The Justice of the Peace/County Court System Necessarily Expressed Class Bias
Compared to the upper and middle classes, the rule of law was often not much of a reality for the working class. Due to the system of justices of the peace, the local landholders, sometimes parsons, as magistrates could rule on cases that indirectly or even directly affected their personal self-interest as against any laborer brought before them. Considered in his role as a landholder alone, squire Smith could not do anything against farmworker Jones other than have him fired and blacklisted. But in his role as a judge he could sit on cases in the petty sessions (or even the quarter sessions, where the justices of the peace sat as a group to rule on more serious cases and administer many county level affairs) involving this same farmworker, and contrive to bend the law to convict him or have him sentenced to the maximum possible punishment. Even if the squire was not actually the judge, his social connections to the magistrates could serve to help ruin anyone of low social standing brought before the local petty sessions (where, depending on the gravity of the cases, a quorum of one or two justices had to be present to hear them). Arch described hypothetically how this worked using himself to illustrate a fairly common situation:
Suppose I am had up before the magistrates on some slight charge not in any way connected with game, and I see sitting on the bench in close proximity a certain squire, on whose property I had once happened to knock over a hare or a little rabbit. If that squire recognised me, as he would be sure to do, he would tell the magistrates, and they would be very likely to inflict on me the heaviest penalty in their power. The case taken on its own merits might have been trivial; but I should have to bear the whole rush of the law, because the magistrates were friends of this squire who had a bitter feeling against me.
When certain types of cases could be tried by single justices out of sessions, the abuses escalated since they were concealed from direct public scrutiny. For example, in 1822 the Duke of Buckingham once tried and convicted a farmer (not just a mere laborer) for coursing on his property, with the witnesses being his own gamekeepers. In one case held before a quarter session in which a laborer stole a ten-foot plank, the leading justice had the supreme satisfaction of pronouncing a sentence of transportation for fourteen years--because it was from him that the plank had been stolen! Jeffries once described Petty Sessions as "apart from the criminal business, . . . practically an informal weekly Parliament of local landowners."531 Actually it remained such a parliament when trying criminals, with elite prejudices manifesting themselves on poaching and other subjects. Additionally, the fear of the French Revolution spreading to England encouraged the use of the law by the upper class as a clear tool of reactionary repression for a period of roughly twenty-five or thirty years (c. 1793-1820), regardless of the merits of the law as written. William Pitt illustrated this when he whitewashed the conviction of the reformer Muir (sentenced to fourteen years transportation for sedition) by the notorious Braxfield, who had packed the jury to gain the desired result. He said that "the judges would have been highly culpable if, vested as they were with discretionary powers, they had not employed them for the present suppression of doctrines so dangerous to the country."532 So for a substantial part of the period this work deals with, the bias of the courts against the laborers (and other members of the working class) would have been worse than for times before and after.
The Biases of the Courts Against the Laborers Should Not Be Exaggerated
Despite the general situation described above, the bias of the county courts of England should not be oversold. The middle strata in England--the farmers, craftsmen, shopkeepers, etc.--staffed many of the local positions such as juryman and constable, pressed many of the charges that set the court system's machinery in motion, and could use the law for their own purposes (which, admittedly, were not necessarily favorable to the laborers!). As Styles noted: "Indeed even the labouring poor were able to engage, to a more limited extent, in some of these uses of the criminal law." Illustrating this general point, Jeffries described a case in which a shopkeeper sued a laborer for not paying eight shillings for goods bought on credit. With a number of more important cases waiting to be heard, the county court judge patiently went over two dirty, semi-legible, chaotically organized ledgers to finally determine that the laborer's wife was trying to cheat the shopkeeper's wife out of the eight shillings by showing the same receipt for two different debts. "The petty village shopkeeper and the humble cottager obtain as full or fuller attention than the well-to-do Plaintiffs and Defendants who can bring barristers from London." Relative to the legal system, many fundamental differences existed between the way Hodge was treated on the one hand, and Sambo on the other. Hodge, as lowly as he was, still was fully a person under the law, and could witness, sue, and bring criminal charges against his social superiors at least theoretically, while the black man's testimony was ruled automatically inadmissible against whites, whether rich or poor. But, although the farmworker could sue his superiors, his case could be dismissed due to class bias, such as the case mentioned above of the master who successfully sued a laborer who quit before his week's contract was up, but was unsuccessfully sued in turn by another laborer for his week's wages who was dismissed before his week was up--before the same judge! Another risk of taking legal actions against one's social superiors or their direct dependents was retaliation by social or economic means outside of the legal system, resulting in "a black mark against his [the laborer's] name for ever after."533
Ignorance of the Law as a Control Device
Ignorance of the law served as a control device against the laborers, just as it did in much else. Arch described one policeman's error when he told him that placing a snare for rabbits on his garden could make him criminally liable. When the Commission on Game denied this, he commented: "If the policeman was wrong, how were we to know? The labourer has mostly to learn his law by bitter experience." Instead, the distinct impression the laborer receives is that if he molests the game in any way, even to protect the crops on his allotment, "He feels as if 'Notice to quit' is being shaken like a rod over his back all the time, when it's a question of game."534 The local powers-that-be surely were not going out of their way to correct such misimpressions, since it was not in their self-interest to do so. Even if a laborer had been aggrieved by someone in authority, he might not know of any legal recourse. One night Arch's brother went to get the week's groceries. He was unjustifiably searched by a policeman who suspected him as a poacher. He did not know, nor did Arch he until testifying to Parliament on the game laws, that the constable could have been "county-courted" for undue search. But such a law does no good for those ignorant of its very existence: "How were we to know that we had a legal remedy for such treatment as this? We were ignorant of the law, we feared the law, and I think we had good reason to, considering the way it was often administered."535 But this bias in the application of justice due to ignorance of the law is not directly the fault of the system itself, but results from differential educational opportunities, access to paid legal advice, etc. Even though Arch felt generally too much partiality and class feeling existed among the magistrates, he still admitted some were not biased:
I believe Lord Leigh and some others that sat upon our bench always did justice; those we knew, we said among ourselves, "Oh, if I was to be brought before the bench I should prefer so-and-so, and so-and-so, to try us. Justice would be done; even if the day went against us, we should be sure it was the fault of the law and not of the way in which it was administered."
He mentioned how one policeman near Coventry would never bring poaching cases when one gentleman was acting judge unless he had very clear evidence. But when that man was absent, "he brought up several cases where there was only slight suspicion, he got convictions. 'We picked our customers in the magistrates,' he said."536 So while an undeniable amount of bias existed in how the law was administered in rural courts, this should not be exaggerated.
Examples of How the Contents of the Law Could Be Against the Laborers
A more important source of bias against the laborers concerned the actual contents of the law itself, not the ill results due to the prejudices of the judges applying it. As mentioned above (pp. 279-80), the customary rights of the poor to the village commons was usually ignored, while the formal title to land of the neighborhood's landholders was recognized. The commissioners involved in enclosure applied the law often fairly impartially among those who held legal title, but used it to often virtually assault the parish poor, whose customary rights were not recognized, or if they were, received allotments which the expenses of enclosure itself normally forced them to sell. The game laws displayed similar bias, which are covered below (pp. 367-70) with the laborers' resistance against the rural elite. Laws that at least theoretically inflicted draconian punishments for relatively minor crimes were similarly biased because their violators normally are members of the working class. Laws that potentially inflict capital punishment for sheep stealing, machine-breaking, rick-firing, or taking half a crown are not apt to affect many of the high and mighty. The same goes for those laws that made an entire crowd, judged to be a mob by possibly just one other person, liable to the death penalty if one or more among it robbed or wounded someone else.537 True, rather notoriously, the English law of the late eighteenth and early nineteenth centuries was festooned with death penalties that were normally not actually carried out even when handed down at sentencing, but were downgraded to transportation and imprisonment, or simply pardoned.538 Still, they contained a deterrent value from what potentially could happen to a laborer when suddenly hauled before the magistrates for some offense. As the Hammonds noted, because the laws were so broadly drawn and so many had violated them, during the special assizes held at Winchester after the Swing Riots: "Most of the agricultural population of Hampshire had made itself liable to the death penalty, if the authorities cared to draw the noose."539 The class bias in the laws themselves is shown by how the laborer's violation of a contract to work for a given period were subject to criminal penalties such as imprisonment, while the employer's breaches of a labor contract were subject to only civil penalties such as fines or the restitution for unpaid labor.540 Another problem for the laborers dragged into court was that certain legal procedures were heavily weighted against those of little or no education or training in public speaking and unused to dealing with the law or their social superiors in the fully intimidating formal atmosphere of a high court. Under the law extant when the Swing Riots occurred, a counsel for the defense of someone charged with a felony could not speak to the court for the accused. Instead, he had to present his defense himself, which was something rather frightening to do in the social setting he was suddenly thrust into after having sat in a dingy jail cell for so many weeks or months.541 Even such a protection as trial by jury was commonly inoperative for laborers, for the law often permitted one magistrate alone to send them to prison.542 Clearly, the actual contents of the law often posed a greater threat to the labourers than how and whether it was administered in a biased manner. Since the upper and middle classes were its main writers, the law naturally and automatically overlooked the interests of the laborers, such as in enclosure, or was intentionally written with the perspective to seeking to deter, control, or punish them, such as permitting death penalties for trivial offenses only the poor were apt to commit.
The Important Differences between Controlling the Laborers and Slaves at Work
Turning from the legal system's effects on the laborers to how they were controlled while on the job, major differences existed between between the treatment of the English farmworkers and American slaves, which had an important influence on their overall quality of life. Most significantly, the farmworkers did not suffer from corporal punishment (at least as adults) while on the job, and were able to change employers when their contract of service (if any) had ended, advantages the slaves totally lacked. Neither the large estate's steward nor the bailiff, to whom a gentleman farmer would delegate direct supervision, were exactly beloved figures among the laborers themselves, much like contemporary bosses. But they still lacked the terrible general reputation for brutality and violence that characterizes Southern overseers or drivers--even though Cobbett thought little of bailiffs, especially from Scotland. The laborers' general animosity focused on the farmers who employed them and did much of the supervision. The standard complaints of someone like Arch, the head of a union of farmworkers, the son of a laborer, who had necessarily an antagonistic relationship with farmers as a group (although he felt a ultimate unity of interests linked the laborers and farmers together) focused around low wages, not hiring enough (to prevent unemployment), and wanting to keep the laborers in the same place in society. But the leading grievance of slaves, besides the lack of freedom itself, concerned whippings and other acts of corporal punishment, followed by inadequate food rations, demonstrating the slaves inevitably suffered from far more personal humiliation while on the job than the farmworkers. Arch's union may have wanted to raise the respect given to workers in husbandry from society as a whole, but the level of personal disrespect shown to laborers by the farmers was no where near what the slaves suffered, especially since the factor of race was absent. Consider the scale of disproportion between the typical treatment meted out by someone like Southern planter Bennet Barrow, a disciplinarian but opposed to cruelty for its own sake, who nevertheless administered dozens of beatings and other acts of corporal punishment a year, and a particularly bad master described to Hudson by a very old and retired laborer named Joan. At the age of ten in 1830s Wiltshire, she and her younger brother, age seven, had to go to work because her father had broken his leg while plowing. She ended up working for a "very hard master and overseer" described thus by Hudson:
He was known in all the neighbourhood as "Devil Turner," and even at that time, when farmers had their men under their heel as it were, he was noted for his savage tyrannical disposition; also for a curious sardonic humour, which displayed itself in the forms of punishment he inflicted on the workmen who had the ill-luck to offend him. The man had to take with punishment, however painful or disgraceful, without a murmur, or go and starve.
Now after given a description like this, one wonders then what the specific punishments, etc. consisted of, and what these two mere children were in for. What was the single worst experience of Joan's brother at the hands of "Devil Turner"? He was punished by "standing motionless for longer hours at a time on a chair placed out in the yard, full in sight of the windows of the house, so that he could be seen by the inmates; the hardest, the cruellest task that could be imposed on him would comes as a relief after this."543 While this was hardly kind nor exactly contemporary enlightened labor management theory, such a tale pales sharply before the page after page of beatings and harsh masters described in (say) Drew's collection of slave narratives, The Refugee. Especially when considering that laboring children sometimes did suffer corporal punishment, this was hardly the worst imaginable case of abuse on the job. Likely, the humiliations inflicted by "Devil Turner" were congruent to, but probably surpassed, those inflicted on subordinates by particularly ill-humored managers in contemporary business and industry. These admittedly are emotionally painful and distressful to experience, but are small potatoes to what the social equals of Bennet Barrow regularly and banally perpetrated on their slaves, or through their overseers, as routine measures to enforce work discipline and general social control.
Ideological Hegemony, Paternalism, Class Consciousness, and Farmworkers
When examining the effectiveness of ideological control over the farmworkers by the English rural elites, a potential problem arises which is almost the opposite of that about paternalism and American slaveholders. In the case of slaveowners, they billed themselves--or allowed themselves to be billed in pro-slavery polemics--as laid-back gentlemen to whom questions of personal honor and looking out for the interests of their "black children" were higher priorities than profit-making. The question then becomes whether in fact they were in the main, as maintained above (pp. 247-52), outside of the hereditary planters of Tidewater Virginia and lowland Georgia and South Carolina, striving individualists out to raise their rank in society by making fast bucks by owning slaves in commercial agriculture. Concerning the English elite, a common viewpoint of the eighteenth century was that the aristocratic ethos had been overtaken by bourgeois individualism and a growing industrial capitalism. In the wake of J.C.D. Clark's self-proclaimed "revisionist tract," English Society 1688-1832, such views have become simply unsustainable, at least for the period prior to the French Revolution.544 The burden of Clark's work, in which the political ideals of paternalism (which he calls "patriarchalism"), is to demonstrate that English society was an ancien regime, fundamentally dominated by the ideals of gentlemen and the Christian doctrine of obedience to the powers-that-be of the aristocracy, gentry, and the clergy of the Anglican Church up until the transition period of 1828-32, when the Corporation and Test Acts were repealed and the Reform Bill was passed. Clark does successfully prove the elite's political ideology was not dominated by Lockiean contractarianism, but by patriarchal ideals of natural submission based on the model of the family, at least until c. 1795. But then the issue becomes how much of this sank down into the lower classes--
especially, for our purposes here, the farmworkers. Unlike the case for the American slaveholders, who likely, in the main, did not seriously believe in the paternalistic ideals of reciprocal duties between the enslavers and the enslaved and all its concomitant ideological baggage of being a gentleman; the typical squire, noble, clergyman, even large farmer, of England did most likely believe in paternalistic ideals, at least up until the time of the French Wars.
Did Some in the Elite Begin to Repudiate Paternalistic, Communal Values?
Did the English landed elite's ideology begin to change away from the patriarchal, gentlemanly ethos at the end of the eighteenth century? Clark would deny this, but its truth has serious implications for their success at hegemony. Early in the nineteenth century, Mandler maintains, a major section of the landed elite began to be heavily influenced by Malthusianism and Classical economics, which were cast in a Christian form by such men as J.B. Sumner, and propagated in a somewhat more intellectually sophisticated manner by Chalmers and Copleston. The best proof he cites for this was the general lack of resistance among the gentry and aristocracy against the New Poor Law, which had centralizing and rationalizing aspects that undermined their individual discretion in dealing with the poor. No longer could a single magistrate order relief to be given to a laborer's family. Now, it had to be approved by the union's board of guardians. The establishment of the Poor Law Commission in Somerset House to help administer the New Poor Law was another step towards the kind of centralism typical of France, but not England. Why was landed opposition generally so feeble against this weakening of their local powers of control? Part of this resulted from how the landed interests still could thoroughly control the local boards of guardians. The squires or their tenant farmers often served on them, and these boards had general practical autonomy from Somerset House.545 But additionally, as Mandler convincingly argues, due to the penetration of these ideas "turning the ground," cast often in a Christian individualistic form to make them more palatable, made it much easier for the landed elite to reconcile themselves to the New Poor Law, if they had not been thoroughly converted earlier. Most of the assistant commissioners who gathered the information for the 1834 Poor Law Report and helped to implement it were landed gentlemen. Such men as Thomas Frankland Lewis, the leading Commissioner after 1834 and the putative author of the 1817 report, and William Sturges Bourne, the chairman over the 1817 committee and a commissioner in 1832-34, were rural landowners. For these reasons, the imposition of the 1834 Poor Law Amendment Act cannot be seen as the alien imposition of bourgeois believers in individualistic laissez-faire capitalism, but was largely the direct creation of the rural elite itself.546
How the Rural Elite Tried to Have Paternalism and Capitalism Simultaneously
So then, what are the implications of a substantial number of the rural elite (though probably not a majority) beginning to accept bourgeois individualism as an ideology? Before the French Wars (1793-1815), seeing English society as composed of orders instead of classes makes sense since only the upper most stratum could be called "class conscious," i.e., as cognizant of its own interests and its differences as a group from the rest of society. But due to the strains in the rural social fabric caused by war, continued population growth, the decline of service, enclosure, the Speenhamland and roundsmen systems, and finally the New Poor Law of 1834, the laborers gradually developed a sense of grievance against their rulers, whether squire, parson, or farmer, out of which their sense of class consciousness developed. The Swing Riots by themselves, because of their spontaneous, rather spasmodic nature, and their rather minimal demands, cannot be seen as proof that the laborers collectively had rejected the traditional, paternalistic model of deference and reciprocal duties. Swing instead should be seen as a desperate protest by laborers demanding that the rural elite live up to its customary obligations to the poor. As Evans maintained: "The riots were in part a protest against the decline of paternalism." But they were a sign that "business as usual" could not continue, especially in the matters of parish relief, mass pauperization, and rising poor rates. The fear they induced among the rural elite directly lead to the passage of the New Poor Law with its ban on outdoor relief for the able-bodied and the workhouse test. This law's underlying values--individualistic, capitalistic ones--symbolized the practical repudiation of the rural elite's paternalism and its obligations to the poor. As Hobsbawm and Rude commented: "The New Poor Law of 1834 knocked the last nails into the coffin of their ancient belief that social inequality could be combined with the recognition of human rights." But, crucially, the landed elite still demanded the rituals and appearances of submission and deference from the laborers, yet by increasingly embracing the values implicit in commercial agriculture under capitalism, they increasingly also abandoned their duties to the poor. The laborers enormously resented this rent in the implicit social contract, virtually all of whom, especially if they lived long enough or lived in arable areas, would depend or had depended on parish relief. The first stormy meetings when the boards of guardians under the New Law went over the lists of those already taking relief, determining who should be stuck off, and the attacks on workhouses, averted and actual, are enough to illustrate how opposed the masses in many rural areas were to the new order. Hobsbawm and Rude summarize well the results of the English rural elite trying to square the circle of commercial capitalism and gentlemanly paternalism: