Citation: Bruce Kercher, The Unruly Child: a history of Law in Australia (Sydney: Allen & Unwin, 1995), pp XI-XXI introduction english Flotsam



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Citation: Bruce Kercher, The Unruly Child: A History of Law in Australia (Sydney: Allen & Unwin, 1995), pp. xi-xxi

INTRODUCTION
English Flotsam
When the British waded ashore at Sydney Cove in 1788, they carried English law into an utterly remote land. From that time onwards, their law spread across Australia, stripping away the rights of its original occupants, tearing the flesh from the backs of the convicts who had endured the voyage from England, and helping to establish the most distant outpost of western civilisation. As its influence radiated out from the new towns, it imposed its fundamentally English values on people whose ancestors had been in undisturbed occupation of the land for tens of thousands of years. Everyone who arrived in 1788 or later–the British, Irish, Americans, Chinese, Pacific Islanders, Greeks, Vietnamese, etc.–was assumed to accept English law. Even the Scots, with their own distinct legal traditions, were under English law once they arrived in Australia. From January 1788 this imported law took a central role in Australian history, shaping its basic relationships while bending to the demands of the vast dry continent.
According to the eighteenth-century jurist William Blackstone, there three kinds of British colonies, settled, conquered and ceded, and English law was dominant in each of them.1 Settled colonies were those which the land was assumed to be empty and without an owner, a terra nullius. In them, most but not all of the laws of England were taken by settlers as their birthright. All English laws that were ‘applicable to their own situation and condition of any infant colony’ were exported here. Those that were ‘neither necessary nor convenient’ were not in force. The process of legal adoption was less automatic in conquered and ceded colonies, which took only those English laws that parliament provided for them.
Despite fierce Aboriginal resistance in many places, the British government did not change its initial assumption that all of the Australian [xii] colonies were gained by settlement rather than conquest. When it was first occupied, New South Wales covered territory that later became Victoria and Queensland, each of which took New South Wales law with it when it subsequently separated from the original colony. The same applied in Tasmania, which was part of New South Wales until 1825. It retained its original name of Van Diemen’s Land until 1856, not long after it finally cast off its penal status. Western Australia and South Australia were each established separately, with their own independent adoption of English law from the time of their establishment in 1829 and 1836, respectively. In all of these colonies, the bulk of English law was assumed to apply under Blackstone’s settlement classification. This assumption had devastating consequences for the Aboriginal people whose lands were invaded.
Blackstone’s multi-volume Commentaries were the most important law books carried on the First Fleet in 1788. First published twenty years earlier, they were the most convenient summary of the scattered sources of English law. More than that, they soon acquired such authority that they were treated as reverently as any superior court judgment. In the frontier period at Sydney Cove when the only lawyers in the colony were convicts, the possession of the latest edition of Blackstone was almost as good as a qualification in law.
The laws of England in 1788 were deeply influenced by tradition. There were two sources of law, the judges and the parliament. Judge-made law, the common law and equity, was built up by the application of precedent on precedent, slowly changing shape like an ancient coral reef. Each decision was based on what had been done in the past rather than by explicit reference to what a changing society might need. The judges considered past decisions and applied them by analogy to the case before them. When they wanted to change the law, they tended to invent fictions to avoid the appearance of change. This allowed flexibility, but the price was increasing unreality and complication. New decisions grew on the bodies of the old, adding complexity to fantastic complexity in this profoundly conservative legal tradition.
In theory, the parliament at Westminster was supreme and could pass Acts or statutes to alter or abolish the rules of common law and equity. When it did, the judges were supposedly powerless, although they could bend the meaning of legislation through idiosyncratic interpretation. The supremacy of parliament meant that the system carried its own potential for reform, but there were no serious structural changes until the nineteenth century. Most eighteenth-century lawyers and parliamentarians shared a deep seated belief in the perfection of the law. To Blackstone, the judge-made law of England was also ‘the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen’. This belief, or at least the assertion of this belief, was used in political debates until well into the [xiii] nineteenth century.2 A touchstone of the English, it was often more than rhetoric.
The extreme flexibility of the common law system was what allowed it last so long in an apparently unchanged way. The vast bulk of judge made law was so broad and embodied so many traditions that it could be used by radicals as well as conservatives. Like the use of fictions, its ambiguities left room for adaptation to new circumstances. It could not be entirely malleable, however; if it were, it would not have been a system at all. Judge-made law was like a language in which many things could be said, but it did have limits. It papered over contradictions, speaking in universal terms while being the expression of a deeply stratified society.
The common law’s most basic value was liberty, which Blackstone chiefly defined in terms of freedom to hold property. To him, the primary merit of property was the opportunity it gave its holders to aid others. In his Lockean world, the object of government was the protection of property, land above all else. What was liberty for some, however, was often deep cruelty to others. The criminal and civil law of eighteenth-century England used extreme methods to protect property, not that Blackstone saw them in that way.
The eastern half of Australia was occupied in order to protect English property. Most of the convicts who were transported here had been found guilty of property crimes. In many cases these were simple crimes, such as when female servants stole their mistresses’ clothing, or men robbed pedestrians in the streets of London. Others were Irish political prisoners and those whose crimes had been based on protest or the assertion of their own dissenting views of what was lawful behaviour.
Blackstone assumed a paternalist model, which was already crumbling when he wrote. Under it, the strong protected the weak and were owed duties of obedience in return. Servants obeyed their masters who cared for them, and the same basic relationship applied across society, between husbands and wives, parents and children, squires and the poor. As new agricultural methods were introduced, industry developed and people moved to the cities, the old local, personal, class relationships broke down, and the old paternalist laws were repealed. The ideology of the free market had a corrosive effect on the traditions of England.
Desperate measures were taken to shore up the increasingly archaic paternalist ways; the criminal law became bloodier. Parliament introduced more and more capital offences as it attempted to reinforce order. At the same time, it attempted to impose new versions of property on a reluctant population. What had been a custom was often declared to be a crime, subject to the death penalty. In these cases there was a fatal clash between conflicting visions of legal right. The worst example was the Black Act of 1723, under which 50 distinct new capital offences were created, the main [xiv] ones concerning the wearing of disguises while hunting animals. Others included the plundering of wrecked vessels and even smuggling, which were seen by those who engaged in them and by the common people as more than simple criminality; they were traditional customary practices. The same applied to poaching and those who breached the game laws.3 The members of parliament may have controlled the official version of the law, but they did not always control the popular visions of it.
Popular resistance was sometimes enough to change the shape of official law. In 1772 parliament repealed a series of patemalist marketing laws which had attempted to ensure that the poor had access to cheap bread. The new approach was based on laissez faire principles, but whenever there was a grain shortage the common people rioted in protest against the new laws. As E. P. Thompson shows, their aim was to restore the old principles, and in at least one case they were successful even at the official level. The trial judge in R. v. Rusby (1800) held that while the statutory marketing laws had been repealed, the old paternalist common law was still in force. This decision was barely within acceptable limits of judicial decision making, since it was so obviously against the intentions of parliament when it repealed the marketing statutes. In effect, the new laissez faire principles usually applied by the end of the eighteenth century, but in this case social pressures were released by the application of old values. The initiative was taken by the people, and it had an effect on the formal law. This principled form of civil disobedience was also common in America and, as will be shown, in the Australian colonies.4 When they had no representation in parliament, this was the only way in which ordinary people could express their views of law. It did show, however, that law making was not always imposed from above. In some cases, law breaking was a creative form of law making.
The brutality of the criminal law in this transitional period in English society was most evident when a prisoner was condemned to death. After placing the black cloth on his head, the judge stated horrible words such as ‘The law is that thou shalt return from hence, to the Place whence thou camest, and from thence to the Place of Execution, where thou shalt hang by the Neck, till the body be dead! dead! dead! and the Lord have Mercy upon thy Soul.’5
This hideous sentence could be imposed even though the defendants had no right to a lawyer or even to give evidence in their own cases. They could speak in court, but their words could only be persuasive, not decisive evidence. After sentencing, condemned prisoners could only plead to the king for their lives. Many of the convicts who were transported to Australia had been through the terrifying ceremony of being sentenced to death. Having received the mercy of the crown, they were then sent to the penal colonies for periods between seven years and life. [xv]
This brutal suppression of criminals and dissidents was not the only social effect of eighteenth-century criminal law. Douglas Hay has shown that it also played a central role in reinforcing the crumbling social bonds of paternalism and deference, through the intervention of individual paternalists to save those who had been condemned. The weak British state enforced law through extremely strong punishment, but the penalties were often not carried out. When people were saved from the gallows, the law acquired an appearance of mercy and justice while retaining its terrible threat. The bond between land holders and common people was thus strengthened by the combination of fear and gratitude.6
The civil law of England was just as cruel as the criminal law. In the late eighteenth century, as in every period since then, the main role of the civil law was to enforce debts, which it did with extreme force. There were two main kinds of remedy against defaulting debtors: the seizure of property and imprisonment. Imprisonment for debt was available to creditors regardless of the reasons for non-payment, and even before the creditor proved that the money was owing. It did not matter that debtors were too poor to pay what they owed; their creditors had a right to have them thrown into gaol. Bail, insolvency and bankruptcy all allowed the debtor to be released, but many poor debtors fell through the cracks of this disorganised system.7
Once they arrived in gaol, debtors were able to buy as much comfort as they could afford. Those who were wealthy could bring in food, prostitutes, their own furniture or whatever else they wished. Many of them continued their ordinary occupation in gaol, earning enough to live on. In the great debtors’ prisons in London, imprisoned debtors could even pay a large fee to live in the Rules, an area outside the walls of the gaol, while remaining in formal custody.
Poor debtors sometimes starved to death or died of disease or neglect. That was the fate of John Trivett only two or three years before the First Fleet left for Sydney. He had been confined in gaol for a year for a debt of about £35 and had slept on a damp stone floor for the whole winter, with only a piece of hop bag as bedding. By sleeping so long in his clothes, he had worn a hole in the shoulder of his coat, so that his skin was in direct contact with the floor. When he was healthy he had supported himself in gaol by blacking shoes and cleaning knives, but his illness, which was a ‘Cold and a Flux’, prevented him from earning a living and being able to afford a bed. The physician who attended him said that he had died of want, although the coroner’s verdict was that he had died ‘by visitation of God’. Subsequently, his room mate was required to live in their room with the body for several days until it was taken away for burial.
This was only one of many deaths by malnutrition and inadequate housing mentioned during a parliamentary inquiry into imprisonment for [xvi] debt in 1791. Overcrowding, starvation and insanitary conditions may have been common in late-eighteenth-century London, but they can rarely have been so directly related to the law. Trivett was killed by English law, just as certainly as those who were hanged.
At common law, debtors had no right to maintenance after it was proved that they owed a debt. Some callous judges seemed to relish the rule:
. . . if [an imprisoned debtor] has no goods, he shall live of the charity of others, and if others will give him nothing, let him die in the name of God, if he will, and impute the cause of it to his own fault, for his presumption and ill behaviour brought him to that imprisonments.8
Although debtors had a statutory right to maintenance, it was too costly to obtain for those who needed it most. Many of them were forced to rely on charity, but the largest of the charities insisted on the integrity, sobriety and industry of the debtor before giving relief. Some survived only because of the compassion of other poor debtors.
The debt-recovery system shows the nature of freedom under eighteenth century English law, the way in which it allowed people to operate with little interference from the state. The law allowed creditors to choose when to imprison their debtors, just as it allowed wealthy debtors to go to gaol to avoid paying their debts and live there as they wished. Some property, such as land and money, was exempt from direct seizure on behalf of creditors. In this way, land was placed above such mundane matters as commercial obligations, while traders retained the right to threaten their debtors with imprisonment. Such were the compromises between the most influential classes of England. The prison keepers were also autonomous, running the prisons with little control by the government or the judges. This complex system of interlocking liberties was central to the old corruption, under which personal and public interests were thoroughly mixed. It was the expression of a form of liberty, the right to manipulate the law to one’s own advantage. Like most abstract liberties, this took no account of the variations in its actual availability. The poor, like the rich, were entitled to live in splendour while in gaol.
The prison officials owned their offices, which they milked for profit. They made their money on a fee-for-service basis and by selling goods and services to their inmates. The keepers of the great prisons earned thousands of pounds a year. When they wished to retire, they could either sell their position or lease it and live on the rent.
This fee system was an expression of the entrepreneurial nature of eighteenth-century English government. Most officials earned their money through fees, including the judges. The more cases they heard, the greater was their income. This kept down the costs and size of government, but at the expense of vast confusion, corruption and inefficiency.
The character of English law in these years was partly determined by the [xvii] mass-produced nature of court actions. As Francis points out, there were only twelve superior court judges, each with a load of 10,000 cases per year. They coped with the work by relying very heavily on formality. Legal decisions were made by reference to strict compliance with legal form rather than the substance of the law or justice, especially in such common actions as debt recovery. Plaintiffs who complied with formal requirements, such as swearing that a debt was due, were able to obtain remedies automatically. The autonomy of creditors was partly a result of these structural restrictions.9
Other aspects of English common law were equally characterised by formality and complexity, adding to the incomes of lawyers. Simply commencing litigation required expert advice; for example, the courts could not hear a case unless the defendant agreed to appear. Appearance could be coerced by outlawry or a process called distringas, each of which was complex and uncertain in its effect.
These intricacies were partly caused by a competition for business between the courts. There were three major common law courts in London, the King’s Bench, Common Pleas and Exchequer. Each had its own procedures, which had their origins centuries earlier. Originally the courts had different functions, but in the competition for fees each sought to expand its jurisdiction to cover the most lucrative business. This also led to the creation of fictions. In the King’s Bench, for example, the ordinary process of litigation always began with a fictitious allegation of trespass, no matter what the plaintiff was really claiming.10
The mass-produced and formal nature of the common law often led to injustice, but its rigidity and harshness was supposed to be softened by equity. Equity (or chancery) was a separate legal system with its own courts. Based on a standard of conscience, it applied when the common law remedy was deemed to be inadequate. It grew from the individual decisions of the Lord Chancellors and retained (as it still does) a religious tone. Its concentration was on the substance of the cases rather than their form, and it proceeded by hand-crafted rather than mass-produced methods. The guiding principle was the conscience of the Lord Chancellors; unconscientious dealings, such as the breach of a trust owed by an adult to a child, should have led equity to intervene. However, it operated in only a few areas and did nothing about the plight of many victims of common law rules, such as debtors and servants.
By the late eighteenth century this fountain of justice had become very polluted even within its acknowledged areas of activity. If the common law was sufficiently confused and complex to be described as a mist, equity was an impenetrable fog, as Dickens said in chapter I of Bleak House (1853):
Never can there come fog too thick, never can there come mud and mire too [xviii] deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth.
[The members of the High Court of Chancery are] mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goathair and horsehair warded heads against waits of words and making a pretence of equity with serious faces, as players might . . .
This was expressed best by an equity judge, Lord Eldon, who commenced a judgment in 1805 by saying ‘Having had doubts upon this will for twenty years there can be no use in taking more time to consider it’.11
The separation between law and equity is only one example of the diversity in eighteenth-century English law. The common law was only one of numerous competing systems, although the most prominent. Minor local courts were also scattered throughout the country, with varying origins and differing legal principles. Many of them decided cases by reference to general notions of equity and good conscience rather than the strict law. Further diversity came in the law governing marriages and succession, which were left to the canon law in ecclesiastical courts. Debt recovery was divided between the common law courts and the separate insolvency and bankruptcy commissioners. This pluralism even extended to the three equal superior common law courts. In the countryside, local law was administered by amateur justices of the peace, who decided criminal cases and issued licences.
There was no single, central source of legal power, whether in the courts, government administration or the police. The fee system and a fear of standing armies and centralised police meant that power in eighteenth-century law was as widely spread as it was in English society generally. It rested largely in one landed social class, but its members were scattered across the country.
The vast complexity of these decentralised and overlapping laws and courts was not diminished until the great law reforms of the mid-nineteenth century. By then Jeremy Bentham and others had invented a new language to analyse the law. Rational, utilitarian logic was applied to a system that had developed by the accretion of custom and precedent. The study of law began to be referred to as a ‘science’, under which ‘defects’ could be discovered and the law reformed. Others, such as the prison reformer John Howard, talked in terms of Christian compassion for the victims of the law.12 For more than 50 years there were heated debates between the old and the new as English law was adjusted to changed commercial and social conditions. These began before the First Fleet left England but had little effect for decades.
One apex of these debates, because of its comprehensiveness, was the [xix] great speech in parliament by Henry Brougham in 1828. It did not cover the criminal law, commercial law or land law, yet it takes up more than 60 pages of Hansard. The speech led to a Royal Commission on the Common Law, which issued six reports between 1829 and 1834. Eventually nearly all of his recommendations became law.
Brougham’s aim was to find defects in the law, not to celebrate its virtues. He ridiculed Blackstone’s view that English law embodied perfection and liberty. Brougham believed that the common law was riddled with unnecessary fictions and archaic forms, all of which increased the incomes of lawyers and impoverished their clients. He also argued that the law was frequently inconsistent, and claimed that differences based on custom and tradition, such as those between Welsh and English law, were unnecessary. On land law, for example, he stressed that the nature of legal title and the way it was conveyed varied even from manor to manor. There was not just one law of England but a series of legal systems with varying standards. Brougham wanted unity rather than pluralism, and simplicity rather than complexity in legal pleadings, conveyancing and wills. He attacked the rule of evidence, which prevented parties from being witnesses in their own cases, and criticised ‘that awful Privy Council’ for its amateurism, and amateur local magistrates for their bias: ‘There is not a worse constituted tribunal on the face of the earth, not before the Turkish cadi, than that at which summary convictions on the game-laws take place; I mean a brace of sporting justices’.13
Brougham’s criticisms were largely confined to the structures of the common law rather than its substance. He said nothing, for example, about the inequalities of master and servant law or the subordinate position of married women.
Many other laws were changed by other reformers, beginning with the gradual reduction in capital offences.14 The criminal law was slowly moved from a concentration on physical punishment to an attempt to reform the hearts of the criminals. Bureaucracy replaced the fee system, and public and private interests were gradually separated. This led to the loss of local autonomy, and a centralisation of power. Eventually even the transportation of convicts was abolished. The nineteenth century was a time of vast law reform, but the old customary values of the common law were never fully eradicated. The law exported to Australia was a store room of archaic Values, sometimes only thinly disguised by later rationalisations.
The common law, which became more dominant as a result of the consolidation of jurisdictions during the nineteenth-century reforms, reflected the society in which it had evolved, but not all values were represented equally. It was based on the values of the gentry, and only began to represent other views as social power shifted. Even then, the values of the poor were only faintly echoed in it. Popular ideas rarely [xx] reached the level of official law. England was far from a democracy even by the middle of the nineteenth century, so the voice of ordinary people was also unlikely to be heard in legislation.
The relationship between law and society in eighteenth- and nineteenth- century England was so close that the two cannot be separated. Each was part of a single whole, and causal influences from one to the other are often impossible to trace. Its contents were (and still are) closely connected to the needs and power relationships of earlier generations. The way in which basic common law was transmitted, through adherence to precedents, and the authority it carried, ensured that it was a powerfully conservative force in society. This was not always a negative force; some hard-fought liberties were enshrined in it and could be used to restrain the activities of later powerful figures. Nor was the content of the law a simple reflection of political or social power. It had its own values, some of which were deeply ingrained. There were elements of Christianity in it, particularly in equity, and basic rules of fairness, such as the right to be heard at a trial. These were passed from generation to generation.
What is the essential characteristic of late-eighteenth-century law? Was it a tool of the ruling class, used to justify its repression, or was it the repository of liberty, containing values that could be used by all? In fact it was both. Parliamentarians and judges frequently acted in their own class interests, but they had to do so within the limits of the law. ‘Law is not merely a bludgeon for beating people; it is a two-edged sword.’ Creditors were able to use its cruelty to coerce payment from charities and the friends of debtors, and land holders were able to use the terrors of the criminal law to obtain both the fear and gratitude of those beneath them. Each group was constrained, though, by centuries of legal tradition, and the contents of that tradition were subject to heated debates. The conflicts between groups were often conducted in the language of the law, which had an effect on their outcomes. For example, if those who were charged with criminal offences or sued for debt could establish a flaw in the procedures used against them, they were released. At a broader level, the law’s traditions could be used to press for more democratic forms of government and legal administration, and, through them, for changes to the substance of the law. This happened in both Britain and Australia. The law was written in universal language, and sometimes that could be used by the weak against the powerful.15
This was the ambiguous and shifting legacy inherited by the people who began the occupation of Australia in 1788. It was riddled with contradictions and compromises, between pluralism and its universalising tendencies, cruelty and liberty, justice and strict law.
The aim of this book is to study the effect of this inheritance in Australia. Colonial law offers an ideal site for us to examine the relative influences [xxi] of legal tradition and local social and economic conditions on the final shape of law. Like the nature/nurture debate in the sciences, this is a perennial debate that is the basis of much of our legal history. If the many other legal systems of England grew out of distinctively English social conditions, how did it operate in the necessarily different conditions in the Australian colonies? The colonial state was more centralised from the beginning; the aristocracy was represented in Australia only by some of the governors and a few insolvent ‘black sheep’ who ran disgrace at home; there was a constant presence of Aborigines; the law needed to be adapted to fit penal societies; and land ownership as much more widespread than in Britain. The judges and law makers who came here may have perceived themselves to be British, but was the legal tradition they brought with them sufficiently powerful to impose itself on these conditions? Were there sufficiently universal themes in the law for it to survive in an essentially unaltered form? Were people sufficiently nostalgic for England (or sufficiently unimaginative or weighed down by authority) to bring its law in all its complexity and idiosyncrasy, even if it was unsuitable? More broadly, if the law emerges organically from a society, how does it operate in a transplanted and derivative society?
These questions are all the more tantalising because English law in 1788 was on the verge of change. The inherited tradition was itself shifting during the process of its continuing acceptance and adaptation in the Australian colonies. The shift from a pluralist to a unitary view of law was particularly important. The other significant change was the gradual increase in colonial legal autonomy. The local legislatures and judges eventually reached independence from imperial control, but only gradually and at different times. Their first problem was to adapt English law to the presence of Aborigines and to the needs of penal colonies.

ENDNOTES
1 W. Blackstone, Commentaries on the Laws of England, vol. 1, 9th edn, 1783, reprint Garland Publishing, New York, 1978, pp 108-109
2 Blackstone, quoted by Henry Brougham, Hansard, House of Commons, 7 Feb 1828, col. 202
3 Black Act: Thompson, Whigs and Hunters. The other customary practices are examined in Albion’s Fatal Tree.
4 R v Rusby (1800) Peake Add Cas. 189, 170 ER 241; EP Thompson, ‘The Moral Economy of the English Crowd in the Eighteenth Century’ Past and Present, vol 50, 1971 p 76 On America, see Hartog.
5 P. Linebaugh, ‘The Tyburn Riot Against the Surgeons’ in Albion’s Fatal Tree, p 65
6 D. Hay, ‘Property, Authority and the Criminal Law’, in Albion’s Fatal Tree.
7 The best source on imprisonment for debt in the late eighteenth century is the Report of the House of Commons Select Committee on Imprisonment for Debt, House of Commons Journal, vol 47, 1792, p 640. also reported in Parliamentary Papers at 1791 (97) IX. See also (1729-30) First, Second and Third Reports of the Select Committee of the House of Commons into the State of the Gaols, published in Parliamentary History, 2 Geo. II, 1729-30, pp 706, 731, 803; Report from the House of Commons Select Committee on the State of Gaols og the City of London, Parliamentary Papers, 1813-14 (157) IV 249; Report from the House of Commons Select Committee on the King’s Bench, Fleet and Marshalea Prisons, 1814-15 (152) IV 531. Secondary sources include P Haagen, ‘Eighteenth Century English Society and the Debt Law’ in Social Control and the State: Historical and Comparative Essays, eds S Cohen and A Scull, Martin Robertson, Oxford, 1983; B Kercher, ‘The Transformation of Imprisonment for the Debt in England, 1828 to 1838’, AJLS vol 2, 1984, p 60; J Innes, ‘The King’s Bench Prison in the later Eighteenth Century: Law, Authority and Order in a London Debtor’s Prison’ in An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries, eds J Brewer and J Styles, Hutchinson, London, 1980.
8 Dive v Manningham (1551) 1 Plowden 60 p 68; 75 ER p 109. At page 68/108 in this case, an analogy was drawn between the imprisonment of a debtor and the distraint of cattle. In neither case was it necessary to feed the captured being. See similarly, Manby v Scott (1659) 1 Mod 124, p 132; 85 ER 781, p 786
9 C W Francis, ‘Practice, Strategy, and Institution: Debt Collection in the English Common-Law Courts, 1740-1840’, Northwestern Law Review vol 80, 1986, p 807
10 See First Report of the Common Law Commissioners, Parliamentary Papers, 1829 (46) IX; IUP Reprint: Legal Administration, General.
11 Michael Kirby, The Judges, Australian Broadcasting Commission, Sydney, 1983, p 50.
12 ‘Science’: First Report of the Common Law Commissioners, p 83 J Howard, The State of Prisons, abridged 3rd addition, 1784, Everyman’s Edition, London, 1929.
13 Hansard, House of Commons, 7 Feb 1828, col 166; ‘awful Privy Council’, col 158. The speech is reported at cols 127-258
14 On the fee system, imprisonment and changes to the English society in these years, see H Perkin, The Origins of Modern English Society 1780-1850, Macmillan, London, 1978; S McConville, A History of English Prison Administration. Vol I 1750-1877, Routledge & Kegan Paul, London, 1981; EP Thompson, ‘Eighteenth Century English Society; Class Struggle Without Class?’, Social History, vol 3, 1973, p 133
15 D Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, CUP, Cambridge, 1991; Whigs and Hunters, pp 258-269


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