The following chapter of this thesis will outline the methodology by which the above research questions with be answered. It is still uncommon for scholars of the law to engage with methods beyond traditional legal methods68 but as an interdisciplinary piece of research, this thesis will provide a long-overdue critique of interdisciplinary research uniting legal and historical studies.
The first central research question of this thesis concerns definitions of fraud.
Chapter 3 identifies the most common forms of fraud offence and traces their development from Tudor times to the early nineteenth century. The position of fraud, existing between the criminal and the civil law will be assessed in order to better situate the prosecution of fraud within the entire legal system. The purpose of this chapter is to provide the reader with a clear understanding of the law in this area, before moving on to consider how this law was utilised. Chapter 4 will outline the choices available to those falling foul of fraud. This chapter in particular seeks to question why certain courts were used to pursue fraud, and follows on from Chapter 3 in that it questions why particular forms of fraud would be pursued in higher, rather than lower courts.
Chapter 5 further questions the definitions of fraud during this period by considering how the law was enforced. This chapter also acts as a bridge between the first two central research questions of what was fraud, and who was prosecuting fraud.
Chapter 5 identifies the prosecutors of fraud at the Old Bailey by their occupation, and situates their complaints and the types of frauds being pursued by the imposition of a typology of fraud. This chapter asks not only who was prosecuting fraud at the Old Bailey, but what types of fraud, and in what circumstances were such frauds committed.
68 Sir John Baker, Reflections on ‘doing’ legal history, in Anthony Musson and Chantal Stebbings eds, Making Legal History: Approaches and Methodologies (Cambridge University Press, 2015);
Anthony Musson and Chantal Stebbings, Introduction, in Musson and Stebbings Approaches and Methodologies
21 Chapter 6 and 7 address the third of the research questions, the ways in which fraud was being prosecuted. In particular, how prosecutors used and negotiated the criminal justice system from the magistrates’ courts to the Old Bailey. The interaction between the prosecutor and some of the central actors within the criminal justice system will be examined. These actors include magistrates, court clerks, the legal profession, and juries.
The question of how fraud was prosecuted acts to further explain the second question of who was prosecuting, by exploring the ways in which prosecutors of fraud at the Old Bailey. Chapter 7 explores which juries heard fraud complaints at the Old Bailey and brings the thesis full-circle back to how these cases found their way into the Old Bailey at all. This is carried out through a detailed analysis of fraud disposal within the magistrates’ courts of the Metropolis. The thesis concludes with a final question regarding the use of specialist juries within the Old Bailey and some final thoughts regarding future research in the field.
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Chapter 2 Methods and Methodology
The questions at the heart of this thesis – what was fraud during the period, who was prosecuting this fraud, and how fraud was prosecuted – will be answered using a range of archives which shall be discussed in detail in this chapter, as well as throughout the rest of the thesis. Attention will be paid to the inter-disciplinary nature of the thesis, particularly the differing, and sometimes conflicting approaches adopted by legal historians and crime historians. Methods and methodology in the discipline of history revolve around the archives used and the pitfalls or advantages these archives pose to the researcher.69 This thesis will go beyond these parameters to critically engage with disciplinary approaches, and also to utilise analytical tools more commonly found in the sciences such as Statistical Package for the Social Sciences (SPSS).70 Finally, the methods of analysis shall be explored, paying particularly attention to the theoretical underpinning of the overall thesis, and the manner in which primary data was categorised and analysed to answer the central research questions. Particular consideration will be paid to the Old Bailey Sessions Papers (the Proceedings) and how these documents have been digitised.71 These archives form the basis of the data used throughout the thesis and as such, this source will be paid particular attention.
Alongside the Proceedings, other sources will be examined such as official court records of the quarter sessions, working documents of the summary courts, official government documents from such departments as the Treasury, legal practitioner texts, and many others. The reasons for the selection of these documents, alongside any methodological considerations which these archives present, will be considered as they arise. Whereas other archives and sources referred to in the thesis are used to answer particular research questions and appear in limited chapters, the Old
69 Barry Godfrey, Historical and Archival Research Methods. In D. Gadd, S. Karstedt, & S. Mesner (Eds.), The Handbook on Criminology Research Methods (New York, Sage, 2011) p.158
70 A statistical software tool which allows for more complex quantitative analysis.
71 It was from these digitised archives which data has been collected.
23 Bailey Proceedings form the evidential basis of all chapters. For this reason, this source requires and deserves in-depth consideration.