In his thoughtful and informative article on the twelve judges and judicial review, James Oldham illuminates an important if little-studied corner of eighteenth and nineteenth-century judicial practice. For centuries judges in criminal (and civil) cases had reserved questions that presented peculiar difficulties related to procedure or the interpretation of statute to the consideration of their colleagues. We seldom glimpse much of the substance or form of these deliberations. They were private and informal discussions, although by the eighteenth century the participants in these meetings observed well-understood conventions. Oldham outlines what these rules and practices involved. Decisions, for instance, did not have to be unanimous. The majority opinion took on the force of precedent, even though the deliberations often survived only in unpublished notes or the memories of the judges. Oldham gives a strong reading to this practice. Judges not only determined which cases would be referred to their colleagues, they exercised considerable discretion in ruling on the objections that had been raised. He views this process as offering another example of the power of the judges to shape the character of legal proceedings in early modern England. They were not only correcting procedural mistakes that arose during a trial; they were actively interpreting statute. In doing so, they demonstrated their decisive role in controlling the operation of criminal justice over the long eighteenth century.Footnote ¹

Oldham, while acknowledging that judicial review by the twelve judges had a long history, focuses his attention on the late eighteenth and early nineteenth centuries. It was in this period that the judges' activity began to secure increasing publicity, both in the press and more especially through the publication of treatises taken up with summarizing and attempting to discover the logic behind their decisions. Thomas Leach's Cases in Crown Law, Determined by the Twelve Judges, published in 1789, inaugurated this development. Even more influential was Edward Hyde East's Pleas of the Crown, which appeared in 1803. The publication of the treatises suggests that these cases were increasing in importance, both as a reference for those involved in criminal trials and for the legal education of lawyers.Footnote ² “The decisions upon the Crown Cases reserved for the consideration of the Twelve Judges of England,” William Oldnall Russell and Edward Ryan announced in the preface to their volume of these cases in 1825, “are of the first importance to the due administration of the criminal justice of the country.”Footnote ³ These works offer a portrait of a seemingly regular mode of proceeding, yet one that remained informal, fluid, and, at times, unsettled. They also suggest that the late eighteenth century saw a marked increase in the frequency of the recourse to the twelve judges. D. R. Bentley, in his decade-by-decade count from the 1760s to the 1820s, provides us with a sense of the mounting tide of cases reserved: 1760–69, 18 cases; 1770–79, 58 cases; 1780–89, 86 cases; 1790–99, 87 cases; 1800–09, 120 cases; 1810–19, 138 cases; 1820–28, 192 cases.Footnote ⁴ This increase hints at a significant change in judicial practice, one that points to a transformation in the conduct of criminal trials and to a shift in how judges viewed their power to regulate what happened in court.

In this article I want to look at this remarkable rise in the number of cases reserved for the twelve judges by examining one crime in detail, that of forgery. The investigation of this offense permits us to study more closely the chronology of change and to speculate on the factors that might have worked to produce it. The choice of this crime, of course, is not random. Forgery cases constituted between a fifth and a quarter of all cases reserved. The number of such referrals increased in lock step with the surge in cases over the sixty years from 1760 to 1820. There were at least 6 cases reserved in the 1760s, 18 in the 1770s, 16 each in the 1780s and 1790s.Footnote ⁵ Therefore the study of this crime promises to provide a more intimate portrait of what the judges were doing when they responded to particular legal challenges by referring a case to their colleagues. Indeed, it will be the argument here that forgery cases actually helped to drive the evolution of the practice of reserving crown cases. I will focus in particular detail upon developments that occurred between 1750 and 1800 because, as Bentley's statistics suggest, it was during these years that the most dramatic increase occurred.Footnote ⁶

Forgery, then, allows us to map more closely the changes in the practice of judicial review. It permits us to get beyond the ever-swelling number of reserved cases to the courtroom dynamic that spawned this process. At first glance the technical issues raised at forgery trials appear to be a quintessential expression of the evolution of common law legal thinking. We are confronted with a dense tangle of cases that show the judges struggling to find rules or principles that will help them deal consistently with the increasingly tortured issues raised in forgery cases. What quickly becomes clear, however, when one looks at this collection of cases more closely, is the crucial role of defense counsel in offering the objections that led to cases being reviewed. This examination reinforces the conclusion of John Langbein and John Beattie that the coming of the lawyers produced wide-ranging consequences for the development of English criminal justice.Footnote ⁷ Yet it will also permit us to refine our understanding of what the impact of the lawyers was upon the management of the courtroom. Oldham's essay suggests that the judges exercised considerable power in relation to the interpretation of the law. The lawyers, on the other hand, at least in forgery trials, would seem to have forced the judges to seek additional support to uphold their rulings on points of law. One reading of this development would be that the judges felt less secure in their passing on such legal questions. This article will suggest a more nuanced interpretation of what was happening. If the referral of more cases to the twelve judges points to a weakening of the position at trial of the single judge, the decision making of the twelve judges can be seen as the reassertion of the bench's role as interpreters of law and umpires of disputed points of procedure. The judges were far from being passive spectators of the steady advance of the lawyers.

Finally, this article touches upon another question that has long troubled the discussion of eighteenth-century justice. A long running debate among historians concerns the motivations that guided the judges in their conduct of criminal trials.Footnote ⁸ Most famously, Leon Radzinowicz, argued over sixty years ago that a major motive for reserving cases on points of law was the desire to restrict the scope of the “Bloody Code.” He offered several decisions of the twelve judges in forgery cases to support his conclusion.Footnote ⁹ Given that forgery was a much feared crime, his conclusion that the judges consistently circumscribed the reach of the gallows in these cases suggests that humane considerations ranked high in their deliberations. A more careful reading of these cases, however, fails to support his argument. On the contrary, their decisions, taken together, show a concern to uphold the effectiveness of deterrence in the face of an alarming crime. It was a question of balance and degree as judges weighed competing claims and concerns. This article warns against portraying the actions of the judges in too stark terms. Any account must acknowledge the scope for individual initiative.Footnote ¹⁰ At the same time, one can still detect in their treatment of forgery a conviction that the gallows was a just and necessary measure for coping with the most dangerous of property crimes.

The Trouble with Forgery

Forgery was a unique crime whose troubling status increased over the course of the century. With great regularity, prosecutors in their opening statements and judges in pronouncing sentences repeated the familiar formula that the crime threatened a commercial society in a particularly frightening way.Footnote ¹¹ Charles Wetherell, a former Tory solicitor general, voiced the alarm the crime continued to excite even as late as 1832: “in the commission of forgery, every safeguard to property was broken down— it was generally committed under circumstances the most revolting and treacherous.”Footnote ¹² By the end of the seventeenth century, commentators had identified the crime as a worrisome subject. Yet for a considerable period it remained, in most instances, a misdemeanor. The Bank of England acted quickly to secure the protection of a capital statute for its paper, and the forgery of Exchequer notes was also made felony by statute. In each case the legislation resulted from a disturbing outbreak of the crime. In some respects what is surprising was the delay in making forgery of the vast assortment of notes, bills, and bonds whose use exploded during the “financial revolution,” a hanging offense. It was only in 1729 that this step was taken. From that date the crime of forgery was almost always prosecuted as a capital crime.Footnote ¹³

The dramatic change in the scale of the penalty for forgery came in the wake of a sensational case in 1728, that of William Hales, which resulted in the passage of a statute making many forms of forgery, not just those against particular corporations or government paper, a capital offense. Under this statute, 2 Geo. II c. 25, most instances of the crime were prosecuted. Although this act did not produce anything like a dramatic rise in the incidence of prosecuted crime, it certainly increased the stakes for all of those involved. The act, passed in response to a particularly outrageous instance of forgery committed upon members of Parliament, was short but sweeping in its scope. The legal officers of the Crown played a crucial role in drafting the measure, and it received careful parliamentary scrutiny. It appeared broad enough to cover almost any act of false writing that might arise in a commercial transaction. It declared that anyone who “shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly act or assist in the false making, forging or counterfeiting… or shall utter or publish as true” any of these instruments, “knowing the same to be false,” was guilty of felony without benefit of clergy. The statute testified both to the difficulty of defining the basic instruments employed in commerce as well as the ambition to give them all the fullest measure of protection. It covered “any deed, will, testament, bond, writing obligatory, bill of exchange, promissory note for payment of money, or acquittance or receipt, either for money or goods.” The intent of the legislation was perfectly clear. It was to use the terror of the gallows to check an activity that was seen as both morally repugnant and a disturbing threat to the nation's financial integrity.Footnote ¹⁴

More significantly, those convicted of forgery usually went to the gallows. Although it would be an exaggeration to say that mercy was never extended to the condemned, it was nonetheless true that in a considerable majority of cases the offender was executed. This policy lent a grim fascination to forgery cases, one that secured the crime wide publicity in the press and considerable prominence in collections of Select Trials. Forgery was different from other property crimes. One of the clearest measures of this difference was the length of trials, the growing complexity of the indictments, and, by the second half of the century, the frequency with which cases were referred to the twelve judges. Everyone understood that the stakes were particularly high when a forgery case was respited. The gallows awaited in the event of an unsuccessful appeal.

The 1729 statute had the effect of making the trial for forgery even more fraught than it already was. As one author, at the end of the century, wrote, “the consequences of forgery are so dangerous and extensive, that, since the law had deemed it a capital felony, the royal mercy has not (excepting in two or three very remarkable cases) been extended to the perpetrator thereof.”Footnote ¹⁵ Social class had the paradoxical effect of producing sympathy for the accused among the public, while it stiffened the resolve of the authorities to punish those who had perverted their knowledge and betrayed the trust vested in them. “I am afraid there is not a shadow of defence for this unfortunate man at the bar,” a prosecutor in the case of Francis Parr (1787) warned, “because from his situation in life he must know, that if he was detected, he must forfeit that life, and he is not an ignorant man, taken in by persuasion.”Footnote ¹⁶ Still, the discovery that a fraud might bring a respectable businessman under the shadow of the gallows could produce shock among all the parties involved. We catch something of the dread and fatality surrounding the crime when we listen to the language of a witness at the trial of John Harrison, charged with forging a receipt for 3210 £. on the London Assurance Corporation. Harrison's counsel got a key witness to admit that neither he nor the accused, at the time a self-incriminating statement was made, could have conceived that the act amounted to forgery. “I imagined,” the witness said, “he did not apprehend then any more than I did that it was a capital offence, I believe he thought it a breach of trust only.” “And you at that time conceived that in point of law this was no capital offence?– I mean not a forgery.” “You could have no reason for supposing that any prosecution would be commenced against him? There are prosecutions for many offences that are not forgery; why not for a breach of trust?” The judge interjected that “the prisoner should know the situation he is in at the time he makes a declaration that shall affect his life.”Footnote ¹⁷ The crime of forgery brought together an unusual set of issues: a dangerous crime, a severe penalty, and respectable social status. Judges navigated between these competing concerns by displaying a leniency to the defendant during the course of the trial, reserving their sharpest comments for the moment of passing sentence.

Perhaps the most significant instance of leniency shown to those accused of forgery was permission to employ defense counsel. As we shall see, the consequences of this decision were momentous. At a time when defense counsel was unusual, forgery defendants, in a significant minority of cases, secured this privilege.Footnote ¹⁸ There are several possible explanations for this situation. Forgery had been (and in 1715 still was in most instances) a misdemeanor, and counsel for the accused had for some time been permitted in such cases. It may well have seemed unfair to take away this privilege when the offense became a felony.Footnote ¹⁹ In addition, forgery was often prosecuted by counsel. In cases that involved technical questions, defendants may have appeared at too great a disadvantage. It was a principle of some antiquity that in a case where points of law arose, the defendant had a right to expert advice.Footnote ²⁰ These considerations might not have counted for so much except for the presence of two additional factors, social standing and financial means. Forgery defendants were often from a more respectable background and were sometimes of a higher class than the usual defendants on trial at the assizes or the Old Bailey. “Forgers are seldom,” one author wrote, “among the low and abandoned part of mankind. Forgery is very often the last dreadful refuge to which the distressed tradesman flees.”Footnote ²¹ As a result, they or their relations often had the financial means to employ counsel. As we shall see throughout the remainder of this article, the presence of defense counsel profoundly altered the character of the forgery trial.

We catch a glimpse of the importance of this privilege, and of its early appearance, at a forgery trial involving the Bank of England. In 1715, John Bigg was tried at the Old Bailey for erasing an endorsement on a Bank bill for 100 £. The “liquor” he used was so successful in transforming the bill that the corporation was thrown into confusion and alarm. It dismissed several clerks for embezzlement before Bigg's fraud was discovered. The Bank solicitor undertook the careful management of the prosecution. The Sessions Papers announced that Bigg's “was allowed council,” and there is some suggestion that the Bank was responsible for this grant. “They” [defense counsel] began their defense by making three objections. They denied that the clerk who signed the notes had been authorized to do so under the seal of the corporation. They likewise insisted “that writing with Red Ink on the Inside of the Bill cannot be call'd an Indorsement; Nor, if that were an Indorsement, can the Fact be call'd rasing or altering.” The judge at trial dismissed the argument that the Bank's clerk was not eligible to sign bills for the Bank, but said he would refer the other two issues to the twelve judges. When the judges assembled at Serjeants-Inn-Hall, they listened to counsel “on both Sides” argue the points of law. They determined that Bigg was guilty “within the Meaning of the statute,” and he was condemned to death.Footnote ²²

The Bar of Interest

The Bigg case shows us that from an early date defense counsel in forgery trials saw legal objections as one avenue to explore in defending their clients. Among the earliest objections presented by defense counsel, and one of the ones repeated most often in subsequent years, concerned the question of whether an interest in the outcome of the trial barred a witness from testifying. The judges displayed remarkable sensitivity to this question. The practice had first appeared in civil litigation, and it is significant that we can observe it migrating to the criminal law in forgery trials. Yet the objection was expanded and transformed in this new application. It was as if the judges were concerned to prevent the merest hint that a selfish motive might be operating in the background to a prosecution where the life of the accused was at stake. The notion may have been less to extend a protection to the accused than to protect the reputation of the prosecutor from the charge of self interest. For whatever reason, the issue arose with special urgency in forgery cases.Footnote ²³ At the Old Bailey in 1738, William Russell was indicted under 2 Geo. 2. c. 25, for “forging an acquitance and receipt,” with intent to defraud a solicitor in Chancery. The prisoner's counsel objected that the victim's testimony was inadmissible as he had an interest in the outcome. The prosecutor's counsel responded that a conviction would cut off recovery for the victim, so that interest worked in a direction opposite to that proposed by the defense. Justice Page (apparently with the assistance of Baron Carter and the deputy-recorder), however, ruled that the prosecutor “was not an admissible witness.” Russell was acquitted.Footnote ²⁴

East acknowledged that the decision restricting who could testify to a forgery was a peculiar conclusion. “There is some difficulty upon this point,” he wrote. “The rules of evidence,” he added, “are said to be the same in criminal as in civil cases; and as the object must be the same in both, to arrive at the truth, there is nothing in reason to establish a difference.” In civil cases, except where the witness would derive “an immediate advantage,” the objection went only “to his credit and not to his competency.” Yet the judges consistently excluded the testimony of the person best able to testify to the falseness of a note, the person whose name had been forged. They did so on the grounds that even a shadow of an interest rendered the witness incompetent to give evidence. By mid-century, the rejection of a witness was almost automatic. East remarked of the decision of Baron Reynolds, in the case of Robert Rhodes (1742), that his ruling “seems to have carried the rejection of a witness on the ground of interest a great way.”Footnote ²⁵ Occasionally legal authorities lamented the precedent. One prosecuting counsel in a forgery trial in 1800 complained that “in cases of felony, for what reason I cannot tell, a different rule prevails upon the subject of admitting witnesses, from many other cases.”Footnote ²⁶ Still, as East admitted, “long continuance and universality of such practice” had established the rule.Footnote ²⁷ The bar of interest became a standard objection invoked by defense counsel at forgery trials, even after the precedent would seem to have been fully established. They constantly tested the limits of the objection. At the trial of William Hunter in 1794, the prisoner's counsel objected to the evidence of a ship agent. “After some altercation between the counsel on both sides,” the court agreed he could not testify.Footnote ²⁸ Defense counsel had secured an important concession in their struggle to save the lives of their clients. It offered them a useful lesson in how to contest a forgery charge.

Michael Foster and the Mitchell Case

Witness disqualification on account of interest was not the only subject debated in the two decades following the passage of the 1729 statute. Defense counsel challenged whether particular forms of written obligations fell within the scope of the act. These objections were to prove a useful vein for lawyers to mine. The Russell case shows us both objections in operation. In this instance, however, while defense counsel was present, the judges seem to have made the determination that not all sorts of financial records were covered by the law. “They considered it [the paper in question] as a confused memorandum, from which it was impossible to collect with any certainty whether the word received referred to the item of costs, or to any of the immaterial items of which the note was formed.” Russell, as previously mentioned, was freed.Footnote ²⁹ On the other hand, the judges, in another case, defended the notion that one should not establish too strict a standard with respect to forms of writing. Dominick Fitzgerald and James Lee were indicted in 1741 for forging a seaman's will. Fitzgerald's wife impersonated the wife of the sailor who stood to benefit from the will. The case was reserved to see if the muster book was good evidence, and whether a will that gave two different names for the deceased was a legal will. No opinion was ever reported, but the two men were executed.Footnote ³⁰

By the 1750s, forgery had become a crime that earned an unusual amount of attention.Footnote ³¹ Both the defendant and his counsel had learned the value of making certain kinds of objections, many of the sort that arose in civil litigation, during the course of the proceedings. Still, the number of forgery trials in which such points were raised remained small. Two mid-century cases, however, would profoundly change the situation, those of Mary Mitchell (1754) and Ann Lewis (1752). The significance these two cases achieved points to another lesson offered by consideration of this topic. The evolution of judicial review was not the outcome of planned or deliberate decision. It was a process marked by contingency and the interaction of a variety of factors whose significance contemporaries did not always grasp.Footnote ³² The Mitchell and Lewis cases differed significantly from other crown cases reserved. No defense counsel was present in either instance. It was the judges who respited them for the consideration of their colleagues. The Mitchell case was atypical in another respect; unlike most forgery cases, it involved an interpretation of statute. Mitchell was a poor woman guilty of a fraud on a poor law official. Ann Lewis, a widow, perpetrated false representation in order to secure the prize money of a sailor. Neither of these cases represented the crime that the legislators had in view when they passed the 1729 statute. The fact that these two cases concerned poor women is probably significant as well. “The judges,” John Beattie has argued, “were much more favorably disposed toward women.”Footnote ³³ But what really made these decisions important was that they were published in Michael Foster's Crown Cases (1762). Foster's work instantly became an influential text, a work lawyers frequently consulted and regularly cited.

The Mitchell case arose at the Kent Lent assizes. Mary Mitchell was indicted for uttering and publishing a false warrant for the delivery of goods. The order was supposedly signed by George May, an overseer of the poor. Mitchell pretended that she was entitled to relief in the parish of Maidstone. She went to a shop that sold women's apparel and asked for the goods mentioned in the order she presented. It read:

The case was well made out, and Mitchell was convicted. Foster, however, expressed some uneasiness with the outcome. Even though the statute appeared clear on the point that it applied to forgeries of an order for money as well as for the “delivery of goods,” he thought “it advisable to respite Judgment upon a Doubt, whether the Order set forth in the indictment be such Warrant or Order to bringeth the Prisoner's Case within the Statute.”Footnote ³⁴ Foster appears to have been unmoved by the fact that in several recent instances offenders had been convicted for forging orders for the delivery of goods. Yet he must have been aware, as was the public at large, that forgery was a crime that often led to an execution. Foster may have been swayed by sympathy for the plight of the poor woman before him to give the issue more careful deliberation.Footnote ³⁵

Foster's doubt concerned the question of whether or in what sense the 1729 statute intended to cover orders for goods as well as an assortment of financial instruments. Even supposing the note to have been genuine, he mused, it was a mere request for the delivery of goods and not a command that they be handed over to Mitchell. When the judges discussed the case, they were divided in interpreting the statute. Nine expressed the view that Mitchell's note was not such an order of the sort mentioned in the act, while one other judge “doubted, but acquiesced.” One judge, however, dissented. “Those who took the Case to be out of the Act argued,” Foster reported,

The conclusion of the majority was that the prisoner should be discharged.Footnote ³⁶

Foster, however, gave ample space to the dissent from the majority opinion. In doing so he may well have recognized that there was merit in the position. He may also have wanted to acknowledge that there was novelty in the argument he advanced. The dissenter argued that the forgery statute had been written with the intention of taking in “the Cases which had not been provided for” by earlier legislation. He thought the statute should, therefore, “receive a liberal construction.” He appealed to “every day” usage among traders: “Letters or Messages between Dealers, where one desireth the other to send him a quantity of Goods in the way of Trade, they call Orders; and yet the Person sending this Order hath no Interest in the Goods, no disposing power over them, nor pretendeth to any.” This case, to his mind, was no different. “Had the Paper in question been genuine and the Goods delivered on the Credit of it, May would have been liable: or had the Goods been delivered on the Credit of this Paper, Jefferys would have been defrauded.” He was in no doubt that the offense was within the act and that the proper penalty was death.Footnote ³⁷ Both the appeal to the intention of statute and to the practice of merchants are worth noting. The minority position did not carry the day, but it reflected an undercurrent of unease with the conclusions of the majority. It also points to an ambiguity that haunted the decision. The judges who overturned the Mitchell conviction argued that the note was a request rather than an order. It was the form of the note, not the money or goods mentioned in the note, which determined their decision. Yet the practical effect was to eliminate the capital prosecution of the forgery of orders for goods.

The Mitchell decision rapidly established itself as one of the settled points of law with respect to forgery. It produced no remedial legislation.Footnote ³⁸ Judges regularly acknowledged the force of the precedent. For example, in 1784, William Ellor was charged with forging the following note: “Messrs. Songer, Please to send TEN pounds by the bearer, as I am so ill I cannot wait on you. Elizabeth Wrey.” The judge at Ellor's trial pressed the counsel for the prosecution, John Silvester, with the objection the note amounted to a “mere letter” rather than “an order for the payment of money.” Silvester tried to deflect the objection by saying that the issue was really only “whether this gentlewoman had an authority to draw on this gentleman, for in law we know of no technical forms.” The judge replied that he “understood the Act of Parliament to mean such an order for payment of money, as the party giving it, if genuine, has a right to make; but a letter requesting the payment of money, is quite a different thing, it is not a compulsory order.” The act of forging it, the judge held, “was not positive, and the terms of it did not import that the party giving it had a right to the goods ordered.” Ellor was found not guilty.Footnote ³⁹

A case from 1775, however, revealed the continuing disquiet that the Mitchell decision provoked. In that year George Williams was tried in Southampton for forging an order for the delivery of twelve barrels of tar. He was found guilty, but the case was respited for the consideration of the twelve judges. They agreed that the offense was not within the statute, “upon the authority of Mitchell's case.” They explained that “the principles there laid down could not now be departed from.” Yet it was reported that most of the judges “doubted the propriety of the determination.” Several argued that the wording of the note in the Williams case was different from that in Mitchell, and that “if the present case had been res integra, they should have thought it within the statute.”Footnote ⁴⁰ The judges' deliberations in the Williams case scarcely represented a ringing endorsement of the principles laid down in the Mitchell decision, even if their reflections did represent a striking acknowledgement of the power of precedent to enforce a ruling that ran against their own inclinations.

The Lewis Case and Fictitious Character

If the Mitchell case established a fundamental distinction that governed successive judicial review of forgery cases, the Lewis case had even more striking consequences for the business of the judges. For whereas the former decision operated to close down a line of argument (by restricting the statute to a particular class of instruments), the latter opened up an opportunity for scrupulous judges or inventive legal counsel to raise technical points that resulted in a growing number of cases being referred to the twelve judges. The Lewis case involved the judges in one of the more difficult tangles concerning negotiable instruments, the status of a note that employed a fictitious name.Footnote ⁴¹ Ann Lewis was tried for forging a power of attorney in order to gain the administration of the estate of a seaman. The trial took place at the Old Bailey in February, 1752.Footnote ⁴² Her case was one of a large number of such instances that occurred with increasing frequency during periods of war. Wages and prize money were often owing to sailors, and the sums involved could be substantial. A vibrant circulation of notes, wills, and promises of various sorts took place among publicans and shopkeepers, not to mention money lenders, who dealt with this population. Aside from the legitimate and semi-legitimate transactions that went on, there was a considerable temptation for women to appear at the Navy Office with legal documents supporting a claim to be entitled to a sailor's money.Footnote ⁴³

Lewis approached a prize agent at the navy office with an administration in the name of Elizabeth Tingle, claiming to be the only surviving daughter of a sailor, Richard Tingle. She returned to the office a number of times demanding payment, and finally turned up with a letter of attorney to support her claim. The agent suspected her, and later detained her when she appeared under another name at the office. During the trial it emerged that Tingle had no daughter. Lewis was convicted, but the presiding judge “raised this doubt,” whether a document written in the name of a nonexistent person amounted to a forgery within the meaning of the act. Lord Coke was held to say that forgery was the crime of taking the name of another person. If his position prevailed, then Lewis might be guilty of a cheat, but it could not amount to forgery. Eleven judges met in Chief Justice Ryder's chambers. They determined that it was sufficient to answer only two questions: “Is the deed in question then a false deed, or is it not? Undoubtedly it is. Was it published with an intention to defraud? It certainly was.” Ten of the judges “were very clear” that the Lewis case fell under the statute. They held that Coke used too narrow a standard for the crime. For them the key issue was proof of “an intention to defraud.” They upheld the sentence of death.Footnote ⁴⁴

A succession of cases tested the conclusion in the Lewis decision. In a widely publicized episode, James Bolland, in 1772, was tried for forging an endorsement on the back of a promissory note. Bolland was a notorious man, a sheriff's officer who practiced a variety of scams in order to raise funds to support his extravagant lifestyle.Footnote ⁴⁵ He had offered a note to a man with his own name endorsed on the back, but the man refused it, saying that he believed Bolland's name appearing on it would impair his chances of negotiating it. He said another name, even one unknown to him, would remove the difficulty. So Bolland, after a moment's thought, erased his own name and wrote instead “Banks”. The trial revealed a murky business. A business failure produced the disclosure of the act, and a discontented attorney who thought Bolland had cheated two of his clients pressed the prosecution. Bolland had Serjeant Davy as his counsel and he was tried before the Recorder, James Eyre. The jury found him guilty, but the sentence was respited on a doubt whether it was forgery to write the name of a nonexistent person. Although no report of the judges' deliberations appeared, Bolland was subsequently executed.Footnote ⁴⁶

In the case of Charles Lockett (1772) the judges encountered yet another version of this issue. Lockett had presented a note for a payment of money in the name of a nonexistent person. He appears not to have had counsel, but Baron Perrott (with Justice Aston present) reserved the case. “The question submitted to the Judges was,” East explained, “whether this were an order within the statute, being in the name of a fictitious person?” The judges, he reported, deliberated a long time but finally decided that it was forgery. They held that it was not important that no such person existed; “it was sufficient that the order assumed those facts, and imported a right on the part of the drawer to direct such a transfer of his property.”Footnote ⁴⁷ Baron Perrott announced, in reporting the judges' decision, that “it would be a very forced construction of the statute to say, that the forgery of a fictitious name, with intention to defraud, is not within the intention of it.”Footnote ⁴⁸ The issue was raised once again in the case of John Taylor in 1779. Taylor was charged with forging an acquittance in the name of a nonexistent person. It was essential, his counsel argued, that for the “commission of forgery,” the act “should be done in the name of another.” The judge reserved the case, but the twelve judges ruled unanimously that the conviction was right.Footnote ⁴⁹

A different version of this conundrum arose in the case of John Hevey, tried at the Old Bailey in 1782. Here the problem was that the person who signed the note did so in his own name, even though the act was committed as part of a fraudulent scheme. Hevey presented a bill of exchange for thirty pounds with the name “B M'Carthy” written on the back. He had employed a copper plate to make a number of these bills, some of which were found on his person when he was arrested. A pawnbroker, after sending to inquire if the note was good, took it in payment for a watch and returned change to make up the difference. In presenting the bill, Hevey claimed to be M'Carthy. It emerged during the trial, however, that the endorsement had in fact been written by a man named M'Carthy. Hevey's counsel pressed this issue with particular insistence. As Leach noted, the case “involved a question of law which had never precisely received a judicial determination.” The question for the judges was “whether, if a man produce the real signature of a person existing, purporting to be the endorsement of such person whose endorsement it purports to be, it amounts in point of law to the offence of forgery?” Eleven judges met and unanimously determined it was not forgery. “Therefore,” they concluded, “however corrupt and wicked this combination might have been,” it was no felony.Footnote ⁵⁰

These cases, conclusive as they seemed, failed to put the central questions to rest. The situation that “seems to have involved in it the greatest difficulty,” East reported, “is how far personating the true man or assuming a fictitious character at the time will affect the offence.” After laying out the cases that dealt with this issue, East thought he had discovered a reasonable basis for resolving the problem: if a person gave a note in a false name, but credit was given to the person rather than the note, then it was a cheat. But if the giving or writing of a false name secured the note “superior credit,” then it was forgery. “So in a late case,” East argued by way of illustration, “it was laid down that if a bill of exchange payable to A or order get into the hands of another person of the same name with the payee; and such person, knowing that he is not the real payee in whose favour it was drawn, indorse it for the purpose of fraudulently possessing himself of the money, he is guilty of forgery.” Yet even East was forced to admit that the judges had not always followed a consistent line in their decisions. He was puzzled by their determination in Shepherd's case (1781), where the accused presented an order for payment with the name of H. Turner, Junior, subscribed. It was proved that no such person existed. The troubling point arose when the shopman admitted at trial that he gave credit to the “genteel” appearance of the customer rather than to the name. The judges held that the conviction was right, as the fictitious name was used to deceive and a “false representation” was proof of knowledge that the instrument was bad. Yet East thought it might well have been accounted a cheat.Footnote ⁵¹

The Status of the Instrument

Another line of objection offered in forgery cases concerned the question of whether a note that was in some measure imperfect could be held to be forged. This was a vexing question, because a forgery, by its very nature, was a mere imitation of something genuine.Footnote ⁵² Could a note that had an imperfection on its face, or was non-negotiable at law, still be a forgery? For example, in 1779, William Jones was accused of uttering a forged Bank note with the subscription “For Self and Company of my Bank of England.” The judges decided that even though Jones represented the note to be good, it was obvious on the face of it that it was not so. “The court were of opinion, that the representation which the prisoner had made to Rayner, viz. that it was a good bank note, could not alter the purport of it, which is what appears on the face of the instrument itself; for although such false representations might make the party guilty of fraud or cheat, they could not make him guilty of felony.” Those who dealt in such instruments, the judges argued, had to take some responsibility for normal caution.Footnote ⁵³ In a related case, John Moffatt was indicted in 1787 for forgery of a bill of exchange for 3 £. 3s. As Parliament had passed a law forbidding the creation of notes for less than five pounds, the note in this case had no legal status. The judges, after considerable deliberation over two meetings, ruled that “if it had been a genuine instrument, it would have been absolutely void, and nothing could have made it good.” Therefore it did not amount to forgery.Footnote ⁵⁴ The principle established by these cases was clear, East wrote, “though a similarity to a common intent be sufficient, yet it is necessary that the forged instrument should in all essential parts have upon the face of it the similitude of a true one; so that it be not radically defective and illegal in the very frame of it.”Footnote ⁵⁵

The judges, however, were far from absolute on this score. In several other cases they held that a note did not have to be perfect in order to sustain a charge of forgery. James Elliot was tried at Maidstone for forging and uttering a Bank of England note for 50 £. His counsel claimed that as the note lacked the word “pounds” after “fifty” that it was “not a note for the payment of money.” The judges, in 1777, answered that “whatever weight this objection might have upon the count of forging a bank note, it had none upon the count charging it to be a note for the payment of money. It was clearly to be paid by that corporation, and a fraud upon them. A counterfeit need not be an exact counterpart. If made male fide so similar as to have an aptness to impose, it is sufficient.”Footnote ⁵⁶ To drive home this point, East referred to a case determined by Justice Le Blanc in 1802. At the trial of a man named Hoost, charged with forging a bank note, a Bank agent testified that the note would not have fooled him. Such an admission might have been enough to transform this case from a forgery to a simple fraud. The judge, however, replied that it was sufficient that it had deceived others. East concluded that this case demonstrated that “if they be so far alike that the deception is calculated to impose upon persons in general it is sufficient; though it would not impose on persons having particular experience in such matters.”Footnote ⁵⁷ In a related case, Edward Taft was indicted for forging an endorsement on a bill of exchange. It was objected that the signature was not necessary for the negotiability of the instrument. The judges held that it was still forgery within the meaning of the act because although the signature was not strictly required to secure passage of the note, its presence lent credibility to the instrument. The conviction was upheld.Footnote ⁵⁸

The most sustained examination of this question of whether an instrument had to be negotiable in order to sustain a charge of forgery concerned the absence of a stamp. At the trial of John Hawkeswood at Worcester in 1783 for forging a bill of exchange, the prisoner's counsel, Baldwin, objected that the note was simply a “piece of waste paper,” as it had not been stamped as the law demanded. The judges ruled that the conviction was good. The judges subsequently appealed to this precedent when they confronted a similar issue in the case of Colin Reculist, in 1796.Footnote ⁵⁹ In R. v. Reculist it was once again objected that a note that could not have been legally negotiated could not be a forgery. The judges held that the stamp act was a revenue law and the presence or absence of the stamp could not affect the status of the instrument as a forgery. “The stamp is not, properly speaking, any part of the instrument; it is merely a mark impressed on the paper to denote the payment of a duty; and is merely collateral to the instrument itself. To constitute the crime of forgery, it is not necessary that the instrument charged to be forged should be such as would be effectual if it were a true and genuine instrument.” But the judges went further in acknowledging the motive that trumped all others; “if the argument in support of the objection were permitted to prevail, the most pernicious consequences would ensue.”Footnote ⁶⁰ They faced the question again at the York assizes in 1795. Joseph Morton was accused of forging a promissory note on unstamped paper. “The case,” East reported, “underwent much consideration, and was debated by the Judges in Michaelmas term 1795, and in Hilary and Easter Terms 1796, on the principal point, as well as upon the question whether the stat. 31 Geo. 3 c. 25 f. 19, which passed after Hawkeswood's case, and prohibits the stamp to be affixed afterwards had made any difference.” The glimpse we get of the judges' deliberations offers a revealing portrait of the disagreements that could mark their discussions and the consideration that finally triumphed in their judgment. Two or three judges questioned the conclusion reached in Hawkeswood. Yet, in the end, “they all agreed that being an authority in point they must be governed by it.” The new statute made no difference. The majority endorsed the rationale set forth in the earlier case.Footnote ⁶¹

Challenging the Indictment

Defense counsel seized upon another objection when they challenged the adequacy of the indictment in describing the note, the bank, or the transaction. Prosecution counsel had long recognized the special challenges presented by forgery cases by presenting several different counts to an indictment.Footnote ⁶² This tactic inspired an obvious rejoinder, a critical examination of the document. In the case of Henry Lovell (or Lavell), in 1782, it was argued that the use of a shortened title for the bank of Drummond and Company was wrong because the indictment should have listed the names of all of the partners. The judges disagreed. Justice Gould said “that to require the particularizing of all the partners would be of dangerous consequences to such prosecutions.” It was enough, he thought, “to understand them as every body else did.”Footnote ⁶³ In Willoughby's case, from Warwick in 1783, the accused was charged with negotiating a bill he had taken from a letter. The indictment called the instrument “a warrant for the payment of money.” It was objected that the note was a bill of exchange. The judges, however, held that the “indictment was well laid; for though it was a bill of exchange, it was also a warrant for the payment of money.” East added that “even those instruments which in the commercial world have peculiar denominations, yet if they fall within these terms and are in truth warrants or orders for the payment of money, may be laid as such.”Footnote ⁶⁴ In the case of Thomas Elsworth, tried at York in 1780, the conviction was challenged because the indictment had failed “to follow strictly the words of the acts.” The counsel for the prosecution admitted that the indictment “was rather informally drawn,” but claimed that the second charge was sufficient to sustain the conviction. The judges agreed.Footnote ⁶⁵

By the last decade of the eighteenth century the judges occasionally expressed exasperation with the difficulties forgery raised. When Justice Buller, in 1795, delivered the opinion of the twelve judges in the case of Anselmo Robinson Gilchrist, he displayed little patience with either the prosecution or the defense. The problem arose from the fact that a bank continued to employ notes with the name of a dead partner on them, while its name had changed to reflect the addition of a new partner. John Gurney objected on behalf of the defendant that the indictment failed to distinguish the difference, using one or the other name haphazardly. The mistake was held to be fatal. Buller began by noting “that it is the duty of a good pleader not to clog the record with unnecessary matter, and thereby throw a greater burthen of proof on his client than the law requires; and it is still more his duty not to state things which, on the face of the indictment are repugnant, inconsistent, or absurd.” He expressed his annoyance at the recent trend in forgery trials, while ignoring the contribution of the judges to this development. “The forms of indictments,” he noted, “have varied, and been different from each other at different periods of time, and of late years they have been much more complicated than they were formerly, and in my opinion they have been, for that reason, much worse.” He proposed a more straightforward formula which, he suggested, would have avoided the unnecessary contradictions that arose in the case under review.Footnote ⁶⁶ His recommendation was not followed.

The Impact of the Lawyers

As we have seen, a host of technical issues surrounded a prosecution for forgery. They ranged from questions of witness qualification to discussions about the form of indictments and the description of financial instruments. Yet these challenges did not spontaneously appear at trial. The decisive factor behind the growing volume of forgery cases reserved for the twelve judges was the presence of legal counsel for the accused. The case of Robert Powell, in 1771, is a revealing instance of this development. Powell was indicted for forging a receipt for money for 798 £ on the purchase of 400 £ of East India stock. There were six counts to the indictment, and the trial lasted for several hours. Powell represented a familiar story of the perils that faced an enterprising young man from Wales, who through a fortunate marriage established himself in business. Unfortunately, his ambition exceeded his means, and he became financially embarrassed. He forged his brother-in-law's name to sell stock. He did so “in so artful a manner” that the clerk was fooled. No one at first suspected Powell. Only an accidental sighting led to his arrest.Footnote ⁶⁷ Powell's counsel produced a spirited defense for his client. He quizzed witnesses on how they could be sure of the prisoner's identity as some time had passed since the transaction. “Do you pretend to speak with certainty,” he demanded of one witness, “as to the day and time?” “Your house was very much crouded,” he asked another. He pressed a third to name the size of the reward offered for the detection of the offender. He got another witness to admit that the description in the advertisement did not very well fit the accused. In questioning the broker, counsel succeeded in securing the confession that the East India Company had brought a suit against him in order to coerce him to participate in the prosecution of Powell. Several servants were called in an attempt to produce an alibi for the defendant. A mercer, an oilman, a victualler, a tea-broker, and a publican were among those called to give Powell a good character. A broker testified that he had “an extreme good character.” “He is a very reputable tradesman,” a neighbor said, “and a man of strict honour.”Footnote ⁶⁸

We have to turn to Leach to discover that his counsel pressed two objections to the prosecution. He charged that the indictment was flawed because the phrase the “tenor of the receipt” was not used, but instead it employed the words “as follows, that is to say,” in describing the instrument. And he claimed that the indictment also should have described “the mode of its operation.” Leach reported that the Recorder, James Eyre, in order “to afford the prisoner every possibility of advantage from these objections,” respited the case. The judges discussed it on two occasions, first at Lord Mansfield's chambers, and later at Serjeants-Inn. They were unanimous that the first objection failed, but they were more divided over the second issue. Finally, a “great majority” held that in an indictment for forgery “it is sufficient to aver a general intention to defraud a certain person, which intention may be made out by the facts in evidence at the trial.” Powell was executed.Footnote ⁶⁹

A small flurry of cases followed in the wake of Powell's trial. The short reports given in Leach seldom hint at the long and complex trials that the Sessions Papers reveal. For example, Edward Birch and Matthew Martin were tried at the Old Bailey in 1771 for forging a will of Sir Andrew Chadwick. The trial took the best part of a day and defense counsel took an active part in pressing questions meant to raise doubts about various aspects of the transaction. Their counsel objected that the indictment was flawed because it read “a paper writing purporting to be the last will” rather than simply “the last will and testament.” The judges unanimously overruled the objection. The two men were executed.Footnote ⁷⁰

By the last third of the eighteenth century, defense counsel appeared in a majority of forgery cases.Footnote ⁷¹ What is especially striking is the frequency with which cases referred to the twelve judges, at least in the instance of forgery, arose from objections presented by lawyers.Footnote ⁷² Both John Jones (1764) and James Gibson (1766) had counsel (although we do not know their names). Of seven cases referred in the 1770s from the Old Bailey, six had counsel.Footnote ⁷³ Of eleven cases in the 1780s, at least seven had counsel for the prisoner present. By this point we often know the names of the defense counsel. They were drawn from among the most experienced of the Old Bailey bar. Serjeant Davy defended Bolland. William Garrow defended Newland. William Baldwin was counsel for John Hawkeswood, John Silvester was counsel for John Sponsonby, Newman Knowlys for John Henry Aikles, Peter Alley for Colin Reculist, and Jerome Knapp for John Dennett. Knowlys appeared as defense counsel in at least four of the cases reserved in the late 1780s. Almost as often, these men appeared for the prosecution. For example, Garrow presented the prosecution case in Parr (1787), in Clinch (1791), and in Dunnett (1792).Footnote ⁷⁴ The judges seldom complained. On the contrary, they often spoke favorably of the efforts made by the prisoner's counsel. Thus in Robert Reeves' case, even as he rejected the objections raised by counsel, Justice Lawrence conceded that “these objections have been argued by the Counsel very ably, and with all the zeal that does them credit, when a man had so much at stake.”Footnote ⁷⁵

The reputation of the Old Bailey Bar was not high. They were not noted for their legal training or jurisprudential learning. Garrow, for example, “was generally acknowledged to be ignorant of the law.”Footnote ⁷⁶ Their strength as counsel lay in “vigorous cross-examination” of witnesses, rather than in articulating subtle principles of law. They became skilled at pressing witnesses about the evidence they offered, testing its strength and the reliability of the person offering it. Their goal was to unsettle the prosecution case by sowing seeds of doubt in the mind of the jury.Footnote ⁷⁷ Their typical tactics were less suited to the forgery trial than to the normal Old Bailey case. These trials offered fewer opportunities to browbeat witnesses. The prosecutors tended to be of a higher class and the witnesses more respectable as well as more knowledgeable than the usual thief-taker or shop assistant. In searching for a strategy to employ to save their clients, it is not surprising that defense counsel turned to a work like Foster's Crown Cases where they found examples of the kind of objections that earned defendants a respite from their sentence. They seized such openings as they could find.

Defense counsel often repeated the claim that they were entitled to offer every challenge they could muster. “My Lord,” Silvester announced in the midst of a heated exchange with the trial judge, Justice Heath, “it is my duty standing here as a council for a prisoner to take every objection that lays in my power, for a man standing in his unfortunate situation, therefore I shall make no apology for troubling your lordship with a further objection.”Footnote ⁷⁸ The tendency was cumulative. Even as the twelve judges' decisions built up precedents for later determinations, they also offered models for the kind of objections that might be made. Here is the answer to the question: why did a judicial determination not put an end to that line of argument? What is striking is how narrow and familiar were the range of legal points raised. The repeated objection to a witness on account of interest is only the most obvious example of this feature of the forgery trial. The frequency with which the judges revisited the question of a note from a nonexistent person is another. Defense counsel mined the familiar veins. Garrow kept an annotated copy of the Old Bailey Sessions Papers to aid him in developing arguments for his clients. Denied the opportunity to see an indictment in advance, they pressed arguments which they knew often arose in cases of forgery.Footnote ⁷⁹ “I have to lament,” Knowlys protested, “an old rule, that counsel for prisoners in cases in which indictments are of a very long and intricate nature, are obliged to pick out from the short reading which they hear of that indictment from the officer of the Court, such objections, as perhaps might be much multiplied if they had the perusal of them.”Footnote ⁸⁰ If they did not have deep legal knowledge, the lawyers appealed to experience and memory. Knowlys, in challenging a witness as interested, appealed to his “own experience for 14 years, in the first criminal court of judicature in England—the Old Bailey.”Footnote ⁸¹ By the 1790s, defense counsel increasingly referred to reserved cases by name in order to support an objection. At the trial of Reeves in 1798, Wood, in raising a point of law, deferred to his colleague, Jerome Knapp, to recite a recent ruling. “The case Mr. Wood has alluded to,” Knapp reported, “is the case of King and Gilchrist, which was determined by all your Lordships; it is reported in this place by Mr. Justice Buller, of which I have a very correct note.”Footnote ⁸² Armed with their citations, lawyers had little trouble charting the best strategy for mounting a defense at a trial for forgery.

One interesting issue is the question of why the judges at trial so often felt compelled to refer challenges, so many of them similar to ones that had been dealt with previously, to the twelve judges. It was up to the trial judge, after all, to decide upon whether a legal point merited a referral.Footnote ⁸³ In the Reeves case we catch a rare glimpse of how a judge reacted to an objection. Justice Lawrence said that whereas he did “not feel the weight of the objection,” he would “mention it to my Brothers who are up stairs, and if they have any doubt upon that point, it shall be saved.” They must have had doubts, because the case was respited.Footnote ⁸⁴ No opinion was ever returned on this case, but Reeves was subsequently prosecuted on another charge. The Bank of England was the relentless prosecutor, employing Giles and Garrow to press the case. At this later trial, Lord Kenyon demonstrated the power that lay in the hands of a judge by brushing aside the legal challenge raised by Knapp for the accused. “I see nothing at all in the objection,” he told Knapp. Reeves was convicted and executed.Footnote ⁸⁵

Yet at many forgery trials judges declined to exert their undoubted power to pass on legal points. Rather they spoke of the obligation they felt to extend every opportunity to the accused. Justice Rooke, at a case in 1796, while defending his doubts about whether an objection proposed by an insistent Peter Alley had merit, declined to press his conclusion. Alley had adopted a combative tone, appealing to the Aickles case as a precedent, which established that a man living under an assumed name for a long period was not guilty of forgery. “Sheltering myself under the authority of this case,” he felt sure the charge could not succeed. “I am not,” the judge replied, “so obstinate as not to be ready to refer it to those whose judgment must be much better than my own; and therefore I shall reserve that point, if it is desired, for the opinion of the Judges.”Footnote ⁸⁶ Judges differed greatly in their readiness to respite cases for the consideration of their colleagues.Footnote ⁸⁷ No doubt they felt a mixture of motives and influences. Some judges probably looked to have their individual judgment reinforced by the collective decision of the other judges. Others may have sought assistance in working through complex legal questions whose consequences might stretch beyond the criminal law. Most, perhaps, were swayed by the social class and the unfortunate predicament in which respectable defendants found themselves. Rarer was the judge who felt able to rule on the objection without recourse to his colleagues.

By the 1790s forgery cases could cause the judges considerable perplexity, as the web of precedents grew ever more complicated. Where earlier the judges had faced the task of interpreting statute, by this decade the challenge was, increasingly, weaving their way through an ever growing mass of judicial decisions. In most instances, the review involved less confronting new issues than trying to decide whether a case fit under the rubric laid down in an earlier decision. For example, the Clinch case revisited the issues raised by R. v. Mitchell. In 1791 John Clinch was charged with forging an order for the delivery of goods. He secured seventy-eight pounds of raw silk with a note supposedly signed by the son of a silk dyer. Garrow represented the prosecution while Knowlys defended the accused. Knowlys rose melodramatically and said: “I arise with a great deal of humility, to deliver my sentiments to the Court: I hope I shall always refrain from doing it, where I have not a very full and labouring weight on my own breast, that unless I deliver my sentiments, I am deserting my duty to my client.” He then went on to refer to the Mitchell case as having established the rule that “the thing purporting to be forged, must be an order from the person claiming the possession and the disposal of the goods.” In this case, he argued, the son was a servant to the father who was the owner of the goods, and so was not the absolute owner. Garrow objected that “it is enough; for bringing this out of Mitchell's case, and bringing it into Jone's case, that the person claims to have a disposing power, not for his own benefit, not sui juris, but a disposing power; then beyond all question, Mr. Lewis Desormeaux has a disposing power over these goods.” Garrow went on to discuss the judicial reasoning in the Jones case from 1764, and he pointed to “a collection of crown cases” for support. Not content with this argument, he proceeded to call upon the court to “consider the extreme mischief in all the banking houses, in all the manufacturing towns, who carry on the greatest part of their business by their foremen, and in goods to the amount of many millions of money in the year.” Baron Perryn replied that “this is a new case; and I am not at all anxious to decide a new case, where life is concerned.” Perryn subsequently announced that the judges had given the case “serious and deliberate consideration” at more than one conference, and they held that both objections were right. Clinch was discharged.Footnote ⁸⁸

Two cases illustrate how fluid was the relationship between judge and defense counsel in forgery cases. More importantly, neither case was reserved, and yet they show us the range of responses, at the end of the eighteenth century, to the precedents established by the twelve judges. John Lee, in 1784, was tried at the Old Bailey for forging a bill of exchange purporting to be made by George Lord Viscount Townsend, master general of the ordnance. There were eight counts to the indictment. Lee had Silvester and Leonard MacNally for his counsel. They conducted a spirited defense, with Silvester offering several legal objections. He pointed out that the note was not “in the usual form” of a bill from the master of the ordnance used. He added that there was no “such office as the Pay-office in the Ordnance-office,” so therefore it never could have been a valid instrument. He referred to Mansfield reservation of the Jones case (1779) as authority for his objection. Justice Heath, who was presiding, contested each of Silvester's claims, supported by Justice Ashurst. When Silvester charged that the bill was not valid because it had no stamp, Heath refuted him by offering an interpretation of the statute imposing the stamp duty. “It says,” he responded, “it shall not be given in evidence between the parties, it does not mean in a criminal prosecution; the meaning of the act of Parliament is, that the man who neglects to pay the duties shall derive no benefit from it, but it does not extend to criminal suits.” Heath, in summing up the case, set aside Silvester's objections, leaving it to the jury to determine whether the purport of the note was as the prosecution charged. The jury convicted; Lee was executed.Footnote ⁸⁹

The trial of John Taylor at Chelmsford in 1800 points in the opposite direction. Taylor was accused of forging a note for 820 £. 10s. He was defended by Garrow, Best, and Knowlys, while Shepherd and Balmanno conducted the prosecution. Baron Hotham presided. The trial was long, taking much of a day. Garrow began by objecting to a witness as interested. Shepherd responded at length, which provoked Garrow to say that “if I had a strong objection at first, it has been rendered much stronger by the manner in which he has answered it.” Hotham replied that he had “not the least doubt in the world,” and disallowed the witness. Then Garrow, joined by Best and Knowlys in what must have been an intimidating challenge for any judge, argued that the prosecution had not proved that the a person of the name of the endorser of the note did not exist. Shepherd responded that if such an objection succeeded, “the necessary consequence is, that no man can be indicted for forgery.” The judge acknowledged the force of the defense challenges in his summation. “If you are perfectly satisfied that it is that Mr. Bartholomew Brown, and no other Bartholomew Brown; —that it is impossible for any other Bartholomew Brown to start up, and say this is my hand-writing, then beyond all question you will find the prisoner guilty.” The jury quickly returned a guilty verdict. Garrow, however, was not finished. He moved to arrest judgment. He said that “such an indictment as the present cannot stand.” It had not conclusively identified who all the parties to the note were. “I know there never was a judge,” he continued, in a direct appeal to Hotham, “went out of the way in order to cover the slovenliness of those who chuse to draw indictments.” Garrow and Shepherd argued back and forth, citing precedents half remembered, John Gurney intervening at one point to provide additional information on a case, with Garrow gaining the upper hand in the end. After listening to the exchange, Hotham announced that he was “perfectly satisfied in this case, and therefore I do not feel myself bound to leave it for the opinion of the Judges.” An indictment must leave no doubt about the identity of one of the names on a bill. The prisoner was discharged.Footnote ⁹⁰

What Were They Doing

In so far as the process of crown cases reserved has attracted scholarly treatment, it has been interpreted as a means for the judges to mitigate the severity of the capital code. “The dominant tendency,” Leon Radzinowicz wrote, “in the judicial interpretation of statutes, and particularly of those imposing capital punishment, was to construe them strictly and in cases of doubt to the advantage of the offender.” The judges, at least some of the time, appeared to bend over backwards to give the defendant the benefit of the doubt when taking up difficult points of law. Radzinowicz goes on to argue that the action of the judges should be seen as a judgment passed on the haphazard way in which capital legislation was passed in the eighteenth century. It represented an effort by the judges to curtail the consequences of ill-considered enactments. “The construction put by the courts on a number of such statutes,” he contends, “were much more restrictive than the established rules of strict interpretation would seem to warrant. In following this course the courts must have been actuated by a conviction that for many offences the death sentence was too severe a punishment and that the extreme severity of capital laws should be relaxed.”Footnote ⁹¹

A close reading of the rulings by the twelve judges in cases concerning forgery between 1750 and 1800 presents a more complicated picture. The case of Francis Parr, in 1787, indicted for falsely impersonating Isaac Hart in order to receive a dividend 58 £. 10s. from the Bank of England, produced an epic struggle. Fielding, Garrow, and Silvester prosecuted for the Bank, while Knowlys and Morgan acted as counsel for the accused. Parr had been a clerk to “a very respectable broker.” The defense attempted to explain his actions by pointing to an injury he had sustained during a voyage, which had altered his personality. They also mounted legal objections. “I do contend,” Knowlys pressed, “for a maxim of law, which has been much too long established, to be shaken by any thing which can be said on the part of the Crown, that acts of parliament which are penal, which inflict a fine on the subject, are to be construed strictly: if there be any difference as to any act which is penal, I am sure that which affects the life of the subject, will be that which will meet with the severest construction.” Morgan and Knowlys argued that the evidence did not sustain the charge, for the prisoner had not completed the act of receiving the money, “for the crime, though commenced, is not completed.” Counsel argued that Parr might still have turned back. The court, he contended, was obliged to take the most restrictive view of the act. “God forbid,” Knowlys concluded, “that the punishment of death should reach him.” While Fielding and Silvester both answered the objection, Garrow did so with the most vehemence. “Mr. Knowlys's argument is this; says he, he may go with intention of receiving it [the dividend], and he may possess himself of the instrument, but he may afterwards have time to repent: but I submit to the Court, the act has cut him off from that; the act of parliament has said, he shall not go to the dividend book; that act has said, he shall not possess himself of that instrument, which is as good as a bank note.” The recorder (Adair) admitted that “the act of parliament is certainly penned in a very awkward manner, and differs from many other acts.” He considered the difficult wording at some length. “I confess if I was obliged to give a final opinion now, I should have very little doubt that the personating is an endeavour to receive the money; but as it is a point of very great consequence, first to the prisoner's life, and next of infinite importance to the public; if there is a shadow of doubt, or the colour of an objection, which may be too much to say there is not, that doubt, and that objection being removed by the authoritative opinion of the Judges, will confirm the case more than my opinion.” As it was the first time such an objection was made, “I do not think the objection is so devoid of weight and colour, as to decide peremptorily against it.” Justice Gould, at the February sessions, reported the judges' deliberations. The decision was unanimous upholding the conviction. They ruled that the act held that “no person shall endeavour, or take any steps towards obtaining the money which others have lodged in the funds.” Parr received sentence of death and was executed.Footnote ⁹²

What we discover in this case is the generous scope given to defense counsel in forgery cases to contest the extent of a capital statute. Yet the course of the Parr case scarcely supports Radzinowicz's sanguine interpretation of such episodes. “Counsel,” he argued, “could thus take advantage of the innumerable and complicated formalities of procedure which almost invariably operated to the advantage of the offender.”Footnote ⁹³ The Parr case leads us to a different conclusion. If lawyers could make objections, the twelve judges did not have to accept them. Bentley has argued that the judges decided in favor of the accused in about 40 per cent of the cases reserved for the twelve judges.Footnote ⁹⁴ In forgery cases the rate for upholding verdicts varied from decade to decade. Overall, however, it mirrored the rate Bentley found for all crimes. About 40 per cent of forgery verdicts were overturned between 1760 and 1800. In a majority of cases the verdict of the jury was upheld. What is slightly more surprising is the frequency with which this determination was actually followed by an execution, even in cases where one or more judges expressed dissent from the majority opinion. This firmness appears to bear witness to the seriousness with which judges and royal officials continued to take the crime. As one prosecutor told the jury in a case in 1800, forgery, “I dare say, all of you know, is one of the highest crimes in the scale of offences in the Law of England; the conviction of which subjects the person convicted to the loss of his life.”Footnote ⁹⁵ The judges expressed the same attitude throughout the intense debates over amelioration of the criminal law with respect to the crime. “Their Lordships could not,” Lord Tenterden, chief justice of King's Bench, argued, “without great danger, take away the punishment of death in those cases of forgery.” “This crime,” he contended, “ought to be visited with the utmost extent of punishment which the law allowed.”Footnote ⁹⁶ Eldon, too, thought that if “they remitted this punishment, they would sacrifice honesty to villainy, they would sacrifice to the cupidity of the abandoned that property which it was their duty to protect.”Footnote ⁹⁷ The chances for success in pressing an objection were high enough to encourage counsel to pursue this well-trod path, but the fact that this move failed in a majority of cases cautions against too sweeping claims for the nature of the review process.

More careful attention to the content of specific decisions supports the impression derived from a count of how often verdicts were upheld. For example, the decision that the forgery of a note that would not have sustained an action in a civil case could be charged as forgery smoothed the path for the prosecution.Footnote ⁹⁸ Similarly, the decision in the case of R. v. Tattersal in 1801, which permitted the introduction of evidence of other forgeries to support the argument of guilty knowledge, aided the Bank of England in pursuing the utterers of its notes.Footnote ⁹⁹ Perhaps the best evidence for the judges' thinking was the way in which, at crucial points, they turned the question away from technical issues concerning notes to concern with the intention of the accused. In Powell's case, in 1771, the judges had held that the indictment did not have to detail all the particulars of a transaction, but that it was sufficient “to aver a general intention to defraud,” and that this intention could be proved by the evidence offered at the trial.Footnote ¹⁰⁰ In case after case, from R. v. Lockett (1772) to R. v. Taylor (1779) to R. v. Cogan (1787) they adopted the same phraseology to lead back from some issue of form to the nature of the act. In upholding the conviction of Reculist (1796), the judges determined that it was “clear the he knowingly uttered a false instrument, with intention to defraud; which is the precise offence that the laws against forgery aim to suppress.”Footnote ¹⁰¹ As Russell wrote in 1819, expressing a long-held determination, “the fraud and intention to deceive constitute the chief ingredients of this offence.”Footnote ¹⁰² For the judges, deceit lay at the heart of the crime, and they were not about to let difficult legal points obscure their view of the central issue.

What, then, does the story of forgery tell us about the evolution of the crown cases reserved process? It offers no simple lesson. The number of cases reserved increased dramatically toward the end of the eighteenth century. This remarkable rise in the practice may not mean that the judges faced more points of law, but rather that they were handling them differently. Where once they resolved them individually or referred them informally to their colleagues, they now made greater play of consulting with all the judges. What had once been a relatively minor aspect of the trial, a judge's deliberation on a point of law, now assumed greater prominence, both for those present at the trial, but also for the lawyers and judges who studied the cases at a later date. The presence of the lawyers represented the significant factor in this transformation of judicial practice. Still, the simple act of defense counsel raising objections did not alone produce the change. The lawyers constituted an audience for the judges' decisions, and they made use of them in ways independent of the judges' intentions. The publication of the cases contributed to the cumulative effect of this process. The treatises raised the prestige of the judges' deliberations, but also made them available to lawyers to exploit. The judges became increasingly aware that their decisions would receive a scrutiny they had not attracted earlier. There was added pressure to discover the logic that would tie together a growing volume of cases. These factors collaborated to produce the irresistible momentum toward greater formalization of practice and doctrine.

What we see, by the end of the century, is a complex dance involving not only defense counsel and the judge, but the prosecution as well. And often the participants displayed familiarity with each other's positions. We see this contest played out in a case from 1796. John Henry Gade was charged with forging a transfer for stock, although the transaction was not completed. As was usual with a Bank of England case, the indictment had eighteen counts. Randle Jackson and Balmanno appeared for Gade, while Fielding, Knowlys and Giles presented the case for the prosecution. When the case was respited by Justice Lawrence, Jackson and Giles argued the objections at length before the twelve judges. Jackson contended that “the entire directions of the statute must be complied with” for the crime to be completed. He appealed to R. v. Lyon in support of his claim. Giles, in response, invoked a string of cases, focusing especially on R. v. Cogan, “which shew that an instrument may be the subject of forgery, although in fact it should appear impossible for such an instrument forged to exist, provided it purports, on the face of it, to be good and valid as to the purposes for which it was intended to be made.” The judges were unanimous, holding that the transfer was complete and therefore the conviction was proper. Thus they contributed another precedent to the ever-swelling stack of cases that presented such a challenge to treatise writers such as East and Russell. Gade, by the way, was executed.Footnote ¹⁰³

Reading through the law books and case reports one can easily mistake the ever-growing thicket of twelve judges' decisions as being the product of nothing more than judges going about their business. It is easy enough to take the judges at their own valuation. Lord Lyndhurst, during the debates over the reform of the criminal law in 1830, presented a picture of the judges rising serenely above the hubbub and confusion of the courtroom and the public clamor displayed in the press. He was convinced that outside pressures did not sway “the minds of the Judges, whose business and practice it was, to discharge their duty faithfully, looking neither to the right nor the left, but examining what the law was, with a view to the due execution of it.”Footnote ¹⁰⁴ The evolution of judicial review in forgery cases tells a different tale, one in which judges had to acknowledge that the presence of lawyers required them to alter how they managed the courtroom and where extralegal considerations played an important role in determining why certain crimes secured so much attention and particular defendants such special treatment. One must remember as well that Lyndhurst's benign portrait of the even-handed judge was deployed in a highly partisan debate and was part of an effort to defend a capital code that made extensive use of the death penalty to punish a long list of crimes.

The coming of the lawyers may well have meant a change in the power that the judges displayed at trial and a limit on the ways in which they could regulate what happened there. But we can argue that the judges reasserted their now collective authority as the twelve judges to resolve legal disputes, interpret statute, and settle points of procedure.Footnote ¹⁰⁵ The challenge with respect to forgery was especially tricky. For the most part, the cases they faced had little to do with practical issues of civil law or how men of business used the variety of notes that they employed. What the cases did deal with was the ability to prosecute the crime. The judges, as they weighed up the issues, had to decide how far to go in hindering or aiding prosecution. They had to tread carefully. They responded, on the one hand, to a convention that said that the dictates of humanity required that one interpret penal laws strictly. On the other, they were aware of the alarm that the crime aroused. They shared it. In the background lurked the issue of the social class of the accused, the individuals who faced the gallows if their convictions were upheld. In the foreground was the challenging conduct of the defense counsel forgery defendants often employed. It was the peculiar convergence of these various considerations that produced such a dynamic outcome and contributed decisively to the evolution of judicial review in criminal cases.