In recent years social historians of the law have largely debunked the notion that free labor developed alongside free markets in England and many of its colonies in the eighteenth and most of the nineteenth centuries.Footnote 1 These scholars have demonstrated that employers in a wide range of trades and jurisdictions relied heavily upon nonpecuniary forms of compulsion, especially in the form of the statute law, to address the problems of procuring, maintaining, and controlling an affordable workforce.Footnote 2 The corpus of statutes known as master and servant law has been a focal point of interest. Master and servant statutes trace a genealogy back to the late Middle Ages, but in the early industrial period they were by no means anachronistic holdovers from a bygone era. Throughout the eighteenth and nineteenth centuries, at the behest of employers, mine owners, and manufacturers, Parliament regularly supplemented and updated the provisions of these statutes with new legislation that contained increasingly harsh sanctions for workers who left work, performed it poorly, or committed acts of misbehavior.Footnote 3 These statutes gave magistrates the power to enforce with penal sanctions employment agreements in particular trades summarily in local Petty Sessions or in their own chambers. The acts were characterized by a double standard of sanctions, which treated the workers’ breach of contract as a criminal offense but offered only civil remedies for the broken promises of employers. For example, under the 1823 Master and Servant Act, any worker who quit work before his or her agreement had expired, refused to begin contracted work, left without permission, performed negligently, or committed some broadly defined form of misbehavior could be imprisoned for up to three months at hard labor or lose wages already earned. In cases where employers failed to live up to their contractual obligations by paying wages owed, magistrates were permitted only to award unpaid wages up to £10 or to release workers from their contracts.Footnote 4
Many historians have observed that by the second quarter of the nineteenth century, the administration of these laws in many regions grew more “employer oriented.” Employers took advantage of the cheap and easy process provided by these laws far more often than workers did. Furthermore, magistrates, who in industrial regions were increasingly likely to be significant employers of labor themselves (sometimes in the same trade as the plaintiffs), began handing down harsher sentences.Footnote 5 Paul Craven and Douglas Hay, who have examined the enactment, usage, adaptation, and proliferation of these laws in England and in nearly every jurisdiction of the former British Empire, have argued that the existence of such statutes was intended to create cheaper and more highly disciplined workers by limiting the boundaries within which bargaining could occur.Footnote 6 Though much less written about, the Combination Laws Repeal Amendment Act of 1825, which allowed magistrates to summarily apply penal sanctions to workers using vaguely defined “threats, intimidation, obstruction, and molestation” against employers or fellow workers, was also designed to limit the boundaries of bargaining in ways that were advantageous to employers.Footnote 7 In northeastern mines, the Black Country ironworks, the Hull fishing industry, the North Staffordshire Potteries, and many other places, the penal characteristics of nineteenth-century employment law, enforced locally by largely unsupervised magistrates, were essential to retaining and controlling workers at low costs.Footnote 8
In a recent article, Marc Steinberg has examined how pottery manufacturers in mid-Victorian Hanley, Staffordshire, relied upon master and servant statutes to construct and maintain a regime based upon unfree labor. From at least 1836, these manufacturers developed standardized printed annual contracts in the industry that bound workers exclusively to a single employer but allowed manufacturers to retain a wide freedom to control labor costs through payment by piece rates and the power to determine custom and judge the quality of ware. These contracts were enforced by local magistrates, who had strong political, social, and economic ties to the pottery manufacturers.Footnote 9 Master and servant law was also widely used against miners and workers in the metal trades in North Staffordshire.
Steinberg's account tells only one part of the story in Staffordshire. An important absence in much of the literature on master and servant law is an appreciation of early organized resistance on the part of workers to the penal sanctions of employment law. While there is widespread agreement that the end of imprisonment for breach of an employment contract came about because of the determined resistance of trade unions, that history is still incomplete. Daphne Simon's early work on master and servant law claimed that the struggle for reform began only in 1863 with the political lobbying of the Glasgow Trades Council, and few historians have looked further.Footnote 10 This article will present a different view of the criminal law, one that emphasizes that the English legal system was highly contested terrain during the mid-nineteenth century. During the 1840s and 1850s trade union representatives used every political and legal tool available to obstruct the application of the penal characteristics of employment law. Labor's attorneys and barristers showed great skill in using the legal system's formalism and technical emphasis upon procedure to their own advantage. By framing their issues to reflect wider concerns and ideologies held by some judges and members of Parliament, labor's legal representatives achieved a considerable degree of success in challenging magistrates’ rulings before the common law courts in Westminster.Footnote 11 The widespread publicity labor's legal victories received had a profound impact upon popular understandings of the law and its legitimacy.
This article will use the mid-nineteenth-century legal confrontations between Staffordshire trade unions and the first stipendiary magistrate appointed to the North Staffordshire Potteries district, Thomas Bailey Rose, to explore the range of strategies pursued by trade unions in resisting the enforcement of coercive labor laws. Rose displayed a deep and consistent malice toward Chartists and trade unionists during his long and active career as a magistrate. He often made statements from the bench that brought his impartiality into question and encouraged workers to believe that he was in collusion with local employers. Rose was the target of riots by colliers in 1842, as well as of public protest, petitions, and letters to Parliament by unionists in 1843, 1845, and 1851.Footnote 12 Trade union legal representatives frequently clashed with Rose and brought at least six of these confrontations before the Court of Queen's Bench, the highest criminal court in the land, three of them within a thirteen-month span in 1850–51.Footnote 13 These three cases demonstrate the considerable difficulties that workers faced with local employer-dominated legal institutions, as well as the legal and political strategies that unions could pursue to obtain redress.Footnote 14
TRADE UNION RESISTANCE TO THE PENAL SANCTIONS OF EMPLOYMENT LAW, 1842–48
The legal confrontations between Thomas Rose and Staffordshire trade unions took place within the context of wider legal resistance by trade unions to employers’ use of master and servant law during the 1840s and 1850s. The central figure in this resistance was Chartist solicitor W. P. Roberts. Initially hired by the miners of Northumberland and Durham to provide members with legal representation, by the end of 1844 Roberts had expanded his practice to include miners throughout England and unionized workers in a wide range of trades.Footnote 15 Between 1843 and 1848, Roberts represented scores of workers against master and servant prosecutions, using a wide range of legal strategies in hearings before magistrates.Footnote 16 Roberts's presence lengthened and complicated the proceedings, exposing employers and magistrates alike to considerable cost, inconvenience, and potential embarrassment in what had previously been rapid open-and-shut hearings. In fact, there were multiple occasions on which Roberts's mere arrival was enough to make employers drop the charges against their workers.Footnote 17 If Roberts's arguments failed to win an acquittal at Petty Sessions before the sitting magistrate, he would sometimes initiate writs of habeas corpus and certiorari to bring these cases before the Court of Queen's Bench, where the convictions were often overturned owing to legal errors or omissions on the face (in the text) of the warrants of commitment or conviction forms, which thus failed to fully establish the jurisdiction of the magistrate to hear the case.Footnote 18 Between December of 1843 and 1846 Roberts had the convictions of over thirty-seven miners overturned before Queen's Bench, to say nothing of his numerous clients in other trades.Footnote 19 Roberts sometimes followed these victories by suing the convicting magistrates for false imprisonment, winning impressive damages.Footnote 20
Many of Roberts's victories were publicized in newspapers such as the Northern Star, Miners’ Advocate, and in Staffordshire, the Potters’ Examiner.Footnote 21 Articles in these newspapers heaped praise on Roberts and the judges of the Court of Queen's Bench, the institutions of “real law” in England, while accusing magistrates of colluding with employers to deprive workers of their rights. Roberts's victories were announced with Northern Star headlines, such as “Constitutional Law versus Justices’ Justice” and “Steam Gaol Delivery: Another Glorious Triumph of Constitutional Law over Magisterial Ignorance,” which communicated to readers that only through the use of legal counsel could workers access “constitutional law” and defeat the corrupt collusion between magistrates and employers that was at the heart of master and servant law.Footnote 22 After Roberts won the release of a group of miners before the Court of Queen's Bench, the Northern Star reported that he had foiled a conspiracy of “injustice and illegality of the Coal Kings and those magistrates who have been found ready instruments in their hands.”Footnote 23 Later that year, Roberts promised a crowd of Wigan miners that he would drag local magistrates “to the rail of the Court of Queen's Bench, where justice, not magistrates’ law, could be readily obtained.” This rhetoric was often repeated.Footnote 24
The strategy of legally and rhetorically attacking magistrates for errors, ignorance, or corruption was especially effective for trade unions during the 1840s. The judges of the Court of Queen's Bench repeatedly demonstrated that they were prepared to overturn the magistrates’ rulings on the slightest technical omission or clerical error in the written conviction and commitment forms, not because they sympathized with the goals of trade unions and Chartist solicitors but because of hardening rules of precedent, traditions of strict legal formalism, and the fact that the extent of magistrates’ summary judicial powers was a source of regular controversy between 1790 and 1855. During those years there were frequent discussions in Parliament about extending the types of cases that magistrates could determine summarily. Until the end of the 1840s, strong resistance from segments of Parliament, the high courts, and the general public hindered attempts at legislating such an expansion. These opponents cited reverence for the jury system, Blackstone's “the Palladium of British Liberty,” as well as fears that magistrates without legal training lacked the knowledge or desire to administer the law in a manner that would preserve its legitimacy. The administration of such a significant portion of the law by unprofessional magistrates was increasingly at odds with the professionalization of the rest of the legal system.Footnote 25 Contributing to these doubts were the publicity given to Roberts's well-publicized legal victories and petitions to Parliament complaining about malicious or ignorant conduct on the part of magistrates.Footnote 26 Inspired by Roberts's high-court victories, trade unions held protests against the malicious or erroneous actions of specific magistrates when enforcing labor law.Footnote 27 Roberts's challenges to magistrates’ rulings gave the judges of the Court of Queen's Bench the opportunity to assert their authority and impose more stringent forms and procedures upon the local summary hearings of magistrates, which up to that point had been relatively unsupervised. The application of strict legal formalism by the judges of the Court of Queen's Bench to the conviction documents and warrants of commitment written by legally untrained magistrates was perceived as a safeguard to defendants in the absence of a jury.Footnote 28 Roberts could then use these victories as precedents in subsequent cases before the court.
In this way, union-funded litigation set precedents that defined and shaped the forms and procedures of summary hearings that magistrates were required to follow.Footnote 29 Roberts drew organized labor into ongoing debates about the English legal system. Trade unions added to the existing critique of magistrates by protesting against the conflicts of interest that were frequently apparent when industrial magistrates adjudicated master and servant cases. These protests, well-publicized high-court rebukes, and civil suits took their toll on the magistracy. Between 1842 and 1848, letters and editorials in the Justice of the Peace reflected magistrates’ growing frustration with the overturning of master and servant cases, arguing that the magistrates were the victims of crafty attorneys, opaque statutes, and hostile high-court judges.Footnote 30 By 1848 Parliament responded to growing pressure for wide-ranging reform of the magistracy, much of which had come from labor, with the passage of the Jervis Acts, which reformed and consolidated the forms and procedures magistrates were required to use in their various proceedings.Footnote 31
EARLY CONFRONTATIONS BETWEEN THOMAS ROSE AND LABOR, 1842–45
In 1839, Thomas Rose, an experienced barrister, began his career as a stipendiary magistrate during a period of considerable social unrest in the Potteries. In 1834 and 1836 strikes in the Potteries shut down over 75 percent of the trade, and the region suffered serious riots in 1837, 1841, and 1842.Footnote 32 In the summer of 1838, deputations from different districts of the Potteries met to petition Parliament for special legislation appointing a stipendiary magistrate and creating a police force for the borough of Stoke-upon-Trent. The nearly forty petitioners included some of the county's most important master potters, coal owners, and magistrates, highlighting the cohesion of the local elites and magistrates in the Potteries referred to by Steinberg.Footnote 33 The petitioners requested the appointment of Rose specifically to maintain order and protect property. Rose immediately became one of the region's busiest magistrates, hearing more than eight hundred cases per year between 1839 and 1850.Footnote 34 Because of his heavy caseload, Rose was a significant presence among local workers. In his memoirs, an old potter, Charles Shaw, remembered “the stipendiary magistrate, Bailie Rose, ruled as the Jove of the pottery district.”Footnote 35
Magistrates were highly visible symbols of authority and were often one of the first targets in periods of disorder, such as the depression in the summer of 1842. That summer over four thousand miners were on strike against wage cuts initiated by coal owners. Colliers forcibly shut down other mines and collieries, pulling plugs from boilers to stop work. The large Chartist presence in North Staffordshire, as well as disorder in other parts of the country, added to the concern of local authorities.Footnote 36 On 13 August, Rose asked the Home Office for more troops in the region to put down the growing number of seditious meetings where “the most dangerous doctrines are instilled into the minds of the lower orders and all their proceedings aim at the subversion of every kind of authority and order.”Footnote 37 On the fifteenth, a speech by Chartist Thomas Cooper, and word from Manchester of a resolution to strike for the Charter, led to two days of destructive rioting in the Potteries.Footnote 38
Local elites, including mine owners, pottery manufacturers, and magistrates, bore the brunt of the crowd's displeasure.Footnote 39 Like those of many other local elites, Rose's own home in Penkhill was burned down while he led troops attempting to quell the disorder. He told the home secretary that “we could not arrive in time to prevent them destroying everything I possess. My wife and children escaped with their lives, but that is all. They broke every window and destroyed everything.”Footnote 40 It appears that the crowd was selective in its targets of large employers, workhouses, police stations, and magistrates and that the destruction of Rose's home was deliberate and not a mere opportunist “whim” of the crowd.Footnote 41
The magistrates and troops withdrew and surrendered Hanley to the crowd during the evenings of the fifteenth and sixteenth, a decision for which the Home Office later severely criticized Rose.Footnote 42 Magistrate Captain Powys finally suppressed the disorder with considerable force, and mass arrests followed. Despite questions about the limits of Rose's territorial jurisdiction, he sat at Newcastle-under-Lyme with the magistrates who examined and committed prisoners, some of whom had participated in the sacking of his own house.Footnote 43 At one of these hearings, a lawyer named Allen representing some of the prisoners objected to Rose's presence. Rose asked the lawyer, “Do you know that I have been in the profession for twenty years?” Allen replied, “Yes, sir. I know you have; but what I complain of is that you have stood still in the profession, and not progressed with the march of mind.”Footnote 44
In 1842, Rose was the target of rioting colliers, and in 1843–45 he became the subject of propaganda by both the potters’ and miners’ unions. In December of 1843, potters employed at the firm of a man named Hackwood went on strike, questioning the legal validity of their contracts because these lacked reciprocity. The contracts gave the employers exclusive rights to their labor but obliged employers to provide work and wages for their employees only as they “conveniently” could.Footnote 45 Representatives of the potters argued that these contracts bound their employers to give virtually nothing in return for the employees’ promise to bind themselves exclusively to their masters. The contracts were, of course, enforced with the use of master and servant statutes. Potters complained that “if an operative potter be starving on two day's work per week, and a situation be offered him at which he might earn a comfortable living he dare not accept it in defiance of his employers.” This protest was often repeated.Footnote 46 By questioning the legality of these contracts, the potters were directly challenging a central pillar of pottery masters’ factory regime based upon legal coercion.
Labor and Chartist journals, particularly the Potters’ Examiner, continually criticized Rose for convicting potters who broke Hackwood's highly one-sided contracts. That journal claimed that Hackwood's contracts were an “unblushing mockery at anything like reciprocity of interest.” Two weeks later an editorial called this agreement “a vile African slave bond, without a shadow of reciprocal interest or legal validity, concocted by West Indian planters, for the especial use of North Staffordshire Pot masters.”Footnote 47
On 16 December, Hackwood prosecuted potter Edgar Steele before Rose, for contractual reasons under the 1823 Master and Servant Act. In his defense, Steele told Rose that he feared consequences from the union if he returned to work. Rose demanded the names of union members who had intimidated him. When Steele refused, Rose charged that the defendant “knew more than he chose to admit about the confederation of the turn-outs” and sentenced him to three months imprisonment at hard labor. Rose then issued a warning to union members in the court: “There is a set of idle vagabonds about, I know, trying to induce colliers and potters to absent themselves from work. … Let but one of them come before me, and I’ll commit him—I’ll send him to the House of Correction for three calendar months, to hard labour or commit him for trial at the assizes.”Footnote 48 The potters’ union interpreted Rose's remarks as a sign of his overwhelming bias in favor of employers, expressing doubt whether the magistrate would even bother requiring a charge or evidence to put his threat into execution. An editorial in the Potters’ Examiner argued, “We are afraid that Mr. Rose's mind would not be sufficiently calm to investigate the facts of the case; and consequently the ends of justice may be thwarted by this man.”Footnote 49
Between December 1843 and May 1844, the statement “Let but one of them come before me, and I’ll commit him” became a rallying cry for potters. In a five-month span, Rose's warning was quoted multiple times in nine separate articles in the Potters’ Examiner. The newspaper also published a number of articles discussing the importance of impartial administration of the law. Encouraged by Roberts's well-publicized victories before the Court of Queen's Bench, the newspaper soon adopted the same argument that had been promoted by the miners’ union and the Northern Star. The Potter's Examiner and the Northern Star both argued that one-sided and illegal employment contracts were enforced with the threat of imprisonment by magistrates who were either employers themselves or in confederation with employers. An editorial describing the potters’ annual contract quoted Rose's warning and then boldly asserted that “the hiring system of the Potteries owes its existence … to the connivance of unprincipled magistrates,” who colluded with local employers to enforce nonreciprocal contracts.Footnote 50
In March 1844, Rose released two colliers whom he had imprisoned under 4 George IV, c. 34, for breaking their contracts, preempting union-funded writs of certiorari and habeas corpus that would have brought his ruling to the Court of Queen's Bench. The Potters’ Examiner wrote an open letter to Rose stating that if he had acted in a more dispassionate manner in the case he might have “avoided the disgrace which must inevitably stain your professional character from the circumstance of your being compelled, for fear of a higher tribunal, to release two poor colliers lately imprisoned by you. The circumstance proves clearly that the two colliers, in question, were unjustly punished by you. Either you were ignorant of the law, or were actuated by vindictive or malevolent feeling; in either of which case you proved yourself unfit to fill the high judicial station you at present occupy.” The article also claimed that in several of his master and servant convictions based upon the pottery contract “there has been a frightful perversion of law.” The article once again quoted Rose's earlier warning to potters, which by this point must have been very familiar to readers of the Potters’ Examiner. It called his statement a “display of vindictive recklessness … that borders on a total disregard for all law.” It further observed that his career as a magistrate had been characterized by “foolish and cruel displays of passion.”Footnote 51
In early 1845, Rose once again found himself the subject of labor propaganda. Early in the morning of 8 January, four miners were arrested and brought before Rose and magistrate Charles Harvey for breaking their contracts without giving fourteen days notice. The pitmen requested an adjournment of the hearing in order to procure an attorney, a request that was denied by the magistrates. Over the miners’ objections, their cases were lumped together in a single hearing rather than determined individually. The miners did not cross-examine any of the witnesses against them, nor did they present much of a defense. Within moments, the four were each convicted and sentenced to two months imprisonment with hard labor. The miners engaged W. P. Roberts to bring these cases before the Court of Queen's Bench. Upon examining the written convictions and warrants of commitment, Roberts quickly found sufficient legal omissions to initiate writs of habeas corpus and a certiorari. On 25 January 1845, barristers W. H. Bodkin and J. W. Huddleston argued Roberts's brief before the Court of Queen's Bench. They argued that because the warrant of commitments did not specifically state that the prisoners were present when the evidence against them was heard, it did not demonstrate that the adjudication of the magistrates was sufficient to justify a conviction. Justice Wightman, applying the strict legal formalism that judges often adhered to when reviewing cases of summary conviction, agreed that the error was fatal and discharged the prisoners. The newspaper reports clearly show that the prisoners were present when the evidence was heard, but because it was not stated on the warrant of commitment, the miners had to be released.Footnote 52 While on the surface it appears that the case was won on a technicality, it is important to remember that law and legal process shaped the type of objections that labor's legal representatives could present. There was no shortage of injustices at the original hearing to compensate for the miners' being released on a technical flaw.
The Northern Star reported the case in an article titled “Constitutional Law versus Justices’ Justice,” which condemned the corrupt partnership between magistrates and employers while praising Justice Wightman for his knowledge and integrity. The paper offered Roberts “congratulations for the additional victory, rendered doubly important by the fact of Mr. Bailey Rose belonging to the legal profession, and his services being called in to insure such a triumph for the masters as would defy the scrutiny of Mr. Roberts.” The linkage between the interests of employers and the magistracy is once again striking. The miners greeted their four comrades with a large public celebration marked by bands, processions, and speeches. They also held a demonstration outside the bank owned by one of the convicting magistrates, Charles Harvey, where the band played “See the Conquering Hero Comes.”Footnote 53
The Potters’ Examiner appropriated Rose's words to attack the fairness and legality of the potters’ contract and its enforcement. This campaign occurred during the same period that the Northern Star was using Roberts's victories before Queen's Bench to undermine the legitimacy of the magistracy, and workers around the country were protesting against the 1844 Master and Servant Bill.Footnote 54 These events undermined Rose's already low credibility with workmen and women in the Potteries.
R. v. William Austin (1850)
Over thirteen months in 1850–51, W. P. Roberts brought three actions before the Court of Queen's Bench based upon rulings made by Thomas Rose. Rose was saddled with the costs of a criminal information and had two of his rulings quashed by that court. By 1851, these cases had once again made Rose the subject of protest by local working people and had severely undermined his legitimacy. These three cases together demonstrate the challenges that class barriers created for workers when they were faced with legal coercion, as well as the strategies of resistance unions used to overcome those challenges.
The first of these three cases, R. v. William Austin, was heard by Rose and Edward Wood on 2 May 1850. A replacement worker named William Weston charged iron-hoop-maker William Austin with having used threats and intimidation to prevent him from entering his agreement at the Roondale Ironworks, owned by men named Heath, Welsh, and Higgins. The 1825 Combination Act, 6 George IV, c. 129 (1825), allowed workers to combine to raise wages or reduce hours of labor. It also gave two magistrates the power to imprison for three months with hard labor any persons who threatened, intimidated, obstructed or molested their employers, fellow workmen, or replacement workers in order to achieve these ends.Footnote 55
The prosecution brought three witnesses against Austin. Weston testified that upon arriving at the railway station in Longport, the replacement workers were greeted by a crowd of between thirty and forty jeering men and women. Weston claimed that the defendant yelled, “You’re a pretty bugger to come into a county and take men's jobs of them under price” and “You shall have your buggering skull scraped for you.” James Ward and Daniel Parkes, two other replacement workers, confirmed Weston's testimony, adding that Austin offered them each a sovereign to return home. The workers were either so frightened by the crowd, or so enticed by the sovereign, that they refused to enter the service of Heath, Welsh, and Higgins. Austin's attorney, Richard Heaton, called two witnesses. The first was John Nack, who swore that he was next to Austin during the confrontation and that the defendant did nothing worse than calling the workers “shabby hands” who would do themselves no good working under price. Police officer John Ross testified that he knew Austin and felt “his character is good.”
After the testimony of Ross, and before the trial was completed, Heaton hastily left the court “in consequence of pressing business.”Footnote 56 This departure had important consequences for Austin. Rose and Wood convicted Austin to three months imprisonment with hard labor. The twelfth section of the 1825 Combination Act gave any prisoner who “felt aggrieved” by the ruling of the magistrates the right to be released on bail and appeal the conviction to the next Quarter Sessions of the Peace by “immediately” entering into a £10 recognizance and two £10 sureties. Of course, not many labourers had £10 savings, or two friends who also had this sum.Footnote 57 Heaton was not present to initiate an appeal, and he failed to instruct his client that he had this right. The magistrates were under no obligation to inform Austin of his right to appeal. Heaton later justified his omission by stating that he saw no possible grounds for an appeal and that if Austin had not been guided by “outside forces,” meaning Roberts and the union, the prisoner would not have desired one.Footnote 58
It is important to note the difference in political commitment of Roberts and Heaton. Heaton was an active solicitor in Staffordshire who often handled labor cases, representing both employers and workers. Heaton's later statements imply that he believed that Austin was guilty.Footnote 59 Roberts's professional investment in the cause of organized labor was unique for solicitors in this time period. Roberts's strong belief that labor law was unfairly biased toward capital meant that he was prepared to exhaust all legal options when defending workers, especially when the issues at stake might have wider relevance for organized labor.Footnote 60 Perhaps for this reason, Roberts saw grounds for an appeal that were not apparent to Heaton.
On 6 May, Roberts appeared before Rose in Hanley to inform him that he was Austin's solicitor and gave notice of his client's intention to appeal his conviction to the next Quarter Sessions. Rose refused to accept the recognizance and sureties because they had not been made “immediately.” Roberts reminded Rose that Austin's attorney had not been present at the conviction and that this was the first time Rose had been available in the four days since the conviction. He also stated that he knew of a similar appeal in which Baron Alderson had ruled “that magistrates had the power to admit bail after a ‘reasonable period.’”Footnote 61 Roberts claimed that this ruling meant that magistrates had to look at the circumstances of the case and consider the difficulties “people in some conditions of life” had in finding sureties. Rose said he would give his ruling the next day. On 7 May, Rose stated that although “he would naturally favor an appeal to a superior tribunal,” he had no power to accept the recognizance of Austin because the punishment had commenced. Rose also insisted that if Austin truly felt aggrieved “under the Jervis Acts the prisoner could still appeal to the highest tribunal.”Footnote 62
Rose was referring to section five of “An Act to Protect Justices of the Peace from Vexatious Actions for Acts Done by Them in Execution of Their Office,” 11 & 12 Victoria, c. 44. That section of the act allowed individuals to apply to the Court of Queen's Bench to compel magistrates who “shall refuse to do any Act relating to the duties of his or their office” to act. This was attractive to Rose because it also stated that if the application was successful “no action or proceeding whatsoever shall be commenced or prosecuted against such justice.”Footnote 63 If Austin appealed under this act, Rose would be protected from any future civil action for false imprisonment.Footnote 64
On 23 May Roberts submitted the warrant of commitment and an affidavit describing the facts of the case to the Court of Queen's Bench, requesting that it force the magistrates to accept Austin's recognizance. In his affidavit, Roberts described Heaton's absence at the time of Austin's conviction, his own encounter with Rose on 6 May, and related the fact that Austin was illiterate and “in very poor circumstances.” On 5 June, Rose replied by sending a copy of the minutes of the case and affidavits defending his position on the question. They emphasized that Austin had enjoyed “able legal counsel,” who believed that had the defendant been “left to his own discretion the matter would not have been heard of.”Footnote 65
Before Judge Wightman in Bail Court on 8 June, Rose's barrister showed cause why the magistrate should not allow Austin to appeal to Quarter Sessions. He argued that “immediately” meant as soon as the judgment was pronounced or at least before the commencement of the sentence. J. W. Huddleston, who often took briefs from Roberts, argued Austin's case. He suggested that if the court accepted Rose's interpretation of section twelve of the act, it would “for all practical purposes” deprive workers of its intended benefit. Workers usually did not have the £10 handy in their pocket and needed time to secure two £10 sureties. Huddleston suggested that “it would be to hold (in effect) that the defendant is to go to the hearing provided with sureties, as if he anticipated a conviction against him.” He then cited seven cases in which the common law courts had construed the word “immediately” in other statutes as to mean “without such delay as cannot be satisfactorily accounted for.” Wightman agreed with Huddleston's argument that if “a strict literal construction of the words be adopted, in the majority of cases, the benefit intended by the statute would be perfectly illusory,” and he ordered Rose and Wood to release Austin and accept his recognizance and sureties.Footnote 66 On 1 July 1850, Huddleston argued Austin's appeal at Staffordshire Quarter Sessions, where the conviction was overturned.Footnote 67
There were no allegations of poor conduct in this case against Rose, as his interpretation of the act was a perfectly plausible one. The case does, however, demonstrate the difficulty that class barriers created for workers when they confronted the legal system. Rose could not appreciate the difficulties workers faced in obtaining sureties and chose to interpret that section of the statute in the way least favorable toward labor. Class differences clearly created problems between the prisoner and his own attorney, who saw no grounds for pursuing an appeal and, in fact, actively discouraged efforts toward that end. This case was legally important as well. Workers often appealed magistrates’ rulings under 6 George IV, c. 129, to Quarter Sessions and frequently got them quashed.Footnote 68 Had Rose's interpretation of the act held, it would have made such efforts much more difficult, making the act much more useful to employers. The relevance of the Jervis Acts to this case is also worth stressing, as these acts made it more difficult to punish magistrates for errors in judgment. Had Rose not been protected from civil suit by the Vexatious Actions Act, he might have chosen to err on the side of caution and release Austin on bail. Instead, Austin spent three weeks in prison.
R v. T. B. Rose Esq. (1851)
If it is possible to defend the behavior of Thomas Rose in the case of William Austin, in the case of Robert Greaves it most certainly is not. Rose's conduct in this case was so bad that the miners’ union took the unusual step of attempting to prosecute Rose with a criminal information. In February 1850, butty collier and provisions dealer John Caton hired Robert Greaves to work as a miner at Golden Hill Colliery in Wolstanton, which was owned by a man named Williamson. Greaves was to be paid 3s. per day for getting coal, and he claimed that he was not required to give notice to terminate the contract. After a month, this relationship deteriorated because Caton paid most of Greaves's wages in truck redeemable only at a shop run by Caton's wife. Greaves claimed that Caton deducted 6d. at every reckoning for drink, even when Greaves refused to accept any. According to Greaves, he complained repeatedly about this illegal practice, to no avail.Footnote 69
Paying workers in kind was widespread in the iron, coal, cutlery, pottery, and nail-making trades in Staffordshire.Footnote 70 Truck often took the form of the payment of wages in tickets redeemable at what was known as a “tommy shop.” These shops were owned by employers, butty colliers, or shopkeepers who had a financial agreement to pay the employer for the business he provided. In the 1830s truck was so common in the region that landlords complained that they sometimes had to accept “tommy tickets” for rent because their tenants had no currency. Goods at a tommy shop were sometimes 25 percent to 150 percent more expensive than similar products that could be purchased elsewhere.Footnote 71
In 1831 Parliament passed a law forbidding the payment of wages in kind in particular trades. It allowed workers who were paid in truck to bring an action against their employer before two magistrates, neither of whom could be engaged in the same trade as the parties. The magistrates could award the worker the full monetary value of all wages paid in truck and fine the offender £5 to £10 for the first offense, £10 to £20 for the second offense, and up to £100 for a third. The magistrates could award half of the fine, up to £20, to the informer.
Despite the efforts of anti-truck prosecution societies in Staffordshire, the Truck Act was widely considered a failure. Because of the large presence of mine-owner magistrates in Staffordshire, it was not always easy for a miner to find two magistrates who could hear a case. Workers who were able to successfully bring suit sometimes found themselves blacklisted in the region. Magistrates’ attitudes toward truck wages were highly variable, some being greatly offended by the practice and others showing great reluctance to convict or punish offenders with substantial fines.Footnote 72
The conflict between Greaves and Caton reached its breaking point on 2 March, when 6s. 6d. of Greaves's wages were paid to him in truck. Greaves demanded his wages in cash. Caton, perhaps aware of the activity of anti-truck societies in the region, agreed to pay Greaves in currency in return for Greaves's signing a document stating that he had never been paid in provisions. Greaves refused, and two days later he insisted that unless he was paid in currency, he would not continue to work for Caton.
On 5 March, Greaves sought the advice of William Daniels, an organizer for the miners’ union, on how he could collect his full wages in currency. Daniels and Greaves went to the provision shop and confronted Caton's wife. Like her husband, she offered to pay Greaves cash if he signed a document denying that he had received truck in lieu of wages. Greaves once again refused. On the next day, Daniels took Greaves to the Hanley County Court Office and took out a summons against Caton for £1.18s., the total of the truck wages he had received.
Late in the evening of 11 March, Greaves was arrested and taken to the town of Burslem under a warrant signed by Thomas Bailey Rose for unlawful absence under 4 George IV, c. 34. When this news reached Daniels, he immediately collected three witnesses to testify to the terms of the contracts at Golden Hill Colliery, as well as to the practice of paying men's wages in truck. Daniels then engaged solicitor John Turton to defend Greaves.Footnote 73
Richard Heaton, who had defended William Austin, conducted Caton's prosecution of Greaves. Caton testified that his contract with Greaves could be terminated only with a fortnight's notice. He claimed to have posted a copy of the contract in his office and distributed fifty copies to the colliers. On cross-examination, however, Caton was unable to produce a single copy of this agreement. Greaves denied Caton's interpretation of this unseen contract, and he and Daniels later both swore in affidavits that they had three witnesses present at the hearing prepared to contradict Caton's testimony. Rose, Heaton, and Rose's clerk each swore that Caton “clearly proved” the contract and its requirement of notice, as well as the fact that Greaves left without notice.Footnote 74
Subsequent sworn accounts of what happened when Turton began to cross-examine Caton also conflict with one another. According to Daniels and Greaves, Turton asked Caton if he had been summoned to County Court by Greaves to recover wages paid in truck. They claimed that Rose intervened, declaring the question “wholly irrelevant.” They swore that Heaton, Caton's attorney, told Rose “this Sir is a union case,” to which the magistrate replied, “Oh, I see.” Rose then turned to Greaves and said, “You stand committed to the House of Correction for a month.” When Turton stated that he still had witnesses to call, Rose replied that “he did not believe anything of the defense set up and that it was all pretense.” As Turton attempted to argue, Rose shouted him down, saying “Call the next case!”Footnote 75
Thomas Rose, his clerk, a police superintendent, and Heaton each swore affidavits that explicitly denied that the magistrate had made those statements. Yet their accounts conflict with one another. Rose and Heaton each claimed that Turton did not ask Caton about truck under cross-examination. Rose's clerk, John Rose, however, swore that Turton asked Caton about the payment of wages in truck, and Caton testified that Greaves had never refused to accept payment in truck. John Rose's affidavit states that the magistrate then dismissed this defense, stating that Greaves should have entered into proceedings to receive his wages in currency (which, in fact, Greaves had done) and not left work without notice.Footnote 76
If John Rose's testimony is truthful, then Greaves was wrongfully sent to prison. According to section one of the 1831 Truck Act, “If any such contract whole or any part of such wages shall be made payable in any other manner than in the current coin aforesaid, such contract shall be and is hereby declared illegal, null, and void.” Section 6 of the same act states that no employer shall have any action against an employee for goods supplied to him on account of wages. Had Turton proved that Caton paid Greaves any portion of his wages in truck, it would have made the contract void and thus freed Greaves from its terms.Footnote 77 Whether Greaves had agreed to accept truck was completely irrelevant, because it was not an arrangement to which he could legally consent.Footnote 78
Willibald Steinmetz has argued that during the 1850s magistrates would not accept an employer's violation of the Truck Act as a defense in a master and servant case. The rulings of these magistrates were not consistent, however, with the wording of the statute or the determinations of the law officers of the crown. Five years earlier, in Glamorgan, a group of miners left their jobs to protest the twin evils of truck and compelling workers to buy goods on credit at a tommy shop by “holding wages in hand” (for example, paying four weeks wages when eight were due). Their employers brought them before magistrates and convicted them under 4 George IV, c. 34. One of the miners wrote a letter to Home Secretary James Graham complaining of the case. Graham was bothered by the conviction and dispatched Mines Inspector Seymour Tremenheere to the district to investigate the allegations of truck. He also asked legal writer and civil servant Samuel Phillipps to give his opinion on the above point of law. Phillipps's reply was unequivocal: if the employer broke the contract by not paying wages at the stipulated periods, the workers were entitled to quit because “the non-payment of wages is a violation of the contract and may be treated as a determination of the contract.” The Home Office pardoned the convicted miners.Footnote 79 The Truck Act suggests that Caton's behavior had voided his contract with Greaves. According to the law officers of the crown, Greaves was not obliged to continue his employment if his employer refused to pay him his full wages in currency (in the eyes of the statute paying him in truck was the same as not paying him at all) at the precise periods stipulated by the contract.
The report of this case in the Staffordshire Advertiser confirms the clerk's affidavit, stating that Turton introduced into evidence that “an information was laid against the employer under the Truck Act.” Thomas Rose and Heaton claimed that Turton mentioned truck only in his closing and had not introduced any evidence of it during the hearing.Footnote 80 It is unlikely that Turton would fail to ask Caton about such a relevant point on cross-examination, especially if he planned to use it as his client's defense.
The final point of dispute in the affidavits was the one that was the most important for the subsequent action taken against Rose by the union. Did Thomas Rose, after making the malicious statements Daniels and Greaves attributed to him, refuse to permit the defense to call witnesses? Rose, his clerk, Heaton, and police superintendent Povey all swore that Turton simply chose, without obstruction or coercion, not to call any witnesses. Richard Heaton emphasized that Turton had the “full opportunity” to present a defense.Footnote 81 This seems unlikely. Turton was paid to present a defense for Greaves and had a good one available to him. Daniels was present at the hearing and could have testified to the existence of the tommy shop, as could three other witnesses who were present. There are some reasons to believe the affidavits of Greaves and Daniels. Rose had a history of indiscreet statements and an adversarial relationship with trade unions. Rose's home had been destroyed and his family endangered by unionized miners eight years previously. Not in dispute, however, was the fact that Greaves went to prison. While Greaves was serving time at hard labor, John Caton paid £1.18s. and costs into County Court to avoid a hearing.
After his release, Greaves and the miners’ union decided to criminally prosecute Caton under the Truck Act. On 25 April Daniels attended Tunstall Petty Sessions to swear out the necessary information against Caton. Daniels claimed that when delivering the information to Rose, police superintendent Povey informed the magistrate that Daniels was a “Chartist lecturer.” Daniels swore that Rose then turned to him and said, “You are a destructive, a firebrand, you go about to make disturbances to set the miners against their masters—what you are—who you are—you’re a seditious fellow,” adding that he thought such radicals should be exiled. Daniels replied that “this anger and abuse is quite uncalled for,” as all he wanted to do was file an information. He reminded Rose that “you are an administrator of the law; you ought not to abuse those who wish to see the law carried out.” Daniels's affidavit states that Rose replied “Very well—what magistrates is it to be tried by? I’ll let them know—I shall give you no support or countenance—I would send all of you out of the country if I could.”Footnote 82
Rose later conceded that he “rebuked … William Daniels for meddling with the affairs of others and causing much mischief in the neighbourhood” and “creat[ing] much discontent among the miners of this district by his uncalled for interference.” John Rose confirmed that the magistrate called Daniels “a mischievous fellow” who “stirred up the people to revolt and interfered with other working men who were satisfied with their wages,” adding that if “he had the power to do so he would cause all such mischievous persons to be driven out of the country.” Thomas Rose defended his remarks by emphasizing that he had stepped down from the magisterial bench when making them.Footnote 83
On 15 May 1850, Roberts appeared before Rose and two other magistrates at Longton Petty Sessions to prosecute Caton for paying Greaves in truck. Heaton appeared to defend Caton. Roberts introduced his case by stating that Greaves had been imprisoned under 4 George IV, c. 34 (1823), before he could prosecute Caton under the Truck Act. The response of those present was very peculiar when one considers that Roberts was the only person involved in this hearing who had not been present when Caton prosecuted Greaves. Heaton, who represented Caton in the earlier hearing, objected and asked if Roberts was prepared to prove that this had actually happened. An incredulous Rose asked Roberts if such a thing could possibly be true and demanded to know the name of the magistrate who had committed Greaves. Roberts replied, “Yourself, Sir.” Rose expressed disbelief and emphasized his strong disapproval of truck. He said if he had known, “the man most certainly would not have been committed.”Footnote 84 Rose's surprise does not appear to be consistent with either the affidavits of the participants or the earlier newspaper report of Greaves's prosecution. Rose had heard that case only two months earlier. That he would have completely forgotten this case is astonishing. It is possible that with the arrival of the well-known Roberts, Rose became aware of the possible consequences of his actions and chose to act carefully in this hearing.
Roberts called Greaves to testify to the existence of the tommy shop, the payment of wages in truck, and his persistent complaints and meetings with the Catons. Heaton asked Greaves if anyone had heard him complain of the payment in truck wages, and Greaves gave the names of miners who had. Heaton then asked him if he belonged to the miners’ union, which drew an objection from Roberts. Heaton's closing argument emphasized that “the information had been laid by a Chartist delegate and the matter had been further encouraged by the delivery of some inflammatory harangues.” Heaton's choice to raise this issue is interesting, because it appears consistent with the allegation by Daniels and Greaves that in the March hearing he told Rose “this Sir is a union case.” Roberts rose to reply but was stopped by the bench, who informed Heaton that his observations were not relevant to the case. The court fined Caton £5 and costs. When Roberts applied to have half the fine given to the informer, as was customary in Staffordshire, the bench refused.Footnote 85
Greaves, Roberts, and the union were by no means finished with this case. The next day Rose was presented with notice of Greaves's intent to apply to the Court of Queen's Bench for a rule to show cause why a criminal information should not be exhibited against him. The notice accused Rose of committing “certain misdemeanors in unlawfully and maliciously and corruptly and contrary to your duty … refusing to hear witnesses on the part of the said Robert Greaves.”Footnote 86 A criminal information was an expensive and risky method of pursuing justice, perhaps testimony to the miners’ mounting frustration with Rose. The costs of this action were considerable owing to its multiple stages, requiring the coordination of local attorneys and a barrister at Westminster. To initiate a criminal information, the prosecutor had to give the magistrate advance notice of the grounds for the charge. A local attorney then prepared all affidavits for the plaintiff's case and sent them to Westminster, where a barrister used them to obtain a rule nisi from the court. A rule nisi meant that the court found sufficient grounds of complaint to require the defendant to answer the charge. Barristers for both sides then argued the case before Queen's Bench. If the prosecutor was successful, the court granted a rule absolute. This, however, meant only that there were grounds for holding an actual trial before a special jury at the next local assizes. If a prosecutor lost, at any stage, he or she could be saddled with paying the costs of both parties. Douglas Hay argues that these cases rarely advanced far because prosecutors were required to prove a high level of malicious misconduct on the part of magistrates.Footnote 87
Yet there were reasons for Rose to be afraid.Footnote 88 Though the judges of the Court of Queen's Bench had demonstrated a reluctance to send criminal informations against justices of the peace to special juries at the assizes, they had shown willingness to use the sanction of costs to rebuke magistrates for misconduct in these cases. Between 1820 and 1838, returns to Parliament list thirty-six criminal informations against magistrates in which the court issued a rule nisi. In only two of these cases was a rule absolute granted, sending the case before a special jury at the assizes. Four others were withdrawn, privately settled, or referred to arbitration. In ten cases, the rule was discharged with costs, meaning that the unsuccessful prosecutor was required to pay the costs of the magistrate. Twelve cases were discharged without costs, meaning that the magistrate was left out-of-pocket for the expense of his own defense. In eight cases, the court discharged the rule but found the case serious enough that it made the magistrate pay the costs of both parties.Footnote 89 Although there were not a large number of criminal informations against magistrates, their outcome is suggestive of how the court occasionally used costs as a means of sanction when it found the conduct of magistrates worthy of rebuke.
This was still a risky proceeding for Greaves and the union. In addition to the expenses and fees, choosing to pursue Rose by criminal information meant that Greaves sacrificed his right to proceed civilly against Rose.Footnote 90 It was not enough (or even necessary) to prove that Rose decided the case incorrectly. Roberts had to demonstrate that from excess passion, or ill-will, Rose's personal feelings had impeded the due administration of his duties.
On 30 May the affidavits of Roberts, Greaves, and Daniels were filed with the Master of the Crown Office, and the next day Huddleston obtained a rule nisi from the court. This meant that Rose had to answer the charge and would begin to build up legal expenses and fees as well. On 12 June, Huddleston and a barrister named Whitmore appeared before Judge Wightman to argue whether he should grant a rule absolute. The Staffordshire Advertiser reported that “the affidavits were of a contradictory character.” Because of this Wightman felt he had little choice but to rule for Rose. In his ruling, however, he expressed dissatisfaction with Rose's behavior, noting that “certain expressions used by Mr. Rose … to say the least of them, were indiscreet.” He discharged the rule but did not grant Rose legal costs.Footnote 91 Rose could take little satisfaction from this victory, as he was left to pay his own considerable legal costs. Roberts and Huddleston were unable to penalize Rose with the full rebuke of a criminal information, but they did succeed in obtaining the indirect sanctions of legal costs, and perhaps more importantly, Wightman's public questioning of his conduct, which was reported in the most widely read county newspaper in Staffordshire.
R. v. Joseph Askew (1851)
A year after Rose suffered the indignity of a criminal information, Roberts challenged another of his rulings under 4 George IV, c. 34 (1823). The participants in this case were the familiar actors of Rose, Heaton, Turton, Roberts, and Judge Wightman.Footnote 92 On 7 June 1851, the Mayer brothers prosecuted potter Joseph Askew before Rose for giving an invalid notice to quit work. Heaton represented the Mayers, and Turton defended Askew. Mayer and his manager, a man named Challinor, both testified that Askew's agreement with the firm stipulated that if they failed to provide Askew with sixteen days work during any four-week period, he could terminate the contract with a month's notice. Askew had presented his employers with a written one-month notice to end his employment, which expired on 2 June, but he did not claim that they had failed to provide the required work. Heaton argued that Askew's notice was invalid.Footnote 93 This agreement gave the master the freedom to end the contract with a month's notice and complete control over the employee's ability to do the same.
After hearing the case, Rose was “about to inflict … payment of costs” and order Askew to return to work when the potter said that he would not continue his employment. Rose then remarked “with some warmth” that it was his duty to send Askew to prison, “as an example that the office of the magistracy must not be trifled with, nor the interests of employers injured with impunity.” He sentenced Askew to a month in prison with hard labor.Footnote 94
Quite often the most desirable outcome for an employer in a master and servant case, and probably the most common one, was to have the magistrate force the worker to pay costs and return to work. Masters needed their skilled employees in the workshop, not in the house of correction. Both Hay and Steinfeld argue that for most of the nineteenth century the common law courts supported the use of master and servant law to compel specific performance of the contract of employment by repeatedly ruling that a conviction under these acts did not terminate the contract. If a worker refused to return to work after serving his or her prison sentence, he or she could be convicted again.Footnote 95
The potters' union engaged Roberts to bring this ruling before the Court of Queen's Bench. Roberts found a flaw in the warrant of commitment that provided the basis for a writ of habeas corpus.Footnote 96 It failed to state on its face that the contract between the parties was in writing or that Askew had actually commenced upon the agreement. Section 3 of the 1823 Master and Servant Act, 4 George IV, c. 34, gave magistrates the jurisdiction to hear cases in certain trades where a worker “shall not enter into, or commence his or her service according to his or her contract (such contract being in writing and signed by the contracting parties) or having entered into such service shall absent himself or herself from his or her service (whether such contract shall be in writing or not in writing).”Footnote 97 It is clear from the newspaper reports that Askew's contract was in writing and that he had entered into the service of the Mayer brothers. This did not matter, however, because the commitment had to demonstrate that the magistrate was acting within his jurisdiction. Had the employment contract been verbal, and Askew not yet commenced upon it, the case would have been beyond Rose's jurisdiction. Roberts was very aware of this because in another of his cases, Lindsay v. Leigh (1848), both the Court of Queen's Bench and the Exchequer Chamber had ruled on precisely this point.Footnote 98
On 8 June, Roberts gave the brief to Huddleston, who two days later secured a writ of habeas corpus to bring Askew to Westminster.Footnote 99 On 13 June, Huddleston and a barrister named Pashy argued before Judge Wightman. Huddleston argued that the commitment did not demonstrate an offense within the jurisdiction of the magistrate, according to section three of the 1823 Master and Servant Act. Pashy argued that these facts were implicit in the commitment, which stated that the offense occurred on 2 June and that the contract between the parties was to have commenced seven months prior earlier. Pashy argued, not unreasonably, that “outside Westminster Hall no one would have a doubt on the subject” of whether the magistrate had jurisdiction. Pashy's statement is representative of the growing complaints made by magistrates over the strict legal formalism with which the justices at Queen's Bench scrutinized their forms. Although from a “common sense” perspective, it is clear that Rose had jurisdiction to determine the matter, it is equally clear that there were wrongs in this case that the law and legal processes prevented labor's representatives from raising before the court. Magistrates felt that they were frequently the victims of legal sophistry and technical quibbles brought by sharp attorneys like Roberts, but his victories on these formal points often masked far greater injustices that regularly occurred in magistrates’ hearings.
Judge Wightman ruled that he “cannot distinguish this case from that in the Exchequer Chamber (Lindsey v. Leigh), a court of higher authority than this one” and discharged the defendant.Footnote 100 The Staffordshire Advertiser reported that this case “excited considerable interest amongst the working potters generally.” Rose had a turbulent history with potters and other workers in the region, and having three of his rulings questioned by the Queen's Bench in thirteen months further undermined his legitimacy with these groups. Potters throughout the region placarded walls with handbills “condemning in no measured terms the conduct of Mr. Rose.” During the week of Askew's release, potters held public meetings protesting Rose's conduct in Tunstall, Stoke, Longton, Burslem, Hanley, and Fenton, all of which were “numerously attended.” At these meetings speakers took turns condemning Rose, and resolutions were passed for the creation of a legal fund to assist workers in proceedings against his rulings.Footnote 101
CONCLUSION
On the one hand, these three cases from 1850–51 demonstrate some ways that the law was used in everyday industrial relations to command and control labor, as well as the class barriers that workers faced when engaging local legal institutions. In the first case, not only did the magistrate support a highly restrictive view of 6 George IV, c. 129 (1825), one which demonstrated a lack of understanding of most workers’ experiences, but so did the defendant's attorney. In the second case, a miner attempted to use the law to recover wages that were illegally paid to him in truck, but he was outmaneuvered by his employer's use of the master and servant statute. Even though the employer had clearly violated the law and the contract of employment, his transgressions were not perceived by the magistrate as serious enough to end the servant's broad obligation of obedience. In the third case, an employer attempted to use the threat of imprisonment before a magistrate well-disposed toward himself in order to compel a potter to continue work under a highly one-sided agreement. In all of these cases, the “indiscreet” statements that Rose frequently made from the bench communicated the message that employers had a greater claim upon the laws of England than their employees.
These cases also demonstrate, however, the tremendous difference that trade-union-funded legal resistance could make in challenging local mechanisms of law and the men who administered them. Not only did these cases have important implications for trade unions and workers, but the rebuke or correction of magistrates by the high-court judges, even if only on technical grounds, strengthened popular notions that labor law administered by local elites was illegitimate. In Austin's case, not only did Roberts win the worker's freedom, but he created a precedent that ensured it would remain feasible for workers to appeal convictions under the 1825 Combination Act to Quarter Sessions, making the statute much less useful to employers. In Askew's case, Roberts used legal precedents set by his earlier work on behalf of unionists during the 1840s to win his client's freedom. The reaction of the potters in the aftermath of this case (and in the protests of 1843 and 1845) shows that Roberts's victories had given unionists a language for expressing their grievances and strengthened their resolve to contest labor regimes based upon legal coercion. In Greaves's case, Roberts won belated criminal and civil justice against his client's employer and made a magistrate face the unsatisfying consequence of paying legal costs for his behavior.
Because workers in nineteenth-century England were subject to unjust and coercive labor laws, often enforced by relatively unsupervised magistrates who had close ties with local employers, it is easy to assume that workers avoided the legal system. In fact, during the mid-nineteenth century, many trade unions pursued and defended their interests in a wide range of issues through the English legal system at both the local and national levels, making the law a hotly contested terrain between employers and employees. Trade unions funded aggressive, inventive, and resourceful solicitors like William Roberts to challenge employers’ attempts to imprison workers for breach of contract, thereby disrupting and discrediting regimes of labor based upon penal coercion in local summary courts. Traditions of legal formalism in the Court of Queen's Bench, the rules of precedent, and the fact that high-court litigation could have implications for multiple areas of law could be used by union solicitors to win significant victories and delegitimize local enforcement of coercive labor statutes.Footnote 102 Roberts used writs of certiorari and habeas corpus to give high-court judges, influenced by a growing ethic of legal professionalism, the opportunity to assert authority over, and to impose a more strict methodology and procedure on, a largely unprofessional and relatively unsupervised branch of the legal system. Though on the surface it appears that Roberts merely took advantage of technicalities, when we look at the full social contexts of these cases, and the unjust way in which local hearings were often conducted, there was plenty of merit to these victories.
Roberts had a high degree of success during the 1840s and 1850s, which had a significant impact upon how workers understood different levels of the law and their position before the law. His work made the composition of the magistracy, their conflicts of interest, and their imperfect knowledge of the law subjects of trade union protest, drawing labor into debates about reform of the English legal system. Some might argue that the high-court victories of trade unions distracted workers from the real problem, which was the law itself rather than its enforcement. Such critics must keep in mind that campaigns to bring about the repeal of penal sanctions and opportunistic efforts to mitigate or obstruct their use were not in a dichotomous relationship. Union-funded litigation, in addition to using the most available means to impede efforts to legally coerce workers, also brought publicity to numerous injustices perpetrated upon workers under master and servant law that might have otherwise gone largely unnoticed. It underscored the ways in which employers used these laws to prevent workers in many trades from improving their conditions. Roberts's work strengthened and focused labor's opposition to master and servant statutes, giving the workers a legal language for expressing their objections. For example, Roberts's work inside and outside of the courtroom helped to pull together the largest and most widespread expression of discontent with these coercive laws to that point, that is, the defeat of the 1844 Master and Servant Bill.Footnote 103 By the time the Select Committee on Master and Servant met in 1866, Roberts's well-publicized cases provided over twenty years of examples of injustices inherent in these laws and their enforcement. Roberts and other witnesses used arguments before this committee that had been rehearsed in local Petty Sessions and public meetings for two decades.Footnote 104 In those decades before the political support was available to bring about repeal of the penal sanctions in master and servant law, Roberts and other union solicitors were at least able to challenge the use of these statutes for coercing workers. Employers might have used the criminal and statute law and local legal institutions to control and direct workers in mid-nineteenth century Staffordshire, but rather than meekly submitting, workers looked to radical solicitors and the high courts for protection and did not look in vain.
