Changing the law

Whoever thought up the title for this book must have wished it ill. The notion of a radical lawyer in Victorian England is profoundly distasteful. The word ‘radical’ is used both by revolutionaries and reactionaries to pretend that they are not what they are. Comfortable, distinguished and pompous lawyers are apt to describe themselves as ‘radical’ when they take time off from earning their enormous fees to flirt with a little prison reform on the side. Such people flourished hugely in ‘Victorian England’. Common to all of them was the belief that the judicial system handed down through the ages was a guarantee of fairness and justice, and that legal ‘radicalism’ needed to be securely confined in the law courts. Most of these gentlemen were not worth an obituary, let alone a biography.

Fortunately, W.P. Roberts was something much rarer than a radical lawyer. He was a fighting lawyer, a principled lawyer, a lawyer driven all his life by hatred and contempt for the class into which he was born. He was, in short, not the sort of lawyer about whom historians (or lawyers) want to write, and that is one reason why so little is known about him. Ray Challinor can find next to nothing about Roberts’s early life. He was the son of a vicar, who went to Charterhouse, trained as a solicitor, married into the landed gentry and settled in a prosperous practice at Bath. He joined the Tory Party and campaigned in 1832 against reformers who dared to suggest that the vote should not be restricted solely to people like his parents-in-law.

Something very strange must have happened to Roberts between 1832 and 1837, when he emerges as one of the leading figures in the Bath Working Men’s Association. For the rest of his life (he died in 1871, the Year of the Commune) he remained a passionate advocate and agitator for the working class. He rode on the crests of the three waves of Chartism. In the first, in 1839 (perhaps the closest Britain has ever come to a proletarian revolution), his speech to a huge and angry demonstration in Trowbridge, Wiltshire provoked a prosecution for ‘seditious libel’ (the legal definition of a public criticism of the government). He was sent to prison for two years but released (probably because he was a solicitor) after five months. If the authorities believed that by showing him such favours they might tame his enthusiasm for the Chartist cause, they were soon proved wrong. Persecution and failure demoralised many revolutionary Chartists but Roberts was indomitable. He wrote to the Trowbridge Female Radical Association (an organisation which I fear may not exist today): ‘ ’Tis true indeed that the jail beds in Salisbury are not made of roses; but whether for weal or woe, for victory or death, my mind is made up: come what will and when it will, it is my determination to live and die in the people’s cause.’

Roberts was under no illusions about the law and the way it worked. ‘Judges and juries,’ he wrote, ‘and all who live by the plunder of the present system will be opposed to us.’ By ‘us’ he meant lawyers like himself who put their skills exclusively at the disposal of the dispossessed. He had already experienced the ‘derisive sneer’ on the face of judges and juries who went through the motions of listening to lawyers for the poor without the slightest intention of altering their determination to convict. Though judges and juries were all bad, from Roberts’s point of view, they were better than magistrates. General Sir Charles Napier, the commander of the forces against the 1839 Chartist uprising in the North, reported: ‘The Tory magistrates are bold, violent, irritating and uncompromising; the Whig magistrates sneaking and base.’ To W.P. Roberts they were all men of property, defending their property in the law courts. While they talked about ‘physical force’ Chartism, he was opposed by the much more violent physical force of the Government. Challinor recalls the computation of George Rudé, who studied riots and violent demonstrations from 1736 (the Porteous riots) to the Chartist high tide of 1848. During those 112 years seven people were killed by protesters; 609 by the forces of law and order putting down the protests. As Engels wrote in The Condition of the English Working Class, ‘because the English bourgeois finds himself reproduced in his law as he does in his God, the policeman’s truncheon has for him a wonderfully soothing power.’

In 1843, Roberts was taken on as full-time legal adviser to the new miners’ unions in Durham and Northumberland. For the next twenty years or so, off and on, he raced round the coalfields of those two counties (and of Lancashire, where he took a new job for the miners in 1845), arguing, injuncting, adjourning for accused miners and their families. ‘We resisted,’ he explained, ‘every act of repression, even those we were sure of losing.’

He lost most of them. But he won some. In the early years he had a notable victory against the owners of Thornley Colliery. The case involved the insidious ‘bond’ (a ‘contract’ in which the miners delivered themselves bound hand and foot to the owners). The victory made Roberts a hero in the miners’ communities. Even the magistrates were impressed: the arrival of the ‘miners’ attorney’ in his gig was enough to persuade one lot of magistrates to grant bail to imprisoned miners.

Roberts gave his life to the miners, particularly during the North-East miners’ strike of 1844. His salary could not be paid during the strike, but he doubled and redoubled his efforts, fighting especially against the eviction of miners who could not afford the rent because they were on strike. Lord Londonderry, the biggest coal owner in the area, explained in an open letter to all the miners (signed ‘Your friend, Vane Londonderry’) that he was ‘bound by duty to my property, my family and my station’ to evict everyone, however old or sick, who could not pay the rent. He evicted some twenty thousand, but his representatives found themselves contested again and again in the courts by an outraged W.P. Roberts.

The 1844 strike was won by Londonderry and his like, and the pitmen went back to work defeated. A friend saw Roberts in the street, destitute, in bedraggled clothes. Worse was to come. In the wretchedness of defeat, the miners’ associations of the North-East turned against him. Roberts took off for Lancashire, where he continued the same work. But the dispute with the ‘moderate’ union officials which flared in the North-East in 1844 was to haunt him for the rest of his life. His commitment to the working-class cause extended far beyond his defence of workers in court. He wanted them to go on strike and win concessions. He spoke, in Ray Challinor’s phrase, ‘through the courtroom window’ to the world outside, hoping that his indignation at the cruelty of judges and magistrates would ignite working-class revolt. Other ‘radical’ lawyers pleaded with demonstrators and their families to avoid any rumpus outside the court or anywhere else: Roberts actively encouraged demonstrations, pickets and strikes in support of the accused. He was a menace not only to the employers and their friends, but also to the new trade-union leaders.

Ray Challinor expertly describes the collapse of Chartism between 1839 and 1858. The commitment to the Charter and its six points about electoral reform remained – but the style of commitment was transformed. On New Year’s Day 1839, the Rev. John Rayner Stephens spoke to a Chartist rally on Newcastle’s Town Moor. There were about forty thousand angry people at the meeting. Stephens declared himself ‘a revolutionist by fire, a revolutionist by blood, to the knife, to the death’. If the hated new Poor Law was passed, he said, the people there should burn Newcastle to the ground. The mood which greeted this speech (and others of the same kind all over Britain) was so enthusiastic that Newcastle and other cities (Derby, in particular) were lucky to be left standing.

The tiny handful of Chartists who gathered in 1858 sang a different tune. Their main argument for the Charter was that it would make government cheaper, since working people would keep a close watch on public spending. The last Chartist Convention (1858) was presided over by a well-known Lancashire radical, Alderman T. Livesay, the Chief Constable of Rochdale. Twenty years earlier, his predecessor had marshalled truncheons against the Chartists, but now the Alderman advocated the Six Points as the best way of ensuring law and order. A great change had come over the ruling class. To have conceded the vote to the revolutionaries of 1839 was unthinkable. To concede it twenty years later – bit by bit – when the revolutionary wave had subsided, seemed more like common sense.

This was the prelude to the widening of the franchise (by a Tory government) in 1867. All six points of the Charter (apart from annual parliaments) were conceded in the period described by Engels as ‘England’s long winter sleep’. The prevailing reaction of the 1850s and 1860s pushed W.P. Roberts out of his element. He found himself openly flouted by the miners’ leaders, led by Alexander MacDonald and his friends from the professions and the boardrooms.

Perhaps the most remarkable part of this remarkable story is the way this apparently indestructible lawyer pursued his campaign in the courts and through the courtroom window through those two decades. There were still plenty of workers resisting the newly-confident employers, and there was still plenty of exploitation which broke the law. When he was defending strikers in the South Wales village of Blaina, Roberts produced as witness an orphan girl called Janet James. She had worked for two years down a pit, pushing coal-tubs. She never got a penny of her wages. The coal owners’ shop had deducted from her wages the debts of her dead father, allowing her only a little bread and tea on which to survive. Roberts made the name of Janet James famous. After winning the strikers’ case, he published a transcript of the trial at his own expense, and sued the coal owners for her wages. To everyone’s astonishment, he won – though he then had to subsidise Janet’s journey to Australia, to escape victimisation at the hands of the Christian Gentlefolk of South Wales. In this period, the main oppressive laws against workers were repealed. The Combination Acts, the Master and Servant Act, the ‘bond’ in the North-East, and the hated ‘truck’ system, whereby employers dominated workers’ lives through a monopoly of the shops – all these were wiped off the statute book.

From my experience as a graduate in law of Oxford University, I know that lawyers and legal historians hate any reference to social conflict. The laws of England, they pretend, have developed in beautiful, if not transcendental symmetry from time immemorial. Lords Justices, imbued with special insight into human nature, have passed on a body of common law which blends delectably with the laws made by Parliament. Any suggestion that any of these laws have been passed or repealed as a result of outside activity, especially the activity of the common herd, is unthinkable (and a sure route to a gamma minus in Legal History). Ray Challinor, who knows more at first hand about the Labour movement in the North-East of England than any other person alive, confronts this mythology.

The Combination Acts, the Master and Servant Acts and the legally-enforceable Bond were removed from the statute book. How was this accomplished? Not on the basis, at least directly, of the strength of the workers’ case. Rather it was on the strength of workers themselves, their ability to retaliate by punishing their masters. This made these laws counter-productive, acting as an incitement rather than a means to secure acquiescence. In the circumstances, the smooth running of the system demanded their removal.

The combination of working-class resistance and a lawyer who commits his skills and energies to this resistance can change history – it can even change the law. This admirable book should be required reading for all legal students and young lawyers whose masters tell them to study and administer the law while ignoring the people who suffer from it.