not guilty of forgery in the usual sense; he had used his ties and connections to secure real signatures. He had then cleverly turned these authentic tokens to fraudulent ends. Many financial transactions in this period relied upon just such personal relationships. The people involved gave or accepted notes as a favour to one another. Hales had betrayed confidences, preyed upon friendship and courtesy. 'I had such an opinion of Mr. Hales', Thrup testified, 'that I suspected nothing, and therefore gave him the note; I did not think he would have been guilty of so vile an action'. Robert Hall, his tailor, told the court that 'I thought I might do anything for Mr. Hales'. Lake, in recom- mending Hales to Bird, described him as 'a friend'. People who felt sorry for him were especially vulnerable. Later, they expressed the greatest anger when the crime was exposed. Booth had known Hales since 1703. 'Foh!' he exclaimed upon learning

28 Complete Collection of State Trials, ed. Howell, xvii, 169-70, 182, 194-5. As one more indication of the thoroughness of Hales's plan, the Bank suspended one of its clerks 'for holding a suspicious correspondence with William Hales'. The clerk was later discharged. Hales had told Rumsey to approach a specific window at the Bank. Bank of England, Court of Directors Minute Book, L, fos. 59, 71 (26 Sept., 19 Dec. 1728).

29 Complete Collection of State Trials, ed. Howell, xvii, 213, 231, 223.

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of the betrayal, 'this is a villainy, a forgery; this looks like one of Hales's tricks'.30

Hales subsequently compounded this feeling of outrage by the defence he offered at his trial. He appealed to the trust others had placed in him as proof against the charge. 'We shall show', his counsel announced, 'that Mr. Gibson himself gave him such credit, that he trusted him with great sums of money, and with receiving rents in Kent'. Through his lawyers, Hales explained that circumstances forced him to refrain from dealing in his own name. 'It was the more natural', they reported, 'in this case, as Mr. Hales, having the misfortune to have a commission of bank- ruptcy standing out against him, could not negotiate notes in his own name, must act out in some friend or neighbour's name'. Thus, all of the subterfuge employed by Hales, the false names and the use of Rumsey, far from implying criminal intent, was simply an unusual way of doing business forced upon him by circumstances. 'A good deal of it is owing to the misfortune he lay under ... Having been a bankrupt many years, and not having obtained a certificate, it was therefore impossible for him to carry on any thing in his own name; therefore, in the whole course of his traffic for many years, he hath been forced to use fictitious names, and thereby conceal all receipts and payments'. By way of proving this point, his lawyers pointed to his books which showed that he had traded 'for upwards of 300,000 1'. It was all 'very innocent', his counsel added, 'if a man gave a note where there is no consideration. It is no injury to the public ... there is no act of Parliament against the giving of such notes'.31

Yorke could scarcely contain his disgust with such a defence. 'Mr. Hales, a bankrupt not discharged', he complained, 'employing such agents as I have described to you; himself lurking about in a concealed manner; all these circumstances show the man was doing a wicked thing, which would not bear the light nor his appearing in it'. What amounted 'to a demonstration', he concluded, 'is his directing these agents to take upon them feigned names and places, to dress themselves in masquerade, and to take notes in the names of other persons, who were absolute strangers to the transaction'. Judge Page echoed these sentiments. 'A man that is a bankrupt', he intoned, 'if he afterwards becomes able,

30 Ibid., 172, 188-9, 195, 242, 270, 291. 31 Ibid., 198-9, 213, 242. Hales's conduct was not unlike certain 'normal' business

practices: Hoppit, 'Use and Abuse of Credit', 70-1.

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ought in honor and conscience to pay his just debts'. Hales's conduct, he suggested, was 'one continuous act of fraud to cheat his creditors'.32

Hales and Kinnersley were found guilty of each of the counts against them. The punishment for forgery was the pillory, and it must have seemed a penalty perfectly suited to a notorious offence. It was imposed, William Hawkins wrote, 'for crimes of an infamous nature, such as petit larceny, perjury, or forgery at common law'. These crimes, he argued, offended 'against the first principles of natural justice, and common honesty'. The pillory inflicted humiliation and brought notoriety to an offender, at least as much as physical suffering. For a respectable person, someone who depended on reputation to make his living, appearing in the pillory in the very place where he carried on business, must have been a terrible event. It marked a person 'out to the public', wrote Sollom Emlyn in 1730, 'as a person not fit to be trusted, but to be shunned and avoided by all creditable and honest men'.33 Before sentence could be passed on Hales and Kinnersley, however, Serjeant Whitaker requested that the court impose a sterner punishment. He gave voice to the sense of moral outrage that was rising as the case proceeded. To him, the punish- ment seemed totally inadequate: 'The pillory, my lord, is noth- ing'. Hales, he continued, had 'endeavored to get many thousand pounds of several gentlemen: now he is only to look through a wooden casement, and this is to make recompence'. 'We humbly hope', he concluded, 'that according to the words of the act of Parliament, some punishment will be ordered, not only ignomini- ous but corporal punishment'. The judge replied that the court could order imprisonment as well. Whitaker remained unsatisfied; he insisted on 'something further'. The judge replied that there

32 Complete Collection of State Trials, ed. Howell, xvii, 203, 237-8, 242, 259, 277,

280, 295-6; Brit. Lib., Egmont Papers, Add. MS 47,081, fo. 212. Kinnersley was touched with scandal as well. He had once before appeared before a court, charged with a plot to extort money from the earl of Sunderland on a charge of sodomy. Only his status as a clergyman saved him from corporal punishment on that occasion. Despite this history, the minister had the affrontery to proclaim his innocence and insist upon the respect due a churchman. So insistent was he that, at one point, Judge Reynolds rebuked him, saying, 'we shall not need ... to go to Suffolk for your character'. J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton, 1986), 463. In 1718, Kinnersley had published A Sermon Lately Preached at the Chapel in King's Bench Prison, in which he claimed to vindicate God's justice.

33 William Hawkins, A Treatise of the Pleas of the Crown, 2 vols. (1724; repr. in one volume, New York, 1972), ii, 445; Beattie, Crime and the Courts, 464-5; Thomas Wood, An Institute of the Laws of England (London, 1728), 653.

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was nothing else he could do. Still, he added, 'I do not know but that Parliament may think of something else afterwards'. The sentences were, in the event, significantly more severe than those usually handed down for forgery. The two men were to stand twice in the pillory. Hales was to pay 50 marks (approximately £33), suffer five years imprisonment and give security for his good behaviour for an additional seven years. Kinnersley was to pay £200, suffer two years imprisonment and find sureties for his conduct for three years after his release.34

On 11 February the two men stood in the pillory at the Royal Exchange. Most reports agreed that 'nothing was offered to be thrown at them'. But this leniency had less to do with popular attitude than with official measures. The crowd had come pre- pared to give them a hard time, one paper announced, but 'that rude and lawless practice was prevented by anticipating the time when they were expected they should stand, and by proper officers that attended'. According to another account, 'a prodigi- ous number of constables and others with long staves' prevented disorder. These events were repeated on 15 February, when the two men appeared in the pillory at the end of Fetter Lane.3s Although they escaped physical abuse, the experience took its toll. Confinement in Newgate proved fatal. Hales died on 18 February, perhaps of gaol fever. He was fifty-four. Kinnersley only outlasted him by several months. At one point, the con- demned prisoners petitioned to have him preach to them, but, before summer he too succumbed to fever, dying still possessed of his two livings.36

Robert Hales was luckier. He managed to avoid his brother's fate. The evidence against him was considerable. When first examined, he denied making the note. At a later stage he admitted

34 Complete Collection of State Trials, ed. Howell, xvii, 295-6. 35 Brit. Lib., Egmont Papers, Add. MS 47,082, fos. 29-30, 36, 39, 41, 46; Daily

Post, 12 Feb. 1729; Select Trials at the Old Bailey, iii, 112. Before sentence could be carried out, the bishop of London desired the sheriffs to delay the punishment until Kinnersley could be 'degraded by the spiritual court that he might stand as a common person and not a clergyman'. Apparently the request was granted. The bishop's fears about the clergyman's conduct proved well-founded, for Kinnersley opposed his degradation, claiming the privilege of a chapel belonging to the Lord Chancellor, as well as a living in Suffolk (worth £400), which was in the jurisdiction of the bishop of Norwich. Consequently, when he appeared in the pillory, Kinnersley wore 'his canonical habit'. He 'lifted up his eyes and hands towards heaven, and called upon the living and true God to witness his innocence'.

36 Brit. Lib., Egmont Papers, Add. MS 47,082, fo. 83 (8 Apr. 1729); Allan and Schofield, Stephen Hales, 4, 200; Universal Spectator, 22 Mar. 1729.

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his handwriting, but swore that he had only meant to serve his brother. His claim to have aided in the production of only one note was undercut when a second bill for £1,200 came to light. Samuel Edwards, in particular, was bent on bringing Robert to justice. Edwards insisted that Hales be suspended from the Privy Council so that he could proceed against him. His bail was set at £12,000. But influences more favourable to Robert were also at work. His brother Stephen stood bail. It was also no doubt a boon that Robert secured a trial separate from that of his brother. In January, his trial before Chief Justice Raymond at King's Bench took seven hours. Despite the appearance of character witnesses 'of great note', he was convicted. Robert feared the worst; in a letter of resignation from a philanthropic trust, he spoke 'of diverse affairs which may probably require his passing into parts beyond the sea'. Before sentence could be carried out, 'very great intercession' was made to the king on his behalf. On 11 February, he was ordered to dispose of his place but, as Edwards had not moved King's Bench to call him for judgment, 'tis believed', one paper reported, 'matters are made easy with him'. In June, he returned to the court and 'pleaded his majesty's most gracious pardon'. Still, broke and with his career in ruins, he was forced to live on Stephen's assistance until his death in 1735.37

IV

Upon occasion in the early eighteenth century, legal authors and others expressed the opinion that the punishment for forgery was inadequate. 'Forgery', one writer suggested in 1725, 'ought to be a capital offence'. The crime, he warned, might deprive an indi- vidual of an estate or defraud a person of great sums. The forgery of Bank notes and Exchequer bills had been made a felony because the offence attacked public credit. A similar protection, he argued, should be extended to private persons.38 Given the ever- increasing volume of private paper in circulation, it may seem

37 Cal. State Papers Dom., 36/8; Brit. Lib., Egmont Papers, Add. MS 47,081, fos. 229-31 (12, 15 Oct. 1728); 47,082, fos. 27, 36 (1, 11 Feb. 1728/9); Daily Post, 14 Oct. 1728; Allan and Schofield, Stephen Hales, 4, 67-8; Complete Collection of State Trials, ed. Howell, xvii, 211.

38 Giles Jacob, The Student's Companion (London, 1725), 66-7.

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surprising that nothing was done in answer to such calls, yet there were compelling reasons for this neglect of the subject.

Perhaps the most significant factor explaining this inattention to forgery was the failure of those most immediately concerned to demand action. Merchants, shopkeepers and bankers had little reason to desire a change in the law and some powerful motives for resisting it. Most handbooks of the period suggested that tradesmen should take measures to guard against fraud. A few simple precautions, these authors agreed, would provide adequate security. Since notes travelled within such a limited circle of acquaintances, personal knowledge equipped an individual with the means to detect imposture. 'As few solemnities as bills of exchange require', William Forbes wrote in 1718, 'they are but rarely objects of forgery'. Most advice books contained recom- mendations for prudential steps to take when handling notes. 'In order to prevent forgers and impostures', John Hewitt advised, 'it is not customary for merchants to accept, or pay bills of exchange, without letters of advice from the drawers, in which, they mention to have drawn for a certain sum'. All commercial men were cautioned to pay particular attention to the handwriting of those with whom they dealt. Above all, Hewitt warned, 'no merchant, or man of business subscribes his name different ways in any writing of consequence'. They should also avoid 'accepting or paying bills presented by unknown hands'. These measures amounted to commonsensical precautions. Edwards was 'so very cautious', his servant testified at the Hales trial, 'that he never knew him give a note but that he wrote the whole body of it with his own hand'. In the intimate world of London commerce, forgery was not seen as a serious challenge.39

Even on the few occasions when they detected a crime, trades- men had powerful motives for keeping the incident quiet. In addition to the usual concerns with the cost of prosecution and the desire for a settlement that might restore the victim's losses, there were emotional and economic issues peculiar to this crime. The most pressing concerned the identity of those who usually committed the offence. They often came from the same class as the victims of the crime; the offender was usually a clerk, neigh- bour or business associate. In other words, the perpetrators were

39 William Forbes, A Methodical Treatise concerning Bills of Exchange (Edinburgh, 1718), 40; John Hewitt, A Treatise upon Money, Coins, and Exchange (London, 1740), 15-16, 39; Complete Collection of State Trials, ed. Howell, xvii, 283.

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well known to the prosecutors. The prospect of having to press a capital charge against such people was alarming. This reluctance to act upon the discovery of a forgery had another dimension as well. Word that someone had been the victim of the crime created a sensation. When the first rumours of Hales's capture began to spread, it caused 'every one that had received of Mr. Hales notes for their security to look about them'.40 In a world where credit and reputation could be fragile, even the hint of a problem could produce dangerous repercussions. 'Rumour', Daniel Defoe warned, 'will break a tradesman almost at any time'. It did not matter 'whether the rumor be true or false'.41 Those who had wide and complex dealings had powerful motives for avoiding the kind of publicity that would inevitably accompany a trial upon a capital charge. Such considerations as these help to explain why it took the legislature so long to turn to the crime.

But the scale and character of the Hales case broke through this barrier. Almost from the moment the crime was discovered, commentators wrote expressing dismay at the insufficiency of the punishment and in anticipation that parliament would act. Even as one private paper noticed the occurrence of a forgery, 'the like of which was never known to be charged upon any one man before', it regretted that 'the law is not sufficient to inflict a punishment which he deserves'. And, by mid-October, the same author hinted that 'there is much talk that since so many private forgeries have appeared of late ... a bill will be brought in next session of Parliament to punish them with death as well as public forgeries such as lottery tickets, stocks, etc.'.42 Something had changed; there was a sense, in all of the comment on the measure, that some threshold had been crossed, that parliament would now take up the matter.

The government was quick to act. On 12 February, soon after the start of the new session, it was ordered that a bill be brought in, and, on the 26th, Lord Chancellor King presented to the Lords a measure 'for the better preventing and future punishing of forgery'. This was not an easy bill to write; there were many technical questions to be answered. Yorke and Talbot helped to

40 Complete Collection of State Trials, ed. Howell, xvii, 213, 231, 223. 41 Daniel Defoe, The Complete English Tradesman (Gloucester, 1987), 156. 42 Brit. Lib., Egmont Papers, Add. MS 47,081, fos. 209, 234 (21 Sept., 17 Oct.

1728). The crime figured prominently in a work of the following year meant to show how wicked London had become: Hell Upon Earth: or, The Town in an Uproar (London, 1729).

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draft the legislation. On 6 March, the bill was committed for discussion and it was ordered 'that the judges in town do attend'. Throughout the deliberations in the Lords, the measure attracted considerable attention. The bill that emerged on 21 March was considerably changed from that proposed a month earlier. By the time it was sent on, the measure had assumed its basic shape. In the Commons, some thirty modifications were made during the course of consideration, mostly to clarify language and to ensure that the final act was more inclusive. After passage, the measure was sent to the king; it received the royal assent on 14 May 1729.43

V

The forgery statute itself was brief. Only one of the three major sections dealt with the offence. This section devoted most of its attention to descriptions of the kinds of instruments protected and the definitions of the actions that constituted the crime.44 The measure was intended to cover 'any deed, will, testament, bond, writing obligatory, bill of exchange, promissory note for payment of money, indorsement or assignment of any bill of exchange, or promissory note for payment of money, or acquit- tance or receipt, either for money or goods'. Moreover, it said that anyone who 'shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly act or assist in the false making, forging or counterfeiting ... or

43 Lords Jls, xxiii (1728/9), 342, 350, 362, 369, 371, 427; Commons Jls, xxi (1729), 307, 356, 359, 362, 389. The Commons may have been responsible for the section limiting the act to five years. For suggestions on the co-operation of the judges and the law officers of the crown, see James Oldham, 'The Work of Ryder and Murray as Law Officers of the Crown', in T. G. Watkin (ed.), Legal Record and Historical Reality (London, 1989); David Lemmings, 'The Independence of the Judiciary in Eighteenth-Century England', in P. Birks (ed.), The Life of the Law (London, 1993). It is interesting to contrast the history of this legislation with that of 7 Geo. II, c. 22. The latter was clearly intended to remedy a short-coming in 2 Geo. II, c. 25, with respect to the forgery of acceptances. It was introduced in the Commons by John Scrope, the Secretary of the Treasury. It was sent for consideration to a committee composed of Scrope, James Lowther ('one of the richest commoners in the kingdom'), Alderman Perry (a wealthy London merchant) and Samuel Sandys. Their measure passed the Lords without amendment. While the forgery statute of 1729 reveals the hand of the legal officers of the government, the history of 7 Geo. II, c. 22 suggests that the concerns of businessmen may well, in this later instance, have played a larger role in shaping the legislation. Commons Jls, xxii (1734), 296; Sedgwick, House of Commons, ii, 413-14, 226-7, 341-2, 406-8.

44 Again, the sweeping nature of the forgery statute stands in sharp contrast to the specificity of most capital legislation: Langbein, 'Albion's Fatal Flaws', 117-19.

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shall utter or publish as true', any of the previously defined instruments, 'knowing the same to be false', was guilty of felony without benefit of clergy.45 This seemingly precise language actu- ally discloses a fundamental problem confronting those respons- ible for drawing up the legislation. The authors of this statute struggled to encompass the varied forms of paper then in use. They were forced to imagine the many different ways of describ- ing the acts that threatened paper credit. The difficulty was rendered all the greater because English judicial practice was jealous of vagueness and uncertainty in the criminal law. Capital statutes were often interpreted narrowly and with a prejudice in favour of the accused by the bench. Faced with this dilemma, the creators of the act opted for a measure that was flexible and open-ended.46

The challenge presented by the fluid, changing character of financial instruments was signalled in another section of the stat- ute as well. Midway through the discussion of this measure, the judges were asked to prepare a clause 'to make it felony to rob or steal bonds or notes for payment of money'. This section points once again to the peculiar status of paper instruments. Parliament had, on several occasions, been forced to face the question of the legal standing of negotiable bills. While it acted to insure the legality of such notes, certain ambiguities remained. These uncertainties had occasionally surfaced in criminal trials for the theft of paper instruments. Defendants accused of such crimes would, from time to time, claim that the thing stolen was not money but mere paper. A few had even escaped by pressing this point. The new clause was intended to clarify this situation, announcing once and for all that the theft of paper instruments

45 2 Geo. II, c. 25. One consequence of this language was that prosecutors in forgery cases often offered a number of indictments, describing the offence in different ways, so as to ensure that one description of the instrument fell within the terms of the act.

46 The role of the judges in shaping the forgery statute did not end with the passage of the statute. Repeatedly, in prosecutions brought under this statute, cases were referred to the twelve judges as a result of legal challenges offered by defence counsel. The most important such decision came in the Mitchell case in 1754, when the judges decided that a forged order for goods did not fall under the statute. Radzinowicz presents this case as an example of the judges interpreting a measure strictly to the benefit of the accused. I would argue that they simply intended to fulfil the purpose of the original act. In the vast majority of subsequent decisions issued by the twelve judges, they acted to sustain prosecutions against the technical challenges offered by defence counsel. See Radzinowicz, History of English Criminal Law, i, 83-5; Select Cases from the Twelve Judges' Notebooks, ed. D. R. Bentley (London, 1997), 198-239.

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amounted to the stealing of money. A person guilty of such a crime should suffer as 'if he or she had stolen other goods of the like value'.47 In this section too the judges acted to guarantee greater security for paper.

It would, however, be a mistake to think that the authors of this statute were doing no more than giving increased protection to new forms of property. The comments of the judges at the trials of Hales, as well as the commentary of later legal authorities, reveal that something more profound was at stake. In their speeches to the jury, the judges appealed to general principles to describe the seriousness of the crime. 'It is a very great offence, a misdemeanor of the highest nature', warned Chief Justice Pengelly, 'not only as it affects particular persons, and charges the person whose name is made use of with the payment, but as it is destructive to all commerce'. He went on to explain that the crime, 'if not suppressed, must tend to hinder all commerce by bills and paper-credit. If this be suffered to increase, none can take such a note, unless he goeth to the person himself. It will render it insecure to carry on commerce by notes or bills'.48 In these phrases Pengelly revealed that the judges were coming to a new understanding, not of the operation of private finance, but of its significance to the nation. 'Forgery', echoed Justice Page, 'is what concerns every Englishman: As paper-credit is come to that height it is now, the utmost care ought to be taken to preserve that credit'.49 It was this new recognition of the threat to private paper and the consequent danger to the entire system of credit that represented the novel departure in judicial thinking. Prior to this, as we have seen, the criminal law made a distinction between frauds involving 'public' and 'private' paper. While the former crime was treated with great severity, the latter was dealt with in the context of other frauds and cheats, by a punishment of infamy.50 The Hales case forced the legal authorities to see the offence in a new light. 'This was a forgery', wrote one author of

47 Lords Jls, xxiii (1728/9), 319, 332, 342, 350, 362, 369, 371, 427; 2 Geo. II, c. 25; on the theft of notes, see Hawkins, Treatise of the Pleas of the Crown, i, 93; East, Pleas of the Crown, ii, 597-8.

48 Complete Collection of State Trials, ed. Howell, xvii, 220, 226. 49 Ibid., 203. 50 Hawkins, writing in 1724, acknowledged this division. He was confident that the

common law of forgery concerned 'matter of a public nature', such as wills, deeds and public records. He was less sure whether the forgery of 'inferior writings' was punishable at common law. Hawkins, Treatise of the Pleas of the Crown, i, 182-4.

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the Hales case, 'of a note of hand, and concerned public credit in general'.51

In arriving at this conclusion, the judges expressed their own distinctive understanding of the development of negotiable instruments. The legal figures involved in this case had no special connection to commercial circles. They tended to come from a landed, clerical or legal background.52 Still, as Chief Justice Holt remarked in 1687, 'we all have bills directed to us, or payable to us'. The basic rules governing notes were well understood both in society and by the judges by the end of the seventeenth century. The courts had been hearing an increasing number of cases arising from disputes about paper instruments and negotiability since early in that century. In most instances, they acted to support and sustain circulation. 'Judges', one author has written, 'long before Mansfield had expressed the view that convenience to trade and commerce was an important consideration in the law of bills'. Their perspective, however, was not identical with that of the business community. They framed the issue in terms that resonated with their concerns.53

The judges were scarcely original in any of the comments they offered. They drew upon the conventional economic language of the day, and, in the discussion of paper instruments, no word appeared more often than that of 'circulation'. The value of circulation to the creation of national wealth was much remarked upon in the late seventeenth century. Defoe appealed to such a notion when he wrote, in 1690, in favour of a tax policy that would promote circulation, 'by which means the money of the kingdom, like the blood in the veins, has its regular, circular motion, and every member in the body is warmed and refreshed by it'.54 By the early eighteenth century, the importance of paper instruments to this circulation had become even more obvious.

51 The English Reports, 178 vols. (London and Edinburgh, 1900-32), xcvi, 61 (comment of Judge Probyn).

52 See Edward Foss, The Judges of England, 9 vols. (London, 1864), viii, 108-9, 144-9, 172-6, 184-6.

53 James Stevens Rogers, The Early History of the Law of Bills and Notes (Cambridge, 1995), 96-7, 125, 220, 251-2; Lieberman, Province of Legislation Determined, 100.

54 Quoted in Joyce Appleby, Economic Thought and Ideology in Seventeenth-Century England (Princeton, 1980), 210; B. L. Anderson and P. L. Cottrell, Money and Banking in England (Plymouth, 1974), 96-101; Keith Tribe, Land, Labour and Economic Discourse (London, 1978), 88-9, 92; Douglas Vickers, Studies in the Theory of Money, 1690-1776 (New York, 1968), 54-5, 102-4, 128-9; Arthur Eli Monroe, Monetary Theory before Adam Smith (Gloucester, Mass., 1965), 276-89.

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'Paper credit', one author explained in 1729, 'is not only the effect of wealth, but also the cause of it; I am sure that it has been for more than 50 years past, tho' at several periods of time reduced to a very low condition, one great means of increasing the power and riches of this nation'.55

As this author suggested, the advantages and risks associated with the use of paper were widely appreciated by the 1720s. The experience of the South Sea Bubble had, in particular, taught a sobering lesson.56 In the immediate aftermath of the crisis, a series of pamphlets appeared attempting to assess its costs. Although the financial tumult began with speculation in the public stocks, the collapse exposed the vulnerability of the wider eco- nomy. One author expressed the fear of a permanent 'decay and loss of private credit ... which is absolutely necessary to carry on commerce'. What had arisen in England was a system of credit whose chief expression was paper instruments. These notes and bills were not just a convenience to trade; they were a means of expanding wealth. Most authors accepted the necessity of such arrangements; nevertheless, paper depended upon trust, and the crisis had not only ensnared those who dealt in stocks, it also struck at confidence in general. 'Everybody', the author went on, 'began to fear their paper would not prove ready money, when they wanted it'. 'And so it has gone round, till an universal stop is put to that credit which circulates our commerce; and every note and bill, except those of the Bank, and some few others, is now become as mere a piece of waste paper, as if a prayer or a creed was writ on it instead of money'.57

The anxiety associated with the South Sea crisis had in no way dissipated by the end of the decade. By the late 1720s, writers speculated as to whether it had given a fatal blow to private

55 Directions to Judge whether a Nation be in a Thriving Condition (London, 1729), 16; Some Considerations on Public Credit and the Nature of its Circulation in the Funds (London, 1733), 7-8. Such sentiments would be expressed throughout the century. 'A quick and constant circulation of credit', wrote John Campbell, in 1774, 'produces, and, which is more, supports industry with better, and even greater effect than money'. John Campbell, A Political Survey of Britain, 2 vols. (London, 1774), ii, 240.

56 Dickson, Financial Revolution in England, 154-6, 292-3. This scandal led to the passage of several forgery statutes. 8 Geo. I, c. 22 made it a capital offence to forge signatures to stock transfers, and 12 Geo. I, c. 32 did the same for counterfeiting the signature of the accountant-general of the court of Chancery. What remains striking is the difference between the specificity of these measures in contrast to the generality of 2 Geo. II, c. 25.

57 Considerations on the Present State of the Nation as to Publick Credit, Stocks, the Landed and Trading Interest (London, 1720), 16-17.

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credit. It was not, one author explained, ready money or specie that was the measure of the wealth of the individual or the nation; rather, it was money in circulation. 'For a merchant or banker who can circulate more bills or notes, than he has in ready cash

by him, does by so much increase the quantity or stock of ready money in his country'. Economic writers had come to see that the credit transactions of individuals had consequences for the whole nation. The potential cost of this benefit, however, lay in the fact that this interconnected system of credit transmitted a 'blow' throughout the community. It was precisely the ongoing evil of the collapse of the Bubble that it continued to damage private credit. The cost was not merely economic; 'it has', this author complained, 'very much diminished the faith of mankind towards one another'.58 In this context, and at this time, the threat of forgery, in the eyes of the legal authorities, no longer seemed merely a private loss. It had become a public danger.

VI

Before the act was passed, yet another clause was added to the bill, one that is even more revealing about the thinking behind the measure. It dealt with another kind of betrayal of trust. In order 'to deter persons from committing wilful and corrupt per- jury', the section read, and to increase the punishment for 'so great crimes', a person convicted of the offence was made liable to seven years in a house of correction, or transportation for a like period. The linkage of forgery and perjury was no more accidental than the inclusion of the paragraph dealing with the theft of notes. The two offences had long been associated in the legal mind.59 Both undermined trust in the integrity of social transactions necessary to sustain the life of the community. The latter represented, in the words of the preamble to the statute, the 'subversion of common truth and justice', while the former

58An Honest Scheme for Improving the Trade and Credit of the Nation (London, 1727), 2, 24, 48-9.

59 Hawkins said that perjury deserved prosecution 'inasmuch as if it should once prevail, it would make it impossible to have any law whatsoever duly executed, and expose the lives, and properties, of the most innocent, to the mercy of the greatest villains': Hawkins, Treatise of the Pleas of the Crown, 173. An earlier call for greater severity in the treatment of the two offenses suggested that they threatened royal government and the inheritance of estates: Brief Reflections upon the Inconveniences attending Wilful and Malicious Forgery and Perjury (London, 1685).

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acted to 'the prejudice of trade and credit'. In each case, lies and deceptions violated sacred pledges; in each case, it was thought 'necessary, for the more effectual preventing of such enormous offences, to inflict a more exemplary punishment on such offenders'.60

The 1720s, then, displayed an increased sensitivity, not only to the potential risks of paper, but also to what were seen as changes in the moral climate, changes that produced a demand for shoring up standards of honesty and credit. The passage of notes depended upon the credit of those who issued them. Defoe spoke of the demands of 'honour' in those who dealt with notes, and expressed the belief that such transactions were 'sacred'. People had to have faith in each other; they had to trust in the credit of those with whom they dealt. 'Such security was simply a belief', one historian has explained, in terms eighteenth-century commentators might have used, 'based on an assessment of the individual's creditableness (where issues of character meshed with financial acumen), that repayment would be made. Confidence was a cornerstone of the whole system'.61 The judges seem to have been particularly sensitive to this aspect of the paper system. Yorke resorted to hyperbole to bring home the seriousness of the offence as he had come to understand it. 'All kinds of forgery', he explained to the court in the Hales case, 'are crimes of a most pernicious nature, as they tend to weaken and destroy that faith and commerce which ought to be maintained amongst men: but forgery in the case of negotiable notes, which have a particular currency given to them by act of Parliament, whereby private credit is greatly assisted, and trade carried on, is one of the most dangerous'. 'If it should prevail', he warned darkly, 'the con- sequences, though not easy to be foreseen, would certainly be extensive and destructive'.62

60 2 Geo. II, c.25; Some Thoughts concerning Government in General (Dublin, 1728), 11. It appears that those who thought the punishment for perjury was not great enough had the recent career of Jonathan Wild in mind.

61 Defoe, Complete English Tradesman, 247-8; Julian Hoppit, 'Financial Crises in Eighteenth-Century England', Econ. Hist. Rev., 2nd ser., xxxix (1986), 43.

62 Complete Collection of State Trials, ed. Howell, xvii, 165. Similar sentiments were expressed by a pamphleteer who discussed another case of serious 'breaches of trust' that occurred a few years later concerning the Charitable Corporation. He had heard, he reported, the objection 'that the legislative power of a nation ought not to meddle with private or particular cases'. He countered that credit was a public issue. See A Short History of the Charitable Corporation (London, 1732), 27-30.

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The connection between forgery and perjury helps us to under- stand why the Hales case, in particular, gave rise to remedial legislation. What so appalled people about the episode were the various betrayals involved in the crime and the brazen nature of the defence. It was a scandal, but one with sinister implications. Hales had not been guilty of a single crime. His career consisted of a long train of misconduct and deceit. The fact that Hales was a stockjobber, that he had an intimate knowledge of finance, that he exploited this expertise in his crime, and that he was unapolo- getic, all played into parliamentary suspicion of such characters. Stockjobbers had been the target of fierce criticism since early in the century and parliament was soon again to seek for some way of restraining their activities. We may catch some hint of the popular mood in an assize sermon, delivered in March 1729, by Herbert Randolph. It was the case 'at present', he complained, perhaps with the Hales case in mind, that 'few will be convinced of the heinousness of vice, when they perceive, that, notwith- standing the immorality of their actions, they can stand as fair in the opinion of most men as before'. Hales, far from being ashamed of his conduct and bankruptcy, had entered again upon his career, engaging in practices that could not stand the light of day. 'Since some vices are grown so frequent that they have lost their name', Randolph lamented, and efforts 'to brand them with infamy' had failed, it was the duty of the magistrate to take up 'the sword', in order to cut such offenders off.63

In the case of forgery, the more exemplary punishment called for in the statute was the gallows. The transition from the pillory to the gallows expressed a sense of the inadequacy of the former punishment given the new awareness of the crime. The pillory was intended to humiliate the offender, to make him notorious within the community in which he lived and worked. It was local in its effects. The punishment signalled the special opprobrium with which society viewed particular offences. The gallows spoke differently; it represented the most solemn spectacle in the

63 Herbert Randolph, Legal Punishment Considered (Rochester, 1729), 17. This was only one instance of 'a series of scandals' in the early 1730s that marked out this period as one of distress at the renewed appearance of financial impropriety and abuse of trust. 'The levity of the laws', wrote one author about the frauds associated with the Charitable Corporation, 'frequently has given opportunity to wicked and designing men, to commit the most heinous frauds and villainies without punishment'. Short History of the Charitable Corporation, 30; Paul Langford, A Polite and Commercial People: England, 1727-1783 (Oxford, 1989), 21-2.

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armoury of justice. It addressed the entire community. 'If offenses are extreme', John Conybeare announced in an assize sermon in 1727, 'the criminal incapable of being reformed, and the example apt to spread, in such cases the magistrate is concerned to support his laws by the terror of his executions'. 'By striking the passions in a very lively manner', he continued, 'they discourage bad men from those pursuits which are attended with consequences so fatal'. Conybeare did not turn to the gallows lightly. It was a serious step, justified by the extent of the danger. 'Life must evidently be forfeited to public justice', he intoned, 'when the preservation of it would either enable the offender himself to do more mischief, or encourage others to imitate his example'.64 The point of hanging was not humiliation; it presented a tragedy on a different scale. It invoked the most serious reflections on the divine justice that upheld those essential moral attributes that made human life possible.

The passage of the act earned widespread applause. In 1731, an author praised 'the goodness of our legislature' for passing an act that was long overdue. He congratulated English justice for its handling of the case of Robert Cooper, a victualler of Stepney, who, in 1731, stood accused of forging a bond for £25 under the hand of William Holme, grocer of Hanover Square. Cooper was found guilty and executed.65 This refrain would be repeated time and again by prosecutors and judges at forgery trials. 'Whoever considered the wild havoc forgery was capable of making among the properties of mankind', one lawyer argued at the trial of William Newington in 1735, 'would cease wondering that the law would so severely punish it, and rather be surprised that this punishment was not annexed to the crime, by the ancient laws of the land'. 'The crime of forgery', another prosecutor announced at the trial of John Parkes in 1748, 'is so enormous in itself, and so destructive of the mercantile interest, that it ought to be discouraged in a trading nation, beyond almost any other crime'.66

64John Conybeare, The Penal Sanctions of the Law Considered (Oxford, 1727), 12-13. Conybeare was one of the King's preachers and, in 1724, was presented to the rectory of St Clement's in Oxford by Lord Chancellor Macclesfield. Among his pupils were two sons of Charles Talbot, the solicitor general.

65 James Moore, The Unparalleled Imposter: The Whole Life, Artifices and Forgeries ofjaphet Crook (London, 1731), iv; Old Bailey Sessions Papers, 13 (2-4 June 1731).

66 Select Trials at the Old Bailey, iv, 303; The New Newgate Calendar, 6 vols. (London, 1793), iii, 161.

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Few questioned, after 1729, the general principle that death was the appropriate penalty in these cases. Its necessity was taken for granted. Forgery was punished capitally, Adam Smith argued in 1766, 'and nobody complains that this punishment is too severe'.67 Indeed, the judges and the crown normally overrode appeals for pardon, precisely because they viewed the crime so seriously. Throughout the rest of the century, and well into the next, those responsible for the administration of the criminal law, from Mansfield and George III to Peel, gave special attention to the offence. They turned aside what they saw as special pleading in the efforts, amounting to massive campaigns in the case of Robert and Daniel Perreau, Revd William Dodd or Henry Fauntleroy, to secure pardons for those condemned of the crime. Forgery, one commentator on the Dodd case wrote, is 'a crime of such extensive consequence to society, since it hath been rendered a capital one, hath scarce ever been known to receive a pardon'. 'The fears of establishing a dangerous precedent', he explained, 'and fathering future convicts with delusive hopes, and at the same time giving the execution of the Law the appear- ance of partiality and cruelty in similar cases, were the causes that all the applications, however powerful, were without effect'.68 These cases became the occasion to demonstrate firm- ness; it was a time to show that the state put a more general perspective above fleeting feeling and temporary sentiment. It was no accident that forgery became the last bastion of those defending capital punishment for property offences in the 1820s.69

VII

We might have expected that the passage of the capital statute would have been the end of the matter. We might then have said that a temporary panic produced a severe measure, after which the crisis subsided. But such was not to be the case with forgery.

67 Adam Smith, Lectures on Jurisprudence, ed. R. L. Meek, D. D. Raphael and P. G. Stein (Oxford, 1978), 483-4. When John Raynor came to write about the criminal law in 1775, he condemned a code littered with 'obsolete statutes'. But he defended the legislation of George II's reign as marking 'the most respectable modern era of legal polity', with special praise for the forgery act. Raynor, Readings on Statutes, vi-vii, 169-200.

68 An Account of the Life and Writings of William Dodd (London, 1777), 86. See my 'Forgery Discovered: or, The Perils of Circulation in Eighteenth-Century England', Angelaki, i (1993-4).

69 Radzinowicz, History of English Criminal Law, i, 590-607.

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Far from diminishing, the anxiety aroused by the crime continued and even increased. Newspapers gave extensive coverage to reports of the crime, as well as to subsequent trials and executions of forgers.70 The imposition of the death penalty had an unexpec- ted impact upon how society experienced these episodes. The story told by pamphlets concerned with forgery cases always contained a fair measure of ambivalence. While authors tended to acknowledge the necessity of the death sentence, they often expressed sympathy and even regret for those who suffered it. The explanation for this tenderness is, no doubt, the similarity between the class of the forger and his victim. A goldsmith who first informed Harle of the crime reported that 'a sad thing hath happened; Mr. William Hales, with whom you have transactions, is taken up for forgery'.71 As a growing number of forgers went to the gallows in the 1740s and 1750s, this response became more pronounced. Paul Wells, convicted of forgery at Oxford in 1749, was the son of a gentleman and well-educated in the law. Seduced by a life of luxury, he forged a receipt for a debt he owed. Justice Willes respited his sentence to see if he could obtain a pardon, and several influential residents took up his cause, but the Privy Council declined to interfere, because of the danger the crime presented to 'the safety of trade and commerce'. 'There was a great concourse of people assembled to see the execution of so remarkable a person'. Similarly, John Brett, the son of a clergy- man, was an ensign who distinguished himself in service in America. He lost his regiment's money at gaming in 1761 and turned to forgery to make up the sum. 'Great interest was made to save him, but in vain', the Newgate Calendar reported. 'The crime was of such a nature, that it would have been a point of false lenity to pardon it in a commercial kingdom'.72

Here was the familiar narrative of the forgery case. The accused, in a moment of desperation, committed a single offence. His prosecutor often pleaded for mitigation of the penalty. The condemned men expressed confidence that their connections would save them, but in the majority of cases the authorities insisted upon the law's taking its course. They were firm and

70 For a related discussion of publicity and its effect upon the awareness of crime, see Peter King, 'Newspaper Reporting, Prosecution Practice and Perceptions of Urban Crime: The Colchester Crime Wave of 1765', Continuity and Change, ii (1987).

71 Complete Collection of State Trials, ed. Howell, xvii, 217. 72 An Authentic Account of the Life of Paul Wells (Oxford, 1749), 1-12, 17, 26; New

Newgate Calendar, vi, 200-1.

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unbending, resisting the discretion that was allowed to operate in other capital cases.73 This process lent a grim inevitability to stories of forgery. As a consequence, it created an extraordinary tension for the victim of the crime and the middle-class spectator of the execution, confronted, on the one hand, by the solemn words of judges and prosecutors about the despicable nature of the crime, and, on the other, by the identity of the accused. This drama climaxed in the 1770s in the trials of the Perreau brothers and the Revd Dodd. These cases produced an outpouring of agitated feeling. James Boswell, writing in his journal, talked of his sleepless nights. 'The account of the execution of the two Perreaus affected me very much', he wrote. The spectacle of someone of respectable rank or occupation perishing on the gal- lows stirred the feelings of polite society. The Perreaus, Dodd, or William Ryland were all executed amidst much public contro- versy. It was not merely a question of similar class. People of means, we may suspect, were disturbed by tales full of the temp- tations and misfortunes that could occur in any of their lives. Here was the crime that spoke most directly to the ambitions and uncertainties that afflicted the middling sort. Even as the judges pronounced on the seriousness of the crime, respectable readers and spectators sympathized with the condemned.74

This final twist in the story of forgery reinforces the central argument of this article, that the eighteenth century's relationship to the gallows was not as simple as the reformers' portrayal of it. The law found its staunchest advocates, not among those with the most obvious economic interest, but in the judges and the crown. While the latter appealed to economic concerns to justify their conduct, they spoke of them in general terms and gave this description a distinctive moral inflection. They did not casually

73 Peter King, 'Decision-Makers and Decision-Making in the English Criminal Law, 1750-1800', Hist. Jl, xxvii (1984). 74 Boswell: The Ominous Years, 1774-1776, ed. C. Ryskamp and F. Pottle (New York, 1963), 223; Lincoln Faller, Turned to Account (Cambridge, 1987), 192-3, 280. V. A. C. Gatrell has forcefully argued that the gallows occupied a large place in the consciousness of the eighteenth-century public: V. A. C. Gattrell, The Hanging Tree (Oxford, 1994), 408-16. For statistics on forgery, see Emsley, Crime and Society in England, 255-61. The desire to evade responsibility for sending an acquaintance to the gallows led some to avoid prosecution. When the banker Drummond was con- fronted by the discovery of the Perreau forgery, he first 'signified his intention of troubling himself no further in the matter'. He was 'willing to tread on the whole affair', in order to escape the painful situation in which he found himself placed. The Trials of Robert and Daniel Perreau (London, 1775), 3-6, 11, 31-3; Hansard, new ser., v (1821), 939-40.

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turn to the death penalty. They did think that the seriousness of the offence warranted the execution of the offender, even in the face of the uneasiness of those who were victims of the crime. Here is a dense and complicated episode that ill accords with the usual portrait of the 'bloody code'. It suggests not only that we should study with more care other instances of eighteenth-century criminal legislation, but also that we need to take a fresh look at the legal reformers and their arguments.

University of Oregon Randall McGowen