Forgery and the end of the 'bloody code' in early nineteenth-century England

Historical Journal

Volumn 48, Issue 3, 2005, Pages 683-702

  Handler, Phil ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CRIME; LAW ENFORCEMENT; NINETEENTH CENTURY; SOCIAL BEHAVIOR; SOCIAL HISTORY;

EASTERN HEMISPHERE; EURASIA; EUROPE; UNITED KINGDOM; WESTERN EUROPE; WORLD;

EID: 26944433358     PISSN: 0018246X     EISSN: 14695103     Source Type: Journal    
DOI: 10.1017/S0018246X05004620     Document Type: Review

References (135)

1. Parliamentary Debates (PD), XI (1832), 991, 987-990.
2. C. Phillips, Vacation thoughts on the punishment of death (London, 1857), p. 3. Phillips was a renowned Old Bailey barrister in the 1820s and 1830s who joined the campaign for abolishing the punishment of death in his retirement (DNB).
3. For examples of this revision of the eighteenth-century criminal law, see J. Beattie, Policing and punishment in London, 1660-1750: Urban crimes and the limits of terror (Oxford, 2001), pp. 319-38 and passim.
4. See also R. McGowen, 'From pillory to gallows: The punishment of forgery in the age of the financial revolution', Past and Present, 165 (1999), pp. 107-41
5. idem, 'Making the "bloody code"? Forgery legislation in eighteenth-century England', in N. Landau, ed., Law, crime and English society, 1660-1830 (Cambridge, 2002), pp. 117-38.
6. See, for example, R. Follett, Evangelicalism, penal theory and the politics of criminal law reform in England, 1808-1830 (Basingstoke, 2001), p. 90.
7. For the abolitionist campaign see L. Radzinowicz, A history of English criminal law from 1750 (5 vols., London, 1948-86), IV, pp. 326-43.
8. I PD, XXXIX (1819), 783.
9. Ibid., 790.
10. Ibid., 810.
11. W. Blackstone, Commentaries on the laws of England (4 vols., facsimile of the 1st edn, 1765-9; Chicago, 1979), IV, p. 17.
12. I PD, XI (1808), 884. The word 'innovation' had very negative connotations in this period, hence it was common for reformers to claim to be restoring a previous state of affairs that had been corrupted. For an excellent discussion of the terminology of reform in the period, see J. Innes, '" Reform " in English public life: The fortunes of a word', in A. Burns and J. Innes, eds., Rethinking the age of reform (Cambridge, 2003).
13. See D. Lieberman, The province of legislation determined: Legal theory in eighteenth century Britain (Cambridge, 1989), pp. 199-205.
14. 2 PD, IX (1823), 403.
15. Gatrell, for example, suggests that 'humane opinion had influence chiefly in so far as it bore a plausible and justificatory relationship to processes which were working to change punishment anyway.' (V. Gatrell, The hanging tree: Execution and the English people, 1770-1868 (Oxford, 1994), p. 24)
16. R. McGowen, 'A powerful sympathy: Terror, the prison and humanitarian reform in early nineteenth-century Britain', Journal of British Studies, 25 (1986), pp. 312-34, at p. 315.
17. The other was parliament's refusal to accept the level of taxation necessary to fund the wartime regime: J. Parry, The rise and fall of liberal government in Victorian Britain (London, 1993), p. 27.
18. D. Wahrman, 'Public opinion, violence and the limits of constitutional politics', in J. Vernon, ed., Re-reading the constitution: New narratives in the political history of England's long nineteenth century (Cambridge, 1996), p. 90.
19. For a highly nuanced account of these developments, see ibid., passim. See also D. Wahrman Imagining the middle class: The political representation of class in Britain, c. 1780-1840 (Cambridge 1995), pp. 184-272.
20. W. Mackinnon, On the rise, progress and present state of public opinion (London 1828), p. 15.
21. Mackinnon was a Tory who had a lengthy parliamentary career. For details on Mackinnon and the influence of his book, see Wahrman, Imagining the middle class pp. 298-304.
22. Mackinnon, On the rise p. 18.
23. I PD, XL (1819), 1536.
24. McGowen argues that the reformers formulated an argument against the death penalty from their own middle-class feelings of alienation and distance at the sight of a scaffold crowd apparently indifferent to the fate of the condemned. See in particular the following articles: R. McGowen, 'The image of justice and reform in early nineteenth-century England', Buffalo Law Review, 32 (1983), pp. 89-125
25. idem, 'A powerful sympathy', passim.
26. McGowen, 'The image of justice', p. 96.
27. J. Beattie, Crime and the courts in England 1660-1800 (Oxford, 1986), p. 614
28. McGowen, 'The image of justice', p. 123.
29. Gatrell, The hanging tree, p. 19.
30. Peel frequently expressed this point, for examples see 2 PD, IX (1823), 427
31. 2 PD, XXIV (1830), 1048.
32. S. Romilly, Memoirs of the life of Sir Samuel Romilly with a selection from his correspondence edited by his sons (2nd edn, 3 vols., London, 1840), 11, p. 333
33. Radzinowicz, History, 1, pp. 504-5.
34. 2 PD, VII (1822), 790
35. PD, XIV (1826), 1214.
36. Gatrell has highlighted the impact that individual cases of harsh justice could have on popular perceptions of justice, see Gatrell, The hanging tree, pp. 339-70.
37. This account of eighteenth-century forgery draws upon a series of excellent articles by Randall McGowen, see: 'From pillory to gallows'; 'Making the "bloody code "?'; 'The punishment of forgery in eighteenth century England', International Association for the History of Crime and Criminal Justice Bulletin, 17 (1992-3), pp. 29-45'
38. Forgery discovered or the perils of circulation in eighteenth century England', Angelaki, 1 (1993), pp. 113-29
39. 'Knowing the hand: Forgery and the proof of writing in eighteenth century England', Historical Reflections, 24 (1998), pp. 385-414.
40. Approximately two out of every three forgers were executed in the last quarter of the eighteenth century, whereas less than half of those convicted of burglary and highway robbery were hanged (C. Emsley, Crime and society in England, 1750-1900 (2nd edn, London, 1996), p. 258).
41. For the cases of Dr Dodd and the Perreau brothers see Radzinowicz, History, I, pp. 450-72
42. Gatrell, The hanging tree, pp. 292-4
43. D. Andrew and R. McGowen, The Perreaus and Mrs. Rudd: Forgery and betrayal in eighteenth century England (Berkeley, 2001).
44. L. Faller, Turned to account: The forms and functions of criminal biography in late seventeenth- and early eighteenth-century England (Cambridge, 1987), pp. 92-3.
45. 2 PD, XXIV (1830), 1047.
46. In the fourteen years prior to the 1797 Restriction there were only four prosecutions for the crime; in the period 1797-1817, there were 972 ( Accounts relating to prosecutions for forging Bank of England notes, Parliamentary papers (PP), 1818, XVI, 161).
47. There were 214 executions in London in the period 1805-18, 68 of which were for forgery. In England and Wales there were 204 executions for forgery out of a total of 1035 (Report of the select committee appointed to consider so much of the criminal law as relates to capital punishment in felonies, PP, 1819, VIII, Appendices Nos. 1 and 2).
48. Thomas Wooler's radical publication the Black Dwarf was at the forefront of the attack on the Bank. For details of the radical attack on the forgery laws see P. Handler, 'Forging the agenda: The 1819 select committee on the criminal laws revisited', Journal of Legal History 25 (2004), pp. 249-68.
49. See P. Handler, 'Forgery and penal reform in England, 1818-1830' (Ph.D. dissertation, Cambridge, 2002), pp. 63-97.
50. For the debate see I PD, XXXIX (1819), 777-845, I have discussed the forged bank notes crisis and the 1819 select committee report in much more detail in my article, 'Forging the agenda'.
51. For the history of the SDKPD and the public debate over the forgery laws in this period see Handler, 'Forging the agenda', pp. 254-6 and passim.
52. The report devotes one of its four sections entirely to forgery, see Select committee on the criminal laws (1819), pp. 13-16.
53. For the debates on the bill See 2 PD, V (1821), 893-971, 999-1001, 1099-114.
54. Convictions for offences relating to forged Bank of England notes (including the non-capital offence of possession) dropped from a peak of 352 in 1820 to just 16 in 1822; executions fell from 18 in 1820 to 4 in 1822 (Forgery returns, PP, 1830, XXIII, 182, 184).
55. For a detailed account of Fauntleroy's case, see H. Bleackley, Trial of Henry Fauntleroy and other famous trials for forgery (London, 1924).
56. Morning Chronicle, 15, 22 Nov. 1824. These general petitions have not survived having been too bulky to store alongside the other petitions and letters which are preserved in the National Archive (NA), HO 17/87 Qk 46.
57. Gatrell, The hanging tree, p. 57. For an account of the execution see Times, 1 Dec. 1824.
58. Times, 9 Dec. 1828.
59. Hunton himself had been ejected from the Society of Friends, but his wife's family was Quaker.
60. Hunton's appeal papers are in NA, HO 17/88 Ln 5. Gatrell discusses his appeal in some detail, see The hanging tree, pp. 409-13.
61. Times, 6 Dec. 1828.
62. NA, HO 17/88 Ln 5, quoted in Gatrell, The hanging tree, p. 410.
63. Times, 31 Oct. 1828.
64. News, 4 Jan. 1829
65. Bleackley, Trial, pp. 238-9.
66. The News reported the damage to commercial confidence to be worse than it had been in Fauntleroy's case (News, 4 Jan. 1829).
67. Newspapers increasingly focused their criticism on the financial system, rather than the forger, for failing to provide safeguards against forgery, see Circular to Bankers, 17 Oct. 1828
68. Times, 6 Jan. 1829.
69. A. Dymond, The law on its trial: Or personal recollections of the death penalty and its opponents (London, 1865), pp. 26-7. Dymond was a member of the Society against Capital Punishment and was writing during the campaign for the abolition of public executions.
70. Barry had been articled to William Allen, the well-known philanthropist at whose house the SDKPD had first met, before becoming a partner in the firm Allen, Hanbury's and Co. See Dymond, The law on its trial, pp. 25-6.
71. The cost was borne by MPs friendly to his cause who used their privileges to 'frank' his correspondence (ibid., p. 28).
72. A range of SDIPD correspondence is preserved in the papers of Francis Cobb, a banker from Margate who served as an important link for the Society in Kent. See Cobb collection, East Kent Archives (EK), U1453 092 fos. 1-32.
73. See below, pp. 697-9.
74. John Miller commented that 'There is scarcely any crime, about the punishment for which people differ so widely' (Quarterly Review, 24 (1820-1), pp. 195-270, at p. 214).
75. See, for example, Stephen Lushington's evidence to the 1836 Royal Commission on the Criminal Laws (Second Report of his Majesty's Commissioners on Criminal Law, PP, 1836, XXXVI, p. 51).
76. See also, Phillips, Vacation thoughts, pp. 3, 15, 20, 103-4.
77. C. Dickens, 'Night walks', All the Year Round, 21 July 1860, reprinted in C. Dickens, Selected journalism, 1850-1870, ed. David Pascoe (London, 1997), p. 75.
78. Gatrell argues that the Quakers' selective campaigns for mercy in cases of forgery show that their 'sympathetic imagination had familiar and significant limits, and ⋯ "opinion" met its limits at that point too' (Gatrell, The hanging tree, p. 413).
79. McGowen, 'The image of justice', p. 106.
80. Mackintosh proposed resolutions relating to the criminal law in 1822 and 1823, but he desisted in view of the lack of interest in his attempts and Peel's reassurances that he planned to take on the question of penal reform. For the debates, See 2 PD, VII (1822), 790-805
81. Peel to Lord Liverpool, 12 Oct. 1822, Liverpool papers British Library (BL), Add. MSS 38195, fo. 120.
82. Gatrell, The hanging tree, p. 583.
83. 2 PD, XIV (1826), 1218. Peel's commitment to the consolidation but not the mitigation of the penal laws explains why historians have had some difficulty knowing what to make of his reform credentials. Recent judgements have been overwhelmingly negative (see especially Gatrell, The hanging tree, pp. 566-85), but, for a valuable reappraisal,
84. see B. Hilton, 'The gallows and Mr Peel', in T. Blanning and D. Cannadine, eds., History and biography essays in honour of Derek Beales (Cambridge, 1996), pp. 88-112.
85. 2 PD, XXIII (1830), 1176.
86. 2 PD, IX (1823), 422.
87. The first case was that of Samuel Miles who was convicted and executed in 1823
88. see H. Hobhouse, The diary of Henry Hobhouse, 1820-1827, ed. A. Aspinall (London, 1947), p. 104.
89. For the correspondence on the case between Peel and the king see Peel papers BL Add. MSS 40299, fos. 241-3.
90. For Hunton's case, see king to Peel, 5 Dec. 1828, Peel papers BL Add. MSS 40300, fo. 265; NA HO 17/88 Ln 5 Part 1.
91. The principal actors involved in the preparation of the bill were James Scarlett, the attorney general, Henry Hobhouse, his undersecretary in the home department, William Gregson, a barrister who acted as a legal adviser, Lord Tenterden, the lord chief justice, and Lord Lyndhurst, the lord chancellor. See Peel papers BL Add. MSS 40399, fos. 312, 314, 375, 410, 419
92. Peel papers BL Add. MSS 40400, fos. 3, 14, 30, 37, 76-80, 89.
93. For the draft bill, see PP, 1830, 1, 417.
94. For the Commons' debates on the bill See 2 PD, XXIII (1830), 1176-88,
95. 2 PD, XXIV (1830), 1031-60,
96. 2 PD, XXV (1830), 47-78.
97. Times, 3 Apr. 1830.
98. 2 PD, XXV (1830), 61.
99. Hilton, 'The gallows and Mr Peel', p. 91.
100. Edinburgh Review, 52 (1830-1), pp. 398-410, at p. 405.
101. Peel to J. W. Freshfield, 1 May 1830, Peel papers BL Add. MSS 40400, fo. 164.
102. 2 PD, XXIV (1830), 1058 (Brougham).
103. For the petitions see Journals of the House of Commons, LXXXV (1830);
104. Journal of the House of Lords, LXII (1830).
105. The petitions are listed in the indexes under 'criminal law' and 'forgery' in the Commons journal and under 'petitions' in the Lords journal.
106. A map was published showing the places where the petitions had come from: Anon., Petition map. Ought the crime of forgery to be punished with death. The State of Public Opinion on this important question (3rd edn, London, 1831).
107. Although published anonymously, this map was almost certainly prepared by the SDIPD, see SDIPD letter to correspondents, 12 June 1830, EK, Cobb collection, U1453 92, fo. 15.
108. P. Jupp, British politics on the eve of reform: The duke of Wellington's administration, 1828-1830 (Basingstoke, 1998), pp. 220-1.
109. T. Buxton, The memoirs of Sir Thomas Fowell Buxton, ed. C. Buxton (3rd edn, London, 1849), p. 199.
110. SDIPD letter to correspondents, 27 Apr. 1830, EK, Cobb collection, U1453 92, fo. 30.
111. 2 PD, XXIV (1830), 1014.
112. See Times, 20 Feb. 1829.
113. 2 PD, XXIV (1830), 1059.
114. Ibid., 35.
115. See McGowen, 'Making the "bloody code"?', passim.
116. 2 PD, XXV (1830), 78.
117. E. Law (Lord Ellenborough), A political diary, 1828-1830, ed. Lord Colchester (2 vols., London 1881), 11, p. 264 (8 June 1830). Ellenborough was the president of the Board of Control at the time.
118. Ibid., pp. 267, 271, 273 (13, 16, 22 June 1830).
119. Ibid., p. 294 (1 July 1830).
120. B. Montagu, Thoughts on the punishment of death in cases of forgery (London, 1830) pp. 189-90.
121. SDIPD, Punishment of death: A series of articles (3rd edn, London, 1833).
122. E. Wakefield, Facts relating to the punishment of death in the Metropolis (1831), in M. F. Lloyd Prichard, ed., The collected works of Edward Gibbon Wakefield (London, 1968) p. 232.
123. See 2 & 3 Will. 4 c. 62; 2 & 3 Will. IV c. 123. The forgery of powers of attorney for the transfer of government stock and forgery of wills remained capital until an act of 1837 (7 Will. IV & 1 Vict. c. 84).
124. For the debates on the forgery bill see 3 PD, XIV (1832), 968-89 (Commons), 1133-5, 1302-3, 1345-54, 1358-61 (Lords).
125. Second Report of his Majesty's Commissioners on Criminal Law, PP, 1836 XXXVI, p. 83.
126. For the passage of the 183os reforms, see Radzinowicz, History, IV, pp. 303-43.
127. 3 PD, XIV (1832), 1348.
128. Ibid., 984. Both Sugden and Wynford still argued for the retention of the death penalty for certain types of forgery.
129. 2 PD, XXIV (1830), 1033.
130. 3 PD, XVII (1833), 172.
131. 2 PD, IX (1823), 412 (Mackintosh).
132. Gatrell sees the retreat from hanging in the 1830s as the most sudden revolution in English penal history. In contrast John Beattie and Randall McGowen suggest that opinion and sentiment had already shifted irrevocably against the capital code by the time parliament addressed the issue in the nineteenth century. See Gatrell, The hanging tree p. 9
133. McGowen, 'The image of justice', p. 123
134. Beattie, Crime and the courts, p. 614.
135. I PD, XXXIX (1819), 753.