The occupation of prosecutors appearing before the Old Bailey provides an insight into who was using the assize courts and the criminal law. They also provide a better understanding of the significance of the criminal justice system in both the day-to-day lives of people, as well as the significance of the criminal law as a forum within which to manage disputes. The occupation of those using the criminal courts reveals which social groups felt most comfortable using the system to pursue their own interests. If a broad spectrum of society using the most serious courts to enforce their rights, does this reflect a system both for and of the whole of society? If all social strata were utilising the courts proportionally, does this demonstrate the legitimacy of the criminal justice system?524 Just as the types of fraud found at the Old Bailey reflect the users and agendas of the criminal justice system, so too do the occupations of the prosecutors.
This chapter will answer these questions simultaneously. Rather than focusing solely upon the occupation of the prosecutor in isolation, this chapter will also consider the nature of the offence they prosecuted and the circumstances within which the offence was committed. This will be achieved through the imposition of a series of typologies applied to the 469 indictments of fraud heard at the Old Bailey in this period.
524 Douglas Hay ‘Prosecution and Power’ in Policing and Prosecution, p.389
131 As stated at the beginning of this chapter, those who use the law, shape the law. If we know which social groups were most frequently using the courts to prosecute fraud, we can make some conclusions regarding why the laws surrounding fraud changed in the way they did. There is much contention within twentieth century literature regarding who was using the criminal justice system and what this means in relation to the public perception of the criminal courts525, particularly in relation to the legitimacy of the criminal justice system. Douglas Hay and Peter Linebaugh, have contended that the criminal justice system operated in such a way as to promote the interests of the social elite through the protection of property rights.526 John Langbein has strongly criticised these Marxist theories527, claiming that the influence of so many non-elites in the criminal justice system, including the petty jury, makes such an ‘elite conspiracy’ utterly impossible.528 However, by establishing that certain social and economic groups were using the assize courts to shape the offence of fraud, additional evidence emerges supporting the argument that the criminal justice system was indeed the tool of certain groups of society rather than others. Consequently, the purpose of identifying the occupations of persons bringing fraud prosecutions within the Old Bailey is to explore and problematize which social groups were using the criminal justice system to further protect both their property, and their commercial businesses. This is not what Langbein has criticised in others as a clumsy attempt to understand legal history though a straight-jacket of Marxist theory which requires ‘class warriors…[to]…wear rose-coloured glasses of the deepest hue’529 Rather, in identifying the prosecutors of fraud, this thesis will further support Hay’s argument that the criminal justice system as a whole clearly supported some forms of complaint more than others, namely, offences which threatened property and commercial interests.
525 This will be discussed further in this chapter.
526 See all contributions within Eds Douglas Hay, Peter Linebaugh. Albion’s Fatal Tree, Crime and Society in Eighteenth Century England. (Allen Lane, 1975) This explanation is also taken up by Alan Norrie in Crime, Reason and History
527 Although Douglas Hay has argued that he is not, in fact, a Marxist.
528 John Langbein ‘Albion’s Fatal Flaws’ Past & Present no.98 (Feb, 1983) pp.96-120. P.107
529 Ibid p.101
132 This thesis is not directly invoking class for reasons which shall be returned to but which are best encapsulated by E.P. Thompson:
Sociologists who have stopped the time-machine and, with a good deal or conceptual huffing and puffing, have gone down to the engine room to look, tell us that nowhere at all have they been able to locate and classify a class.
They can only find a multitude of people with different occupations, incomes, status-hierarchies, and the rest.530
By identifying the occupations of people utilising the highest and most public court in the country to pursue fraud cases, a clearer picture will emerge of both how fraud laws were defined and enforced and by whom.
The Categorisation of Prosecutors and their Occupations
Before exploring the occupations of prosecutors of fraud, it is essential to first describe how these occupations have been categorised. Drew Gray provides a typology of prosecutors in his work on the City of London and the prosecutions brought at both petty and quarter sessions. Within this typology, the categories Gray imposes are: gentry/wealthier, merchants, masters/professionals, tradesmen and artisans, poverty vulnerable trades, other, city officials, and not known.531 Gray’s findings illustrate that in the City’s lower courts, a third of prosecutors were tradesmen and artisans532, and compared with rural courts, more prosecutors in the City’s summary courts were of a higher social level.533 As with any categorisation process, Gray’s categories have some overlap and prosecutors may have fallen into two or more of these groupings.
Peter King has also provided categorisations of prosecutors, although with slight differences to Gray. King identifies the prosecutors in his study to be: gentry, professionals, farmers, tradesmen and artisans, maritime, husbandmen, labourers,
530 Thompson, The Poverty of Theory, p.85
531 Gray, Crime, Prosecution and Social Relations, p.30
532 Ibid p.29
533 Ibid p.30
133 and paupers.534 What is immediately apparent from these categorisations is that Gray’s focus was the City of London, and King’s, rural Essex. This explains why King has included a number of more traditional and rural occupations such as farmers and husbandmen, whereas Gray included merchants and city officials. Clearly, when categorising a determined group into occupations, one must consider the type of society from which these persons are drawn.
By its very process, categorisation joins different types of individuals together under an overarching banner. This is of course unavoidable, if not essential, as otherwise individuals would be labelled by the specifics of their profession. Professions in the eighteenth and nineteenth centuries, as today, were wide-ranging and diverse. A very limited sample of the professions arising in fraud trials at the Old Bailey include:
cutlers, corn meters, drovers, distillers, poulterers, and glass strainers.535 Without some form of classification, disparate cases provide little comparative worth in discerning meaningful historical trends within the court records. The purpose of categorising these professions is to allow for some conclusions regarding the types of people who were using the Old Bailey to enforce their property rights. This categorisation is also important as it reveals something about the more common targets for fraudulent activity and the type of settings within which fraud was carried out.
This classification must be understood in context. King warns against the process of categorisation, or indeed, the drawing of any conclusions that can be drawn from the naming of specific professions. King gives the example of a carpenter, which appears a clearly defined trade and one that can be safely categorised as an artisan. However, the occupation of ‘carpenter’ could include a range of people from the master carpenter to the semi-skilled: ‘…if those labelled as artisans are included in the middling sort the importance of lower-status prosecutors will be under-estimated, many were journeymen or apprentices rather than masters owning significant
534 King, The Historical Journal (1984) p.29
535 OBP, April 1802, trial of Daniel Moore (t18020428-153); OBP, April 1805, trial of Thomas-Joseph Charles (t18050424-139); OBP, September 1809, trial of Robert Streeter (t18090920-186); OBP, October 1766, trial of Stephen Willoughby (t17661022-58); OBP, January 1813, trial of Margaret Laidler (t18130113-108); OBP, September 1816, trial of William Ashlyn (t18160918-118)
134 amounts of wealth or capital’.536 Consequently, it is problematic to equate a profession with a level of wealth or social standing. Though profession may be indicative of a level of financial standing, there is a spectrum of success within any profession and one victualler may be far wealthier than another victualler. Also, complainants, or indeed any witness at the Old Bailey, may not have been honest in stating their profession. In open court, with the knowledge that their case may be reported in detail in the next edition of the Old Bailey Session Papers, it may have been tempting for a witness to exaggerate their success. Of course there is no way of knowing the level of exaggeration or dishonesty of witnesses but this possibility should be borne in mind when drawing any conclusions regarding the social standing of complainants before the Old Bailey. Again, we must be careful so as to avoid under-estimating the prevalence of lower-status prosecutors.
E.P Thompson warns against making anachronistic references to class in relation to the eighteenth century.537 Even during the Industrial Revolution, people did not think of themselves as being members of a particular class and rather, social identification was less likely to be horizontal, with people associating themselves with others of similar incomes, and more likely to be vertical, with members associating with people of the same profession, trade, or guild.538 By the middle of the eighteenth century, the guild system was certainly on the wane, but the rise of the self-regarding class-consciousness of the nineteenth century was yet to take hold539. This may partly explain why prosecutors would be unlikely to state their level of expertise of success within a profession, as the profession itself would be deemed a sufficient description of their identity.
Ascertaining the occupation of any actor at the Old Bailey is problematic. Frequently cases contain no more information than the names of the complainant and the accused. For example, the trial of Thomas Smith, the report of which states:
536 King, ‘The Historical Journal’, p.31
537 Thompson, Social History (1978)
538 Thompson, Journal of Social History, (1974) p.396
539 This contemporary understanding of class also creates challenges for those trying to explain eighteenth century fraud through the lens of white-collar crime as not all occupational roles fitted a twenty-first century understanding of occupation as relating to class.
135
‘THOMAS SMITH indicted for a fraud. The case was opened by Mr. Knapp, and the prisoner was ACQITTED [sic]’.540 This report contains no information of the prosecutor whatsoever. Sometimes cases contain information regarding the setting in which the fraud was committed. Where an occupation of the complainant is not stated, the wider case account may reveal more detail. Because the information from the Old Bailey Sessions Papers is rather opaque, an approach to collecting the available information has been wider than merely taking the Proceedings at face value. Rather, an interpretative approach has been adopted in order to make informed assumptions about the prosecutor. This approach has been taken with regard to a number of the hypothesis made in relation to the data collected from the Sessions Papers. For example, in the case of Reuben Thomas Craven, the complainant is a Godfrey Sykes.541 The Papers do not explicitly state the occupation of Mr Sykes, and in fact Mr Sykes does not give evidence. Rather, his servant gives evidence and from the facts given, it is apparent that the accused obtained goods through the servant, who worked for Mr Sykes in the capacity of some sort of tradesperson or trader. From this, it can be ascertained that Mr Sykes was most likely the owner of some sort of business that sold goods. Consequently, we can categorise him as a tradesperson, tradesman or warehouseman, though of course we cannot be concluded with certainty.
Another example is that of the case of Walter Harris, who committed a fraud against Thomas Sheene, when obtaining ‘ironmonger’s wares’ though Sheene’s servant, John Owen.542 As with the case of Godfrey Sykes, the Sessions Papers do not specify the occupation of Thomas Sheene but his status as a tradesperson can be safely presumed from the details of the servant and the wares obtained. Such examples demonstrate that regardless of the limitations of the Sessions Papers, they contain many accounts with sufficient detail to make some conclusions about the occupation of prosecutors.
540 OBP, February 1795, trial of Thomas Smith (t17950218-45)
541 OBP, April 1791, trial of Reuben Thomas Craven (t17910413-66)
542 OBP, July 1770, trial of Walter Harris (t17700711-64)
136 Due to the nature of categorisation, not every prosecutor falls sufficiently into the above ten classifications. For example, John Peters, prosecutor of Thomas Gilham in 1815, was the proprietor of the Milford Waggon. Peters is providing a service, but it would be inaccurate to consequently define him as an artisan, rather, he is providing a service but not as a servant. Similarly, William Offin, who brought a case in 1820 was employed as a ‘carrier’. For accuracy, these two cases have been separately categorised. Perhaps these prosecutors could be categorised as being the eighteenth century equivalent of the service industry, although this adds little to the categorisation of prosecutors of fraud during the period.
137 Table 5.1: Occupations of Prosecutors of Fraud
Tradespeople and the frauds they prosecuted
As demonstrated in Table 5.1, the majority of complainants for fraud were tradespersons, and those who traded or sold wares from a property; 52.8 percent of complainants were shopkeepers, tradesmen, or warehousemen. Within fraud prosecutions during this period, recurrent professions appear such as grocers,
543 See Appendix 1 for details of how occupations have been categorised and the theoretical and methodological considerations required for this process.
544 Broadly, ‘Artisans’ have been defined as any prosecutor who manufactured goods, or provided a service that related directly to the making or repairing of goods.
545 It is interesting that at such an early stage in the life of corporate identity, there should be examples of companies being identified as prosecutors, as opposed to owners of companies.
546 Rarely did servants prosecute fraud offences in their own right as complainant, rather than acting as an agent or servant of another complainant.
547 This includes persons of private means.
Occupation543 Frequency Percentage Percentage minus unknown occupations
Tradesperson 170 36.2 52.8
Naval Agent 67 14.3 20.8
Artisan544 35 7.5 10.9
Public Official 16 3.4 5.0
Company545 10 2.1 3.1
Bank of England 6 1.3 1.9
Clerk 4 0.9 1.2
Spinster 3 0.6 0.9
Servant546 2 0.4 0.6
Other547 9 1.9 2.8
Total 322 68.7 100.0
Missing 147 31.3
Overall Total 469 100.00
138 owners of warehouses, and linen-drapers.548 ‘Tradespeople’ is a fairly wide occupational grouping and includes non-traditional sellers of goods such as pawnbrokers549, as well as merchants who sold to consumers directly.550 Tradespersons also include wholesalers such as William Carey, who sold brandy and rum, but only by larger amounts and not less than two gallons.551 There are also a small number of tradesmen prosecuting who are without premises from which to sell their goods. For example, a Mr Price, described by his wife as a ‘salesman’ fell victim to a fraud in 1793552 and Thomas Barnesley, a ‘licensed hawker’ who brought a prosecution in 1801.553
In order to appreciate the high percentage of tradespeople prosecuting fraud at the Old Bailey, a wider view of eighteenth century society and occupations therein will provide context. The percentage of tradespersons within the Metropolis cannot be known exactly, although in-depth research on occupations has been carried out with regard to the seventeenth century to the nineteenth centuries.554 It has been argued that retailing was one of the most common occupations in the country during the eighteenth century.555 However, different regions would have had different industries and consequently, different occupations making up the population.
Justman and Van Der Beek have used Campbell’s London Tradesman and the insurance policies for the Sun Fire Office and Royal Exchange Assurance to chart the occupations within London between 1775 and 1778.556 Further analysis of this data, and using the same typological approach when identifying occupations of prosecutors for this thesis557, reveals that 27.6 per cent of insurance policy holders in London during this period were tradespeople. By far the most common
548 OBP, September 1765, trial of John Spragg (t17650918-77), OBP, September 1796, trial of George Dallaway (t17960914-111), OBP, May 1800, trial of John Burley (t18000528-136)
549 OBP, December 1775, trial of Thomas Trotman (t17751206-86)
550 OBP, September 1777, trial of Barnard Christian De Nassau Deitz (t17770910-101)
551 OBP, May 1779, trial of Daniel Dempster (t17790519-44)
552 OBP, September 1793, trial of James Stone (t17930911-124)
553 OBP, April 1801, trial of Lemon Caseby (t18010415-143)
554 For example see Schwarz, London in the Age of Industrialisation
555 Brewer, The Sinews of Power p.184
556 Moshe Justman and Karine Van Der Beek, ‘Market forces shaping human capital in eighteenth-century London’, Economic History Review, 68, 4 (2015), pp. 1177–1202. p.1188
557 See below
139 occupations undertaken by London citizens related to artisanal activities, with the most frequent being carpentry. Consequently, there is some suggestion that whilst trade formed a common occupation across the country, the manufacturing of goods and provision of services continued to form the basis of employment.
In light of the estimated proportion of tradespeople in London during the eighteenth century, the evidence indicates a disproportionate number of tradespeople were bringing prosecutions for fraud. This is not the only instance where a smaller proportion of the population brings a large number of prosecutions. In Essex in the eighteenth century, farmers made up an eighth of the population and yet brought thirty five percent of prosecutions for felony.558 The demographic differences within the capital will be explored in more detail in Chapter 7, but what is apparent is that tradespersons were the most likely to bring high-level prosecutions for fraud. This does not necessarily mean that over fifty per cent of frauds were committed against tradespersons, only that it was this group who pursued fraud prosecutions in the highest criminal court. However, as shall be demonstrated below when considering the types of fraud prosecuted, tradespersons were certainly the target for specific forms of fraud.
It is significant that tradespersons should choose the highest and most expensive court to pursue prosecutions for fraud offences. Table 5.2 illustrates that the most common offence of fraud heard at the Old Bailey was the obtaining of goods by false pretences. As has been explored in Chapter 3, obtaining goods by false pretences was a misdemeanour and thus, could have been pursued at summary or quarter session level. Moreover, as explored in Chapter 4, as a misdemeanour, the costs for such prosecutions, and the goods lost, could not be recovered. In light of this it must be questioned, why did tradespersons choose to prosecute fraud at the Old Bailey? In Chapter 6 it will be demonstrated that many tradespersons were likely members of prosecution associations and so, more likely to have financial and other support in bringing prosecutions. This may explain why tradespersons were more willing to undertake what would otherwise be a very expensive process with no hope of
558 King, The Historical Journal, p.31
140 financial reward. Another significant reason underpinning the use of the assize courts by tradespersons when prosecuting fraud was the role of the criminal justice system itself including the clerks who drafted the indictments and the magistrates who directed where in the system a trial would be disposed. The role of the magistrates
140 financial reward. Another significant reason underpinning the use of the assize courts by tradespersons when prosecuting fraud was the role of the criminal justice system itself including the clerks who drafted the indictments and the magistrates who directed where in the system a trial would be disposed. The role of the magistrates