Types of Fraud Heard at the Old Bailey
The specific offence for which cases of fraud were brought is not always identifiable.
This is primarily due to the persistent and ubiquitous use of the shorthand ‘a fraud’
when recording offences, even in official court records from the Old Bailey, the City of London, Middlesex and Westminster.583 However, even where a specific offence such as obtaining goods by false pretences is identifiable, this does not reveal the circumstances within which the offence was carried out.
One purpose of this thesis is to challenge assumptions around fraud, including the belief that fraud was a ‘middle-class crime’ and that it was carried out in situations within which some previous relationship or fiduciary relationship can be exploited.584 One method to demonstrate that the majority of fraud offences could have been committed by anyone, regardless of class or position, is through the imposition of a typology of fraud. Such a typology also better explains the types of people
582 According to indictment noted down in the Proceedings.
583 As discussed in Chapter 2
584 See Chapter 1 and the discussions surrounding the work of Edwin Sutherland and John H Langbein.
146 committing these offences through the discovery of how these people carried out their offences; as explained in Chapter 2, there is far less information about defendants compared with prosecutors during the eighteenth century.
Table 5.3: Typology of Fraud
Typology Frequency Percentage Percentage
Minus Unknown Categories
False Servant 137 29.2 36.8
Naval 66 14.1 17.7
Financial Instrument 56 11.9 15.1
Consumer 34 7.2 9.1
Public Official 29 6.2 7.8
Gambling 23 4.9 6.2
Previous Relationship 15 3.2 4.0
Intra-Commercial 12 2.6 3.2
Total 372 79.3 100
Unknown 97 20.7
Overall Total 469 100
This hypothesis is further supported when considering the types of frauds being prosecuted by tradespeople during this period. The main forms of prosecution have been categorised as ‘false servant’, ‘consumer’, and ‘intra-commercial’. These forms of fraud appear in the Old Bailey approximately thirty-seven, nine, and three percent respectively.585
False Servant
By far the most common type of fraud offences appearing at the Old Bailey were carried out via the ‘false servant’ method. This method involved the accused obtaining goods or monies by pretending to be sent by, or have the authority of,
585 These figures exclude the twenty percent of cases for which a type of fraud cannot be assigned.
147 another party. Often the creditor would know this third party. This method of fraud required some inside knowledge on the part of the false servant, knowledge either about the tradesperson and their dealings with the third party, or about the third party themselves. This can be illustrated through any of the 137 instances seen at the Old Bailey. In 1766, Stephen Willoughby was prosecuted for obtaining gin by false pretences through the method of claiming to be sent by his master, Mr Bicknall.586 Mr Bicknall was a known customer to the prosecutors, Messrs. Thomas and John Isherwood, distillers in Aldersgate Street and Willoughby took advantage of this to claim goods, ostensibly on Mr Bicknall’s behalf. Another, particularly audacious false servant swindle was carried out by Matthew James Everingham who, in 1784, obtained a number of law texts, criminal practice books from a member of the Middle Temple under the pretence of being sent by his master, a companion of the lawyer Everingham sought to defraud.587
Sometimes these false servants were known to the prosecutor and had indeed been a servant in the past and it was this prior recognition that allowed the accused to carry out their swindle. For instance, Ann Birt had previously been a servant to Mrs Law, who for many years had an account with the baker who brought the prosecution.588 When Birt left her post she had the inside knowledge and knew the tradesperson would recognise her when she came on behalf of her mistress to obtain goods fraudulently.
The false servant scenario also applied in circumstances where the complainant did not know the accused, but the accused had knowledge of the complainant’s customers or business and utilised this information in order to obtain goods by false pretences. Charles Wilts obtained goods from calico printers, John and James Stirling, by falsely pretending to be sent from Messrs. Waithman and Bristow, who were long-time customers of the Stirlings.589 At the trial, both Mr Waithman and Mr Bristow testified that they had never seen the accused before. Assuming that the court was
586 OBP, Oct 1766, trial of Stephen Willougby (t17661022-58)
587 OBP, Jul 1784, trial of Matthew James Everingham (t17840707-116)
588 OBP, Oct 1789, trial of Ann Birt (t17891028-96)
589 OBP, May 1800, trial of Charles Wilts (t18000528-137)
148 right and Wilts was guilty, Wilts must have gained knowledge of the customers of the Stirlings and used this to obtain the goods.
In both instances, where the accused was known to the prosecutor and where they were not, we see clear examples of the first doctrine of fraud, the use of the artful device. Often, this artful device was the abuse of knowledge by the accused such as knowing that certain tradespeople provided credit to particular families. The artful device could equally be the abuse of the former relationship between the accused and the tradesperson such as the tradesperson believing the accused to have the permission of their master to obtain the goods.
False servant fraud was made increasingly available due to the changing nature of society in the eighteenth century. London had always been a diverse city, but early-eighteenth century London society was still bound by parish and places of worship, through which most people lived, socialised, and were recorded in official records.
London was more a series of towns than an holistic city. This social structure resulted in the majority of persons being known to those whom they saw and traded with every day. This allowed for trust-based credit transactions between consumers, retailers, wholesalers, and merchants, as discussed above. London society began to change due to the increase in population and the influx of outsiders from other parts of the country. This loosened communal ties and resulted in new faces, new consumers, new retailers, wholesalers, and merchants. Consequently, these changes in demography resulted in greater opportunities for fraud.590
Given that tradespersons make up 52.8 percent of identifiable prosecutors of fraud offences during this period, it is perhaps not surprising that this modus is the most common. As explored in Chapter 3, for obtaining false pretences to be successfully made out, the prosecutor must show that a false pretence was indeed used, and that they, the prosecutor, was tricked into voluntarily handing over the goods or monies.
If tradespersons were generally of a more litigious bent, it was expected that one of the offences for which they would prosecute would be fraud. The method of acting
590 Muldrew, Social History p.174
149 as a false servant was perhaps substantially easier than other methods, such as those labelled ‘consumer fraud.’591
Tradespersons and merchants were the most common prosecutors of fraud at the Old Bailey, although the courts had to be supportive of these prosecutors if they were going to be heard at such a high level.592 Why were the courts so ready to propel fraud committed against tradespersons, particularly in cases by those pretending to be authorised servants, into the Old Bailey? Servants were commonly employed by households, even by the more modest ones. These people were indispensable and a great deal of trust was granted them. Servants looked after the family’s children, cooked the food the family ate, and to a large extent, they impacted upon the family’s reputation in local commercial circles. It was the servants who attended markets and shops to buy and collect goods on behalf of the family.
This treatment of the prosecution of this type of fraud reflects the third doctrine of fraud as defined within this thesis, the need for the fraud to have some public harm.
There was great concern throughout the eighteenth and nineteenth centuries with the trustworthiness of servants and this concern formed the basis of judicial recognition of the public harm of frauds committed by these trusted figures. In 1749, Henry Fielding, who would become the famous Bow Street Magistrate, established the Universal Register Office on the Strand.593 The purpose of the office was to act as an agency through which a database of all the servants in London could be held.
Information such as a full history of employment and a record of any misdemeanours would enable would-be employers to have better control over whom they let into their homes. This ambitious project had some successes as an employment agency for servants, but Fielding’s passion for collecting data, which he would later take to Bow Street, is evident from this time. Equally evident is the public demand for thoroughly checked servants, reflecting a wider concern with the veracity of servants
591 As discussed below
592 This will be discussed in detail in Chapter 6
593 Anthony Babbington, A House at Bow Street. Crime and the Magistracy, London 1740-1881 (2nd Ed, Barry Rose Law Publishers, 1999) p.109
150 and the potential for fraud and other types of offences which may befall the employers of untrustworthy servants
There were a number of extremely high-profile cases in the nineteenth century regarding servants’ accused of attacking their masters. The 1816 case of Eliza Fenning, erroneously convicted for poisoning the family for which she worked, resulted in public outrage for the harshness with which she was treated.594 Likewise, the 1840 case of Courvoisier, accused of murdering his master, Lord William Russell, attracted public, professional, and political condemnation of his defence counsel, Charles Phillips. It was widely believed that Phillips went too far in defending a man who had brutally murdered his master in his own bed.595
As illustrated in Chapter 3, it has often been assumed by historians that fraud required an element of literacy on the part of the swindler and it is this assumption that has propagated the perception of fraud as a middle-class crime. It is repeatedly apparent throughout this study that this modus operandi was grounded in knowledge, alongside bravado and a convincing performance, but certainly not the requirement for any form of literacy. Clearly, the long-held assumption associating fraud offences with the middle-classes, or at least the literate, is not supported by the most common form of fraud being carried out during this period. As the false servant method demonstrates, fraud relied more on the exploitation of knowledge, often from an insider, rather than any distinct literacy skills. While fraud became increasingly defined as a breach of trust596 by the mid-nineteenth century, in the eighteenth century, fraud was more broadly construed as an abuse of knowledge.
Consumer Fraud
As discussed above, the eighteenth century saw a commercial revolution that began in the mid-eighteenth century. It was enabled by a growth in disposable income,
594 Even though no members of the family had died, Fenning was executed. For more details of Eliza Fenning see Gatrell, The Hanging Tree. Execution and the English people, 1770-1868 (Oxford University Press, 1994) and Ben Wilson, The Laughter of Triumph: William Hone and the Fight for the Free Press (Faber and Faber Limited, 2005) Ch. 13.
595 May, The Bar p.226
596 As discussed in Chapter 1
151 partly created by a national fall in food prices597, and facilitated by the extension of credit and more sophisticated financial instruments. This commercial boom greatly extended the consumer classes and provided huge opportunity for commercial activity, both selling and consuming. However, the growth in commercial activity simultaneously created opportunity for fraudulent activity. The fundamental method by which consumer fraud was carried out was by swindlers obtaining goods or credit by falsely claiming to a tradesperson or merchant that they could pay the debt, or by pretending to be a person of good character to whom credit could safely be extended. This was a different mechanism to the ‘false servant’ swindle in that the accused was obtaining the goods or credit for themselves, rather than on behalf of a third party. This form of fraud has also been categorised separately as it related to a particular abuse of the credit system as identified by Margot Finn.598 ‘Consumer Fraud’ was a less common method of fraud than that of the false servant. This was partly because it was more difficult to carry out and, as shall be argued, less likely to be prosecuted. This form of fraud is a further demonstration of how the doctrine of the artful device was interpreted by the courts.
There are many colourful examples of consumer fraud within the Old Bailey. Roger Prate obtained goods from a tradesperson by pretending he was a merchant with a large customer base abroad.599 A similar ruse was carried out by John Dawson and Joseph Clerk, who claimed to gun-maker, Samuel Knock, they had come into a great inheritance and consequently were credit-worthy.600 They even produced a stack of papers amongst which was ostensible proof of their inherited wealth from a Mrs Catherine Prussia Farrington. On the promise of this inheritance, Dawson and Clerk obtained credit from the gun-maker. The case is reported at length in the Proceedings due to the elaborate lengths the co-accused went in order to convince Knock that they had inherited the money. The ruse even included Mr Knock attending the estate from which the inheritance was to derive. Even though the co-accused used seemingly false documentation to obtain the credit, it was the wider ruse that
597 Weatherill, Consumer Behaviour, p.19
598 See in particular Margot Finn, Character of Credit
599 OBP, December 1769, trial of Roger Prate (t17691206-47)
600 OBP, December 1820, trial of John Dawson and Joseph Clerk (t18201206-140)
152 convinced Knock, which resulted in a conviction for obtaining goods for false pretences.
A further illustration is provided by Henry Fielding in the 1750s:
There is another sett (sic) who defrauded tradesman by taking on themselves false names, and by pretending to be related to, or connected with, some persons of credit and fashion, and produce false letters to prove their intimacy…they make it their business to enquire at inns who serves them with their wines and brandies from London and sith (sic) out of shopkeepers the names of the tradesmen here who supply them with goods. Furnished with this knowledge, they come to London, and one day appearing in the character of a country Inn-keeper, they go to the distiller, whose name they have learned, telling him he has taken an inn…they he was recommended to him by one of his customers, whose name he tells him, and describes his house and family. The distiller’s suspicion being lulled asleep by this stratagem, he cheerfully supplies his new customer with some of his best goods, and sends them to some appointed inn in the town, from whence they are conveyed…and converted into cash.601
Consumer fraud is not always as obvious as the above cases. In some instances, the relationship between civil and criminal frauds is more apparent. The potential to enforce debts or address fraud through the courts provided the final mechanism to underwrite the trust within the market.602 Consequently, the doctrine that a criminal fraud is not merely a breach of contractual warranty is apparent. The doctrine of public harm is equally relevant to consumer fraud as in order to nurture trust in commercial relationships, it was important that contracting parties knew there was recourse to the law when needed. Consequently, as the complexity of the market
601 John Fielding, Extracts from such of the penal laws as particularly relate to the peace and good order of the Metropolis, 2nd ed.- (T.Cadell, 1763) p.257
602 Muldrew, Social History p.179
153 developed, and the need for commercial trust became more significant, so too did the involvement of the courts.603
One regulatory criminal offence that was common across the period was that of false weights and measures. These offences could take a multitude of forms from selling under-weight bread to watered-down wine. It is perhaps not surprising that few such cases appear at the Old Bailey as these offences would be addressed at lower courts, most likely summary courts. However, although cases of obtaining goods by false pretences and cheats were also capable of being disposed of at lower courts, they were actually more likely to be found in the Old Bailey. One reason that false weights and measures cases may not be found at the highest courts was because a large number of the prosecutors were women and there has been research that suggests where women prosecuted, disposal of cases were likely to happen in lower courts.604 Another reason for the dearth of such prosecutions at the assize level may be the operation of the doctrine of individuals needing to take some steps to protect themselves. Such a barrier to a successful fraud prosecution may have prevented such frauds from reaching the higher criminal courts as there may have been concern that prosecutions would place too much onus on tradespeople and relinquish consumers’ responsibilities to ensure the terms of the contract for sale in which they were entering605.
Intra-commercial
Intra-commercial prosecutions were accusations of fraudulent misrepresentation within a contract or business dealing between tradespeople. The dearth of instances in which tradespeople appear to be using the criminal courts and the laws of fraud to enforce debts or create sanctions for breaches of contract is notable and reflects the courts’ awareness that a breach of contract was not a criminal matter. The threat of litigation has long been used to recover or settle debts. Furthermore, in a time when the line between civil and criminal litigation was blurred and criminal
603 Craig Muldrew, ‘Rural Credit, Market Area and Legal institutions in the Countryside in England, 1550-1700’ in Brooks and Lobban Eds, Communities and Courts p.158
604 Shoemaker, Prosecution p.211
605 See Chapter 3 for further discussion of Caveat Emptor
154 prosecution was arguably cheaper than civil litigation606, it might be expected that people would use the criminal courts to recover civil debts. There is evidence from some Proceedings that the courts were alert to the potential overlap between the criminal offence of fraud, and the civil laws of contract law. For example, the 1803 prosecution of John Edwards was dismissed as it appeared ‘there was a contract entered into between the parties.607 It is unclear whether the prosecutor brought an action against Edwards in the civil courts, although it is certain that the Old Bailey judge in this instance held that the dispute was civil rather than criminal in nature.
This is a strong example of the fourth doctrine of fraud identified in this thesis, that a criminal fraud could not merely be a breach of contractual warranty.
It is possible that the threat of the criminal law could be used to extract monies or recover debts, even if this threat was not carried through. In such instances, these
It is possible that the threat of the criminal law could be used to extract monies or recover debts, even if this threat was not carried through. In such instances, these