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Coleridge’s Laws

 | 
Barry Hough
, 
Howard Davis

5. Thematic Analysis of the Proclamations and Public Notices

Texte intégral

The Themes

  • 1 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.
  • 2 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12.

1In this chapter each of the twenty-one Proclamations (Bandi) and Public Notices (Avvisi) under Coleridge’s signature will be contextualised and evaluated. For convenience, they are grouped into themes according to their ostensible subject matter, and these themes are set out in Table 1 below. This classification is not definitive in so far as the stated purpose of the measure may sometimes be different from its true motivation. Equally, some measures have more than one purpose. An example is the Bando of 22 March 1805,1 which might, fairly, be seen as a measure concerned with the prevention of crime, or military discipline rather than consumer protection, which is its stated purpose. Similarly, the Avviso of 20 June 1805,2 which is considered under the heading of ”military discipline” might, fairly, be regarded as a measure to combat crime.

2The themes are: (i) reconstruction; (ii) distribution of prize; (iii) taxation; (iv) public order and crime; (v) corruption; (vi) consumer protection; (vii) regulation of trade; (viii) the harbours; (ix) passports; (x) military discipline

Table 1: Proclamations (Bandi) and Public Notices (Avvisi) under Coleridge’s signature

Table 1: Proclamations (Bandi) and Public Notices (Avvisi) under Coleridge’s signature

5.1. Reconstruction

Introduction

  • 3 Hardman, 535.

3As we have seen, in Chapter 2, the Maltese uprising against the French, in 1798, which had been followed by two years during which the French garrison had been besieged on land and sea, had severely disrupted the administration and the economy of the Island. At the date of the capitulation, the Island’s economy was in a state of collapse. The export of cotton to Spain, which generated about £500,000 per annum, had been impossible during the blockade.3 Much of the Island’s traditional revenue had been lost when, in 1792, the French confiscated the assets of the Order in France. There was little economic activity, because the shops in Valletta had been either destroyed or looted; the bank had been plundered; and the merchant and fishing fleets of Valletta smashed. The wherewithal to rebuild the infra structure depended, in part, upon the British taxpayer and, otherwise, upon the gradual recovery of the economy. A significant backlog of public works accrued before the problems could be fully resolved. Reconstruction work continued whilst Coleridge was on the Island.

4The question of road maintenance was one of the first problems that confronted Coleridge in his new public appointment, since he was only eleven days into his office when his first Bando, as Public Secretary, was issued. Its purpose was to minimise future damage to the highways arising from the use of certain types of wheels.

Roads

  • 4 Ball to Camden, 10 September 1804, Kew, CO 158/9/59.
  • 5 Ball to E. Cook (Under-Secretary), 1 March 1806, Kew, CO 158/11 no folio reference – Revenue & Exp (...)

5Some evidence of the significant investment made in the repair and maintenance of the highways, at this period, survives. In his annual financial report upon the affairs of the Island, for the year 1803-1804,4 Ball warned Camden that significant sums would have to be spent, not only in repairing the roads in the countryside but also upon the continuing street repairs in Valletta. As matters turned out, he was right to do so because the financial statement for the following year, 1804-1805, revealed that the Island’s continuing deficit was, in part, attributed to the cost of restoring the roads and other infrastructure; indeed, Ball considered the road reconstruction programme to be one of the heaviest financial burdens of government.5

  • 6 Sultana, 274.
  • 7 CN 2, 2412.
  • 8 To Robert Southey, circa 24 December 1809, CL 3, 265.
  • 9 See Public Order and Crime, below.

6A number of methods, apart from regulating the design of cart wheels, were employed to keep the road network in good condition. The administration used conscript labour, including French and Spanish prisoners of war, to work upon road maintenance.6 There is some, slight evidence, in his Notebook entry of 23 January 1805, that Coleridge might have visited them on or about this date.7 He was, later, to record that the POWs were ”shamefully” treated on Malta.8 This adverse judgement could easily have been influenced by what he witnessed of the men labouring at such arduous work, although it must not be forgotten that one of the victims of the anti-Semitic violence, whom a crowd was invited to stone, was also a French prisoner.9

  • 10 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.

7The use of these prisoners to reduce labour costs must have been attractive, given the limited resources otherwise available, to meet the significant arrears of work. Perhaps, for this reason, the POW labour force was about to be expanded by Maltese convicts. Ball and Coleridge were, in effect, about to experiment with a type of community service programme. The Bando of 22 March 180510 (regulation of spirits) was to stipulate that, although certain offences were punishable by fine, those who either could not or would not pay their fine could either be sentenced to a term of imprisonment or six months community service engaged upon public works. But the administration recognised that these methods, by themselves, would be insufficient. In effect, these were simply measures to treat the symptoms of abuse. More had to be done to reduce the expense, to government, arising from unnecessary damage to the surface of the roads.

  • 11 NLM LIBR/MS 430 1/2 Bandi 1790 AL 1805, 2.
  • 12 The question whether the constitution precluded new taxes was a particularly vexed one. It is cons (...)

8Ball’s parallel strategy, which Coleridge’s first Bando of 29 January 180511 implemented, was aimed at minimising the need for costly repairs. The Administration had identified the use of studded wheels as a major and avoidable cause of damage to the road surface. Unless Ball abolished their use, the only alternative would be to repair the damage they caused, which would have meant raising additional revenue by taxes or duties. In a constitutional sense, this latter policy choice might have been possible. In the days of the Order of St John, wheels had, indeed, been taxed for the repair of streets and roads, and once the work had been completed the tax had was no longer levied. This precedent meant that ad hoc taxation for the maintenance of the highways was not a ”new” tax, and so it fell within the terms of the Maltese constitution.12

  • 13 See generally Chapter 2 and the taxation theme at 5.3, below.
  • 14 As the Royal Commission acknowledged in 1812: Kew, CO 158/19.

9Political reasons probably explain Ball’s reluctance to levy hypothecated road taxes. A burdensome and, possibly, unpopular tax on wine was about to be promulgated, and Ball fully understood the risks to his policy of retaining Malta if his government lost favour with the inhabitants.13 As we shall see below, any increase in taxation would have to be carefully managed. Legislation exacting two new imposts, each imposed within a few weeks of the other would be courting trouble. If Ball appeared to resort, too readily, to tax-raising it might spark renewed calls from the Nationalists for a representative assembly such as the Consiglio Popolare.14 Moreover, if the harmful wheels were prohibited instead, and the roads less easily damaged, he no doubt reasoned that an unpopular road tax would not be necessary.

  • 15 Ibid.

10However, if this was his assessment, it was unduly optimistic. The thorny question of how to fund the communications network was not fully resolved by either this or any other of the early British administrations. When the Royal Commission reported in 1812,15 it acknowledged that the repair of streets and roads continued to remain an item of heavy expenditure; but it shared Ball’s preference to address the matter by means other than taxation. The Commission’s recommendation was that prisoners, who might otherwise have been sentenced to servitude on the galleys, should instead be required to maintain the roads as a community service. This was so, in part, because the sentence of time in the galleys was an obvious anachronism, this form of punishment having fallen into disuse. This signalled an approval of the community service ideas employed by Ball in 1805.

Bando 29 January 180516 – Regulating Studded Wheels

  • 16 NLM LIBR/MS 430 1/2 Bandi 1790 AL 1805, 356; 431 II/3, 50.

11Coleridge pursued three distinct strategies to limit the damage to the surface of the highways. These strategies are of interest because they suggest that there were significant political constraints upon the use of regulation and, in particular, constraints upon the employment of sanctions under the criminal law. They also reveal something of Coleridge’s inexperience as an administrator.

12Firstly, the Bando required that wheels should be made to a pattern supplied by, or on behalf of, the government to the wheelwrights. Craftsman who made wheels to any alternative design would commit a criminal offence for which they would become liable to a fine of twenty oncie for each offence, upon conviction.

13Secondly, and as a separate offence, the Bando prohibited the construction (as opposed to the use) of wheels that had iron nails or studs protruding from the rims since these damaged the surface of the highways. Failure to comply with this regulation also constituted an offence punishable by a fine as above.

14The final strategy adopted was to exhort the majority of vehicle owners to fit and use the approved wheels even if their existing wheels had only recently been fitted. Intriguingly, the continued use of studded wheels by members of the public was not punishable. This decision is interesting because, if the major cause of damage to the highways was the use of studded wheels, we would expect any instrument deploying the criminal law to include penalties, such as a fine, to enforce the removal of studded wheels from use. That this was not done reveals a concession to practical politics that forced Coleridge into an alternative strategy.

15Rather than using criminal penalties against a potentially large number of Maltese, he instead resorted to a reasoned appeal to their self-interest. He argued that journeys in carts without studded wheels would be more comfortable; the carts and wheels would have a longer life since the jolts caused by the studs would, necessarily, cease; the goods carried would be less liable to damage; and the beasts drawing the carts would not tire so quickly. To drive home this final argument, he resorted to the laws of physics by asserting that the studs operate against the moving force and so a greater effort is required to draw carts fitted with studded wheels than would be the case otherwise.

16Depending upon how successful this exhortation to the owners may have been – and much might have depended upon the cost and convenience of wheel replacement (as much as on the reasons Coleridge expressed) – the restriction of criminal sanctions to the manufacturing process suggests that the Bando was really aiming at a long-term strategy. It would take time before new vehicles were produced according to the new design. Short term gains in reducing the damage to the road surfaces depended upon early, but voluntary, compliance in having studded wheels upon existing vehicles replaced.

  • 17 Memorial and Petition of the Maltese (unsigned and undated): Kew, CO 158/10/151 (1805).

17The reluctance to enforce a prohibition upon the use of studded wheels was, probably, perceived to be necessary for pragmatic, political reasons. Mandatory wheel replacement would put a majority of the citizens to significant expense and risk unpopularity. It is unclear whether the craft capacity of the Island could achieve a rapid replacement of the old, harmful wheels; and the criminalisation of a potentially large number of people, including, perhaps, the less affluent who would be unable to afford to replace their wheels, would be unpopular. It would tend to frustrate the overriding British policy designed to secure the support of the Maltese for the British administration. There is evidence that Coleridge succeeded in limiting political damage because the restrictions on wheels did not feature in the litany of complaints, made in 1805, about Ball’s administration.17

18However, Coleridge’s failure to impose a criminal offence for the continued use of the wheels is also interesting because it reveals something of his inexperience and lack of confidence as an administrator. It reveals his uncertainty as to whether his reasoned appeal, to the self-interest of the Maltese owners, would succeed in persuading them to alter their behaviour. Had most of them complied voluntarily the number of recalcitrant owners who retained the studded wheels would be quite small. This means that, if his reasoned appeal succeeded, the political objections to using the criminal law to punish those who did not make the change of wheel would have been less powerful because there would have been fewer offenders to bring to court and less resistance to the new policy. Coleridge, as an inexperienced public official, can be seen to experiment with persuasion, and he was, evidently, not confident that his explanation and appeal, no matter how objectively reasoned, would secure the goal he intended.

Certainty

19Legislation normally informs a society, or a class of the population, of the conduct that is required of it or, alternatively, that certain conduct is prohibited. The behaviour that is either permitted or prohibited must be clearly established so that law-abiding individuals can go about their business without risking a penalty. This is not possible if the law is unclear.

20The drafting of Coleridge’s first Bando suffers from certain interpretational problems.

21Firstly, it was enacted so that the craftsmen should only make wheels according to the pattern supplied to them. Presumably, although the Bando does not make this clear, no craftsman would have been liable for making wheels according to other designs until the pattern had been supplied to him.

22Secondly, it was enacted so that it would be an offence to depart from the pattern. A separate offence was the manufacture of a wheel with nails that protruded from the rim.

23It can be objected that the second offence was redundant since the obligation to construct wheels according to the government’s approved pattern would, obviously, mean that the wheels would not have protruding nails. This also reveals Coleridge’s inexperience as a legal draftsman.

24The fine of twenty oncie was imposed on craftsman ”for each offence”. It can be asked whether the construction of a wheel with protruding nails is one or two offences? Is it an offence contrary to the requirement to manufacture according to the pattern (offence 1) and a further and separate offence to have protruding nails (offence 2)? This is unclear and is further evidence of lay draftsmanship.

Enforcement

25The experience of any legal system is that a law that is not enforced is almost worthless. However, legislators do not always address this question by providing an adequately-resourced enforcement mechanism that will prove effective in identifying and prosecuting offences. The effectiveness of public-enforcement bodies can be compromised if they suffer from underfunding, a lack of zealous, efficient staff, poor management or a lack of political or public support.

26On Malta at this period, the absence of an organised police force limited the scope for the detection of offences. Coleridge’s Bando sought to avoid this potential pitfall since the inhabitants were, in effect, recruited to perform the work of detection and evidence gathering. He achieved this by invoking the aid of self-interested informants who were to be rewarded with one half of the fine to which an offender would become liable upon conviction. Whilst minimising a public burden – that of detecting the offences – it nevertheless created a conflict of interest since the informant, who might easily be a witness, had a pecuniary interest in a conviction. As we discuss in Chapter 6, this is also a matter in which we find Coleridge having to set aside his own published opinions to pursue goals set for him.

9. The presence of studded wheels on this Calesse suggests that Coleridge’s Bando had not fully succeeded by the late 1830s. Lithograph by C. de Brocktorff [1838].

  • 18 As the two Public Notices and the Proclamation concerning desertions from the Royal Malta Regiment (...)

27As we shall see, there is evidence that the Maltese were reluctant to inform upon their fellow citizens. Co-operation with the authorities, in their law enforcement activities, seems to have been problematic. A financial inducement to inform and give evidence may have been the only possible means of encouraging individuals to inform against their neighbours, and, even then, the required flow of information was not guaranteed.18 But this was not all. Whilst the prosecutorial decision, in any given case, remained one for the public authorities, which would provide some control upon the activities of informants who were obviously malicious or vexatious, it would not necessarily prevent all cases of injustice that might arise from untrue or exaggerated witness statements.

Proclamation of 8 March 180519 – the Excise Duties on Liquor and Wine

  • 19 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.
  • 20 See the taxation theme, below.

28Re-construction policies were also a feature of the later Bando of 8 March 1805. This concerned the re-introduction of an excise duty on liquor and wine. In order to make the tax more acceptable to the Maltese, Coleridge identified some of the purposes for which the revenue was to be raised. These included the reconstruction of the economy and certain infrastructure. Charitable institutions that were engaged in constructing buildings to be enjoyed by the public were identified as beneficiaries of public funding, no doubt because their work had popular support amongst the devout Maltese. This Proclamation is, however, more fully considered elsewhere.20

5.2. Distribution of Prize

Introduction

29In 1801, the British reversed their policy and decided not to award Maltese military personnel a share of the prize money arising from the capture of Valletta. This had, naturally, become a lingering cause of friction between the British and the Maltese. Following the intervention of the Secretary of State, there was a further volte face, but problems surrounding the authorised distribution remained unresolved by the time Coleridge held office. As we shall see, the payments occurred in two instalments, the first, in 1803, and the second, under Coleridge’s supervision, in 1805. From the Maltese point of view, even the revised terms of the 1805 distribution were disappointing because his Avviso still excluded many individuals from making a claim. Moreover, the British were later to overturn some claims that had been formally recognised as meritorious by Maltese officials. This added fuel to other grievances, such as the bad bread, trade competition, and the complaints over civil and political rights. Thus, the issue of prize money, which was, no doubt, intended to earn political capital and reward loyalty, added to the difficult political context that Ball and Coleridge had to administer.

Promises

  • 21 NAM LIBR A22 PS09 Maltese Corps Serving at the Surrender of Malta on 4 September 1800. The list na (...)
  • 22 Captain Ball’s list, ibid., recorded, for example, that the colonel of Birchicarra (sic) battalion (...)

30A brief account of how the British and their allies acquired Malta by means of a naval blockade and the landward siege of Valletta has been offered in Chapter 2 and Appendix 2. After Valletta eventually fell to the allied armies, Maltese military personnel were led to believe that they would be given a share in the bounty to be distributed to the victorious armies. To implement this, Major-General Pigot ordered Captain Ball (as he then was) to prepare a list of the Maltese military, of all ranks, who could qualify for reward.21 However, when he saw the list, Pigot changed his mind, which meant that, in the aftermath of the French capitulation, no prize money was actually paid. Pigot’s argument was that it would be difficult to allocate shares according to rank because rank, in the Maltese forces, depended upon social status rather than the number of men commanded.22 However, the argument overlooked the political damage inflicted by a breach of promise.

  • 23 The Maltese were excluded by the British from the negotiations for capitulation. As a result no pr (...)
  • 24 Ball to Dundas, 6 March 1801, Hardman, 344-5, Kew, CO 158/10/15.

31Ball, who was fully aware of hostile local sentiment regarding this and other aspects of British conduct both during the campaign and, in particular, in relation to the terms of capitulation,23 regarded the breach of faith as politically disastrous. He knew that there was also anger that the British had excluded the Maltese from the negotiation of the capitulation – an unwise decision that they would later have good reason to regret; and Pigot’s inconsistency would only fuel disillusionment with British occupation thereby making the peaceful, stable and long-term government of Malta problematic. Ball wrote to Dundas, the Secretary of State for War and the Colonies, warning of instability and urging that Pigot be overruled.24

32This letter is particularly interesting because it offers an unguarded insight into the conduct and bravery of the British army on Malta. Ball drew Dundas’ attention to the military achievements and hardiness of the Maltese soldiers. His powerful comparison between British conduct and that of the Maltese troops was intended to make the case that the Maltese were more deserving of reward than their British allies. Ball did not hesitate to point out that, when the British troops finally arrived to assist the Maltese insurgents, the British withdrew from the most dangerous positions and left them to be defended by the Maltese. The following statement, intended to emphasise the justice of the Maltese claim is revealing:

  • 25 Hardman, 345.

Another post was abandoned to the Maltese, because the British troops deserted from it to the enemy, and the Maltese, who were more to be trusted than our own troops, were the means of preventing our own troops from deserting, and actually arrested one of our own men close to the enemy’s works.25 (Emphasis added).

  • 26 See, for example, the ’Humble Representation of the Deputies of Malta and Gozo’ in October 1801, E (...)
  • 27 The Friend, 1, 544 n. and Table Talk, 1, 475, April 1834.

33Not only is this account a powerful and critical assessment of the contribution made by British land forces to the siege of Valletta, it also explains why the Maltese regarded themselves as having liberated themselves, with the British performing only an ”auxiliary” role.26 Ball’s openness is also worthy of comment because, at this time, Ball continued to serve as a captain in the Royal Navy (and had, by then, returned to his ship). Coleridge’s subsequent, later references to inter-service rivalry may, however, provide an interesting perspective on this apparent frankness.27

34As stated above, the British government in London eventually acceded to the representations made on behalf of the Maltese. An annotation made in 1803, to Captain Ball’s original list of beneficiaries, formally signalled that policy had changed and that Ball (who was by now Civil Commissioner) was to decide upon the entitlements of the individual officers and men.

The Distribution of Prize in 1803-1804

  • 28 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 321.
  • 29 LIBR/MS 431 1/3 Bandi 1800 AL 1803, 333.

35The new policy was first implemented when the Public Secretary, Alexander Macaulay, announced that a sum of £13,916. 13s. 4d was to be distributed amongst the Maltese who had served in the Maltese battalions. The criteria governing each claim were published in an official Notice (Avviso) dated 3 December 1803.28 These criteria caused significant popular confusion – perhaps even consternation and dissent – because Maltese civilians (as opposed to enlisted troops), who wrongly assumed that they would qualify, fell outside the scheme. To avoid widespread disappointment Macaulay had been forced to clarify the entitlements in a further Notice dated 11 December, 1803,29 but the damage had already been done. Expectations had been raised, and now the British were seen as having once more frustrated them. As we shall see, Coleridge broadly adopted the criteria of 11 December 1803, but with important refinements in relation to enlisted men that were intended to address some of the perceived injustices. Civilian franc tireurs were still excluded.

Controversy

36The difficult problem the British encountered was to establish eligibility criteria that would win public confidence without appearing to undermine the rules of war. It will be recalled that there had been a popular uprising against the French, which had, from the Maltese point of view, been supported by the wider community, many of whom had suffered considerably. Not least amongst these had been the citizens of Valletta who had been subjected to the severe privations of the blockade, which caused a large number of casualties. Freedom fighters, some of whom had been captured and shot by the French, had also shown bravery. Some civilians had taken part in the resistance by fulfilling ad hoc roles, for example in providing food, shelter or medical aid for soldiers; others may, for a short time, had been in battle and risked their lives. Yet others, including some priests, had performed important political or administrative roles. Some local leaders had served on Ball’s Council. Guerrilla forces had also participated in the uprising. These were, according to Macaulay’s Avviso, to be satisfied with the honour of having served their country, and could not expect a financial reward.

  • 30 Private citizens could only take enemy vessels as lawful prize on the high seas under the authorit (...)

37This blanket denial of entitlement to these individuals seems to have been a major cause of resentment. Even those who had, in the words of the Avviso, ”answered the call of the bells” and who went immediately to provide assistance to the military were excluded from the bounty. From the British point of view, the distinction between civilians and enlisted troops was probably necessary to avoid the legal and political complexities that might have arisen if the British had been seen to promote irregular forces.30 But, given the dangers they had encountered, in some cases shoulder to shoulder with the enlisted soldiers, the misunderstood decision to refuse them a share seemed to the Maltese to be arbitrary and harsh.

1803 Criteria

  • 31 5 September 1800.

38The 1803 rules essentially prescribed two categories of qualifying enlisted personnel eligible to present a claim for a share in the Prize. The first category comprised those who had been in ”full military service” at the time of the surrender of the City.31 The Notice of 11 December 1803 stated that this group included all battalion commanders, their officers, soldiers, quartermasters, doctors and surgeons, second mates and military chaplains. The claim by soldiers who had served prior to the fall of Valletta but who had left service before 5 September 1800 fell under a second, discretionary, category of entitlements, whilst those who joined at a late stage of the campaign would not have been eligible.

39This discretionary category allowed a claim by soldiers who, for legitimate reasons, had not been in service at the date of the surrender, provided that they fulfilled two conditions. The first, and potentially the most restrictive, was that each claimant (or their relatives in the case of the deceased) would have to demonstrate that the soldier in respect of whom the claim was made had ”distinguished themselves by their bravery in some venture” and that they had either been killed or wounded in combat or had suffered some ”involuntary accident” that had prevented their continued military service. In the case of the deceased, their families could present a claim. Those who left service ”voluntarily” were excluded.

40The authorities, clearly, had a certain discretion as to what degree of distinction and valour was required. It is not entirely clear whether merely taking part in the military venture – for example taking part in a battle – was, by itself, enough, or whether the claimant had to demonstrate that they had distinguished themselves by exceptional valour. This meant that the various Luogotenente (civil magistrates) could each make their own judgements on the facts of each case with all the attendant risks of arbitrariness or unfairness. This was likely to have been one of the main causes of friction between the disappointed claimants and the authorities.

41The second category was obviously intended to make clear that deserters were not to be rewarded.

Role of Luogotenente

42The 1803 scheme also made it clear that the Public Secretary was unwilling to interest himself in the minutiae of claims. Macaulay emphasised that the Luogotenente had been especially authorised to resolve the claims, and that the claimants were not to apply to the Secretariat. The problem was that the trust placed in the Luogotenente ipso facto removed control over the outcomes of claims from the senior officials of the British administration. This may have been something that the authorities later regretted because the decisions of the Luogotenente did not placate certain disgruntled Maltese.

43Although the 1803 Avviso does not make it explicit, the amount actually received by any entitled person would have been determined by their rank in military service. This was another area of policy that Coleridge’s Notice re-considered.

Coleridge’s ”Prize” Avvisi of 8 March 180532 and 19 August 180533

  • 32 NLM LIBR/MS 430 2/2 Bandi1805 AL 1814, 3.
  • 33 NLM LIBR/MS 430 2/2 Bandi1805 AL 1814, 20.
  • 34 Caruana, Introduction.

44In 1805, by which time Coleridge had replaced Macaulay as Public Secretary, the bounty was £22,703.0s.6d.34 Coleridge issued a Public Notice dated 8 March 1805 to explain how the claims would be managed. This depended upon the category of claimant.

  • 35 See the discussion of the excise duties in Chapters 2 and 5, particularly, the taxation theme, in (...)
  • 36 Sultana, 300.

45For those who had been successful under the 1803 scheme, the claims would be paid on the spot by the local Luogotenente on 10 March 1805. This was because the claims had, in effect, already been verified in 1803. For undisclosed reasons, the timescale was very short because Coleridge gave just two day’s notice to the claimants. Why this was done is unclear, although it suggests that the Administration wanted to act as quickly as possible. Perhaps the urgent action was intended to offset, as quickly as possible, the political fallout from the excise duties, which had been passed into law that same day (8 March 1805). If so, this is suggestive of the nervousness in the Administration at this critical juncture.35 Sultana suggests that the simultaneous promulgation of these two measures was hardly coincidental;36 and we can, reasonably, infer that the timing of the announcement of the distribution of Prize was also influenced by pressing public relations concerns.

  • 37 Although, as mentioned below, the Maltese Constitution gave the Maltese a right to petition the Ci (...)

46For other claimants – those ”unjustly excluded” in 1803 – there was to be a two stage process. The claimants – in effect appellants – were to have their claims re-considered and, if successful, certified by the Luogotenente within one month of 10 March (i.e. until 9 April 1805). After that date, no further avenue of redress was available.37 Once a claim had been certified, it would mean prima facie eligibility for payment. Coleridge issued a further notice, dated 19 August 1805, to inform the successful appellants, whose claims had now been authorised, how to receive payment. As the claimants were to discover, payment was not to be automatic; in other words, the officials of the Secretariat would not honour all certified claims. This would prove to be a further cause of grievances.

Eligibility in 1805

  • 38 They had to establish that they had left due to some ”involuntary accident”, which potentially inc (...)

47Coleridge re-shaped the eligibility criteria, for the 1805 award, by removing the requirement that the enlisted man must either have been in service at the date of the surrender or have been killed or wounded during a distinguished military service. In his distribution, no distinction was to be drawn between those who had served for a short period of time, but who had left their battalion prior to the surrender, and those who were still enlisted on 5 September 1800. This important revision enlarged the categories of enlisted man entitled to make a claim. It removed the injustice of excluding (i) those who had genuine reasons other than being wounded to leave military service before the campaign had concluded, and (ii) those who had suffered disabling wounds who had not shown particularly distinguished bravery during their service. Its real significance was, of course, that it removed much of the discretion from the Luogotenente. A soldier wounded in action would, ipso facto, have a good claim to the 1805 instalment without the Luogotenente having to determine what constituted distinguished bravery. Moreover, the Luogotenente could consider claims by others who had neither been in service at the capitulation nor wounded ”out”.38

48However, Coleridge also added, somewhat confusingly, that claims could only be paid to those who had been judged worthy of a payment in the 1803 award. This is confusing, since the rules had obviously changed. It is either an example of a lack of clarity in drafting or a deliberate attempt to mask a further embarrassing volte face in respect of the prize money undertaken in response to public pressure. The essential point, for those interested in Coleridge’s work, is that the drafting of the Avviso was not a model of clarity and reveals either a lack of skill or care.

49However, Coleridge’s intention was not to give the new rules retrospective effect. In other words, whilst every killed or wounded soldier not in service on 5 September 1800 (or those who left the campaign for other good reasons) could claim a share of the second instalment, only those with a distinguished service record could appeal successfully against the refusal to pay them in 1803. In practice, this meant that some wounded soldiers not in service at the capitulation might qualify for a share of the second instalment but not the first. From the Maltese point of view this must have seemed incoherent. Either their service merited a reward or it did not. An entitlement to one instalment but not another was, from their standpoint, simply bizarre.

50From the British perspective, there were, probably, reasons to view the matter differently. Coleridge was, probably, unable to undo the damage of the 1803 rules by granting a share of the first instalment to those who had genuine reasons for leaving service before the fall of Valletta. First, the prize money available to meet the 1803 claims had been distributed and, as we have seen, the finances of the Island in the spring of 1805 were too frail to draw upon money from general public funds. This was the reason for the wine duty enacted that very day. Moreover, there may also have been a reluctance, on Ball’s part, to admit that he and Macaulay had made an error of judgement; but this is merely speculation.

Maltese Officials

  • 39 Although there were exceptions. The Civil Commissioner retained the power to licence premises reta (...)
  • 40 The Friend, 2, 569.

51As in 1803, claimants and appellants alike were required to present themselves to their local Luogotenente with documentary evidence to support either their claims or appeals respectively. These arrangements are worthy of comment because they reveal that, like Ball, Coleridge was generally willing to trust Maltese public officials.39 They also align with comments Coleridge later ventured in The Friend.40 At this time (March 1805) he clearly had faith that the Luogotenente would make an appropriate assessment of the appeals and would not indulge in arbitrariness or unfairness. This might have been unduly optimistic because, as we shall see, there is some suggestion that the Luogotenente did not assess the appellant’s service records as carefully as they should have done. Interestingly, this experience of their collusive or fraudulent conduct did not persuade Coleridge to qualify his remarks upon the wisdom of Ball’s policy of relying upon Maltese appointments, which he supported in order to extend British influence.

Amount of Bounty

52The 1805 scheme made the further reform that there would only be two levels of award. The distinction between the higher and lower sums awarded was made according to the military rank of the recipient. The first category included officers and non-commissioned officers of the rank of sergeant or above, and, the second, soldiers below those ranks – that is corporals and enlisted soldiers. The Avviso does not disclose the actual sums paid to each grade.

Reasons and Transparency

53Coleridge’s Avviso of 8 March 1805 infers that the authorities were required to give reasons to disappointed claimants who asked for them. The evidence of this can be located in the final paragraph of the Avviso which states that after 9 April 1805 no request for any reason would be provided.

54This is interesting because it means that the Luogotenente were not only required to have relevant, lawful, reasons for reaching their decisions, but that these had to be communicated to a disappointed claimant who requested an explanation. This was most likely to arise in the case of the appellants because the Luogotenente had the power to grant or withhold the certificates according to the evidence of service records presented to them.

55By imposing this duty of transparency, Coleridge recognised a value in open government and administrative candour. Generally, administrators understand that if reasons are given it is more likely that these would not only have been properly thought out but that they would withstand public scrutiny. The Luogotenente would have to make sure that each case was properly assessed, and this would give assurance to the claimants that their claim had been properly considered and that the appropriate rules had been duly applied. This would help in avoiding any possible perception of unfairness or arbitrariness. In other words, Coleridge seems to have understood that the giving of reasons made decisions more acceptable by emphasising their rationality. He clearly hoped that a properly reasoned refusal would extinguish some of the anger that surrounded the 1803 bounty.

56The resulting exposure of any faults in the decision-making process could also underpin a right of appeal, although in the case of the 1803 appellants and the 1805 claimants this would be only to the Segnatura.

Appeals and the Controversial Administration of Claims

57As mentioned above, the second of Coleridge’s ”prize” Avvisi, dated 19 August 1805, invited the successful appellants (who were, by then, in possession of ”certified” claims) to attend the Secretariat, between 22 and 29 August 1805, to collect their share of the 1803 distribution, after which no further claim would be met. The critical burden was that the claimants had to present their certificates when making a claim. This was an obvious safeguard, but the reliance upon the certificate, to identify the genuine claims, seems to have failed.

  • 41 See NAM LIBR 43/11, Registro de memoriali decretati da sua Excellenza il Sig. Cavalier Alessandro (...)

58This is so because certain appellants whose appeals had been upheld and certified by the Luogotenente, in March 1805, were later turned away by officials at the Public Secretary’s office, perhaps even by Coleridge himself (although Ball was blamed). Clearly, the British were not convinced that the certification process had worked as it should have done. The refusal of certified claims caused significant anger, and was used as further ammunition to undermine Ball. The refusals provoked a flurry of angry petitions that were heard by the Segnatgura on 29 August 1805. These were mostly claims brought by civilians who had taken part in the uprising in the Maltese countryside. All twenty-one petitions were rejected, although another petition that was heard a few days later was successful.41

  • 42 Anonymous letter passed by Eton to Windham enclosed in a letter dated 11 October 1806, Kew, CO 158 (...)

59The politically-sensitive allegations, that Ball (or Coleridge) was denying claims certified to be meritorious, emerged in an anonymous letter of complaint about Ball’s administration that was sent to Eton, Ball’s main political rival, who forwarded it to the Secretary of State in 1806. It contains a significant passage relating to the Prize distributions: ”They (the Maltese) complain of his (i.e. Ball) having under false pretences taken from the meritorious certificates of their services during the siege”.42

  • 43 Ball’s rebuttal survives: Ball to Windham, 28 February 1807 Kew, CO 158/13/64.

60The reference by the complainant to ”false pretences” is particularly suggestive of a decision that resulted from an abuse of power. This was a damaging allegation. It was a matter that the Secretary of State took up with Ball who, eventually, denied that he had acted improperly; but there seems little doubt that some Maltese were frustrated, as the petitions to the Segnatura revealed.43

61The reasons why the Administration did not honour some of the certificates is unclear. One possibility is that either the Public Secretary or his staff suspected collusion between the Luogotenente and the claimant. If so, this does resonate with other administrative contexts (such as the military bounty) where some Maltese cynically attempted to make the most of every opportunity to obtain money from the British. Similar suspicions later surrounded the Università. Whatever the reason, the adverse decisions in relation to the controversial certificates caused political damage.

Appeals and the 1805 Instalment

62Coleridge’s Notice did not allow for an appeal by any person who was unjustly refused their share of the second, 1805, bounty. Appellate rights were only given to those unjustly excluded from the 1803 award. The failure to provide a similar right in 1805 is puzzling. Coleridge must have been confident that the decisions of the Luogotenente could not be controversial; after all, they were, in most cases, simply paying money to individuals whose claims to the first instalment had been officially recognised in 1803 and this recognition triggered the entitlement to the 1805 award. However, Coleridge clearly overlooked the possibility that problems might arise when the certificates were presented to the Secretariat for payment. He may, also, have overlooked the likelihood that the 1805 award would re-ignite resentment of those denied in 1803. These numerous individuals could be predicted to re-state their grievances; and this is what, indeed, occurred.

63However, in Coleridge’s defence it can be argued that an explicit right of appeal was not strictly necessary. Coleridge knew very well that any aggrieved individual would petition the Civil Commissioner via the Segnatura and this was the avenue that the disgruntled Maltese vigorously pursued.

Further Grievances

  • 44 Some were referred to other officials better placed to determine their merits: see e.g., Michele a (...)

64As matters turned out, a torrent of petitions from dissatisfied claimants went up to the Segnatura for further adjudication. Dozens of these cases fell to be decided after 22 March 1805; and some were still being presented as late as mid May 1805. Most were summarily rejected.44 The significant number of unsuccessful petitions signalled that, in a number of ways, Coleridge’s revised scheme had not succeeded. Very large numbers of Maltese remained dissatisfied; and his desire to get the matter resolved quickly (evident in the rule providing for only two days to present a claim) had also backfired. The final cases were being adjudicated almost at the moment when the anti- Semitic disturbances erupted, which suggests that the administration had not fully resolved the grievances of the disappointed claimants before the next problem followed upon its heels.

65But, even those cases were not the end of the matter because, as we have seen, further petitions were stimulated by the denial of certified claims in late August 1805, which meant that the grievances over the prize money simmered for almost six months from the date of Coleridge’s Avviso of 8 March 1805.

Conclusion

66The question of rewarding the Maltese with a share of the bounty had been incompetently handled from the moment Pigot reneged on a promise to make a payment. Once that decision had been overruled, the 1803 scheme had failed to win the support of the Maltese. Coleridge, later, found himself charged with addressing problems that were not of his own making and, of course, turning the tide of hostile public opinion.

  • 45 The Friend, 2, 552.

67Coleridge perhaps achieved as much as he could within the political constraints within which he found himself. His insistences that the decisions of the Luogotenente should be fully reasoned and that the reasons should be communicated to those who asked for them reveal Coleridge’s concern for transparency and open government. It introduced into practical politics some of the qualities of Ball’s administration, and, not least, the emphasis upon rational, evidence-led decision-making that Coleridge most admired.45

68Coleridge’s reforms were not well drafted, because the criteria were not always as clearly expressed as he might have intended. Moreover, they were not sufficiently bold to cure the political damage. Perhaps Coleridge should not be blamed for this outcome because Ball, rather than Coleridge, would have been the final decision-maker, albeit that Coleridge would have been consulted.

69The very large numbers of disgruntled Maltese who took their cases to the Segnatura meant that the administration had not won the argument. Since almost all petitions were, unsurprisingly, rejected by Ball it is evident that a significant number of those who took part in the uprising resented their treatment. The rejection of claims, which they saw as justified, meant that a large number of Maltese continued to feel anger against and betrayal by the British. In summary, the initiative, intended in part, to deflect criticism of the excise duties, was exploited by Maltese nationalists to inflame dissent and widen support for the broader agenda of having Ball removed from office. The episode was critical in undermining confidence in the British administration at a challenging time. The importance of this should not be overlooked because it is part of the difficult political environment that Coleridge had to address in his careful efforts to win back public support.

5.3. Taxation46

Introduction

  • 47 See e.g. the Proclamation of 15 July 1801, NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 204.

70As we have described, the timing of the distribution of prize money was intended to deflect criticism from the Administration at a time when it had decided to increase taxation. There were many political and some legal reasons why the British administration, reluctantly, imposed excise duties when other preferences, such as cost-cutting, had been exhausted. The political reasons for Ball’s hesitation were rooted in internal dangers to Malta, as a new British possession, if the Government became unpopular; and legal objections arose because of the, perceived, constraints of the Maltese Constitution. These restraints – albeit weak ones – were buttressed by a significant, but ill-defined, formal promise that had been made to Maltese people in 1801 by the first British Civil Commissioner.47 Two of Coleridge’s Bandi are either concerned with or shaped by the politics of taxation.

  • 48 NLM LIBR/MS 430 1/2 Bandi 1790 AL 1805.
  • 49 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

71As we have earlier described, Coleridge’s first Bando of 29 January 180548 was imposed to reduce the need for costly repairs to the highway. By preventing the damage caused by the studded wheels, and by requiring new wheels to be made according to an approved pattern, less damage would be done and (at least in the long term) the expenditure on highways could be reduced. This Bando was, thus, concerned with reducing the demand for publicly-funded expenditure. The Bando of 8 March 180549 was concerned with raising funds from direct taxation.

Ball’s Political Agenda

  • 50 Ball’s Memorandum to Dundas of 26 December 1800, Kew, CO 158/1/12-25, assured ministers that Malta (...)
  • 51 Ibid., 131: the ”general distress” caused by the economic collapse of 1800 ”has already ceased”. T (...)

72By the spring of 1805 Ball had recognised that increased taxation was necessary if the Island’s financial deficit was to be eliminated. He had already, formally, assured ministers that achieving a balanced budget was possible; and his financial strategy gave him confidence that this would shortly be achieved.50 He had observed a significant improvement in economic conditions, evidenced by rising wages and increased private wealth, which meant that some increased taxation would not, unduly, suppress demand.51

  • 52 He estimated that the duty on wine and spirits would raise a surplus (after the sums for the relie (...)

73Ball’s despatches to London reveal that the proposed duties underpinned his ambition that the Island should be retained as a British possession. When added to the revenue that Ball expected to generate, by speculating upon grain, he forecast that the duties would remedy the Island’s financial deficit and, thus, make Malta a more attractive proposition to British ministers.52

  • 53 See Chapter 2.
  • 54 See Cameron’s Instructions of 14 May 1801, Hardman, 350, and, more generally, Chapter 2, above.

74We have described elsewhere53 the economic strait–jacket into which Ball’s enthusiasm for Malta placed him. If British ministers were to be persuaded to retain it as a possession of the Crown, the Island could not be a burden on the British taxpayer – as ministers repeatedly made clear.54 On the other hand, the British, in their continuation strategy, which necessarily meant generous public expenditure, had encouraged Maltese expectations of benign welfarism. These highly-expensive policies were problematic because the confiscation of the assets of the Order of St John, in 1792, and the resulting collapse of the Island’s revenues, meant that the Island’s public expenditure could not be sustained without additional sources of revenue. In addition, the damaged infrastructure, the enormous costs of repairs (for example to the roads and public buildings), the cost of unemployment and a collapsed economy, all placed burdens upon the State in the years after 1800.

  • 55 This was actually a re-introduction of the wine tax because the Jurats of the Università had faile (...)

75Thus, in the Proclamation of 8 March 1805 Coleridge re-introduced an excise duty on the importation of wines and imposed a further new excise duty on spirits.55 When taken with the projected profits accruing to government from the grain monopoly, these duties were expected to generate sufficient funds to produce a balanced budget.

The Political and Constitutional Problems of Taxation

  • 56 See De Bono.

76Although wine dealers had been liable to pay excise duty on wine imports under the ancien regime,56 Ball was known to be extremely nervous about the imposition of new duties, (in this case on spirits) not least because their likely unpopularity would lead to a collapse in confidence in British rule. This political priority collided, however, with the British Imperial imperative that the Island should not impose continuing burdens upon the British taxpayer.

  • 57 The tax would no longer be levied once its purpose had been achieved: see Report of Royal Commissi (...)
  • 58 See Ball to Camden, above n. 50.
  • 59 NLM LIBR/MS 430 ½.
  • 60 See the Report of the Royal Commission, 1812, Kew, CO 158/19.
  • 61 See Chapter 3.

77Regular taxation was almost unknown to the Maltese (who had been accustomed to ad hoc taxes designed to raise funds for particular, identified, purposes, including the repair of the road network).57 Every Grandmaster had taken office subject to an oath not to impose new taxes, which was perceived by the British civil government as having created a constitutional right, in the Maltese, not to be regularly taxed.58 To their eventual consternation, the British had, unwittingly, reinforced this inconvenient constitutional entitlement by their own actions. This had occurred in the famous Proclamation of 15 July 1801,59 in which the new British civil administration had promised to respect the rights, property and freedom of the Maltese. When taken with the other aspects of the Maltese system, this was thought to require that the British uphold a constitutional restriction upon the powers of the government to impose new, permanent, taxes.60 However, as we have described, it is unlikely that these constitutional restraints could have been judicially enforced,61 although this weakness seems not to have been discussed within the British administration.

78As said, in so far as the Proclamation imposed a duty on imported wine, Coleridge and Ball could present an argument for the constitutional legitimacy of their action, because there had been a precedent for placing a duty on wine in the time of the Order of St John. Less certain, was the duty to be imposed on spirits.

  • 62 See e.g. Ball to Cooke, 3 February 1805, Kew, CO 158/10/128.
  • 63 As described in Chapter 2, Thornton reported that the mission resulted in the greatest loss that t (...)

79As his despatches to London reveal, Ball was aware of this problem and would, naturally, have been nervous about it.62 Despite this, he had no alternative to increasing taxation. Even if Chapman’s corn mission were fully successful, only two thirds of the income required would be raised.63 Of course, the mission eventually failed, but, in March 1805, Ball was still able to assume that it would generate the projected surplus to supplement the general revenues of government.

  • 64 It should not be forgotten that within a few weeks, significant numbers of Maltese rose up against (...)

80Early 1805 was, thus, a critical period in the life of Ball’s administration. Ball had to increase taxation, but he knew that the risks of appearing to renege on a promise to the Maltese would exacerbate a situation that was becoming inflammable.64 This explains why Coleridge was forced to make the political case for the need to raise revenue by enumerating various classes of deserving beneficiaries who would receive government aid by virtue of the new duties. Their needs were, thus, held up by the British to make the case for the new duties. But the British agenda was much wider than their needs, and if this were known, the Maltese were less likely to accept the new duty.

Persuading the Maltese

81It is important to emphasise just how important Coleridge’s propaganda was in persuading the Maltese to accept the excise duties. Coleridge drafted the Proclamation with considerable astuteness, clearly responsive to the sensitive context of the measure. He and Ball had, clearly, determined that the popularity of the identified beneficiaries, which Coleridge would emphasise, and the unpopularity of alternative policies, would, together, make a persuasive political case for the new tax.

  • 65 Albeit that he would also endeavour to make provision for the deserving causes. Nevertheless, thes (...)
  • 66 This sum can be deduced from Ball’s prediction that, when combined with the £20,000 from the corn (...)

82As in Coleridge’s first Bando, the unusual efforts undertaken to give reasons for the decision are interesting. In essence, Coleridge’s technique was to over-play one of Ball’s subordinate motives for introducing the duties, and, for political reasons, entirely suppress the dominant motive. He was to suggest to the Maltese that additional revenue was necessary to provide for certain identified deserving causes (and no others). In other words, he was suggesting that Ball sought to achieve increases in public spending. In contrast, the Civil Commissioner’s true priority was to impose the new taxes to help him meet existing expenditure.65 This was so because the duties were planned to raise about £10,000 per annum66 – more than would be required to fund the explicitly stated aims of assisting the poor families, raising public sector salaries and so on. The difference, between what was represented to the Maltese and what was intended by government, is significant; and the priority given to the latter partly explains why there were no binding commitments to fund the deserving causes. The claims of the British Treasury would come first.

83This deliberate and careful obfuscation reveals something about Coleridge’s controversial approach to the business of practical politics. He can be seen to have collaborated with Ball in ensuring that public goods could be delivered outside of the constitutional framework. Even if the Maltese constitutional norms were judicially unenforceable vis a vis the Civil Commissioner, they nonetheless existed and they prescribed the constitutionally-permitted boundaries of governmental action. In other words, Coleridge seems to have been compelled by Ball to accept that adherence to the Rule of Law was not always in the public interest and that government could sometimes only succeed if it was prepared to do what was expedient, even if it were unconstitutional.

  • 67 Ball to Dundas, Kew, CO 158/1/12-25; See further, Chapter 2.

84Such conduct also reveals the extent to which Ball’s government felt justified in pursuing a controversial conception of the public interest notwithstanding legal and constitutional impediments. Had Ball respected the legal (albeit unenforceable) limitations upon his administration’s powers, he would have been compelled to inform London that the Island’s deficit could only be resolved with the continuing support of the British taxpayer. This would have been a disaster for his reputation, not least because London’s (mis)understanding of the financial state of the Island had originated in Ball’s own Memorandum of 26 December 1800.67

  • 68 See e.g. CN 2, 2412 and CN 2, 2413.

85Moreover, the Proclamation of 8 March 1805 revealed how far he and Coleridge were prepared to go to fulfil Ball’s obligations to Camden, the Secretary of State. This was one of the morally-complex challenges that practical politics presented to Coleridge. As we shall see in Chapter 6, the outcome in this instrument marks a very different approach from that he advocated, so powerfully, in his political journalism in England. It raised questions about the moral legitimacy of governmental action, which, for Coleridge, now became a troublesome dilemma revealed to us in his private Notebooks.68

Further Propaganda

86The preamble to the wine Proclamation impressed upon the Maltese the Civil Commissioner’s concern for the well-being of the inhabitants; and it served to remind them of the costly policies Ball has pursued to secure their welfare. Coleridge recalled the reform of the courts, the continuing public works projects, the revival of the institutions such as the Monte di Pietà, the hospitals, almshouses, the orphanage and the monthly payments under the welfare scheme for the relief of poverty.

  • 69 Eton to Sullivan, Kew, CO 158/2/308.
  • 70 Each of these policy goals was favoured by the Royal Commission: Kew, CO 158/19.

87Coleridge emphasised that the raising of revenue was not a matter of choice but of necessity. Ball, he explained, had been confronted by alternative means of achieving this: either to raise the cost of grain supplied by the Università, or to impose this excise duty. Some officials, including Eton, had favoured raising the price of grain in order to replace the lost capital.69 No doubt, Ball wanted to court popularity by signalling to the inhabitants that he had not chosen to tax a staple foodstuff. The moral justification for placing duties on alcohol consumption was more easily understood because Ball could be seen to be discouraging a vice, as well as burdening the drinking habits of foreigners in preference to those of the Maltese70.

  • 71 Because of the political and legal sensitivity of this measure, Ball had consulted widely prior to (...)
  • 72 E.g. a Bando of 18 October 1802, NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 273 to restrain the abus (...)

88Coleridge stated that, subject to sufficient revenue becoming available, the intended spending priorities were: the alleviation of the financial hardship of certain private individuals whose income had been reduced, following the appropriation by the French of the capital they had deposited in the Bank of the Università; the increase in salary of deserving civil servants; and financial aid to the charitable institutions (which included the hospitals, the orphanage, and the Office of the Grand Almoner) giving priority to those institutions that were constructing publicly useful buildings. Coleridge also emphasised that the economic incentive, established by the duties, was an incentive to alter behaviour, most notably the reduction of excessive alcohol consumption.71 As we shall see, alcohol-fuelled violence, especially in the taverns, was causing disquiet on Malta, and had attracted other interventions from the British authorities.72 Controlling abuse of spirits was also high on Ball’s agenda.

  • 73 It is unlikely that Coleridge would have regarded the few English persons on the Island as ”foreig (...)
  • 74 See further Public Order and Crime, below.

89For good measure, this list was reinforced by exploiting the simmering dislike of foreigners on the Island73 who, as Coleridge seemed eager to point out, would be the most likely to bear, indirectly through consequential retail price increases, the burden of the new duties. It is typical of Coleridge that he appealed to reason in this way; but the explicit exploitation of the Maltese attitude to foreigners is a concern. Its explicit ”targeting” of the duties, borne most heavily by foreigners, might have unwittingly suggested an official policy that foreigners were somehow less deserving than the Maltese. If so, Coleridge’s language in this Bando may, unintentionally, have provided an unfortunate context given the anti-Semitic unrest that broke out in May 1805.74

Protecting Poor Families and Raising Salaries

90Pre-eminent amongst the deserving causes that Coleridge identified, and given the most emphasis in the Proclamation, was the protection of certain poor families.

91The issue, in this instance, was that the assets of the Università, including the capital sums placed on deposit by the inhabitants, had been looted and carried off by the French during their occupation. This had given rise to a major grievance amongst the Maltese because of an unfortunate gesture by the British military.

  • 75 The arrangements for the capitulation gave rise to a long term grievance amongst the Maltese: see (...)
  • 76 Although by Article 5 of the Articles of Capitulation the French Generals had given an undertaking (...)

92The problem originated in the exclusion of Maltese officers from the negotiations for the French surrender almost five years earlier.75 The Maltese had understood that the French had offered hostages as a security to ensure that the sums taken from the Università, and elsewhere, would be reimbursed. The British military, who were, perhaps, concerned with upholding military customs, failed to make any provision for this in the surrender articles. The French officers were allowed to leave Malta with their ”private property” (some of it looted from the Maltese) which was, conveniently, carried to French ports on British transports.76 This regrettable miscalculation resulted in financial misery for a number of Maltese who lived off the interest paid on the capital that they had deposited in the Università. For those dependent upon these interest payments, the economic bedrock of their lives had been destroyed. The Maltese naturally blamed the British administration for the negligence of their military.

93We can also note, en passant, that a further consequence of this theft had been that the Maltese, after 1800, were no longer prepared to invest their remaining savings in the Bank of the Università. Ball had been compelled to obtain funds from the British Treasury to underwrite it. Whilst this was a necessary step, it was not sufficient to restore the status quo, ante the French invasion. The Bank had to be able to draw upon the private capital of the Island, which meant that risk-averse potential depositors had to be assured that their funds would be safe.

  • 77 See Eton to Sullivan, Kew, CO 158/2/308.
  • 78 Thornton, above n. 63, and Chapter 2, Kew, CO 163/33/25-6. Appendix 9 of Thornton’s Report contain (...)
  • 79 Ibid.

94The British had underwritten the Bank by investing about £100,000 to restore its credit,77 and by 1804 it was considered possible to invite the deposit of new private capital. On 7 March 1804 Ball issued a Public Notice authorising the Bank to receive deposits and authorising the payment of interest of 3 % thereon.78 This initiative succeeded in attracting deposits in excess of 925,000 scudi 79 repayable on demand. Interest was paid on these deposits until 20 March 1805 at which time the interest on them was declared to have ceased.

95This was, of course, aimed at attracting new investment. It did nothing to address the plight of those whose capital had been taken by the French.

96Ball had received petitions requesting him to take steps to deal equitably with the affected individuals and, eventually, had little choice but to alleviate their distress. However, as we have seen, there may be more than a hint of opportunism in Coleridge’s Proclamation. Both Ball and Coleridge were prepared to deploy the justice of the claims of the poor (and those of other good causes) to persuade the Maltese to accept the excise duties – and, thus, the increased retail price rises – that would raise significantly more revenue than the meeting of these claims would require.

  • 80 Maitland to Bathurst, 24 October 1814, Kew, CO 158/25/209, et seq., in which he reports that the s (...)
  • 81 Significantly, this only amounted to £71 19s 6d per annum: see Macaulay to Ball, 10 September 1804 (...)

97The poor families were not, of course, the only intended beneficiaries. Ball took the opportunity to use some of the revenue raised for other (presumably popular) public purposes. As we have seen, public sector salaries were so low that some, albeit not many, employees boosted their income by diverting public funds, or as Maitland, the first British Governor called it, by drawing ”unfair perquisites”.80 Ball had identified low salaries as a problem and now wished to provide targeted salary increases to ”deserving” public employees. As we have seen, this included, in 1805, salary incentives for the President of the hospitals.81

98Increasing public sector pay was a necessary reform, but it seems that the strategy was not vigorously pursued at an operational level because the problem of low pay, particularly amongst the more numerous junior staff (and the illegitimate ”perquisites”) was left to Maitland to address in 1814. Money continued to be diverted, and false entries made in the accounts. Inadequate remuneration may have been one reason for this corruption. Certainly, it remained an issue during Ball’s administration: and the failure to use the money raised by the wine duty to solve this problem reveals the extent to which Ball had his eye on the priority of placating British ministers by reducing the Island’s deficit.

The Operation of the Duties

99The duties on wine and spirits were a tax on importation, rather than consumption. This meant that the home-produced wine and spirits would not be subject to duty, which signalled that it could achieve a competitive advantage over imported products. This economic policy may have been intended to extend the benefits of a reviving economy from Valletta to the rural areas – wine production having increased during and since the days of the Order.

100In relation to the duty on spirits, the Proclamation imposed a duty levied according to volume, which was, thus, a tax on consumption. As we shall see, this was consonant with Ball’s policy of regulating the consumption of spirits, not least to prevent drunken violence by British soldiers.

101The Proclamation imposed a duty of six tari per barrel on all wine, regardless of its nature or quality, and thirty tari per barrel on spirits, the duty to be collected by the Università. Since there were no exemptions from the duty, it was a relatively simple tax to administer. The penalty for evasion was the confiscation of the entire quantity of wine or spirits on which the duty had not been paid.

102The Proclamation was careful to avoid commitments as to the detailed manner in which funds would be allocated. Ostensibly, this was so because the Administration was not in a position to forecast how much additional expenditure could be afforded until it was clear what revenue would be raised. At one level, this is unsurprising. It would have been highly unusual for any Administration to commit itself, in advance, to how money raised from taxation would be spent. But, as we have seen, Ball would have wanted to give himself a means of avoiding apparent commitments to future, additional, spending in order to disguise the problem that the revenue was needed to meet existing spending requirements. To have made binding commitments of significant, additional, expenditure would have frustrated this ultimate and overarching goal. If the Island was to remain a British possession, giving it a dominant military and commercial position in the central and eastern Mediterranean, the current account deficit had to be eliminated.

Outcomes

103Although ultimately effective in raising revenue, the wine duty Proclamation proved to be controversial and problematic. The principal concern was that the instrument created wider expectations than those that the British were prepared to honour. This problem began an unresolved controversy that was to last into the twentieth century. The refusal to meet these expectations is further suggestive of the extent to which Ball’s true agenda prioritised British rather than Maltese concerns.

  • 82 See Eton to Sullivan, above n. 77, 308 et seq.

104It will be recalled that the private investors in the Università were not the only ones to lose significant sums as a result of the French predations. The religious institutions, such as the convents, had also lost their deposits and other property. They had formerly received interest at a rate of 3% on their deposits, but this had ceased.82 Coleridge provided as follows:

His Excellency therefore wishes to advise, that it is his intention is to pay all individual owners of capital tied up in the bank of the above mentioned university, interest on their money at the rate of thirty tarì for every hundred. (Emphasis added).

105In contrast, the religious foundations were only given a vague promise that help would be forthcoming – when it could be afforded. Coleridge made this clear as follows:

As soon as he is able, His Excellency shall not neglect to give the necessary help to places of worship, and to religious foundations.

106This careful language, as well as subsequent events, revealed that Ball was not concerned with assuming a British responsibility for making restitution to all those who had suffered loss at the hands of the French; apart from addressing the deficit, his subordinate policy was essentially to moderate individual hardship.

  • 83 Kew, CO 158/19.

107However, the religious institutions were, subsequently, to argue that by paying interest on the capital, the British had acknowledged the debt owed to all those, including themselves, who had formerly had capital deposited in the Bank. The 1812 Royal Commission had also concluded that, by its conduct, Britain had assumed responsibility for a large debt, so the charitable institutions’ case was not completely unsupported.83

  • 84 Bonnici.

108Their case was not, however, to succeed. By the terms of a Treaty of 25 April 1818, the French were to be compelled to compensate British subjects who had suffered loss as a result of their actions. The private individuals amongst the Maltese, who had been amongst the first victims of the War, eventually received compensation, but this entitlement did not extend to the Maltese religious institutions. These were compelled to pursue their claims by diplomatic means, arguing, unsuccessfully, that the responsibility make restitution lay with the British government.84 The funds lost were never recovered.

Conclusion

  • 85 Ibid.

109Ball’s general approach to tax policy was vindicated by the Report of the Royal Commission in 1812.85 It concurred in the view that any reversal of policy, so as to impose taxes (by which it meant those which did not have popular support), would have caused distrust and, worse still, would have led to renewed calls for a representative assembly constituted as a Consiglio Popolare. It had concluded that Ball had succeeded in winning popular support for the measures he introduced, and this, in part, reflects Coleridge’s skilled manipulation of government information.

Table 2: Revenue raised by the duties imposed by the Proclamation of 8 March 1805

Table 2: Revenue raised by the duties imposed by the Proclamation of 8 March 1805

110Source: Report to His Excellency the Governor on the Accounts of the University of Valletta from 4th September 1800-31st December 1814 by W. Thornton dated 12 July 1816, Kew, CO 163/33

5.4. Public Order and Crime

The Problem of Crime and Public Order on Malta 1800-180686

  • 86 See generally, Galea.
  • 87 Major-General Pigot was in charge of a military administration of Malta from 5 September 1800 unti (...)
  • 88 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 156.
  • 89 The Friend, 1, 567; see also Chapter 2.

111The crime rate, whether against persons or property, appears to have increased from the onset of British rule in 1800. As early as 3 December 1800, Major-General Pigot’s administration87 issued a Proclamation targeting ”vagabonds” and ”layabouts”,88 which meant persons without visible or verifiable legitimate means of support. These people were to be placed under supervision, questioned about their means and (if they lacked an income) given a maximum period in which to find employment. Should they not have succeeded in this, they risked permanent exile. If this Proclamation had been strictly enforced, exile must have been the fate of many unfortunate Maltese because the economy, at this time, was in ruins: unemployment, hunger, poverty and associated problems were evidence of a major social and economic crisis – as Coleridge later recalled in The Friend.89 However, it can be noted that, at this time (1800-1801), the authorities seem to have attributed the rising number of thefts to idle Maltese rather than to immigrants.

  • 90 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 205.

112Immigration increased and, with it, the competition for scarce jobs during the economic slump that followed the liberation. Maltese resentment was made worse by the belief, amongst the foreigners, that they were not subject to Maltese law. Alexander Macaulay, in his capacity as Public Secretary, intervened to clarify their obligations in a Public Notice dated 23 July 1801.90 This was intended to make clear that foreigners were subject to Maltese jurisdiction and would be punished for offences committed on the Island.

  • 91 See Eton to Windham, 11 October 1806, Kew, CO 158/12 (no folio reference) and note the references (...)
  • 92 See Windham to Ball, 6 January 1807, quoted in Hardman, 499. and Eton to Windham, 11 October 1806, (...)
  • 93 Ball to Windham, 28 February 1807, Kew, CO 158/13/9 et seq.

113The steps taken by the administration to address the crime rate did not fully succeed and, by 1805, the number of offences, particularly offences against property, seems to have been causing discontent.91 Along with other accusations concerning the effectiveness of Ball’s administration, the crime rate was used by Ball’s political opponents, including William Eton, in an attempt to undermine ministerial confidence in Ball as the Civil Commissioner.92 Ball was forced to respond to these accusations in a detailed defence of his government.93

  • 94 This was conceded by Ball to Windham although with the caveat that by 1807 no similar offence had (...)

114The most commonly-committed offences seem to have been burglaries, and robberies,94 including highway robbery. Offenders seem either to have operated individually or in gangs, often perpetrating their crime in urban areas, where there more lucrative opportunities. After the offence, they would flee to the countryside.

  • 95 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805,273. Code Du Rohan, translated by Lydia Davis, Book 5 Item (...)

115There is evidence that offences against the person were also common. The use of weapons in alcohol-related violence, in the taverns, was a significant problem which the administration was required to address. The authorities issued a Bando, 18 October 1802, to reinforce the prohibition in the Code de Rohan against the carrying of sharp weapons.95 This measure also prohibited shopkeepers from serving wine to persons carrying knives or having sharp weapons in their possession.

  • 96 Ball to Windham, above n. 93.
  • 97 Even where the identity of the offender was known, it was still possible to evade capture. This co (...)
  • 98 The conduct of the public execution reflected badly on the Administration. This was so because the (...)

116Ball’s report to the Secretary of State, on the crime rate, is comprised, mainly, of assertions unsubstantiated by statistics.96 However, he did include some limited, but revealing, information that is corroborated by Coleridge’s Bandi and Avvisi. For example, Ball’s report revealed that, under British rule, there had been only five murders amongst the civil population. However, the conviction rate seems to have been poor because, according to Ball, the police had difficulty in obtaining sufficient evidence to sustain prosecutions.97 Ball revealed that only one offender had actually been hanged for murder (in 1802).98

  • 99 Borg to Eton, 30 May 1806, Kew, CO 158/12/no folio reference.
  • 100 Kew, CO 158/19/ 24-28.
  • 101 See below and note the evidence in the Avviso of 25 May 1805 that Borg, who intervened to save a p (...)

117Ball’s hint at community solidarity, in sheltering offenders from the British authorities, provides an illuminating context to Borg’s accusation that offenders were, too frequently, remaining undetected and unpunished.99 A serious issue seems to have been the use, by Maltese suspects, of sanctuary to evade apprehension and trial. This drew explicit adverse comment from the Royal Commission of 1812.100 As we shall see below, there were other instances of ”a code of silence”; and the possibility of witness intimidation cannot be ruled out. The fact that rewards had to be offered to informers implicitly recognised a lack of voluntary support for aiding the authorities in upholding the rule of law.101

Immigration and Crime

  • 102 Ibid.
  • 103 It is unlikely that in this early period (1800-1802) there was much antipathy to wards the British (...)
  • 104 Royal Commission of 1812, Kew, CO 158/19.

118After the British took possession of Malta the population began to increase. This was a consequence both of increased immigration and decreased emigration. Galea,102 who focused on the crime problem during Cameron’s administration (1801-1802), linked the deteriorating crime rate, during this early period, to significant immigration; indeed, it is evident that the Maltese made this connection for themselves and quickly adopted a jaundiced attitude towards foreigners.103 Immigrants were widely perceived as selfish opportunists who came to the Island for motives of personal gain.104 Immigration and crime, thus, became closely intertwined political issues.

  • 105 See Chapter 2.

119Most immigration strategies are formulated to take account of two dominant, although not necessarily coterminous, considerations: the first is the country’s labour or commercial needs; the second is security. Each of these may have become an issue on Malta. Increasing wage rates, which became an issue in 1805, suggest a shortage of labour that continued immigration might have alleviated.105 By that date, public disturbances, and the deep suspicion of foreigners amongst the Maltese, had already forced policy-makers to adopt less liberal policies. Although immigration was not prevented altogether, it was subject to ever-tighter controls. Coleridge’s Proclamation of 21 June 1805 was merely the latest in a series of interventions described below. Security had also become a major, and possibly the dominant, concern by the summer of 1805.

  • 106 Above n. 93.

120The benefits of immigration tend not to be evenly distributed. Most immigrants are low-skilled or unskilled workers whose presence often drives down the wages of similarly low-skilled domestic workers. They also increase the pool of labour thereby making competition for scarce jobs more intense. However, these trends operate to the advantage of those who can most benefit from the decreased cost of labour, such as businesses relying on unskilled or low-skilled labour. Low-skilled workers in the destination state, who can often compete on price only by taking lower wages, represent the most obvious group who lose out because of immigration. Ball’s evidence may suggest that this was very much the issue on Malta. He stated, in a despatch to Windham, that the disturbances that took place against the Jews, in May 1805, were perpetrated by the ”lower orders” of Maltese society.106 Other evidence corroborates this. As we shall see, it was shop workers who acted, in concert, to abuse the Jew, Di Biaggii, on the afternoon of 18 May 1805. And, although poorly articulated, their concern can be read as signalling a fear of the threat that the Jews posed to them in their capacity as shop workers or artisans.

  • 107 Ball to Camden, 19 April 1805, Kew, CO 158/10/123, 131: the ”general distress” caused by the econo (...)
  • 108 Royal Commission of 1812, Kew, CO 158/19.
  • 109 See below.

121After 1805, as the economy improved, complaints by the Maltese about the inflationary consequences of a rising population became yet another grievance against the new immigrants.107 Shortage of accommodation, and rising prices in particular, attracted adverse comment.108 This combustible mixture, of economic pressures, crime and a suspicion about the motives of many foreigners, resulted in severe social friction with which the administration, including Coleridge, urgently had to engage, not least when violence erupted against Jews. Deeply embedded anti-Semitism led to what Coleridge was to describe as a ”persecution” of the Jews in May 1805.109

Official Action to Regulate Foreigners

122By 1802 we can see a subtle shift in policy in the official attitude towards foreigners (other than the British). From this time, official action targeted foreigners, whether or not they were guilty of crime. The inference was, of course, that the Administration now shared the popular view that foreign visitors should be treated with suspicion.

  • 110 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 239.
  • 111 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 285.

123The Bando of 24 March 1802 stipulated that foreigners resident in hotels or houses had to report and be registered within twenty-four hours of arrival. It also required innkeepers, and others giving rooms to foreigners, to report, to government, their dealings with those foreigners.110 Any failure to comply was to be met with the draconian sanction of the innkeeper in question losing his or her licence. These measures were supplemented by a Proclamation of 4 May 1803 which required all foreigners to state their profession, and the reason for their stay on the Island, when they registered.111 This was intended to weed out the ”ne’er do wells” and exclude those who had no means of support.

  • 112 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 219.
  • 113 Antagonism remained a feature of Maltese society by the time the Royal Commissioners reported in 1 (...)

124This filtering and monitoring of foreigners suggested a cautionary approach, which might have reinforced some of the anxieties amongst the Maltese. But the British were not willing to allow this hostility to threaten the maintenance of law and order, for the authorities also acted to protect foreigners admitted to Malta. Of course, officials fully understood that commerce had to be promoted if the Island was to prosper and this meant interaction with neighbouring states. Bona fide foreigners, present on the Island, had to be protected from any arbitrary ”insults” and vigilantism committed on the Maltese streets. Cameron had issued a Proclamation of 5 October 1801 forbidding such ”insults” to Turkish merchants and their families.112 Even so, the local antagonism to foreigners was not eradicated;113 and in 1805 its particular focus was the commercially-vibrant Jewish community.

  • 114 Ball to Windham above n. 93 at 53.

125Ball’s despatches to London on the subject of law and order were, of course, designedly reassuring. He was eager to impress upon ministers that the crime and public order problems in Valletta were no greater that might have been expected in any British port city: but, he conceded that ”bad characters” were always attracted to sea ports.114 By 1805 the trade focused on the port area was recognised as the motor of economic revival bringing much needed prosperity to the Island. This increasing affluence was, probably, a magnet for more ”bad characters” to travel to the Island.

  • 115 Ball to Windham, above n. 93.

126By 1804-1805 the Maltese concern about immigration seems to have subtly shifted from the threat of crime to the problems caused by increased rivalry in trade. Immigration, of course, brought new skills to Malta; but it also brought increased competition for the local traders. Ball explicitly mentioned this in that part of his report to Windham dealing with the anti- Semitic disturbances.115

  • 116 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.2.

127The Administration was aware of the benefits that would arise from immigration. Amongst the indirect benefits was the increased ”tax take”, which increased public revenue. But this is not all because there are indications, in his Proclamations, that Coleridge was prepared to exploit, for British purposes, the Maltese dislike of foreigners in order to win support for certain unpalatable measures. As we have described, he explicitly stated that the excise duties, introduced in the Bando of 8 March 1805,116 would be a duty paid predominantly by ”foreigners” because it mainly affected their drinking habits rather than those of the Maltese. The fact that foreigners paid more would have been particularly satisfying to the Maltese – as Coleridge well knew; and he did not hesitate to curry favour with the Maltese by pointing out that the Administration was enacting, indirectly, discriminatory measures that would harm Maltese interests much less than those of the foreigners. This is suggestive of some confused thinking about the best means of promoting effective community relations. We can only speculate as to whether Coleridge might have altered his public-relations spin on this tax had he known that the ”insurrection” against the Jews would take place a little over two months later.

Constitutional Principles: Public Order and Crime

128The role of the Civil Commissioner in the operation of the criminal justice system on Malta is particularly controversial. At issue is the question of what influence he might have exercised over the punishments imposed in criminal trials. If he intervened in the criminal process it would raise controversial questions about the fairness of the trial, and of the independence of the judiciary, notwithstanding that the Maltese Constitution permitted such interventions.

129According to a general theory concerning the separation of powers, the punishment appropriate to a particular offence should be a matter for the courts – to be decided according to the law rather than the official determination of the Executive. It implies the making of a prior law, an adjudication, the finding of guilt and the handing down, by a judge, of a penalty of a nature and severity that falls within legally-prescribed limits. Bureaucratic sentencing, outside the judicial process, violates these fundamental principles.

  • 117 See Hardman, 6.
  • 118 The Royal Commission report offers an account of the Civil Commissioner’s Constitutional powers: K (...)

130Under the Maltese Constitution, as we have seen, the principle of the separation of powers was entirely disregarded. The Constitution conferred upon the Civil Commissioner almost unlimited autocratic powers.117 The judiciary was not independent; and the Civil Commissioner exercising his powers in the Segnatura could overturn or set aside judicial decisions.118 Like the Grandmasters, the Civil Commissioner was the supreme magistrate and had the liberty to interfere in the criminal process. Grandmasters regularly intervened in the sentencing process.

  • 119 Coleridge might have made these arguments although, if he did, the evidence is now lost. The above (...)

131The British had undertaken to perpetuate the Maltese constitutional system: continuation was the central bulwark of Ball’s administrative strategy. Even so, this need not necessarily have compelled Ball to interfere in the judicial process. In other words, he could have exercised a self-imposed restraint so as to import into Malta a de facto respect for fundamental constitutional values with a view to raising the standard of government.119

132However, Coleridge’s Bandi and Avvisi, as well as other primary materials, reveal that these rule of law principles were not applied on Malta during this period and this will be examined below.

  • 120 The separation of powers is not a defining characteristic of the British Constitution.
  • 121 The Friend, 1, 544.

133The failure to respect the separation of powers in the imposition of sentences, as evidenced in some of Coleridge’s Avvisi, is of interest given the emphasis he had placed upon respecting the doctrine in his earlier political journalism. The concentration of power in the hands of the French Consul was, he had argued, the fatal flaw in the French Constitution of December 1799. This is important because Coleridge did not see the separation of powers as a British principle, but as a universal one.120 However, in his role as Public Secretary, Coleridge failed to persuade the Civil Commissioner to confine governmental action within the constitutional values that he (Coleridge) had earlier advocated; indeed, his later writing, in The Friend, approved of Ball’s actions.121

134We shall first consider the Avviso concerning extortion and then the Avvisi issued after the anti-Semitic disturbances before looking at other measures concerned with immigration and public security.

The Avviso of 1 March 1805122 – Extortion

  • 122 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 1.

135Public Notices announcing convictions were issued where there was a particular public interest in drawing attention to the offence and the punishment imposed. This Notice gave community-wide publicity to an important conviction of a named individual, Matteo Sacco, for extortion. It also contained an explicit warning that the public should be wary of Sacco following his release from gaol. But as we shall discover, the additional motive for the instrument was that it allowed Coleridge to portray the Government as benign and responsive.

136The Public Secretary’s decision to issue a Notice to inform the general public of the offender’s conviction would, by itself, damage the latter’s reputation. In providing the further explicit exhortation, that the inhabitants should be wary of him, suggests an official intention to ostracise the offender. According to one view, this can be seen as an example of Ball’s role as parens patriae (”father Ball”); by drawing the attention of the inhabitants to a corrupt rogue (who might try to re-offend in the future) Ball was protecting the Maltese from becoming his next victims. However, the effect of this warning, can be also seen as a further penalty over and above the punishment determined by the court. This is so because Coleridge’s warning would naturally tend to isolate the offender. Depending on the response of his fellow citizens, this might actually be more damaging to him than his term of imprisonment and the obligation to repay thirty scudi. It implied little faith in Sacco’s rehabilitation. However, the Notice did recognise the importance of corrective justice by requiring the offender to restore to the victim the sum extorted. There was, as Coleridge understood, an important principle of equality and rectification at issue here, namely that at Miccallef’s (the victim’s) expense, Sacco had unlawfully acquired a gain that he should be required to restore to Miccallef.

137Sacco was imprisoned until the sum of thirty scudi, that he had extorted from Micallef, had been repaid. The obvious difficulty created by this punishment is that, whilst incarcerated, Sacco could not earn money. In the case of a poor offender without savings this could make repayment (and thus release) impossible. We do not know if Sacco faced this difficulty.

  • 123 See the Proclamation of 15 July 1801, Hardman, 358-9. W. Eton’s account is revealing. He stated th (...)
  • 124 These were outlined in Chapter 2.

138The major reason why Coleridge decided to issue the Notice was that it provided an opportunity to repair some of the damage to Ball’s reputation, with the Maltese public described in Chapter 2. Since the offence related to a demand for money to procure from government a benefit, namely a recission of an order placing the victim in exile, he assured the inhabitants that they could petition the Civil Commissioner directly without incurring the expense of unnecessary (and dishonest) intermediaries. This affirmed the commitment made by Charles Cameron in the Proclamation, addressed to the Maltese Nation, in which he conveyed not only the ”paternal care and affection” of the King for the Maltese people but also promised that: ”(m)y door shall be open to all; I will hear everyone’s plea; I shall be ready to render justice…”.123 Coleridge clearly felt it necessary to associate Ball with this commitment. As we shall discuss in Chapter 6, this was a key component of Coleridge’s strategy to re-build Ball’s public reputation following a series of damaging decisions, not least the summary exile of a Maltese who had presented a petition to the Segnatura.124 Coleridge’s Notice of 1 March 1805 reveals that the authorities knew that Ball’s conduct in the summary exile case, allowed Nationalists to condemn what they portrayed as his ”despotic scourge” and ”thundering vengeance” – a ruthlessness which, they alleged, had not even been possible under the worst of the Grandmasters. As we shall see, Coleridge’s assurances were the Administration’s riposte and a direct appeal to the public to place confidence in British prerogative justice.

5.4.1. The Anti-Semitic Disturbances

The Avvisi Concerning the Anti-Semitic Disturbances

139We are now concerned with the Public Notices that were issued as a consequence of criminal behaviour connected with the unrest against the Jews. These matters were amongst the most difficult that the Civil Commissioner encountered during Coleridge’s period in office. A detailed examination, based on records not previously available, shows a series of actions demonstrating the difficulties of reconciling the priorities of government with the need to uphold the rule of law. It also reveals Coleridge’s use of government information in securing the dominant strategic goal of a stable society under British rule.

Context

  • 125 Almost the only Jews on the Islands during the government of the Order were captive slaves or othe (...)
  • 126 The Edict of Expulsion signed in Palermo on 18 June 1492 excluded Jews from Malta after that date.
  • 127 See Kew, CO 158/10/3; also Ball to Windham, above n. 93 at 67 in which he referred to the immigrat (...)

140Jewish immigration was resented by sections of Maltese society. Agitators keen to foment violence, exploited fear and distrust. The history of the Jews on Malta at this time is revealing. Ball reported, in 1807, that under the Order of St John, Jews had been excluded from residing freely on Malta,125 and Jewish visitors were subject to restrictions.126 This stance was thought to have encouraged the popular view amongst the Maltese that Jewish immigration would be harmful to the public interest. This restrictive official policy on Jewish immigration was reversed under the British administration. One of the causes for the first migration was the outbreak, in Gibraltar in the autumn of 1804, of yellow fever. This caused an unknown, but significant, number of the Jewish community there to emigrate to Malta.127 Under British rule, Jewish immigrants were, thus, permitted to enter and settle on the Island; and these immigrants were, eventually, to prosper. But their early reception was troubled.

  • 128 Ball became aware of the jealousies that began to emerge between the Maltese and Jewish communitie (...)

141The differences were partly cultural and partly economic, and each of these was inter-related. The reliance of the Maltese on the welfare systems of the Knights had produced a dependency culture. However, the Jewish immigrants of 1804 were of a different and more independent, enterprising outlook. Following their arrival they had set up their own businesses that competed with Maltese shopkeepers and others, particularly in Valletta. 128

  • 129 Above Chapter 2.
  • 130 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9.

142This new competition made the British policy reversal unpopular amongst those economically threatened by it. Jewish entrepreneurs had a notable reputation for commercial acumen, which made some Maltese, with vested interests, antagonistic to the new settlers. It will be recalled that, at this time (spring 1805), the Island’s economy was only just beginning to recover from the severe economic collapse that had followed the blockade.129 Any immigration policy likely to prejudice individual prosperity would have been particularly sensitive. It is also likely that the particular concern amongst the Maltese business community also implied a less well-defined popular prejudice, against the Jews, amongst the ordinary Maltese. This was capable of leading to violence. Mobs, that were prone to assault their victims, were operating on Malta – as Coleridge’s Avviso of 25 May 1805130 indicates. Such was the anti-Semitic hysteria that merely calling someone a Jew could lead to that victim becoming subject to violence. As we shall see, any unpopular or suspected person was at risk of assault even if they were not Jewish; in other words, labelling someone as a Jew, could be used as a pretext to incite violence against any member of the community. Although Jews were targeted some unpopular gentiles were also at risk.

The Events of May 1805

  • 131 CN 2, 2594.
  • 132 CN 2, 2646.
  • 133 CN 2,2668. The riots and murder followed the assassination of Naftali Buchnach or Busnach. Colerid (...)
  • 134 CN 2, 2668.

143Coleridge’s Notebooks contains two entries on this important subject. The first of these records states, ”Latter end of May-&c-THE JEWS!”,131 and the second, probably written some weeks later, records, ”Saturday 18 May 1805-Valetta (sic)-the persecution of the Jews commenced”.132 A further Notebook entry records a massacre of Jews in Algiers that took place on Saturday, 29 June 1805, a day that became known within Jewish circles as the ”Black Sabbath”.133 Referring to the mob violence in Algiers, Coleridge recorded ”more than an hundred of that unhappy race massacred- their Bodies burnt”.134 This reveals that, in the early summer of 1805, racist violence against the Jews was not confined to Malta, although the immediate causes of the two instances of violence were different in each case.

  • 135 Above n. 93 at 67-8.
  • 136 Ibid. The accusations made by the anti-Semites amongst the Maltese resonated with a version of the (...)
  • 137 NAM 92/04 1805 box 1.

144Contrary to Ball’s intention to downplay the insurrection,135 there is ample evidence that the authorities were alarmed by it. Ball admitted that some of the most significant disturbances were orchestrated by a number of agitators who went from place to place, such as the taverns and shops, repeating the ancient blood libel that the Jews had abducted children to sacrifice in their religious rites.136 This is corroborated by court records. As we shall discover, one of the convicted offenders, Andrea Borg, had begun a rumour that Jews were prowling around looking for children to kill. No children had been reported missing, which suggests that the slanders clearly resonated with some members of a resentful population who were, in the absence of hard facts, pre-disposed to display racist behaviour. 137

  • 138 The relevant part is as follows: ”That in the beginning of June 1805 (sic) there was a tumult of 2 (...)
  • 139 See Ball to Windham above n. 93 at 67.

145The evidence of what took place 18-19 May 1805 is not altogether clear. However, in an unsigned and undated letter (a copy of which may have been sent to the British Prime Minister) an anonymous individual alleged that a mob of about two thousand Maltese assembled in Valletta and then ”dispersed without doing any mischief”.138 Ball’s delayed response did not offer a firm denial.139 Instead, he described how the jealousies of tradespersons and others had led to problems for some of the Jews who were accosted by the demonstrators. This seems to be a reference to the events described below that took place in St Paul’s Street, Valletta, on 18 May 1805.

146The low-level public disorder in St Paul’s Street cannot fully explain the haste and severity with which the authorities acted, so it is likely that a more dangerous demonstration of hostility had, indeed, taken place. Moreover, one of Coleridge’s Avvisi refers to a physical assault against an individual, believed to be a Jew, which, it alleged, took place in Mdina. The authorities clearly believed that outbreaks of violent disorder were spreading across the Island. Ball’s refusal to deny this, in his report to the Secretary of State (delayed until 1807 when he was forced to respond to allegations made against his administration), is also suggestive. However, as we shall see below, the Avviso in question misreported, and in some ways exaggerated, the events that actually took place in Mdina.

  • 140 The Friend, 1, 544.
  • 141 CN 2, 2646n; ”I also am an Israelite”.

147We also have Coleridge’s subsequent testimony which suggests a threat of widespread and serious violence. In The Friend he described the anti- Semitic disturbances as a ”difficult emergency”.140 In an unpublished letter of 1820, written to a Jewish friend, he described his own role in preventing ”an intended Massacre”. He claimed to have read to Dr Borg Oliviero, the Chief Justice, Chapter 11 of Paul’s letter to the Romans in order to emphasise shared human values.141 Coleridge’s later accounts suggested that the authorities believed that the insurrection might have become more widespread and even more serious. As it was, they responded with rapid and severe punishments to quell that possibility – in other words to nip trouble in the bud.

  • 142 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8.
  • 143 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9. The date of issue was 25 May 1805, not March 25 1805 as (...)

148Official action on Malta, to stamp out anti-Semitic violence, included two denunciatory Avvisi of 22142 and 25 May 1805.143 These notified the population of the severity of punishments meted out. As we shall see, there is evidence that Ball himself intervened to ensure that these exemplary and exceptionally draconian punishments were imposed. He was obviously prepared to regard the command in the Royal Instructions of 14 May 1801 to indulge ”the prejudices of the inhabitants” as having been overridden by the just claims of the Jewish population to the protection of their lives and property.

  • 144 In the Notice of 25 May 1805 Coleridge acknowledged the existence of a ”popular prejudice” against (...)
  • 145 Although Coleridge omitted to define ”foreigners”: NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 f14.
  • 146 Above n. 93 although when Ball refers to the ”whole affair” he seems to be referring exclusively t (...)

149But this is not to conclude that Ball ignored the Royal Instructions of 14 May 1801. He made some concessions to what Coleridge publicly acknowledged as the anti-immigration prejudices of the Maltese – a phrase which recalls the very words of the Instructions.144 This resulted in a Proclamation dated 21 June 1805 that imposed even more restrictive controls upon foreigners.145 When taken with the evidence of the Royal Commission of 1812 that there was still hostility to foreigners on the Island, this flurry of domestic measures qualifies the impression, created by Ball in 1807, that the problem of social friction leading to anti-Semitic violence was short lived.146

150As we shall see below, an Avviso, dated (Wednesday) 22 May 1805, announced the first convictions (fig. 10). Its date reveals how promptly the authorities responded to the unrest because, in only a few days, they had identified and located the culprits (Andrea Borg, Hasciach and Bonello), tried them, punished them and then drafted and promulgated the Avviso. The further Avviso, on Saturday 25 May 1805, which discloses weekend working, also corroborates the argument that officials had identified an emergency requiring timely action. Ball’s portrayal of an unrattled State is unconvincing. The absence of Notebook entries for ten days after 14 May 1805 is also suggestive that Coleridge was preoccupied by official business connected with the disturbances.

10. The Avviso of 22nd May 1805 announcing the convictions of Borg, Hasciach and Bonello.

Disturbances in Valletta, Saturday 18 May 1805

151We can now question, in more detail, why the anti-Semitic allegations spread by Andrea Borg, Hasciach and Bonello did not explain all that took place on the afternoon of Saturday 18 May 1805 – the day the violence erupted. Surviving witness evidence shows that the disturbances arose as a result of more than one cause. This corroborates Ball’s account of the participation of the trades-people, who seemed to have felt that their livelihoods were threatened by the Jews.

  • 147 As he was required to do under the terms of the Code de Rohan.
  • 148 NAM 92/04 1805, 21 May 1805.
  • 149 Statement of Joseph Pizzuto, ibid.

152In the late afternoon of 18 May 1805, in St Paul’s Street, Valletta, a Jew, known as Di Biaggii, was verbally abused by a group of boys. He had gone with a local man, Gauci, to inform the police (the Viscount).147 Di Biaggii and Gauci intended to return to the scene with the Viscount to remonstrate with the boys and warn them so that they should did not repeat their misbehaviour. However, the delinquents had fled by the time the three men returned to St Paul’s Street. Unfortunately, the incident was not over because a group of local shopkeepers and passers-by gathered. Amongst them, a youth called Paolo Catania, the son of a shoemaker, further insulted Di Biaggii, by asking him, ”Do you still want to crap on our heads”.148 The words spoken were corroborated by another witness.149

153Whilst the true meaning of this insult can obviously be contested, one possible reading suggests that the aggressor was concerned that the Jews had achieved some threatening and dominant position. Had Paolo Catania been primarily concerned about possible child abduction then this anger would, almost certainly, have been expressed in other ways.

154The group of hostile Maltese then reprimanded Gauci for having assisted Di Biaggii. A fight ensued in which Gauci was assaulted before making his escape pursued by ”many people”. Presumably Di Biaggii also fled. It is indicative of the strength of opinion that any Maltese who assisted Jews were also likely to be attacked.

Disturbances outside Valletta 18-21 May 1805.

  • 150 Andrea Borg’s statement, 21 May 1805 NAM 92/04, 1805, box 1.

155Elsewhere in the four cities, rumours were being spread that Jews were attacking Maltese victims. Conspicua seems to have been something of a ”hot spot”. Andrea Borg admitted under interrogation that, whilst intoxicated, he had spread a rumour that Jews were searching for children to kill. Moreover, during the night of 18-19 May 1805, he allegedly entered a shop and asserted, to those inside it, that a Jew living in Conspicua had thrown a vase of flowers out of a window at him. Neither assertion was true; and Andrea Borg claimed, when questioned on 21 May 1805, that he had committed these acts simply because he was drunk and for no other reason.150

  • 151 Ibid.
  • 152 Ibid.

156Other witnesses gave evidence of further trouble. On Sunday 19 May 1805, at Rappello di Coradino on the road out of Conspicua, Nicolas Zammit and another man encountered a twelve year old boy who was walking some distance behind two foreigners. The boy reported that the foreigners were Jews who had tried to harm him. Zammit also gave hearsay evidence that his wife had told him that a Jew had threatened one of their friends, and that he had reported this to the local Luogotenente.151 The authorities at first suspected Bonello (below) but the witness was certain that he was not the boy in question, following an identity parade.152 The conclusion, that other boys must, therefore, have been involved, naturally made the situation worse from the authorities’ point of view.

157Saverio Bonello (also a twelve year old boy) was a resident of Conspicua who had been arrested. He had falsely accused unknown persons of threats made against him; but he gave contradictory evidence. At first he stated that three men, believed to be Jews, had run aggressively towards him whilst he was fishing. He then described how he had been compelled to flee from the four men (sic) to escape.

158As we discuss below, Fortunata Tagliana also incited racist violence against a French prisoner of war at Notabile (Mdina), so the disturbances were not confined to the four cities. Her offence took place during the evening of 21 May 1805.

159Borg and Bonello must have been tried and convicted the same day that their statements had been taken, 21 May 1805, or, if not, no later than the following day, because this was the date on which Coleridge announced the convictions and sentences. This alacrity, especially when taken with what we know about Coleridge’s vast workload, again suggests a sense of urgency on the part of the authorities.

The Public Notice of 22 May 1805

160This Avviso notified the public of the punishment inflicted on three named individuals, Andrea Borg, Giovanni Hasciach and Saverio Bonello for having originated and spread the malicious anti-Semitic rumours. The notice announced that the offenders had been whipped and were shortly to be sent into exile. The petitions discussed below suggest that each of them was exiled to Gozo.

161The Notice raises a number of constitutional and other issues. Firstly, the text suggested the offenders were sentenced as a result of the decision of the Civil Commissioner rather than a court of law, which, if true, would provide a strong example of the absence of a separation of powers in Maltese law. It would raise important questions about the right to a fair trial in Malta. Secondly, the Avviso does not record the offence of which they were convicted, and the question can be asked whether rumour-spreading was an offence known to the law. This engages the principle that no-one can be punished except for breach of an existing law: nulle peona sine lege. Thirdly, because the punishment was not in accordance with that prescribed for the offence under the Code de Rohan, there is a further controversy about respect for the rule of law under British rule. Finally, there is a concern about the separation of powers.

Punishment by Law?

162In any stable and peaceful society the state has a prima facie monopoly on the use of force. This is acceptable provided its coercive powers are exercised in the circumstances which the law allows and the punishments inflicted do not exceed those permitted by law. The rule of law thus requires that legitimate punishment can only be imposed in accordance with existing publicly-disclosed laws – in other words when an individual has committed behaviour that is legally proscribed.

163The requirement that official action should conform to existing legal rules is concerned with legitimacy and is, thus, a founding principle of the rule of law. It is a fundamental violation of the rule of law if the conduct punished is merely something of which the authorities disapprove but which violates no legal rule. Civil rights would cease to have any force if officials could punish any behaviour which caused them inconvenience or which they disliked. There would simply be no limit to the circumstances in which individuals could be punished.

164Moreover, in a system that conforms to these standards, the authorities cannot simply declare that henceforward certain conduct will be proscribed. Constitutionally-mandated processes must be followed before new legal rules can be established. New laws must be duly passed.

165The first question concerning Coleridge’s Notice is that it is silent on whether the convictions followed from a prosecution and judgment of a criminal court in accordance with an existing law. This is an important matter because the adjudication of legal rights is a matter for an independent judiciary that is not required to abide by the directions of politicians. In this case the internal evidence from the Avviso, when taken in isolation, suggests that this was not fulfilled. The actor, explicitly named by Coleridge, in the criminal process was the Civil Commissioner. Coleridge recorded:

His Excellency is determined to treat in the same manner all others who are discovered to have started, or who have been complicit in similar [i.e. anti-Semitic] gossip.

  • 153 Above n. 93 at 67-8.

166The impression created is that the accused were convicted and punished by Ball himself. In contrast, Ball’s report to Windham in 1807 emphasised that criminal liability, in cases arising from the persecution of the Jews, was determined by the judicial process: ”some of the most guilty amongst the men”, he reported, ”were tried, convicted and punished”.153 The more likely conclusion is, therefore, that these men were indeed tried before a criminal court. As we shall see, the determination of the appropriate punishments was a different matter.

Code de Rohan

  • 154 Book 5 item 3, no 5.

167As far as the relevant law was concerned, Code de Rohan contained provisions against ”slanderous publications’154, and it is likely that the court decided that this provision governed the conduct of the accused in this case. The punishments imposed on these defendants, which were deliberately severe (whipping and exile) are, however, controversial.

  • 155 See para. VII.

168As we shall see below, in the case of female offenders, the Code de Rohan permitted a number of possibilities to be considered. These were either internal exile (to the ”villages” or to Gozo) or overseas exile ” outside the Dominion”; but no similar provision existed in the case of male offenders. The prescribed punishment for males convicted of spreading slanderous publications155 was that they

  • 156 Book 5, item 3, no 5.

shall incur the penalty of ten years, or even life in the galleys. …. If for some reason they are unable to row in the galleys, they must be punished with the whip, and must then serve on public works for the rest of their life, or for ten years, depending upon the seriousness of the offence.156

  • 157 Contrary to para. V of Part III of the Code.

169Punishment by the whip and the imposition of life-time exile was, in the case of the male offender, outside the scope of the Code (if, as we assume, the charges brought related to ”slanderous publications”).157 This suggests two possible conclusions. The first is that the sentences were unlawful in so far as the court exceeded its authority under the Code de Rohan; or, alternatively, that the Civil Commissioner had exercised his recognised constitutional authority and intervened in the judicial process so as to increase the sentences.

Ball’s Role

170Of the two possibilities, the latter (i.e. Ball’s intervention) is the only one that would conform to the Maltese Constitution, albeit inconsistently with the rule of law. In his report to Windham in 1807, Ball, significantly, revealed how the criminal justice system worked. The information he disclosed allows us to infer that he at least claimed a power to interfere in the outcome of cases. The critical passage is as follows:

  • 158 Ball to Windham above n. 93 at 51. The use of the word ”upholding” also implies that Ball’s exerci (...)

In all criminal cases, in particular, the whole proceedings are laid before me as soon as the trials are finished; and where … there appears any difficulty in the case, it has been my practice to take the opinion of an English barrister, (who, Ball reported, gave advice upholding the judge in all but one case).158

  • 159 Memorial and Petition of the Maltese (unsigned and undated): Kew, CO 158/10/151 (1805).

171In 1805, the Maltese petitioned the Crown for certain constitutional reforms.159 The petition, inter alia, sought relief from the Civil Commissioner’s power to sentence in criminal cases. In a forceful passage it requested that: ”..the sentence (of the court) may be mitigated but not augmented by the Civil Commissioner and that those sentences may be pronounced in open court and not first submitted to the Civil Commissioner”. (Emphasis added)

172The evidence of the Avviso suggests that in the cases of Andrea Borg, Hasciach and Bonello, Ball exercised his power to determine the sentence, for, in translation, it will be recalled that Coleridge recorded that: ”His Excellency is determined to treat in the same manner all others who … [offend]”. Thus, Coleridge identified the Civil Commissioner rather than the court as the actor responsible for punishments in all other cases.

173But that is not all because there is other evidence that the criminal judges acted on Ball’s instructions in sentencing these particular offenders. This evidence relates to a subsequent trial which also arose from the anti- Semitic disturbances (the Fortunata Tagliana trial, the outcomes of which are considered below). In that case an official recorded: ”This (punishment) is in line with the order given yesterday by His Excellency to the Judge”. (Emphasis added – see fig. 11).

11. The letter from the official of the Corte Capitanale which reveals that the Civil Commissioner had instructed the judge to sentence Fortunata Tagliana to exile in Gozo.

174Ball’s undoubted interference in the Tagliana trial is likely to explain the punishments in the trials of Borg, Hasciach and Bonello. As said, within the terms of the autocratic Maltese Constitution, this was not unconstitutional behaviour, but it is further evidence of a legal system that signally failed to meet what today we should regard as the minimum standards of fairness. It also revealed Ball’s double standards.

  • 160 The Friend, 1, 169-70.

175In The Friend, Coleridge portrayed how, when he was in command of a ship, Ball was a just law-giver. British seaman under his command were entitled to be punished according to the Articles of War in order to avoid ”arbitrary” decision making.160 This meant that punishments under his command were only inflicted in accordance with rules that had been publicly declared in advance; and Ball’s officers had no discretion to vary the prescribed punishments. Above all, it reveals that their commander understood that justice could only be achieved through a system rooted in the rule of law – punishment according to rules known in advance – and the principle of a fair trial. Thus, it speaks volumes that Maltese civilians were not always treated according to these ”fairness” standards. ”Justice” in their case was embodied in the will of their governor who punished them according to undisclosed standards that were notably inconsistent with, and which prevailed over, the published laws.

176Thus the evidence suggests that notwithstanding Coleridge’s awareness of the importance of maintaining the separation of powers for the preservation of civil liberties – the observance of which by the British (Imperial) Government he had insisted upon in his journalism – Coleridge was either unable or unwilling to persuade the Civil Commissioner to show restraint by allowing the courts to determine the penalty without interference.

  • 161 See Hardman, 350 et seq.
  • 162 The relevant part of the Instructions dated 14 May 1801 stated: ”You will therefore understand tha (...)
  • 163 See Chapter 1, pages 43 and 44.

177In fairness, Ball might have felt that intervention was permitted under the terms of the Royal Instructions, dated 14 May 1801,161 that explicitly required him to continue the system of executive intervention that applied under the Grandmasters.162 However, whilst the Maltese Constitution (and thus the Royal Instructions) might have permitted Ball to direct the judges, it was not a requirement that he do so in any or every criminal case. In other words, he might have shown restraint in order to uphold the fundamental values of fairness and the rule of law that he recognised and had practised during his naval service. The circumstances of these cases suggests that Ball chose to intervene to augment the punishments in ways that he had denied himself and his officers whilst at sea. Thus, the outcomes of cases were, arguably, tainted by the Civil Commissioner’s political sentiment that repressive measures were necessary in order to maintain law and order. When Coleridge later complained of the sordid nature of politics163 he may have had this example in mind.

The Avviso of 22 May 1805 and New Offences

  • 164 This arguably extended Para. V of Part III of the Code de Rohan, which states: ”Anybody who invent (...)

178There is also evidence in the Notice that Coleridge purported to extend Article V of the Code de Rohan so as to criminalise certain anti-social behaviour arising from the disturbances. This strategy was intended to punish, firstly, those individuals who repeated the false rumours and, secondly, those who were present during the relation of such rumours, who either did nothing to ”undeceive” the listeners, or did not inform the Tribunal of the Grand Court.164 Thus, the Notice purported to announce an extension of the criminal law.

179As we have explained, the principle of nulle peone sine lege requires that an individual be punished according to an existing law. Since Coleridge’s Avviso, a Public Notice, was not a law-making instrument, it was incapable of making the necessary reform – that required a Bando. The mere announcement of a new offence, by Notice, amounted to the Administration punishing conduct of which it disapproved.

180Coleridge’s apparent willingness to have individuals punished without a legal justification for the punishment is a surprising lapse given his awareness of these fundamental constitutional values. Thus, we have further evidence that, in his official capacity, Coleridge was not able to practise or respect the constitutional morality that he espoused in his political writings.

”Malicious Rumours” and ”Undeceiving Listeners”

181In the Notice, Coleridge described the new offence as one of ”spreading malicious rumours” not ”maliciously spreading rumours”. ”Malicious” was intended to be synonymous with ”false” or ”false and damaging”. Since a malicious (false) rumour can be spread unwittingly, a person could be liable for the innocent repeating of information that happened to be false. Thus, the offence, under the Code de Rohan, of spreading malicious rumours was likely to catch more rumour mongers within its net than one that required malicious intent. Moreover, the new offence was not confined within the context of the emergency. It applied to any false story.

  • 165 Although, as already indicated, no such offence was properly known to the law.

182However, in relation to the other purported new obligation, to ”undeceive” other listeners, evidence of knowledge, on the part of the accused, that the information was false, would be required before a prosecution could succeed.165

183This Avviso created impossible burdens for individuals because it assumed that those hearing certain information – listening to rumours – would be able to differentiate between fact and falsehood. This was a prerequisite because the obligation to ”undeceive” logically arose only when an individual (in the company of others) was confronted by information that they could identify as false. Information conveyed to them which was true clearly did not give rise to any obligation to ”undeceive”. However, what about information that was actually untrue but which the listeners nonetheless found credible?

  • 166 Coleridge’s assessment was that the ordinary Maltese (the peasantry) suffere from ”childish ignora (...)

184The weakness of Coleridge’s strategy in this respect was exposed in Ball’s 1807 report to the Secretary of State. As Ball understood it, the problem was that a large number of the Maltese were ”gullible” to the point that they were prepared to demonstrate against individual Jews as a collective response to invented information that the Jews sacrificed children (when none had been abducted). If Ball’s version of events is reliable, it would be a naïve official who believed that the less-educated Maltese could distinguish fact from fiction or rumour from truth.166

185Coleridge’s reform placed the Maltese in some jeopardy. If, for example, they heard information in the market place which they believed to be true, but which was, in fact, false, they risked punishment for failing to ”undeceive” (although, as we have seen, there was no properly enacted and existing law requiring them to do this). The only practical way of avoiding that liability would be to decline to listen to any information on sensitive subjects – in this instance any information touching upon the Jewish community. ”Listeners” would find this a necessary precaution in order to avoid the risk that information conveyed to them might prove to be untrue.

186Before leaving this poorly drafted section of the Avviso it is worth recalling that Coleridge explicitly ordained that minors would be liable to the same penalties as adults for the offences described within it. Given that adults clearly had difficulty in distinguishing fact from fiction (e.g. the belief that Jews sacrificed children), the policy of criminalising children regardless of their age seems harsh and ill-judged. For example, if a child of five unfortunately found itself in the company of adults spreading malicious information, the child would, according to the Avviso, be criminally responsible unless he or she spoke out against the rumour, and informed the Tribunal. Just one objection to this would, of course, be that a young child would neither understand the difference between malicious rumour and truth and, even if they did, they would probably never have heard of a Tribunal let alone been able to access it. If the terms of the Avviso were intended to be applied as literally drafted then such measures would be unjust to the point of fanaticism. If this outcome seems improbable, it is important to recall that Ball banished a twelve year old boy (Bonello) to Gozo for spreading false rumours.

187Whilst it can be readily appreciated that the British authorities had a duty to stamp out anti-Semitic violence, the steps taken to do this seem harsh. Bonello’s case offers little prospect that the Avviso would have been leniently applied in the case of minors. For this reason, as well as its other unreasonable burdens and its dubious status as a legally effective instrument, it stands out as further evidence that the legal system on Malta fell below the minimum standards of constitutionalism and fairness expected of a more fully developed system infused with the values of the rule of law.

Aftermath

  • 167 The petition can be found in the National Archive of Malta, NAM 92/04 1805, box 07; and the decisi (...)

188On 19 June 1805, Maria Bonello, Saverino’s [Saverio’s] mother, successfully petitioned the Civil Commissioner sitting in the Segnatura to have the sentence on her son rescinded. The grounds on which she pleaded for clemency were that the boy, who was then on Gozo, now lived in extreme poverty and went hungry. In short, she argued that he was ”deprived of every human comfort”. Given that exile had been Ball’s preferred punishment for the troublemakers, her chances of success might not have been considered to be encouraging. However, the Civil Commissioner did show clemency to the boy.167

  • 168 Registro dei Memoriale e Decreti da Sua Excellenza il sig Cavalier Alessandro Ball Regio Commissio (...)
  • 169 NAM 92/04 1805 box 1.

189Andrea Borg also tried, at first unsuccessfully, to have his sentence overturned. On 29 May 1805, he petitioned Ball, in the Segnatura, to rescind the order that he be exiled.168 Following Ball’s rejection of this first petition, he submitted a second on the grounds that he was, by then, starving on Gozo and needed to return home to look after his ”poor” mother. These grounds were strikingly similar to those that had won Ball over in Maria Bonello’s petition. Moreover, it is interesting that Andrea Borg’s second application was made after Maria’s had already succeeded. No doubt his advisers sensed that Ball was now more amenable to show mercy. And so it proved because, on 26 June 1805, the Civil Commissioner granted Borg’s second application. His act of clemency appears to have been conditional because, on 2 July 1805, Borg’s formal retraction of his evidence was read to the assembled crowd in Conspicua.169 This seems to have been a condition of his returning home to the City. It may also confirm that Conspicua had been a ”hot spot” of trouble during the disturbances since retractions do not appear to have been publicly declared elsewhere.

  • 170 Ball to Windham, 28 February 1807 above n. 93.
  • 171 See Chapter 2.

190No reason for Ball’s volte face in these cases is recorded, but it can be speculated that if, by then, the emergency was over (as Ball later claimed170) he probably judged that there was no longer a need to make an example of a small boy and a starving man. The danger of widespread violence had passed; and Ball perhaps sensed that there were compelling political reasons for a show of compassion to combat the combustible complaints that he was a ”despot” whom the Maltese had come to fear.171

The Avviso of 25th May 1805172

  • 172 LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.9.
  • 173 NAM 92/04 1805.

191This was the second Public Notice arising from the anti-Semitic disturbances. Here, Coleridge notified the inhabitants of the severe punishment meted out to a named individual, Fortunata Tagliana, who had, according to Coleridge, been convicted of inciting anti-Semitic violence that resulted in an assault, by a gang of assailants, on a French prisoner of war. Surviving court records suggest that she was convicted of ”insulting” the Frenchman and spreading malicious rumours.173 As we shall discover, Coleridge’s Notice may have been neither a comprehensive nor accurate account of the facts.

192This Public Notice further recorded the financial reward paid by the authorities to another named individual, Francesco Borg, who intervened to rescue the victim.

193Unlike the earlier case of the convicted offenders, Andrea Borg, Hasciach and Bonello, there is evidence that Fortunata Tagliana was tried and convicted by the criminal court. However, as we have described, there is unambiguous evidence that the court was acting on the Civil Commissioner’s instructions when it imposed the sentence.

  • 174 Item III, para. VII.

194The sentence of permanent exile was, no doubt, intended to be an exemplary punishment: Coleridge had already made clear, in the terms of the Public Notice of 22 May 1805, that sentences for the spreading of false rumours would be severe and be imposed regardless of age. However, Fortunata’s exile to Gozo is distinguishable from the punishment meted out previously to Andrea Borg, Hasciach and Bonello because hers was within the range of permitted punishments under the Code de Rohan.174

195The promulgation of the instrument on a Saturday, rather than on a normal working day, lends further credence to the argument that the persecution of the Jews had caused considerable anxiety. The administration clearly believed that the public interest required the earliest possible dissemination of the news of her conviction. In accordance with government orders the Notice was published, and its contents disseminated, the following day, a Sunday.

196The offences committed by Fortunata Tagliana in Notabile (Mdina) reveal that violent anti-Semitic sentiment had spread beyond Valletta and the three cities (where most of the Jews had settled). It also indicates the intensity of racial hatred: her mere denunciation of the French prisoner of war as Jewish was sufficient to persuade the attackers to pursue him.

Coleridge’s Strategy

197The Avviso is of particular interest because it revealed Coleridge’s approach to significant government information at a time of public emergency. In common with other Avissi it performed an important political function. First, it communicated information that was essentially irrelevant to the purpose of denouncing an attack upon a Frenchman. In particular, it engaged the audience in Fortunata’s motive – the cause of her actions – as well as the methods she employed to achieve her ultimate purpose. This important information reveals something of Coleridge’s style, which has a narrative quality not usually associated with similar official instruments that were principally concerned to publicise the outcome of a case.

198Another important feature of the Notice is that the information it contained is misleading. This may have been deliberate, or simply a consequence of the over-hasty response to what the government saw as a crisis. Certainly, the Notice differed, in important respects, from the witness testimony. Even if Coleridge had access to the court records, the discrepancies, some of which are potentially of great significance, are difficult to explain.

199The Notice recorded that Fortunata encouraged the attack because she wished to pursue a grievance with a female neighbour ”with whom she was in disagreement”. According to Coleridge’s text, she did this by inducing others – the ”delinquents” – to ”beat up” and stone a French prisoner of war who was claimed to be a Jew.

200The extensive witness evidence, although not wholly consistent, offered a markedly different account. All witnesses agreed that the Frenchman entered the neighbour’s house, accompanied by a blind Maltese man, in order to buy poultry and eggs. The witnesses also agreed that, as the Frenchman was leaving by the front door, Fortunata was on her roof terrace and that she began to call out that a Jew had entered the neighbour’s house (the house of Anna Singlia). According to one account, Fortunata, was reported to have accused the supposed Jew (the Frenchman) of doing magic; according to another, of intending to slit the arteries of the inhabitants. Importantly, these accounts also revealed that, as well as calling on her neighbours to attack the Jew, Fortunata came down into the street and threw stones at him. This evidence is particularly important because it altered the criminal nature of her conduct. It is not simply that she incited violence intending it to be perpetrated by others, but rather that she initiated that violence and took part in it herself. This evidence made her offence more serious and perhaps explained why she was exiled for life. It is all the more remarkable that these, critically significant, facts were omitted by Coleridge from his Notice.

201But this is not all. According to Coleridge, it was the ”delinquents”, and not Fortunata, who stoned the French prisoner. However, according to the latter’s own testimony, the only stones were thrown by Fortunata. The other assailants merely threatened to punch him. Following Francesco Borg’s intervention, he escaped unharmed.

202As stated above, Coleridge’s Notice explicitly connected the attack on the Frenchman with a disagreement between Fortunata and Anna Singlia. There was a suggestion of a ”vendetta”. Coleridge’s emphasis on this motive was not a casual one. Not only was Fortunata a threat to her fellow citizens, she was also cruel and manipulative. Coleridge inferred that she was so evil that she thought it acceptable to have a third party assaulted simply to cause distress to a neighbour.

203However, the ”vendetta” was Coleridge’s own invention: there is no evidence of it in any of the witness statements. Anti-Semitic sentiment alone caused and motivated Fortunata’s behaviour. This was, of course, a most serious matter and, arguably, sufficient to convey his message without embellishment. So why did Coleridge go further and invent the ”vendetta”? The answer to this is elusive, but one possibility is that the supposed dispute with the neighbour suggested even greater malevolence because it involved cunning manipulation. In other words, in choosing those particular means of distressing her neighbour, she had been willing to have an unconnected third party stoned. It portrayed even greater Machiavellian ruthlessness. The ”vendetta” also created an additional victim from within the Maltese community (the neighbour). Did Coleridge feel that this was important to win greater public support for her conviction? Was her anti-Semitic behaviour not enough to secure public revulsion? If so, and Fortunata had to be portrayed as a threat to her ”own” community as well as to the Jews, it suggests that anti-Semitic sentiment must, indeed, have been widespread.

204The stated purpose of the punishment (exile for life) was to cure Fortunata of her anti-Semitic attitudes. In that sense, its dominant purpose was, ostensibly, rehabilitative; but, somewhat contradictorily, the Notice records that there were no Jews on Gozo; and the possibility of readmission to Maltese society was precluded, unless the exile was rescinded. Despite its stated purpose, the punishment was predominantly designed to remove Fortunata from Malta to protect community relations. The severity of the punishment also revealed an intention to deter others.

205The Notice contained certain paradoxes concerning the reward granted to Francesco Borg, who intervened to rescue the Frenchman. The fact that a reward was conferred implies a recognition of exceptional conduct – in this instance the courageous and independent action Borg had undertaken when he intervened to confront, alone, the numerically superior ”two or three delinquents” who were (according to Coleridge’s version) stoning the victim. The offer of a reward, by itself, commended Borg for his conduct.

206Curiously, the Notice continued that the Civil Commissioner was displeased at ”having” to reward Borg for doing no more than his civic duty. Moreover, the Notice, somewhat bizarrely, emphasised that this displeasure was even greater than that Ball had suffered when having to punish Fortunata for her incitement of violence.

207This somewhat astonishing statement was, perhaps, designed to be a standard-setting measure. Perhaps it was intended to remind society that intervention to prevent assault is a normal civic duty. If so, the strategy seems clear: Ball and Coleridge intended to encourage individuals to act on their own initiative either to prevent or to restrain any further anti-Semitic violence. However, the manner in which this was achieved, in particular by the grudging statement concerning the reward, cannot have acted as an incentive to others to confront those actually using, or prepared to use, violence against Jews.

208The conclusion, that the reward was reluctantly granted, is reinforced by the emphasis Coleridge placed on reserving rewards for cases of greater merit. It is possible to ask what cases might be more meritorious? After all, according to Coleridge’s account, Borg was depicted as having moral and physical courage to intervene against a gang who were stoning an innocent victim. The impression created is that the gang might have turned upon him, so Borg had showed conspicuous bravery to save, from serious harm, a member of an unpopular minority.

209However, the facts were not as Coleridge would have the Maltese believe, and the suggestion is that Coleridge knew this. Borg made no claim to intervene in a stoning; and the victim, the Frenchman, testified that the group of assailants merely threatened to punch him, and that he escaped uninjured. This places Coleridge’s remarks about reserving financial rewards for more meritorious conduct into context. A conclusion to be drawn from this might be that Borg was not rewarded for any outstanding courage in confronting a dangerous mob, but rather to signal an appropriate official approval of those who challenged the ”popular prejudice” of anti-Semitism.

210The Public Notice is also of interest for its obvious omission. It does not record what punishment, if any, was meted out to those whom Coleridge alleged perpetrated the alleged assault upon the Frenchman. The Avviso is also conspicuously vague as to whether there were two or three attackers (the witness evidence is not). The impression Coleridge created was that the ”delinquents” were never identified and that they ultimately escaped justice.

211In fact, the witness evidence is clear. It identified and named all those who pursued the Frenchman, which meant that the authorities would have had no difficulty in apprehending them had they wished to do so. The reason they were not arrested is that their conduct was not sufficiently serious to justify prosecution. Apart from Fortunata’s conduct, a blow was threatened, but none was actually inflicted. It was Fortunata who was the most serious offender: she incited violence; she initiated and took part in it herself. In fact, she was the only individual who threw stones at the victim. This must have been the reason why she alone was prosecuted. Coleridge again misrepresented the facts.

212Are the inconsistencies the result of the haste with which the Notice was prepared and promulgated? Did Coleridge resort to invention to ensure Maltese support for Fortunata’s conviction? If so, why not refer to the stoning that she alone perpetrated? These are difficult questions. Certainly, it would seem to be the case, that Coleridge knew more of the factual background than the Notice, in its terms, revealed, and that Coleridge may well have manipulated information to further the government’s purpose in portraying anti-Semites, such as Fortunata, as malicious individuals who acted not to only harm unpopular Jews but also their fellow Maltese. Coleridge used information to reinforce the appropriate conclusion that it was in the interests of all inhabitants to suppress anti-Semitism. Whether Coleridge deliberately misled the inhabitants is open to speculation. If he did not deliberately mislead then the conclusion must be that either he or his staff did not take sufficient care to ensure the accuracy of the information he communicated.

5.4.2. Immigration and the Detection of Crime

Proclamation of 21 June 1805 – Immigration and Crime175

  • 175 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 14.

213This Proclamation was aimed, on the one hand, at the regulation of immigration and the presence of foreigners on the islands, and, on the other, the registration of vehicles and vessels. According to the preamble, the common theme of these two, apparently distinct, policy goals was the reduction of crime.

  • 176 Above n. 93.
  • 177 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207 et seq.

214Contrary to Ball’s assertion, in his despatch to Windham,176 that the insurrection was a matter that was soon forgotten – one that blew over within a few days – it seems likely that the authorities understood that the destabilising social friction resulting from immigration required further official action. The control of immigration had, since 1801, been a matter upon which the civil (rather than the military) authorities could legislate.177 Even so, the moral basis of the intervention in 1805 is perplexing.

215The problem of unemployed foreigners having been forced into crime had been, in the former days of the economic slump, a pressing political issue that justified the early interventions by the authorities; but these new, far-reaching legislative controls on foreigners, including foreigners already present on Malta, (many of whom must have satisfactorily demonstrated their peaceful intentions) requires special justification. This is especially so when much of what took place in May 1805 was a consequence of racist agitation resulting from simmering anti-Semitism. Why did Ball appear to indulge this sentiment?

  • 178 Cameron’s Royal Instructions of 14 May 1801 had instructed him as follows: ”No alteration should b (...)
  • 179 See Chapter 6.

216The first possibility is that, as a pragmatist, Ball might have acted in the belief that this Bando was necessary to preserve public order. We have described evidence that the authorities were more unsettled by what took place than Ball’s despatch of 1807 acknowledged; and Coleridge’s own evidence suggests that the authorities actually believed that a massacre had narrowly been avoided. Ball might have decided that the new regulations would be a proportionate response to the threat of insurrection; after all, he did not re-instate the former ban on Jews living on Malta. And in Ball’s defence we must not overlook ministerial directions, which he was bound to follow. He was, it will be recalled, ordered to maintain the popularity of his administration even if this meant indulging the ”prejudices” of the Maltese.178 If Coleridge hesitated at the moral problems posed by policymaking driven by indulging racial prejudices, the business of government may have been thought to make such compromises expedient and even necessary. Thus, the actions of government in the aftermath of the disturbances of May 1805 might have been on Coleridge’s mind when he expressed contempt for political morality when he left office.179

  • 180 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 273.

217Coleridge’s Bando introduced tighter controls on immigration, more extensive powers to monitor the foreigners present on the Island, and strengthened the power to deport. It was a further step in tightening the regulations to which foreigners had been subjected on the Island since the first Bando on the subject in 1802.180

218Curiously, Coleridge also used this Bando to introduce new measures concerning other matters. Gigs for hire, carts, ferry boats and fishing vessels had to be registered under a new system thereby ensuring that the authorities could identify them and their owners. This might have served a number of purposes that included crime prevention and detection. Bearing in mind the apparent problems of gaining witness evidence in many cases, Coleridge may have wished to make it easier to identify miscreants. It is unclear why Coleridge decided to bring all these matters within a single Bando.

Immigration and Foreign Visitors

219As we have seen, under existing regulations, the authorities had the power to require overseas visitors to state their occupation and the purpose of their visit. This allowed the Administration to exclude persons who had no bona fide purpose on the Island, or those who might have been tempted into crime if they had no obvious means of earning their livelihood. Coleridge’s Bando allowed the authorities to take even more extensive powers, including the power to limit the numbers of foreigners present on the Island, by means of a permit system, and introducing, for the first time, a maximum duration for the visit.

220Significantly, the regulations forced foreigners already present on the Island (including the Jews) to obtain a permit in order to continue residing there. This signalled a recognition that the existing population of immigrants required control, albeit for political reasons.

221The rationale of Coleridge’s Bando was that immigration and settlement would only be permitted when it served a public interest as identified by the authorities. It offered the public assurance (if nothing more) that the authorities were acting to protect the Maltese from foreign criminals, carpet-baggers, opportunists and or anyone who would disturb the stability of Maltese society.

222The Bando introduced a requirement for all overseas visitors to obtain official permission in order to stay on the Island. Those not registered were prevented from obtaining accommodation. As said, it re-iterated the requirement of earlier Bandi (see above) that the grant of permission depended on the overseas visitor satisfying the authorities of the reason for their presence on the Island. However, it introduced a major reform. Even in cases in which the purpose was either innocuous or conducive to the public good, the Maltese authorities now took a further power to determine the maximum limit of the visit. Longer term visits (longer than four months), became a matter for the discretion of the Civil Commissioner. Thus, the Civil Commissioner would have the power to determine which foreigners could reside on Malta.

223Before examining the Bando in more detail it is important to state that the instrument does not define who are foreigners and, thus, who might be regulated. Whether, for example, the term ”foreigner” included British subjects is unlikely because the Maltese were, in law, British subjects, although this was not publicly admitted by the British during this period.

The Registration System

224Every foreigner wishing to remain ”for a period of time” on the Island had to obtain a permit. This requirement extended to all foreigners already resident on the Island as well as future immigrants.

225Somewhat confusingly, the penalty for non-compliance was inserted into Article 2, which dealt with particular categories of foreign visitor and foreign residents. However, it is likely that Coleridge intended this provision to apply generally, for there was no other provision dealing with penalties for breach. Foreigners without a permit (including existing foreign residents) would be subject to a fine of ten oncie and immediate deportation. They would, thereafter, be subject to permanent exclusion from the Island. This was a severe penalty. It can readily be understood that the existing foreign residents, already present on Malta in June 1805, must have been extremely anxious to obtain a permit. If this had been refused, the prospect of immediate deportation would, inevitably, have caused hardship especially to those with non-liquid assets on the Island.

226The permit system was to be operated by both the President of the Grand Court of Valletta and the Chief of Police, who had, jointly, to sign any permit issued. Where they thought it appropriate to do so, they could consult with the Civil Commissioner.

227The involvement of the Chief of Police, in particular, suggests that the authorities were concerned about foreigners who visited Malta with criminal intent. One purpose of the registration scheme was, clearly, to weed out criminal elements before they entered Maltese society. This concern can also be seen in the information that the foreigner was required to provide, which includes his or her real name. This provision suggests that foreigners intent on wrongdoing had previously entered the Island using aliases.

228The Bando was highly prescriptive in the demands it placed upon the licensing authorities. They were obliged to meet every day, at ten o clock in the morning, to consider the cases of the foreigners who had arrived that day. It is unclear what legal consequences would follow if they failed to meet as required.

229The regulations specify, in detail, how two, distinct, registers relating to the foreigner’s admission to Malta were to be maintained, one by the President of the Court and the other by the Chief of Police. The information included the identity of the foreigner, and, of course their reason for being present on Malta. It was also noted which documents the authorities had inspected to establish the foreigner’s credentials. The form of the entries was also stipulated in precise detail.

230Most importantly, the Chief of Police’s register was required to record the date on which the foreigner quit the Island and whether the permit had been surrendered. This clearly allowed the authorities to monitor the number of foreigners present on the Island.

231The information concerning the date of departure and surrender of the permit had to be communicated ”by hand” to the President of the Grand Court. For reasons that are not obvious the regulations did not explicitly require the President to record this ”exit” information in his register, although presumably, the President would, naturally, have wished to keep a record of the information he received from the Police.

Limitations on Entry to Malta

232In order to obtain a permit, the overseas visitor had to provide the authorities with the information required by the Bando which was recorded in the register as well as on the face of the permit.

233Included in this information was, in the words of the Bando, the amount of time that the foreigner ”wishes, and is able to remain on the island”. This should not be read as allowing the foreigner to determine the length of the permitted stay on the Island – i.e. a duration determined according to his or her wishes. Articles 4 and 7 of the Bando made it clear that the permitted duration of the visit was a matter for the Maltese authorities, and even they did not have unlimited discretion in this respect. Article 4 stipulated that the maximum duration of the permit, in the first instance, could only be two months and was renewable, by the President and Chief of Police, for a period of no more than two further months. Any stay longer than four months was a matter for the Civil Commissioner. This, of course, placed effective control, of settlement on the Island, within British rather than Maltese hands. Clearly, the authorities were unwilling to allow foreigners to take up permanent residence or to operate businesses based on the Island without being able to satisfy the Civil Commissioner that their presence was conducive to the public good.

234The reference to the period of time the foreign visitor would be ”able” to remain on Malta is perhaps a response to the problems caused when foreigners had arrived on the Island lacking independent means of support. Coleridge was required to ensure that the authorities could enquire into the length of time during which any foreigners could provide for themselves.

  • 181 See e.g., the application of Diego Decandia, 29 August 1805, in the Registro dei Memoriale e Decre (...)

235The Civil Commissioner’s discretion to grant or refuse a (residency) permit, for a visit in excess of four months, was unlimited. He could take into account any information or any suspicion that he considered relevant. The Registro dei Memoriale e Decreti provides unambiguous evidence that a more stringent and discriminating approach was being taken with these applications after the coming into force of Coleridge’s Bando of June 1805. Many applications by foreigners for an extended residency (or, alternatively, for naturalisation) were rejected, albeit that some were granted. Those whose applications succeeded were, however, only granted a permit to remain during the Civil Commissioner’s pleasure. Removal was possible at any time in his discretion: no right of residency was thus created.181

236The regulations provided that those foreigners already on Malta, when the registration system came into force, would have to ”try” to obtain the necessary permit within eight days. It was not made clear, in the Bando, what would satisfy this obligation. It certainly reveals that not having the permit after the expiry of eight days would not necessarily be an offence provided an attempt had been made to get one. However, the reality was that each foreigner was liable to a fine and deportation if a permit was refused.

237The Regulations were obscure in their scope. For practical reasons, not all foreign visitors were required to obtain a permit. Given that a distinction was to be drawn between those who were regulated and those who were not, it became imperative to distinguish between them. The Bando merely states that those wishing to remain ”for a period of time” must register and remain in possession of a permit. This is plainly intended to alleviate a burden upon both the foreigner and the Maltese administration by making provision for certain short-term visitors. But it is unclear what duration of visit triggered a requirement to register. This represents a further, obvious, defect in the scheme of regulations. Given the draconian penalties for not obtaining a permit, this lack of clarity might have encouraged many to obtain a permit to safeguard themselves. If so, the problem, with this cautionary approach on the part of visitors, would have been that the administration would have had to process more cases than might have been intended.

238Frequent overseas visitors to the Island were required to obtain a permit ”immediately after their arrival” or risk a penalty of being fined ten oncie and permanent exclusion from the Island.

239In common with other Bandi, the fine was to be used to reward informants who offered information about unregistered foreigners. The need for paid informants implicitly acknowledged that incriminating information would not otherwise have been given to the authorities. Given the popular feeling against foreigners, it is unclear why Coleridge doubted the willingness of the Maltese to inform: presumably, unregistered foreigners would have been identified as troublemakers that the Maltese would wish to see deported.

240As we have seen, it is clear that the authorities wished to know who was on the Island at any one time because, when they left the Island, the foreigner had to return his permit to the Chief of Police. By the simple method of recording the number of permits issued (and not returned) the authorities intended to know, at any given time, the number of overseas visitors present. Of course, this depended on ensuring that the foreigner would surrender the permit on leaving the Island. Failure to do this was made, under Article 5, a grave matter since the offender would be permanently excluded from the Island. This was a mandatory sentence; there was no discretion to impose a lesser exclusion.

  • 182 Considered below under ”Passports”.

241This provision, requiring surrender, also had the effect of removing the permit from circulation, thus preventing it being passed on to a potential wrongdoer who could then claim entry. Doubtless, Coleridge had the unfortunate experience of the ”Mediterranean passports” in mind when he drafted this provision.182

Unregistered Foreigners

242To make it difficult for foreigners to evade the registration system, the new regulations provided that lodgings could not be ”given” to an unregistered foreigner, nor any house rented to him. The terms of the Proclamation were particularly harsh because the penalty for an offending landlord was a mandatory life-time exile from Malta. Moreover, this was, from the landlord’s viewpoint, an especially draconian measure because a landlord had no defence when he had been shown a false permit. This meant that the risk of deception was borne by landlords. Coleridge’s Bando, accordingly, advised landlords to check the authenticity of the permit with the authorities. It seems that proof of having taken this step was the only defence when a landlord unwittingly let a room to an unlicensed foreigner who presented a false permit.

243Thus, the regulation placed under the strict control of the authorities, the presence of all but a very few short-term visitors to the Island. They could ascertain, from the number of permits issued, how many foreigners were on the Island; the registers recorded why each individual was present and how long they were permitted to remain. Permission to remain would, normally, be for a maximum of four months unless the express permission of the Civil Commissioner was obtained. This gave the Maltese some assurance that immigration would potentially be controlled and policed.

Gigs for Hire, Carts, Ferries and Fishing Boats

244Coleridge’s Bando also created a vehicle and vessel registration scheme for Malta. This involved the keeping of three sets of registers. The first maintained by the President; the second lodged with the Government office but updated by the President; and the third maintained by the local lieutenants of the casals and the fiscal lawyer of the maritime court.

245The owners of vessels and vehicles had to obtain a number for their vessel or vehicle from the President of the Court. The number, painted in oil, was then displayed on it. The President was required to stipulate the place where the number had to be displayed. He had to maintain a register of the numbers allocated and in the format required by the regulations (see Reg. 11). The register had to include the name of the proprietors, their country of origin or place of residence. Any sale or transfer was intended to result in a new entry in the register but, in what appears to have been a startling error, Coleridge did not require the sale or transfer to be notified either by the seller or buyer/transferee. Presumably, the authorities discovered this information during their monthly inspections (below). This is interesting because the burden of detecting changes in ownership fell upon the authorities. An alternative system might have required the owners to notify a transfer of ownership, which would have alleviated the burden upon the authorities.

246The number was to be reallocated if the vehicle or vessel was destroyed.

247Records containing similar information were to be maintained by the local lieutenants in the casals and the fiscal layer of the maritime court. Somewhat surprisingly, the role of the fiscal lawyer of the maritime court was not confined to the registration of vessels. In so far as he had to register the number of gigs for hire and the number of carts, reg 15 treated the fiscal lawyer similarly to the lieutenants of the casals. Presumably, this was intended to create a national register of the carts in addition to the local registers. Each month these office-holders were required to inspect the vehicles/vessels to make sure their numbers were still legible and update the record to reflect changes in ownership etc. The identities of all owners and the condition of the numbers had to be reported monthly to the Government.

248A copy of the register kept by the President had to be submitted to the government within one month; and this copy, held by the government, had to be updated regularly thereafter ensuring that it corresponded with the copy maintained by the President.

249Drivers and operators were also to be issued with a card showing the number. This, of course, meant that the authorities who stopped a vehicle/ vessel and its driver would have some prima facie indication as to whether any suspected vehicle or vessel was being lawfully operated.

  • 183 The language of the Bando suggests a wider obligation requiring the card to be carried at all time (...)

250A failure to comply either with the registration requirement (the obligation to obtain a number) or to carry the card bearing the number when the vehicle or vessel was in use183 would result in a fine. This was stipulated to be six oncie for a first offence. There was no discretion to impose a lesser penalty.

251A second offence would result in the mandatory confiscation of the vehicle or vessel, which was to be sold following its confiscation. There was no express prohibition on its re-acquisition by its offending former owner.

252Three oncie from the proceeds of sale were to be given to the informant who notified the authorities of the offence – a familiar device in Maltese legislation, and perhaps a measure necessary to encourage reluctant witnesses.

Enforcement Agency

  • 184 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 156.

253The President of the Grand Court was given responsibility for overseeing the implementation of this Proclamation, as well as a number of others to which Coleridge referred. These included the Proclamation of 3 December 1800 which regulated ”layabouts” and ”vagabonds”184 as well as the Proclamation of 12 November 1804 which was concerned with the participation of women in politics. Unfortunately, no record of this latter measure can be found in the archives of the National Library of Malta.

254The day to day enforcement activity became the responsibility of the Grand Viscount, or his lieutenant, the Maestro di Piazza, as well as various other captains and viscounts. These were essentially officers of the local law enforcement to whom offences had to be reported under the Code de Rohan. We have seen, earlier, how the Jew, Di Biaggii, went to complain to the authorities about the taunts and insults he endured from the boys in St Paul’s Street, Valletta. He had gone immediately to the Tribunal and returned to the scene with the Viscount.

  • 185 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 213.

255Responsibility for enforcing earlier regulations for the highways had already been imposed on the Maestro, so, to that extent, this Bando was broadening the jurisdiction of an existing structure concerning the transport system. For example, it was the Maestro who enforced powers and duties under the Bando of 29 August 1801,185 which was concerned with removing street nuisances and obstructions. These new regulations gave further powers in relation to vehicles.

5.5. Corruption

Introduction

  • 186 See Chapter 2 and the taxation theme.
  • 187 It will be recalled that Ball’s Instructions were to ”attach” the Maltese to British rule: Secreta (...)

256The problem of corruption, particularly amongst officials in the various Maltese departments of state, including the Università, has been noted elsewhere.186 It was an insidious and threatening problem for Ball’s strategy of Government since the central goal of British policy was aimed at winning and retaining popular support for his Administration.187 Corrupt practices threatened to undermine this because, by their very purpose, they were intended to distort the manner in which a public body ought to function when performing its legal and administrative duties. This problem, clearly, had the potential to combine with other causes of disillusionment with the British Administration and, thereby, further undermine public trust in government.

  • 188 Thornton identified ”fictitious entries” where the books did not balance. See Thornton, Report to (...)
  • 189 Such opportunism also extended to ordinary Maltese. See for example Coleridge’s Public Notice of 2 (...)
  • 190 See for example the military discipline theme.

257Sufficient evidence survives to reveal suspicions about official behaviour on Malta. For example, the conclusions from Thonton’s analysis of the affairs of the Università, between 1800 and 1814, are not convincingly explained by official incompetence alone.188 The inference is that either theft or other forms of dishonesty were a problem in this department. It seems that Maltese officials illegitimately diverted public money for private purposes in the knowledge that the British Treasury would ultimately replace it. The British had signalled to the Maltese, at the time of Treaty of Amiens in 1802, that British interests would be prioritised even if this meant damaging those of the Maltese. Some Maltese officials – we do not know how many – might have been tempted, in what perhaps came to be regarded as a cynical relationship, to siphon off funds to make the most of the opportunities presented by British rule.189 Such conduct might well have had the tacit support of a population that, as we shall see, was perhaps not always sympathetic to British goals.190 So much for theft, what about bribery?

  • 191 Ball to Windham, 28 February 1807, Kew, CO 158/13/91.

258We cannot be certain how deep-rooted attempted bribery had become by the time Coleridge was on the Island, but we do know that Aloisia Caruana’s case – the subject of Coleridge’s Avviso – was not an isolated one. Ball reported to London, in 1807, that he had banished, to Barbary, two inspectors of the public market each of whom had accepted bribes.191

Corruption

259Bribery can be regarded as a means to persuade an official not to perform his or her public duty. If it succeeds an individual can attain a priority for their selfish interests that it might not otherwise have obtained, and this can be damaging to the public interest in rational and fair administration. Moreover, if there is a widespread perception that ”justice” can be bought and sold, disputes will be resolved outside of the court structure. The State’s monopoly on the use of coercive powers would break down: vendetta and vigilantism would replace adjudication.

260In some cases, and Coleridge’s Avviso deals with one of them, the initiative to depart from formal processes comes from the individual, at other times it comes from the public official. In the latter case, officials illegally demand money, from members of the public, for their services. Because the victims are members of the public, frictional effects are almost inevitable, not least where many individuals cannot afford the price demanded. The case of the corrupt Maltese market inspectors was likely to have fallen into this latter category.

Coleridge’s Avviso 14 June 1805192 – Attempted Bribery

  • 192 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 11.
  • 193 The tactic of naming the judge in this instance safeguarded his judicial reputation, but Coleridge (...)

261This Notice recounts that Aloisia Caruana was imprisoned for having attempted to bribe the Penal Judge of the Grand Court of Valletta, with an ounce of Sicilian gold, in order to ensure a favourable outcome in her appeal. It seems that she had already been convicted of a criminal offence; and the judge whom she attempted to bribe, one Doctor Vincenzo Caruana Zerafa, had been listed to hear her appeal. There was no suggestion that Zerafa had accepted the payment; it had merely been offered. Presumably, the judge had then taken action to have her punished. Thus, in one sense, the Notice is not simply concerned with announcing the punishment of an offender; it also records the moral integrity of the Maltese judiciary and invites public support for the criminal justice system.193

  • 194 See Chapter 2.

262This Avviso had a wider significance because it was issued in the weeks following the anti-Semitic disturbances during which the Administration had interfered in the judicial process to exact a higher sentence for convicted offenders. As we have seen, this interference had caused significant alarm in Malta. It became one of many complaints about Ball’s administration that was recounted in a Petition to the Crown. Ball and Coleridge may have issued this Avviso to stress the integrity of the Maltese judiciary and to rebuild confidence in it.194

Punishment

263The sentence imposed on Caruana – an indeterminate but brief incarceration – suggests that her offence was not regarded as particularly heinous. By contrast, the sentence of banishment imposed on the market officials was of a different and altogether more reprehensible character because they had betrayed the trust reposed in their office. The authorities distinguished between the offering and acceptance of corrupt payments and treated more harshly the abuse of public office by those officials who allowed themselves to receive bribes. Even so, an ounce of gold must have represented a significant sum as it is hardly conceivable that Caruana would have attempted to bribe an appeal court judge with a trivial sum of money.

264The sentence imposed on the offender raises some interesting questions about the judicial process on Malta in 1805. We have already mentioned that the Notice does not specify the duration of the period for which she would be incarcerated. The formula employed was that she would continue to remain in prison for ”several days”. The reason why the period of the detention was not stipulated is unclear. One possibility is that Coleridge, deliberately or otherwise, refrained from giving specific information, although it is difficult to imagine why this could be sensitive.

  • 195 There appears to have been a custom that at Christmas and Easter prisoners might have their senten (...)
  • 196 Sultana, ibid.

265Another possibility is that the sentence to be served was not actually fixed at the start of the sentence and so Coleridge could not include it in the Avviso. Her release date might have depended upon the discretion of the penal authorities, possibly even upon that of Ball himself since he had an absolute discretion to release prisoners.195 It appears that this prerogative power was exercised in consultation with the Chief Justice or the proseggretario, Zammit,196 and, if so, Coleridge would not have wished, by means of a prior public announcement, to pre-empt their decision in this matter.

Public Relations

266It is highly significant that Coleridge recorded that the confiscated property was to be distributed amongst the poor, although this distribution had not taken place at the time the notice was promulgated. Since this information was, essentially, extraneous to the deterrence, it is likely that Coleridge included it for the deliberate reason that he did not wish to miss a valuable public relations opportunity. He had clearly realised that he could use this Avviso to present Ball as he wished to be presented – as a just and kindly governor.

267One resentment that endured after the uprising concerned the harsh sentences that Ball had demanded from the judiciary. As we have described, a boy of twelve was amongst the banished; and Ball had declared that, in future, he would punish minors with an equal severity to adults. This, perhaps, explains why Coleridge emphasised the steps Ball would take to protect the weaker members of society. He would also have wanted to remind the Maltese that Ball was concerned about their economic welfare, since the uprising had, in part, been motivated by fear of renewed poverty resulting from competition in trade. Thus, the Avviso represented an attempt to re-engage with a number of Maltese concerns after the civil disturbances of the previous month. It is another example of an Avviso being used to stimulate public approval of Ball, and it is one of many that served Coleridge’s broader political agenda of retaining popular support for British rule.

5.6. Consumer Protection

Introduction

268In this section, we shall consider Coleridge’s measures to regulate the availability of strong spirits, to impose inspections on wine, to control sales of unripened fruit and to warn of counterfeit coinage.

269The purpose of consumer protection laws is to correct market failure. In other words, the legislator will have identified trading practices that require State intervention. This is achieved by making regulations to protect consumers.

  • 197 As was the case in relation to spirits, where the authorities regulated the quantity available: Se (...)

270Laws are often introduced to safeguard the economic interests of consumers, for example, by prohibiting unfair or deceptive practices or to protect health and safety either by removing dangerous goods and services from the market place or, alternatively, by restricting their availability.197 Some of Coleridge’s Bandi, such as those concerning spirits, also indirectly served public order purposes by reducing alcohol-related crime.

  • 198 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 19.

271It is important to understand which purpose a law is intended to serve before we can judge the competence and coherence of its drafting. If, for example, its concern was health and safety, we would assess the measure on its potential to remove the dangerous commodity from use. Alternatively, if the measure was intended to prevent shopkeepers confusing customers (as in the case of the unripened fruit in the Bando of 5 August 1805198) we would expect the measure to permit consumption, but to regulate the circumstances in which the goods are displayed – e.g. by requiring clear labelling. However, for the reasons set out below, the drafting of Coleridge’s consumer-protection measures sometimes suffered from confusion about what evil was to be eradicated.

272A preliminary matter of interest is that Coleridge’s legislative agenda did not extend beyond correcting certain particular, and quite narrowly defined, examples of market failure. For example, he targeted the sales of unripened fruit, rather than imposing a general duty upon sellers to ensure that all food offered for sale was fit for consumption. This suggests that neither Coleridge nor Ball had a broader political ambition to introduce general principles of consumer protection that would apply to all transactions. This is unsurprising at this date in history. The approach to regulation was minimalist, which indicated that policy-makers favoured a conception of the State’s role in regulating commerce that promoted freedom of contract – an ideology that normally expected consumers to safeguard their own interests without expecting the state to perform this role for them. Regulations were, thus, reserved for cases that caused particular difficulties.

  • 199 See Bando 29 January 1805, which is considered under the reconstruction theme.

273The hesitation in using criminal penalties is another significant feature of Ball’s approach, which was not confined to consumer protection. As we have seen, there was also a notable failure to criminalise the continued use of studded cartwheels even though they damaged the roads.199 The penal code seems to have been reserved for the most serious abuses, which, naturally, required the making of value judgements. However, where criminal penalties were available they could be mandatory and severe.

5.6.1. The Regulation of Spirits in the Bando of 22 March 1805200

Introduction

  • 201 See taxation theme.

274The British authorities had already identified excessive alcohol consumption as a policy problem by the time Coleridge drafted the Bando of 22 March 1805. He had already made reference to this in a Bando of 8 March 1805 dealing with the re-imposition of the wine tax. Unlike the later instrument, (22 March) the 8 March 1805 Bando did not have public health protection as its primary purpose. It merely used the Administration’s concern over excessive consumption of alcohol as an additional means of making the argument for the re-introduced excise duty. As we have seen, the real purpose was to raise revenue to finance the Island’s deficit.201

  • 202 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 224. This prohibited the sale of wine, brandy or rum to t (...)
  • 203 Bando, 18 October 1802, NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 273.
  • 204 See e.g. the fatal stabbing of a British soldier by a Maltese in September 1805:

275The timing of the controls on alcohol is of critical interest because, in the spring of 1805, a large contingent of British troops had arrived on the Island in readiness for an expedition to defend Sicily. The troops were garrisoned on Malta until November 1805. The potential availability of cheap, low quality, liquor was a problem for the military authorities, who were not only concerned about drunkenness and discipline, but also violence between the garrison and civilians. Alcohol abuse by British troops, and others, had already prompted such earlier Bandi as the instrument of 24 November 1801202 and a further measure banning alcohol sales to anyone carrying a knife.203 There were also fatal assaults inside and outside bars.204

  • 205 Ball to Camden, 19 April 1805, Kew, CO 158/10/133-4.

276It is significant that Ball wrote to Camden that Coleridge’s Bando of 22 March 1805 had the support of military commanders, including Major- General Villettes, Commander-in-Chief of British land forces on the Island. The Chief medical officer had also welcomed the measure, which Ball emphasised, in his despatch to London, would place stricter controls on the trade in spirits than on wine.205

277As in other Bandi, there is, thus, strong evidence to suspect that Coleridge’s statement of the purposes of the regulations were neither comprehensive nor objective. According to the published text, he chose to emphasise that the planned restrictions would maximise welfare, in particular public health, by limiting the quantity and regulating the quality of the product accessible to the retail market. However, when the law is examined alongside the surviving records of licence applications it is clear that the purpose of regulation was to make it very difficult for British military personnel to gain access to strong liquor. The publicly-stated (but not comprehensive) reasons for the enactment of the Bando is another example of an appeal to win the consent of the Maltese to a regulatory measure. By presenting it as one designed to ensure their safety and wellbeing Coleridge was suggesting a congruence between the British and Maltese interests in this matter. As in other instruments, we find Coleridge obfuscating the policies underlying the measure. His opening paragraph might be seen as propaganda or ”spin”:

The attention of His Excellency the Royal Commissioner has been drawn to the abuse of spirituous liquors, and to the damaging effect that they have on health. He has therefore, willingly undertaken the task of trying to find a way to limit this problem and with this aim in mind he proposes the following decrees, and orders their strict observance.

Regulation of the Supply Chain

  • 206 It is noteworthy that the inspector was the Chief Physician.

278Coleridge decided to reject the use of a price mechanism to limit demand for spirits. Price alone would not achieve the various public-policy goals that Coleridge wished to pursue. He brought under the control of the State the entire system for the import, manufacture, distillation, distribution and sale of spirits. These extensive layers of controls were seen to be necessary to achieve a number of further goals, including preventing low quality, even dangerous, spirits entering the market;206 preventing undesirable persons importing, manufacturing or distributing liquor; reducing the quantities produced; regulating the premises entitled to sell alcohol; regulating those approved to sell spirits to the troops.

279The Bando is a labyrinthine and complex instrument lacking in both clarity and legal certainty. It has many of the hallmarks of inexperienced authorship.

280Coleridge drafted a sophisticated regulatory system that would bring the entire supply chain of spirits under the control of the authorities. Importers, distillers, manufacturers, wholesalers, distributors and retailers are all regulated in different ways. His special concerns were to regulate the quality and quantity of spirits sold and especially to control the retail trade. As we shall see, these activities were the focus of criminal penalties (in contrast to unlicensed wholesaling that was not).

281The production of spirits was placed under a particularly restrictive regime. First, the distillation of wine to produce brandy was separately regulated (see reg 4) and required a special licence from the President of the Grand Court. The authorities were clearly concerned to control the amount of distilled spirits entering the market place because Coleridge required the licence to state the maximum amount permitted to be distilled. Presumably, the authorities wished to know what quantities were available to be purchased. Moreover, if fewer establishments were licensed than previously, the product could become more scarce which would encourage the price to rise. This could be expected to reduce demand for it and so further restrict consumption.

  • 207 NAM 92/04 1805. For example, Giuseppe Camilleri was granted a licence to run a bar (tavola) on 3 M (...)

282Other manufacturers had to obtain their licence by way of a special decree from the Civil Commissioner. A surety of fifty oncie had to be provided, which was probably intended to prevent back-street or smallscale operations. Surviving records suggest that applicants were required to apply to the Civil Commissioner in the Segnatura.207

283Importers, wholesalers, distributors and even retailers were required to have a licence, issued by the President of the Grand Court of Valletta, for their activities, which would identify them as the licensed person by virtue of regulation 1. Any person even receiving spirits would require a licence. Thus, any person taking delivery of spirits fell within the licensing system. What is more, shopkeepers, innkeepers and publicans could only trade with an additional ”special decree” from the Civil Commissioner.

284The number of persons eligible for a licence was limited, presumably to prevent the proliferation of persons engaged in the trade. The fewer persons who operated within it, the more easily abuse could be detected. Under regulation 3 licences to import, unload or take delivery of spirits were restricted either to those who were already licensed to produce spirits or, alternatively, to apothecaries. This meant that wholesalers who would either have to be licensed apothecaries or licensed manufacturers.

285But Coleridge was not content that each wholesale distributor should have a licence. He wanted to ensure that no unregulated sales were made by wholesalers selling to unlicensed or shady operators, that is, persons outside the regulated supply chain. To make sure of this he made it an offence for a wholesaler to sell to anyone other than a licensed retailer.

Retail Outlets

286Coleridge particularly wanted to control the retail outlets. In addition to the licence from the President of the Grand Court, innkeepers, publicans and even shopkeepers also had to possess and an additional ”special decree” from the Civil Commissioner. They also had to be well known and of good repute – a requirement intended to deter back-street and shady dealers. In deciding whether to grant this licence the Civil Commissioner was required to consult with the President of the Court. This reveals that Ball did not wish the licensing of the retail chain to fall under the exclusive control of Maltese judicial administrators, but, nonetheless, wished to obtain their advice.

Military and Wine

  • 208 Coleridge would seem to have overlooked the foregoing provision that prevented manufacturers from (...)

287There were special regulations for retail sales in the four cities and Vilhena and for sales to military personnel. Within these districts, the retailers were obliged (under reg 9) to specialise, and, thus, to decide whether to sell either wine or spirits. This restriction did not apply elsewhere on Malta. This is unsurprising because the four cities would be an obvious destination for troops seeking rest and relaxation. But this is not all because a special licence had to be acquired to sell spirits to soldiers. Producers of spirits,208 confectioners, and shopkeepers, as well as the owners of cafés, inns and taverns were eligible to apply for special authority which, if granted, would permit them to sell spirits to soldiers.

  • 209 The condition also required the licensee to observe all other provisions of the Bando.
  • 210 See e.g. Rovario Farrugia’s application (wine only), 5 April 1805. The terms of this and the other (...)

288In practice, very few retailers succeeded in their applications. The surviving records reveal that when retailers applied for their wine or spirits licences, these were almost always granted subject to a standard condition that spirits could not be sold to either soldiers or sailors.209 The standard condition was only omitted if the retailer merely wanted to sell wine to the military.210

289Coleridge required the shops, inns and taverns that were licensed to sell wine or spirits to soldiers to display a sign on their doors. Of course, within the four cities they could only sell either wine or spirits, and the sign would indicate which beverage could be supplied to soldiers. This saved the retailers from having to refuse troops – possibly drunken troops – who entered their premises and demanded alcohol of a type they were not licensed to sell. The signs must have been intended to remove this potential flashpoint.

The Licensing Authorities

290Identifying the authority responsible for the licensing the various activities was far from straightforward and was suggestive of Coleridge’s lack of expertise and possibly his lack of attention to detail.

291In the case of importers, distributors and anyone taking delivery of spirituous liquor, the responsible licensing agency was the President of the Grand Court of Valletta. This judicial officer had the power to grant licences, at his discretion, ”wherever required”. The Regulations failed to state any eligibility criteria for the licence, so Coleridge must have intended that anyone who applied for a licence should receive one. This suggests that the authorities simply wanted to know who was engaged in the regulated activities.

292It is less clear who had the power to grant a licence to sell spirits to soldiers, although it can be inferred that it was the Civil Commissioner. Nonetheless, Coleridge ought to have made this explicit.

293The Civil Commissioner was the relevant authority in the case of manufacturers of spirits (other than those distilling spirits from wine). He was not explicitly restricted in the factors he could take into account in reaching his decision whether to grant or refuse a licence, except that he had to inform and consult the President of the Grand Court who might, in practice, have provided advice as to the suitability of an applicant.

294Producers were to be ”held to account” for the quantity of liquor imported, manufactured or distilled. This was a strictly-regulated matter so that those who obtained their special decree from the Civil Commissioner would discover that the maximum quantity they could produce and sell would be regulated.

295Presumably, a licensee could, subsequently, apply to the court to have the amount imported manufactured or distilled varied if opportunities increased but this was not made clear, nor was it clear upon what criteria the maximum amount was to be determined. Presumably, the purpose of any upper-limit was to control the appropriate maximum volume of spirits available for sale on Malta.

Record Keeping

296Coleridge used the licensing system to keep track of those engaged in the import, manufacture, distribution and sale of liquor. Licences awarded to importers, distillers (from wine), wholesalers and distributors had to be entered in a register, maintained by the President of the Grand Court, which was available for inspection at the Tribunal of the Grand Court. Like the wholesalers, the retailers also had to present themselves to the President of the Grand Court so that their licences could be registered. It is unclear what purpose this served. If it was to reinforce the provision that a shopkeeper or innkeeper or tavern keeper had to be of good repute, it seems ill-conceived. If the President had reason to doubt the reputation of those before him when they presented themselves, it would appear to have been too late for him to intervene because, by then, they had their licences from the Civil Commissioner.

297The manufacturer’s licence, granted by way of special decree by the Civil Commissioner, was not explicitly required to be entered into the Register, although it may have been Coleridge’s intention that comprehensive records be maintained. Certainly, the Civil Commissioner, in exercising his powers, had to notify the President of the Court and one probable reason for this – which Coleridge did not make clear – was that the President should know, for record keeping purposes, which persons had been granted a producer’s licence by the Civil Commissioner.

298The register was to be open to inspection ”whenever required” at the Tribunal of the Grand Court. The interpretive ambiguity surrounding this is obvious and begs the question whether there were restrictions upon the conditions of access. Did this regulation mean unrestricted public access? Did the legislator intend to make it available to any curious member of the public? The regulation was also silent on the times during which inspection was possible. Coleridge chose to leave these matters to be decided by the administrators, and ultimately, the courts.

299A failure to maintain the register or a failure to permit access to it was a breach of public duty, but it is not stipulated as a criminal offence.

300Manufacturers also had to keep business records of all sales made, to ensure that they were not exceeding the permitted maximum. The records would also allow the authorities to monitor to whom sales were made and, thus, to oversee the supply chain.

Inspections and Quality

301There must have been problems with the quality of liquor sold on Malta because one of the key regulations that Coleridge introduced required quality controls. The Chief Physician had to certify that the spirits intended for sale were of a satisfactory quality. All liquor produced on the Island was subject to this inspection, and it was an offence to sell it without the appropriate certificate of approval. This is consistent with Coleridge’s preamble which states that the authorities were concerned about the effect of spirits on the health of the population. No doubt, it would also have been of concern to the military commanders who were, of course, concerned to maintain the efficiency of the armed forces.

Penalties

302The Bando was highly selective about which activities it sought to criminalise. It is revealing that most, but not all, of the new offences were aimed at breaches of the regulations concerned with retailing. Interestingly, the Bando contained twelve articles, of which only the breach of articles six to eleven carry criminal penalties. For example, it was not an offence to trade, as a wholesaler or distributor of spirits, without a licence. It is unclear whether this was an oversight on Coleridge’s part.

303Similarly, a producer who manufactured spirits without a licence (i.e. a licence granted by special decree from the Civil Commissioner) committed no offence. However, such a person would have been required to forfeit the surety of fifty oncie deposited with the Treasury.

304The Bando created various offences. It became an offence to operate as an unlicensed shopkeeper, innkeeper or tavern keeper or for retailers within the four cities to sell both wine and spirits, or to sell spirits to soldiers without a special licence. It was also an offence for them not to display the required notice on their doors. Also liable to a criminal penalty was conduct exceeding the upper limits on the amount of liquor permitted to be imported, distilled or manufactured. Similarly, the producers would be liable if they sold spirits without a prior inspection by the Chief Physician.

305The Bando stipulated the penalties for offenders. The standard punishments were severe. There was a mandatory, fixed, penalty of fifty oncie payable to the Treasury. Failure to pay would lead either to imprisonment or compulsory public service. In addition, the offender would, permanently, lose their right to continue in business. Presumably, this could be achieved by the simple expedient of removing their licence following conviction, although this would not seem to be the intended process. Thus, a forfeiture of the business would appear to be the result of a judicial act (conviction), rather than an administrative one (removal of the licence).

Inspections of Wine – the Avviso of 22 March 1805211

  • 211 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 6.

306An Avviso of 22 March 1805, issued on the same day as the Bando regulating spirits, was intended to reinforce an existing custom requiring the pre-sale inspection of wine by State officials. A further customary power allowed officials to adjudicate on the quality of wine in case of disputes. The purpose of this customary scheme was to prevent the consumption of poor quality wines that would be injurious of public health.

307In this brief Avviso Coleridge warned that the officials accompanied by the Chief Physician would, in future, conduct random inspections of shops and warehouses belonging to wine merchants. The Notice reminded them of the State’s role in this respect and emphasised that the ”Royal Commissioner” (sic) was anxious not to have to punish offenders. This was clearly intended to give the merchants advance notice of enhancedenforcement activity with the inference that they should remove inferior, and, thus, illegal products immediately so as to avoid infraction.

308The Avviso stated that wine of insufficient quality would be confiscated. Presumably, this was the customary penalty, and Coleridge’s Avviso merely re-stated this. If confiscation was a new penalty, falling outside the scope of the custom, it ought to have been enacted within a Bando rather than introduced, administratively, by means of an Avviso. This was necessary to avoid offending the principle of nulle poena sine lege – that there should be no punishment that is not imposed in accordance with an existing law.

Unripened Fruit: the Bando of 5 August 1805212

  • 212 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 19.
  • 213 No Bando of this date can be discovered in the National Library of Malta.

309The retailing of unripened fruit had been the subject of earlier legislation which had been brought into effect prior to Coleridge’s arrival on the Island. In a Bando of 13 May 1803,213 the British administration had imposed a general prohibition on the sale of unripened fruit. Although this was of universal effect, binding everyone on the Island, its primary focus was, for obvious reasons, the activities of shopkeepers and allotment-holders. The purpose of this law was to remove unripened fruit from the market place. For reasons that remain unclear, the authorities obviously regarded the prevention of sales as a serious matter of public concern. It seems that by 1805 the Maltese had discovered means of circumventing the earlier law.

310Coleridge’s law revealed that the mischief, at which the 1803 Bando was aimed, cannot have been fully addressed by the prohibition on sales alone. The difficulty seems to have been in the drafting of the 1803 Bando which emphasised the sale of unripened fruit as the trigger of criminal liability. This created a loophole because proving a contract of sale was a requirement for a successful prosecution. Advertising, display or offering for sale were all activities that the 1803 Bando failed to penalise. The requirement for the contract of sale caused two problems. Firstly, there would have to have been a victim, that is to say a consumer, who had actually bought unripened fruit from the seller before the seller could have been convicted of an offence. As we have seen, victims were not always eager to give evidence. Secondly, the 1803 measure failed as a preventative measure – it was not primarily designed directly to prevent such sales but to punish them once they had occurred.

311A further loophole arose because the acquisition of the fruit by other means than sale would not have been unlawful. Although we do not know what evasive measures were employed, any transfer of unripened fruit from seller to buyer, in the absence of a contract of sale, would have been lawful.

312This means that the litmus test for the 1805 law was whether it successfully avoided the need for a ”victim” and eliminated the possibilities of evasion. But, to answer this question, it is important to understand what the purposes of regulation were, and the curious drafting renders any conclusions on this tentative and problematic.

313Coleridge’s aims were somewhat obscure because it is unclear whether he wanted to remove unripened fruit from the market place or merely to make sure that traders did not confuse buyers in the way they displayed their products.

314When considered along with the Bando of 1803, Coleridge’s Bando results in a scheme comprising both contractual and pre-contractual elements of regulation. As we have seen, the 1803 Bando was a prohibition on the selling of unripened fruit (i.e. a contractual restraint); the 1805 Bando extends this prohibition, controlling pre-contractual behaviour by eliminating certain, but not all, displays of unripened fruit. The lack of a general prohibition of the display of such fruit is confusing if the purpose was to remove the product from the market place, why did Coleridge not simply prevent the sale and display of unripened fruit? If it was permitted to display it, why was it not permitted to sell it?

315Confusingly, the illegal behaviour comprised the display of unripened fruit ”next to other saleable goods”. This strongly suggests that Coleridge’s intention was to prevent sellers confusing their customers by mixing ripened and unripened fruit or by displaying them side by side. Displaying unripened fruit separate from other fruit was not illegal (although selling it would have been).

316This means that, because Coleridge’s Bando did not altogether remove unripened fruit from the market place, the law still failed to rectify a major weakness of the Bando of 1803. This may imply some uncertainty about the true purpose of the later Bando. In particular, the transfer and consumption of unripened fruit, in certain circumstances, remained lawful. For example, unripened fruit could have been offered as a gift. This means that Coleridge’s law would not have been sufficiently robust to eradicate all possible evasive practices.

  • 214 See the Public Order and Crime theme above.

317It is, however, clear that the targeting of pre-contractual behaviour (certain types of display) would have made prosecution more straightforward, since the need to prove a contract of sale would have been removed. It also avoided the need for a ”victim”. In particular, it would have not have been necessary for the buyer to give evidence. This is, perhaps, the real purpose of the Bando which seems to provide further evidence that Maltese made reluctant witnesses.214 We must be careful not to placemore importance upon this slight evidence than it warrants, but it may hint at an uncooperative public either sceptical about the benefits of enforcing laws such as these or simply too afraid to give evidence against their neighbours on a small island.

318The drafting of the enactment is interesting. The first issue is that there is no definition either of ”fruit” or of ”ripeness”. In the case of ”fruit”, is a botanical definition to be applied, or one understood by the reasonable person? Opinions may vary, for example, on whether tomato is a fruit or a vegetable; similarly strawberries and rhubarb may be regarded for some purposes as ”fruit” although scientifically they might be classed as vegetables.

319Similarly, whether fruit was ”unripe” within the meaning of the Bando was not defined. It would, presumably, have been a question of fact for the criminal court. This would entail an assessment of its colour, flavour and texture. These would have to have been optimal in fruit judged to be ripe. Whether the fruit was ready for harvest might also have been a relevant factor, but not a decisive one because fruit can be harvested when not fully ripe.

Penalties

320The Bando of 1805 stated that the penalties it enacted were in addition to those available under the 1803 Bando.

321The additional penalties were severe and mandatory. There was no judicial discretion to impose a lesser sentence, for example, by taking into account any mitigating circumstances, or other considerations that might affect the justice of the case. This, perhaps, reveals the dirigiste instincts of the British administration vis a vis the Maltese courts, in so far as they wanted to control the outcome of cases following conviction. This is a matter considered further in Chapter 6.

322The penalties are not without their controversies and, indeed, certain obscurities.

  • 215 No doubt the possibility of a life-time ban was intended to prevent re-offending, but see further (...)

323The additional penalties were to be imposed regardless of how much unripened fruit was displayed. As mentioned, there was no discretion to impose a more lenient penalty for less serious cases, nor power to impose a higher sentence for repeat offenders.215

324The various mandatory punishments were to be imposed according to the seller’s activities. They included a life-time ban on the ”right to run a shop”, or, in the case of an agriculturalist who did not own land, a life- time ban on the right to work a plot of land. These measures seem to have been intended to remove, from the offender, the opportunity to retail unripened food in the future. Offending landowners, as opposed to those who worked the land, seem to have been treated more leniently. In their case, the mandatory sentence was one month’s imprisonment at their own expense, after which they could resume cultivation and then retail their produce. The reason for the distinction between the criminal responsibility of owners and workers is obscure.

325Notwithstanding the severity of these punishments, there remained means by which convicted offenders could, in future, become involved in the retail supply of foodstuffs. Under the two Bandi, when taken together, a convicted shopkeeper could not be prevented from owning a shop, only from running it. Employing a manager, or other staff, would still have been possible. Similarly, an agriculturalist (not being an owner of land) could be deprived of his right to work a plot of land, but not it seems, to own other land which might be leased to a tenant. Perhaps the reason in this case was that the produce would, normally, belong to the tenant rather than the landlord.

326The convicted landowner, once released from serving a term one month’s imprisonment, could return to work the land.

327An obscurity concerns the case of the convicted agriculturalists (who did not own land). Did Coleridge intend the prohibition to be a life-time ban on working the land personally? As drafted, the Bando seems to have permitted a convicted farm tenant to employ workers to work the land on his behalf, in which case the produce of the land would be owned and controlled by the convicted individual. This may be an oversight on Coleridge’s part.

  • 216 See Chapter 2.

328The concern, that convicted landowners, condemned to a term of one month’s penal servitude, should meet the expenses of their incarceration, was no doubt intended to increase the severity of the penalty. It might also suggest a concern to minimise, so far as was possible, the burden upon the public revenue. Ball was, at this time, heavily engaged in the corn speculation designed to raise significant funds for the general revenues of the Island. The pressing financial constraints upon government, as well as the political pressure to balance the budget, must have been very much to the fore during this period.216

Conclusion

329The Bando is of interest because of its apparent temerity. It stops far short of creating a general scheme for consumer protection. It does not, for example, bring into law a general requirement that fruit sold must be fit for purpose. Instead, like the companion measure of 1803, it was narrowly focused upon one type of produce (unripened fruit) and regulated only one type of their display (display next to other saleable goods). It suggests a highly cautious approach, to the regulation of the free market, in the public interest. Regulation seems to have been ad hoc, relatively unsystematic and a response to particular problems as they arose.

330If it was designed as a health and safety measure it would have been of limited success because the Bando did not preclude the acquisition of unripened fruit by means other than sale. If it was designed to avoid the confusion of the consumer where ripened and unripened fruit were mixed or placed closely together, it suffers from over-reach because it rendered illegal certain displays where no confusion could occur – for example where unripened fruit was displayed next to other saleable goods of a completely different type.

331The small but significant advance it enacted was that it removed the need for a victim, since sellers displaying goods in a prohibited manner would be liable to a criminal penalty. No proof of sale was necessary.

332The Bando must have been difficult both to interpret and to apply since it lacked a clear definition of the produce falling under its regulation. It also suffered from significant obscurities in relation to the penalties it imposed.

5.6.2. The Avviso 12 June 1805217

Aim

333The purpose of this Avviso was to draw attention to counterfeit coinage in circulation. It also imposed certain obligations on those who received or came across false money.

Analysis

334The Avviso warned that false money was often, but not exclusively, found in the form of silver one-scudi coins imprinted with the image of the former Grandmaster Rohan (sic) (Emmanoel de Rohan, 69th Grandmaster of the Order of St John, 1775-1797). Coleridge misspelt his name.

335Although the Avviso indicated that forged coins were not confined to one-scudi pieces, it did not alert the population to what other types of false money might be in circulation. To that extent, this omission would weaken the usefulness of the Notice.

336The Avviso also created obligations on those to whom false coins were passed or were attempted to be passed. These were stated to be as follows:

Should anybody come across such a coin, he shall be obliged to deliver it at once to the Tribunal, or to the local lieutenant, indicating who gave it to him, or tried to give it to him, so that he may be brought to justice.

337The recipient’s primary obligation was to inform either the Luogotentente (i.e. the local village magistrate) or the Tribunal of the identity of the person who passed or who attempted to pass the coin. This had a number of purposes. This was a necessary safeguard to protect the innocent who might, otherwise, have been found in possession of false money and wrongly accused.

338But this is not all because the Notice also made clear that the purpose of gaining information about the identity of the passers of false money was to gather evidence for intended prosecution. The obligation to notify one of the named authorities not only acted as a safeguard for the innocent receiver of forged money but also had the further purpose of making them become an informant against those persons responsible for passing or attempting to pass false coins. Thus, a person who, innocently, accepted a false coin could expect to find themselves not only explaining to the authorities how they came across it, but also informing against the person who passed the coin. This might be expected to extend to giving evidence against them in court.

339From the point of view of the Administration, this coercive strategy would have seemed a useful and effective one, likely to expose the forgers, since anyone knowingly in possession of a false coin would have been obliged to come forward. Those who chanced to receive false coins and who might well have found themselves in a moral dilemma might, however, have viewed this course with less enthusiasm. Should they avoid becoming an informant, by not declaring their possession of the false coin, and run the risk of prosecution themselves if it were discovered? Or should they obey the requirements of the Public Notice and hand it in and identify the person who passed it to them. The latter course would clearly run the risk of possible retribution and vengeance from the forgers.

340No doubt, the authorities believed that the affected Maltese who received forged money would resolve this difficulty by coming forward. As we have seen, the use of Maltese as informants against wrongdoers amongst their fellow citizens was a commonly-employed strategy in the Bandi and Avvisi, and so a requirement not only familiar to but also accepted by the Maltese.

341However, the Notice contained an obvious logical flaw in relation to the requirement that the false coin be delivered up. It stated:

Should anybody come across such a coin, he shall be obliged to deliver it at once to the Tribunal, or to the local lieutenant, indicating who gave it to him, or tried to give it to him, so that he may be brought to justice.

342Anyone coming across a false coin was required to deliver it to the authorities immediately, naming the person who gave it to him or who ”tried to give it to him”. In the latter instance, where a culprit had tried to pass a false coin to an intended recipient, but the latter had not accepted it, the intended recipient was, obviously, unable to deliver the coin up to the authorities.

5.7. Regulation of Trade

The Purpose of the Notice

  • 218 This was a busy time for Coleridge because he also issued was also a significant and detailed Band (...)
  • 219 See NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.5 (cotton); ibid. f.6 (inspections of wine). For a st (...)

343Coleridge issued two Public Notices on 22 March 1805.218 The one with which we are presently concerned was intended to promote the cotton industry, whilst the other, which we considered in the ”consumer protection” section, governed inspections of wine.219 The purpose of the cotton Avviso was to reinforce the existing controls on the production of cotton. As we shall see, the Order of St John had, formerly, legislated to ensure the quality of the product, and Coleridge intervened to maintain the standard. His Notice reminded the population that disobedience of the existing regulations, which prohibited the manufacture of cotton otherwise than with seeds or with wool, was an offence.

The Cotton Trade

344The central role that cotton production and manufacture had played in Malta was considered in Chapter 2.

  • 220 Debono.
  • 221 See the Proclamation of 1777 regulating the production of Gozitan cotton and preventing its mixtur (...)

345When Coleridge was on the Island, the cotton industry, and, thus, the livelihoods of as much as half of the population, had come under severe strain. Moreover, the industry was in a state of transition.220 Hard-pressed producers were, at first, tempted to compromise quality to boost profits. This tactic was not new: regulatory intervention had been necessary, as early as 1777, to ensure that producers were not tempted to increase their short-term profits by producing inferior cotton – mixing it with cheaper alternatives.221 Although improving, the economic and international situation had clearly tempted Maltese producers to revert to their former cost-cutting techniques, in particular by spinning cotton in ways prohibited by Maltese law.

346Coleridge intervened to halt this, in order to maintain the legallyrequired standards. This was a timely, and appropriate, intervention to ensure that the product retained its market appeal. Increasingly, the Maltese producers had to add value to the product, which they could now only sell, within the domestic market, by weaving it into cloth.

347The finished product was increasingly sold to foreigners (mainly British) who were now present on the Island in larger numbers. In the spring of 1805, for example, a large number of British troops, under the command of Lieutenant-General Sir James Craig, had arrived in readiness for an expedition to Naples. As demand for finished goods rose, so the number of looms on the Island also increased. The Island’s prosperity, which the export ban had seriously threatened, began to improve when rising wages began to take effect.

An Avviso not a Bando

348Coleridge’s Notice announced an ”order” of the Civil Commissioner purporting to alter the punishments for the ”extract[ion of] cotton not manufactured with seeds or with wool, without a specific licence”. As the Notice made clear, the offence had already been enacted in Maltese law; Coleridge merely announced an increased punishment for offenders. The question raised by this is whether it was constitutionally appropriate for Coleridge simply to announce this new punishment in a Public Notice rather than legislate to introduce it by means of a Bando? The principle of nulle poena sine lege, which requires that legitimate punishment can only be imposed in accordance with existing, publicly-disclosed laws, is particularly at issue. Coleridge’s drafting suggests that either he did not fully appreciate these rule of law values or, if he did, he was not able to persuade the Civil Commissioner to respect them.

Further Issues

349The newly prescribed sentence was to be a one month’s term of imprisonment. The Maltese criminal court was not entrusted with a discretion to impose an alternative sentence which, as we have seen in other instances, meant that it could not take into account mitigating circumstances and so impose a lesser term or a fine. In addition to the jail term, the offender would have all illegally-cultivated cotton confiscated.

  • 222 See e.g. the Bandi of 29 January 1805/MS 430 1/2 Bandi 1790 AL 1805 f.356; 431 II/3, 50, and 21 Ju (...)

350The enforcement strategy was similar to that found in other measures creating criminal offences, which also relied heavily upon information supplied by informants. The controversial nature of this strategy will be considered in Chapter 6. As in other instruments,222 the informants were encouraged to give information by the promise of financial gain. One quarter of the cotton confiscated was to be given by the offender, to the informant, as a reward for information given. It is unclear what legal consequences would follow from a refusal to comply. Moreover, if the purpose was to keep the poor-quality cotton out of the market place, the requirement for the offender to give one quarter of it to the informant would have been counter-productive. An obvious alternative, which might better have fulfilled the public interest, would have been to offer a reward for information.

351It is somewhat perplexing to discover that this responsibility, to hand over the informant’s share, lay with the offender rather than a court official. If literally interpreted, the Notice seems clear on this point: ”… furthermore, [the offender] shall suffer the confiscation of all the cotton grown illegally, one-quarter of which he must hand over to the informant”. (Emphasis added).

352Since the entire illegal crop was to be confiscated, it would seem more logical for the informant to be given his reward by the authorities rather than the offender. However, Coleridge’s preferred solution apparently compelled the offender and informant to have contact. At the very least, this could have been unpleasant. In a extreme case it could have been dangerous since the offender would have the opportunity to exact revenge upon the informant who had given information to the authorities. More problematically, from the authorities’ viewpoint, the unpleasant process was likely to have been a disincentive for the informant to co-operate in a prosecution. Coleridge’s approach would appear to give rise to substantial practical difficulties. As a relatively early example of his legal drafting, it is, perhaps, evidence of Coleridge’s inexperience and a lack of familiarity with Maltese behaviour.

353The instrument does not explicitly stipulate that the informant was to be rewarded only where information led to conviction. Nevertheless, this must have been the intended meaning since the informant received a share of the cotton that the court ordered confiscated. It is an elementary consequence that a confiscation order could only be made after a conviction. An informant would, therefore, receive nothing if the accused were acquitted, despite having run the risk of giving information to the authorities and, as would have been likely, having given evidence in open court.

354Finally, the Notice offered a public undertaking from the Civil Commissioner that, should it be in the public interest to do so, and the crop for the current season proved to be plentiful, licences for the extraction of cotton would be granted to ensure plentiful supply of the raw material for the inhabitants earning their livelihood from cotton spinning.

355This is a highly contingent promise and it is evident that the judgement about where the public interest lay and consideration of the state of the crop, would be made by the Civil Commissioner in his discretion. It will be recalled that a decision that the Civil Commissioner reached in his discretion could not be challenged in the Maltese courts.

356This part of the notice only had effect in the 1805 season and would have lapsed thereafter. This meant that no representation about future government behaviour had been made in respect the following seasons.

5.8. The Harbours

The Avviso of 9 March 1805223 – Mooring Rope

  • 223 NLM LIBR/MS 431 2/3 Bandi 1804-1808, 97.

357In this brief Avviso, Coleridge acted to safeguard navigation in the Grand Harbour. The safe passage of shipping both to and from Valletta was, naturally, a matter upon which Malta’s prosperity and security depended, not least because the Island had to import food and serve as a base for vessels of the Royal Navy (fig. 12). Maintaining the channels for safe navigation was, pre-eminently, a matter of governmental concern.

  • 224 CN 2, 2446. With considerable prescience, he recognised that what might appear to him to be useles (...)
  • 225 CN 2, 2583.

358Harbour matters fell within Coleridge’s supervisory remit, and reports seem to have been produced in considerable quantity. His private Notebooks record them as one of the vicissitudes of office, which produced a pang of guilt when he considered using them as tapers. An entry of February 1805 records, ”I am almost ashamed to confess to myself what pulling back of Heart I feel whenever I wish to light a candle or kindle a fire with a Hospital or Harbour Report and what a cumulus lie upon my Table, I am not able to conjecture what use they can ever be…”224 A nocturnal entry of Sunday 12 May 1805 records that harbour reports were spread out on a table at the Treasury, which suggests that they had not been filed at the end of the working day.225

359This Avviso drew to public attention, the steps that the authorities had taken to warn shipping of a small area of shallow water that had been discovered in a dangerous place near the entrance to the Grand Harbour close to Fort St Elmo. To warn navigators, a thick rope had been attached to an anchor that had been sunk onto the seabed. The floating rope was intended to alert shipping to the danger.

360It seems that the purpose of the rope was not immediately obvious to navigators, and that some Maltese were using it either to tie up their boats or for other unspecified purposes. As a result, the anchor was being dragged away from the site of the danger, and the warning, thereby, rendered useless.

361Coleridge issued the Avviso to explain, to the inhabitants, the reason for placing a rope and anchor in the harbour, and indicated to them where this device could be located (presumably to avoid confusion with genuine mooring ropes). No punishment was fixed for misusing the rope. However, the Avviso warned that anyone who did abuse the rope would be greeted ”by rifle shots” for which they would only have themselves to blame. Presumably, the garrison of the Fort had been ordered to open fire upon anyone misusing the rope, although this is not made clear in the instrument. Whether these shots were intended to be warning shots or the use of deadly force is also unclear. If the latter, it suggests that the authorities were exasperated by the behaviour of harbour users. Even so, lethal force would seem to have been a disproportionate response.

12. The Naval Arsenal in the Grand Harbour, Valletta. Lithograph by C. de Brocktorff [1838].

The Avviso of 21 June 1805226 – Licensing of Ferryboats in the Grand Harbour

  • 226 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814,13.
  • 227 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 ,14, see the Public Order and Crime theme, above.

362This Notice served a number of purposes connected with the licensing and night-time operation of ferryboats in the Grand Harbour. It also clarified the existing regulatory scheme in response to a turf war between the Lieutenants of the Cities of Vittoriosa, Senglea and Cospicua (fig. 13) concerning their respective jurisdictions and their entitlement to receive the small dock charges paid by the night-time ferryboat operators. This Notice accompanied a more wide-ranging Proclamation, also issued on 21 June 1805, which, as we have seen, ordered that the ferryboats (and others) had to be registered and display a registration number.227 The registration requirement applied regardless of when the ferryboats operated.

363In this instance, Coleridge’s notice made it clear that the authority responsible for licensing the night-time ferry boat operators was the Lieutenant of Vittoriosa, but ”ordered” that the dock revenues flowing from their operation should be divided equally between the respective districts.

Licensing Scheme

  • 228 Although a Bando might have been necessary to achieve this.

364He also ordered that the Lieutenant of Vittoriosa could only grant a night-permit to boatmen of whose honesty he was ”convinced”. This was obviously intended to remove the ”fly by night” operator. However, it is interesting that Coleridge’s public protection policy did not extend to regulating the safety of the vessel, which ought to have been a critical concern had the measure been primarily for the protection of the public.228 The inference is that there was no problem with badly maintained vessels operating at night in the Grand Harbour.

State Liability

365Coleridge also provided that the Lieutenant who negligently granted a licence might also be liable for damages to any third party suffering loss as a result of the illegal behaviour by a licensed operator. Presumably, Coleridge meant that the Lieutenant would be responsible for loss resulting from the illegal actions of dishonest operators. This is interesting because it reveals that a claim for damages would lie against the public authority for the negligent exercise of the licensing power.

366The usual defendant in third party claims arising from a maritime accident would be the ferryboat operator who was responsible for causing the loss. However, the ferry boat operator might not be as ”valuable” a defendant as a public authority. Because the damage that might result from a maritime accident could be significant, it could readily exceed the resources of the defendant personally to meet the potential liability. The Notice, therefore, provided that a victim of a maritime accident, who sustained loss, could, in certain circumstances, bring a claim against the licensing authority. In other words, the effect of the measure was to make the State the insurer against loss caused by dishonest operators where the Lieutenant had issued a licence without having made proper enquiries into the honesty of the operator.

13. The Grand Harbour from Valletta towards Fort St Angelo and Vittoriosa. Kalkara creek lies to the left of the Fort whereas Dockyard creek lies to the right. The British naval dockyard first operated from the latter.

367It is an interesting and puzzling question why ”honesty” rather than reasonable competency was made the appropriate medium whereby compensation could be granted. One possibility is that Coleridge wanted to restrict liability to cases where the administration was at fault. He may have felt that a failure to inquire into an applicant’s honesty would be a straightforward surrogate measure for fault. But this is open to the obvious criticism that fault lies in any negligent operation of the licensing power: Coleridge need not have restricted the regulations to cases where dishonest operators slipped through the regulatory net. Unqualified operators should also have triggered state liability.

368The result, in practice, of this emphasis upon dishonesty would have been somewhat arbitrary. Losses caused by incompetent (honest) operators would not fall upon the State, whereas those dishonest operators who were negligently licensed would. The transfer of risk lacks a clear rationale.

369Thus, Coleridge’s policy was unclear. A more properly-developed scheme would have emphasised the competence of the operator and the safety of a vessel operating at night, which this Notice conspicuously failed to do.

5.9. Passports

Introduction

370The maritime trade conducted by Maltese vessels was fundamental to the wealth and security of the islands, not least because the Maltese were reliant upon imported food supplies. The proximity of the piratical Barbary states posed a threat to navigation. Maltese ship owners wanted to ensure that the protection of the Royal Navy was available to them and, as we shall discover, Sicilian and Neapolitan masters sought similar protection.

  • 229 Avviso, 23 June 1805 (date of 23 crossed out and 25 substituted) LIBR/MS 430 2/2 Bandi 1805 AL 181 (...)

371Vessels, whether British or Maltese, trading from Maltese ports were required to sail under a pass that was issued by the Public Secretary’s office. This pass was normally valid for one voyage to an identified port. Once the vessel returned to Malta, the pass was to be handed back to Government and was available to be issued to another master. Given the small tonnage of the vessels of this period, sea journeys for the import of food and other goods were frequent. A significant part of Coleridge’s official role thus involved the issue of passports. Following ministerial intervention, he issued a Notice, on 25 June 1805,229 to regulate entitlement to British protection on the high seas. The Notice is also of interest because it reveals Coleridge’s broader political agenda in boosting Ball’s reputation with the Maltese

Authority for Passports

372From the outset of British rule, the subject of passports had, for a variety of reasons, been a vexed and controversial matter. The first problem had been an internal dispute as to who had responsibility for their issue. The later, and more embarrassing problem for the British, was whether the Civil Commissioner had acted lawfully when issuing passports to foreign ships’ masters. Ball’s policies had given rise to a serious international incident, and even the risk of war.

  • 230 Kew, CO 158/1/ 53 et seq.
  • 231 Pigot to Cameron, 2 July 1801, Kew, CO 158/1/119.
  • 232 Ibid.
  • 233 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207.
  • 234 Hobart to Cameron, ibid., 209.
  • 235 Although the text of the Avviso of 25 June 1805 (below) suggests that entitlement was determined b (...)

373Identifying the appropriate authority responsible for the issue of passports was, at first, controversial within the demarcation dispute that erupted when the civil administration was split from the military. As we have seen, the appointment of Charles Cameron as Civil Commissioner in May 1801 marked the beginning of British civil administration on Malta. The civil authorities, which naturally did not have any authority over military affairs, were directed, by the terms of the Royal Instructions of 14 May 1801,230 to work closely with the military. In other respects, the Instructions were obscure, and this soon resulted in the important functional dispute between Major-General Pigot and Civil Commissioner Cameron. Responsibility for a number of centrally-important issues was disputed, including the role of the military in the promulgation of new laws, the control of the police in Valletta,231 the admission of foreigners and, importantly in the present context, the issue of British passports.232 It fell to Lord Hobart to resolve the impasse. He decided that each of these matters would fall within the jurisdiction of the civil authority.233 On the subject of passports, his lordship explicitly instructed that ”All passports except to officers holding military commissions... should proceed from the Civil Commissioner, and shall be signed by the Secretary of Government”.234 Thus it was that, when in office, Coleridge had to assume the burdensome task of issuing passports to intending overseas travellers.235

Entitlement to a Passport

374The question of who was entitled to British protection had also become controversial. Prior to Coleridge’s arrival on Malta, a serious diplomatic incident had arisen over the unlawful issue of British passports to foreigners. The aftermath of this furore was still in progress when Coleridge served as Public Secretary; indeed, he was involved, along with others, in the re-alignment of policy and the limiting of the damage done. The events that gave rise to this incident could be traced to the time French-occupied Valletta surrendered to the British in September 1800.

International Incident

375As we have described in, Chapter 2, the purpose of the siege of Valletta, and the blockade of the Island, was to starve the French garrison, besieged in Valletta, into submission. The very object of the strategy was, thus, to run down the food supplies. Naturally, at the moment when collapse occurred there would be a starving populace. As matters unfolded, there was but eight days stock of grain in Valletta when the French capitulated.

  • 236 It might be asked why a stock of grain had not been brought into the Island in readiness for the s (...)
  • 237 As Coleridge described in the text of the preamble to this Avviso of 25 June 1805, LIBR/MS 430 2/2 (...)
  • 238 The term ”Barbary States” refers to the territory between seaports of Tangiers and Tripoli. Britai (...)

376The urgent crisis236 could only be solved by importing grain, but the problem was that the French had destroyed the Maltese vessels to use them for firewood. In this, emergency, the new British administration had to turn to Neapolitan and Sicilian vessels to import grain to feed the population.237 When the Sicilian and Neapolitan owners demanded the protection of the British Crown to protect their vessels against the piracy of the Dey of Algiers, Ball acquiesced since, in his view, the emergency justified it. It was important to ensure that the food supplies carried in these vessels reached an Island desperate for food and incapable of meeting more than one third of its own requirements. Ball was aware that the predations of the Barbary pirates238 were a notable hazard given the widespread shortage of grain in the Mediterranean between 1799 and 1806, which would have made the cargo highly prized. The security of the Island, as well as that of the crews depended upon the safe completion of the voyages – not least by avoiding their capture by pirates either for ransom or for sale as slaves.

  • 239 Sultana, 9.
  • 240 Ball to Cartwright, 9 September 1805, Kew, CO 158/10/239, 240.

377Ball, therefore, instructed Alexander Macaulay, Coleridge’s predecessor, to issue passes, valid for one sea voyage, to foreign nationals.239 Although Ball seems to have been made a scapegoat for this unlawful act, he later claimed that Lords Keith and Nelson also issued passes to Neapolitan Masters. Ball’s defence was that this was a policy of last resort agreed with and implemented by the most senior military commanders in the region.240 Ball’s further argument was that the vessels would be crewed by the Maltese and, thus, would fall within the spirit of international law.

The Legal Context

  • 241 An Avviso of 5 February 1803 announced the release of one hundred and sixty four Maltese prisoners (...)

378Shortly after Malta fell into British hands a Treaty, dated 19 March 1801, had been concluded between the Dey of Algiers and the British Government. This ended, as far as the Maltese masters were concerned, the threat from pirate ships of the Dey. Maltese vessels were no longer liable to be captured and their crews held in captivity as slaves. The Treaty, eventually, secured the release of Maltese prisoners held by the Dey, and it prevented further attacks on Maltese ships.241 However, the Dey had not undertaken to restrict his activities in relation to Neapolitan and Sicilian ships and a state of war continued to exist between these States and the Divan. This is important for what follows.

The Capture and Imprisonment of Maltese Crews

  • 242 Sultana, 165. We may also note the seizure of Neapolitan vessels used to transport supplies to the (...)
  • 243 Ball to Cooke, 21 July 1805, Kew, CO 158/10/187, 191. This was, according to Ball, the only occasi (...)
  • 244 NLM LIBR 431/1 Bandi 1800 AL 1803, 309.
  • 245 See also Ball to Cooke, 21 July 1805, Kew, CO 158/10/187.
  • 246 The Avviso of 22 October 1803, NLM LIBR/MS 430, Bandi 1790 AL 1805, 314.

379Unfortunately for Ball, four Sicilian242 vessels, bearing Ball’s passports, were captured by cruisers of the Dey in 1803, and their crews, including Maltese citizens, imprisoned for ransom, in Algiers. The official British response was a belated volte face concerning passports. Despite private misgivings that he, formally, expressed in writing to Ball,243 Macaulay promptly issued an Avviso, on 28 October 1803,244 regulating the issue of passports to make sure that they were only issued to those with entitlement, namely British subjects (including the Maltese). The preamble indicated that the authorities were already aware of ”abuses” whereby passports were being unlawfully used by foreigners. Of course, by 1803, Ball was able to ascertain that the Island had sufficiently recovered to enable the Maltese to import grain and other foodstuffs on their own behalf. Merchant capacity had increased, given the arrival of vessels that had been purchased with the aid of British funds, and the 1801 Treaty meant that navigation was, as far as Maltese vessels were concerned, reasonably safe. Thus, the practice of issuing passports to foreign vessels ceased.245 Even so, Ball was nervous. As late as 1803 he ordered that any master whose vessel encountered interference, from cruisers of the Dey, should report the incident to the Public Secretary.246 Moreover, there was still a problem with the passports in circulation amongst the foreign owners; and the crisis caused by the capture of the Maltese crews remained unresolved.

  • 247 Sultana, 20, 24 and 155.
  • 248 Sultana, 165.

380The British decided to test the will of the Dey. In January 1804 Nelson appeared off Algiers with seven ships of the line in an effort to persuade the Dey to release the Maltese prisoners and pay compensation for the seized vessels but the Dey refused to co-operate because, he argued, the British had not been entitled, under the terms of the Treaty of 1801, to issue passports to his enemies, the Sicilian Masters.247 Nelson left empty handed. Although Ball wanted to treat the seizure of the Sicilian vessels as an act of war, Nelson held the unequivocal opinion that British passports did not entitle the Sicilians to British protection.248 British ministers sided with Nelson and open warfare was avoided.

  • 249 Sultana, 256. Interestingly, a dispatch from Ball to Cartwright implicated Lords Nelson and Keith (...)

381The Secretary of State, Lord Camden, decided to adopt a compromising stance and to pursue better diplomatic relations with the Dey. He shared Nelson’s conviction that Ball had acted unlawfully in granting passports to persons not entitled to them.249 Ball, in effect, suffered a reprimand for his original policy. Hereafter, he was to be supplied with new, ”Mediterranean” passports under the instruction that they were only to be granted to British subjects including Maltese owners. Neither the Sicilians nor the Neapolitans were to be entitled to them.

  • 250 Sultana, 305; see also Camden to Ball, Kew, 27 March 1805, Kew, CO 159/3/161.

382Nonetheless, a significant number of the ”old” passes remained in circulation because the owners of Sicilian vessels had refused to surrender them to Macaulay. Coleridge’s Notice of 25 June 1805 even suggested that there were other kinds of evasions intended to continue British protection for foreign vessels. These included applications made under false credentials, or deviations from the named port of destination, or even ”sham” sales. The latter were arrangements under which Sicilians and others had purported to sell their vessels to Maltese owners, (thereby entitling them to British protection) whilst, in fact, retaining ownership. These passports had to be called in as soon as the new, Mediterranean, passes arrived. By March 1805250 Ball was still awaiting the arrival of the new passports that had been despatched from the Lords Commissioners of the Admiralty in London. Coleridge’s Notice of 25 June 1805 reveals that they had reached the Island by that date.

The Notice of 25 June 1805 – Passports

383In this Notice Coleridge recalled many of the events surrounding the problematic passports, including the reasons why Ball had been compelled to issue them after the surrender. He described how Macaulay had issued a proclamation, in October 1803, explaining that no further passports would be issued. Naturally, as Coleridge explained, this had not addressed the problem of the passports that were still, fraudulently, in circulation. Coleridge’s Notice thus cancelled all the existing passports and required intending travellers to obtain one of the new Mediterranean passports. The effect, for those holding the ”old” passports, was significant because Coleridge warned that these would no longer guarantee British protection. He reminded them that the Dey would not restrain his ships from capturing and enslaving Maltese crews aboard vessels that were not entitled to the passports they were carrying. Ball, he added, would not take any steps to secure their release if this misfortune befell them.

384It is interesting that Coleridge cancelled the ”old” passports with immediate effect (i.e. on 25 June 1805), but the Notice was not published until the following day, 26 June. It is not known whether this resulted in any hardship.

Analysis

  • 251 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9. See the Public Order and Crime theme, above.

385This Notice shares a similar narrative style to the Notice of 25 May 1805, announcing the conviction and sentence of Fortunata Tagliana.251 In each of these instruments, Coleridge included significantly more information than was necessary in order to announce the outcomes of an administrative decision. Had he not been concerned with a broader political agenda then some very limited factual information would have sufficed. In relation to the passports, this information was straightforward and could have been briefly stated – the existing passports were cancelled and would no longer entitle the holders to British protection. Anyone who disregarded this would be at risk of capture. Finally, he might have stated that new Mediterranean passports should be obtained by those intending to travel overseas. It is, however, of central interest that Coleridge went beyond this minimum so as to recount, in some detail, the history of the events which made the latest intervention of the authorities necessary. More importantly, he offered some explanation of the reasons underpinning official decisionmaking. Why was this additional material included?

386Coleridge’s major objective was to vindicate Ball’s actions which, as we have seen, had been both contentious and unlawful. Coleridge’s wider objective was to deflect criticism for what might, otherwise, have been attacked as a serious misjudgement and to restore his superior’s credibility. In this Notice, Coleridge entered the realm of the propagandist, deftly shaping the government’s message. Damaging information was suppressed, and the effect was deliberately misleading, not least because Ball was presented as the benign actor who was the sole decision-maker. Ball’s political weakness was also disguised.

  • 252 Ball was now prepared to be open with his superiors about his decision: Ball to E. Cooke, 21 July (...)

387The manipulation of information began early in the text with the proffered excuse that, when Ball had given passports to foreign nationals, he had acted from the highest of motives in solving the crisis following the capitulation and, at all times, for the benefit of the public.252 This was given some prominence by Coleridge to avoid inconvenient conclusions about the illegality of past governmental action. Coleridge faithfully portrayed Ball’s defence, of necessity, in the face of the criticism arrayed against him and, by implication, Coleridge was arguing that the Civil Commissioner had shown courage in putting the welfare of the Maltese above his own career even if it meant breaching international law by offering passports to foreigners.

Given the lack of our own national ships, and the urgent need to assist the transport of goods, His Excellency was obliged, in those early days following the surrender of these cities, to distribute certificates which promised British Protection to various foreign vessels. The governors of the Barbary states agreed to respect this measure, which was dictated by the necessity of the situation.

  • 253 CN 2, 2413.

388This passage also disclosed something of Coleridge’s own engagement with morality and law in governmental action. His appeal to a superior moral order revealed that Coleridge had been forced to confront the predicament that arises when just and pragmatic solutions collide with legal norms. Coleridge’s intellectual engagement with public life had already revealed the need to develop a conception of morally-just administration. He had, earlier, considered whether government could ever, legitimately, use expediency to vindicate its departure from positive laws. An undated Notebook entry, of late January 1805, witnessed Coleridge reflecting upon the ”’betwixt and between” of positive law & the dictates of right reason” in the work of the Court of Vice-Admiralty.253

389The essential premise of Coleridge’s vindication of Ball, in the public notice of 25 June 1805, was that a responsible, benign, government cannot always deliver good and effective administration within the formal constraints of the Rule of Law, and that public action can be justified even if a departure from positive legal norms is required, to achieve an important public benefit.

390Coleridge’s text continued by laying the blame for the policy failure at the door of foreigners (persons neither English nor Maltese) who ”abused” the system even to the extent of making dishonest, false, sales to disguise the true ownership of their vessels. It was these dishonest foreigners who had destroyed Ball’s necessary system and Coleridge was unambiguous about where the Maltese should lay the blame.

391The juxtaposition of the dishonest, selfish foreigner with the courageous and selfless Civil Commissioner was a particular feature of Coleridge’s technique. Coleridge was, of course, tapping, once more, into the Maltese suspicion of ”foreigners”, for political ends. Only a few days earlier he had issued the Bando enacting new laws subjecting foreigners on the Island to much stricter controls and the passports Avviso reinforced the government’s message that these people were suspect opportunists. The aim was, of course, to win sympathy for Ball. He had done his best to feed the inhabitants, and, in return, he had been duped and embarrassed by untrustworthy, scheming, foreigners. It was a message that Coleridge must have believed the public would accept.

392Throughout Coleridge’s text, Ball was presented as a benign actor controlling events. Naturally, Coleridge would not have mentioned that the political decision in this matter had been removed from Ball’s hands. It was an obvious obfuscation, but one for which Coleridge can hardly be blamed. Similarly, the suggestion that the Dey and his spies had merely become ”suspicious” about vessels bearing the old passports. The Dey’s actions went beyond merely suspecting impropriety: he had used force. No mention was made about Maltese crews who had already been captured and whose release Ball was struggling (so far unsuccessfully) to achieve. But the danger that the Sicilian vessels faced was the true reason why Coleridge warned them of the risk of capture. Coleridge chose not to reinforce his message by revealing the truth about the hostages because it would have disclosed British weakness and would damage prestige. Even Nelson’s squadron had not been able to rescue captured Maltese crews, which meant that Ball would be politically and militarily powerless to intervene successfully against a recalcitrant Dey if yet more individuals fell into his hands. Coleridge disguised this impotence by suggesting that Ball did not intend to intervene to save law-breakers from captivity. The careful use of language implied an act of free will.

  • 254 Dr Moncrieff to Ball, 13 October 1805, Kew, CO 158/10/247 et seq.
  • 255 Ball to Castlereagh, 26 December 1805, Kew, CO 158/10/227. He referred in this despatch to Neapoli (...)

393Negotiations, to have Maltese crews released and returned to Malta, succeeded in October 1805.254 However, the Neapolitan captives had still not been released by the end of the year, although Ball continued to express optimism that their release could be obtained.255

5.10. Military Discipline

Introduction

394In the aftermath of the capitulation of the French occupation forces in 1800, a military government, under Major-General Pigot, had been created to administer both the civil and military affairs of the islands. As we have seen, this arrangement was unpopular with the Maltese and, as soon as the risks to British long-term interests had been understood by the Secretary of State, the civil and military functions were separated. Cameron’s appointment as the first Civil Commissioner, in May 1801, resulted from this policy shift, which placed the responsibility for ”civil” affairs under his jurisdiction. Pigot retained control of the military.

395In practice, this, apparently, straightforward demarcation had been obfuscated in the Royal Instructions, resulting in intractable disputes between Cameron and Pigot. As we described in Chapter 3, the responsibility for policing and for passports had each given rise to disagreement.

  • 256 Borg to Windham, 30 May 1806, British National Archive, Kew, CO 158/12 no folio reference.
  • 257 Sultana, 347.

396By the time Coleridge held public office, Pigot had been replaced by Major-General Villettes. However, the working relationship between Ball and Villettes may also have been strained. Lord Windham eventually received an allegation from a Maltese agitator, Vincenzo Borg, that Villettes and Ball were not in ”harmony”.256 Sultana has also concluded that in the summer of 1805 there was tension between the military and civilian authorities,257 and the most likely causes of friction were the requests from the military that the civil government take the unpopular measures necessary to ensure military efficiency. Although the evidence in Coleridge’s Bandi and Avvisi suggests some close co-operation, the text of these instruments, by itself, does not reveal how willingly this assistance was offered, or what arguments may have preceded the promulgation of the desired measures.

397In 1805, the major problem was that civilian behaviour, such as the abuse of the enlistment system and the sheltering of deserters, could only be remedied with the aid of the civilian authorities, (because, ex hypothesi, the military usually had no jurisdiction over the conduct of Maltese civilians). The army expected the civil administration to deal with these sensitive and difficult problems. Coleridge’s Bandi and Avvisi reveal that Ball had agreed, although, in the case of the fugitives, it would require some political sensitivity if Ball were to avoid the resentment of an unsympathetic civil population.

Plans to Recruit

  • 258 1804: See http://website.lineone.net/~stephaniebidmead/chapter567.htm, consulted 5 January 2007.
  • 259 Ball’s staffing policy is described in Chapter 2. For Coleridge’s involvement in policy discussion (...)

398Following the British decision not to implement the Treaty of Amiens of 1802, the Neapolitan and Sicilian troops who had served alongside their British counterparts, in the liberation of Malta, were expelled. As a consequence, the British military authorities became concerned at a shortage of manpower. The British garrison (which was also required to defend Gozo) comprised only the Royal Artillery, the 20th (East Devonshire), the 27th (Inniskilling), 35th (Dorsetshire) and 61st (South Gloucestershire) regiments, with a combined strength of about 3,800 enlisted troops.258 The authorities decided that a regiment of Maltese infantry should be raised. However, the terms under which they would serve were controversial. One reason for this was the proposal to merge two corps of Maltese militia (then under the command of Maltese officers) into one Regiment. This was to be placed under the command of British officers. There had been an exchange between Ball and Lord Camden concerning the terms of service. Ball, in a memorandum drafted by Coleridge, had proposed an alternative plan. He advocated that the new Regiment should be placed under the command of aristocratic Maltese – a proposal that was fully consistent with Ball’s general staffing policy.259 However, Camden had insisted that British officers rather than the local nobility should command the corps.

The Royal Regiment of Malta

  • 260 See generally, http://website.lineone.net/~stephaniebidmead/ ”A History of the British Army in Mal (...)
  • 261 To Robert Southey, circa 24 December 1809, CL 3, 265.
  • 262 To Robert Southey, ibid. This decision was, he argued, ”cruel” and ”shameful” (emphasis in the ori (...)

399The Royal Regiment of Malta was created in December 1804 and Villettes appointed its Colonel.260 Coleridge was, later, to allege that the merger of the local militia into the new Corps took place merely to give Villettes, who had influential friends in the War Office, the command of a regiment and for no other reason.261 Coleridge also, somewhat forcefully, expressed qualms about the moral legitimacy of recruiting fifteen hundred soldiers to serve in any part of the Empire not least because of the relatively tiny population of Malta.262

  • 263 Eight thousand British troops were sent to Malta in readiness for the campaign in 1805: Camden to (...)
  • 264 Rather surprisingly, Coleridge later claimed to know little about the Regiment on the grounds that (...)

400Recruitment began in earnest in March of the following year, with the intention that the unit would take part in an expedition, under the command of Lieutenant-General Sir James Craig, to Naples.263 As we shall see below, there were soon problems with desertions. Action to recapture fugitives was urgently required lest the Regiment should not be available for its planned deployment. In fact, the expedition eventually sailed without the Royal Regiment of Malta, in November 1805, because the corps, (its strength no doubt still depleted by the unresolved desertions) had not yet achieved combat readiness.264

  • 265 Above n. 260.
  • 266 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12.

401To stimulate recruitment, the Maltese were offered a bounty of ten guineas to enlist for general service for an unlimited period or seven guineas for seven year’s general service. By May 1805 these payments had attracted three hundred and sixty-seven new recruits, which rose to a total of four hundred and fifty two months later.265 However, as Coleridge’s Avviso of 20 June 1805266 (Abuse of the enlistment money) revealed, some civilians were abusing the bounty system by taking the enlistment money and using it without any intention of submitting to military service.

402In the end, the Royal Regiment was not placed on the strength of the British army until 1807, which is, perhaps, suggestive of the difficulties caused by the desertions and the impact upon recruitment of the unpopularity of the decision to require general service.

Desertions

  • 267 Sultana, 231, 318-9.
  • 268 Ball to Camden, 22 April, 1805, Kew, CO 158/10/ 151. Coleridge also claimed to have written a memo (...)
  • 269 To Robert Southey, above n. 12.
  • 270 See above n. 268, where Ball makes reference to and quotes from the Secretary of State’s earlier l (...)

403A widely-debated question concerned the terms of service and, in particular, where the Royal Regiment could be required to serve.267 The thorny issue was whether Maltese troops were only to be deployed in the defence of Malta – which was acceptable to the Maltese themselves, because most of them then in service had come from the local militia – or whether they were to be recruited for (unpopular) general service anywhere within the Empire. Ball, who had been aware that the Maltese would not readily assent to general overseas service, had strongly resisted any policy to send them overseas other than as a garrison force.268 Coleridge later expressed his support for Ball’s preferences in this matter arguing that the decision to require general service had been ”cruel”.269 The Secretary of State was not to be moved: he had already determined that ”general service” – with all that entailed – would be required.270

  • 271 To Robert Southey, circa 24 December 1809, CL 3, 265.

404In a letter to Southey, written when the Regiment was blamed for the loss of Capri in 1808, Coleridge criticised the ministerial decisions that had, in effect, overruled Ball. Coleridge argued that the Maltese troops, the large majority of whom were married, would have fought bravely if fighting at home; but, he remarked that they could not be expected to fight abroad where their interests were not at issue.271

  • 272 Sultana, 326.

405As Sultana indicated, Coleridge had altered his views on some of these issues. Coleridge had earlier argued that soldiers fight better away from home.272 This volte face may indicate the extent to which Coleridge had assimilated the views of the Maltese ”establishment”, in particular those of the Civil Commissioner.

406Thus, the signal that the British sent was that they were willing to use the Maltese as warriors in any British cause. Locally, this was both resented and feared. As a consequence, in 1805, troops were deserting the regiment in significant numbers and disappearing into the countryside.

  • 273 The Friend, 1, 258.

407A likely reason for the resistance to overseas service in the British army was that it recalled past experience, which made the Maltese fearful. Many of their friends and relatives had been forced to serve in the French Revolutionary army, with fateful consequences. Long after he had relinquished his public office in Malta, Coleridge, recalling first-hand information from a ”survivor”, recounted how, in 1798, Napoleon had addressed the Maltese regiment and invited them to serve with him in the expedition to Egypt. Napoleon had appealed to them to add ”glory” to their ”freedom” and to share the ”immortal wreaths of fame”.273 Not one of the Maltese volunteered, whereupon the survivor recounted that the Maltese were surrounded by a French regiment and forcibly taken to troop ships for embarkation.

408Their reluctance to serve Napoleon may, of course, have been symptomatic of a reluctance to serve in the military of the French invader: but this possible interpretation can be contested. Napoleon was only on Malta for a brief period (9-14 June 1798) at which time the French were still perceived as liberators. The more likely explanation of these events is that the Maltese were simply reluctant to risk their lives in an imperial cause that did not serve their interests. The wisdom of this distrust was subsequently born out when the fate of the Maltese conscripts was revealed.

  • 274 Ibid., 259.
  • 275 Macaulay to Ball, 25 January 1804, Kew, CO 158/8/19.

409Coleridge’s account, in The Friend, alleged that the unfortunate Maltese had been placed in front of French soldiers, not only as shields but also to prevent desertion.274 Whatever the truth behind these assertions, there is no doubt that the British administration on Malta was fully aware of the casualties that the Maltese suffered. Macaulay had reported to Ball, in January 1804, that of the eight thousand Maltese men conscripted by the French army for Egyptian service, few returned.275 Such a recent disaster can hardly have been an inducement to the Maltese to serve in the armed forces of another imperially-ambitious State.

410Thus, the British insistence upon terms of service that were unacceptable to the Maltese was the immediate, and perhaps unsympathetic, cause of the significant desertions from the regiment with which Coleridge had to deal.

  • 276 Avviso, 15 July 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 17.
  • 277 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 18.

411As a first step, Coleridge issued Avvisi making public the Civil Commissioner’s insistence that the population should seek out the deserters.276 At this stage, the intention was to motivate potential informants by offering a reward for information leading to arrest. But, in addition, and somewhat controversially, the first Avviso also warned that punishments would be imposed on those who assisted the deserters. It is not clear whether aiding them was an offence contrary to existing Maltese law, so this threat was constitutionally controversial. The second Notice (5 August 1805)277 purported to clarify existing laws in order to deny the fugitives sustenance. When these Avvisi failed to persuade the Maltese, Coleridge, with more than a hint of desperation, resorted to legislation imposing new criminal penalties. The problem of desertion was, however, unresolved by the time he left the Island in September 1805.

412Desertion was not, however, the only problem the British encountered. Maltese civilians were taking the bounty proffered for enlistment and then refusing to serve. This was also a problem Coleridge had to deal with and we shall consider this problem first.

The Avviso of 20 June 1805278 – Enlistment Money

  • 278 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12.

413The recruitment campaign, which began in March 1805, soon ran into unexpected difficulties. On 20 June 1805 Coleridge was forced to issue a public notice condemning the fraudulent practice by which civilian men, who pretended to be interested in enlistment, accepted the enlistment money only to use it as an interest free loan with which to gamble. Having accepted the bounty, they would, unlawfully, refuse to proceed with enlistment. Of course, they hoped to escape enlistment by repaying the bounty and the required penalty, but this depended, of course, on having won their bets.

414To combat this opportunism, Coleridge announced a more vigorous enforcement, of the existing regulations, available under the articles of War. This scheme employed a ”cooling off period” after the payment of the bounty. An intending soldier had to be taken before an official or magistrate and sworn in; but under the articles of War this process was not to take place earlier than twenty-four hours and not later than forty-eight hours after receiving payment. In other words, the articles of War enabled an individual who had second thoughts about military service to repay the enlistment money together with a ten scudi penalty and, thereby, avoid enlistment without committing an offence.

415The restriction that Coleridge imposed was that the repayment of the enlistment money and the ten scudi penalty had to occur within twentyfour hours of the enlistment money having been accepted. This meant that the unsuccessful gambler would have little opportunity to recoup the lost stake and win the ten scudi necessary to escape military service.

416The problem with this restriction is that it appears to contradict other terms of the articles of War, notably the earlier provision that the coolingoff period could be as long as forty-eight hours. The internal consistency of the Regulations is problematic.

The Avviso of 15 July 1805279 – Deserters

  • 279 Avviso 15th July 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 17.
  • 280 NAM 92/04 1805.

417Large-scale desertions were a problem for the authorities that were not confined to the Royal Regiment of Malta. Surviving witness testimony reveals that desertions of up to twenty men at a time were taking place during July 1805 – the foreign soldiers of the Corsican regiment bribing Maltese boat owners to take them overseas.280

418Coleridge’s Public Notice of 15 July 1805 was intended to secure the recapture of fugitives from the Royal Regiment of Malta. Normally, desertion would have been a matter exclusively for the military but, as mentioned above, civilians, who were usually beyond the reach of the military jurisdiction, were assisting the soldiers, and so the matter was passed to the Public Secretary. The Avviso gave formal notice that those who aided the deserters would be severely punished.

419The (successful) desertions were to continue throughout the summer, which reveals that the authorities had great difficulty in eradicating the support networks which made evasion possible. As we have seen, the total strength of the Regiment increased by a mere eighty three men in the two months from May to July 1805, despite the offer of a very tempting bounty. Although it is unclear whether these limited numbers included those who had now deserted, the statistics suggest slow progress in building and maintaining the fighting strength of the Corps. If these enlistments did include some or all of the now deserted troops then the actual numbers available for service would have been significantly fewer than the nominal strength. The reaction of the authorities suggests that British policy was being seriously undermined.

420Coleridge’s text was carefully constructed. The deliberate intention was to suggest to the civilian inhabitants that the fugitives were armed, dangerous and desperate, which implied that it was in everyone’s interest to get the men back to barracks as soon as possible. He also claimed that the fugitives were causing a disturbance to the population. However, if these disturbances ever took place, it is possible to be sceptical about the scale of the threat suggested. The evidence from the various Bandi and Avvisi is that family and friends, who had no wish to see ”their” soldiers sent overseas to risk their lives in the service of a foreign power, actively supported the fugitives. If the absconders really had been isolated, threatening and aggressive we can surmise that they would soon have been turned over to the military, not least because the authorities had promised a reward to informants for information leading to arrest.

  • 281 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 21.

421The facts speak for themselves. The confinement of the deserters on a small island upon which they would, inevitably, have been pursued, with some determination, by the military authorities, reveals that they had support from friends. In the intense heat of summer, they would quickly have been forced to obtain water. Since there are no rivers on the Island, their supply problems, in the absence of civilian aid, would have been insurmountable. If it occurred at all, the disturbance to which the Avviso refers may have been isolated attempts to obtain supplies from unwilling property owners; but there is no convincing evidence of widespread threatening behaviour of a kind that would destroy public sympathy for their plight. As said, the portrayal of the fugitives as armed and dangerous may have been little more than a concoction of the authorities designed to whip up public anxiety. If so, it is possible to interpret the language of this Avviso (15 July 1805) as another example of Coleridge’s propaganda. And it failed. In the Bando of 2 September 1805,281 Coleridge was eventually forced to concede that ”hospitality” in rural areas had been offered to the deserters. This admission is revealing.

Constitutional Issues

422Constitutionally, the Avviso of 15 July 1805 was controversial because it purported to announce that the offering of assistance to any deserter, or failing to inform the authorities of their whereabouts, would lead to ”severe” punishment. It also purported to impose new duties: the Maltese were required to make all efforts to discover the whereabouts of the deserters (and inform on them).

  • 282 See Chapter 6.

423It is not a Bando and thus could not, by itself, alter Maltese law. Moreover, there is no reference in the text of the Notice to an already existing law that would entitle the authorities to do impose a lawful punishment; indeed, we can be reasonably certain that no such law existed because Coleridge was compelled to promulgate a measure creating new offences in the Bando dated 2 September 1805. As we describe,282 it is a violation of the Rule of Law and, in particular, of the principle nulle poena sine lege, if conduct of which the administration merely disapproves can be subjected to punishment. Punishment can only take place in accordance with the law.

The Avviso of 5 August 1805283 – Provisions for Deserters

  • 283 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 18.
  • 284 NAM LIBR 431 1/3 Bandi 1800 AL 1803, 69.

424The Notice of 15 July 1805 plainly failed in its purpose. On 5 August 1805, Coleridge was compelled to issue a further Notice that sought to prevent the supply of provisions to the deserters as a way of denying them the means of subsisting outside the military system. This Notice of 5 August 1805, by ”reminding” the public of the terms of a Proclamation of 3 April 1801,284 targeted a particular form of ”help” – ostensibly the purchase of goods by soldiers and, in particular, bread. When taken together with Coleridge’s earlier instrument (Notice of 15 July 1805) the authorities can be seen to have pursued a strategy to deny the deserters both shelter and sustenance, whether donated or sold; in other words, the civil authorities wished to starve the soldiers back to barracks.

  • 285 See Chapter 6.

425The political sensitivity of the problem and, in particular, the desire to avoid resentment, was revealed by Coleridge’s statement in the August Avviso that the Civil Commissioner wished the population to be aware of the laws so as to avoid the need to inflict punishments. As elsewhere,285 Coleridge did not miss this opportunity to present the Civil Commissioner as a benevolent Governor who made efforts to educate the population about the measure rather than punishing them for its contravention. This was pursued, no doubt, to boost Ball’s public image at a difficult time when there must have been some friction between the authorities and the communities in which the deserters had (successfully) taken refuge.

426Coleridge’s Avviso of 5 August 1805 was not an overtly law-making measure: Coleridge appears to have thought (or at least claimed to believe) that he was merely reinforcing prohibitions already enacted in the Proclamation of 3 April 1801. However, for reasons that are not clear, Coleridge whether deliberately or otherwise, fundamentally misstated the meaning of the 1801 Proclamation.

427In translation, the 1801 Proclamation states:

In order to prevent any further abuses, His Excellency orders that anyone who dares to buy any goods from a soldier should be punished not only by the loss of both the purchased article and the money which he paid, but also by a fine decided by the Grand Court, which will be fixed depending upon the type and circumstances of the offence committed. (Emphasis added).

  • 286 The Proclamation of 1801 prevented soldiers selling arms and other military equipment to civilians
  • 287 In his Notebooks Coleridge recognised that failing to look at the available evidence was ”Impruden (...)

428Thus, the 1801 Proclamation criminalised purchases from military personnel (”soldiers”) whereas Coleridge, incorrectly, stated that the measure prevented any purchase by soldiers.286 The explanation for this error is elusive. One possibility is that Coleridge did not investigate the language of the Law of 1801, for himself.287 If he did examine it, he may have misunderstood the original Italian, or had it misrepresented to him by an official. His Notice suggests that this official may have been Ball himself since he attributed the mistaken belief, about the significance of the 1801 Proclamation, to Ball.

  • 288 It needs to be emphasised that this could only be effective as a public relations exercise; it cou (...)

429However, the alternative possibility is that Coleridge deliberately misstated the law so that it, conveniently, appeared to criminalise sales to soldiers. In other words, the misconstruction of the 1801 Proclamation may have been deliberate in order to appear to furnish the Administration with the necessary legal norm that enabled them to block supplies to deserters.288 Whichever is the proper explanation, it is undoubtedly true that Coleridge’s Avviso misstated the legal powers available to the Administration.

  • 289 See the regulation of trade theme discussed in Chapter 5.
  • 290 Proclamation of 22 March 1805, discussed under the consumer protection theme, above.
  • 291 Borg to Eton, 23 July 1806, Kew, CO 158/12, no folio reference.

430However, it is highly doubtful that any Maltese would have been taken in by this tactic, because soldiers regularly and, uncontroversially, bought goods from the public, including goods made from the locally-produced cotton, for which they were the major customers in 1805.289 Moreover, Coleridge had recently issued a Proclamation which regulated the sale of spirits to soldiers,290 so Coleridge’s Notice of 5 August 1805 was manifestly inaccurate and would have fooled no-one. From the Maltese perspective, the pretence that sales to soldiers had been illegal since 1801 was simply foolish and preposterous. Thus, Coleridge’s thin ruse must have seemed rather desperate. It is, however, suggestive of the extreme anxiety experienced by the British administration. The ridiculous tactic may have contributed to the loss of public confidence that eventually led to Ball’s administration being caricatured and lampooned on the streets.291

431It should also be emphasised that the purported extension to the criminal law (i.e. the attempt to criminalise sales to soldiers) raised legal and constitutional complexities. Any attempted prosecution would not only violate the fundamental principle of nulle poena sine lege, but would also result in an acquittal, since no offence known to the law would have been committed by a person selling goods to a deserter.

432In summary, one revealing conclusion is possible: the glaring failure to have due regard to the Proclamation of 1801 meant that Coleridge’s Notice of 5 August 1805 fell below the standards of good and efficient government. Its suggestion, that sales to soldiers had been prohibited since 1801, was ludicrous and the measure represents an ill-prepared and ill-judged instrument that could only have damaging consequences for the reputation of Ball’s government.

Bando of 2 September 1805292 – Assisting Deserters

  • 292 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 21.

433Unsurprisingly, the second instrument failed to curb the spate of desertions, which, by early September, remained, ”frequent”. Coleridge’s final step, indeed his final Bando on Malta, was to introduce a new law punishing civilians for assisting deserters. Thus, the Proclamation of 2 September 1805 rendered liable to a criminal penalty persons offering shelter or other support to soldiers who had deserted the Royal Malta Regiment. This step must have been necessary to redress the earlier bureaucratic bungling.

434The prohibition in the Bando of 2 September 1805 was an inclusive one forbidding the inhabitants from giving either shelter or assistance to any deserters. The penalty for breach of this injunction was a fine the amount of which was to be determined by the Tribunal.

435It is highly unusual in Coleridge’s Bandi that no mandatory fine was created for these offences: in this case the fine to be ascertained by the judiciary with the direction that all the circumstances of the case and, in particular, the identities and, presumably, the relationships of the people involved, should be taken into account. Mitigating circumstances could, thus, be submitted in an attempt to win leniency, and the judges would have been obliged to hear such submissions before passing sentence. This signalled that Coleridge recognised the conflicting loyalties that some families might have encountered. For example, wives who hid their husbands, or children who were found to have taken food to their fathers, might have been more leniently treated. The direction to the judges, to take all circumstances into account, signals an official concern with justice rather than merely with punishment. These considerations were, no doubt, intended to reduce the antipathy towards the administration that the decision, to order overseas military service (which had sparked the desertions), had caused.

436This democratising technique, of leaving punishment to be determined by the Maltese (through their judiciary), contrasted with some other legislative measures we have examined. As we have seen, the stipulation of a mandatory penalty is normal in Coleridge’s legislation, thereby removing discretion from the local judges.

Conclusion

437In these laws and public notices we, once again, encounter Coleridge dealing with a difficult administrative problem that went to the heart of British strategic interests in Malta. British unpopularity could threaten long-term possession of the Island, and so the problems surrounding the relationship between civilians and military had to be handled with sensitivity.

438As the summer progressed there was rising official anxiety that the Royal Regiment of Malta was not combat ready and this was not the only regiment afflicted with large-scale desertions, as embarkation and combat drew closer. The measures taken to capture the deserters show more than a hint of desperation. In particular, the Notice of 5 August 1805 seems to have been hastily drawn up and incompetently drafted. Its assertion, that an earlier law penalised sales to soldiers and had done so since 1801, was, plainly, ridiculous. We cannot know whether Coleridge was ordered to attempt this ruse or whether it merely resulted from a mistake, either by Coleridge himself or his advisers. Whatever the explanation for this dangerous misrepresentation, the Notice of 5 August 1805 is a revealing example of the standards of public administration at a time when the civil authorities were clearly under urgent and unrelenting political pressure from the military. The unwise decision to issue it can only have damaged the public reputation of the government.

439Once the need to enact a properly-framed law had been understood, Coleridge issued the Bando of 2 September 1805. By this date, Coleridge realised, and had to admit, that the deserters had public sympathy. It is only at this point that we can identify a change in strategy. The decision to confer discretionary sentencing powers upon the Maltese judiciary suggests a more compromising stance and a more emphatic concern with justice. Coleridge understood the problem of divided loyalty and wanted to ensure that Maltese judges were sensitive to this when sentencing.

Notes

1 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.

2 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12.

3 Hardman, 535.

4 Ball to Camden, 10 September 1804, Kew, CO 158/9/59.

5 Ball to E. Cook (Under-Secretary), 1 March 1806, Kew, CO 158/11 no folio reference – Revenue & Expenditure of Malta & Gozo, 25 July 1804-24 July 1805. Ball reported that very considerable sums had been expended on roads without specifying the amounts spent.

6 Sultana, 274.

7 CN 2, 2412.

8 To Robert Southey, circa 24 December 1809, CL 3, 265.

9 See Public Order and Crime, below.

10 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.

11 NLM LIBR/MS 430 1/2 Bandi 1790 AL 1805, 2.

12 The question whether the constitution precluded new taxes was a particularly vexed one. It is considered in the theme concerning taxation at 5.3, below.

13 See generally Chapter 2 and the taxation theme at 5.3, below.

14 As the Royal Commission acknowledged in 1812: Kew, CO 158/19.

15 Ibid.

16 NLM LIBR/MS 430 1/2 Bandi 1790 AL 1805, 356; 431 II/3, 50.

17 Memorial and Petition of the Maltese (unsigned and undated): Kew, CO 158/10/151 (1805).

18 As the two Public Notices and the Proclamation concerning desertions from the Royal Malta Regiment revealed: see the military discipline theme, below.

19 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

20 See the taxation theme, below.

21 NAM LIBR A22 PS09 Maltese Corps Serving at the Surrender of Malta on 4 September 1800. The list names 2506 individual officers and men whom Captain Ball identified as potentially eligible to claim.

22 Captain Ball’s list, ibid., recorded, for example, that the colonel of Birchicarra (sic) battalion commanded 478 officers and men, whilst his counterpart in the Crendi Battalion commanded a mere 25 troops.

23 The Maltese were excluded by the British from the negotiations for capitulation. As a result no provision was made in the Articles of Capitulation for reparations to be paid to those Maltese citizens whose private property had been looted: see Appendix 2.

24 Ball to Dundas, 6 March 1801, Hardman, 344-5, Kew, CO 158/10/15.

25 Hardman, 345.

26 See, for example, the ’Humble Representation of the Deputies of Malta and Gozo’ in October 1801, English translation, with annotated alterations, Kew, CO158/2/272 ; also Hardman, 410-15.

27 The Friend, 1, 544 n. and Table Talk, 1, 475, April 1834.

28 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 321.

29 LIBR/MS 431 1/3 Bandi 1800 AL 1803, 333.

30 Private citizens could only take enemy vessels as lawful prize on the high seas under the authority of ”letters of marque”, or the express prior authority of the Crown. In the absence of this authority the seizure was liable to be condemned as piracy. Although this legal doctrine could not directly influence the British decision regarding the Valletta prize money, it reveals that the policy of international law supported the use of irregular forces only under the authority of the Crown and subject to the limitations on such action, namely that the legality of the seizure should be tested in a Court of Vice-Admiralty, such as the one the British established in Valletta in 1803.

31 5 September 1800.

32 NLM LIBR/MS 430 2/2 Bandi1805 AL 1814, 3.

33 NLM LIBR/MS 430 2/2 Bandi1805 AL 1814, 20.

34 Caruana, Introduction.

35 See the discussion of the excise duties in Chapters 2 and 5, particularly, the taxation theme, in Chapter 5 below.

36 Sultana, 300.

37 Although, as mentioned below, the Maltese Constitution gave the Maltese a right to petition the Civil Commissioner sitting in Segnatura about any grievance.

38 They had to establish that they had left due to some ”involuntary accident”, which potentially included other reasons than disabling wounds.

39 Although there were exceptions. The Civil Commissioner retained the power to licence premises retailing spirits: see the Bando of 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4, and the consumer protection theme, below. The explanation for this instance may be that Ball was under pressure from the military authorities to prevent ill-discipline amongst the British troops awaiting embarkation.

40 The Friend, 2, 569.

41 See NAM LIBR 43/11, Registro de memoriali decretati da sua Excellenza il Sig. Cavalier Alessandro Ball Regio Commissionario Civile di Sua Maestà Britannica, vol N.

42 Anonymous letter passed by Eton to Windham enclosed in a letter dated 11 October 1806, Kew, CO 158/12/ no folio reference.

43 Ball’s rebuttal survives: Ball to Windham, 28 February 1807 Kew, CO 158/13/64.

44 Some were referred to other officials better placed to determine their merits: see e.g., Michele and Francesco Pivano’s cases which were referred to the Governor of Gozo on 22 March 1805, and Rosa Abela case, she was referred to her Luogotenenteo n 2 April 1805: see NAM LIBR 43/11 above n. 41.

45 The Friend, 2, 552.

46 In what follows we are principally concerned with the imposition of excise duties. In so far as a ”tax” is imposed on a transaction, and a ”duty” on goods, a ”tax” can be distinguished from a ”duty”. However, that distinction was not applicable in Malta under the Constitution in force in 1798 and therefore in what follows there is no legal significance between a tax and a duty and so the terms can be used interchangeably.

47 See e.g. the Proclamation of 15 July 1801, NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 204.

48 NLM LIBR/MS 430 1/2 Bandi 1790 AL 1805.

49 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

50 Ball’s Memorandum to Dundas of 26 December 1800, Kew, CO 158/1/12-25, assured ministers that Malta, if retained as British possession, would not be a burden on the Imperial power. This hardened into a political expectation as Hobart’s Instructions to Cameron dated 14 May 1801 make clear: see Hardman, 350, 355: ”Under the head of expenditure I have only to state His Majesty’s expectation that the revenue will be found fully adequate to defray all charges of the Civil Government (as well as other listed expenses)”. In 1805 Ball continued to assure ministers that a balanced budget would be achieved: see e.g. Ball to Camden, 19 April 1805, Kew, CO 158/10/125.

51 Ibid., 131: the ”general distress” caused by the economic collapse of 1800 ”has already ceased”. The rising demand for labour and an increase in wages, in his judgement, permitted an increase in taxation.

52 He estimated that the duty on wine and spirits would raise a surplus (after the sums for the relief of bank depositors and the increased salaries of public servants) of £6,000 per annum: Ball to Camden, 19 April 1805, above n. 50.

53 See Chapter 2.

54 See Cameron’s Instructions of 14 May 1801, Hardman, 350, and, more generally, Chapter 2, above.

55 This was actually a re-introduction of the wine tax because the Jurats of the Università had failed to collect it from about 1802-1803 following some confusion about the status of Malta as free port. See Macaulay to Camden, 25 January 1804, Kew, CO 158/8/111.

56 See De Bono.

57 The tax would no longer be levied once its purpose had been achieved: see Report of Royal Commission of 1812, Kew, CO 158/19.

58 See Ball to Camden, above n. 50.

59 NLM LIBR/MS 430 ½.

60 See the Report of the Royal Commission, 1812, Kew, CO 158/19.

61 See Chapter 3.

62 See e.g. Ball to Cooke, 3 February 1805, Kew, CO 158/10/128.

63 As described in Chapter 2, Thornton reported that the mission resulted in the greatest loss that the Università had sustained. Thornton, Kew, CO 163/33. Ball’s forecast of an estimated profit of £20,000 on the 40,000 salms of wheat to be purchased in the Black Sea area can be found in Ball to Cooke, 16 September 1804, Kew, CO 158/9.

64 It should not be forgotten that within a few weeks, significant numbers of Maltese rose up against the Jews. Their wrath was also directed against the British and their immigration policies because the demonstration of two thousand angry Maltese processed to the seat of government in Valletta.

65 Albeit that he would also endeavour to make provision for the deserving causes. Nevertheless, these represent almost a footnote in his strategy: Ball to Cooke, above n. 62.

66 This sum can be deduced from Ball’s prediction that, when combined with the £20,000 from the corn speculation, the total revenue raised would be £30,000: see Ball to Camden, 19 April 1805, Kew, above n. 50, 134. Ball failed to offer a firm commitment to raise this sum (i.e. £10,000) from the new duties presumably because, as the Proclamation of 8 March 1805, conceded, he was unsure how great the resulting revenue would be.

67 Ball to Dundas, Kew, CO 158/1/12-25; See further, Chapter 2.

68 See e.g. CN 2, 2412 and CN 2, 2413.

69 Eton to Sullivan, Kew, CO 158/2/308.

70 Each of these policy goals was favoured by the Royal Commission: Kew, CO 158/19.

71 Because of the political and legal sensitivity of this measure, Ball had consulted widely prior to its introduction, including the Commander in Chief of British forces (Major-General Villettes), ”the field officers” and the Chief Physician of the Medical Staff. We might expect their viewpoints to emphasise the importance of reducing alcohol consumption. See Ball to Camden above n. 50, 133-4.

72 E.g. a Bando of 18 October 1802, NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 273 to restrain the abuse of pointed or sharp weapons often used in violent assaults. See generally, the consumer protection theme, below.

73 It is unlikely that Coleridge would have regarded the few English persons on the Island as ”foreigners”, although it is possible that, from the Maltese perspective, the English might have been growing as unpopular as some other nationalities. There is some evidence for this in a letter in which it was stated: ”…the Maltese begin to hate the English…” from Borg to Eton, 30 May 1806, Kew, CO 158/12/no folio reference. Maltese and English alike were, for some purposes, officially regarded as British subjects after September 1800: see the Treaty with the Dey of Algiers, 19 March 1801.

74 See further Public Order and Crime, below.

75 The arrangements for the capitulation gave rise to a long term grievance amongst the Maltese: see the Petition of the Maltese to His Majesty King George III, 10 July 1811: Hardman, 509-511, and a more detailed account is offered by the Marchese di Testaferrata to Earl Bathurst (undated), January 1812, Hardman, 512, esp. 513 and also the Report of the Royal Commission, Kew, CO 158/19.

76 Although by Article 5 of the Articles of Capitulation the French Generals had given an undertaking that the property in question (which was not to be searched) did not contain any ”public or private property”: Hardman, 320. A similar arrangement was later to be agreed in the notorious Convention of Cintra, 1808. Under its terms, the French carried looted property away from Portugal on British ships after their defeat at the Battle of Vimeiro. The controversial Convention drew much criticism in Britain, not least from William Wordsworth who famously produced a critical pamphlet on the subject (Wordsworth W, Concerning the Convention of Cintra, London: Longman, Hurst, Rees and Orme, 1809). Unlike the French in Valletta, who were surrendering a fortress, the defeated French army under General Juno enjoyed a weaker bargaining position. The conduct of the British responsible for the Convention (including Arthur Wellesley, later the Duke of Wellington) was investigated at an official inquiry, but all concerned were formally exonerated.

77 See Eton to Sullivan, Kew, CO 158/2/308.

78 Thornton, above n. 63, and Chapter 2, Kew, CO 163/33/25-6. Appendix 9 of Thornton’s Report contains a translation into English of the text of the Avviso that was signed by Alexander Macaulay.

79 Ibid.

80 Maitland to Bathurst, 24 October 1814, Kew, CO 158/25/209, et seq., in which he reports that the salaries of junior staff had been much too low. He added that this problem had been so grave that it had been impossible for them to exist without fees or ”unfair perquisites”. He accordingly raised their remuneration.

81 Significantly, this only amounted to £71 19s 6d per annum: see Macaulay to Ball, 10 September 1804, Kew, CO 158/9/51.

82 See Eton to Sullivan, above n. 77, 308 et seq.

83 Kew, CO 158/19.

84 Bonnici.

85 Ibid.

86 See generally, Galea.

87 Major-General Pigot was in charge of a military administration of Malta from 5 September 1800 until 14 May 1801 when Charles Cameron, the first Civil Commissioner, was appointed.

88 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 156.

89 The Friend, 1, 567; see also Chapter 2.

90 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 205.

91 See Eton to Windham, 11 October 1806, Kew, CO 158/12 (no folio reference) and note the references to ”frequent robberies” and ”frequent murders” in Borg to Eton, 30 May 1806, Kew, CO 158/12/no folio reference. See also Ball to Windham, 28 February 1807, Kew, CO 158/13/53.

92 See Windham to Ball, 6 January 1807, quoted in Hardman, 499. and Eton to Windham, 11 October 1806, Kew, CO 158/12 (no folio reference).

93 Ball to Windham, 28 February 1807, Kew, CO 158/13/9 et seq.

94 This was conceded by Ball to Windham although with the caveat that by 1807 no similar offence had been committed for ”some months”: ibid. at 83. An interesting case involving robbery and homicide came before the Segnatura on 1 June 1805 when four petitioners unsuccessfully sought to have their sentences of exile reduced. An interesting feature of this case was that it involved a claim for sanctuary, and one of the grounds for the petition was that the Curia Romana had not delivered its verdict on the status of the sanctuary. Thus the case touched upon the relationship between the civil and ecclesiastic authorities: Registro de memoriali decretati da sua Excellenza il Sig. Cavalier Alessandro Ball Regio Commissionario Civile di Sua Maestà Britannica, NAM LIBR 43/11 vol N.

95 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805,273. Code Du Rohan, translated by Lydia Davis, Book 5 Item 2, II.

96 Ball to Windham, above n. 93.

97 Even where the identity of the offender was known, it was still possible to evade capture. This could only have been possible with local support. For example when Giovanni Vasallo, a shop worker, ran off after fatally stabbing a soldier outside a wine shop in Valletta on 30 September 1805 he was never caught despite the offer of a reward: http://website.lineone.net/~stephaniebidmead/chapter567.htm consulted 17 January 2007.

98 The conduct of the public execution reflected badly on the Administration. This was so because the public had been allowed to end the suffering of the offender by shooting him during the execution by hanging. Accidentally or otherwise, shots fired from the crowd hit both the executioner and his assistant killing the former and wounding the latter. See Ball to Windham, above n. 93 at 83.

99 Borg to Eton, 30 May 1806, Kew, CO 158/12/no folio reference.

100 Kew, CO 158/19/ 24-28.

101 See below and note the evidence in the Avviso of 25 May 1805 that Borg, who intervened to save a perceived Jew from severe injury, seems not to have informed on the aggressors. See also Chapter 6.

102 Ibid.

103 It is unlikely that in this early period (1800-1802) there was much antipathy to wards the British, although attitudes may have hardened by 1806: see Borg to Eton, 30 May 1806, Kew, CO 158/12/no folio reference.

104 Royal Commission of 1812, Kew, CO 158/19.

105 See Chapter 2.

106 Above n. 93.

107 Ball to Camden, 19 April 1805, Kew, CO 158/10/123, 131: the ”general distress” caused by the economic collapse of 1800 ”has already ceased”. He noted that there was a demand for labour and an increase in wages.

108 Royal Commission of 1812, Kew, CO 158/19.

109 See below.

110 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 239.

111 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 285.

112 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 219.

113 Antagonism remained a feature of Maltese society by the time the Royal Commissioners reported in 1812: Kew, CO 158/19. By that date, the British seemed willing exploit it by shifting the tax burden towards foreigners rather than Maltese, thereby achieving popularity as well as increased revenue – a process that Coleridge had begun in his wine duty Bando of 8 March 1805, see taxation theme, above.

114 Ball to Windham above n. 93 at 53.

115 Ball to Windham, above n. 93.

116 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.2.

117 See Hardman, 6.

118 The Royal Commission report offers an account of the Civil Commissioner’s Constitutional powers: Kew, CO 158/19. These powers included reversing the decrees of the Tribunals.

119 Coleridge might have made these arguments although, if he did, the evidence is now lost. The above is subject to the important caveat that constitutional values were under strain in Britain following the suspension of habeas corpus and the Act of Indemnity 1801 (see Chapter 1).

120 The separation of powers is not a defining characteristic of the British Constitution.

121 The Friend, 1, 544.

122 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 1.

123 See the Proclamation of 15 July 1801, Hardman, 358-9. W. Eton’s account is revealing. He stated that the Maltese petitioners risked punishment if they showed the ”least freedom in remonstrating” Eton, vol IV, 145 et seq. Fear of inviting the ire of the Civil Commissioner must have been a disincentive to use the Segnatura, and hence a reason why intermediaries such as Sacco had come to the fore.

124 These were outlined in Chapter 2.

125 Almost the only Jews on the Islands during the government of the Order were captive slaves or others who concealed their faith.

126 The Edict of Expulsion signed in Palermo on 18 June 1492 excluded Jews from Malta after that date.

127 See Kew, CO 158/10/3; also Ball to Windham, above n. 93 at 67 in which he referred to the immigration in the following terms: ”In the autumn of 1804….many persons of the Jewish persuasion took refuge on Malta”. (Emphasis added). It is possible that they arrived with a convoy under the protection of a Captain Mundy of the Hydra on 14 October 1804.

128 Ball became aware of the jealousies that began to emerge between the Maltese and Jewish communities: above n. 93 at 67-8 where he refers to the ”...fear amongst the Maltese that the Jews would divide amongst themselves the advantages of trade”.

129 Above Chapter 2.

130 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9.

131 CN 2, 2594.

132 CN 2, 2646.

133 CN 2,2668. The riots and murder followed the assassination of Naftali Buchnach or Busnach. Coleridge, who recorded that the assassination took place on 27 June 1805, spelt the name Bushnak: CN 2, 2668.

134 CN 2, 2668.

135 Above n. 93 at 67-8.

136 Ibid. The accusations made by the anti-Semites amongst the Maltese resonated with a version of the ancient blood libel levelled at the Jews. The defamation may have originated in the legend created by Thomas of Monmouth in ’The Life and Passion of St William the Martyr of Norwich’ completed in 1173. The charge levelled is normally that Jews kill an innocent Christian infant, usually male, so that the blood can be mixed with their unleavened bread at Passover. For an account of this origin of the libel, see Jacobs; also Anderson, and further Bennett. A general study of the nature, origins history and influence of this blood-libel in whipping up anti Semitic hysteria see Dundes.

137 NAM 92/04 1805 box 1.

138 The relevant part is as follows: ”That in the beginning of June 1805 (sic) there was a tumult of 2000 persons in Valletta who however dispersed without doing any mischief”. Eton passed this information to Windham in a letter dated 11 October 1806, CO 158/12 (no folio reference).

139 See Ball to Windham above n. 93 at 67.

140 The Friend, 1, 544.

141 CN 2, 2646n; ”I also am an Israelite”.

142 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8.

143 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9. The date of issue was 25 May 1805, not March 25 1805 as claimed by Kathleen Coburn: CN 2 (Notes), 2594.

144 In the Notice of 25 May 1805 Coleridge acknowledged the existence of a ”popular prejudice” against the Jews.

145 Although Coleridge omitted to define ”foreigners”: NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 f14.

146 Above n. 93 although when Ball refers to the ”whole affair” he seems to be referring exclusively to the riot rather than the underlying social problem. Even so it creates an impression which, whilst politically convenient, might not have been strictly accurate.

147 As he was required to do under the terms of the Code de Rohan.

148 NAM 92/04 1805, 21 May 1805.

149 Statement of Joseph Pizzuto, ibid.

150 Andrea Borg’s statement, 21 May 1805 NAM 92/04, 1805, box 1.

151 Ibid.

152 Ibid.

153 Above n. 93 at 67-8.

154 Book 5 item 3, no 5.

155 See para. VII.

156 Book 5, item 3, no 5.

157 Contrary to para. V of Part III of the Code.

158 Ball to Windham above n. 93 at 51. The use of the word ”upholding” also implies that Ball’s exercised a superior, reviewing role in the hierarchy of courts because his decision to ”uphold” the decision (taken on the advice of the English barrister) implies a power to over-turn.

159 Memorial and Petition of the Maltese (unsigned and undated): Kew, CO 158/10/151 (1805).

160 The Friend, 1, 169-70.

161 See Hardman, 350 et seq.

162 The relevant part of the Instructions dated 14 May 1801 stated: ”You will therefore understand that the administration of justice and police is, as nearly as circumstances will permit, to continue to be exercised in conformity to the Laws, and Institutions of the antient Government of the Order of St John”.

163 See Chapter 1, pages 43 and 44.

164 This arguably extended Para. V of Part III of the Code de Rohan, which states: ”Anybody who invents or composes slanderous publications, or who sticks up posters containing libellous, abusive or offensive material, shall incur the penalty of ten years, or even life in the galleys. All their advisors, composers, supporters, participants and people who fixed up the posters will suffer the same penalty”. It is not obvious that these words unambiguously impose a duty on persons hearing false rumours to ”undeceive” other listeners who happen to be present. Just one objection to Coleridge’s interpretation is that to be a ”participant” the person would arguably have to spread the rumour, not merely hear it spoken in conversation.

165 Although, as already indicated, no such offence was properly known to the law.

166 Coleridge’s assessment was that the ordinary Maltese (the peasantry) suffere from ”childish ignorance”. The Friend, 1, 536.

167 The petition can be found in the National Archive of Malta, NAM 92/04 1805, box 07; and the decision in the case is recorded in NAM LIBR 43/11 vol N.

168 Registro dei Memoriale e Decreti da Sua Excellenza il sig Cavalier Alessandro Ball Regio Commissionario Civile di Sua Maestà Britannica NAM LIBR 43/11 vol N.

169 NAM 92/04 1805 box 1.

170 Ball to Windham, 28 February 1807 above n. 93.

171 See Chapter 2.

172 LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.9.

173 NAM 92/04 1805.

174 Item III, para. VII.

175 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 14.

176 Above n. 93.

177 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207 et seq.

178 Cameron’s Royal Instructions of 14 May 1801 had instructed him as follows: ”No alteration should be made in the modes, laws and regulations according to which the civil affairs and the Revenue of the Island have been heretofore managed unless the same shall appear ...to be evidently beneficial and desirable, as to leave no doubt of its expediency or of it being generally acceptable to the wishes, feelings and even prejudices of the inhabitants”. (Emphasis added).

179 See Chapter 6.

180 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 273.

181 See e.g., the application of Diego Decandia, 29 August 1805, in the Registro dei Memoriale e Decretati above n. 68. This was subject, of course, to a successful application for naturalisation, such as that presented by Domenico Amadori on 31 August 1805, ibid.

182 Considered below under ”Passports”.

183 The language of the Bando suggests a wider obligation requiring the card to be carried at all times (regardless of whether the vessel/vehicle was actually in use).

184 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 156.

185 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 213.

186 See Chapter 2 and the taxation theme.

187 It will be recalled that Ball’s Instructions were to ”attach” the Maltese to British rule: Secretary of State to Ball, 9 June 1802, Kew, FO 49/3/51.

188 Thornton identified ”fictitious entries” where the books did not balance. See Thornton, Report to His Excellency the Governor on the Accounts of the University of Valletta from 4th September 1800-31st July 1814, Kew, CO 163/33/9.

189 Such opportunism also extended to ordinary Maltese. See for example Coleridge’s Public Notice of 20 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12, which is concerned with civilians profiting by obtaining money by deception under the enlistment system, see the military discipline theme, below.

190 See for example the military discipline theme.

191 Ball to Windham, 28 February 1807, Kew, CO 158/13/91.

192 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 11.

193 The tactic of naming the judge in this instance safeguarded his judicial reputation, but Coleridge might have achieved greater confidence in the judicial system had he not chosen to do so. This would have created a stronger inference that the Maltese judges were incorruptible.

194 See Chapter 2.

195 There appears to have been a custom that at Christmas and Easter prisoners might have their sentences reduced, or even that they might be released. See Sultana, 322-3.

196 Sultana, ibid.

197 As was the case in relation to spirits, where the authorities regulated the quantity available: See further below.

198 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 19.

199 See Bando 29 January 1805, which is considered under the reconstruction theme.

200 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.

201 See taxation theme.

202 NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 224. This prohibited the sale of wine, brandy or rum to the English soldiers living in the city of Notabile and Boschetto.

203 Bando, 18 October 1802, NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 273.

204 See e.g. the fatal stabbing of a British soldier by a Maltese in September 1805:

http://website.lineone.net/~stephaniebidmead/chapter567.htm, consulted 16 December 2008.

205 Ball to Camden, 19 April 1805, Kew, CO 158/10/133-4.

206 It is noteworthy that the inspector was the Chief Physician.

207 NAM 92/04 1805. For example, Giuseppe Camilleri was granted a licence to run a bar (tavola) on 3 March 1801.

208 Coleridge would seem to have overlooked the foregoing provision that prevented manufacturers from selling other than to licensed retailers – i.e. precluding direct sales to the public.

209 The condition also required the licensee to observe all other provisions of the Bando.

210 See e.g. Rovario Farrugia’s application (wine only), 5 April 1805. The terms of this and the other licences can be seen in NAM LIBR 43/11: Registro de memoriali decretati da sua Excellenza il Sig. Cavalier Alessandro Ball Regio Commissionario Civile di Sua Maestà Britannica, vol N. The first of many applications was presented on 2 April 1805.

211 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 6.

212 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 19.

213 No Bando of this date can be discovered in the National Library of Malta.

214 See the Public Order and Crime theme above.

215 No doubt the possibility of a life-time ban was intended to prevent re-offending, but see further below.

216 See Chapter 2.

217 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 10.

218 This was a busy time for Coleridge because he also issued was also a significant and detailed Bando regulating spirits on that day: LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.4.

219 See NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.5 (cotton); ibid. f.6 (inspections of wine). For a study of the cotton trade, see generally Debono from which much of what follows is derived.

220 Debono.

221 See the Proclamation of 1777 regulating the production of Gozitan cotton and preventing its mixture with foreign cotton: NLM LIBR/MS Bandi 1772-1779, 429.

222 See e.g. the Bandi of 29 January 1805/MS 430 1/2 Bandi 1790 AL 1805 f.356; 431 II/3, 50, and 21 June 1805, LIBR/MS 430 2/2 Bandi 1805 AL 1814, 13.

223 NLM LIBR/MS 431 2/3 Bandi 1804-1808, 97.

224 CN 2, 2446. With considerable prescience, he recognised that what might appear to him to be useless might be invaluable to others.

225 CN 2, 2583.

226 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814,13.

227 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814 ,14, see the Public Order and Crime theme, above.

228 Although a Bando might have been necessary to achieve this.

229 Avviso, 23 June 1805 (date of 23 crossed out and 25 substituted) LIBR/MS 430 2/2 Bandi 1805 AL 1814, 15.

230 Kew, CO 158/1/ 53 et seq.

231 Pigot to Cameron, 2 July 1801, Kew, CO 158/1/119.

232 Ibid.

233 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207.

234 Hobart to Cameron, ibid., 209.

235 Although the text of the Avviso of 25 June 1805 (below) suggests that entitlement was determined by a decision of the Tribunal, not Coleridge, which must have eased his administrative burden.

236 It might be asked why a stock of grain had not been brought into the Island in readiness for the surrender. The absence of such preparations suggests either a lack of forward planning or the suddenness of the French collapse.

237 As Coleridge described in the text of the preamble to this Avviso of 25 June 1805, LIBR/MS 430 2/2 Bandi 1805 AL 1814, 15.

238 The term ”Barbary States” refers to the territory between seaports of Tangiers and Tripoli. Britain and other nations trading in the Mediterranean paid the Dey tribute in order to ensure the safe passage of British vessels. The purpose of the Treaty, of 19 March 1801, was to extend this protection to the Maltese.

239 Sultana, 9.

240 Ball to Cartwright, 9 September 1805, Kew, CO 158/10/239, 240.

241 An Avviso of 5 February 1803 announced the release of one hundred and sixty four Maltese prisoners from Constantinople: NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 175.

242 Sultana, 165. We may also note the seizure of Neapolitan vessels used to transport supplies to the Islands during the siege: Ball to Cartwright, 9 September 1805, Kew, CO 158/10/239, 240 where it was revealed that the Sicilian and Neapolitan captives, as well as Maltese slaves, were still being detained. Dr Moncrieff to Ball, 13 October 1805, Kew, CO 158/10/247 et seq. referred to negotiations for the release of Sicilians. He reported that the Maltese slaves had been released. Ball to Castlereagh, 26 December 1805, Kew, CO 158/10/227 revealed that negotiations had not yet been concluded.

243 Ball to Cooke, 21 July 1805, Kew, CO 158/10/187, 191. This was, according to Ball, the only occasion on which Macaulay formally dissented from Ball’s policies.

244 NLM LIBR 431/1 Bandi 1800 AL 1803, 309.

245 See also Ball to Cooke, 21 July 1805, Kew, CO 158/10/187.

246 The Avviso of 22 October 1803, NLM LIBR/MS 430, Bandi 1790 AL 1805, 314.

247 Sultana, 20, 24 and 155.

248 Sultana, 165.

249 Sultana, 256. Interestingly, a dispatch from Ball to Cartwright implicated Lords Nelson and Keith in the issue of the ”emergency” passports: Ball to Cartwright, 9 September 1805, Kew, CO 158/10.

250 Sultana, 305; see also Camden to Ball, Kew, 27 March 1805, Kew, CO 159/3/161.

251 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9. See the Public Order and Crime theme, above.

252 Ball was now prepared to be open with his superiors about his decision: Ball to E. Cooke, 21 July 1805, Kew, CO 158/10/ 93.

253 CN 2, 2413.

254 Dr Moncrieff to Ball, 13 October 1805, Kew, CO 158/10/247 et seq.

255 Ball to Castlereagh, 26 December 1805, Kew, CO 158/10/227. He referred in this despatch to Neapolitan holders of British passports still held by the Dey of Algiers. They had been in captivity since the time Ball had had to use foreign vessels to supply the Island.

256 Borg to Windham, 30 May 1806, British National Archive, Kew, CO 158/12 no folio reference.

257 Sultana, 347.

258 1804: See http://website.lineone.net/~stephaniebidmead/chapter567.htm, consulted 5 January 2007.

259 Ball’s staffing policy is described in Chapter 2. For Coleridge’s involvement in policy discussion, see: to Robert Southey, circa 24 December 1809 CL 3, 265.

260 See generally, http://website.lineone.net/~stephaniebidmead/ ”A History of the British Army in Malta”. Consulted 5 January 2007.

261 To Robert Southey, circa 24 December 1809, CL 3, 265.

262 To Robert Southey, ibid. This decision was, he argued, ”cruel” and ”shameful” (emphasis in the original).

263 Eight thousand British troops were sent to Malta in readiness for the campaign in 1805: Camden to Ball, 29 March 1805, Kew, CO 159/3/170. Part of the Kingdom of the Two Sicilies had been occupied by the French when they entered Naples. See generally, on the proposed offensive strategy in the Mediterranean, Holland et al. Sicily was eventually occupied by British forces for eight years after January 1806.

264 Rather surprisingly, Coleridge later claimed to know little about the Regiment on the grounds that he had left the Island before the Regiment embarked on its mission: to Robert Southey, circa 24 December 1809, CL 3, 265.

265 Above n. 260.

266 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12.

267 Sultana, 231, 318-9.

268 Ball to Camden, 22 April, 1805, Kew, CO 158/10/ 151. Coleridge also claimed to have written a memorandum on the subject on behalf of the Civil Commissioner: To Robert Southey, circa 24 December 1809, below n. 271.

269 To Robert Southey, above n. 12.

270 See above n. 268, where Ball makes reference to and quotes from the Secretary of State’s earlier letter to him dated 13 February 1805.

271 To Robert Southey, circa 24 December 1809, CL 3, 265.

272 Sultana, 326.

273 The Friend, 1, 258.

274 Ibid., 259.

275 Macaulay to Ball, 25 January 1804, Kew, CO 158/8/19.

276 Avviso, 15 July 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 17.

277 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 18.

278 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12.

279 Avviso 15th July 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 17.

280 NAM 92/04 1805.

281 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 21.

282 See Chapter 6.

283 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 18.

284 NAM LIBR 431 1/3 Bandi 1800 AL 1803, 69.

285 See Chapter 6.

286 The Proclamation of 1801 prevented soldiers selling arms and other military equipment to civilians.

287 In his Notebooks Coleridge recognised that failing to look at the available evidence was ”Imprudence”: CN 2, 2439.

288 It needs to be emphasised that this could only be effective as a public relations exercise; it could not change the law.

289 See the regulation of trade theme discussed in Chapter 5.

290 Proclamation of 22 March 1805, discussed under the consumer protection theme, above.

291 Borg to Eton, 23 July 1806, Kew, CO 158/12, no folio reference.

292 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 21.

Table des illustrations

Titre Table 1: Proclamations (Bandi) and Public Notices (Avvisi) under Coleridge’s signature
URL http://books.openedition.org/obp/docannexe/image/388/img-1.jpg
Fichier image/jpeg, 1,2M
Légende 9. The presence of studded wheels on this Calesse suggests that Coleridge’s Bando had not fully succeeded by the late 1830s. Lithograph by C. de Brocktorff [1838].
URL http://books.openedition.org/obp/docannexe/image/388/img-2.jpg
Fichier image/jpeg, 356k
Titre Table 2: Revenue raised by the duties imposed by the Proclamation of 8 March 1805
URL http://books.openedition.org/obp/docannexe/image/388/img-3.jpg
Fichier image/jpeg, 305k
Légende 10. The Avviso of 22nd May 1805 announcing the convictions of Borg, Hasciach and Bonello.
URL http://books.openedition.org/obp/docannexe/image/388/img-4.jpg
Fichier image/jpeg, 846k
Légende 11. The letter from the official of the Corte Capitanale which reveals that the Civil Commissioner had instructed the judge to sentence Fortunata Tagliana to exile in Gozo.
URL http://books.openedition.org/obp/docannexe/image/388/img-5.jpg
Fichier image/jpeg, 797k
Légende 12. The Naval Arsenal in the Grand Harbour, Valletta. Lithograph by C. de Brocktorff [1838].
URL http://books.openedition.org/obp/docannexe/image/388/img-6.jpg
Fichier image/jpeg, 340k
Légende 13. The Grand Harbour from Valletta towards Fort St Angelo and Vittoriosa. Kalkara creek lies to the left of the Fort whereas Dockyard creek lies to the right. The British naval dockyard first operated from the latter.
URL http://books.openedition.org/obp/docannexe/image/388/img-7.jpg
Fichier image/jpeg, 272k

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