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‘Your push is what makes the wheels turn’: Class, crime and law in colonial New South Wales

by Brett Heino on July 16, 2019
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Readers of Progress in Political Economy might at first wonder how a review of a book about criminal law and procedure in colonial New South Wales (NSW) found itself on this blog. However, anyone who reads Eugene Schofield-Georgeson’s By What Authority? Criminal Law in Colonial New South Wales 1788–1861 will instantly see its salience for a blog that has placed itself on the front-line of debates about the roles and functions of the state. Today, such debates often turn upon the nature of the neoliberal state. It has been observed many times before that at least part of the essence of this state is a dramatic growth in its penal apparatus and the derivation of legitimacy from ‘law and order’ campaigning. Thus, while the criminal law has always had a class content, it is today a class project in a fresh sense.

Schofield-Georgeson explicitly foregrounds his book against this backdrop. In an era of rapidly expanding police powers, privatisation of prison and security services, and the erosion of basic procedural rights and civil liberties, historical analysis into the criminal law and procedure of colonial NSW reveals a fundamentally different direction of development. Between 1788 and 1861, a union of social forces set in train a generally incremental process of evolution in the criminal justice system, resulting in the crystallisation of fair trial rights, limitations on the arbitrary power of the magistracy and police, and a greater subsumption of law to the democratic process through the transition to self-government. The result, Schofield-Georgeson argues, is that the criminal law in many instances became objectively fairer for working class and Aboriginal peoples.

To chart the history of these developments, the book is very neatly structured into three sections based on the typology Irving (2006) developed in identifying the constituent forces of the ‘reformist radicalism’ that struggled for representative democracy in NSW. Broadly, Schofield-Georgeson posits three strands, or forms, of the movement for criminal law reform:

  1. Plebeian radicals: a group largely the subject of criminal law, encompassing ‘specifically proletarian convicts, working-class free labourers and Aboriginal people’.
  2. Civic radicals: members of the middle-class or emerging colonial labour aristocracy, such as newspapermen and skilled labourers. These played a key role in transmitting the Chartist movement from the imperial metropole to colonial NSW, which subsequently exercised a profound influence on legal development.
  3. Constitutional radicals: members of the ruling class that shared certain progressive and democratic ideas with civic radicals. These often included reform-minded judges, barristers and politicians.

One of the key tasks Schofield-Georgeson undertakes in this book is to explore the complex, often contradictory relationships binding these three forms of juridic radicalism together. While he notes that the macro-result of these articulations was an objectively fairer criminal law and process, he is by no means blind to the inner paradoxes characterising them. The key to conceptualising these relationships is Antonio Gramsci’s (1971) concept of hegemony. In a developing colonial society, rooted in penal discipline yet evolving towards fledgling capitalist forms, working-class pressure alone was insufficient to force thoroughgoing change. It did, however, present a challenge to a colonial ruling-class fractured by the divisions between an older squattocracy and a newer bourgeoisie growing under the impulse of free-settling and the establishment of domestic capitalist industries. In such circumstances, the evolution of criminal law and process ‘operated … as a form of political hegemony’, entailing the ruling class developing ‘a mode of governance requiring concessions to the majority, without relinquishing political dominance’. Working-class pressure against magisterial arbitrariness; constitutional radicalism seeking to entrench class power through class compromise; and middle-class radicals sitting uneasily astride the proletarian/capitalist divide – Schofield-Georgeson traces beautifully the contours of these dialectically intertwined forces in classic Gramscian fashion.

The book proceeds through each form of radicalism, knitting together a veritable smorgasbord of cases, laws, parliamentary debates, archival records and newspaper pieces into an account that is at once rigorous yet easily digestible. Chapters 2 and 3 tell the story of a brutally repressed working-class and Aboriginal population that early on fought against its oppression by physical violence, appeals to authority, refusal to work and retribution. Outside very isolated instances of organised political violence (like the Castle Hill Rebellion of 1804), this plebeian radicalism ‘sought squarely to achieve reform’ yet constituted ‘an effective collective challenge to established legal order’. While the story of forms of convict and Aboriginal resistance has been told before, Schofield-Georgeson makes a highly significant contribution in his Chapter 3 discussion of how plebeian radicals came to understand and use criminal law and process itself. Contrary to the prevailing view of convicts and Aboriginal people as passive victims of an all-powerful criminal law, he paints in wonderful detail the largely untold story of their active and activist use of the court room as a vehicle for their interests. Framed by an often inchoate but deeply-held ‘moral economy’, Schofield-Georgeson shows how plebeian radicals invoked the right to silence, exploited technical and procedural deficiencies in the cases of their accusers, employed often quite sophisticated defences to charges and appealed against police oppression in the language of civil liberties.

Important as all this was in its own terms, the greater significance was that such episodes ‘percolated into larger, organised campaigns and mass movements for democratic and criminal law reform throughout the period’. These were movements which Schofield-Georgeson’s civic radicals had an absolutely central role in organising, and it is to these he turns in Chapters 4 and 5. He describes their characteristics thus: ‘They were often educated, professional and salaried, sometimes religious, and frequently had connections to the democratic movement in Britain. They did not belong to a colonial ruling class of statesmen, merchants and squatters …’. These civic radicals frequently made common cause with workers who, given Master and Servant legislation, ‘were brought into daily contact with the criminal law through the workplace’. In broad terms, the outcome of this union was the creation of a very strong drive to self-government, which came to fruition via a series of steps, culminating in universal male suffrage in 1858. More concretely, the bond of workers and civic radicals helped to ameliorate the worst excesses of the Master and Servants Acts. In particular, between 1840 and 1857, their combined pressure severely undermined the summary power of the magistracy, increased defences available to workers and, most importantly, abolished imprisonment as a punishment for breach of contract and work discipline offences.

Chapter 5 is perhaps the most fascinating chapter in the book and, although clearly integrated with the rest of the account, is singular in its focus on one man, the mercurial civic radical Edwin Augustus Withers. Schofield-Georgeson, using the method of ‘micro-history’ tells the story of this highly interesting, albeit eccentric, man. A Parramatta local, he frequently entered the local court house in the 1840s to protest against arbitrary police procedure and improper court room practice. His exploits unfortunately earned him a committal to Tarban Creek Asylum under the Dangerous Lunatics Act (ironically after a deeply flawed hearing). In Schofield-Georgeson’s hands, the Withers story is not just interesting in its own terms. Rather, he uses Withers’ demands for fair trial rights as a window onto the broader movement for the codification of such rights through the so-called Jervis Acts: mid-19th century British legislation which took firm root in colonial soil. Among other things, the Jervis Acts codified a raft of common law fair trial rights, including the right to silence, the voluntariness of confessional evidence, the right of the accused to cross-examine prosecution witnesses and a presumption of bail for all offences except treason. According to Schofield-Georgeson, such developments were not mere window dressing; rather, they represented real instruments of substantive and procedural fairness in the tool kit of criminal defendants.

Chapters 6 and 7 round out the three-fold structure by focusing on the activities of constitutional radicals, members of the colonial ruling-class who nevertheless were at odds with one of its key factions, namely, that of the squatters, merchants and their chief institutional strut, the honorary magistracy. The dialectical unity of the account is here reaffirmed by recalling Gramcsi. Although complex, the motivations of constitutional radicals were fundamentally driven by a will to maintain political hegemony in the face of working-class struggle. Hegemony is achieved not simply through coercion, but ‘also through the political compromise of a ruling group who are forced to do so in order to create social equilibrium …’. Criminal law and process was a central axis of this hegemonic process, and in undertaking it, constitutional radicals set themselves against the lay magistracy and its penchant for brutality. Schofield-Georgeson is here quite sensitive to the divisions fracturing the ruling-class and the institutions marking their frontiers. Key achievements of the constitutional radicals included a radical overhaul of the magistracy (including the appointment of stipendiary magistrates), limitations on flogging, the gradual enlargement of jury trial for criminal cases, an overall tightening of procedural regularity and a more rigorous system of evidence law. Combined, ‘[t]hese changes made the law fairer but, as significantly, they hegemonised the class power of the reformers’.

Schofield-Georgeson has produced in By What Authority? a masterly work in the best tradition of E.P. Thompson. It shares with the latter’s Whigs and Hunters: The Origins of the Black Act (Thompson 1977), a wonderfully fine-grained and textured account of law in the lives of real people, erected on the basis of an immense research effort. For both Thompson and Schofield-Georgeson, law is not a passive reflection of an economic base that invariably reflects ruling-class interests. Rather, it is a sensuous and malleable creature that is very much the object of class struggle in its own right. If sufficiently organised and linked with other social forces, the proletariat can achieve legal reforms that better reflect its class interests, including around criminal law and procedure. Schofield-Georgeson’s signal achievement is to trace for the first time how this occurred in colonial NSW ‘as the product of both bottom-up and top-down responses’. Such an accomplishment presupposes a very nuanced and sophisticated appreciation of class structure and effects, closest in character to that of Erik Olin Wright (2015).

Importantly, he includes Aboriginal peoples in his analysis of plebeian radicals. Contrary to a prevailing vision of indigenous peoples as hapless victims of an omnipotent colonial legal system, Schofield-Georgeson offers a number of fascinating vignettes of Aboriginal people understanding and actively engaging with criminal law processes. While such a realisation should not (and does not in the book) blind us to the systematic injustice of the colonial legal system vis-à-vis the indigenous population, it does correct a historical lacuna in drawing attention to Aboriginal agency.

In terms of shortcomings, there are only a few worth comment. Regarding the class nature of law, Schofield-Georgeson is under no illusion that the increasing fairness of criminal law and procedure in NSW was the bounty of a beneficent ruling-class. He asserts at multiple points that the activity of constitutional radicals was conditioned by an overall need to establish and maintain a political hegemony over the working-class. However, there is no real analysis as to class character of the law itself. Schofield-Georgeson, in the manner of Thompson, implicitly argues that the achievement of fairer criminal laws and procedures was an unmitigated social good. In this, I largely agree with him, except to the extent that it romanticises how much legal change can achieve. For example, the criminal justice system existing at the end of his analysis in 1861 was still profoundly leveraged against ordinary working people. Was this the result of constitutional radicals subverting the process and always leaving unexploded bombs in the judicial path of subaltern classes, or was it instead/also the outcome of the fact that the legal form itself is bourgeois? Schofield-Georgeson’s arguments tend to support the former contention. If, however, the latter holds some explanatory currency, it would seem to narrow considerably the vistas of progressive criminal law reform.

Second, despite Schofield-Georgeson’s sensitivity to class analysis, the rhythms of class evolution, and their articulation to criminal law reform, are generally left under-theorised. A closer attention to the physiology of Australia’s political economy could have helped on this score. For example, the structures of the honorary magistracy were inherently tied to a penal society characterised by ambiguous property rights and whose raison d’être was as a pressure-release valve for the contradictions of English industrial capitalism. By contrast, the movement towards responsible self-government and associated law reforms was premised upon the development of local industry and the emergence of a domestic bourgeoisie and working-class. Although Schofield-Georgeson does recognise these articulations and acknowledge them in places, this is not done in a systematic way. Making these links only strengthens his arguments, as they tie the proximate evolution in criminal law to the deeper dynamics of Australian capitalism and thus introduce a finer-grained temporality into the account.

These quibbles notwithstanding, Schofield-Georgeson has produced an outstanding and novel account of the development of criminal law and process in colonial NSW. He is completely correct in his assertion that an appreciation of the struggles for fairer laws throws the current climate of neoliberal penal populism in an even darker light. In his masterpiece The Unknown Industrial Prisoner, one of David Ireland’s (2013) characters notes profoundly:

He didn’t realise justice has to be pushed and teased and prodded and reminded, that the system won’t work without your efforts. Your push is what makes the wheels turn. Without your shove there is no system.

Schofield-Georgeson has created nothing less than the historical proof of that statement.

References

Gramsci, A. (1971) Selections from the Prison Notebooks. London: Lawrence & Wishart.

Ireland, D. (2013) The Unknown Industrial Prisoner. Melbourne, VIC, Australia: The Text Publishing Company.

Irving, T. (2006) The Southern Tree of Liberty: The Democratic Movement in NSW before 1856. Annandale, MN: Federation Press.

Thompson, E.P. (1977) Whigs and Hunters: The Origins of the Black Act. London: Penguin Books.

Wright, E.O. (2015) Understanding Class. London: Verso.

This review first appeared in Capital & Class

Brett Heino
Brett Heino is a Lecturer in the University Technology of Sydney (UTS) Faculty of Law. His research interests include the political economy of law (with a focus on labour law), the structure of post-World War II Australian capitalism and regulation theory

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