Let but one of them come before me, and I'll commit him: Trade unions, magistrates, and the law in mid-nineteenth-century Staffordshire

Journal of British Studies

Volumn 44, Issue 1, 2005, Pages 64-91

  Frank, Christopher ^a  

^a UNIVERSITY OF MANITOBA   (Canada)

Author keywords

[No Author keywords available]

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EID: 33746418597     PISSN: 00219371     EISSN: None     Source Type: Journal    
DOI: 10.1086/426157     Document Type: Review

References (103)

1. R. Steinfeld, The Invention of Free Labour: The Employment Relationship in England and American Law and Culture, 1350-1870 (Chapel Hill, N.C., 1991)
2. and Coercion, Contract, and Free Labour in the Nineteenth Century (Cambridge, 2001)
3. D. Hay and P. Craven, "Introduction," in Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955, ed. D. Hay and P. Craven (Chapel Hill, N.C., 2004)
4. and "The Criminalization of Free Labour: Master and Servant in Comparative Perspective," Slavery and Abolition 15, no. 2 (August 1994): 71-101
5. M. Steinberg, "Capitalist Development, the Labor Process, and the Law," American Journal of Sociology 109, no. 2 (September 2003): 445-95
6. S. Deakin, "The Contract of Employment: A Study in Legal Evolution," Historical Studies in Industrial Relations 11 (Spring 2001): 5
7. Steinberg, "Capitalist Development"
8. D. C. Woods, "The Operation of the Master and Servants Act in the Black Country, 1858-1875," Midlands History 7 (1982): 93-115
9. M. Steinberg, "The Labour Contract and Justice and Exploitation in Local Courts: The Case of Mid-Victorian Hull" (paper presented at the Annual Meeting of the Social Science History Association, 13 November 2003, Baltimore, Md.)
10. For multiple examples from the former British Empire, see Hay and Craven, eds., Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955
11. Hay notes that Parliament passed ten different statutes providing imprisonment for breach of contract between 1720 and 1792. For the increasing harshness of these acts, see n. 5 below. Douglas Hay, "England 1562-1875: The Law and Its Uses," in Hay and Craven, eds., Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955, pp. 82-86
12. D. Hay, "Master and Servant in England: Using the Law in the Eighteenth and Nineteenth Centuries," in Private Law and Social Inequality in the Industrial Age: Comparing the Legal Cultures of Britain, France, Germany and the United States, ed. W. Steinmetz (London, 2000,) pp. 227-29, 238
13. Hay, "England 1562-1875"
14. D. Hay and P. Craven, "Master and Servant in England and Empire: A Comparative Study," Labour/Le Travail 31 (Spring 1993): 175-84
15. Hay and Craven, "The Criminalization of Free Labour"
16. Steinfeld, Coercion, Contract, and Free Labour, pp. 47-51
17. The most frequently cited causes for this change in orientation of the law include the combination of new master and servant acts, changes in the social composition of the magisterial bench, and the construction of new gaols and bridewells. Woods's account relies upon newspaper reports, a source likely to underreport wage claims brought by workers. The unknown quantity of wage cases handled by courts of request and the new country courts also has to be considered. Hay and Craven, "Introduction," p. 8
18. Hay, "England 1562-1875," pp. 101-5
19. Hay, "Master and Servant in England," pp. 230-31, 240-43, 255-57
20. Woods, "Operation of the Master and Servant Acts," p. 102
21. W. Steinmetz, "Was There a De-juridification of Employment Relations in Britain?" in Steinmetz, ed., Private Law and Social Inequality in the Industrial Age, p. 102
22. On the changing social composition of the magistracy, see: R. Challinor, Radical Lawyer in Victorian England: W. P. Roberts and the Struggle for Workers' Rights (London, 1990), pp. 71-73
23. D. Foster, "The Social and Political Composition of the Lancashire Magistracy, 1821-1851" (Ph.D. thesis, University of Lancaster, 1972)
24. and "Class and County Government in Early Nineteenth-Century Lancashire," Northern History 9 (1974): 48-61
25. J. Knipe, "The Justice of the Peace in Yorkshire, 1820-1914: A Social Study" (Ph.D. thesis, University of Southern California, 1970)
26. D. Phillips, "The Black Country Magistracy, 1835-1860: A Changing Elite and the Exercise of Its Power," Midlands History 3 (1976): 161-90
27. D. C. Woods, "The Borough Magistracy and the Authority Structure of Black Country Towns, 1860-1900," West Midland Studies 12 (1979): 22-26
28. and "The Operation of the Master and Servants Act," pp. 93-115
29. C. Zangrel, "The Social Composition of the Country Magistracy in England and Wales," Journal of British Studies 11, no. 1 (1971): 113-25
30. R. Swift, "The English Urban Magistracy and the Administration of Justice during the Early Nineteenth Century: Wolverhampton, 1815-1860," Midlands History 17 (1992): 75-92
31. B. Godfrey, "Judicial Impartiality and the Use of the Law against Labour," Crime, Histoire, and Societies 3, no. 2 (1999): 57-72
32. Steinmetz, "Was There De-juridification of Industrial Relations in Britain," pp. 265-312
33. J. Orth, Combination and Conspiracy: A Legal History of Trade Unionism, 1721-1906 (Oxford, 1991)
34. Challinor, Radical Lawyer, chap. 7
35. R. Challinor and B. Ripley, The Miners' Association: A Trade Union in the Age of Chartists (London, 1968), chap. 6
36. R. Fynes, The Miners of Northumberland and Durham: A History of Their Social and Political Progress (Wakefield, 1873), chaps. 7-8
37. R. Colls, The Pitmen of the Northern Coalfield: Work, Culture and Protest, 1790-1850 (Manchester, 1987), pp. 64, 73, 293-94
38. Steinberg, "Capitalist Development," and "The Labour Contract"
39. Woods, "The Operation of the Master and Servant Act"
40. W. H. Warburton, History of Trade Union Organization in the North Staffordshire Potteries (London, 1913), pp. 44-16, 90-98, 105
41. Robert Steinfeld has examined high-court litigation in master and servant cases from an earlier period, but he neglects struggles that do not appear in the reported cases and does not explore the social contexts, strategies, and coordination that produced union-funded challenges to master and servant prosecutions. D. Simon, "Master and Servant," in Democracy and the Labour Movement: Essays in Honour of Donna Torr, ed. J. Saville (London, 1954), pp. 160-200
42. C. Frank, "'Constitutional Law versus Justices' Justice': Trade Unions, Lawyers, and Magistrates, 1842-1862," (Ph.D. thesis, York University, 2003), "'He Might Almost as Well Be Without Trial': Trade Unions and the 1823 Master and Servant Act - the Warrington Cases, 1846-47," Historical Studies in Industrial Relations 14 (Autumn 2003): 3-43
43. R. Fyson, "The Crisis of 1842: Chartism, the Colliers' Strike, and the Outbreak in the Potteries," in The Chartist Experience: Studies in Working Class Radicalism and Culture, 1830-1860, ed. D. Thompson and J. Epstein (London, 1982), p. 210
44. Also see the Staffordshire Advertiser (16 May 1857), p. 2
45. National Archives (henceforth NA), KB 1/190/22, KB 1/191/60
46. Frank, "'Constitutional Law versus Justices' Justice,'" chap. 2, sec. 4
47. Sheffield and Rotherham Independent (15 June 1844), p. 8, (29 June 1844), p. 5
48. Northern Star (10 February 1844), p. 4, (8 February 1845), p. 4
49. Gareth Stedman Jones, The Languages of Class: Studies in Working Class History, 1832-1982 (London, 1983), pp. 102-6, 109
50. Those advocating the expansion of magistrates' powers to determine cases of petty theft, workplace misappropriation, and juvenile crime summarily were very clear in their motives. They claimed that the jury trial was too expensive, time-consuming, and maddeningly uncertain for the prosecutor. They claimed that juries were unsure to convict, judges "overprotected" defendants, and lawyers exploited technicalities to free the guilty. T. Sweeney, "The Extension and Practice of Summary Jurisdiction in England, c. 1790-1860" (Ph.D. diss., Cambridge University, 1985), pp. 34-35, 86, 91-102, 111, 118, 129-33, 139, 141, 145-59
51. B. Smith, "Circumventing the Jury: Petty Crime and Summary Justice in London and New York City, 1790-1855" (Ph.D. diss., Yale University, 1996), pp. 75-76, 84, 102-16, 118-26, 132-34, 189-97, 416-19, 424, 430, 433, 440
52. Many of these latter originated from magistrates' rulings in labor cases. Hansard Parliamentary Debates, 3d series, Commencing with the Accession of William IV (London, 1843-48), vol. 85, cols. 470-80 (2 April 1846), vol. 90, col. 1136 (11 March 1847), vol. 93, cols. 120, 947-53 (4 and 25 June 1847)
53. Frank, "The Warrington Cases," pp. 29-33
54. Smith, "Circumventing the Jury," pp. 118-20
55. Harry Arthurs has argued that between 1830 and 1870 the legal profession and the common law judges were also asserting their authority over a wide range of specialized courts and private tribunals that administered distinctly local systems of law. H. Arthurs, Without the haw: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto, 1985)
56. Legal Observer 27 (27 March 1844), p. 406
57. W. R. Cornish and G. de N. Clark, Law and Society in England, 1750-1950 (London: Sweet & Maxwell, 1989), p. 35
58. J. Wedgewood, Staffordshire Pottery and Its History (London, 1913)
59. Labour and the Poor in England and Wales, 1849-1851: The Letters to the "Morning Chronicle" from the Correspondents in the Manufacturing and Mining Districts, the Towns of Liverpool and Birmingham, and the Rural Districts of Northumberland and Durham, Staffordshire, the Midlands, 2 vols., ed. J. Ginswick (London, 1983), 1:111-13
60. C. Shaw, When I Was a Child (London: Caliban Books, 1903), p. 41. Shaw also went on to describe the "damp, dark, foul den" where prisoners waited in terror to be called before Rose
61. Fyson, "Crisis of 1842," pp. 197-98, 200-203
62. Shaw, When I Was a Child, pp. 155-71
63. T. Cooper, The Life of Thomas Cooper, ed. J. Saville (1872; New York, 1971), pp. 186-219
64. Fyson, "Crisis of 1842," pp. 207-14
65. The crowd destroyed police offices in Hanley and Fenton, the coal office of the earl of Granville, the home of master potter Charles Mason. It also burned down the homes of magistrates William Parker, Thomas Allen, and R. E. Aitken. Challinor, Radical Lawyer, p. 65
66. Cooper, Life of Thomas Cooper, pp. 186-219
67. J. Fellague Ariouat, "Rethinking Partisanship in the Conduct of Chartist Trials, 1839-1848," Albion 29, no. 4 (Winter 1998): 601
68. One of Home Secretary James Graham's biographers suggests that many magistrates "neglected their duties through idleness, fear, 'economical' reliance on the Army or desire to embarrass the Government." Graham told the Queen that "he was by no means satisfied with the activity of the magistrates . . . [who] had shown a want of proper spirit in defending their property." Lord Lieutenant Talbot defended Rose, arguing to the home secretary that despite the "difficult position in which Mr. Rose was placed" one could "not find that he was wanting in activity or exertion to quell the riots." J. T. Ward, Sir James Graham (London, 1967), pp. 190-91
69. Northern Star (8 February 1845), p. 4
70. Potters also objected to the employers' right to refuse to pay them for "dirty ware" (and then sell it at discounted prices) and to the unlimited power to fine them. Their bond allowed some employers to operate an allowance system, whereby they were "allowed" to deduct 2d. to 4d. from every shilling a potter earned. Warburton, The History of Trade Union Organization, pp. 44-46, 90-98, 105
71. Potters Examine)' and Workman's Advocate (henceforth PEWA; 6 January 1844), p. 44
72. Wedgewood, Staffordshire Pottery, p. 170
73. For use of rhetoric comparing "American slavery" with "English slavery," see M. Cunliffe, Chattel Slavery and Wage Slavery: The Anglo-American Context, 1830-1860 (Athens, Ga., 1979), pp. 8-16
74. Staffordshire Advertiser (16 December 1843), p. 2
75. PEWA (23 December 1843), p. 29
76. Rose commonly made similar warnings to the wider community when issuing rulings from the bench. Staffordshire Advertiser (6 September 1851), p. 4, (12 July 1851), p. 4
77. The author assessed Rose's impact on the legitimacy of the law, suggesting, "How can they reasonably expect that the masses will treat with awe, that which magistrates administer with contempt?" PEWA (30 March 1844), pp. 137-39
78. Justice of the Peace 9, no. 5 (1 February 1845), p. 84
79. Through his defense of union officials charged with conspiring to violate the 1825 act, Roberts was important in the establishment of much of the case law that defined these terms. In 1847 he had been the solicitor in the case of twenty-six Warrington mechanics charged with conspiring to violate the 1825 act by warning replacement workers that they would be known as " knobsticks" if they continued to work. In this case, R v. Selsby (1847), Baron Rolfe defined an illegal threat as one that communicated the possibility of bodily harm. The words "obstruction" and "molestation" remained vague until the conspiracy cases of R. v. Rowlands and R. v. Duffield (1851), in which Judge Erle defined them in the "broadest possible terms." Erle told a jury at the Staffordshire Assizes that conspiring to take away all of the plaintiffs workmen qualified as obstruction and molestation under the 1825 act. This ruling made it legal for men to combine to raise wages or reduce hours but criminalized tactics that could effectively achieve these ends, such as the information picket. The case led to political agitation by labor that ultimately resulted in the 1859 Molestation of Workmen Act. J. Orth, Combination and Conspiracy: A Leflal History of Trade Unionism, 1721-1906 (Oxford, 1991), pp. 87-90, 95-98
80. and "The Law of Strikes, 1847-1871," in; Papers Presented to the Bristol Leflal History Conference (14-17 July 1981), ed. J. A. Guy and H. G. Beale (London: Royal Historical Society," 1984), pp. 128-31
81. J. Orth, "English Law and Striking Workmen, the Molestation of Workmen Act, 1859," Journal of Leflal History 2 (1981): 238-57
82. J. Jones, Selsby and Others on the Prosecution of Jones and Potts, Narrative, Introduction, &c. (London, 1847), Goldsmith-Kress Library of Economic Literature, Reel no. 35390
83. Staffordshire Advertiser (4 May 1850), p. 4, (11 May 1850), p. 4
84. Justice of the Peace 7, no. 46 (18 Nov. 1843), p. 695
85. Challinor, Radical Lawyer. Two other solicitors who did considerable work for trade unions and merit further investigation are J. H. Owen of Wales and William Broomhead of Sheffield. For Owen, see E. W Evans, The Miners of South Wales (Cardiff, 1961)
86. J. H. Morris and L. J. Williams, The South Wales Coal Industry (Cardiff, 1958)
87. See Thompson v. Gibson and Another (1841), 8 M & W 282-90
88. This was a relevant point because in 1843 two Staffordshire magistrates were forced to pay the costs of all parties in a criminal information brought against them for refusing to accept the bail of Chartist prisoners. In the summer of 1848, a Norfolk magistrate was pursued in civil action for erroneously revoking the bail of a defendant. Justice of the Peace 7, no. 11(18 March 1843), pp. 128-30, 7, no. 23 (10 June 1843), pp. 317-318, 12, no. 30 (22 July 1848), p. 469
89. John Walter Huddleston was an active barrister on the Oxford Circuit who often handled Roberts's briefs from Staffordshire. In 1875 he became a judge in Common Pleas and in the same year was transferred to the Exchequer. See Dictionary of National Biography; Justice of the Peace, 15, no. 1 (4 January 1851), pp. 9-10
90. County of Staffordshire, Orders of Sessions, vol. 37 (1850)
91. G. W. Hinton, The Truck System: Including a History of the British Truck Acts, 1465-1960 (Cambridge, 1960), pp. 31-33, 121-24
92. According to a correspondent of the Morning Chronicle writing from Staffordshire between 1849 and 1851, "Not a few magistrates themselves are notorious truck store keepers." Cases of Distress and Oppression in the Staffordshire Potteries; By Labourers Wages Being Paid in Truck (Burslem, 1830), pp. 4-12
93. and Reflections on the Injustice of the Truck System by a Staffordshire Morelander (London, 1830), pp. 13, 15, 17, in Goldsmith-Kress Library of Economic Literature, Reel nos. 26355, 26435
94. Labour and the Poor in England and Wales, 1849-51 pp. 105-8
95. Hinton, The Truck System, pp. 35-36
96. Hinten, The Truck System, pp. 109-111, 121-31, 128
97. Morris and Williams, South Wales Coal Industry, p. 269
98. R. Swift, "The English Urban Magistracy," pp. 75-92
99. Steinmetz, "De-juridification," p. 276
100. D. Hay, "Dread of the Crown Office: The Magistracy and the King's Bench, 1740-1800," in Law, Crime, and English Society, 1660-1840, ed. N. Landau (Cambridge, 2003), pp. 26-30
101. In another 1850 criminal information against a magistrate, Judge Campbell asserted that the Queen's Bench would send a criminal information before a special jury at the assizes "if he [the magistrate] gives way to passion in doing anything connected with the administration of justice or if he is guilty of any impropriety of demeanor, so as to affect the due discharge of his duties." It would appear that the affidavits of Greaves and Daniels met this standard. Justice of the Peace 14, no. 47 (23 November 1850), p. 47, 14, no. 48 (30 November 1850), pp. 738-39
102. Frank, "The 1844 Master and Servants Bill," and "'Constitutional Law versus Justices' Justice,'" chap. 3, sees. 4 and 5
103. For Roberts's testimony, see pp. 70-81 (12 June 1866), pp.101-5 (19 June 1866)