Saturday, 27 July 2013

New South Wales and the ‘rule of law’

NSW was by any standards a different sort of colony, like Newfoundland ‘an anomalous society too divided and too backward to be able to work the old representative system’.[1] In its early decades the lack of conventional legislative bodies and the single-minded commitment of Governors to establishing and maintaining a convict colony meant little open debate and conflict over the meaning of the rule of law. This occurred, despite the fact that Lord Sydney, the intellectual planner of the colony seems to have imagined it as a society of freemen. Under the practical disciplinary guidance of Governor Phillip and his successors various forms of radicalism including republicanism were entertained by some convicts, especially those transported for political crimes, such as Maurice Margarot, the Scottish martyr and General Joseph Holt, one of the many United Irishmen to be transported.[2] However, as long as these people were subject to penal law, most had no accepted public forum for voicing their views.

After 1800, the discourse and rhetoric of the rule of law began to be invoked more openly by groups in the colony who stood outside the executive and judiciary. Convicts were pardoned and emancipated. Some of these, such as Margarot, continued to nurse the radical views for which they had been transported. Others deployed the rule of law out of pure self-interest. George Crossley, a former attorney transported for perjury, appealed to both English law and the rule of law to vindicate his own dubious machinations in the court room, whether as litigant or legal adviser.[3] As Governor Philip Gidley King discovered, convicts or emancipists who were literate, gentlemanly and with influential friends in Britain, could be potential problems when they invoked the Ancient Constitution, Magna Carta and the rights of freeborn English men in their correspondence with the executive. King was well aware that his predecessor John Hunter had been recalled after complaints about the governor’s alleged fiscal mismanagement of the colony to the Colonial Office by Thomas Fyshe Palmer, Scottish Martyr turned colonial businessman.[4]


Anonymous, Philip Gidley King

It was self-protective instincts at work then that caused King to react sourly to being castigated for abusing the rule of law by John Grant, in 1805.[5] Grant had been transported in 1803 after being sentenced to death for the attempted murder of a solicitor who had warned him off an heiress with whom he was obsessed. He had arrived in the colony with 50 hogsheads of brandy purchased in Rio and expected, given his class, to be put on the government pay roll. Governor King, no doubt distracted by the aftermath of the Castle Hill Rebellion of Irish convicts in 1804, was not responsive to Grant’s pleas to be allowed to land his brandy and to be granted a job. The gentleman convict reacted unfavourably when King granted him a conditional pardon in 1805, which he found to his dismay did not allow him to return to England until the close of his sentence. In high dudgeon he wrote to the Governor. After quoting from Blackstone on the rights of English subjects in ‘uninhabited’ lands and with a brief reference to Magna Carta, he inveighed

Now Sir! I ask you as an Independent Englishman, witnessing with astonishment the miserable state to which Thousands of Unfortunate Men are reduced in this country, by what Authority do those in power at home, by what Right do you, make Slaves of Britons in this distant corner of the Globe? ... [A]t your Door lies all the blood spilt in the struggle of half-starved Men for Personal Liberty in this Country. [6]

Even though Grant and several other gentlemen and political prisoners, including Margarot, were re-transported for their temerity in accusing the Governor of despotism, they can be said to have kept the discourse and rhetoric of the rule of law alive in the colony, at least in providing a yardstick by which governmental performance should be judged. Moreover, the fact that Grant who had also directed similar sentiments to Judge-Advocate Richard Atkins[7] was called before the judge on the direction of King, convicted of sedition and sentenced to five years hard labour on Norfolk Island and VDL suggests that those in the executive recognised the potential power, and, for them, the subversive quality of this rhetoric. [8]

Growing opposition to the arbitrary authority of successive governors came from an emerging colonial elite ready to impress its image of governance and society on the colony. The role of the exclusionists, led by John MacArthur, in seeking to secure their social and economic ends is a case in point. While they received a set-back in the wake of the Rum Rebellion of 1808, their disgrace was only short-lived. The exclusionists cultivated strong connections with conservative politicians in Britain and sought to exercise their influence both with the imperial government and at home in Australia,[9] They were the group from whom the magistracy was selected and, as a result, they secured considerable power at a local level. Moreover, with varying degrees of success they sought to put pressure on governors to further their aims of ultimate involvement in government of the colony. Lachlan Macquarie who sought the full inclusion of emancipists in colonial society was not well disposed to them.[10] They fared better with his successor, Ralph Darling, who faced attacks from the emancipists and their champions.[11] The NSW ‘Family Compact’, ‘a snug coterie’ and ‘a family party’ as W.C. Wentworth once described them, was not as consistently influential as its Upper Canadian counterpart. This is because there lacked the executive and legislative bodies through which they could influence the political process. Their pressure operated at a vicarious level in that they had to secure their ends through allies in the expatriate colonial administration or their friends in London.[12]

[1] Ward, J.M., Colonial self-government: the British experience 1759-1856, (Macmillan), 1976, p. 130.

[2] Ibid, Silver, Lynette, R., The Battle of Vinegar Hill: Australia’s Irish Rebellion, pp. 128-130 contains pen portraits of several convicts, including Maurice Margarot and Thomas Fyshe Palmer (‘Scottish Martyrs’). See also, Roe, Michael, ‘Margarot, Maurice (1745-1815)’, ADB, Vol. 2, pp. 206-207.

[3] Allars, K.G., ‘Crossley, George (1749-1823)’, ADB, Vol. 1, pp. 262-263 and ‘George Crossley: An Unusual Attorney’, Journal and Proceedings of Royal Australian Historical Society, Vol. 44, (5), 1958, pp. 261-300.

[4] Earnshaw, John, ‘Palmer, Thomas Fyshe (1747-1802)’, ADB, Vol. 2, pp. 312-313.

[5] On this see Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, (National Library of Australia), 2000, pp. 89-153 and Lynravn, N.S., ‘Grant, John (1776 -)’, ADB, Vol. 1, pp. 469-470.

[6] Ibid, Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, p. 105; Grant to King, 1 May 1805, HRA, Series I, Vol. 5, p. 537.

[7] Bennett, J.M., ‘Atkins, Richard (1745-1820)’, ADB, Vol. 1, pp. 38-40.

[8] Ibid, Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, p. 116.

[9] Eddy, J.J., Britain and the Australian Colonies 1818-1831: The Technique of Government, (Oxford University Press), 1969, pp. 68-70.

[10] Ward, J.M., James Macarthur: Colonial Conservative 1798-1867, (Sydney University Press), 1981, pp. 20-33.

[11] Ibid, Neal, David, The Rule of Law in a Penal Society: Law and Power in Early New South Wales, p. 108. See also, Fletcher, B.H., Ralph Darling A Governor Maligned, pp. 103-130, 257-275.

[12] Wentworth W.C., Statistical, Historical and Political Description of the Colony of New South Wales, and its dependent Settlements in Van Diemen’s Land, 1819, 2nd ed., (G. and W. B. Whittaker), 1820, p. 383.

Saturday, 20 July 2013

Australia and the ‘rule of law’

Elsewhere there might be the sultan’s caprice, the lit de justice, judicial torture, the slow-grinding mills of the canon law’s bureaucracy and the auto-da-fe of the Inquisition. In England by contrast, king and magistrates were beneath the law, which was the even-handed guardian of every Englishman’s life, liberty and property. Blindfolded Justice weighed all equitably in her scales. The courts were open, and worked by known and due process. Eupeptic fanfares such as those on the unique blessings of being a free-born Englishman under the Anglo-Saxon derived common law were omnipresent background music. Anyone, from Lord Chancellors to rioters could be heard piping them (though for different purposes).[1]

In this stylish statement Roy Porter pointed to the rule of law’s popularity as a rhetorical device in eighteenth century England where it was ‘the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries.’[2] Arising out of struggles between the monarchy, Parliament and the courts, the rule of law sought to protect individual liberty and private property by placing constraints on arbitrary authority. The ruling class used the rule of law ideology to enhance their power, but it also acted as a break on that power. All citizens from the monarch to the poorest citizen became bound by the rule of law and could settle their disputes in the courts presided over by judges, who were independent of manipulation.[3]

Most people in both English society and British colonial settler communities believed that the rule of law also had substantive content and was a highly flexible notion. The list ranged from the inherently legal to the explicitly political. Its meaning depended on who was employing it and for what purpose. In one form or another the rule of law embraced: the right to justice by the judgement of one’s peers conceded in Magna Carta and trial by jury (both elements of claims of an Ancient Constitution); habeas corpus, a protection solidified during the latter half of seventeenth century[4]; freedom from suspension of or dispensation from laws of Parliament secured after the Glorious Revolution of 1688; the independence of the judiciary established by the Act of Settlement 1701[5] but not operative in the colonies until the middle third of the nineteenth century and its corollary, the right to a trial according to law and established legal procedures involving the application of rational principles; and, freedom from intrusion and arrest by the use of general warrants developed by the courts during the mid-eighteenth century.[6] Closely allied and overlapping with the rule of law were a series of ‘constitutional rights’, some of which seemed settled, at least in Britain, such as no taxation without representation and the right to petition the Crown and others protections such as freedom of the press, freedom of association, freedom of assembly, and freedom of conscience.

The ideology and practice of the rule of law were exported to Britain’s colonies. According to the English jurist William Blackstone, writing in 1765,

...if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For the law is the birthright of every subject, so wherever they go they can carry their laws with them.[7]

But, as David Neal has pointed out, in practice this depended on the circumstances of the colony. Neal seeks to discover what the rule of law meant in the particular circumstances of the Australian penal colony of NSW from its foundation in 1788.[8] As convicts, ex-convicts, and their children made up an increasingly large proportion of the population (87 per cent in 1828 and 63 per cent in 1841), British governments wanted liberty to be restricted by their representatives, the governors and that did not augur well for the rule of law. Until 1823, governors ruled in an autocratic manner and had extensive discretionary powers but agreed with the British government that the transported criminals needed to be kept under close surveillance and punished firmly and quickly if they broke the rules.[9] Colonists whether free settlers (the Exclusives) or ex-convicts (the Emancipists), felt they were too closely watched and demanded that the rule of law be recognised as protection against the arbitrary rule of the governor. While the colonists waged their campaign for civil and legal rights, the courts became ‘a sort of broking house of power.’[10] Colonists expressed their opposition to the actions of governors, while governors sought to have their actions and authority legitimised by judicial process. Even convicts soon learned to use the magistrates’ courts for their own purposes.

Neal argues that the political ideas and discourse of the colonists were based on their English legal inheritance as systematised by Blackstone in his Commentaries on the Laws of England.[11] They claimed ‘no more than their rights as free-born Britons, rights guaranteed by the Magna Carta, Habeas Corpus, the Bill of Rights, [and] the Act of Settlement.’ Seeking ‘to forge a new social and political order out of the penal colony’, they demanded an independent judiciary, trial by civilian, not military, jury, and representative government.[12] The first important step in consolidating the rule of law in NSW occurred in 1824 when the newly established Supreme Court began to hear cases. It was staffed by judges appointed in England who supported the principles of the rule of law and were a major counterweight to the power of the governors. The achievement of a nominated legislature, the development of a free press and the introduction of civilian jury trials were also significant landmarks in entrenching the rule of law. But it was not until a partially elected legislature was formed in 1842 that, Neal argues, NSW finally changed from a penal colony to a free society, a situation helped by the ending of transportation to the colony.

[1] Porter, Roy, English Society in the Eighteenth Century, (Penguin), 1982, p. 149.

[2] Thompson, E.P., Whigs and Hunters: The Origin of the Black Act, (Penguin Books), 1977, pp. 263-264; see also Hay, Douglas, ‘Property, Authority, and the Criminal Law’, in Hay, Douglas, et al, (eds.), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, (Penguin), 1977, pp. 17-63

[3] According to Neal, the rule of law had at least three elements: ‘general rules laid down in advance, rational argument from those principles to particular cases, and, at least in a developed form, a legal system independent of the executive for adjudication of disputes involving the general rules.’ These elements must be applied in the everyday working of the legal system and not be used by the governing classes for rhetorical effect or only when convenient to their interests. See ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 67.

[4] This right was given legislative recognition in the Habeas Corpus Act 1679.

[5] The constitutional position of the judiciary was established in the Act of Settlement, 1701, s 3.

[6] See Leach v Money (1763) 19 State Trials, 981; Entick v Carrington (1765) 19 State Trials, 1045.

[7] Blackstone, William, Commentaries on the Laws of England, (University of Chicago Press), 1979, Vol. 1, pp. 104-105.

[8] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. xii, 15, 32 and 64.

[9] For the debate on the kind of convicts sent to Australia, see Garton, Stephen, ‘The Convict Origins Debate: Historians and the Problem of the ‘Criminal Class,’’ Australian and New Zealand Journal of Criminology, Vol. 24 (1991), pp. 24-82 and Dyster, Barrie, ‘Convicts’, Labour History, Vol. 67, (1994), pp. 74-83.

[10] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 190.

[11] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 23 and 25.

[12] See, Blakeney, Michael, ‘The reception of Magna Carta in NSW’, Journal of the Royal Australian Historical Society, Vol. 65, (2), 1979, pp. 124-142.

Sunday, 14 July 2013

Policing in Australia: importance of the 1820s

In the early decades of NSW, a decentralised police system was in operation. Lay magistrates in rural areas controlled the police and had discretion to decide ‘what would and would not be policed.’[1] They used their power to protect their class interests and relied upon flogging to enforce order. The assistance of the military was necessary to quell large-scale disorder, but the military were not used for ordinary policing duties. Reflecting the characteristics of the population, most policemen were convicts. In 1823, J. T. Bigge, charged with making transportation more of a deterrent for English criminals, reported to the Colonial Office that police organisation was defective and recommended centralised control rather than retaining local control by unpaid magistrates.[2]


John Thomas Bigge, c1819

Because magistrates were unwilling to relinquish control of the police, a number of changes were made to weaken their power in 1825, creating a system of divided control. The mounted police, composed mainly of soldiers, were formed to deal with bushrangers and Aborigines. Captain F. N. Rossi became the head of the Sydney police, whose existence was made official by the Sydney Police Act of 1833, a statute based on the London Metropolitan Police Act of 1829. In the absence of local government, the Sydney police were required to assume a range of urban functions. Thus, in the 1820s and 1830s, police reform in NSW was a compromise between the English and Irish models, modified to meet the exigencies of a large convict population, the activities of bushrangers, the resistance of the Aborigines and a growing urban population.[3] In addition to the police, overseers, masters, and private informers ensured that the colonists enjoyed ‘a level of surveillance more akin to a penal colony than the society they knew in England.’[4]

Bigge’s report influenced thinking about police arrangements in VDL, the second Australian penal colony, far more than in New South Wales. Governor George Arthur created a more highly centralised policing system and controlled the police, mainly comprised of convicts, through paid magistrates, responsible directly to him. He saw himself as the servant of empire, answerable only to the British government and not local colonists and became the foremost supporter of the benefits of transportation. [5] Feeling that a penal colony was ‘an unnatural condition’ because ‘virtue’ was subordinate to ‘crime’, Arthur believed he had no choice but to rule the colony as a jail. His police reforms and their operation made VDL a more intensively policed society than NSW.

Making order his aim, Arthur expected colonists to forgo their rights and liberties in the interests of making transportation a feared punishment and in exchange for the security of person and property that he provided.[6] The majority of colonists, especially those in the interior, resigned themselves to this policy and were constrained to obey his commands for two reasons.[7] First, they appreciated the security, funded not by local taxes but by the Crown that Arthur provided after years of anarchy. Secondly, given the shortage of free labourers, they feared losing the cheap convict labour that Arthur could withdraw whenever he liked. But those colonists who did not rely on convict servants for their wealth or who had fallen out with Arthur, mainly the residents of the colony’s capital Hobart Town, felt that the benefits of transportation were purchased at too high a price and became hostile to attacks on their liberty.[8]


Sir George Arthur

As its central aim was to strengthen the authority of the governor and enforce order, the rule of law as a protection of free citizens was compromised at all levels of the legal system in VDL. Under Arthur’s autocratic rule, the nominated Legislative Council, the judges of the Supreme Court, paid magistrates and the police generally placed the orderly management of the convict system ahead of rights and liberties. In the courts, colonists contested arbitrary uses of police power and employed the language of the rule of law when arguing for their rights or defending their liberties. But they realised that the paid magistrates gave prime consideration to convict order and discipline and supported police action unless the evidence clearly demonstrated they had acted illegally or arbitrarily.

Police work had an important bearing on whether in practice the rule of law could curb arbitrary power. Not only did the police threaten liberty by treating colonists unequally and unjustly, they also enforced the law, made ‘its orders meaningful’ and constituted its ‘coercive function’.[9] How did the public respond to the introduction of the ‘new police’ in the Australian colonies? Did the police encounter opposition at either an organisational or operational level and if so, by whom and what form did this opposition take? The papers in this section consider how the rule of law was established in Australia, the ways in which the law was enforced by the police in VDL, South Australia and Victoria and how the use of arbitrary power was resisted.

[1] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 163.

[2] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 148-149.

[3] Ibid, King, Hazel, ‘Some Aspects of Police Administration in New South Wales, 1825-1851’, pp. 205-30; Sturma, Michael, ‘Policing the Criminal Frontier in Mid-Century Australia, Britain, and America’, in Finnane, Mark, (ed.), Policing in Australia: Historical Perspectives, (University of New South Wales Press), 1987, pp. 15-34; Finnane, Mark, Police and Government: Histories of Policing in Australia, (Oxford University Press), 1994, chapter 1.

[4] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 54.

[5] Report from the Select Committee on Transportation, Together with the Minutes of Evidence, Appendix, and Index, (Irish University Press), 1968, Vol. 2, Appendix, p. 2, Arthur to Howick, 18 February 1832; Chapman, Peter, ‘The Island Panopticon’, Historical Records of Australia: A Documentary Periodical, number 1, (1990), pp. 6-10.

[6] Giblin, R. W., The Early History of Tasmania, (Melbourne University Press), 1939, Vol. 2, p. 629.

[7] Forsyth, W. D., Governor Arthur’s Convict System: Van Diemen’s Land, 1824-36, (Sydney University Press), 1970, pp. 109, 126-129.

[8] Ibid, Report from the Select Committee on Transportation; together with Minutes of Evidence, Appendix, and Index, pp. 117, 225; West, John, The History of Tasmania, (Angus and Robertson), 1971, p. 122; ibid, Giblin R. W., The Early History of Tasmania, Vol. 2, pp. 420-421, 605.

[9] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 143.

Thursday, 11 July 2013

The cost of politics

Events in the past few days have brought together two distinct but connected issues over how Britain funds its politics.  The Independent Parliamentary Standards Authority (Ipsa) has recommended that MPs’ pay should be increased by £6,000 to £74,000 a year from 2016 with increases after that linked to average earnings across the economy.  This has been condemned by all the party leaders and by some MPs as incomprehensible increase at a time of austerity and, they argue, could damage Parliament’s reputation.  However, government does not have a veto and MPs will not get to vote in their pay rise.  Despite linking the pay increase to new pension arrangements, reduction in ‘resettlement payments’ if MPs lose their seats and tightening control over business costs and expenses, they are probably right but this not mean that Ipsa has got it wrong.  MPs’ pay has fallen over over  many years compared to other positions in the public sector and with MPs’ pay around the world.  Until Ipsa was set up in the wake of the expenses scandal as an independent body, MPs decided their own pay resulting in what Ipsa chairman Sir Ian Kennedy says was ‘a catalogue of fixes, fudges and failures to act’. 

The question of selecting parliamentary candidates at Falkirk and the suggested illegality of the actions of Unite has raised, yet again, the question of how political parties are funded.  In November 2011, the Committee of Standards in Public Life, chaired at the time by Sir Christopher Kelly, proposed a cap on individual donations of £10,000 but added that it would not be possible to exempt union donations so long as people were automatically affiliated to Labour without individuals having made a positive choice.  The Kelly Report also proposed that taxpayers should subsidise political parties for each vote they got.  This would remove the the rhetoric of funding with Labour attacking Tory donations from the rich and privileged and the Tories attacking Labour for being in hock to the unions.  Like MPs’ pay, this issue has rumbled on for years with both the Tories and Labour paying more heed to the rhetoric of funding than to whether public funding would remove the cash for honours, secret funding, dinners for donors and cash in envelopes.  The choice is a stark one: should political parties be funded entirely from taxation or should there be a free market for party funding with parties getting what they can from donors of whatever hue? 

Related to both these issues has been the revival of the question of whether MPs should have second jobs.  I must admit that, with the proviso that MPs declare their interests, I’ve always been in favour of this.  It isn’t that this gives MPs an understanding of the ‘real world’—it rarely does given the sort of jobs they do—but what it does do is give them an alternative perspective to the Westminster village.  We have been moving, almost inexorably, over the last forty years towards the development of the ‘professional politician’, someone who goes to university, then becomes a research assistant in Westminster and finally becomes an MP.  Their lives are political, their horizons political and their job aspirations political—narrow horizons, narrow interests and all-consuming ambitions.  They often become MPs in the mid- to late-twenties and , depending on the safeness of their constituencies, could be in the Commons for the next forty years and where their horizons narrow even further. 

So what’s the solution.  I’d double MPs’ pay and remove all the myriad expenses they claim--the exception would be second-class or economy-class travel to and from their constituencies—and publish their tax returns annually.  I would fund political parties out of taxation following Kelly’s suggestion that it should be based on the number of votes they garner.  Individuals and organisations could still make donations to political parties but these would be limited to £10,000 a year, would not be tax-deductible and would be paid to the political parties quarterly as well as monitored through Ipsa.    As far as second jobs are concerned, I’d like to see this extended—reduce Parliament to a four-day week so that MPs can do work experience on the other day.  Now that would be really popular—with the public at least!

Monday, 8 July 2013

Policing in Australia: a revisionist view

The smooth transition from a locally based ‘inefficient’ parish constable system to an efficient and professional body of law enforcers formed the basis of this ‘consensus’ view.[1] During the 1970s, historians using conflict and social control theories challenged the consensus view of widespread public acceptance. Concentrating on working-class responses, they argued that the ‘new police’ were resisted as an instrument of repression developed by the propertied classes. The ‘new police’, it was argued, were developed to destroy existing working-class culture for the purposes of imposing ‘alien values and an increasingly alien law” on the urban poor’.[2] Conflict historians argued that a preventive police system was developed in response to changes in the social and economic structure of English society. Robert Storch, the foremost proponent of this interpretation contended that, the formation ‘of the new police was a symptom of both a profound social change and deep rupture in class relations’.[3] The working-class, it was argued, questioned the legitimacy of the ‘new police’ and responded to their interference in a variety of ways ranging from subtle defiance to open and, on occasions, violent resistance.

More recently the level of support that the ‘new police’ received from the propertied classes has been questioned. Barbara Weinberger argues that opposition to the ‘new police’

...was part of a ‘rejectionist’ front ranging from Tory gentry to working class radicals against an increasing number of government measures seeking to regulate and control more and more aspects of productive and social life.[4]

Stanley Palmer also argues that conflict historians ‘have tended to ignore or down play the resistance within the elite to the establishment of a powerful police’ and have over-emphasised the threat from below.[5] While accepting that the introduction of the ‘new police’ involved a clash of moral standards, Palmer argues that it should not be exaggerated.[6] These more recent studies therefore suggest that opposition to the ‘new police’ was also, but not equally, a response of the English upper- and middle-classes.

The broad generalisations regarding public opposition or acceptance of the ‘new police’ have tended to obscure the subtleties in community responses. Opposition did exist, at times resulting from police enforcement of ‘unpopular edicts’ or attempts to ‘prevent mass meetings,’ although they were also used and supported by many people ‘as a fact of life’ in their preventive and social order capacities.[7] While these studies have concentrated predominantly on the public’s negative responses to the introduction of the ‘new police’, Stephen Inwood has considered how the police, administratively and functionally, dealt with the public. Too great a reliance on social control theories, Inwood argues, has led to over-simplification of the complex inter-relationships between the ‘new police’ and the wider community. While the ‘new police’ sought ‘to establish minimum standards of public order,’ it was not in their own interests ‘to provoke social conflict by aspiring to unattainable ideals’.[8] Inwood sees relations between the police and the public as based on a calculated pragmatism in which it was acknowledged that attempts to impose unpopular laws rigidly would ultimately meet with resistance resulting in ‘damage to the rule of law’.[9] Police administrators and the constables on their beats were required to tread carefully between the demands and expectations of ‘respectable’ society and the practical need for good relations with the working-class.[10]

While there has been a re-examination of public responses to the ‘new police’ and police responses to the public, these studies maintain that the police were, amongst particular groups, for varying reasons and at certain times, unpopular. Weinberger argues that this unpopularity stemmed from public

...suspicion of the police as an alien force outside the control of the community; resentment at police interference in attempting to regulate traditionally sanctioned behaviour; [and] objections to expense.[11]

[1] King, H., ‘Some Aspects of Police Administration in New South Wales, 1825-1851’, Royal Australian Historical Society, Vol. 42, (4), (1956), p. 207.

[2] Ibid, Jones, David, ‘The New Police, Crime and People in England and Wales, 1829-1888’, p. 153.

[3] Storch, R., ‘The Plague of the Blue Lotus: Police Reform and Popular Resistance in Northern England, 1840-57’, International Review of Social History, Vol. 20, (1975), p. 62.

[4] Weinberger, B., ‘The Police and the Public in Mid-nineteenth-century Warwickshire’, in ibid, Bailey, V., (ed.), Policing and Punishment in Nineteenth Century Britain, p. 66.

[5] Ibid, Storch R., ‘The Plague of the Blue Lotus: Police Reform and Popular Resistance in Northern England, 1840-57’, p. 61; ibid, Palmer S. Police and Protest in England and Ireland, 1780-1850, p. 8.

[6] Storch, R., ‘Policeman as Domestic Missionary: Urban Discipline and Popular Culture in Northern England, 1850-1880’, Journal of Social History, Vol. 9, (4), (1976).

[7] Ibid, Jones, David, ‘The New Police, Crime and People in England and Wales, 1829-1888’, p. 166; Ibid, Emsley, Clive, The English Police, pp. 5-6.

[8] Inwood, S., ‘Policing London’s Morals: The Metropolitan Police and Popular Culture, 1829-1850’, London Journal, Vol. 15, (2), (1990), p. 144.

[9] Ibid, Inwood, S., ‘Policing London’s Morals: The Metropolitan Police and Popular Culture, 1829-1850’, p. 134.

[10] Ibid, Inwood, S., ‘Policing London’s Morals: The Metropolitan Police and Popular Culture, 1829-1850’, p. 131

[11] Ibid, Weinberger, B., ‘The Police and the Public in Mid-nineteenth-century Warwickshire’, p. 65.

Tuesday, 2 July 2013

The 1820s: writing off a decade of radical activity

The 1820s is often written off as a decade of little radical activity yet it was during these years that Britain became a manufacturing society. Whether factories and firms were small or larger-scale, whether increases in productivity were achieved by increasing the labour force or using machine technology, whether growth was achieved using skilled or unskilled labour or in urban or rural settings, British society was increasingly and irrevocably manufacturing in its emphasis. The relative stability and long perceived certainties of pre-industrial Britain were replaced by the vibrancy, uncertainties and class tensions of a free market economy and modernising society.

The economy revived in the early 1820s and there was a decline in radical political activity, something that reinforces the link between poor economic conditions and concerted radical action. But popular radicalism always meant more than demanding inclusion in the political system and embraced a range of causes of beliefs. Some radicals focused on building cooperative institutions such as trade unions, friendly societies, mutual aid societies and Mechanics Institutes. Others sought greater religious equality for nonconformists and to establish a system of secular education. Many nonconformists also were radical in their politics because they objected that being a member of the established Church of England gave individuals important legal privileges denied to nonconformists. Religious issues could stir deeper passions than politics and the religious question, as contemporaries called it, was a key political issue for most of the century.

Some workingmen turning to religion--there were revivals in particularly in the north and south-west. There was, for instance, a Primitive Methodist revival among lead miners in Weardale and more generally across the North-East in 1822 and 1823. [1] Revivalism in the 1820s occurred largely in areas with a significant rural population. Primitive Methodism was largely rural in character and, with the exception of the North-East and the Potteries; its main strength was in the largely agricultural counties of England. It was not until after 1850 that its appeal to the urban worker became obvious. Primitive Methodism was the medium through which agricultural labourers could fight for social and economic recognition and its chapels provided rural workers with a symbol of independence and defiance of the established social order.

While Primitive Methodism represented a radical theology, Wesleyan Methodism was increasingly strident in its support for the existing social order and, under the influence of Jabez Bunting, large numbers of people were expelled for radical activities. Growth in the northern manufacturing districts came to a halt and even went into temporary decline in 1819 and 1820 and in Rochdale there was a fifteen per cent decrease in membership between 1818 and 1820.[2] Although Bunting and his supporters recognised the value of revivalism and encouraged it so long as it did not disrupt regular circuit life and could ideally be managed, they disapproved of some of its methods, especially ranting and disassociated themselves from the emotionalism of Primitive Methodism.[3] This, and John Wesley’s policy before his death in 1791 which was continued by his successors of concentrating on evangelising urban areas where the Church of England was failing in its functions, meant that the links between Methodism and urban radicalism were loosening, although the extent to which this occurred varied from locality to locality. This view of Methodism, akin to E. P. Thompson’s excoriating critique of the movement as an instrument of social control, neglects the internal battles of the 1790s and early years of the nineteenth century in industrial towns over lay participation in church governance, control over Sunday schools and the extent of denominational control over the political activities of its members. In the 1820s, its nature as a popular movement meant that it could still undermine the established order of Church and State even if, by 1850, its role as an alternative national faith had evaporated. [4]

The 1820s also represented a critical decade for workers in textile industries as it saw an intensification of the demise of handloom weaving. The introduction of powered spinning largely in spinning factories from the 1780s resulted in surging production of yarn that had to be woven on handlooms by weavers whose numbers in Britain reached a peak of about 240,000 workers in 1820. For several generations, handloom weavers had enjoyed high prices, a relatively good standard of living and benefitted from increasing demand for the products of their looms. They were also vocal in defence of their livelihood with, for instance, 130,000 signing a petition in 1807 calling for a minimum wage and the following year, some 15,000 attended a demonstration in Manchester. The development of a reliable power loom by Richard Roberts, a Manchester engineer, in 1822—he also perfected a fully mechanised self-acting mule for spinning between 1825 and 1830—led to the rapid adoption of powered weaving. Edward Baines estimated that there were 2,400 power looms in British factories in 1813, 14,150 in 1820 but over 115,000 by 1835. This shift placed handloom weaving under growing pressure, its profitability tumbled and the numbers of handloom weavers in Lancashire fell from between 150,000 to 190,000 in 1821 to about 30,000 by 1861.

The decline in handloom weaving was uneven with some millowners using both machinery and hand-working while some weavers used finer grades of cotton, which early power looms could not weave, or turned to silk that remained largely unmechanised. Even so, handloom weaving was in terminal decline and, as many children of handloom weavers did not follow their fathers in the trade, it was increasingly characterised by an ageing workforce. [5] By the late 1820s, progressive cuts in wage-rates left many handloom weaving families with serious economic problems. Handloom weavers who move into urban areas might mitigate this by deploying women or children in the factory labour market while those weavers who remained in rural areas could take advantage of supplementary earning opportunities afforded by farming and mining. Nonetheless, by 1830 both sets of weavers found themselves in endemic structural poverty unable to generate sufficient income to cover basic costs and heavily dependent on poor relief.

The idea of a government-applied minimum wage to give give handloom weavers a degree of security was still being suggested and not just by the weavers. Some of the more respectable ‘putting-out’ firms, facing competition from machine-weaving businesses who undercut them by paying their unskilled workers low wages, saw the benefits of such a scheme. In September, 1819, a month after the Peterloo Massacre, 35 calico producers supported the call for a minimum weavers' wage and as late as 1822, several manufacturers met in Rossendale to demand restrictions on the use of power looms. The Committee of Manchester Weavers joined the outcry, claiming:

The evils of multiplying power looms, by first ruining half a million who depend on manual weaving (he was presumably referring to families rather than individuals), and especially those unhappy young people they now employ, are such as no human being can think are counterbalanced by any good expected from them.

Having repealed the legislation that might have protected weavers in 1809, the government was unwilling to introduce obstacles to the free market accelerating the trend towards mechanisation and it was not until 1834-1835 that a Select Committee examined the problems faced by weavers. James Hutchinson, one of the calico producers who had protested in 1819, like many of his fellow businessmen, finally opened his own power-loom mill at Woodhill, Elton.

Handloom weavers publicised their plight whenever the opportunity arose. Actress Fanny Kemble, one of the guests at the opening on the Liverpool-Manchester Railway in 1830, described the arrival of the first train into Manchester, packed with dignitaries including Wellington:

High above the grim and grimy crowd of scowling faces, a loom had been erected, at which sat a tattered, starved-looking weaver, evidently set there as a representative man, to protest against the triumph of machinery and the gain and glory which the wealthy Liverpool and Manchester men were likely to derive from it. [6]

For radicals such as Peter Murray McDouall writing in his Chartist and Republican Journal in 1841, the gradual disappearance of handloom weavers, represented the destruction of independence, family economy and control over the pace and nature of work and the creation of wage slavery by ‘factory slaves’ within the developing factory system of industrial capitalism.

Other radicals campaigned successfully against the Combination Acts leading to their repeal in 1824. A downturn in the economy led to a rapid increase in trade union activity with extensive strikes, including some violence in the winter of 1824-1825. Employers lobbied for the reintroduction of the Combination Acts and in 1825 new legislation was passed allowing unions to negotiate over wages and conditions but without the legal right to strike. This effectively limited trade unions to peaceful collective bargaining with employers and if they went beyond this narrow definition of legal activity for trade unions, they could be prosecuted for criminal conspiracy. Faced with technological change and the considerable powers left to employers after 1825, workers were increasingly convinced that small unions could never succeed. What was needed, some argued, were national or general unions representing all the workers in a particular trade from different parts of the country. In 1829, John Doherty, leader of the Lancashire cotton spinners formed a Grand General Union of Spinners. For greater negotiating power, the next step was to try to unite all unions in all trades into a single union. He formed the National Association for the Protection of Labour in late 1829 in Manchester and it spread into the neighbouring cotton towns the following year and subsequently into other manufacturing areas especially the East Midlands. [7]

The 1820s also saw a refinement of working-class analysis of the exploitative nature of the economy. [8] William Cobbett’s solution was to get rid of the system of corruption, the national debt and paper money and he implied that life would revert to the patterns of the past; little analysis, simply populist nostalgia. By contrast, Thomas Spence, William Ogilvie, Thomas Hodgskin, William Thompson, Robert Owen, John Gray and later John Francis Bray, Ernest Jones, James ‘Bronterre’ O’Brien and George Harney argued that the rights of man must be grounded in the possession of economic power. Their anti-capitalist and socialist political economies stood in stark contrast to the classical political economies of James and John Stuart Mill, David Ricardo, Robert Torrens, John Ramsey McCulloch and Nassau Senior. [9]

Robert Owen had outlined his cooperative views in A New View of Society in 1813. Although Owen was influential in the working-class movement in the early 1830s, he sought social reform from above, a reflection of his elitist and paternalist attitudes. His reform programme was not confrontational: he saw his reforms as a means of avoiding class conflict, violent protest and revolution. His most important contribution was seeing capitalism not as a collection of discrete events but as a system. Throughout the 1820s, a growing group of labour radicals embraced Owen’s critique of capitalism and his views on cooperation. Thompson, Hodgskin and Gray articulated not simply the theoretical basis for a distincly anti-capitalist political economy but also considered its scope, methods, content and aims. All were, to a degree, Ricardian socialists who adopted the labour theory of value while rejecting the elements of Ricardo’s model that claimed capital, too, was productive. Hodgskin, for instance, argued that capitalists were parasites who diverted the fruits of labour’s productivity into unproductive consumption.

Thompson rejected the notion, expressed particularly by Thomas Malthus that any increase in the wages of labourers could only lead to their further immiseration. [10] Hodgskin, though he rejected Thompson’s cooperative views, suggested:

…the real business of men, what promotes their prosperity, is always better done by themselves than by any few separate and distinct individuals, acting as a government in the name of the whole.[11]

In 1825, in his Labour Defended Against the Claims of Capital, he argued that free-trade economists had invested ‘capital’ with productive powers that it did not possess and that capitalists could only grow rich where there was an oppressed group of workers kept in poverty. Writing in the aftermath of the repeal of the Combination Acts in 1824 and the repressive legislation the following year, Hodgskin believed that laws against trade unions and collective bargaining had created an unfair advantage against workers in favour of capitalists and that the large profits made by capitalists were not the result of natural economic forces but were generated by the coercive power of government. Only with the freedom of the free market, he maintained, could labourers of every kind receive just compensation for their work. Economic intervention by governments could do nothing to increase wealth or to accelerate its progress and that the laws of economics would only have the power to transform society when unrestricted by arbitrary legal systems. [12]

John Gray argued that the producers receive only about a fifth of the value of their products, whereas their labour creates all of that value. [13] However, he did not believe that this issue could be resolved by the unrestricted operation of the free market arguing that free market competition hampered the economy’s productivity because incomes remain low, limiting demand and therefore production. The market was seen as a source of exploitation and economic depression and the competitive pressures unleashed by the market resulted in socially destructive and morally corrosive behaviour. To overcome the limits competition places on social production and the hardships it imposes, Gray proposed a communitarian solution. What was necessary, Gray maintained, was central direction and control over the industrial economy by a National Chamber of Commerce, which would own the means of production, as a way of achieving certain socialist objectives. He also called for the formation of a National Bank that would ensure that money would increase as product increased and decrease as produce was consumed or redemanded as well as a system of cooperative associations to organise supply and demand. In this way, Gray believed that economic activity could be managed to ensure distributive and commutative justice, price stability, efficient allocation of resources and an end to economic depression resulting from supply outstripping effective supply.

The major problem with populist anti-capitalist thinking in the 1820s was that it lacked a comprehensive understanding of the nature of the causes of the exploitation and alienation of capitalism. Largely because of their failure to address this issue, Thompson sought to establish cooperative solutions irrespective of what was going on in the wider capitalist society. His solution was not to replace the existing capitalist system but to circumvent it by creating separate cooperative communities. The communities established by Robert Owen failed to translate the theory of cooperative living into communities that worked largely because of his paternalistic and undemocratic approach to running them and their need to operate within a capitalist environment. Gray, however, went further in suggesting socialist solutions to replace market capitalism. Although anti-capitalist economists had developed an effective critique of capitalism in the 1820s and this continued into the 1830s, what they had not done was to link their critique to the question of parliamentary reform. It was the publication of the Poor Man’s Guardian, edited by Bronterre O’Brien that proved crucial. Although strongly influenced by the popular economists and by Owen, he rejected Owen’s opposition to political action. He transformed the traditional rhetoric of radicalism by treating parliamentary reform as meaningless on its own. Without social and economic transformation, he argued, parliamentary reform could not address the ills of the working-classes.

[1] Patterson, W. M., Northern Primitive Methodism, (E. Dalton), 1909, pp. 154-170.

[2] Engemann, T. S., ‘Religion and political reform: Wesleyan Methodism in nineteenth-century Britain’, Journal of Church & State, Vol. 24, (1982), pp. 321-336, provides a good summary. Hempton, David, The Religion of the People: Methodism and Popular Religion, c1750-1900, (Routledge), 1996, pp. 162-178, is excellent on the historiography.

[3] Hempton, D., Methodism and Politics in British Society 1750-1850, (Hutchinson), 1984, Edwards, M., After Wesley: a study of the social and political influence of Methodism in the middle period, 1791-1849, (Epworth Press), 1948, Taylor, E. R., Methodism and Politics 1791-1851, (Cambridge University Press), 1935, and Wearmouth, R. F., Methodism and the Working-class Movements of England 1800-1850, (Epworth Press), 1937.

[4] Ibid, Hempton, David, The Religion of the People: Methodism and Popular Religion, c1750-1900, pp. 170-171.

[5] Bythell, Duncan, The Handloom Weavers: A Study in the English Cotton Industry During the Industrial Revolution, (Cambridge University Press), 1969, Nardinelli, Clark, ‘Technology and Unemployment: The Case of the Handloom Weavers’, Southern Economic Journal, Vol. 53, (1), (1986), pp. 87-94, and Timmins, Geoffrey, The Last Shift: The Decline of Handloom Weaving in Nineteenth-Century Lancashire, (Manchester University Press), 1993.

[6] Kemble, Frances Ann, Records of a Girlhood, (R. Bentley & Son), 1878, p. 304.

[7] The development of trade union is explored in greater detail.

[8] Thompson, Noel W., The People’s Science: The popular political economy of exploitation and crisis 1816-34, (Cambridge University Press), 1984, and The Real Rights of Man: Political Economies for the Working Class, 1775-1850, (Pluto Press), 1998.

[9] McNally, David, Against the Market: Political Economy, Market Socialism and the Marxist Critique, (Verso), 1993, pp. 104-138.

[10] Thompson, William, An Inquiry into the Principles of the Distribution of Wealth Most Conducive to Human Happiness; applied to the Newly Proposed System of Voluntary Equality of Wealth, (Longman, Hurst Rees, Orme, Brown & Green), 1824, and Labor Rewarded. The Claims of Labor and Capital Conciliated: or, How to Secure to Labor the Whole Products of Its Exertions, (Hunt and Clarke), 1827.

[11] Hodgskin, Thomas, Travels in the North of Germany: Describing the Present State of the Social and Political Institutions, the Agriculture, Manufactures, Commerce, Education, Arts and Manners in that Country Particularly in the Kingdom of Hannover, 2 Vols. (Constable), 1820, Vol. 1 p. 292.

[12] Slack, David, Nature and Artifice: The Life and Thought of Thomas Hodgskin (1787-1869), (Boydell), 1998, pp. 89-136, considers his thinking in the 1820s.

[13] Gray, John, Lecture on Human Happiness: Being the First of a Series of Lectures on that Subject in which Will be Comprehended a General Review of the Causes of the Existing Evils of Society, and a Development of Means by which They May be Permanently and Effectually Removed, (Sherwood, Jones & Company), 1825, and The Social System: A Treatise on the Principle of Exchange, (Longman, Rees, Orme, Brown & Green), 1831. See also, DLB, Vol. 6, pp. 121-125, and Kimball, J., The Economic Doctrines of John Gray, 1799-1883, (Catholic University of America Press), 1946.