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The Past and Present Society

From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution
Author(s): Randall McGowen
Source: Past & Present, No. 165 (Nov., 1999), pp. 107-140
Published by: Oxford University Press on behalf of The Past and Present Society
Stable URL: http://www.jstor.org/stable/651286
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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.
108 PAST AND PRESENT NUMBER165
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 EnglishCriminalLaw, 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
CriminalJustice 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)
FROM PILLORY TO GALLOWS 109
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 LegislationDetermined
(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.
110 PAST AND PRESENT NUMBER165

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 )
FROM PILLORY TO GALLOWS 1ll
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 Instrumentsin 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 CheatingAge Found Out: When
Knaveswas 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 VersatileDefoe, 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 RobertClayton, 108. Sir Stephen Evance, goldsmith, was
the victim of a forgery committed by Thomas Ward involving a note for £666 6s.
1ld. Ward was found guilty, fined £200 and stood three times in the pillory. Narcissus
Luttrell, A Brief HistoricalRelation of State Affairs, 6 vols. (Oxford, 1857), vi, 144.
112 PAST AND PRESENT NUMBER 165

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).
O1Romney Sedgwick, The Houseof Commons,1715-1754, 3 vols. (New York, 1970),
ii, 62-3, 170-1; Diary of the First Earl of Egmont, ViscountPerceval, 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).
FROM PILLORY TO GALLOWS 113
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 VegetableStaticks
(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
Revolutionin 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, Readingson Statutes: Chiefly
those affectingthe Administrationof 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, LondonBankers (London, 1890), 128; Luttrell, Brief Historical
Relationof State Affairs, iv, 228; Dickson, FinancialRevolutionin England,252, 491-5.
Evance is mentioned in Daniel Defoe, ColonelJack (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 RobertClayton, 209-10.
114 PAST AND PRESENT NUMBER165
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

15A CompleteCollectionof 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.
FROM PILLORY TO GALLOWS 115
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
CompleteCollectionof 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
CompleteCollectionof State Trials, ed. Howell, xvii, 237-8, 277, 289, 291-4.
116 PAST AND PRESENT NUMBER 165

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.19Edwards 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).
19For a short history of franking that includes a discussion of this case, see
Gentleman'sMag., lvi (Sept. 1784), 647-9.
20 CompleteCollectionof 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.
FROM PILLORY TO GALLOWS 117

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
CompleteCollectionof State Trials, ed. Howell, xvii, 212-17, 220, 226, 270.
22
Ibid., 237-8, 277, 289, 291-4.
118 PAST AND PRESENT NUMBER 165

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.
FROM PILLORY TO GALLOWS 119
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.
120 PAST AND PRESENT NUMBER 165

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
CompleteCollectionof 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, Coloneljack, 21.
FROM PILLORY TO GALLOWS 121

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 CompleteCollectionof 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 CompleteCollectionof State Trials, ed. Howell, xvii, 213, 231, 223.
122 PAST AND PRESENT NUMBER165
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.
FROM PILLORY TO GALLOWS 123

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
CompleteCollectionof 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 Sunderlandon 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 SermonLately Preachedat the Chapel
in King's Bench Prison, in which he claimed to vindicate God's justice.
33 William
Hawkins, A Treatiseof 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.
124 PAST AND PRESENT NUMBER 165

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 CompleteCollectionof 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, StephenHales, 4, 200; UniversalSpectator,22 Mar. 1729.
FROM PILLORY TO GALLOWS 125
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, StephenHales, 4, 67-8; CompleteCollectionof State Trials,
ed. Howell, xvii, 211.
38 Giles Jacob, The Student's Companion(London, 1725), 66-7.
126 PAST AND PRESENT NUMBER 165

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 TreatiseconcerningBills of Exchange(Edinburgh,
1718), 40; John Hewitt, A TreatiseuponMoney, Coins, and Exchange(London, 1740),
15-16, 39; CompleteCollectionof State Trials, ed. Howell, xvii, 283.
FROM PILLORY TO GALLOWS 127

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 CompleteCollectionof State Trials, ed. Howell, xvii, 213, 231, 223.
41 DanielDefoe, The CompleteEnglish 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).
128 PAST AND PRESENT NUMBER 165

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 LordsJls, xxiii (1728/9), 342, 350, 362, 369, 371, 427; CommonsJls, 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. CommonsJls, xxii (1734), 296; Sedgwick, House of
Commons,ii, 413-14, 226-7, 341-2, 406-8.
44Again, 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.
FROM PILLORY TO GALLOWS 129

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
Casesfrom the TwelveJudges'Notebooks,ed. D. R. Bentley (London, 1997), 198-239.
130 PAST AND PRESENT NUMBER 165

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 LordsJls, xxiii (1728/9), 319, 332, 342, 350, 362, 369, 371, 427; 2 Geo. II, c. 25;
on the theft of notes, see Hawkins, Treatiseof the Pleas of the Crown,i, 93; East, Pleas
of the Crown,ii, 597-8.
48 CompleteCollectionof 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, Treatiseof the Pleas of the Crown,i, 182-4.
FROM PILLORY TO GALLOWS 131
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.
53James Stevens Rogers, TheEarly Historyof the Law of Bills and Notes
(Cambridge,
1995), 96-7, 125, 220, 251-2; Lieberman, Provinceof LegislationDetermined,100.
54
Quoted in Joyce Appleby, EconomicThoughtand Ideologyin 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 Theoryof Money,
1690-1776 (New York, 1968), 54-5, 102-4, 128-9; Arthur Eli Monroe, Monetary
TheorybeforeAdam Smith (Gloucester, Mass., 1965), 276-89.
132 PAST AND PRESENT NUMBER 165

'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 Directionsto
Judge whethera Nation be in a Thriving Condition(London, 1729),
16; Some Considerationson Public Credit and the Nature of its Circulationin the Funds
(London, 1733), 7-8. Such sentiments would be expressed throughout the century.
'A quick and constant circulationof 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 Revolutionin 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 Considerationson the Present State
of the Nation as to Publick Credit, Stocks, the
Landedand TradingInterest(London, 1720), 16-17.
FROM PILLORY TO GALLOWS 133

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 Schemefor Improvingthe Trade and Credit of the Nation (London,
1727), 2, 24, 48-9.
59Hawkins 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, Treatiseof 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 Reflectionsupon the Inconveniences
attendingWilful and Malicious Forgeryand Perjury(London, 1685).
134 PAST AND PRESENT NUMBER 165

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

602 Geo. II, c.25; Some ThoughtsconcerningGovernmentin 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.
61Defoe, CompleteEnglish Tradesman,247-8; Julian Hoppit, 'Financial Crises in
Eighteenth-Century England', Econ. Hist. Rev., 2nd ser., xxxix (1986), 43.
62 CompleteCollectionof 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 CharitableCorporation.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 CharitableCorporation(London, 1732), 27-30.
FROM PILLORY TO GALLOWS 135
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
63Herbert Randolph, Legal PunishmentConsidered(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 appearanceof financialimpropriety and abuse
of trust. 'The levity of the laws', wrote one author about the frauds associated with
the CharitableCorporation,'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.
136 PAST AND PRESENT NUMBER 165

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.
65James Moore, The UnparalleledImposter: The Whole Life, Artifices and Forgeries
ofjaphet Crook(London, 1731), iv; Old Bailey SessionsPapers, 13 (2-4 June 1731).
66 Select Trials at the Old Bailey, iv, 303; The New Newgate Calendar, 6 vols.
(London, 1793), iii, 161.
FROM PILLORY TO GALLOWS 137
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, LecturesonJurisprudence,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, Readingson Statutes,
vi-vii, 169-200.
68 An Accountof the Life and Writingsof WilliamDodd (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 CriminalLaw, i, 590-607.
138 PAST AND PRESENT NUMBER 165

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', Continuityand Change,ii (1987).
71
CompleteCollectionof State Trials, ed. Howell, xvii, 217.
72 An AuthenticAccountof the Life of Paul Wells(Oxford, 1749), 1-12, 17, 26; New
Newgate Calendar,vi, 200-1.
FROM PILLORY TO GALLOWS 139

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).
74Boswell: The Ominous
Years, 1774-1776, ed. C. Ryskamp and F. Pottle (New
York, 1963), 223; Lincoln Faller, Turnedto 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.
140 PAST AND PRESENT NUMBER 165

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