1. Oldham, James , “Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries,” Law and History Review 29(1) (February 2011): 181–220CrossRefGoogle Scholar. See also, Bentley, D. R. , Select Cases from the Twelve Judges' Notebooks (London: John Rees, 1997), especially 8–12Google Scholar. On the influence of judges, see Beattie, John , Crime and the Courts in England 1660–1800 (Princeton: Princeton University Press, 1986), 342–47Google Scholar.

2. John Langbein suggests that the publication of these works produced “a cascade effect.” “The published precedents made it easier for counsel to identify and raise such issues, producing new precedents to feed the cycle.” Langbein, John , The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), 306Google Scholar.

3. William Oldnall Russell and Edward Ryan, Crown Cases Reserved for Consideration; and Decided by the Twelve Judges of England (London, 1825), iii. East, in justifying the length of his two-volume work, stressed the importance of the process. “It is well known to every lawyer that in criminal matters an abbreviation of an adjudged case is very seldom satisfactory, and that of a statute is nearly useless, and can never be ultimately relied on.” Edward Hyde East, Pleas of the Crown, 2 vols (1803 edition, reprinted London: Professional Books Limited, 1972), I: xi. Russell's long chapter on forgery in his A Treatise on Crimes and Misdemeanors 2 vols (London, 1819), was largely constructed around the opinions of the twelve judges.

4. Bentley, Select Cases, 21, 183–89. He relies upon the Twelve Judges' Notebooks and the various treatises for this count. He acknowledges, however, the difficulty of establishing an exact count of how many cases were set aside for judicial review before the last decades of the century. “It is not possible,” he admits, “to state with any confidence how many cases were being reserved annually in the 1760s.” The Old Bailey Sessions Papers (hereafter OBSP) http://www.oldbaileyonline.org/does not always reveal that a case had been reserved. On this subject, see Langbein, Origins, 187–88. The OBSP, for example, mentions special verdicts in forgery cases that are never mentioned in Leach or East: John Seal (t17151012-16) and Richard Warner (t17460117-46). On the other hand, Leach and East refer to cases as precedents that were not actually reserved for the judges.

5. Like Bentley, I rely on Leach, East, and the Twelve Judges' Notebooks for my count. As the crime of forgery overlapped with the offenses of false impersonation and simple cheats, I have been conservative in my count of marginal cases. For example, I did not count the case of Margaret Caroline Rudd, as it involved a controversy over the granting of crown witness status. A broader definition of the crime would have produced an even higher percentage of the reserved cases.

6. Forgery continued to demand a disproportionate amount of attention from the twelve judges well into the nineteenth century. Of 120 cases reserved (according to Bentley) between 1800 and 1809, 30 were forgery cases. In important ways, however, the shape of the response to forgery and the impact of this crime upon judicial proceedings had been set in the decades before 1800.

7. Langbein, Origins; Beattie, John , “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67CrossRefGoogle Scholar.

8. The most extreme positions in this debate have been staked out by Douglas Hay and V. A. C. Gatrell on the one hand, and John Langbein on the other. See Hay, Douglas , “Property, Authority and the Criminal Law,” in Albion's Fatal Tree, ed. Hay, Douglas, Linebaugh, Peter, Rule, John, Thompson, E. P., Winslow, Cal (New York: Pantheon Books, 1975), 17–63Google Scholar; Gatrell, V. A. C. , The Hanging Tree (Oxford: Oxford University Press, 1994), especially ch 18 and 19Google Scholar; and Langbein, John , “Albion's Fatal Flaws,” Past and Present 98 (1983): 96–120CrossRefGoogle Scholar.

9. Radzinowicz, Leon , A History of English Criminal Law (London: Macmillan, 1948), I: 684––86Google Scholar.

10. Hay, Douglas , “The State and the Market in 1800: Lord Kenyon and Mr. Waddington,” Past and Present 162 (1999): 101–62CrossRefGoogle Scholar.

11. In several articles I have discussed the history of forgery over the long eighteenth century: “Forgery Discovered, or the Perils of Circulation in Eighteenth-Century England,” Angelaki 1 (1993/94): 113–29; and “Making the ‘Bloody Code’? Forgery Legislation in Eighteenth-Century England,” in Law, Crime and English Society, 1660–1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 117–38.

12. Parliamentary Debates, 3rd series, 1832, xiv, 974–75.

13. “It was not unusual formerly to prosecute forgeries, when successful, as cheats, before the various modern statutes by which in most instances they are now made capital felonies.” East, Pleas, II: 825.

14. 2 Geo. 2, c. 25. For more background on the passage of this act, see my “From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution,” Past and Present 165 (1999): 107–40.

15. New Newgate Calendar (1793), IV:106. After William Newington was convicted for forgery in 1738, reports circulated in the press that “great intercession” was being made “for Newington the attorney.” He was reported to have been very penitent at the place of execution, making “several speeches.” Three clergymen ministered to the condemned. Derby Mercury, July 13, 1738; July 27, 1738.

16. OBSP t17870115-1.

17. OBSP t17790910-7.

18. Beattie has worked through the admittedly imperfect evidence, and he concludes that down through 1780 “not more than ten percent of defendants are likely to have had counsel,” and often the figure was considerably below this number. Beattie, “Scales,” 227–28.

19. Langbein, Origins, 36–40.

20. Ibid., 26–27; Langbein, John , “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors,” Cambridge Law Journal 58 (1999): 314–64Google Scholar.

21. New Newgate Calendar (London, 1793), I: vii.

22. OBSP t17150602-10. East reported that the “Judges differed in opinion,” but in the end upheld the conviction. East, Pleas, II: 882–83. See also, New Newgate Calendar (London, 1793), I: 193. Bigg afterwards received a full pardon. The Newgate Calendar (London, 1775), I: 192–93. Also in 1715, John Seal was indicted for forging a counterfeit stamp on playing cards. “A Point of Law arising, the Court directed the Jury to bring it in Special.” OBSP t17151012-16.

23. Langbein, John , “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1184–86CrossRefGoogle Scholar. An early instance of this objection came in the case of Edmond Bourk at the Old Bailey in 1733. “Then the Prisoner's Counsel producing several cases, in which interested Persons were not allowed to be Witnesses,” the prosecution counsel declined to contest the point. OBSP t17331010-21.

24. Thomas Leach, Cases in Crown Law Determined by the Twelve Judges (London, 1800), I: 10–11; OBSP t17380222-39. Russell's case is curious. It was not referred to the twelve judges, yet it became an important precedent. The same thing happened in the case of John Sponsonby (1784). This case was frequently mentioned in East and subsequent accounts. These examples suggest how informal the process of reviewing cases was at this date. Leach, Cases, I: 374–75; OBSP t17840707-101.

25. East, Pleas, II: 993–95.

26. The Trial of John Taylor for Forgery (Chelmsford, 1800), 9. I thank Peter King for bringing this pamphlet to my attention.

27. East, Pleas, II: 993–95. “Upon what principle that anomalous case was so settled,” Lord Ellenborough reflected in the early nineteenth century, “I cannot pretend to say; but having been so settled, it may be too much for Judges sitting on trials to break in upon it. The anomaly can only be remedied now by the legislature.” quoted in Russell, Treatise, II: 1501.

28. OBSP t17941208-30. For other instances of the objection, see R. v. Dodd (1777), R. v. Hevey (1782), R. v. Newland (1784). In 1753, in the case of Timothy Murphy, defense counsel (Nares and Davy) made an extraordinary extension of the argument in an effort to disallow the testimony of the prosecutor. Their motion failed. See T. B. Howell, A Complete Collection of State Trials (London, 1813), XIX: 694–734. This objection might have seemed to present a great challenge to a prosecution to prove a note forged. It did not because the court admitted anyone who possessed even a casual familiarity with the victim's style to testify to handwriting. See my “Knowing the Hand: Forgery and the Proof of Writing in Eighteenth-Century England,” Historical Reflections 24 (1998): 385–414.

29. Leach I: 10–11; OBSP t17380222-39.

30. OBSP t17411204-21; Leach, Cases, I: 24–25; Select Trials at the Old Bailey (London, 1764), I: 1–6. OBSP does not reveal that the case was reserved; only Leach establishes the fact. The case of Robert Rhodes in 1742 at the Old Bailey offers an opportunity to note some of the more familiar features of forgery cases at mid-century. Rhodes was accused of forging a will and of uttering it knowing it forged. Although Rhodes himself did much of the questioning of prosecution witnesses, his counsel made three objections. He opposed the introduction of a muster book from the Navy office to prove the death of a sailor. He argued that the death should be proved by people on the ship. (The prosecuting counsel said he “was surprized to hear this Objection,” pointing to other recent cases.) He also argued that if the sailor's death was not proved, this could not be called a will, as the person might still be alive. And he objected to the evidence of a crucial witness as being “a person interested.” The court upheld this objection but denied the other two. Rhodes was convicted and executed. OBSP t17420428-33; Select Trials (1764), I: 13–24. East cites the Rhodes case, Pleas, II: 911, 995–96.

31. The 1750s saw a rising profile for the crime, marked less by an increase in the numbers being tried than in the publicity that the cases received. See my “Forgers and Forgery: Severity and Social Identity in Eighteenth-Century England,” in Moral Panics, the Media and the Law in Early Modern England, ed. David Lemmings and Claire Walker (Basingstoke: Palgrave Macmillan, 2009), 157–75. This change is measured, in part, in the surge in the number of forgery cases reported in the Newgate Calendar, itself a reflection of the seriousness with which the authorities took the crime, sending many of those condemned to the gallows. See, Select Trials (1742; 1764).

32. Langbein, “Prosecutorial Origins,” 360–65.

33. Beattie, , Crime, 436–39; Peter King, Crime, Justice and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000), 278–88Google Scholar.

34. Michael Foster, Report of Some Proceedings on the Commission of Oyer and Terminer (1982 reprint of the 1762 edition, Abingdon: Professional Books Limited), 119. There can be little question but that Foster's publication of this case played a role in the authority it would secure. It was certainly unusual to have a case before the twelve judges reported in such detail. On Foster, see Thompson, E. P. , Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), 251–54Google Scholar; Langbein, John , “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 28CrossRefGoogle Scholar.

35. Foster was no enemy of the death penalty for forgery. He wrote to the Secretary of State in 1743 to oppose mercy for the forger John Woods: “I would not, considering the Consequence of Things of this Nature, and how the Commercial Part of the World is concerned to keep up the sacredness of the Bill of Exchange, Recommend him as an Object of Mercy.” Quoted in Oldham, James , English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004), 42, n. 125, see also 56Google Scholar.

36. Foster, Report, 120.

37. Ibid., 120–21.

38. We have very few instances in which judicial review led to remedial legislation. One such case was that of John Harrison, tried at the Old Bailey in 1777 for forging receipts in order to divert money arising from transactions between the London Assurance and the Bank of England. Harrison was an accountant with the former company. The case was exceedingly complicated; there was an indictment with twenty-four counts. The judges argued the issues among themselves, and then invited the prisoner's counsel to appear before them. Before a second meeting could take place, Harrison was pardoned. The legislature acted to remove “all doubt” by passing 18 Geo. 3 c.18. Leach, Cases, I: 215–18.

39. OBSP t17840526-131; Leach, Cases, I: 363. Leach includes the case in his work, even though the case was not respited. The prosecution said he was content to “detain him for the fraud.”

40. Leach, Cases, I: 134–35; East, Pleas, II: 937–38. Of course the ambivalence and confusion that characterized judicial deliberations in forgery cases paralleled that which arose in civil litigation over financial instruments. “Courts were forced to devise complicated and not wholly satisfactory rules” regarding the negotiability of notes and bills. James Steven Rogers, The Early History of the Law of Bills and Notes (Cambridge: Cambridge University Press, 2004), 186.

41. On this question, see Rogers, Early History, 232–43.

42. OBSP t17520219-49. Lewis was later pardoned subject to transportation for life. Two similar cases were respited while the judges decided on this case.

43. Rodger, N. A. M. , The Wooden World (Annapolis: Naval Institute Press, 1988), 124–37Google Scholar.

44. Foster, Report, 116–18; East, Pleas, II: 957. OBSP t17520219-49.

45. The Annals of Newgate (London, 1776), IV: 349–64.

46. Leach, Cases, I: 97-101; OBSP t17720219-46. This objection was revisited in several other cases around the same time. John Sterling, in 1773, was charged with forging a will to defraud the South Sea Company. The will of Elizabeth Shuter was forged to give Sterling the right to her annuities. Shuter was not dead, and she appeared in court to confirm the forgery. Sterling had counsel. The doubt arose over whether a document could be described as a “last will and testament” if the person still lived. The judges turned to “Mr. Justice Foster's Reports” and the case of Ann Lewis: “that an instrument may be subject of forgery, although in fact it should appear impossible for such an instrument as the instrument forged to exist, provided the instrument purports on the face of it to be good and valid, as to the purposes for which it was intended to be made.” Sterling was executed. OBSP t17730908-82; Leach, Cases, I: 117–18. No evidence of the objection or the deliberations of the twelve judges appears in OBSP.

47. East, Pleas, II: 940–41; OBSP t17720603-45.

48. Leach, Cases, I: 110–11. The prisoner received sentence of death but he was later pardoned on condition of transportation for life. East reported that the case of Abraham Abrahams, in 1774, was respited while Lockett was under consideration. He subsequently received sentence of death. East, Pleas, II: 941; OBSP t17740413-41.

49. OBSP t17791020-33; Leach, Cases, I: 255–57; East, Pleas, II: 960–61. Taylor's counsel also argued that “the use of the fictitious name” had not been necessary “to the accomplishment of any fraud.” The judges rejected this claim as well.

50. Leach, Cases, I: 268–70; OBSP t17820109-22, t17820220-32. The three actors were subsequently convicted of a conspiracy to defraud. The Public Advertiser, January 15, 1782, contained a full account of the trial and offered particular praise for the humanity of William Fielding who was counsel for the prisoner.

51. East, Pleas, II: 961–63; Leach, Cases, I: 265–66; OBSP t17810912-66. Sheppard received a conditional pardon, and was sentenced instead to three years of raising gravel on the Thames. No defense counsel appears to have been present, but both the prosecutor and the jury recommended the defendant to mercy.

52. The celebrated case of William Wynne Ryland was an exception to this rule. A talented engraver, he created a bill that was so perfect that even the “experts” could not tell it from the original. OBSP t17830726-1.

53. Leach, Cases, I: 243–45.

54. East, Pleas, II: 954-55; Leach, Cases, II: 483–86; OBSP t17870110-15. Moffatt's case is interesting for the way in which it unfolded. The objection did not arise during the presentation of evidence. What the evidence went to show was that the prosecutor had led the accused to make damaging admissions after saying he would show leniency. The prisoner said the stamp on the note was wrong, but the Recorder referred to Hawkeswood in rejecting this claim. The twelve judges, in their deliberations, turned to the recent legislation respecting notes of less than five pounds.

55. East, Pleas, II: 952.

56. Leach, Cases, I: 210–14.

57. East, Pleas, II: 950–51.

58. Ibid., 960; Leach, Cases, I: 206–8.

59. Leach, Cases, I: 292–93. In the case of John Lee, tried at the Old Bailey in 1784, the judges appealed to Hawkeswood in rejecting an objection raised by Lee's counsel, John Silvester.

60. Ibid., II: 811–16; OBSP t17960113-44. Defended by Peter Alley.

61. East, Pleas, II: 955–56. Rogers suggests that judges often “quite openly discussed the possible economic and social consequences of the decisions that they were called upon to make” in civil cases concerning financial instruments. They could arrive at completely opposed conclusions. See Rogers, Early History, 235–36.

62. In the case of William Newland, the counsel for the Bank of England apologized for the length of the indictment, saying that “it has been necessary in order to meet this crime to vary the description of the offence, and it has taken up no less than eighteen different counts in this indictment.” OBSP t17840225-13.

63. East, Pleas, II: 990–91; OBSP t17820911-110; Leach, Cases, I: 282–84. Silvester offered the objection. Lovell was subsequently pardoned on condition of transportation.

64. East, Pleas, II: 943–45.

65. Ibid., II: 987–88.

66. Leach, Cases, II: 753–59; OBSP t17941208-24. For an example of Buller's forceful exploitation of the review process in an attempt to alter practice, see Langbein, Origins, 212–14.

67. The Newgate Calendar (London, 1775), V: 310–14.

68. OBSP t17710515-36.

69. Leach, Cases, I: 90–92.

70. OBSP t17710911-64; Leach, Cases, I: 92; New Newgate Calendar (1793), V: 25–33.

71. Between 1797 and 1821, during the surge in forgery brought on by the suspension of cash payments for Bank of England notes, few forgers would have counsel because of the prosecutorial strategy employed by the Bank. See my article, “Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821,” Law and History Review 25 (2007):241–82.

72. I do not want to claim that lawyers were always the ones to raise objections. Jeremiah Reading, in 1793, was charged with forging an acceptance on a bill of exchange. His counsel devoted himself, during a long trial, to trying to discredit witnesses for the prosecution. It was, however, not the lawyer but the judge who raised a point of law. “The learned Judge [Grose],” Leach reports, “who tried the indictment, on examining the record with his usual caution, for it does not appear that any objection was made either by the prisoner or any person on his behalf, conceived a doubt in his own mind on the form of the indictment, and reserved the point for the consideration of the Judges.” The twelve judges determined that the indictment was fatally flawed. Ultimately Reading received a free pardon. This scenario was the exception rather than the rule by this date. OBSP t17930911-52; Leach, Cases, II: 672–75.

73. Defendants at the assizes also had counsel. William Fielding acted for William Jones at Chelmsford (1779) and Morgan acted for Edward Taft at Leicester (1777). The 1770s represented a crucial decade for the public perception of forgery. Several forgery trials became cause célèbre, especially those of the Perreau brothers and Mrs. Rudd, and that of the Rev. William Dodd. These trials offered a display of aggressive and inventive defense tactics that received extensive coverage in the press. See Andrew, Donna and McGowen, Randall, Forgery and Betrayal in Eighteenth-Century London (Berkeley: University of California Press, 2001)Google Scholar.

74. For the character and personnel of the Old Bailey Bar, see May, Allyson , The Bar and the Old Bailey 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), especially 34–50Google Scholar.

75. OBSP t17980110-41.

76. May, Bar, 40–41, and more generally, ch. 3.

77. Beattie, “Scales,” 233–36. For an assessment of the impact of the lawyers upon the capital code, see Gatrell, Hanging Tree, 429–39.

78. OBSP t17840114-57.

79. Langbein, Origins, 188–89; May, Bar, 78, 91.

80. OBSP t17870115-1. Case of Francis Parr.

81. John Taylor, 9.

82. OBSP t17980110-41. Balmanno, also for the accused, appealed to the case of William Jones (1779), “reported in Mr. Leach's book,” to pose a different objection.

83. Bentley, Select Cases, 13.

84. OBSP t17980110-41.

85. OBSP t17980418-65; Leach, Cases, II: 933–48.

86. OBSP t17960914-3 (case of Matthias Parkes and Thomas Brown); Leach, Cases, II: 898–919.

87. Bentley, Select Cases, 191–94.

88. Knowlys also charged that the indictment was flawed because it did not describe the son as having authority over the goods. OBSP t17910112-45; Leach, Cases, II:611–16. Increasingly by the 1790s, competing precedents were cited by defense and prosecution counsel as they presented their cases. In 1793, James Lyons was indicted for forging a receipt for Bank stock. The defendant pleaded guilty but then entered a demurrer. Knowlys contended for Lyons that the receipt did not fall under the statute. The counsel on each side wove dense arguments, drawing heavily on the by now voluminous number of decisions by the twelve judges. The case was respited, and the twelve judges ruled that it was not a receipt. The prisoner was discharged. OBSP t17940115-15; Leach, Cases, II: 681–97.

89. OBSP t17840114-57; Derby Mercury, April 1–8, 1784.

90. John Taylor, 8–11, 16–19, 20–23. The foreman of the jury expressed regret that “Mr. Garrow had not let them into that secret before the verdict.” “Mr. Garrow replied, “It will answer the same thing, thank God”.” According to Bentley, Hotham was a judge who rarely reserved a case for the twelve judges. Select Cases, 14.

91. Radzinowicz, History, I: 83–85, 98–100.

92. Leach, Cases, II: 487–91; OBSP t17870115-1.

93. Radzinowicz, History, I: 98–100.

94. Bentley, Select Cases, 21. He bases his count on the notebooks, but he suggests the success rate was about the same for cases that did not appear there.

95. John Taylor, 4.

96. Parliamentary Debates, 1830 (new series), XXV, 854.

97. Ibid., 855–56.

98. Russell, Treatise, II: 1446.

99. Bentley, Select Cases, 35, 89–92. “The admission of such evidence also appeared to undermine the rule prohibiting the Crown from charging more than one felony in an indictment, as well as compelling the prisoner to defend himself against charges of which he had no notice.”

100. Leach, Cases, I: 90–92.

101. Ibid., II: 812.

102. Russell, Treatise, II: 1471.

103. As with a number of forgery cases from the 1790s, the case was summarized at length in Leach, Cases, II: 847–68; OBSP t17960217-53.

104. Parliamentary Debates, 1830 ns, XXV, 849.

105. It is possible to read this episode as another front in the battle over judicial discretion that marked an important aspect of the struggle over criminal law reform in the early nineteenth century. See my article, “The Image of Justice and the Reform of the Criminal Law in Early Nineteenth-Century England,”Buffalo Law Review 32 (1983): 89–125Google Scholar.