I’m afraid not Darling: Forbes versus Darling

Appointed in 1823[1] and first Chief Justice of the Supreme Court of NSW until 1837, Francis Forbes had significant powers.[2] He was not only head of the judiciary but also a member of the Legislative Council and, ex officio, of the later Executive Council.[3] The 1823 Act stated that the governor could not submit any bill to the Legislative Council until the chief justice had certificated that the proposed measure was not repugnant to the laws of England. [4] This placed an important constraint upon what governors could and could not do and brought Forbes into conflict especially with Ralph Darling. However, Forbes’ relationship with his first governor, Sir Thomas Brisbane was good. The new Legislative Council first met on 25 August and as Brisbane thought it wise not to attend its sittings Forbes was virtually its president. He established the criteria by which the governor was guided in nominating unofficial members and temporarily became the parliamentary draughtsman when Saxe Bannister, the Attorney-General proved incompetent. [5] On 14 October, Forbes construed section 19 of the 1823 Act that trial by common jury of twelve inhabitants, who had come to the colony as free men or had been born in it, was instituted for the first time in Australia, though it was limited to Courts of Quarter Sessions. On the same day the Australian, the colony’s first independent newspaper, was published by Robert Wardell and W.C. Wentworth who had qualified as barristers in England, were admitted as such, though they practised as attorneys in NSW as there was no division in the profession.[6] In November, the charter of the Australian Agricultural Company was issued; on its local committee the Macarthurs were very strongly represented. Invited by Sir Robert Wilmot Horton, permanent secretary at the Colonial Office to comment on the wisdom of the company’s million-acre grant, Forbes reported adversely on the formation of large estates and favoured ‘unlocking the land’ for settlers. He was also critical of members of the local committee who sold their stock to the company at high prices.

Sir Ralph Darling

Forbes had already earned the opposition of the Macarthurs over his advice to Brisbane in a quarrel between Henry Grattan Douglass and other justices of the peace at Parramatta.[7] At the Colonial Office Forbes had read the reports relevant to Brisbane’s removal of the names of Samuel Marsden and Hannibal Macarthur and three others of the Parramatta bench from the Commission of the Peace and had agreed with James Stephen that the magistrates’ proceedings were indefensible. However, Marsden had retaliated against Brisbane’s action by sending defamatory letters to Sir Robert Peel and Wilberforce accusing Douglass of punishing convicts illegally. These letters were passed on to Bathurst who ordered an inquiry to be conducted in the colony by the governor, chief justice and Archdeacon Thomas Scott.[8] Their finding exonerated Douglass and reflected scathingly upon Marsden. The grand jury of Parramatta, of which Hannibal Macarthur was foreman, then indicted Douglass and two other justices for imposing what the jury considered an illegal sentence: daily flogging of a convicted thief until he disclosed the whereabouts of stolen goods. The men so indicted sought government intervention. On Forbes’s advice, Brisbane remitted the matter to the Legislative Council, which in turn searched all the available bench proceedings and found many precedents for the sentence imposed by the indicted justices, including some imposed by Marsden and Macarthur. Forbes then proposed an Act of Indemnity that was duly passed in October 1825. Meanwhile Bathurst had severely censured Hannibal Macarthur and ‘from that time’, wrote Forbes, ‘I have been a marked man and no efforts have been spared to get me out of the colony.’ The campaign against Brisbane was also vigorously continued and in 1825 he was relieved of his command and replaced by Ralph Darling. [9]

Tensions between the Governor and the judiciary reached a peak in the late 1820s. This was partly because of the more formal introduction of English law and the establishment of a conventional superior court system on the civil side. It also reflected the Darling’s and Forbes’ different personalities and political ideologies. Darling was a former general with some skill in that role but Forbes found him ‘quite unacquainted with civil business’ and possessed of ‘less knowledge of the laws of his country than any gentleman filling his high official station whom it was ever [his] fortune to meet’. Although ready to improve the efficiency of the administrative and fiscal affairs of the colony, he had a conservative’s suspicion and mistrust of political and social change and was quick to judge others unfavourably, especially if they disagreed with him, and unreceptive to criticism. At the same time, as a military man he was impatient with lack of action and the niceties of process. Darling also lacked sound legal advice from the law officers of the Crown that might have curbed his enthusiasm for executive initiatives of dubious legality. Francis Forbes by contrast was a liberal in political and legal terms. He was born not in England but in Bermuda.[10] Forbes had been educated and trained as barrister in London, and before going to Sydney had been Chief Justice of Newfoundland.[11] In that latter role he had developed a reputation as a liberal; for Governor Sir Charles Hamilton too liberal, because of the judge’s belief that law should to some extent reflect and respond to local conditions and needs and in the need to reign in inferior courts. Forbes served less than five years on the bench in Newfoundland, but his influence on the future development of the colony was profound. His judgments checked the abuse of power by officials, established Newfoundlanders’ rights to own property in the island, and showed the need for a constitutional form of government. Forbes recognised the need to bring English law and the rule of law much more fully into the operation of justice and governance in NSW. At the same time, as a sophisticated observer of British imperialism, Forbes was aware of the need to balance concerns with centralisation with appreciation of the realities of the particular colony, its history and population. In his judicial role he was perhaps too detached from an executive that needed sound legal advice.

A major area of conflict between Darling and Forbes was freedom of the press and the Governor’s increasing petulance towards radicalism in the colony, inspired in particular by William Charles Wentworth, lawyer and newspaper man, the leading advocate of the emancipist cause. Not satisfied with the conservative reforms to the constitution and justice system of NSW in the late 1810s and early 1820s, he was vigorous and vocal in his campaign for both trial by jury and representative legislative organs. Only these changes, he argued, would give colonists, including emancipists, a voice in both the administration of justice and their own governance. It was a combination of Wentworth and his journalistic colleagues, Wardell and Edward Smith Hall[12] advocating these views while labelling Darling as a tyrant that baited Governor Darling.[13] The Attorney General, Saxe Bannister unsuccessfully and ineptly sought to prosecute the newspapermen for seditious libel, an offence open to repressive use, even in England.

Sir Francis Forbes

Darling then sought to muzzle them by other means. His instructions for controlling the press had been framed by James Stephen in the light of suggestions from Lieutenant-Governor Sir George Arthur in VDL. Arthur’s proposal of a licence revocable at the governor’s will had already been submitted to Brisbane who on Forbes’ advice declined to sanction it. [14] Darling was anxious to remain at peace with the press, although Arthur, on receiving similar instructions, promptly had bills prepared providing for licenses and imposing a stamp duty and sent them to Sydney for parallel action. Darling delayed until, angered by the criticisms of the Monitor and the Australian submitted these bills to Forbes for his certificate as prescribed in the 1823 Act. Forbes refused his certificate to the six clauses relating to a licence in the first bill because he believed them inconsistent with English law, a view later upheld by the law officers of the Crown. Giving what can only be described as a broad interpretation to existing constitutional doctrine and a political construction to the rule of law, the Chief Justice denied certification to the licensing law as repugnant to the freedom of the press. [15] He went so far as to describe this freedom as a constitutional privilege. Bruce Kercher suggested: ‘that [it] was as much a statement of political aspiration as law, given the repressive nature of English press laws’.[16] However, he did certify the other clauses and they became law as the Newspaper Regulating Act.

The second bill, as he received it, did not include the amount of stamp duty to be imposed, but he found no objection in law to a newspaper tax and gave his certificate, expecting that, when the crucial amount was determined, the bill would be returned to him for further certification. This was not done. A duty of 4d was inserted, the bill was passed, the governor assented and it was promulgated. Forbes maintained that these actions contravened sections 27 and 29 of the 1823 Act, c.96 and that the 4d tax was too high. He therefore intimated that, if the Act were challenged before the Supreme Court, he would declare it invalid.[17] Darling then proclaimed that ‘a certain Bill purporting to be an Act’, was suspended; later the authorities at Westminster upheld Forbes’ opinion and the Act was disallowed. In 1828, when bills to license auctioneers and places of public entertainment were submitted to Forbes, they were found by him to be open to the objection in law that had been fatal to the first six clauses of the Newspaper Regulating Act, but this time amendments were made and the requisite certificates were given. Forbes was not prepared to allow the colony to continue with a form of government that allowed repressive action and in which the governor was not subject to any local authority other than his own. He did so by invoking a liberal view of constitutional rights and of the rule of law that reflected the reformist sentiments he held, and caused him to support trial by jury and to muse about a legislative assembly in the colony.

Irritation at Government House was made worse when the Forbes notified Darling that certain regulations issued on 30 July 1827 for the assignment of convicts and the granting of tickets-of-leave were ultra vires. In Forbes’ opinion masters had a legal right of property in the service of convicts assigned to them and, although he approved the principle of tickets-of-leave as inducements to reformation, he considered that they could not be given legally to assigned servants or granted at all except under an authority conferred by parliament.[18] Again his opinions were upheld by the Crown law officers, much to the annoyance of Darling, who, on advice from the Home Office and his own legal officers, had revoked the assignment of certain servants of the editors of the Monitor and the Australian, with the avowed intention of restricting his critics’ output. In his frustration Darling suspected that the chief justice was colluding with Wardell, the editor of the Australian and saw Forbes unjustifiably as the main cause of his problems.[19] The fault rested with Darling and his legal officers, none of whom was a match for Wardell or Wentworth. The governor’s bitterness was intensified by a series of defeats in prosecutions for criminal libel instituted by the attorney-general. Although Wardell had offended grievously, Forbes thought his acquittals were probably due to the knowledge of at least some of the jury that the prosecutions had been ordered and they themselves nominated by the governor. In his dispatches Darling attributed these setbacks to the chief justice’s bias in favour of Wardell, an aspersion that Forbes convincingly rebutted.[20]

Darling was to get into a further notable scrape with the Chief Justice and his colleagues over his distaste for dissent before he was recalled in 1831. The issue was whether the undoubted executive power exercised by previous governors to assign and release convicts was now subject to the demands of the rule of law and examination by the Supreme Court. Darling in attacking one of his newspaper critics, Edward Hall, tried another tack.[21] By gubernatorial order he sought to deprive Hall of one of his assigned convicts, Peter Tyler. The Supreme Court had already determined that the revocation power did not give the governor unfettered discretion, because a decision had to be connected to a proper purpose, for example to grant a genuine indulgence to the convict or protect him from an abusive master. The Court, led by Forbes, concluded that Darling had abused his discretion in this instance, a decision that held even though the court’s interpretation was initially rejected in the Colonial Office.[22] Once again Forbes showed himself to be an opponent of arbitrary government, elevating the rule of law in the process.

The Hall case is also interesting in that, although the Supreme Court fought shy of issuing criminal information against the Sydney magistrates who had convicted Hall of harbouring a runaway convict, the judges criticised the magistrates for their decision. Dowling warned them against contempt of the superior institution. Furthermore, Hall ultimately secured damages against the magistrates in a civil action before the Supreme Court. This episode illustrates another point of tension within the administration of governance and justice in the colony, the identification of the magistracy with the conservative elite. In NSW conservative exclusionists were able to exercise significant power through their control of local government and justice. In the Hall case and other decisions of the Forbes court, judicial review of executive and administrative action took firm root in Australia.

Chief Justice Forbes stands out as genuinely committed to impartiality in the judicial role and as a sincere advocate of the rule of law, at times in a liberal sense. Forbes was one of those people of independent mind who, despite the personal attacks by opponents, such as John Macarthur, eschewed strong ties with particular interests in the colony and was by background, inclination and experience a shrewd observer of British imperialism and colonial development. He could relate the tradition of which he was unmistakably a part to both the present and future needs of the colonies in which he served. However, Forbes was not infallible and he may be criticised for taking an excessively disinterested position in relation to the need of Darling for sound and considered legal advice. Moreover, as Bruce Kercher had observed, he could be exasperatingly illiberal in certain contexts, for example legislation relating to bush rangers, and indecisive in others, as he seems to have been in relation to Aboriginal rights. He was, however, guided by a strong belief that ‘the judicial office...bowed to no other power but the supremacy of law’. [23] He stood out among other colonial judges of this period as being singularly adept in balancing a respect for English legal tradition with a recognition that the law needed to accommodate colonial constitutional change.

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[1] Bathurst to Brisbane, 4 August 1823, HRA, Series I, Vol. 11, p. 102

[2] Bennett, J.M., Sir Francis Forbes: First Chief Justice on New South Wales 1824-1837, (Federation Press), 2001, pp. 16-37. See also, Currey, C.H., ‘Forbes, Sir Francis (1784-1841)’, ADB, Vol. 1, pp. 392-399 and Holloway, Ian, ‘Sir Francis Forbes and the Earliest Australian Public Law Cases’, Law and History Review, Vol. 22, (2004), pp. 209-242.

[3] Warrant appointing a Council in NSW, 19 January 1824, HRA, Series I, Vol. 11, pp. 195-196.

[4] See, New South Wales Act (1823) 4 Geo IV, c 96, s 29: ‘And be it further enacted that no law or ordinance shall by the said governor or acting governor be laid before the said council for their advice or approbation or be passed into a law unless a copy thereof shall have been first laid before the chief justice of the supreme court of New South Wales and unless such chief justice shall have transmitted to the said governor or acting governor a certificate under the hand of such chief justice that such proposed law is not repugnant to the laws of England but is consistent with such laws so far as the circumstances of the said colony will admit.’

[5] Currey, C.H., ‘Bannister, Saxe (1790-1877)’, ADB, Vol. 1, pp. 55-56.

[6] See, Currey, C.H., ‘Wardell, Robert (1793-1834)’, ADB, Vol. 2, pp. 570-572 and Persse, Michael, ‘Wentworth, William Charles (1790-1872)’, ADB, Vol. 2, pp. 582-589.

[7] HRA, Series I, Vol. 10, pp. 750 et seq. When Governor Sir Thomas Brisbane arrived in November 1821, Douglass became a regular visitor at his residence. This association brought him into conflict with his senior colleagues on the Parramatta bench. The first clash came in August 1822 over a convict girl, Ann Rumsby, whom he had taken into his home; Dr James Hall, surgeon superintendent of the Maria Ann in which she had been transported, alleged that Douglass was behaving improperly with her. Samuel Marsden, Hannibal Macarthur and three other magistrates held a meeting, to which Douglass was summoned but failed to appear. The magistrates then had Ann arrested, and for perjury she was sentenced to imprisonment at Port Macquarie. Brisbane intervened, gave her a free pardon, threatened to remove the Parramatta magistrates who had not only refused to sit with Douglass on the bench but also called a secret general meeting of justices to support their action, and complained to London of a conspiracy against Douglass. Douglass, however, soon showed that he could fend for himself. In April 1823, he brought an action for libel against Hall, claiming damages of £5,000, and was awarded £2 and costs. Next month with William Lawson he fined Marsden for allowing one of his convict servants to be at large and, when he refused to pay, had his piano seized and sold. Marsden promptly sued him for damages of £250, but the court awarded him only the amount of the fine. Marsden then complained to the bishop of London that Douglass was preventing inmates of the Female Factory from taking their infants to church for baptism, and connived with Hannibal Macarthur in a letter to Robert Peel at the Home Office, charging Douglass with drunkenness, torture of prisoners and other disreputable official conduct. These letters, forwarded to the Colonial Office, brought orders for an inquiry which exonerated Douglass but provided a loophole for Macarthur as foreman of the Grand Jury to publish further complaints against Douglass in the Sydney Gazette. Brisbane’s reports extolled his virtues with increasing warmth after each attack and in February 1824 he nominated him as commissioner of the Court of Requests and sent him to London to consult the Colonial Office on the functions of the new court. See, Noad, K.B., ‘Douglass, Henry Grattan (1790-1865)’, ADB, Vol. 1, pp. 314-316.

[8] Bathurst to Governor of NSW, 2 September 1824, HRA, Series I, Vol. 11, pp. 351-353, 462-465, 717-807.

[9] ‘Sir Ralph Darling (1772-1858), ADB, Vol. 1, 1966, pp. 282-286, and ibid, Fletcher, B.H., Ralph Darling: A Governor Maligned, provide biographical material.

[10] On Forbes, see Castles, Alex C., An Australian Legal History, (Law Book Co.), 1982, pp 182-184.

[11] On his period in Newfoundland see, O’Flaherty, Patrick, ‘Sir Francis Forbes’, Canadian Dictionary of Biography, Vol. 7, (University of Toronto and the Université Laval), 1988, pp. 301-304.

[12] See, Kenny, M.J.B., ‘Hall, Edward Smith (1786-1860)’, ADB, Vol. 1, pp. 500-502 and Ferguson, J.A., ‘Edward Smith Hall and the “Monitor”’, Journal of the Royal Australian Historical Society, Vol. 17, (3), (1931), pp. 163-200.

[13] On this see Darling’s comments in a letter to Under Secretary Horton 15 December 1826, HRA, Series I, Vol. 12, pp. 761-762.

[14] Darling to Under Secretary Hay 4 December 1826, HRA, Series I, Vol. 12, pp. 725-729.

[15] HRA, Series I, Vol. 13, pp. 285-287 covers the disallowed clauses; see also pp. 289-297 for Forbes’ reasons.

[16] Kercher, Bruce, An Unruly Child: A History of Law in Australia, (Allen & Unwin), 1995, pp. 85-86; see also, Edgeworth, Brendan, ‘Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831), Australian Journal of Law and Society, Vol. 6, (1990-91), pp. 67-70.

[17] Darling to Bathurst 29 May 1827, HRA, Series I, Vol. 13, pp. 374-379; Darling to Bathurst 30 May 1827, pp. 380-387.

[18] Forbes to Darling 1 August 1827, HRA, Series I, Vol. 13, p. 489.

[19] On the Wardell libel case, see, HRA, Series I, Vol. 13, pp. 477-484

[20] See, for example, Darling to Goderich, 10 September 1827, HRA, Series I, Vol. 13, pp. 509-510: ‘...Mr Forbes’s endeavours to assume a power of controlling generally the measures and acts of the Government....’ and Darling to Hay, 15 December 1827, HRA, Series I, Vol. 13, pp. 648-649: ‘...he has endeavoured to raise an Opposition to the Government.’

[21] There had been a succession of disputes between Hall and Darling dating back to 1826: see, HRA, Series I, Vol. 14, pp. vi-xiii.

[22] HRA, Series I, Vol. 16, pp. 292-294.

[23] Kercher, Bruce, ‘The Recognition of Aboriginal Status and Laws in the Supreme Court of New South Wales under Forbes CJ, 1824-1836’, in Buck, A.R.. McLaren, John and Wright, Nancy, (eds.), Land and Freedom: Law, Property Rights and the British Diaspora, (Ashgate), 2001, pp. 83-102.

Hitting the local papers

From Dunstable Gazette, 7 August 2013.

Establishing a judiciary in Australia

The establishment of a professional colonial judiciary in NSW posed a series of problems. First, until representative institutions were introduced in 1823 and, arguably until those institutions included an element of election in the 1840s and given the highly personal nature of the gubernatorial power, the judiciary was the only body that could effectively question the authority and actions of governors. Tensions between the judiciary and the colonial authorities emerged from the early 1810s and intensified in the 1820s and early 1830s. Secondly, since the Colonial Office played a major role in the appointment of the colonial judiciary, there was a perhaps inevitable ambiguity in its attitude to judicial decisions especially when those decisions challenged the authority of colonial governors. Successive Colonial Secretaries found themselves having either to support their governor or their judges reflecting the potential conflict between their political and legal roles. The Colonial Office could and did refer the decisions of the colonial judiciary to English law officers and appeal courts but it was also prepared to recall judges whose actions it found unacceptable. This did not prevent their subsequent reappointment in other parts of the empire though the causes of the initial dismissal often reappeared. For example, Justice John Walpole Willis was dismissed from his position in Upper Canada because he was considered too sympathetic to reformist sentiment in the colony and was prepared to make the colonial administration accountable for its actions. [1] Willis appeared in Victoria in the early 1840s with similar consequences. [2] Similarly, Jeffrey Bent was dismissed as a judge in NSW, largely because of his awkward attitude but reappeared and caused problems in the West Indies first in Grenada then Trinidad and St Lucia and finally British Guiana.[3] Finally, there were continuing tensions between the free settler exclusionists and ex-convict emancipists over their legal and political rights. Although conservative in attitude, exclusionists sought to increase their political control over the colony by calling for representative institutions and by restricting the rights of emancipists. For emancipists, the critical issue was whether, having served their sentences, they should be regarded as citizens with the same legal rights as free settlers.

Lieutenant-Colonel Lachlan Macquarie (1762-1824)

The first legally qualified judge-advocate, Ellis Bent,[4] who was actually effective in the role, was not appointed until 1810.[5] His official duties as judge-advocate were diverse, extensive and exacting and he presided over the Civil and Criminal Courts. At this time there were no attorneys in the colony who had come there free. There were several who had been struck off the rolls when convicted of the offences that had led to their transportation. To prevent litigants bringing their personal enmities and passions into the court, Bent adopted a pragmatic stance permitting three of these ex-convict lawyers to practice in the Court of Civil Jurisdiction; but he admitted them, as he was careful to tell them, not as attorneys, but only as the specially appointed agents of those who might see fit to employ them.[6] To meet the situation for which he was obliged thus temporarily to provide, he recommended that a few attorneys of good repute should be encouraged by the government to translate themselves to New South Wales; if and when they arrived, he made it clear, he would withdraw the tentative permission given to the ex-convict attorneys to appear before him as agents. It was not until January 1815 that two attorneys William Moore and Frederick Garling arrived in NSW. [7] Bent’s decision reflected his general attitude to the emancipist controversy and he was prepared to admit to the jury box ‘the more respectable and affluent of those who, [having] been transported to this country, had either satisfied the full sentence of the law or received a free pardon’. However, he thought that the appointment of emancipists to more important offices should be decided, ‘not on any theoretical grounds, but on a sober and minute consideration of its most remote practical consequences.’

The Colonial Office was disinclined to limit the governor’s powers and Bent’s proposed reforms[8] were not well received, though in 1823 a number of them were incorporated in the New South Wales Act. Bathurst thought there were ‘many advantages’ in ‘the continuance of a judicial officer who bore a commission exclusively military’; the provision made in 1787 for the administration of the criminal law was unchanged, its administration remained with Ellis Bent, whose title of judge-advocate was unaltered. For civil cases, a Supreme Court was established composed of a judge and two assessors, with a jurisdiction in equity, probate and all common law matters except where the cause of action was below £50; when the amount involved was less, cases were to be heard by a tribunal called the Governor’s Court, over which the judge-advocate was to preside. Bent was acutely critical of these changes. By the time these Letters Patent were promulgated on 12 August 1814, the governor and the judge-advocate had become estranged because of their opposed views on the status of the judiciary in relation to the executive in NSW. Macquarie took the words of Bent’s commission, ‘you are to observe and follow such orders and directions from time to time as you should receive from our governor’, to mean precisely what they said. Apart from his strong views on the independence of the judiciary, Bent interpreted these words as requiring obedience to lawful orders and he refused to comply with directions that he considered involved his doing or officially agreeing to an illegal act. The relationship between Bent and Macquarie was made more difficult by Bent’s growing ill-health that led to his early death in 1815.

The situation was exacerbated by the arrival, in mid-1814, of Jeffrey Bent who had been appointed as judge of the Supreme Court of Civil Judicature, created by the Letters Patent on 4 February 1814.[9] Like his brother, Jeffrey had cordial relations with the free settler elite because of mutually conservative views and distaste for Macquarie and his policies. He was unwilling to open his court until lawyers arrived from Britain[10] and as he held his office under the Crown and was not required, as was the judge-advocate, to obey the orders of the governor, Macquarie could only fume and report the whole matter to the Colonial Office.[11] These mounting differences led Macquarie to request Bathurst to accept his resignation unless the Bents were removed.[12] Bathurst decided in January 1816 to support his governor and recall the judges. They seemed, he wrote, ‘too much disposed to resent the authority of the Governor and to withhold from him that cordial co-operation without which the business of the colony could not be satisfied’.[13] Bathurst based his dismissal of Jeffery on the latter’s closing of his court, even though he approved the judge’s attitude to convict attorneys as a general principle.[14]

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[1] Wilson, Alan, ‘John Walpole Willis’, Dictionary of Canadian Biography, Vol. 10, 1871-1880, 1972, pp. 704-707.

[2] Behan, H. F., Mr. Justice J. W. Willis: with particular reference to his period as first resident judge in Port Phillip 1841-1843, (Glen Iris), 1979.

[3] The commentary in HRA stated that Bent was not considered ‘blameworthy’ by the British government that chose to employ him elsewhere: HRA, Series I, Vol. 9, p, 864

[4] Currey, C.H., ‘Bent, Ellis (1783-1815)’ and ‘Bent, Jeffrey (1781-1852)’, ADB, Vol. 1, pp. 87-92.

[5] HRA, Series I, Vol. 7, p. 81 deals with Bent’s appointment following the suspension of Richard Aitkins. Macquarie granted him 1,265 acres of land in the Bringelly District in 1810: HRA, Series I, Vol. 7, p. 440.

[6] His brother Jeffrey took a more conventional stance objecting to the admission of ex-convicts as attorneys: see Macquarie to Bathurst, 22 June 1815, HRA, Series I, Vol. 8, pp. 480-483.

[7] See, Mckay, R.J., ‘Moore, William Henry (1788-1854)’, ADB, Vol. 2, pp. 255-257 and McIntyre, Joanna, ‘Garling, Frederick (1775-1848)’, ADB, Vol. 1, pp. 426-427. See also, Bathurst to Macquarie, 13 February 1814, HRA, Series I, Vol. 8, p. 139 stated that, following Jeffrey Bent’s recommendation, two solicitor would be proceeding to NSW.

[8] See, HRA, Series I, Vol. 7, pp. 814-820 prints Bent’s proposals sent to Lord Liverpool.

[9] Macquarie to Bathurst, 28 June 1813, HRA, Series I, Vol. 7, p. 777 recommending Bent’s appointment as a puisne judge: ‘...of Mr. Jeffery Bent to be the Assistant Judge Could not fail of producing so desireable an Object, when United with the Mild and Conciliatory Manners of his Brother, Mr. Ellis Bent.’

[10] See, Macquarie to Bathurst, 24 March 1815, HRA, Series I, Vol. 8, p. 466: ‘...frivolous and ridiculous Reason’ for not opening his court.

[11] See his complaints in Macquarie to Bathurst, 30 November 1814, and Macquarie to Bathurst, 24 February 1815, HRA, Series I, Vol. 8, pp 380-383, 389-399.

[12] Macquarie to Bathurst, 1 July 1815, HRA, Series I, Vol. 8, pp. 620-622.

[13] Bathurst to Macquarie, 18 April 1816, HRA, Series I, Vol. 9, pp. 107-108

[14] Bathurst to Jeffrey Bent, 12 April 1816, HRA, Series I, Vol. 9, pp. 112-113.

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.

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.

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[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.

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.

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!

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]

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[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.

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.

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[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.

Policing in Australia: exporting British traditions

There was a fundamental tension at the heart of the colony in NSW in the first decades of the nineteenth century. It was to be a penal colony, governed through executive military rule but in which the principles of the rule of law applied. Although the British intended to transport English law and legal proceedings along with the convicts, in practice there were significant departures from English law in the new and distant colony. Notably, the first civil case heard in Australia, in July 1788, was brought by a convict couple. They successfully sued the captain of the ship in which they had been transported, for the loss of a parcel during the voyage. In Britain, as convicts, they would have had no rights to bring such a case. The question of how to police a society that was both penal and free posed major problems after the creation of civilian colonial government in 1824. This was exacerbated by the sub-division of NSW after 1824 with the separation of VDL and Victoria and the establishment of South Australia, by the growing numbers of free settlers arriving in the colonies especially after the discovery of gold in 1851 and the gradual ending of transportation from the 1840s.

Colonists, initially in NSW but later in the newer colonies, were influenced by established English traditions in determining their policing arrangements. The English were suspicious of any notion of a powerful police, which they equated with the Catholic absolutism of France. This led to the development of decentralised model of policing in the eighteenth century where the administration of justice and the policing of towns and villages were placed under local control. The gentry acted as unpaid magistrates dispensing justice through the local Bench and property owners devoted some time to the duties of the unpaid parish constabulary. In the late eighteenth century, however, this informal, amateur system began to break down before the increasing incidence of urban unrest and property crime, especially in London.[1] Police reformers, such as John Fielding and Patrick Colquhoun and the commercial and propertied middle-classes increasingly advocated rigorous control and surveillance of the lower classes by a more systematically organised and coordinated police force. Such proposals were vehemently opposed by the gentry and the emerging industrial working class, who feared that the government would form a powerful, centralised police force to ride roughshod over their liberties. With the crucial support of Tory backbenchers, they resisted efforts to establish French-style police methods in England. The most important development was the Middlesex Justices Act of 1792 that appointed stipendiary or paid magistrates in charge of small police forces. But the predominantly local system of policing was still in place in the 1820s.

There was less resistance to stern measures against agrarian protest and violence in Ireland. The Peace Preservation Act of 1814 and the Irish Constabulary Act of 1822 established police forces in county areas and created a more militarised and centralised form of policing.[2] The author of these statutes, Robert Peel, when home secretary, used arguments based on the efficiency of the Irish police and the threat to liberty from disorder and crime to achieve police reform in England. Peel pushed the Metropolitan Police Act through Parliament in 1829 creating a paid, uniformed, preventive police for London headed by commissioners without magisterial duties and under central direction. The example of uniformed, professional police subsequently spread throughout England over the following decades, but they remained under local control and the extent to which the new police differed from the existing watchmen and constables should not be exaggerated.[3]

These developments provided two different models for colonial policing. First, a centralised, military styled and armed force of Ireland kept away from the local community in barracks. Secondly, a consciously non-military, unarmed, preventive English police supposedly working in partnership with and with the consent of the local community.[4] More often than not elements from both models were employed by colonial police forces and adapted to suit local circumstances. Where the security of the state was threatened, the Irish approach was deployed, while English methods were more pervasive and influenced day-to-day policing of all aspects of social life.[5]

During the 1950s and 1960s, historians of English policing argued that the introduction of the ‘new police’ received widespread community support. The few individuals, who opposed its introduction, it was argued, were soon won over by the force’s ability to prevent crime and maintain social order, so securing it ‘the confidence and the lasting admiration of the British people’.[6] 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.[7] 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’.[8] 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’.[9] 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.

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[1] Philips, David, ‘‘A New Engine of Power and Authority’: The Institutionalization of Law-Enforcement in England, 1780-1830’, in Gatrell, V.A.C., Lenman, Bruce and Parker, Geoffrey, (eds.), Crime and the Law: The Social History of Crime in Western Europe Since 1500, (Europa), 1980, pp. 155-189; Hay, Douglas and Snyder, Francis, (eds.), Policing and Prosecution in Britain, 1750-1850, (Clarendon Press), 1989; Emsley, Clive, The English Police: A Political and Social History, 2^nd ed., (Longman), 1996, pp. 15-23; McMullan, J.L., ‘The Arresting Eye: Discourse, Surveillance, and Disciplinary Administration in Early English Police Thinking’, Social and Legal Studies, Vol. 7, (1998), pp. 97-128. Gattrell, V.A.C., ‘Crime, authority and the policeman-state‘, in Thompson, F.M.L., (ed.), The Cambridge Social History of Britain 1750-1950: Vol. 3 Social Agencies and Institutions, (Cambridge University Press), 1900, pp. 243-310 provides a good overview.

[2] Palmer, S.H., Police and Protest in England and Ireland, 1780-1850, (Cambridge University Press), 1988, chapters 6 and 7.

[3] Styles, John, ‘The Emergence of the Police: Explaining Police Reform in Eighteenth- and Nineteenth-Century England’, British Journal of Criminology, Vol. 27 (1987), pp. 15-22.

[4] Brogden, Michael, ‘An Act to Colonise the Internal Lands of the Island: Empire and the Origins of the Professional Police’, International Journal of the Sociology of Law, Vol. 15, (1987), pp. 179-208; Anderson, D.M. and Killingray, David, (eds.), Policing and the Empire: Government, Authority, and Control, 1830-1940, (Manchester University Press), 1991 and Emsley, Clive, The Great British Bobby: A history of British policing from the 18^th century to the present, (Quercus), 2009, pp. 104-111.

[5] See, ibid, Emsley, Clive, The Great British Bobby, pp. 91-92 for s succinct discussion of the two models and Hawkins, Richard, ‘The ‘Irish Model’ and the Empire: A Case for Reassessment’, in ibid, Anderson, D.M. and Killingray, David, (eds.), Policing and the Empire, pp. 18-32 makes a powerful case that there was no real ‘Irish model’.

[6] Jones, David, ‘The New Police, Crime and People in England and Wales, 1829-1888,’ Transactions of the Royal Historical Society, Vol. 33, (1983), p. 153. For discussions of this debate see, Emsley, Clive, Policing and its Context, 1750-1870, (Macmillan), 1987, pp. 4-7; Bailey, V., ‘Introduction’, in Bailey, V., (ed.), Policing and Punishment in Nineteenth Century Britain, (Croom Helm), 1981, pp. 12-14; Fyfe, N.R., ‘The Police, Space and Society: The Geography of Policing’, Progress in Human Geography, Vol. 15, (3), (1991), pp. 250-252; Taylor, David, The new police: crime, conflict, and control in 19^th-century England, (Manchester University Press), 1997, ibid, Brogden, M., ‘An Act to Colonise the Internal Lands of the Island: Empire and the Origins of the Professional Police’, pp. 181-183.

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

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

[9] 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.