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
Accessed: 21/07/2010 10:47
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=oup.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
Oxford University Press and The Past and Present Society are collaborating with JSTOR to digitize, preserve
and extend access to Past & Present.
http://www.jstor.org
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
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
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
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
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
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
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
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
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
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
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
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
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
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.