More Than a Species of Larceny: Fraud Laws and Their Uses in the Eighteenth Century

ABSTRACT This article explores the under-researched area of fraud in the eighteenth and early nineteenth centuries. Fraud offences rarely feature in criminal law historiography, and where they do, they are positioned as an afterthought to theft and forgery. This article redresses this oversight and presents an in-depth analysis of eighteenth-century jurisprudence around frauds, providing a long-overdue mapping of the most common offences within this diffuse area of law. This article reveals the ways in which fraud offences were situated in the wider criminal law, and how frauds interacted with other property offences. This article maps the contours of the emerging modern offence of fraud, and in doing so makes the case for a rethinking of the significance of the criminal law of fraud and its place in the development of the modern criminal law. Finally, by assessing the ways in which fraud straddled the line between felony and misdemeanour, this article provides a lens through which to better understand eighteenth and early nineteenth century criminal procedure.


I. Introduction
The history of fraud is a neglected subject.Fraud 1 in the nineteenth-century has attracted some attention, mostly around the area of banking and higherlevel commercial fraud. 2 Eighteenth-century fraud is largely over-looked, with only partial consideration given to fraud as a nebulous category of criminal behaviour, falling within discussion of more voluminous offences such as forgery. 3Frauds have been understood as a confused 'spectrum of misdemeanours' of which little is (and perhaps by extension can be) known, 4 or an area of law of little consequence, receiving merely passing comment. 5In recent years, attention has been paid to forms of fraud in the earlymodern period, 6 and there is an increasingly buoyant historiography of nineteenth century frauds. 7Eighteenth century developments in fraud laws remain largely neglected.This is unfortunate because, as this article shows, the mid eighteenth to early nineteenth century signalled a turning point in legal responses to fraud offences.The reign of George III saw significant economic and social change in trade, commerce, and credit. 8Due to increased disposable income and demand for goods, domestic trade boomed during the eighteenth century. 9This boom occurred at a time of limited physical currency, 10 resulting in the prevalence of the extension of credit, and the more frequent use of increasingly complex and sophisticated financial instruments. 11Added to a burgeoning and peripatetic population, 12 these developments created the perfect conditions for frauds and cheats; the widespread use of little-regulated cash proxies, and social conditions in which it was increasingly difficult to verify peoples' identity. 13These frauds undermined these developing systems of credit, and more broadly, the civil order. 14arliament and the courts responded to these social and economic changes by widening the scope of the criminal laws around frauds and supplementing the common law with statute to strengthen criminal law responses to fraudulent behaviour.As demonstrated in this article as well as in previous publications, the courts gradually altered established doctrine around fraud and contract law which had previously barred recourse to the criminal law. 15he first section of this article draws on a range of court records, legal treatises, and contemporary publications, and lays out the legal foundations and context of the two fraud offences commonly cited in contemporary legal texts, and the most prosecuted fraud offences in the Old Bailey between 1760 and 1820: obtaining goods by false pretences and obtaining goods by false personation.Baker was right when he pointed to the scarcity of archival materials from the criminal courts. 16The lower criminal courts' archives, where they exist, have inconsistent and erratic records and only broad conclusions can be drawn about the types of cases heard. 17t is particularly challenging to provide quantitative conclusions around the prevalence of fraud accusations across the criminal justice system during this period.This article uses the records of the Old Bailey as a starting point.Fortunately, due to the nature of records kept by the Old Bailey, a fairly accurate picture of fraud in London's assize courts is possible. 18Previous research has established that, aside from sui generis offences against the Navy, the most commonly prosecuted frauds in the Old Bailey from 1760 to 1820 were obtaining goods by false pretences, cheating, and obtaining goods by false personation. 19The common law offence of cheating pre-dated fraud offences, forming much of the precedent for fraud by the eighteenth century. 20Significantly, despite the quantity of surviving archives for the Old Bailey, official record keeping of offences, particular fraud offences, was inconsistent.Often 14 For more detailed analysis of the relationship between property and civil order, see Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order, Oxford, 2016, 201-233. 15 offences were recorded as a 'cheat' by clerk's shorthand for other forms of fraud offence. 21This obscures the details of the indictments.
The second section situates the substance and operation of the doctrinal workings of these fraud offences within the broader context of property offences.This reveals the boundaries between fraud offences, and other offences; where larceny or forgery stopped, fraud offences began.In the third section, analysis of substantive fraud offences is procedurally contextualized through illustration of how offences falling under the umbrella of 'frauds' were not confined to misdemeanours, as the conventional understanding would suggest, but included many felonies.Where frauds did exist as misdemeanours, this section further considers how these frauds were deployed in conjunction with, and as alternatives to, felonious property offences.Building upon the analysis of the practical use of the law, parallel considerations which affected lay prosecutors' decisions are discussed, including state support for prosecutions and the recovery of propertylost to crime.
This article thus maps the contours of the emerging modern offence of fraud, and in doing so makes the case for a rethinking of the significance of the criminal law of fraud and its place in the development of the modern criminal law.In this it has something in common with McGowen's work on forgery. 22In plotting fraud offences, this article questions long-held perceptions of the criminal law, such as it being almost entirely fact-driven, and the criminal trial as containing little or no legal argument.John Baker has suggested that within criminal courts, 'sophisticated definitions of crimes were needless'. 23As lawyers became more involved in criminal law in the eighteenth-century, a more sophisticated understanding of the criminal law developed, as partly demonstrated by the proliferation in criminal law treatises, commentaries, and statutes. 24Fraud is an illustrative example of this developing sophistication of the criminal law, demonstrating how criminal courts were sometimes presented with complex legal argument around fraud, as opposed to solely questions of procedure or evidence.

II. Eighteenth Century Frauds Offences: Situating the Doctrine
As a category of offences which included both felony and misdemeanour, frauds were tried in all criminal courts, including summary, quarter sessions, assize, and King's Bench.Initial research suggests that the King's Bench mostly heard fraud cases where there was a legal question concerning procedure, for example whether the case was felony or misdemeanour, 25 or where the accused applied for a writ of certiorari.King's Bench judgments also reflect legal deliberation around the relationship between fraud and robbery,26 a discussion which requires additional research.Fraud accusations could also be heard in the assize court, although this mostly tried felonies.Quarter sessions could hear felony frauds, although mostly heard misdemeanours.Summary courts tried frauds with the least serious sanctions.
In-depth analysis of fraud offences heard at the Old Bailey between 1760 and 1820 reflects that, numerically, the most prevalent fraud offences heard were obtaining goods by false pretences and obtaining goods by false personation.As is detailed below, most of these frauds were misdemeanours, but there were many felonious frauds where specific statutes protected named professions or institutions.This article focuses upon the most common offences of false pretences and false personation.

Obtaining goods by false pretences
The seventeenth and eighteenth centuries were not a time of coherent government policy.Dissatisfaction with the number of criminal laws was widespread, particularly since the publication of Blackstone's Commentaries, which shed light on the state of the common law.27Individuals were wont to introduce narrow bills on specific issues.For example, and as explored in more depth below, instead of broad forgery offences, laws were introduced which criminalized the forgery of individual forms of document. 28he most commonly prosecuted fraud, obtaining goods by false pretences, was indicative of the patchwork effect which existed across property offences at this time.Like other property law offences, 29 obtaining goods by false pretences constituted a number of common law offences, supplemented by statute law.Further, the offence was narrowly defined.In particular, the goods to which the offence applied did not capture the full range that were in need of protection.Lastly, the changing interpretation of what constituted a 'pretence' created further need for interpretation for the courts.These three failings resulted in a lack of certainty for prosecutors which in turn impacted upon how the laws were deployed.Despite these complexities, obtaining goods by false pretences was arguably a more straightforward statutory offence than many others in that it was primarily defined by two statutes, one passed during the reign of Henry VIII 30 and the other in 1757. 31he statute introduced under Henry VIII pertained primarily to the restitution of goods in the case of felony, 32 but it was the 1757 Act which made the most significant attempts to bring fraud-related frauds together.
The 'Obtaining money by false pretences etc' Act 1757 partly consolidated the law on false pretences, both in its definitions and applications.This statutory offence existed in parallel with the common law offence of cheating, and the two were used interchangeably. 33This was not problematic in and of itself but it resulted in the convergence of the older common law offence of cheating and the newer statutory offence of obtaining goods by false pretences, and, perhaps because of this, acceptance and use of the 1757 Act was slow. 34These parallel offences also created a layer of complexity for those wishing to prosecute individuals for the fraudulent obtaining of their goods in that it was not explicit which offence should be favoured.
A second inconsistency within the offence of obtaining goods by false pretences was the subject of the deception: in other words, what constituted 'goods'.In the history of broader property offences, there has not been a consistent definition of property. 35Obtaining goods by false pretences is an excellent example of how the criminal law's reactionary approach to its own deployment resulted in piecemeal and often incoherent application to differing forms of property.Tudor legislation applied to the fraudulent obtaining of 'money or goods' which was broad in subject, and prior to the common use of financial instruments, was sufficiently wide in scope.This approach was further extended by the 1757 Act, which defined the elements of obtaining goods by false pretences as the intentional obtaining of 'money, goods, wares or merchandizes. 36Ostensibly, this statute widened the range of 'goods' that could be obtained by false pretences.There is little precedent on the interpretation of the broader definition of property which could be obtained by false pretence.Contemporary usage of 'goods' included 'wares' and 'merchandize', and differentiations between 30 33 Hen.VIII, c.1. 31 different forms of good largely depended on the production process.'Goods' extended to tangible property which might be sold or transferred, whereas 'wares' and 'merchandize' were property for sale.Property obtained prior to being offered for sale was goods, whereas property under contract for sale or offered for sale was merchandize.These definitions were becoming unfit for use by the nineteenth century.For example, the 1757 Act did not apply to securities or choses in action. 37Where a chose in action, or some of the newer and more valuable financial instruments of the time, were misappropriated, obtaining goods by false pretences could not be relied upon by prosecutors. 38 further problematic element of obtaining goods by false pretences was the definition of 'pretences'.Tudor legislation stipulated the need for goods to be obtained through the use of 'privy tokens and counterfeit letters'. 39This limited 'pretences' to the act by which the goods were obtained and this could not be by verbal representation 40 or a 'bare naked lie'. 41Judges consistently ruled that unless the fraud was carried out using 'false tokens', the action amounted to no more than 'making a fool of another'. 42The requirement for false token reflects historical attempts to delineate between a private lie and public cheat. 43The requirement for a token limited many defrauded persons' access to the criminal justice system.A private lie might be pursued in a civil court, whereas a public cheat, carried out using some instrument or token, potentially fell within the purview of the criminal law.
The relationship between public harm and the significance of the use of a token were closely connected.Tokens, or marks of authority or legitimacy, were essential to the functioning of many professions and public roles, such as those with law enforcement or parish responsibilities. 44The abuse or fraudulent use of such tokens undermined this authority and was consequently addressed as a criminal offence as it had the potential 'to pollute and render odious the public justice of the Kingdom, by making it a handle and pretence for corrupt practice'. 45This abuse of a token extended to other criminal offences such as the impersonation of local officials such as parish officers. 46There were also direct parallels with the laws of forgery which 37 R v William Humphry Hill (1811) Russ.& Ry.190. 38 Larceny and embezzlement offences were extended to apply to such misappropriations.This shall be discussed further below. 3933 Hen.VIII, c.1. 40 sought to punish the abuse of particular documents of legal importance. 47he importance of the token became less relevant as the eighteenthcentury progressed, and there began a widening in application of fraud offences.
The 1757 Act resulted in a broadening of the offence, allowing for false pretences to be in a form other than a token.Defining a 'pretence' continued to require significant jurisprudential wrangling.For example, presenting a cheque, the value of which the presenter knew to be worthless, constituted a pretence, even if words were not spoken. 48Likewise, presenting a counterfeit note could be a false pretence. 49An omission could also constitute a false pretence in some circumstances, such as where the accused failed to correct another's false assumption.This was illustrated in R v John Story (1805).Story legitimately tried to collect his post at a post office but was given a money order for a 'John Storey', which he accepted without correcting the postal worker. 50he 1757 Act was introduced by Sir John Fielding with the aim, if not the effect, of widening the meaning of 'pretences' and 'goods' to make the offence less narrow and more 'effectual'. 51Later case law suggests the judiciary supported Fielding's endeavours.At a time of increasingly complex commercial dealings, the law was shifting from a position of limitation to one of sympathy for the credulous who fell foul of swindles.As noted in East (though some years later): The term false pretence is of great latitude, and was used … to protect the weaker part of mankind, because all were not equally prudent … but still it may be a question whether the statute extends to every false pretence either absurd or irrational upon the face of it, or such as the party has at the very time the means of detecting at hand 52 This widening of the offence of false pretences captured broader forms of dishonest behaviour under criminal law, though still with the judicial caution of requiring the 'means of detecting at hand'.
The common law developed in parallel with the statute.Judgments maintained that precautions should be taken against frauds committed by false pretences, presumably in the form of requesting corroborative written evidence. 53The common law offence of obtaining goods by false pretences 47 Discussed in more detail in Section III, below. 48 remained extant and jurisprudence maintained the requirement for a token to have been used to carry out the offence. 54ther common law legacies remained through the eighteenth century including the requirement that pretences be sufficiently convincing. 55For example, a scrupulous shopkeeper would be expected to question a semi-literate scrawl presented by a servant, purporting to be from a gentleman.Consequently, whilst Fielding intended the 1757 Act to address the 'deficiencies of former laws', 56 the common law restrictions for prosecutors remained in place long after the Act came into force.
This widening of the criminal net in response to frauds can again be explained by the social and economic changes of the later eighteenth century.The eighteenth century was a pivotal time in the history of the use of credit and financial instruments.This was recognized by the leading law makers of the day, such as John Fielding and Lord Mansfield.Mansfield led the way in deploying the law, both civil and criminal, to support credit and economic practices. 57Mansfield was a keen promoter of commercial arbitration between those in business.As Attorney General, he also sat as a judge in the Old Bailey on many occasions between 1757 and 1768, presiding over seventeen sessions. 58In the assize court, Mansfield would have seen cases of fraud akin to fraudulent misrepresentation at contract and fraudulent conveyances, frauds which abused the essential system of credit which allowed goods and capital to move through the country.There was already a long history of legal responses to the defrauding of creditors, particularly around fraudulent conveyances. 59But as the eighteenth century saw a democratization of credit in that even those toward the bottom of the social strata might be extended credit by shopkeeper, it is of little wonder that the eighteenth century saw the strengthening of criminal laws around fraud.

Obtaining property by false personation
The second most prevalent misdemeanour fraud in the eighteenth century was obtaining goods by false personation, another common law offence later supplemented by numerous specific statutes.In essence, this offence was carried out by a person pretending to be someone else.In and of itself, personating a man was of no harm, unless it was for an ill intent. 60On the other hand, pretending to be someone else in order to commit a fraud was a widespread offence which was criminalized as a misdemeanour in both common law and statute. 61Felonious false personation offences, such as the obtaining of naval pay or prize monies through personation, 62 or the fraudulent transferring of funds using false personation were specific statutory offences. 63In these instances, the 'victim' was the Navy or the Bank of England (respectively), and both institutions lobbied for the introduction of capital felonies. 64btaining property by false personation was criminalized in several statutes.In keeping with the flurry of legislation created by Parliament, 65 false personation was legislated against according to whom the prisoner had impersonated.For example, the offence of impersonating a soldier to obtain wages 66 fell under different legislation to the offence of impersonating a sailor 67 or impersonating a South Sea stock owner. 68(Im)personating the master or mistress of a servant to give a reference was also criminalized. 69uch an approach applied to a seemingly unending list of officials and office holders including Inland Revenue officers 70 and even teachers. 71s for obtaining goods by false pretences, the existence of multiple acts was not inherently problematic for obtaining goods by false personation.False personation used to defraud the Bank of England would be prosecuted by the Bank of England, false personation against the Navy would be pursued by naval agents, and so on.A parallel offence arose where the personation fell within the offence of conspiracy. 72This was common as many cases involved more than one offender.For example, in R v Robinson, a servant conspired with another to personate her master to solemnize a marriage that was used as the basis of a rather audacious claim upon her master's property. 73This was both a cheat and a conspiracy.The close relationship between types of fraud and conspiracy, more so than the relationship between other offences and conspiracy, continued into the twentieth century.When the common law collection of conspiracy offences was done away with in 1977, one of the two remaining exceptions was the conspiracy to defraud (the second being conspiracy to corrupt public morals). 74urther scope for convergence between offences arose where false personation concerned documents and financial instruments.It was in such instances that Joseph Chitty argued that 'false personation … is nearly allied to forgery'. 75Contemporary commentators claimed that false personation, 'is in its nature nearly allied to forgery, with which it is usually accompanied, to give it efficacy'. 76Presumably that was because perpetrators would falsely personate a creditable or trustworthy person it order to pass off a forged document. 77This posed an additional legal layer for prosecutors who had to navigate between fraud offences and forgery offences.
Complications arose due to the close connection between obtaining goods by false personation and forgery.Often this offence was carried out by personating an identifiable person of good standing to pass off a financial instrument.This can be seen in the felonious form of the offence where individuals personated sailors to obtain prize monies (often bolstering their claim with documentary evidence). 78This commonly-required untangling of fraud from other property offences is why our understanding of fraud needs to be situated within a broader context of property and deceptive offences.The way fraud offences interacted and intersected with other offences provides a better understanding not only of fraud offences, but of the more common property offences.

III. Negotiating Offences: Fraud and the Wider Criminal Law
Fraud offences were inextricably connected to other property offences.The most common connections were between frauds, forgeries, and embezzlement.The other offences were felonies, with fraud (mis)understood as a misdemeanour.This entanglement between frauds and other property offences goes some way to explaining why modern offences of fraud are seen as having developed out of these other offences rather than having a longer history of its own.Frauds have fallen between the historiographical cracks, 73 (1746) 1 Leach 37. 74 For a detailed discussion of the history of conspiracy see: Alan Harding, 'The Origins of the Crime of Conspiracy', 33 Transactions of the Royal Historical Society (1983), 89. 75Chitty, A Practical Treatise, 1081.Forgery will be discussed in detail in Section III below. 76East, Treatise, 1004. 77See Section III for an exploration of forgery. 78R v Thomas Brady (1784) 1 Leach 327.
with reference, but not focus, given to frauds in analysis of other property offences.
The examples of obtaining goods by false pretences and false personation discussed above reveal how, as a category, fraud could be both broad and narrow.As the 1757 Act bedded in, and criminal courts became more comfortable with finding criminal behaviour where before they may have been inclined to find a breach of contract or fault on the part of the victim, the net of fraud by false pretences became increasing wide.The result of this broadening of fraud law was that prosecutors and courts could utilize fraud offences where other property offences might not apply.In an analysis of earlier fraud prosecutions, Henry Mares identifies how such frauds overlapped, and ways in which some offences appear to have been deployed as 'catch-alls for conduct falling outside other descriptions'. 79To better understand how fraud offences were utilized within the criminal law, this section explores how fraud offences interacted with more common property offences of the later eighteenth and early nineteenth centuries.

Fraud offences and larceny
The central offence at the heart of the criminal laws protecting property was larceny. 80Larceny has a winding and intricate history which was commonly recognized as being inextricably tangled up with fraud-related offences. 81ontemporary reformers were dissatisfied with the state of imbrication found between the offences of larceny and fraudulent offences.Bracton defined larceny as being 'the fraudulent dealing with another man's property with the intent of stealing it against the will of its owner'. 82'Fraudulent dealing' was derived from the Roman concept of contractatio which, whilst a vague doctrine, always demanded the change of possession of the goods alleged to have been stolen. 83A further shared characteristics between larceny and fraud lay in the mental element of the offences.The mens rea of larceny was not only concerned with contractatio but also animus furandi, the intent to steal.Animus furandi injected a requirement of dishonesty and deception into the offence of larceny, thereby creating further connections with fraud. 843 Ibid., 361.Discussion regarding the relationship between possession and title can be found below. 84Although I have argued elsewhere that we must be careful not to conflate deception and dishonesty, and not to assume that historical jurisprudence around dishonesty always referred strictly to the mens rea: Cerian Griffiths, 'The Honest Cheat'.
Larceny required that without the consent of the owner, a thing must be seized (cepit) and carried away (asportavit). 85The need for both elements limited the application of larceny and closed off the offence to victims found to have voluntarily handed over property. 86The requirement in larceny for the seizure of goods was stated by Justice Gould in 1789: 'to constitute the crime of larceny the property must be feloniously taken from the possession of the owner'. 87Taken literally, many victims who lost property, particularly wealthier victims, would have no recourse to larceny laws unless their property had been seized from them personally.Property was often not in the direct possession of the legal owner but was held by servants or third parties who had a bare charge over the goods. 88The law recognized many situations in which third parties had physical possession of goods for specific reasons, but that the constructive possession of the goods (what might today be referred to as 'title') remained with the original owner. 89ne response to this narrow interpretation was through the construction of 'possession'.Possession was interpreted broadly to mean both physical possession and constructive possession, having some interest in the property, such as by title. 90here was much discussion within the common law regarding 'seizure'. 91By taking too literal an interpretation of 'seizure', larceny failed to apply in common everyday situations such as when someone pretended to be interested in buying goods and asked to examine the goods before buying, later making off with them. 92The most significant example of such a situation is Pear's Case. 93In Pear's Case, a horse was hired with the intent to take it and not return it.The court interpreted the law such that this behaviour fell under the definition of larceny. 94Pear's defence was that the owner had consented to giving him the horse (to have a trial ride of the animal) and consequently, there had been no seizure.The court rejected this claim, holding that even though the owner had consented to the passing of the possession of the horse, he had not consented to the passing of the title of the horse and, thus, the horse was not legally transferred but merely bailed to Pear.By taking both the horse and the title to the horse, Pear had seized the horse and committed larceny.This conduct has frequently been referred 85  to as 'larceny by a trick'. 95Such reasoning was applied by the courts into the nineteenth century, with case law supporting the doctrine that licencing of goods, as bailment of goods, did not equate to the consensual transfer of those goods.Therefore, the intentional and dishonest taking of those goods could amount to larceny. 96hilst Pear's Case may have squared the circle and broadened the offence of larceny to cover the theft of goods not physically seized, this conceptual manipulation of larceny created yet further convergence between larceny and other deception offences.There continued to be decisions which refused to accept the 'larceny by a trick' loophole, such as R v Atkinson. 97In 1799, Atkinson established that in a situation where only the possession and not the title of goods had passed, and the goods were retained, the crime would be obtaining goods by false pretences and not larceny by a trick.Conversely, some judgments suggested that where a dishonest act had been used to obtain the property, this could still constitute larceny as the fraud was 'nothing more than mere machinery to effect his purpose'. 98uch contradictory decisions left the prosecutor in a difficult position as to whether to prosecute for larceny or a species of fraud. 99In many cases, the seemingly straightforward difference between larceny and obtaining goods by false pretences, whether the goods were taken without the owner's consent, was blurred to the point of uselessness.
These lacunae ultimately resulted in the creation of a range of other property offences such as larceny by a trick, theft by servants and embezzlement, as well as the increased scope of fraudulent offences such as cheats and obtaining goods by false pretences. 100Rather than tie themselves in judicial knots, courts were more likely to find that where it appeared goods were willingly handed over to the accused, larceny could not apply, but fraud offences might.This substituting of one offence for another was not straightforward.A factor which made the prosecution of the misappropriation of property problematic lay with the categorization of larceny as a felony, whilst most fraud offences were designated misdemeanours.Further discussion of this procedural complication is considered in section IV below.The practical complexities of the convergence of fraud with larceny likely resulted in the introduction of embezzlement as a distinct offence.Embezzlement was almost impossible to distinguish from theft by servants and is a telling illustration of the legislative lengths undertaken in the eighteenth century in response to emerging forms of fraud and property crime.

Embezzlement: filling larceny's lacuna
In 1799, legislation was introduced to overcome one of the central problems encountered by prosecutors of larceny, where property was taken away (asportavit), but was not seized (cepit). 101As explored in Section II, where property was acquired through false pretences or false personation, prosecutors could rely on fraud.However, a complication arose where the goods were misappropriated without being seized, but were also not appropriated by a fraud, as a fundamental element of fraud could not be shown, such as where no pretence had been made. 102A further barrier to prosecution for larceny was that larceny required trespass to the goods of some form. 103here employees or agents had permission to handle the goods, there was no trespass. 104Consequently, a master who had lost goods when his servant ran off with property he had been given permission to handle found himself in a challenging legal situation.
From the mid-eighteenth century, organizations and institutions tried to temper the limitations of larceny by servants.One of the most effective and innovative approaches was taken by the Bank of England.Legislation was passed to make misappropriation of its property by clerks an offence. 105he legislation was largely precipitated by Bazesley's Case in which a bank teller appropriated the money of a customer before depositing the money with his employer, the bank. 106Existing larceny laws meant that Bazesley could not be successfully prosecuted because when he 'seized' the money, it was not yet in his employer's possession; this amounted to no more than a breach of trust, and not larceny.Whilst the judgment tried to close this lacuna through a common law extension of larceny (with a similar rationale of Pear's case), the Embezzlement Bill was quickly passed into law in 1799. 107he 1799 Act sought to extend the criminal law to incidents in which goods or monies were misappropriated by those entrusted with property.For example, if a servant were to put money into his master's till and then appropriate that money dishonestly, then the servant could be found guilty of larceny. 108As in Bazesley's Case, if a servant received money from a third party, intended for her master, and that servant dishonestly appropriated that money before depositing it with her employer, she could be found guilty of embezzlement. 109Where a servant, without her master's authority, misled a third party and used a false pretence to obtain goods on behalf of her master, a fraud offence could apply.Larceny, embezzlement, and fraud laws continued to overlap, causing complications for prosecutors and courts who had to decide which offence most applied in their circumstances.

Fraud and forgery: two sides of an unbalanced coin
Joseph Chitty believed there to be an indistinguishable connection between forgery and fraud: 'Forgery, at common law, seems only to have been a species of fraud, and is therefore, often intermingled with false personating and other means of defrauding'. 110This conceptual alignment of offences is echoed by researchers of the history of forgery, 111 and as argued above, is perhaps the reason that fraud has been denied its own history.
Alongside having a core of deception, a further correlation between forgery and fraud in the eighteenth century was the definitions which bound them.Just as Tudor legislation concerning false pretences required pretences to be in the form of a token, so too did forgery offences require the imitation or doctoring of some specific document. 112tatutory forgery was composed of myriad legislation arrived at via the process of criminalizing the forging of particular writings, on a documentby-document basis. 113Examples of statutory forgery offences which closely aligned to fraud offences included: the forgery of writings relating to the supply of goods; 114 the felony of forging the mark on silver or gold; 115 forging or uttering the will of a seaman; 116 forging a marriage licence; 117 forging any document of an attorney and any writing which affects, and trespasses or conveys shares in public companies. 118ike cheating, forgery at common law was an ancient offence but one that by the eighteenth century was used far less frequently than statutory forgery. 119Forgery was utilized by prosecutors in a similar way to fraud offences, with an interconnection between disparate statutes and the common law: 'when a case arose which would not exactly fit a statute, recourse was had to the alleged common-law crime; but this was nearly always done in order to override arguments of a narrow technical character on the exact description of a particular document'. 120he relationship between fraud offences and forgery was exploited by some prosecutors using alternate indictments.Fraud offences and forgery indictments could in some instances be simultaneously pursued.However, courts were alert to such tactics and fraud offences could not be merely tacked on to the end of a forgery indictment as an insurance policy by the clerk of indictment.Rather, the fraud offence needed to be as clearly laid out as if the whole case rested upon it, even if the fraud offence really was a secondary offence to the forgery. 121As with larceny, and as shall be illustrated in greater detail in Section IV, prosecutors could not attach an alternative 'safety' accusation where one offence was felony and the other misdemeanour; prosecutors did not have the liberty to pursue both on the same indictment. 122This was less problematic for forgery, particularly where offences were directed against institutions such as the Bank of England. 123It was also less of a barrier for the felony fraud offences as dual-drafting allowed for forgery of a particular sailor's contract on the one hand, and if not accepted, offences such as false personation of a sailor on the other.The option to pursue multiple felony charges further complicated the choices available to the prosecutor.
Having explored the doctrinal interaction between frauds and common property offences, this discussion is further contextualized by turning to the impact of procedural complexities on the use of these offences.
IV. Fraud and Eighteenth Century Criminal Procedure: The Relationship Between Misdemeanour and Felony Many of the parallel property offences detailed in Section III existed as both felony and misdemeanour depending on the statute or common law offence identified.Likewise, within the category of fraud, there existed both misdemeanours and felonies.Larceny, forgery, and embezzlement offences were mostly felonies and fraud offences were mostly misdemeanours.The close interaction between frauds and other property offences meant that prosecutions often had to navigate the associated practicalities of the two.Where faced with a choice, the main consequences for prosecutors deciding between misdemeanours or felonies related first, to the support the prosecutor could expect in bringing their action, and second, whether the prosecutor could recover their property. 124he procedural ramifications of deciding to charge felonious larceny over a misdemeanour fraud brought two benefits to the prosecutor. 125The first rested upon the application of the reward system, the process whereby the state financially supported private successful felony prosecutions.The reward system was introduced in 1692 and awarded up to £40 for successfully prosecuting a felony. 126The state further supported prosecutors of felony through the binding of witnesses to attend court to give evidence. 127rosecutors of misdemeanours were required to pay for their own prosecution costs and would have no way to compel witnesses to give testimony.

128
A potential negative aspect of prosecuting a felony was that whilst the reward system provided some support, there was a legal requirement to continue the prosecution of a felony through to sentence, thereby denying prosecutors an opportunity to settle out of court. 129This curtailment of prosecutorial discretion had significant consequences for prosecutors for whom the priority was recovering property, and not punishment of the alleged offender.
A second consequence of prosecuting a felonious property offence rather than a misdemeanour was the potential recovery of the misappropriated property after trial.Contract law held that bona fide purchasers for value without notice could not forfeit the transferred property due to a previous fraudulent conversion at an earlier stage in the life of the property. 130If the fraudster had sold the goods obtained by fraud to an entirely innocent third party, the goods could not be recovered by the original owner.This was not the case for larceny, where the property could be recovered by the initial owner as the property had been obtained by felony. 131This was a strong motivating factor for prosecutors to favour a larceny charge over a misdemeanour offence which would not allow the recovery of the misappropriated property. 132y the early nineteenth century, law makers argued this disjointedness between felonious larceny and fraud had significant procedural consequences for the prosecutor and provided for absurdities within the law: For example, you shall charge a person who has procured some valuable goods under false pretences with a misdemeanour; and his offence will immediately be, that he has committed a felony: so that he will plead the greater offence, because, in this case, the punishment is less, or the conviction more difficult.Such was the state of our statute law, at present, that this anomaly absolutely existed in it. 133 archival research has found that prosecutors went to great lengths to prosecute as larceny rather than fraud offences, most likely for the reasons given above regarding the financial benefits of pursuing a felony rather than a misdemeanour.For example, in 1783, R v Richard Horner demonstrates how courts found obtaining goods by false pretences, if carried out with a preconcerted 'plan to rob', could be a larceny, particularly if the jury found that there was animus furandi. 134Such decisions demonstrate a system in which prosecutors were forced to make difficult decisions based on technical areas of law.In a system which largely relied on lay prosecutors, this proved extremely difficult for prosecutors and had significant consequences when deciding whether to pursue a prosecution at all.Baker may well be right that there was a dearth of legal argument in the eighteenth-century criminal trial, but where frauds and other property offences were pursued, prosecutors were required to run a pre-trial gauntlet of substantive and procedural argument to ensure their case was successful.
A clear illustration can be seen in the above example of interaction between misdemeanour frauds and felonious property offences, where misdemeanours and felonies could not be included in the same indictment. 135his forced prosecutors to make significant and complex decisions from the moment of complaint which could result in the prosecution failing due to an erroneous preliminary decision.It might be that having discretion as to which track to follow empowered prosecutors with greater flexibility. 136n the other hand, some nineteenth century commentators believed the choice of indictments rendered the law ineffectual and created opportunities for offenders to fall between the cracks of misdemeanour and felony due to the wrong offence being pursued at the beginning of the prosecution process. 137Flexibility came with layers of complexity and the potential for costly ramifications for prosecutors.
A connected consideration for the prosecutor of an offence which existed between frauds and other offences was the greater risk of failure of a fraud indictment due to stringent drafting requirements which required absolute accuracy.Once an indictment was presented it could not be changed. 138raud offences often fell afoul of the strict requirements of drafting, 139 more so than other offences, because indictments could easily be factually or legally wrong. 140hese practical influences on prosecutors were significant at a time of private prosecution, when lay prosecutors had more control over the direction and development of the law than they do today.Acting within the confines of criminal procedure, and undoubtedly with the direction of court officials, lay prosecutors potentially made decisions which altered how the substantive law was deployed and enforced.If prosecutors pursued a felony larceny indictment for a case of obtaining property by a trick, this forced the court to consider the presence or otherwise of sufficient seizure and taking away, legal concepts which, as demonstrated by the above analysis, were not straightforward.Likewise, if a prisoner was accused of using a letter of introduction to obtain credit which was later discovered to belong to another person, courts would be required to decide whether this fell within forgery, obtaining goods by false pretences, or indeed by false personation.

IV. Conclusion
Examination of fraud has largely been an afterthought in research into larceny and forgery.Where fraud has been researched, attention has been on the first half of the early-modern period and the nineteenth centuries.This article has demonstrated the significance of fraud offences in the 136 Shoemaker, Prosecution and Punishment, 40. 137Parliamentary Debates, vol 16, cols.1155-63, 13 Mar 1826 (HC), 1155. 138Chitty, A Practical Treatise, 171. 139There are examples from across the criminal court strata including the quarter sessions and assize.For example: Major Semple's Case, heard at the Old Bailey in July 1786 and the 1788 case of R v Mason, both reported in Leach, Cases in crown law, 326 and 384 respectively. 140In his popular law treatise, Chitty frequently uses fraud offence examples when directing lawyers as to good drafting practice.See Chitty, A Practical Treatise, 171.
eighteenth century and the changes the two most common forms of criminal fraud offence, obtaining goods by false pretences, and obtaining goods by false personation, underwent during this time of economic and social change.This examination of the alteration to fraud laws has revealed how law makers were willing to use the criminal law to promote and support domestic economic policy.Detailed exploration of fraud offences, and the ways their prosecution interacted with more common property offences such as larceny, reveals some of the complex legal and procedural matters which were heard in the eighteenth-century criminal assize court.This article has mapped the contours of the emerging modern offence of fraud, and in doing so makes the case for a rethinking of the significance of the criminal law of fraud and its place in the development of the modern criminal law.
Cerian Griffiths, 'The Honest Cheat: A Timely History of Cheating and Fraud Following Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67', 40 Legal Studies (2020), 252. 16Baker, Introduction to English Legal History, 540. 17There has been some excellent research on the quarter sessions such as: Robert B. Shoemaker, 'Using Quarter Sessions Records as Evidence for the Study of Crime and Criminal Justice', 20,90 Archives (1993), 147, at 155-156; Norma Landau, 'Indictment for Fun and Profit: A Prosecutor's Reward at Eighteenth-Century Quarter Sessions', 17 Law and History Review (1999), 507.Likewise, summary court records have been well engaged with such as in Drew D. Gray, Crime, Prosecution and Social Relations: The Summary Courts of the City of London in the Late Eighteenth Century, Basingstoke, 2009.
18For more on the methodological difficulties in researching criminal fraud, see Cerian Griffiths, 'Researching Eighteenth-Century Fraud in the Old Bailey: Reflections on Court Records, Archives, and Digitisation', 90 Acta Universitatis Lodziensis.Folia Iuridica (2020), 9.19Of the case with identifiable offences categorised as 'fraud' at the Old Bailey between 1760 and 1820, 72.6 per cent were either obtaining goods by false pretences, or by false personation.20Griffiths,'The Honest Cheat'.
Lindsay Farmer, Making the Modern Criminal Law, 202. 81For more on the history of larceny see: Leon Radzinowicz, A History of English Criminal Law, vol.1:The Movement for Reform, London, 1948; G. Fletcher, 'The Metamorphosis of Larceny', 89 Harvard Law Review (1976), 469; Edwin D. Van Orsdale, 'Historical Evolution of the Law of Larceny', Thesis submitted for the degree of Batchelor of Laws, Cornell University School of Law, New York, 1895, 109. 82William Holdsworth, A History of English Law, 16 vols.,4th ed., London, 1935, vol.2, 360.