Randall Mcgowen

Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821

Over thirty years ago Douglas Hay began his influential essay, "Property, Authority and the Criminal Law," with the unsettling claim that "the rulers of eighteenth-century England cherished the death sentence." He went on to offer a major reinterpretation of eighteenth-century justice, one with wide-ranging implications for how we understand English society in that period. The gallows, Hay argues, was meant to inspire terror. The passage of a large number of capital statutes spoke of the resolve of the ruling class to defend its property with the most extreme of measures. Yet the ultimate sanction was used sparingly. Hay's most important insight was to note the role of discretion in the operation of eighteenth-century justice. The choice not to impose death was as important as the occasions when offenders died. The elite deftly exploited these opportunities. The mercy dispensed by the Crown not only presented a more benign image of authority, it also taught the lessons of patronage and deference that instructed the lower orders in the proper attitude to take toward their social superiors. Thus justice worked more powerfully than religion to create legitimacy for the existing order. It was tightly controlled by the landed elite, and it was subtly employed by the rich to preserve a dominance that was only weakly defended by soldiers or police. "It was," Hay concludes, "a society with a bloody penal code, an astute ruling class who manipulated it to their advantage, and a people schooled in the lessons of Justice, Terror and Mercy."¹

Hay's essay inspired both admiration and criticism. Though lauded for his graceful and sweeping portrait of English justice, a succession of scholars, over the succeeding decades, questioned key features of his argument. In particular, these authors challenged Hay's interpretation of who played a significant role in determining the outcome of trials and the ultimate fate of the condemned. Juries, for instance, were composed of men who could not be called members of the ruling class, yet they exercised great independence in defining the seriousness of crimes and determining the outcome of trials. Prosecutors, who enjoyed the widest discretion about what course to take, were drawn from almost all classes of society, and their resort to the law scarcely supports a model of justice as the exclusive preserve of a small elite. Even in the final deliberations over the fate of the condemned, relatively modest individuals influenced who was pardoned. The latter were chosen more often on the basis of generally shared notions such as age and sex, rather than because of the elite patronage they secured. In sum, critics of Hay leave us with a picture of English justice that is closer to that sketched by eighteenth-century commentators on judicial practice. "The law," as two authors famously concluded, "was not the absolute property of patricians, but a limited multiple-use right available to most Englishmen."²

This debate has been tremendously productive; it has spawned scholarship that has significantly deepened our understanding of what went on in eighteenth-century justice. The central question, nonetheless, remains: who controlled the criminal law and how did they use it?³ Hay portrayed a class of wealthy property holders firmly in control of their society, confidently using the law to secure their ends. But more recent work has undermined the stark certainties of that picture, presenting the operation of justice as marked by fluidity and contest. The growing acceptance of the latter position has tended to shift the focus away from the point where Hay began, the gallows. If no one class managed death, if many hands helped to determine the fate of individual offenders, if no consistent policy guided judges and the Crown in determining who died, how can we describe the place and meaning of the execution in eighteenth-century society?

One episode, however, offers an opportunity to examine the management of the gallows in more detail. And, even while making allowances for its uniqueness, it has much to tell us about the kind of calculations that guided those with a major role in managing death. Between 1797 and 1821 the Bank of England faced an epidemic of forgery. During these years the corporation, operating as a private prosecutor, was responsible for bringing over two thousand offenders to trial, and it had a hand in the execution of over two hundred of them. There was much that was unusual about the crime and the prosecutor. Forgery was a much feared offense in the eighteenth century; it shared with murder the distinction of being most likely to see a convicted offender actually make the trip to the gallows. The Bank, however many conflicting emotions it inspired, was the wealthy and powerful symbol of England's rise to commercial greatness. The fact remains that the corporation made use of death in its twenty-five-year struggle with what it saw as a vast threat to the economic survival of the nation. Indeed, it is fair to say that the gallows played the pivotal role in the strategy it quickly developed for grappling with the challenge. In order to make this policy work, the Bank had to exercise a control over the course of justice that ill accords with some of the post-Hay characterizations of English legal process. The corporation managed death with a single-minded purposefulness that seems surprising given our model of a loose and fluid eighteenth-century justice. The Bank claimed for itself an extraordinary measure of discretion over the cases it prosecuted, while at the same time it sought to defeat the influence of anyone who tried to interfere with the measures it adopted. The Bank encountered unpopularity but little real hindrance to the course it pursued. The legislature, judges, and the Crown all cooperated in support of a policy created by private businessmen and solicitors. In several respects the corporation was even able to introduce innovations in the management of capital justice. It did so quickly and decisively. All of this is even more surprising, given our usual understanding of the gallows regime as on its last legs in the early nineteenth century. The Bank's success, both in terms of developing an effective weapon against crime and of securing cooperation from a significant portion of the community, suggests the need to reassess the status of the death penalty and criminal law reform in the years before 1830.

I. The Suspension Crisis and the Challenge of Prosecuting Forgery

The crisis for the Bank originated in the decision of the government, in 1797, to suspend cash payments in the face of heavy demands for specie arising from wartime necessity and agricultural distress. Not only was the Bank released from the obligation of paying specie (gold and silver) for its notes, it soon had to issue large numbers of one and two pound notes in order to sustain the circulation of the country.⁴ Unexpectedly, one consequence of this new policy was to expose the Bank to an outbreak of forgery. The corporation was not unfamiliar with the crime; it had encountered scattered instances of the offense throughout the century. The occurrence of forgery always produced a vigorous response on the part of the Bank. Yet so long as it issued no notes under five pounds, the Bank experienced little difficulty dealing with the crime, and it had not prosecuted anyone for it in the preceding six years. Within weeks of the issuing of low denomination notes, reports of forgery began to arrive at the Bank. The problem soon assumed proportions it had never achieved before. Dealers in counterfeit coin rapidly shifted their attention to the new opportunity. The temptation was overwhelming. Skilled engravers in Birmingham had little trouble imitating the crude notes issued by the Bank, and a public unfamiliar with these instruments proved an easy target. Particularly in places like Lancashire, always starved for circulating medium, both good and bad notes spread rapidly.⁵ In this crisis the government lent the Bank its full moral support, but it did little to assist in the practical conduct of the campaign against the crime. The struggle was managed by the Bank, and it jealously guarded its right to control what measures were undertaken at its expense.⁶

Local authorities reacted in panic to the news of this fresh assault on the financial stability of the nation. The Bank, however, was cooler in its response. The solicitors employed by the corporation, the firm of John Winter and Joseph Kaye (later joined by James Freshfield), took the lead in grappling with the challenge. They were never at a loss for how to proceed and proved remarkably resourceful. They sent Bank investigators to the various hot spots, to provide leadership in the effort to track local dealers. More crucially, they supplied information on what was required to mount a successful prosecution. The solicitors often took an active part in conducting specific operations. For instance, in March, 1798, Winter received word of an old dealer in counterfeit coin, William Stinson, being involved in circulating forged notes. He sent an order to have Stinson's apartment searched. The constables reported that they discovered a great quantity of false coin, but had had no luck finding forged notes.⁷ The corporation published advertisements, offering substantial rewards to those who would detect and bring to justice the makers and utterers of forged bank notes. It generously remunerated police officers and constables, as well as private citizens, who energetically pursued offenders. The office of the solicitors quickly became the headquarters of a far-ranging detection effort, knit together by the steady stream of letters flowing to and from magistrates, police, and other cooperative members of the public.⁸

The Bank hoped that swift action would put a quick end to the threat. The solicitors brought the weight of the corporation's vast resources as well as their own prosecutorial expertise to the task. They undertook each prosecution with care. In these early years, the numbers were still small. The corporation, no doubt, expected that a few dramatic executions would cow the population of potential offenders. It could count on the fact that, in the wake of the Perreau, Dodd, and Rylands cases, there was an increased insistence on forgers perishing on the gallows. The Bank revealed its resolve in cases like that of Elizabeth Brown, a forty-four-year-old woman, tried at the Old Bailey on April 18, 1798, with uttering a two pound bank note. As was typical of forgery cases, the legal complexity of the crime required the Bank to press eleven different counts, "varying the manner" of describing the offense, against her. The evidence told of her presenting the forged note in an attempt to buy silver spoons, and, when detained, of her throwing a parcel into the fire. She was frank in describing her conduct; she had received the notes from another, who "gave her them unfilled up; she got them filled up; and was to put them off, and was to have a certain share of the profit." The case presented few difficulties. She was found guilty, condemned, and executed.⁹ Similarly, Charles Linsey, thirty-three, was prosecuted for uttering a forged note at a butcher shop. He was taken to the office of the solicitors, where he was examined about his identity and the history of the note. "He said he would not make any confession except upon condition of pardon, for that he could make important discoveries, with respect to the Bank and with respect to the Post-office also, but he would not do it unless upon those terms." In his defense, Linsey offered a slightly different version of what was said. His description provides us a glimpse of the hard negotiating that went on in these tense situations. After telling him that "twelve or fourteen were in custody" for forgery, the solicitor, Linsey claimed, "talked of the liberality of the Bank, that they would provide for me and my family, if I would but bring forward my accomplices." He replied that he had none. He then tried to shift the blame for taking the note onto his wife, saying she had received it in ignorance. The judge cut short his effort to complain about the mistreatment his wife received during the investigation of his house. Despite character witnesses, he was condemned and executed.¹⁰

Other cases, however, demonstrated the difficulties that awaited the Bank in prosecuting capital cases for forgery. Forgery trials were notoriously complicated proceedings. There were many points where a chain of evidence might fail. The note had to be proved false. Its location at all times had to be established, to guard against the least likelihood that it might have been confused with other legitimate notes. There was considerable fear that someone might innocently take a bad note. The conduct of the accused had to be minutely examined for evidence of guilty knowledge about the fraudulent character of the instrument. Typically it took several witnesses to establish a pattern of suspicious behavior. "Prosecutions for forgery," wrote Freshfield in 1830, reflecting back on a career devoted in large part to dealing with the crime, "require much labour and a particular description of information possessed by few professional men and where each individual banker in a case of forgery being detected applied to his private solicitor it frequently happened that after a very expensive prosecution the prisoner was acquitted on a point of form."¹¹

The obstacles to success were even greater when dealing with professional forgers and dealers. The fabricators were savvy; they knew how to protect themselves. Even modest dealers took great care in selling their notes. They never carried more than one on their person, and they avoided passing them in situations where they might be easily identified. Guilt often had to be established by a complicated train of circumstantial evidence, much of it depending on witnesses of dubious character. The pitfalls were many, especially since in capital cases juries tended to give the accused the benefit of the doubt. Edmond Lovell, twenty-two, was charged with altering a two pound note to make it ten. He used it to try to purchase several handkerchiefs. During the very long trial Winter was described as discovering drawing books, brushes, and inks in the defendant's room, that seemed to confirm Lovell's guilt. The defendant, however, had capable counsel who pressed each prosecution witness. Lovell was a servant who had worked for a respectable family since his youth, and the family and fellow servants rallied around him. In addition, he kept to the story that he had found the note in the street. The jury acquitted him.¹² The Bank undertook an even more troubled prosecution in April, 1798, when it accused John Aikin of uttering a forged two pound note. Aikin was a serjeant who said he had received the note from a fellow soldier. It was a tangled case, though the Bank case was prosecuted by the experienced William Garrow. After hearing the dubious evidence of the other soldier, Lord Kenyon interrupted the trial and directed an acquittal. "I protest I cannot entertain a suspicion against this man; so far from there being evidence to convict him, it does not raise even a suspicion in my mind; for, if every man into whose hands a forged note might fall were to be convicted, in a perilous situation are we all." The defendant had acted openly and honestly, never displaying the least sign of guilt. "Upon this evidence, I should be shocked to suppose, that any man could be called upon to answer for an offence almost out of the reach of pardon, if it is true."¹³ These acquittals showed what the Bank was up against. Kenyon's stinging words did not help in its campaign to create an impression of the fatal consequences that flowed from detection in the crime.

Undaunted, the solicitors continued to press for the utmost severity in the cases it undertook. In October, 1800, the solicitors engaged in a lengthy correspondence concerning the case of Mary Lloyd, who was under sentence of death. She had given to several people an account of herself that cast her as the dupe of a skilled dealer in forged notes. The sheriff of Chester Castle wrote that he found her to be a "poor woman" who was, in addition, a widow with a family to maintain. He thought that she was worthy of mercy and had written to the Duke of Portland on her behalf. Several days later the undersecretary of state wrote to the solicitors asking them to attend him at Westminster. In another letter, James Mansfield, the Chief Justice for Chester, explained that he had made the order for execution because he knew nothing about the case that merited a respite. He now invited the Bank to write to the sheriff if the directors thought that there was any reason to reconsider this decision. Kaye replied to the sheriff that the Bank had repeatedly given the woman an opportunity to appear as a Crown witness, but that she had rebuffed the offer "in the most insolent manner." She chose to act in concert with her accomplices; she had waited too long in expressing a willingness to impeach them. "After conviction," he explained, "the Bank never interfere unless they feel themselves warranted in recommending an offender to mercy, and in that case they do it at the earliest possible moment." He closed by saying that the corporation could not comply with his request, even from so respectable a source, without a dereliction of duty. On October 22, 1800, the sheriff wrote to say that Lloyd had been executed.¹⁴ In this episode, many features that would characterize the Bank's practice over the next twenty years were already apparent. The tone of the correspondence was confident, firm, and unyielding. The phrasing displayed a scrupulous respect for propriety that ill accorded with the insistence on getting its own way. The Bank's agents asserted a greater familiarity with the details of the case than those who wrote asking for mercy, and they justified their course by an appeal to the needs of the corporation and the nation. Their knowledge and their interest, they claimed, combined to justify their having a decisive voice in determining the resolution of appeals for mercy. No one disputed this claim. Informal contacts went on constantly. Both public officials and highly placed individuals went out of their way to consult with the Bank in pressing their own proposals, and, more often than not, they deferred to the Bank's decision.

The Bank took full advantage of the resources it possessed in the struggle against forgery. It sought to overwhelm the accused with its expertise and efficiency. The solicitors became specialists at preparing forgery cases, fully aware of the importance of every detail in order to secure a conviction. The corporation employed the finest legal talent. In 1799, a letter went to one local solicitor charged with acting for the Bank, instructing him to retain two of the leading barristers on the circuit before the prisoners could employ them.¹⁵ Winter and Kaye always sent out a partner or clerk to manage the arrangements for upcoming trials. One of them was always in attendance at the major assize towns, especially Lancaster or Warwick. As the time for the assizes drew near, letters streamed back and forth from London touching on every aspect of the prosecution case. In July 1800, the solicitors were in frequent correspondence with their agent in Chipping Sodbury about issues raised by a prosecution. He had written to them warning that he lacked one subpoena for a witness needed to complete the chain of evidence establishing who had possession of the note at each moment after it had been negotiated. A female witness, he added, was unwell and might not be able to attend the assizes. The solicitors immediately responded with the document, and promised that the ill witness would have a chaise so that she could travel to town at her own speed. He was also told to arrange for her comfortable accommodation in Gloucester during the trial.¹⁶ The solicitors could be smug about their skill and thoroughness. "Upon the whole," Kaye wrote after the Lancaster summer assizes in 1804, "our cases were uncommonly well made out, even to the astonishment of our own counsel."¹⁷ The price of success, however, was high. A successful prosecution could involve hundreds of pounds and the concerted efforts of dozens of people.

The climax for all of this labor was the chilling spectacle of an execution for a convicted forger. After several dramatic executions in 1798 and 1800, correspondents wrote to the Bank expressing the conviction that the worst of the threat had passed. One magistrate thought that the "many examples made in so many parts of the kingdom at the last assizes by the exertions of the bank solicitors may put a stop to the most mischievous and very extended forgery that has come to my cognizance." At the same time, the directors turned down several offers of assistance from doubtful characters because they wished "to see the effect the examples lately made will have."¹⁸ When these hopes proved illusory, the Bank resolved on more sensational displays in order to secure the maximum effect upon the targeted population. It was widely recognized that Birmingham and its mixed community of skilled artisans was the focus of much of the manufacture of forged notes. After the conviction of four men at the Warwick assizes in 1802, Freshfield, then a young attorney who had recently joined the firm, wrote to Winter and Kaye advising them to request of the judge that the men be executed in the town. The move, he suggested, would be in the public interest; the town contained "all the persons upon whom the example is intended to operate." Executions at Warwick, he added, were too private and too distant from the larger town. "The rabble are prevented from attending or indeed of being at all aroused by the example." The under-sheriff of the county agreed to the plan, once the Bank undertook to cover all the associated costs. The subsequent execution certainly created a sensation, though not quite the one the Bank desired. One of the condemned men went to his death loudly protesting his innocence. Pamphlets and broadsheets sought to inflame public opinion. While the Bank's agent, the solicitor William Spurrier, wrote to the local paper to explain the course of action, an undercurrent of unrest and threat made him fear for his life. He initiated an urgent correspondence with the corporation requesting its assistance.¹⁹

The unpopularity of the corporation's actions in Birmingham was an alarming symptom of the mounting difficulties the Bank faced as it pursued its campaign against forgers. Critics of suspension had announced their fears about the consequences of the measure from its earliest days. The Morning Chronicle, a paper hostile to the government, wrote in 1798 that "the melancholy experience of every day proves, that the facility of imitating the clumsy note of the Bank holds forth such temptations to desperate men as no example of punishment is able to repress."²⁰ The warning proved prescient. The number of prosecutions surged from twelve in 1798 to fifty-four by 1801. Given that the Bank only prosecuted cases it was confident of winning, these numbers understate the scale of the challenge. Letters flowed in to the corporation with complaints of fresh outbreaks and reports of people being reluctant to accept bank notes. The Bank became testy in some of its responses to these demands for action. "It is of little importance to the Bank," the solicitors wrote to one correspondent in Suffolk, "whether their small notes circulate in the country or not—indeed it would be an advantage to the Bank to be relieved from issuing them—but it is of great importance to the public that the great national currency should not be brought into discredit, as it must invariably produce great interruption in the trade and intercourse of the country."²¹

One ironic consequence of its early successes in prosecuting forgers and sending them to the gallows was that juries became more reluctant to convict. In the first two years after suspension, the Bank enjoyed considerable success in court. In 1798 it prosecuted twelve and secured eleven convictions, while in 1799 the numbers were fifteen and twelve. Over the next two years, however, a more worrying trend appeared. In 1800, of forty-four prosecutions, fifteen were acquitted, and in 1801, of fifty-four brought to trial, twenty were found not guilty. The failure rate was disturbing. Freshfield wrote from the Chester assizes, in 1801, describing the difficulties the Bank had encountered. Even though the solicitors had taken great care in selecting which cases to pursue, the grand jury had been unhappy with one, and in another case it had taken six hours to secure a hard won conviction.²² Local sentiment became a greater obstacle as it became clear that the Bank seldom responded to requests for the mitigation of capital sentences. Kaye reported, in 1805, that Peter Hughes, despite clear evidence that he had many forged notes in his possession, had been acquitted because of a strong prejudice in his favor in the neighborhood.²³ Equally unsettling was the steady upward trend in the costs associated with policing and prosecuting forgery. In 1797 the Bank had spent £1538 on judicial costs. By 1802 the figure had soared to £15,618.²⁴ Here was the worst of all possible outcomes, rapidly rising expenses, a declining success rate, and, as a result, a steady increase in the incidence of the crime. The Bank, in these early years, was busy trying to create an impression of its strength in order to overawe potential offenders. Its expensive failures could only be seen as an incitement to crime.

II. Penal Legislation and Prosecutorial Strategy

By 1801 the directors of the Bank were aware that suspension, which had been introduced as an emergency measure, was likely to continue for the foreseeable future. The problem of forgery, therefore, would inevitably remain as well. Faced with this disturbing conclusion, the Bank introduced several changes in its notes, in order to make them harder to duplicate. But it never expressed much confidence that this measure would seriously deter the crime. The solicitors, in consultation with the directors, decided that the corporation needed a new weapon for grappling with the grim situation it faced. In early 1801 the corporation turned to Parliament to secure a measure that would give it more flexibility in dealing with offenders. The bill was carefully crafted by the solicitors and vetted by the Bank's counsel. Various legal authorities were consulted, and the specific wording of the measure was much discussed. It proposed the creation of a lesser charge, that of the possession of forged bank notes.²⁵ The wording of the statute was intended to aid prosecution. It said that the "Proof" of innocent possession "shall lie upon the Person accused." The act made the crime punishable by transportation for fourteen years. A heavy sentence in many respects, it would nonetheless save the Bank from its exclusive reliance on the capital charge. This measure would be especially welcome when it came to the task of prosecuting the lesser agents of the major dealers, the more easily detected and convicted minor offenders who passed only a few notes. Juries, it was hoped, would be more willing to convict if the life of the accused was not in question. The bill addressed other problems as well; it made it an offense to possess the paper or imitate the peculiar style of printing used by the Bank in the production of its notes. One clause closed an embarrassing loophole that had caused the corporation considerable trouble. It became illegal to engrave plates in the form of bank notes.²⁶

The attorney general presented the legislation to the Commons on March 24, 1801. It was discussed over several days, and, at one point, withdrawn in order to be rewritten. Several amendments were added to clarify specific provisions. The directors wrote to the Bank's "friends" to encourage them to attend Parliament in order to facilitate the measure's passage. The bill received the royal assent on May 21.²⁷ Once the measure had passed, the solicitors were quick to inform their agents and to encourage its immediate use. In particular, they sent a copy of the act to Spurrier in Birmingham. They pointed out that the statute authorized the seizure of those who accompanied utterers and the indicting of them on the charge of possession.²⁸ They were optimistic that now they were equipped to cope with the epidemic. When one anxious correspondent informed the solicitors that forged notes were circulating widely in the west country, raising serious doubts about the reliability of its currency, they hastened to reassure him. "There certainly have been a number of persons engaged in criminal practices of that nature," they replied, "and the fabricators are chiefly persons at or near Birmingham, who were coiners and utterers of base coin. The Bank has prosecuted and convicted many of them, and we have reason to think the mischief is in some degree, if not considerably checked." "A bill is now before Parliament," they confidently asserted, "for the purpose of introducing further checks upon the commission of this mischievous offence."²⁹

It is difficult to know exactly what kind of calculation was in the minds of the directors and solicitors as they exchanged letters during the drafting of the bill. Certainly the corporation had already displayed an awareness of the dangers of a scattershot approach to the crime. It was fearful from the first of dissipating its efforts. It sought to maximize the impact of its actions. As the solicitors applied the statute, it quickly became evident that the Bank intended to employ the new measure as something more than simply a lesser charge to press against minor offenders.³⁰ The corporation never filed the reduced charge without also offering an indictment on the capital offense as well. The two charges were meant to work in tandem. Those faced with the two indictments were then invited to plead guilty to the less serious one. If they made the guilty plea, the Bank would, with a flourish, announce that it was offering no evidence on the second indictment. If, however, the accused declined the offer, the corporation proceeded against them capitally. From the earliest application of the measure, it became clear that the statute was not intended to help the Bank win a jury trial, but rather to assist the corporation to avoid the difficulties of going to trial. In one of the first mentions of the procedure that would, in time, become the mainstay of the Bank's struggle with forgery, the solicitors described to the Committee for Law Suits the case of John Thompson, a man who had cooperated with two others in putting off notes. They proposed to prosecute him on the lesser charge, adding significantly, so long as the judge agreed. They would indict Thompson first for uttering, the capital offense, and then let the judge reduce the charge.³¹ In later deliberations the solicitors and directors resorted to the formula that some offenders were offered "the liberty to plead the lesser charge."

The care the Bank took in describing what transpired in the courtroom suggests that the solicitors and directors were aware of the novelty of what they did. Securing special legislation that created a new crime, often by refining or elaborating a previously existing offense, was not unusual. What was novel, even extraordinary, was how the corporation employed this new statute. For, in effect, what the Bank was creating was a procedure that operated like a plea bargain. Most accounts of eighteenth-century justice argue that judges discouraged guilty pleas because such pleas deprived them of the information they needed in order to make recommendations about pardon. Popular belief held that judges and juries, protective of the rights of the accused, resisted the kind of pressure so obviously exerted in such bargains. Critics were ready to detect an abuse of power. The deals aroused the suspicion of an illegitimate coercion being applied by powerful interests against the weak and vulnerable.³² Despite the weight of custom and opinion against the practice, the Bank seems not to have hesitated in adapting this legislation to its peculiar purposes. It consulted with its own legal counsel before proceeding, and it secured the cooperation of the leading legal advisors to the government. Its officers were particularly cautious in the words they chose to describe what they did. They portrayed the Bank as the passive party, one that merely responded to a request from the accused and, in turn, asked the judge to decide on the merits of the case. One legal advisor to the Bank, consulted in 1818 amid great popular outcry against the corporation's conduct, was careful in discussing the course of events: if a "person thinks fit to plead guilty and with the permission of the Court the Bank withdraw the capital charge," the corporation acted correctly in accepting the offer, so long as it had made no promise nor employed any threat to the accused.³³

The Bank sought to deflect attention from the constitutional propriety of its conduct by stressing that this initiative expressed the humane desire of the corporation to avoid unnecessary severity.³⁴ Yet it had a difficult time concealing the practical considerations that factored into its calculations. In 1821, in the midst of debate over a measure to alter the punishment for forgery during which the Bank's behavior came in for withering criticism, the corporation's chief legal counsel wrote an extended defense of its practice. He began by pointing out that it had operated for nearly twenty years with little objection from the authorities. He suggested that the corporation was scrupulous in its exercise of discretion, never overstepping its proper sphere, always demonstrating a due regard for law and custom. When a magistrate committed an individual for forgery, he explained, the Bank was obliged to prefer an indictment on the capital charge as well as for the lesser offense. The same evidence applied to each indictment, and the corporation would be at fault procedurally if it chose to prosecute some capitally and others non-capitally on evidence that admitted no distinction. It belonged to the accused and the judge to make a choice about how to proceed. But the failure to permit some measure of selection, he continued, would be disastrous, for the Bank certainly, but more especially for justice in general. Since the offense was so frequent and the degrees of guilt so various, "in most instances a relaxation became indispensable." For if all cases of uttering were dealt with capitally, the result would necessarily be, in many instances, a recommendation of mercy. "This will," he concluded, "be mischievous in many ways. For any remission of the sentences pronounced always tends to the encouragement of crime: and the public exposure and proof of numerous capital offences followed by the sentences of death, and afterwards pardoned upon terms which must inevitably destroy the present salutary impression that convictions for forgers are almost always fatal. To which must be added the great probability where the cases are so numerous, that capital prosecutions will not be followed by convictions although the proof adduced may fully establish the charge."³⁵ In these convoluted sentences the Bank came as close as it ever did to acknowledging the balance of considerations that figured so largely in its campaign against forgery. In doing so, its officers incorporated many of the themes that the reformers articulated about the destructive consequences that followed from the operation of uncertainty in punishment and conceded that there was a limit to how many could be executed. At the same time, its counsel bent these arguments to a defense of the Bank's own practices. Theirs was a strategy for making resort to the gallows effective, not for overthrowing it.

III. Tactical Advantages of the Guilty Plea

The correspondence and minute books of the Bank tell a different tale from that they presented to the public. They show as well how powerful was the weapon it had created. Within months of its passage, the statute, and the procedure it made possible, had become the primary instrument in the Bank's struggle with forgery. The accused were among the first to grasp the full implications of the new situation. In July 1802, the directors had decided to press the capital charge against Matthew Prior, a man the solicitors described as having been concerned in forgery for three years. Prior subsequently wrote to the solicitors imploring that he be tried under the new act. The committee acceded to his request, and he pleaded guilty at his trial.³⁶ The chief effect of the legislation was decisively to shift the balance of power between the Bank and the accused. The corporation presented the latter with the choice of whether to gamble with their lives. The often pathetic letters from those in the hands of the authorities spoke of their acute awareness of their plight. Richard Twine, a prisoner confined in Horsemonger-lane in 1818 for a forged note, lamented the charge against him and admitted the great evil inflicted on the public by such practices. He spoke of being "fully impressed with the justice of the awful sentence that awaits him if he is convicted upon the capital part of the said charge." "With the most unfeigned sorrow and contrition," he wrote, he implored the Bank "to exercise the sword of justice tempered with mercy and that you will be pleased to suffer him to plead guilty to the minor offence upon the said charge." The solicitors were gratified by the tone he adopted. His request was granted.³⁷

The Bank had always chosen with care the cases it would pursue. A substantial number were never even carried to the committee because the solicitors recognized weaknesses that reduced the chances for success. They were respectful of how difficult it was to secure a conviction; they erred on the side of caution. The corporation discharged suspects when there was a problem in the evidence. The directors often declined to press a case involving a single utterance, no matter how suspicious the circumstances. They were reluctant to risk an acquittal.³⁸ In 1810, the Bank received the examination of Thomas Chalders, taken up for uttering by enthusiastic officials at Yarmouth. He was fully committed for trial before the Bank was consulted. The solicitors complained about the conduct of the magistrates. While Chalders was a notorious smuggler and suspected dealer in forged notes, nothing about the circumstances of his detection conveyed an inference of guilt. The authorities had failed to search his house. Kaye wrote that the case was weak; it "will not be deemed sufficient to warrant a conviction for a capital offence, and putting an offender upon his trial without a fair chance of conviction, only shows him and his associates how far they may go with impunity."³⁹

The reduced charge strengthened the Bank's hand when it came to dealing with cases that presented marginal chances of success. When Thomas Davis was taken up for uttering forged bank notes, the directors ordered that he be prosecuted capitally, "unless something shall occur to render it advisable to prosecute for the minor offence."⁴⁰ The quality of the case came to be a major consideration in deciding how to proceed against individuals. Kaye reported, in 1805, that George Smith had been apprehended for making one pound notes. Smith asked to plead guilty to the non-capital charge. The committee accepted the offer because the doubtful character of the witnesses against him made conviction before a jury uncertain.⁴¹ Similarly, Richard Sutton and William Rough were taken up in Essex in 1815 for uttering forged notes. At first the directors were inclined to proceed capitally, but realizing the weakness of the evidence, Kay recommended that the two men be invited to plead guilty to the lesser charge. They both took up the offer and were subsequently transported.⁴² In another case, in 1818, George Velton was detected uttering notes. Initially, the directors voted to seek a capital conviction. Velton petitioned for permission to plead the minor offense, but his request was rejected. The next day, however, Kaye informed the committee that, while Velton was a dangerous character, they would have trouble securing a conviction because of the contradictory nature of the evidence. He recommended that the offender be permitted to make the plea.⁴³ Time and again it was the strength of the case, rather than the character of the accused or the degree of criminality, that determined the Bank's course of action. In 1821, amid the tidal wave of forgeries that threatened to overwhelm the Bank, John Messenger and Thomas Bird were detained in Birmingham for selling sixty one pound notes. The size of the purchase suggested that they were major dealers, the sort the Bank usually prosecuted capitally. In this instance, however, the solicitors reported that they were doubtful of securing a conviction, so the directors gave them the choice of pleading guilty. The two men accepted the offer.⁴⁴

The Bank derived other benefits from holding out the offer of the reduced charge. It insisted that forgers turn in their plates and dealers reveal their stocks of forged notes. The solicitors pressed the accused to tell the names of their confederates and to disclose all they knew about the networks that distributed notes throughout the country. Sometimes the corporation received even more active support. The threat of the gallows figured along with substantial rewards as the major incentives securing cooperation in its policing effort.⁴⁵ In 1813, Henry Dale, apprehended in London for uttering forged notes, proposed to the solicitors a plan to detect "the engraver, printer, paper manufacturer of forged notes at Birmingham." He suggested that Joseph Beckett, the head turnkey of Coldbath Fields prison accompany him there. It was crucial, he warned, that he not be brought again to the public office, as that would defeat his plan. All he desired was liberty to transport himself once the operation was over. The solicitors made no commitment, but they encouraged him to undertake the mission. It failed, but he was subsequently given permission to plead guilty to the lesser charge.⁴⁶ The Bank received many such offers from desperate offenders facing trial who asked only that they not be tried capitally. The very number of these appeals, and the corporation's insistence upon controlling how they were dealt with, gives the lie to the more benign portrait it offered of its prosecutorial activity. Richard Radford wrote from Newgate, in 1818, to say that he had been "most brilliantly entrapped" and offered his services to secure others. He was permitted to plead guilty.⁴⁷ In 1816, John Cooper, sitting in the Hereford gaol, wrote to remind the solicitors that he had provided information on several vendors who had been taken up. He now requested the usual favor. The committee gave its assent.⁴⁸

The Bank was perfectly willing to engage in a high-stakes game with the accused. In June 1817, the directors considered the case of Thomas Edwards, taken up for selling notes in London. They decided to proceed capitally. In July, Edwards petitioned for permission to plead to the lesser charge, pointing to the information he had provided. Kaye confirmed his statement. The committee agreed to permit him to plead guilty to the capital charge, with the understanding that he would be transported for life.⁴⁹ In their correspondence with the accused, the solicitors made little effort to disguise their ability to manage the outcome of the judicial process. George and Thomas Judd sent a letter from the Cambridge gaol suggesting that the Bank employ their sister and Thomas's wife against the Birmingham operators. They also provided detailed information on the state of forgery in the town. "We do not expect," the solicitors wrote to Spurrier, "much success from her endeavours, but as she had in view to obtain some lenity for her husband and brother, we believe she will zealously exert herself." This prediction proved accurate. In the wake of these efforts, the Judds requested that the corporation grant them the additional boon of transporting themselves to Australia, a more comfortable prospect than being chained with the other convicts below deck. The solicitors told them not to press their luck. They should be content, they advised, that the efforts of the women had saved their lives.⁵⁰

Further acknowledgment of the unique influence exercised by the Bank came in letters sent by prisoners, convicted of other crimes, offering the corporation information if it would intervene on their behalf. Thomas Matthews, confined in 1803 in the Exeter gaol under sentence of death for horse stealing, promised assistance "if your interest can by any means beg me off death." The solicitors did not deny the influence they possessed; rather they told him that he had no new information to offer, and so they declined to interfere.⁵¹ Spurrier sent word of another case in 1804. A horse thief who lived in Birmingham offered to assist in tracking forgers in return for his life. The solicitors replied that "as he thought fit to retain the secret for so long, he may as well depart with it."⁵² These offenders were in no doubt that the Bank could, if it chose, alter their punishments. In their replies, the solicitors never disputed that the corporation had that power. George Hollis, the undersheriff for Winchester, sent the Bank word that Julien Dubois, under sentence of death, had many discoveries to make. Kaye replied that they were of no value. "If mercy," he wrote, "was to be extended to the prisoner upon the ground of the information given by him, it would be telling every offender in these cases, that they may offend and set their prosecutions at defiance."⁵³ The Bank coolly assessed the many offers it received, confident in its power, yet unwilling to expend it unless the return was clear. It quickly learned to take a hard-headed approach in its negotiations with offenders. While a constable, prison official, or magistrate might be enthusiastic over extravagant promises made by a captured utterer, the solicitors knew that much useless information was offered and that many lies were told by desperate individuals. The key task was to make the Bank's intercession as valuable as possible, setting a high standard for the kind of cooperation it expected. In 1807, Spurrier wrote that William Phillips, in prison in Warwick for coining, had information on key Birmingham forgers and was willing to help capture them. The solicitors wrote that "if he can put you in the way to detect Mrs. Tysoe and her associates, and Henshall and Hall, we will interfere to save him from the consequences of the present charges against him."⁵⁴

For several years, after 1802, the Bank had the satisfaction of witnessing a pleasing drop in the incidence of forgery. Between 1803 and 1806 the volume of prosecution, and seemingly the volume of forged notes, declined sharply. These facts were enough to suggest that its strategy for coping with the threat was working. Expenses also diminished. There is some reason to suggest that it was the alteration in the bank note, and a decision to curtail prosecution, that led to the changes. Still, the situation seemed under control. Only in 1807 did it become clear that this holding operation was precarious. Even as the numbers of forgeries and prosecutions climbed, dramatically after 1812, the Bank came increasingly to rely on the offer of the lesser charge as its central weapon in combating the crime.

IV. The Bank, the Gallows, and the Regulation of Mercy

The Bank understood from the first that the effectiveness of its strategy for coping with forgery relied upon creating a particular impression among offenders and potential offenders. So much was this the case that it was willing to see its reputation with the wider public cast in an unfavorable light, so long as it could produce in the minds of this more narrow population a sense of its resolution and strength when it came to prosecuting crime. Its reliance upon the gallows might well arouse negative comment in the press and political sphere, but such was the price to pay for making the threat seem real. The Bank regularly protested that it respected legal norms and submitted to judicial direction in choosing how to proceed against the accused. On the other hand, it never sought to challenge the pervasive idea among offenders that it played the decisive role in determining the course of justice. Indeed, it did everything it could to foster an image of competence, determination, and success when it came to the pursuit of crime. One advantage of the plea bargain was that it sustained the sense that in the Bank the accused encountered an extraordinarily successful prosecutor. The guilty pleas inflated its success rate. A memo, written in 1830, offered a comparison of the corporation's success rate and that of the Mint down to 1818. In that period, the memo showed, the Bank prosecuted 998 cases, with a conviction rate of 85 percent, while the Mint prosecuted 2681 and had an 80 percent success rate. Crucially, the Bank had to include guilty pleas in order to reach this level.⁵⁵ Examined more carefully, the Bank's fortunes appear more mixed. If one looks at only capital cases carried to trial, the corporation succeeded in securing convictions about 70 percent of the time in the period between 1797 and 1824. This figure, however, disguised wide swings; in 1815 and 1816 the Bank was victorious in only about 35 percent of its capital cases. At the Nottingham spring assizes, in 1816, the Bank was dealt four acquittals. In 1820, at Lancaster, it suffered six acquittals. Since so many cases were linked, the discrediting of one witness threatened to undo many months of work. The occasional reverses, far from discouraging the corporation or leading it to question its tactics, led to renewed efforts to secure convictions and, when so decided, executions. The Bank did not succeed in every case. Its conviction rate could vary considerably. What it needed to do was to sustain the impression that there were consequences for failing to seize the option presented by the solicitors. Its success can be measured by the willingness of so many to take the Bank up on its offer, even at the cost of transportation to Australia. Those with the most at stake were seldom inclined to risk their lives either on the sympathy of an English jury or the benevolence of the Bank toward those sentenced to death.

At the center of its calculations was the death penalty. It was the prospect of the gallows that led terrified offenders to beg for mercy. In 1816, James Chubb, confined and awaiting trial on the capital charge, sent a petition containing the names of a number of vendors. The directors rejected his plea.⁵⁶ Without anger, but without pity, the Bank employed this dread terror to bend those who fell into its grasp to its will. The corporation did not flinch from seeking a capital conviction; a certain number of executions were necessary to the success of its overall campaign. They helped the Bank secure the attention of that portion of the population they most wanted to reach. Daniel Cope, in 1815, wrote from the Maidstone gaol offering information if the Bank would aid him, while John Newbank communicated from Reading a complete list of his associates in a frantic effort to escape the gallows. Their pleas failed to move the directors.⁵⁷ Firmness paid dividends; it established a high standard for the level of assistance expected. The Bank adopted a particularly stern attitude toward its oldest opponents. Once captured, in 1813, Thomas Foss sent a proposal to the solicitors for aiding them to capture a large number of forgers. The solicitors told the committee that this was little more than a deception intended to delay the course of justice. There was, they added, no greater offender than Foss. They argued for letting the trial proceed, contending that if he were convicted, "the Bank would receive the same information from the prisoner in hopes of obtaining mercy through the Bank's intercession." Sure enough, once he was sentenced to death, he sent an urgent letter naming nineteen associates and begging for mercy. The directors declined to intervene. Foss died.⁵⁸

The most critical cases for the Bank were those where prisoners declined to accept the offer to plead guilty to the lesser offense. The corporation faced the task of following through on its threat lest it appear weak in the eyes of those whom it sought to intimidate. William Cox, tried at Salisbury in 1805, had been offered an opportunity to take transportation; his counsel had urged him to do so. He had refused. He was tried upon the capital charge and convicted.⁵⁹ In 1813, William Hughes, taken up for uttering in London, rejected the committee's offer. He was subsequently convicted and sentenced to death. He petitioned the corporation for mercy, mentioning his wife and child, but the directors opposed his appeal. He was executed.⁶⁰ In case after case the Bank responded to being spurned in the same stubborn spirit. John Howard, taken up in Lancashire for uttering a five pound note in 1814, likewise refused the Bank's proposal. He was capitally convicted. His wife submitted a petition on his behalf asking for mercy for him as he had seven children. Once again the Bank declined to intercede.⁶¹ Even in the face of mounting criticism of its policy, the Bank remained as inflexible as ever. In 1820, John Madden, along with two other people, was charged with passing forged notes. Because he had no notes on him and had no previous record, he decided to risk the trial. He was tried and convicted. His two confederates escaped the gallows, but Madden was executed.⁶² To the very end of the crisis, the Bank pursued the same course. In April 1821, the corporation received petitions from three men, all under sentence of death after refusing its invitation, one from Lancashire and two from Surrey. The directors responded that since "the Bank having granted them the liberty to plead guilty to the Minor offence, and they having refused to avail themselves of the lenity shewn them," consistent with past practice, the men would be left for execution.⁶³

There was a related threat to the success of the Bank tactics for dealing with forgery—the unregulated exercise of mercy. Much of the story of eighteenth-century capital justice concerns the desperate but often successful efforts of parents and wives, neighbors and wealthy patrons, to secure a pardon for a condemned offender. This scramble for mercy has come to occupy a large place in our interpretation of justice in the period. The Bank could not but view such activities with concern. Even as it publicly denied employing a veto over petitions for the mitigation of sentences, it sought to protect, at the very least, its influence in the granting of these requests. A significant portion of the work of the Committee for Law Suits was directed toward passing judgment on these appeals. In the process, it often found itself dealing with correspondence from influential figures and high government officials. The interesting point is how rarely the Bank felt itself compelled to give way before such interests. The tone of Bank letters to government legal officers could be as severe as that in letters addressed to the condemned. The corporation expected to be consulted on matters that touched its interests. It took a firm line with magistrates; it conceded nothing to those who wrote on behalf of the condemned.

In April 1809, William Baldwin wrote from Whitehall to say that Lord Liverpool and Sir Thomas Plomer were in favor of pardons for Henry Russell and Benjamin Cleaver. After diligent inquiry, they thought both represented favorable cases. Russell had refused the offer to plead guilty; he had been convicted on the capital charge at the Oxford spring assizes. An MP and a magistrate had petitioned on his behalf. Since it appeared that the prisoner had not been engaged in other transactions and had a good character, the committee requested that the solicitors signify to the secretary of state the Bank's willingness to see his sentence reduced to transportation for life. Cleaver had been acquitted at Oxford, so the Bank prosecuted him again at Warwick, and upon this occasion he decided to plead guilty. He was sentenced to transportation. The inhabitants of Kenilworth petitioned on his behalf, but the committee rejected it. In the midst of an intense exchange of letters between Baldwin and the Bank, Kaye wrote that he had not "the smallest doubt of the guilt of Russell and Cleaver." Still, they seemed to be "instruments of more guilty persons," so the "Directors of the Bank authorized me to permit them to plead guilty to the transportable offence for having forged notes in their possession knowing them to be forged." They had declined the offer. "I cannot therefore," Kaye concluded, "represent them as fit objects for a pardon and when I inform you that this species of offence has lately so much multiplied that within the last 3 months we have tried 44 offenders I do not think you will be of opinion that pardons are lightly to be granted." "The fabricators and circulation of forged Bank notes," he lectured, "has lately become so systematic a matter of business that the security of the circulating medium of the country is seriously menaced and unless very prompt and active measures are taken to detect and punish the offenders, the most serious consequences may be the result." The matter did not rest here. Baldwin soon replied that many applications in these cases had come in from "persons of great mark and respectability, actuated by motives of humanity and a desire for justice." Plomer, he added, had put a great deal of effort into the details of the case, and Liverpool was inclined to grant a pardon. Baron Graham, the judge at the trial, indicated he would be satisfied if Russell were pardoned. Baldwin thought that Cleaver's innocence could be assumed. Kaye replied with scarcely concealed frustration. He responded bluntly, displaying no deference to the source of these requests. The Bank, he wrote, was being accused of prosecuting capitally innocent people. He vehemently denied the accusation. Thomas Glover, the Bank inspector, had traced the notes with great care from town to town. A number of notes had been uttered, though only four could be perfectly identified. Russell had actually confessed to going to Birmingham to buy notes, though this admission had not been used against him at his trial. The defenses now so vigorously mounted on behalf of the men should, Kaye argued, have more properly been presented at their trials. "I feel myself," he concluded, "called upon to state that this is the only instance within my experience (a period of twenty two years) in which it has been proposed to give a pardon to offenders prosecuted by the Bank." How would this look to the country, he asked? The Bank prosecution would be portrayed as "unjust and unwarranted." The result would be that dealers would hasten to employ people of this type again. It would impute "wrong conduct" on the part of the Bank in the execution of seven men in Lancaster. The nation would be the sufferer if such hasty and ill-considered mitigation prevailed.⁶⁴

Such high level contests over the exercise of mercy were rare. The steady stream of letters from the secretary of state's office to the Bank, asking what should be done with petitions for clemency, reveals how both the government and the judicial establishment deferred to the wishes of this most powerful of private prosecutors. The fact that so many pleas went directly to the Bank in the first instance shows that many of those convicted through the corporation's efforts knew where the power to determine the outcome lay. In 1808, for instance, Lord Hawkesbury (the future Lord Liverpool) wrote to the solicitors enclosing a petition from Edward Ball, a condemned man sitting in the Horsham gaol. The application contained the names of two members of Parliament and many Sussex magistrates, clergymen, and gentlemen. They asked that since the sentence had been respited on a point of law, that the prisoner should now not be executed. Such had been the usual practice, they pointed out, in many cases referred to the twelve judges. Winter, for the Bank, admitted in his response that the petition contained the signatures of the principal inhabitants of the county, but he indicated that the Bank did not intend to interfere on the man's behalf. The committee endorsed this decision, saying that the directors "considered it their indispensable duty to prosecute the prisoner capitally, and no circumstances have since come to their knowledge to induce them to alter their opinion."⁶⁵

In 1810, the solicitors received a letter from the secretary of state's office, saying that "Mr. Secretary Ryder" desired "that you report to me for his information the opinion of the Directors" with respect to a petition from William Weightman and John Neve, convicted at Litchfield for an offense against the Bank. Kaye replied saying that the Bank denied their application.⁶⁶ In the same year, Kaye reported to the committee on a petition, including the names of several members of Parliament, that had been submitted on behalf of Robert Welch. Henry Goulburn wrote to ask if any circumstances favored Welch. The Bank replied that he deserved death.⁶⁷ There was scarcely a case where the Bank was not consulted before any action was taken by government ministers. These exchanges are revealing. The Bank assumed that it had a right to a decisive say in what happened to the cases it prosecuted. It asserted this claim with unflinching regularity. Henry Grainger was able to interest "several noblemen, members of Parliament, magistrates, and respectable inhabitants" in his case in 1814. He had been convicted of possession of forged notes and sentenced to transportation. The solicitors pointed out that he was "a noted dealer" who had notes on him when detained. The Bank declined to interfere, even though Lord Sidmouth, secretary of state between 1812 and 1822, took an interest in the case.⁶⁸ Even when a petition succeeded, the Bank acted as a conduit for the operation of influence. Thomas Young, tried at Aylesbury in 1805, had refused to plead guilty to possession. He had been convicted on the capital charge. As he was guilty of a single utterance, the judge "intimated" that he wished the Bank to apply to the secretary of state for a pardon. He declined, however, to act directly; rather he sent the suggestion to the directors for their consideration. On this occasion, the committee granted the request and instructed Kaye to recommend to the government that he be transported for life.⁶⁹

Occasionally the solicitors spelled out more fully the assumptions and principles that guided the Bank in relation to the exercise of mercy. In October 1809, the Bank received a letter from Surrey concerning the case of Elizabeth Blackburn, who had accepted the offer to plead guilty to the minor offense. The author thought that she deserved further compassion, as she had acted for her husband. He also argued that leniency would be in order, as six ringleaders had been capitally convicted and four others had been sentenced to transportation. The solicitors told him to apply to the secretary of state, who would in turn forward the petition to the Bank. The corporation, they continued, would respond "either that the case is aggravated and they decline interfering, or that they are not aware of any circumstances that can render the exercise of royal clemency injurious." The application for pardon was supported by a letter from John Dent, MP for Liverpool. The solicitors wrote to Baldwin to say that nothing should be done. "So much attention," they assured him, "is uniformly paid to every case of a Bank prosecution, it can scarcely happen that an improper object is taken for punishment."⁷⁰

The Bank did not always oppose mercy, but it sought to make it a reward for extraordinary efforts undertaken to aid the corporation, and it insisted upon being the only channel for its expression. The solicitors, in 1803, reported to the directors that David Roberts had been capitally convicted at Gloucester. He was a young man of twenty-seven, with a good character. He had been, they suggested, the instrument of more artful dealers. The committee concluded that, "provided he will discover his associates, [it] thinks him so far an object of compassion, that it would not be improper for the Bank to interfere to save his life."⁷¹ William Duncan, awaiting execution in Lancaster Castle in 1816, sent extensive information to the Bank. In addition, he arranged for his wife to help detect others, and the entire family proved energetic in the cause. The directors were so pleased that not only did they support a request for a pardon, the solicitors agreed to write to the secretary of state for permission for Duncan's wife to travel with him.⁷²

What the Bank sought was control. This meant, in part, combating the inattention of government officials, overcoming local feeling, and defeating the pressure for mercy coming from wealthy and influential sources. The corporation pressed a claim to have a wider knowledge than other judicial figures of what actions were required to defeat the crime and of the true character of those it prosecuted. The men who made these decisions, in the first instance, were the solicitors. They presented their findings to a committee drawn from among the directors of the Bank. Not every director served on the Committee for Law Suits, but perhaps two-thirds did so at some point during their tenure at the Bank. Between 1802 and 1821, at least twenty-six different directors participated in making the day-to-day decisions about whom to prosecute and which offenders to send to their deaths. The governor and deputy-governor of the corporation were often present. The directors were influential men of business, leaders of the London financial community. They were drawn from "a group of tightly knit City families." Few of them actually served in Parliament, but many enjoyed the social and economic connections that linked them to the governing class. Their presence as directors probably owed more to birth than it did to ability; they were stolid and conventional rather than innovative. Little about their backgrounds, beyond, perhaps, the experience of serving on a jury, can have prepared them for the task they faced, making life and death decisions about hundreds of law-breakers.⁷³ These men had no expertise to bring to the struggle. Yet they did not hesitate when it came time to determine the fates of these men and women. The records of the Bank reveal no hint of dissent from the policy the corporation pursued. The Bank managed the gallows in a cold and calculating fashion. Certainly it often expressed unhappiness with suspension; it looked upon the business of punishing offenders with distaste. But there seems to have been no debate over the specific policies it pursued. What is striking is the extent to which the directors made decisions touching the lives of offenders as if they were simple business matters.

The directors were not deaf to appeals to humanity. On the contrary, they exercised a wide-ranging discretion which showed sensitivity to individual circumstances. In 1815, the solicitors received a petition from Samuel Gilbert, charged capitally with uttering. He claimed to have been the agent of another. He spoke of the pitiful condition of his pregnant wife and their four children, as well as that of his "respectable father and mother who were suffering the greatest anxiety and distress of mind in consequence of the petitioner's impending fate." He asked only that his life be spared. The Bank acceded to his request, permitting him to plead to the minor charge.⁷⁴ The Bank also responded to appeals for help. The corporation made a generous allowance for those in prison.⁷⁵ It sometimes helped to pay the legal expenses of those it prosecuted. It frequently responded to tales of distressed families deprived of a parent by its prosecutions. The directors seem to have drawn a sharp line between the duty that compelled them to administer the criminal sanctions with such unbending severity, and the call of humanity, which elicited a more generous response. The Bank showed its stern resolve when it rejected the petition of Edward Harland, which pleaded for mercy. Yet the directors displayed their sense of philanthropic obligation when, in response to a letter from a solicitor requesting assistance for an ill Mrs. Harland, and mentioning the plight of her children, they sent her £20.⁷⁶

The letters and petitions directed to the Bank bear eloquent testimony to its influence over the course of justice. From the humblest to the most influential members of society, they all submitted their appeals to the Bank directors. Each was weighed in turn by the directors. No one seems to have had more success than anyone else in altering the decision charted by the committee after consultation with the solicitors. This was how the directors understood their duty. The corporation had a profound conviction of its rights and privileges. It defended them tenaciously. It expected to be consulted about any case that involved its interests. At the same time, it was acutely aware of the legal conventions, which it claimed to respect scrupulously. The solicitors always denied a petition with the phrase that it did not choose to intervene, rather than saying that the corporation desired the death of a condemned individual. Yet no one was fooled by this feigned modesty. The tone of Bank correspondence told a different tale. In 1804, the solicitors wrote to Hawkesbury's secretary, Baldwin, to complain of administrative negligence in the treatment of one of their convicts, John Jarvis. "Let me know," the solicitors demanded, "whether the application of the Bank has been rejected as this is the first instance of their interference being disregarded." The letter went on to state the position of the Bank with respect to the entire campaign against forgery. "As they take upon themselves all the expense and trouble of these kinds of prosecutions, they are of course competent judges of a proper case to recommend for mercy and they have never been accused of abusing the confidence which has been hitherto reposed in them." In a revealing gesture, Baldwin hastened to reassure the solicitors that "the application of the Directors of the Bank has and you may be assured always will receive the attention which is justly due." Jarvis, he added, would be handled as the Bank directed.⁷⁷ Baldwin's eagerness to appease the Bank is powerful testimony to the unrivaled influence it exerted. Only the desperate appeals from those awaiting death spoke more loudly.

V. Confronting Opposition to Its Policies

According to our usual account of eighteenth-century justice, the Bank's procedures should have encountered various obstacles and aroused serious opposition. Judges might have expressed unhappiness with the spectacle presented by this all-powerful corporation making decisions that entrenched on their own discretion. Equally, ministers might have expressed displeasure at the Bank's efforts to control the royal prerogative of mercy. Most especially, one looks for jury resistance to a policy that aimed to curtail the independent action of this all-important body. One can find instances of rebellion against what was perceived as the high-handedness of the Bank. Yet the overall picture is one of compliance with the corporation's policy and, more often, of cooperation with it. And such complaints as there were seem seldom to have frustrated the Bank in its pursuit of its judicial goals. Its extensive discretion, exercised over nearly twenty-five years, met with only scattered opposition. Kaye, writing in 1818, hastened to point out that in no instance, in fifteen years of operation, had any judge disapproved of or censured its employment of the guilty plea.⁷⁸ For the most part, and at all levels, both the authorities and the wider public deferred to the Bank in the means it employed to deal with forgery.

One episode, in 1814, exposes both the tensions relating to Bank practice and the firm way in which the corporation dealt with them. In September, the committee decided that Charles Beales and James Cross, detained for uttering notes in Norfolk, would be prosecuted with permission to plead the lesser charge. They did so. After the assizes, they evidently decided that they had made a mistake. The Bank's first response to their plea of having misunderstood their situation was to say that if the men had wanted to advance a claim of innocence, they should have done so at their trials. In a somewhat tortured sentence, Kaye denied having held out any inducement to lure the men into pleading guilty. "We could have no wish," he wrote, "that the prisoners should plead guilty to the minor offence in order to avoid being tried on the capital charge (the conviction or acquittal of the prisoners being equally indifferent to us as long as the public justice of the country was satisfied)." The solicitors said that while they would not stand in the way of an appeal to the secretary of state, neither would they support it. They concluded by asking that all "correspondence may here cease." It was not to be. In April 1815, Lord Wodehouse took up their cause. He expressed the great concern of the prisoners' parents and neighbors about the severity of the sentence. Still, he cautioned that he would do nothing unless it was in concert with the Bank. Kaye responded immediately that he had no reason to doubt the guilt of the men and pointed out that in pleading guilty the prisoners "were relieved" from the danger of the gallows. In May, the two men, through two Norwich solicitors, sent a petition to the Bank seeking mitigation of their sentences, along with affidavits attesting to their good characters. They repeated their claims of innocence and offered a different story of how they came to accept the Bank's offer. Wodehouse once again took up their cause, expressing his conviction that, at the very least, he believed Cross to be innocent, and he hoped to see his sentence "entirely remitted." Kaye replied to Wodehouse with a courteous letter that carefully reprised the Bank's deliberations. He was considerably more abrupt in his response to the Norwich solicitors, perhaps because they had cast aspersions on his conduct. "You cannot," he wrote, "expect the governor and directors to reconsider their determination merely on account of your entertaining a different opinion." Somewhat more respectfully the directors rejected an appeal from Norwich bankers meant to aid the men. Neither aristocratic interest nor commercial interference swayed the corporation in its determination to defend its process.⁷⁹

At several revealing moments, in the trying period after 1815, the Bank faced more serious challenges. The first of these arose in connection with a forgery case in Scotland. In 1817, the solicitors exchanged letters with agents in Edinburgh concerning a forgery prosecution there, expressing their unfamiliarity with Scottish custom in such cases. The exchange was unusual for its frankness about Bank practices. While recognizing the different circumstances, the solicitors proposed following their practice in England of offering the suspect the opportunity to plead guilty to the lesser charge. "This mode of proceeding," the solicitors confidently wrote, "is very frequently adopted before our judges, both at the Old Bailey and on the circuit, and we should presume your judges will see no objection to it. Should the prisoner decline pleading guilty to the minor offence he must be tried on the capital charge." The Bank's agent, in welcoming the firm line taken by his superiors in London, expressed openly the relief that they would escape the necessity for a trial. Juries composed of Scottish farmers, he complained, did not think anyone should hang for forgery.⁸⁰

This unfamiliarity with Scottish practice, perhaps predictably, led to conflict two years later. The difficulty originated because Scotland, unlike England, had an office of public prosecutor that "monopolized all serious criminal prosecution."⁸¹ In 1819, a forgery case caught the attention of the Lord Advocate. He complained to Lord Sidmouth that, without consulting him, the Bank had secured a confession from a woman by promising a lesser sentence. This course seemed high-handed, as well as an infringement on his authority. Sidmouth, in turn, sent an angry note to the directors, warning them to halt "the flagrant impropriety" of inducing prisoners to confess by a threat of prosecution on the capital charge. He instructed the corporation to issue "such positive and preemptory instructions to your agents as shall prevent the recurrence of a practice which is calculated to bring the administration of justice into disgrace and contempt."⁸² Sidmouth was particularly annoyed because this was not his first confrontation with the Bank over its practices. In 1818, he had characterized the corporation's manner of proceeding as "extremely unusual and as he believes unprecedented." He went on to say that the Prince Regent would "not approve of the prisoners having been induced to plead guilty, by an assurance which compromised the Royal prerogative, [which] is likely if drawn into precedent, to be attended with serious inconveniences, not only to the public, but to the Bank of England itself."⁸³

Sidmouth, here, may have been echoing a shift in public opinion toward the Bank and its activities, especially in London, that occurred after 1815. The corporation's responsibility for hanging a growing number of forgers and compelling even more to plead guilty earned it scathing comment in the radical press.⁸⁴ In 1816, a Bow-street officer, George Vaughan, was detected in a "blood money" conspiracy. Though the case that brought about his downfall did not involve the Bank, Vaughan had often been employed by the corporation and was a frequent recipient of the substantial rewards it distributed in this period. The directors felt compelled to drop six prosecutions in the aftermath of the scandal.⁸⁵ Defense counsel in forgery cases sometimes tried to suggest that the Bank witnesses had an interest, financial or personal, in the success of a prosecution. The Vaughan episode lent substance to this accusation. Looking back several years later, the solicitors explained that 1817 and 1818 saw difficulties for the Bank because "political feeling was much excited." The press and opposition politicians painted the corporation in the darkest terms and raised persistent questions about the way in which it pursued its campaign against forgery.⁸⁶ The crisis came to a head in December 1818, when a prisoner at the Old Bailey was acquitted because the jury did not believe the proof offered by the Bank that the note shown to them was, in fact, a forgery. Counsel for the corporation pointed out to the jury that in dismissing the evidence presented, it acted directly contrary to a specific decision delivered by the twelve judges. The damage done by this acquittal was substantial. Suddenly, nine prisoners in Newgate, emboldened by a glimpse of a new avenue of escape, petitioned to withdraw their guilty pleas. The corporation's legal strategy appeared to be in shambles, at least in London. The threat was all the greater because this period saw a shift in the center of forgery from the north, particularly Lancashire, to the Metropolis. The number of cases surged to new heights. Indeed, one can sense that the Bank was bending under the burden. It relied more heavily than ever upon the guilty plea. When the corporation presented statistics to Parliament, the figures showed that for London alone 84 had pled guilty in 1818, 76 in 1819, and 145 in 1820.⁸⁷ Not surprisingly, the Bank moved swiftly and decisively to repair the breach. It did so aided by the actions of the judges, who put considerable pressure on the accused to conform to their initial agreements. They pointed out the likely fate of those who risked a trial on the capital charge. Their stern words made clear that they stood ready to lean on recalcitrant juries.⁸⁸ For the most part, judges had proved reliable allies in the development of the Bank's legal strategy for coping with forgery. They had not questioned the legitimacy of the corporation's mode of proceeding in securing the guilty plea. They repeated the familiar phrases about the seriousness of the crime demanding the full force of the law. At the Lancaster Assizes in 1818, Chief Baron Richards solemnly announced that, despite the number of recent executions, the crime continued to increase. He therefore felt compelled to pass sentence of death on seven prisoners convicted of the crime. "It is," he affirmed, "necessary that examples should still continue to be made."⁸⁹

By 1819, it was clear that the challenge had been successfully confronted. Freshfield wrote from the Lancaster spring assizes a series of daily reports on the progress of the Bank prosecutions. He began in despair; the cases seemed more confused than usual, and he feared that the two McCormicks, Thomas Exton, and Ellen Barrett would all be acquitted due to defects in the cases. James Grimes the elder had persisted in pleading not guilty. By the second day, however, he felt more optimistic. True, Exton had been acquitted, but only because the committing magistrate was near death and so did not attend. Barrett changed her plea at the last minute, as did the McCormicks. Grimes was capitally convicted. The trials of Clarke and Drake took almost the entire day, yet one can hear Freshfield's sense of triumph as he reported that "the jury scarcely turned around" before returning a guilty verdict. Clarke had begged to be permitted to plead guilty. He was in a desperate state after he heard the verdict. Freshfield reported that Clarke still clung to hope of a reprieve, though the solicitor had warned him it would do no good. The Committee for Law Suits endorsed this judgment in rejecting his petition for mercy.⁹⁰

By 1820, the Bank was prosecuting over four hundred cases. The management of so much legal business strained but did not overwhelm the corporation's legal resources. The ability to secure guilty pleas made it possible for the Bank to carry on in the face of this challenge. It defended its legal course all the more tenaciously, and it struck hard at those who persisted in declining its offer. The Bank was responsible for eighteen executions in 1820, and a further thirteen in 1821. The corporation was not cowed by the unpopularity it earned as a result. Its influence was no less extensive, and its pursuit of its ends no less relentless, at the end of its campaign than at the beginning. Even with the end of suspension in sight it pressed ahead. In 1821, the corporation received a petition from the parents of Joseph South, in Moorfields, pleading for the life of their sixteen-year-old son. They asked only that he be permitted to plead guilty to the minor charge. They had paid most of his notes themselves, they said, and they were supported by a letter from the boy's employer. The solicitors reported to the committee that the boy had twice been in custody and each time enjoyed the Bank's leniency. He could expect nothing now, they added. Sidmouth wrote to ask that Kaye call upon him and bring the briefs in the case. Nonetheless, the boy was executed.⁹¹ The end of suspension did nothing to moderate the Bank's determination to enforce its notion of what the law demanded. In 1823, Samuel William Miles, a youth of nineteen, was tried at the Old Bailey for uttering a forged five pound note. Though he was capitally convicted, the jury recommended mercy on account of his age. His father wrote to the Bank, but the directors rejected the petition. The king was more sympathetic; he was eager to save the boy. Peel, now Home Secretary, stood out against a pardon. He wrote to Eldon, enclosing a letter from the Bank. Peel expressed the belief that if people who employed others to pass forged notes discovered that youth secured protection against the gallows, they would make use of many more of them to circulate the forgeries. Peel was ready to resign if the king granted clemency. The king, faced with the united opposition of Bank and Home Secretary, gave in, expressing his sorrow that there were no circumstances that permitted mercy.⁹² With Peel at the Home Office, the Bank had acquired not only a stalwart defender of its judicial policies, but also an ally who perfectly shared the sentiments and logic that had made the gallows central to the campaign against forgery.⁹³

VI. Continuities, Departures, and Debates

This study of the Bank of England's use of the gallows in the early nineteenth century cuts across the grain of the debates about the character of English justice during the long eighteenth century. Much of the explanation for this distinctiveness has to do with the identity of the main actor in the drama, the most powerful and influential corporation in the country. Both the scale of the challenge presented by forgery, and the fact that the Bank was the principal prosecutor, worked to make this episode unique and remarkable. Political controversy swirled around the corporation's activities, reinforcing the impact of the extensive newspaper coverage of the campaign against the crime. Executions for the forgery of bank notes had a significant impact on overall execution rates in the second decade of the century. At a critical moment in the history of capital punishment in England, this episode dramatically influenced the course of the debate. As so often in such cases, Bank actions looked both backward and forward. The company based its conduct upon the broad discretionary powers distributed so widely throughout the eighteenth-century legal system. Yet in imposing an extensive measure of control over decision making, the strategy pursued by the Bank pointed to the more carefully regulated penal regime that characterized the nineteenth century. Extraordinary in so many ways, still this tale has much to tell us about the assumptions and practices that marked the operation of justice in a period of controversy over the criminal law.

Did the Bank create a new practice of death during the years between 1797 and 1821? The answer must be both no and yes. When the Bank promoted a statute covering a very particular crime, the possession of forged bank notes, it was doing no more than other economic interests had done in securing penal legislation throughout the century.⁹⁴ Similarly, the central place of death in the broader strategy for dealing with the criminal threat mirrored the practice of the authorities over the entire period. Moreover, the fact that extra-judicial figures had a significant role in shaping the course of justice is also unsurprising. Eighteenth-century justice, Peter King reminds us, was "shot through with discretion." Juries returned partial verdicts, redefining offenses or undervaluing property as a way of reducing the penalty imposed on the offender. Magistrates offered lawbreakers Crown witness status in an effort to secure their cooperation in the detection and prosecution of accomplices. Petitioners from many classes sought to sway the authorities by their pleas on behalf of the convicted. Judges and the Crown selected who among the condemned to save and who to leave for execution. Most important, King claims, "in the unfolding drama of most property crime prosecutions, the central role was played by the victim."⁹⁵ What was unusual in this instance was the presence of the Bank as the prosecutor, an institution with resources and influence far beyond what any individual could possess.

The Bank directors and solicitors did not imagine that they were doing anything novel as they scrambled to find means to cope with the unexpected challenge presented by forgery. The identity of these men as businessmen and civil lawyers argues against a portrayal of them as innovators. The strength of the Bank lay in its organization, resources, and prestige, not in a capacity for creating new arrangements for dealing with crime. Furthermore, the speed with which the agents for the corporation developed their strategy, and the ease with which they gained the cooperation of a wide range of officials, suggests that the measures adopted conformed to assumptions and expectations shared more generally by those engaged in the operation of justice. In all of these respects, the Bank's actions present a picture of continuity with earlier practices.

Yet this conclusion scarcely tells the whole story. For even as the Bank's conduct broadly conformed to a well-established pattern, in crucial respects it pressed at the borders of acceptable behavior. Most obviously this was the case with the guilty plea that the solicitors coerced from the accused. Their pose of scrupulously observing legal proprieties in these instances was an acknowledgment of the force of such conventions. While the judges went along with the charade, few observers were fooled by the nature of the bargain being made. Persistent if ineffective criticism of the corporation's tactics suggests that the public recognized the novelty of the procedure. Still, the more striking departure was the regularity and steadiness of purpose that the Bank brought to the exercise of capital justice. The corporation was unparalleled in the systematic way in which it employed its wide discretion and in the tight control its solicitors and directors exerted over all aspects of its campaign against forgery. Its agents viewed the haphazard application of mercy, in particular, as a threat to their carefully orchestrated program of intimidation. This calculation produced a paradoxical outcome; while the Bank strenuously asserted its own privileges as a prosecutor, it sought to circumscribe or defeat the discretion of everyone else.

In crucial respects, this picture of the Bank's activity coincides with Hay's description of eighteenth-century justice. The terror of the gallows lay at the heart of the corporation's strategy for coping with forgery. A powerful corporation demonstrated an ability to get its way with the courts and the ministers of the Crown. It deliberately exploited the interplay of terror and mercy to advance its own agenda. Certainly the Bank's willingness to ride roughshod over other actors in the judicial process ill accords with the more benign portraits of the period's justice. All of this was done in the name of the defense of property and England's commercial survival. For nearly twenty-five years the Bank pursued a single-minded policy of manipulating death to secure its own objectives, and, for the most part, it did so with the acquiescence of the public and the authorities. At least selectively, it would seem, English justice gave the prosecutor great power "to make the law serve his own purposes."⁹⁶

Nonetheless, this episode amounts to something less than a full endorsement of Hay's claims. There are simply too many peculiar features to the case to make it an illustration of a general rule. The Bank, for instance, justified its severe measures on the basis of the special character of its bank notes. Their value lay in the fact that they were unlike other forms of property. Similarly, the corporation showed little inclination to consult with other economic interests as it pursued its chosen course. It displayed scant regard for public opinion. Indeed, it exhibited an extraordinary arrogance when it came to asserting what it saw as its own privileges. The Bank managed death because of the distinctive benefits it derived from the terror the gallows aroused in those with whom it negotiated. Far from having an interest in the majestic exercise of justice, this management of death was more pedestrian. It represented a hard-headed employment of the gallows for the immediate advantages such a practice brought. Central to Hay's description of eighteenth-century justice is the argument that its most important function was ideological, that it earned legitimacy in the eyes of a wider public. The Bank, on the contrary, displayed little concern for how its conduct was viewed. It was unbending in the defense of its strategy for coping with crime in the face of mounting unrest, not only that expressed by lower class radicals, but also that voiced by representatives of commercial and religious opinion. It resisted the patronage of the well-connected, and it frustrated the efforts of those benevolently disposed toward the figure of the condemned forger. Throughout the suspension period, the Bank acted, not in the interests of a class, but rather to advance its own corporate interests.

The Bank's pragmatic and limited attitude toward the death penalty is a revealing reflection on the status of the death penalty in the era of criminal law reform. Scholars have frequently portrayed the gallows as a crude instrument, an extravagant and messy exercise of power. They have, sometimes, resorted to hyperbole to describe death as the last, most awful recourse of a state with few other defenses against an unruly population. Bank practice, however, reveals the management of the gallows in another light, as a more subtle and flexible operation.⁹⁷ The infliction of death was managed to secure more modest goals than the crude intimidation of the lower orders. There was often a frighteningly mundane quality to the negotiations and calculations that went on when the solicitors and directors selected who was to be pardoned and who sacrificed. The practical advantages that derived from the calculated employment of the gallows help to explain why powerful interests saw the death penalty as too valuable to be dispensed with, especially at a time when police arrangements seemed undeveloped or incapable of further improvement. The Bank lent support and encouragement to Peel in his struggle to curtail criminal law reform. The directors stubbornly resisted giving ground over the question of capital punishment for forgery. They looked upon reform as misguided, as a foolish attempt to disarm the law. Peel echoed this view when he announced in Parliament, in 1830, that he "must deprecate the sudden and entire cessation of the punishment of death for forgery." He stressed his conviction that "this punishment of death had checked the crime"; his many years of experience "was in favour of the law as it stood."⁹⁸ Neither Peel nor the directors had much patience with humanitarian complaints against the gallows or arguments that the existence of the death penalty for forgery made convictions impossible.⁹⁹ They did not recognize themselves in the harsh caricatures drawn by the reformers of the defenders of the status quo. The gallows, they claimed, was a practical and necessary penalty; it was defensible in terms of its useful contribution to policing and justified by the nature of the threat faced by the Bank and nation. Its utility was far from exhausted; the corporation could point with some satisfaction to its own largely successful experience with capital punishment. Like Peel, the Bank had come to the conclusion that what was required was a more careful management of death, not the overthrow of the gallows regime.

Table 1. Account of persons prosecuted, convicted, and costs

Year	Total prosecuted	Capital convictions	Convictions for possession	Costs of prosecutions in pounds	Forged notes

1797	2	1	0	1538	901
1798	12	11	0	4130	1779
1799	15	12	0	5705	2058
1800	44	29	0	12,753	3947
1801	54	33	1	11,349	7674
1802	63	32	12	15,618	5018
1803	9	7	1	3861	3217
1804	25	13	8	6148	3311
1805	28	10	14	9873	3543
1806	10	0	9	2849	4008
1807	45	16	24	11,844	4866
1808	34	9	23	8136	4719
1809	68	23	29	16,414	6281
1810	29	10	16	8070	5341
1811	33	5	19	7236	8492
1812	64	26	26	15,752	17,290
1813	65	9	49	15,306	14,565
1814	47	5	39	10,952	14,446
1815	63	7	51	13,818	16,079
1816	120	20	84	25,971	23,442
1817	142	32	95	29,910	29,521
1818	260	62	165	19,892	28,351
1819	228	33	160	31,400	23,906
1820	404	77	275	50,292	30,217
1821	239	41	180	31,460	18,955
1822	16	16	0	2692	3756
1823	7	6	0	1189	1667
1824	5	5	0	539	970

Source: Parliamentary Papers 1821 (264), xvi; also various Bank accounts contained in Roehampton box F1. The Bank also kept a return of persons committed to trial between 1809 and 1829. Bank of England, F2/120. There are some slight discrepancies in the numbers provided by the different sources. The sum for the costs of prosecution does not include money spent on the Bank policing effort. The count of forged notes includes only those returned to the Bank.

Randall McGowen is a professor of history at the University of Oregon <rmcgowen@uoregon.edu>. He thanks John Beattie, Peter King, Michael Lobban, and Simon Devereaux, as well as the anonymous reviewers for Law and History Review, for their comments on this essay. He would also like to acknowledge the assistance of the archive staff at the Bank of England, Henry Gillett, Sarah Millard, and Jenny Ulph. This essay was written with support from a short term grant from the American Bar Foundation and a fellowship from the National Endowment for the Humanities. Some of the archival material upon which this essay is based was destroyed by the Bank of England, subsequent to his examination of it.

Notes

^1. Douglas Hay, "Property, Authority and the Criminal Law," in Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon Books, 1975), 17, 62–63, and more generally, 17–63.

^2. Peter King, Crime, Justice and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000); John Beattie, Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986), esp. chap. 8; Thomas Green, Verdict According to Conscience (Chicago: University of Chicago Press, 1985), chapter 7; An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. John Brewer and John Styles (New Brunswick, N.J.: Rutgers University Press, 1980), 20. For a review of the arguments between scholars and a judicious summary, see Joanna Innes and John Styles, "The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England," in Rethinking Social History, ed. Adrian Wilson (Manchester: Manchester University Press, 1993), 201–65.

^3. Peter King, "Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800," The Historical Journal 27 (1984): 25–27. For the fullest investigation of the meaning of the gallows, see V. A. C. Gatrell, The Hanging Tree (Oxford: Oxford University Press, 1994).

^4. For a dramatic description of the background to this decision, see John Ehrman, The Younger Pitt: The Consuming Struggle (Stanford: Stanford University Press, 1996), 3–32. John Clapham, The Bank of England (Cambridge: Cambridge University Press, 1944), 1:257–72.

^5. For a discussion of the coining networks who rapidly turned their attention to the forgery of Bank of England notes, see John Styles, "'Our Traitorous Money Makers': The Yorkshire Coiners and the Law, 1760–83," in Ungovernable People, 172–249; Gwenda Morgan and Peter Rushton, Rogues, Thieves and the Rule of Law (London: UCL Press, 1998), 82–84.

^6. The precise status of the Bank of England in relation to the government was a subject of much controversy throughout the period. Every commentator granted that the Bank occupied a unique place in the economic life of the country. There was much disagreement over whether its influence was entirely beneficial. Some authors worried that the government interferred too much in its operation, while others expressed concern that the Bank had an excessive voice in shaping public policy. Throughout the suspension period there was the widely expressed suspicion that the corporation was profiting unfairly from the circulation of its paper. The Bank sometimes appears to have believed that it was a more reliable protector of the national interest than the government. Pitt's relationship with the corporation was particularly fraught. He felt compelled to remind the Commons that "it was also a private joint-stock commercial organization trading and seeking profit on its own capital resources." This division between its public responsibilities and private governance explains why the officers of the Bank could appeal to its unique obligations in justifying the severe measures it adopted for dealing with forgery, while at the same time insisting upon the corporation's privileges and need to control the prosecution and punishment of offenders. H. V. Bowen, "The Bank of England during the Long Eighteenth Century, 1694–1820," in The Bank of England: Money, Power, and Influence, 1694–1994, ed. Richard Roberts and David Kynaston (Oxford: Clarendon Press, 1995), 11, and more generally, 1–18; Boyd Hilton, Corn, Cash, Commerce (Oxford: Oxford University Press, 1977); Frank Fetter, Development of British Monetary Orthodoxy (Cambridge: Harvard University Press, 1965).

^7.Morning Chronicle, March 12, 1798; Old Bailey Sessions Papers (hereafter OBP) (www.oldbaileyonline.org), William Stinson, April 18, 1798, case t17980418–2.

^8. For a fuller description of this police campaign, especially of the role of rewards in the effort, see Randall McGowen, "The Bank of England and the Policing of Forgery, 1797–1821," Past and Present 186 (2005): 81–116.

^9. OBP, Elizabeth Brown, April 18, 1798, case t17980418–1.

^10. OBP, Charles Linsey, June 19, 1799, case t17990619–20.

^11. Bank of England, Roehampton, box F420. On the difficulties faced in these prosecutions, see Randall McGowen, "Forgery Discovered, or the Perils of Circulation in Eighteenth-Century England," Angelaki 1 (1993–94): 113–29; "Knowing the Hand: Forgery and the Proof of Writing in Eighteenth-Century England," Historical Reflections 24 (1998): 385–414.

^12. OBP, Edmond Lovell, February 14, 1798, case t17980214–3.

^13. OBP, John Aikin, April 18, 1798, case t17980418–7.

^14. Bank of England, Roehampton, box F14.

^15. Bank of England, Roehampton, box F12.

^16. Bank of England, Roehampton, box F6.

^17. Bank of England, Roehampton, box F22.

^18. Bank of England, Roehampton, box F17.

^19. The Bank took the unusual step of paying the bill of £78 12s. 6d. The sum included £10 for conveying the condemned to the place of execution, £2 17s. for the iron-work of the drop, £10 for eight javelin men, and £2 2s. as the executioner's fee. Freshfield's own charges included a visit to choose the site for the platform, a trip to the Earl of Aylesbury to secure the presence of a troop of yeomanry as a guard against an expected rescue attempt, and costs associated with his trip to Warwick to accompany the prisoners to Birmingham. Bank of England, Roehampton, box F257. On the aftermath of the execution, see Peter Cook, "William Spurrier and the Forgery Laws," Holdsworth Law Review 17 (1995): 44–55.

^20.Morning Chronicle, March 29, 1798. Complaints about the quality of the bank note were a regular feature of the press coverage of suspension. While a few improvements were made in the first years of the period, with a temporary impact on the level of forgery, the Bank resisted the call to radically redesign its notes.

^21. Bank of England, F2/162.

^22. Bank of England, Roehampton, box F12.

^23. Committee for Law Suits, M5/307, May 7, 1805.

^24.Parliamentary Papers 1818 (297), xvi, 171. The directors concluded that the expenses charged by the solicitors were not unreasonable, "when they consider the immense number of prosecutions that have been carried on, the various parts of the country to which it has been necessary to travel, the great labour and fatigue undergone by the solicitors, themselves and their confidential clerks, by night, as well as by day, the arduous and painful situations in which they have been placed, from the delicate nature of the momentous concerns entrusted to their care; and that all this business cannot have been transacted without employing an extra number of clerks, and those retained and paid in an extraordinary manner." Minutes of the Court of Directors, Ba, 212–13, June 10, 1802.

^25. Eighteenth-century legislation had punished capitally both the making of a forged instrument and the act of uttering or putting off the note. Since there were seldom witnesses to the fabrication of the note, most convictions were for uttering. The Bank was creating a new offense with this measure. Nonetheless, the vast majority of those whom it prosecuted had been detected in putting off forged notes.

^26. 41 Geo. III c. 39; Bank of England, F8/49.

^27.Commons Journal, 1801, 221, 266–67, 341, 372, 385. Bank of England, F8/49.

^28. Bank of England, Roehampton, box F16. In recognition of the challenges that lay ahead, the Bank made one other significant change, this one in its institutional structure. In July 1802, it created a Committee for Law Suits, composed of several directors, along with the governor and deputy-governor of the corporation. The solicitors continued the day-to-day police operations, but the final decision about who to prosecute, what charge to press, and how to respond to petitions rested with the committee. While the board normally accepted the recommendations offered by the solicitors, this structure made clear that final responsibility belonged to the corporation. This arrangement was particularly important in capital cases. When Randle Jackson challenged the directors, at a meeting of the proprietors of the Bank, to explain whether one person was responsible for decisions in criminal cases, the answer he received was that the entire board decided. The Bury and Norwich Post, September 23, 1818.

^29. Bank of England, F2/155.

^30. The notion that this measure was intended to deal specifically with the emergency created by suspension gains support from the fact that the corporation stopped prosecuting for possession in 1821 and only revived the charge briefly when it again issued small denomination notes in 1826 (4 cases) and 1829 (1 case). In 1830, in looking back over the preceding decades, the solicitors wrote that the policy had been adopted in cooperation with the judges and counsel. All agreed, they wrote, on "the expediency of avoiding so many public trials." Bank of England, F8/26.

^31. Committee for Lawsuits, M5/307, July 7, 1802. This was the first meeting of the committee.

^32. Beattie, Crime, 336–37, 346–47, 365–66, 446–47; George Fisher, "The Birth of the Prison Retold," Yale Law Journal 104 (1995): 1275–76; John Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), 219–21; John Langbein, "Understanding the Short History of Plea Bargaining," Law and Society Review 13 (1979): 261–70; King, Crime, 225–26. This occasion was scarcely the first instance of a capital statute being used as a form of coercion to aid in the detection and prosecution of elusive offenders. John Beattie suggests that this was the motive behind the Shoplifting Act of 1713, which aimed less at the servants explicitly targeted by the act than at the receivers who were supposed to have encouraged them. "London Crime and the Making of the 'Bloody Code,' 1689–1718," in Stilling the Grumbling Hive, ed. L. Davison et al. (New York: St. Martin's Press, 1992), 67–69.

^33. Bank of England, Roehampton, box F352. In an undated memo, written after the suspension period, the Bank once again denied exercising an "undue influence" in getting offenders to plead guilty. Bank of England, F8/26.

^34. The French visitor, Charles Cottu, was struck by the operation of this procedure. He interpreted it as an instance of the humanity of English justice. "In this situation, when the accused is standing at the bar, in order to take his trial, the counsel for the bank asks the counsel for the prisoner if his client be willing to plead guilty to the second indictment, which only involves transportation; promising him that in that case the bank will relinquish the prosecution of the first, which is a capital crime. If the accused acquiesce in this proposition, he is immediately found guilty on the second indictment, on his own confession; and with regard to the first, the counsel for the bank informs the jury that he does not intend to bring forward his witnesses, and they consequently return a verdict of not guilty, for want of evidence. Nor does this sort of transaction take place secretly, or in a corner, but, incredible as it may appear, in open court, in the face of the public, the jury, and the judge." What impressed him, when he described the case of a woman who declined the Bank's offer, was the gentle persuasion exerted by all those around the prisoner urging her to save her life, rather than what might have struck an English person, the tremendous pressure applied to make her forego a jury trial. "M. Cottu on the Criminal Code of England," Pamphleteer, 1820, 52–53, 56.

^35. Bank of England, Roehampton, box 352. Perhaps the clearest evidence of the Bank's caution around this topic is that, despite compiling thorough statistics on those it prosecuted and the outcome of trials, it refrained from keeping any records of those actually executed. I have been unable to find such statistics in the Bank's voluminous archives. This refusal, actually offered to Parliament, points directly to the Bank's desire to avoid lending any substance to the charge that it determined the fate of those who were capitally convicted.

^36. Committee for Law Suits, M5/307, July 28, 1802. William Stocker (OBP, t18020428–126) and Edward Walsh (OBP, t18020428–127) were the first offenders permitted to plead guilty at the Old Bailey, April 28, 1802.

^37. Bank of England, Roehampton, box F183. In 1817, in the midst of a rapid rise in the number of forgery cases, the Bank permitted some of those prosecuted capitally to plead guilty on the understanding that they would be transported for life. Committee for Law Suits, M5/318.

^38. Henry Brougham, in 1830, told Parliament that "the Directors of that Company only brought forward cases in which they felt confident that they could obtain convictions. Their conduct had been unpopular in this respect, and they would now even withdraw after having commenced proceedings if they saw the least chance of being defeated." Parliamentary Debates, n.s. 1830, 1058.

^39. Bank of England, Roehampton, box F29. While anyone who had taken a forged Bank of England note might have prosecuted the person who had uttered it, the cost of such a prosecution represented a powerful disincentive to taking action independent of the corporation's directions.

^40. Committee for Law Suits, M5/307, January 3, 1805.

^41. Committee for Law Suits, M5/307, August 20, 1805.

^42. Committee for Law Suits, M5/316, February 22, 1816.

^43. Committee for Law Suits, M5/321, October 23, 1818, October 30, 1818.

^44. Committee for Law Suits, M5/324, January 17, 1821.

^45. See McGowen, "Policing," 81–116.

^46. Committee for Law Suits, M5/313, May 12, 1813, May 26, 1813, July 28, 1813. In fact, Dale did not plead guilty at the July sessions at the Old Bailey. Instead he was tried and convicted of possession and sentenced to fourteen years transportation. OBP, Henry Dale, July 14, 1813, case t18130714–53. He petitioned the Bank to support his application to take his wife and children with him, but the directors rejected the request.

^47. Bank of England, Roehampton, box F183.

^48. Committee for Law Suits, M5/317, October 24, 1816. When he asked that he be spared prosecution entirely, his appeal was rejected (April 3, 1817). After his trial he wrote pleading for further mitigation, as he feared for his life among the convicts at Botany Bay. The request was rejected. M5/319, May 29, 1817.

^49. Committee for Law Suits, M5/319, June 26, 1817, July 3, 1817.

^50. Bank of England, Roehampton, box F23.

^51. Bank of England, Roehampton, box F19. They did, however, send him two or three guineas for the offer.

^52. Bank of England, Roehampton, box F21.

^53. Bank of England, Roehampton, box F22. The Bank officials often lectured magistrates and constables on aspects of practical policing. In 1804, a Bristol alderman wrote to say that a man awaiting death had given him the name of a note manufacturer. The solicitors responded that nothing he could say would help as "knowing who fabricates notes without being able to take them is not much help."

^54. Bank of England, Roehampton, box F27.

^55. Bank of England, F8/26.

^56. Committee for Law Suits, M5/317, August 1, 1816. After his conviction, he again petitioned the Bank, asking for its intercession with the prince regent. The directors refused to act on his behalf.

^57. Committee for Law Suits, M5/315, March 9, 1815, March 16, 1815.

^58. Committee for Law Suits, M5/314, September 9, 1813, October 6, 1813.

^59. Committee for Law Suits, M5/307, March 19, 1805.

^60. Committee for Law Suits, M5/313, July 7, 1813, August 18, 1813; OBP, William Hughes, July 14, 1813, case t18130714–61.

^61. Committee for Law Suits, M5/314, February 23, 1814, May 24, 1814.

^62.Annual Register, 1820, 511–12.

^63. Committee for Law Suits, M5/325, April 18, 1821. The Bank could be equally relentless with respect to those who appeared to escape its justice. Mary Robinson, alias Singleton, after declining the usual offer, had been tried at the Old Bailey in December 1820 and was acquitted of uttering. In 1821, the Bank once again proceeded against her for another instance of the crime. She was offered the liberty to plead guilty. This time she accepted the invitation and was transported for fourteen years. OBP, Mary Singleton, December 6, 1820, case t18201206–50, April 11, 1821, case t18210411–15; Committee for Law Suits, M5/325, March 23, 1821.

^64. Committee for Law Suits, M5/308, March 23, 1809, May 4, 1809; Bank of England, Roehampton, box F30. For the fullest account of the Home Office procedures for handling appeals, see Simon Devereaux, "The Criminal Branch of the Home Office, 1782–1830," in Criminal Justice in the Old World and the New, ed. Greg Smith et al. (Toronto: Centre of Criminology, 1998), 270–308.

^65. Bank of England, Roehampton, box F26; Committee for Law Suits, M5/308, April 6, 1808.

^66. Committee for Law Suits, M5/309, May 1, 1810. In 1816, Philip and Charles Froud, awaiting transportation, sent in a petition asking permission to take their wives and children with them. They reported making application to the secretary of state, "who signified that the Bank's consent must first be obtained." In this instance, the Bank lent its support. Committee for Law Suits, M5/317, November 21, 1816. The Bank exercised the utmost vigilance over the final disposition of every case that touched its interests. In 1808, the committee considered the petitions of John Robinson at Bristol and Samuel Hulbert at Monmouth, each of whom asked that instead of transportation, he be permitted to enlist in the navy. Both pleas were rejected. As he did on several occasions, Kaye applied to the secretary of state to ensure that the convicts were transported to New South Wales as soon as possible. Committee for Law Suits, M5/308, June 23, 1808; see also M5/317, May 9, 1816.

^67. Committee for Law Suits, M5/310, September 27, 1810.

^68. Committee for Law Suits, M5/314, July 14, 1814, July 26, 1814.

^69. Committee for Law Suits, M5/307, March 19, 1805.

^70. Bank of England, Roehampton, box F31, Committee for Law Suits, M5/309, July 26, 1809.

^71. Committee for Law Suits, M5/307, September 7, 1803.

^72. Bank of England, Roehampton, box F46; Bank of England, F2/146. Similarly, in the case of Ann Lord, capitally convicted at Lancaster in 1817 for selling notes, the Bank was very pleased with the detailed account she provided of fabricators and dealers. The minute book records that "application was made by the Bank to the secretary of state by order of the governor on the 12th April last to respite her punishment, and afterwards on the 23rd April an application was made for a reprieve, upon condition of being transported for life." Committee for Law Suits, M5/319, May 8, 1817.

^73. Anthony Howe, "From 'Old Corruption' to 'New Probity': the Bank of England and Its Directors in the Age of Reform," Financial History Review 1 (1994): 23–41.

^74. Committee for Law Suits, M5/315, June 21, 1815.

^75. One of the most extraordinary features of the Bank's relationship to "its" prisoners was the frequency with which the latter petitioned the former for small favors. The Bank received hundreds of requests for assistance in meeting the costs of prison and for purchasing supplies for the trip to Australia. It granted many of them, especially to women. Sarah Davis was convicted of uttering forged notes in 1811. While awaiting transportation, she was much distressed and wrote to the Bank for help. She was granted 7s. per week until she departed the country. Jane Williams, confined in Newgate in 1818, asked that the Bank "extend a little of that charity that is so kindly distributed to some of my fellow prisoners." She received 5s. per week. Bank of England, Roehampton, box F180, 183. See Deirdre Palk, "'Fit Objects for Mercy': Gender, the Bank of England and Currency Criminals, 1804–1833," Women's Writing 11 (2004): 237–58, and her forthcoming collection of letters from female convicts for the London Record Society.

^76. Committee for Law Suits, M5/315, April 12, 1815.

^77. Bank of England, Roehampton, box F23.

^78. Bank of England, Roehampton, box F352.

^79. Committee for Law Suits, M5/315, September 29, 1814, May 11, 1815, June 1, 1815; Bank of England, F2/78.

^80. Bank of England, Roehampton, box F342, F343.

^81. Douglas Hay and Francis Snyder, Policing and Prosecution in Britain, 1750–1850 (Oxford: Oxford University Press, 1989), 28–29.

^82. Committee for Law Suits, M5/321, February 5, 1819.

^83. Committee for Law Suits, M5/320, July 2, 1818. Randle Jackson expressed his alarm about the general perception of the Bank's activity to a meeting of proprietors. "He should constantly urge the necessity of demanding the interference of the Home Department, so that every prosecution might have the double sanction of the Bank and the Government, and might not appear, as now too many were inclined to think it, the vindictive act of [a] partial and interested body." Bury and Norwich Post, September 23, 1818. Sir James Mackintosh made a similar charge during the debates over his proposal to remove the death penalty from forgery. "It was necessary at once," he demanded, "to do away with that anomaly in the administration of justice, by which the prerogative of mercy was transferred from the Crown to the Bank of England." ParliamentaryDebates, n.s. 1821, v, 1104. Sidmouth seems to have wanted to centralize decision making. See Devereaux, "Home Office," 299–300.

^84. One letter to the Times complained of the Bank "wresting from the hands of the Crown its most pleasing and endearing privilege—that of mercy." "The victims," the author concluded, "are selected in the Chambers of the Bank: where they choose who shall be saved, and whom they deem worthy to suffer death." January 19, 1819.

^85. Leon Radzinowicz, A History of English Criminal Law (London: Macmillan, 1948–86) 2:333–37; Committee for Law Suits, M5/317, July 11, 1816.

^86. Bank of England, F8/26. Phil Handler, "Forgery and the End of the 'Bloody Code' in Early Nineteenth-Century England," Historical Journal 48 (2005): 683–702; "Forging the Agenda: The 1819 Select Committee on the Criminal Laws Revisited," Journal of Legal History 25 (2004): 249–68.

^87. Bank of England, F8/26.

^88. In looking back at this period, the Bank solicitors concluded that jury discontent was exaggerated as a problem. In their experience, they wrote, the outcome was "more affected by the tenor of the judge's charge than by any feeling of juries." Bank of England, F8/26. For the influence of the judges, see Beattie, Crime, 342–46. The Bank had long paid attention to the composition of the juries that tried its cases. One agent wrote to warn Freshfield, in 1820, that his counsel should object to a juryman who had stood out for a considerable period against a guilty verdict in a Bank case. "Several of my friends," he reported, "who were upon the jury say he will not convict in any Bank case." Bank of England, Roehampton, box F62.

^89.Annual Register, 1818, 57, 182, 232–36; for evidence that judges upon occasion created problems for the Bank, see F8/26.

^90. Bank of England, Roehampton, box F61; Committee for Law Suits, M5/321, March 31, 1819.

^91. Bank of England, Roehampton, box F70; Committee for Law Suits, M5/325, October 17, 1821; OBP, Joseph South, October 24, 1821, case t1821024–51. Hobhouse wrote for Sidmouth, the latter perhaps feeling piqued, requesting that in future briefs in capital cases in London be sent directly to him.

^92. Committee for Law Suits, M5/335, July 9, 1823; Peel Papers, Add. Mss. 40299, ff241–43, 40315, ff89; Gatrell, Hanging, 563–64; The Diary of Henry Hobhouse, ed. Arthur Aspinall (London: Home and Van Thal, 1947), 104; OBP, Samuel William Miles, June 25, 1823, case t18230625–62. By 1823, the Bank was no longer prosecuting for forgery of notes under five pounds, but it continued to pursue those who committed forgeries of notes of five pounds and above.

^93. Peel and the Bank were in frequent communication during the debates over the reform of the criminal law with respect to forgery. There was no distance between their positions. On February 26, 1830, John Phillips wrote on Peel's behalf to the Bank, in a letter marked "strictly confidential." "If any part of the bill," Phillips added, "should appear to you to require revision with reference to the interests of the Bank of England, I will thank you to communicate your sentiments to me as early as possible, in order that Mr. Peel may have an opportunity of fully considering your suggestions before he submits the measure to Parliament." Bank of England, F8/26. Freshfield was the Peel family solicitor, and he was a loyal Peelite when he served in Parliament. Judy Slinn, A History of Freshfields (Guildford, Surrey: Biddles Limited, 1984), 44, 65. For the heated debate over Peel and the gallows, see Gatrell, Hanging, 566–85; Boyd Hilton, "The Gallows and Mr. Peel," in History and Biography, ed. T. C. W. Blanning and D. Cannadine (Cambridge: Cambridge University Press, 1996), 88–112; Simon Devereaux, "Peel, Pardon, and Punishment: The Recorder's Report Revisited," in Penal Practice and Culture, 1500–1900, ed. Simon Devereaux and Paul Griffiths (Basingstoke: Palgrave, 2004), 258–84.

^94. Innes and Styles, "Crime Wave," 242–47.

^95. King, Crime, 1, 17; Beattie, Crime, 366–73, 419–28; "Using the Criminal Law," in Hay and Snyder, Policing, 25–27.

^96. Hay, "Property," 41.

^97. For a similar conclusion, see Devereaux, "Home Office," 306–8; see also, Beattie, Crime, 366–71. For an interesting parallel to the Bank's coercion of a suspect, see ibid., 543, n. 42.

^98.Parliamentary Debates, n.s. 1830, xxiii, 1183, xxiv, 1049–50, 1054. For much the same conclusion, see Gatrell, Hanging, 566–71.

^99. In debate, in 1821, Thomas Fowell Buxton charged that the prosecutor in recent forgery cases showed "no pity—a pride rather in inexorable and unbending severity." "The very feelings of our nature, the very quality of mercy," he concluded, "seem utterly to have been forgotten." The nation, he warned, "rebelled against such continual slaughter"; it would not cooperate in the execution of justice. Parliamentary Debates, n.s. 1821, v, 916. In the same year, a legal advisor to the Bank wrote to the solicitors that he did not think it could "be said with truth, that the punishment of death has been found by experience to be ineffectual for the prevention of such offences." "Conviction for crimes of this description," he argued, "has been almost invariably followed by execution, and I firmly believe that the severity and certainty of punishment has greatly operated and does still operate to restrain the commission of those offences by those who have daily opportunities of committing them." Bank of England, F8/25. In 1830, Freshfield wrote with asperity of "the persevering means used by persons of morbid feeling to induce others not to do their duty as prosecutors, witnesses, and jurymen." Such efforts "may have had some effect," he admitted; "I have encountered my share of attacks in private and public." "But I am convinced," he concluded, "that in the case of forgeries upon the Bank justice has not been impeded by any supposed severity of the law." Bank of England, F8/26.

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