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Coleridge’s Laws

 | 
Barry Hough
, 
Howard Davis

6. An Assessment of the Proclamations and Public Notices

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Introduction

1The purpose of this chapter is to examine Coleridge’s achievements in the Proclamations (Bandi) and Public Notices (Avvisi). Firstly, we shall consider Coleridge’s manipulative use of government information. Secondly, we shall consider the consonance of these instruments with his earlier journalism and with the requirements of the rule of law, such as publicity, comprehensibility and the use of discretion. We shall also examine some of their common features, such as the use of informants, and the criminal penalties imposed. The chapter concludes with an assessment of the extent to which Coleridge’s laws were influenced by wartime conditions.

A Conflict of Interest

  • 1 Generally, see Manning.
  • 2 For a general introduction to the geopolitical context, see Rapport.
  • 3 Marshall (ed.), vol 5; Ahmed, 28.

2Coleridge held office on Malta at a moment in history when British colonial policy had undergone a significant and complex shift. At the close of the eighteenth century, Britain had lost confidence in the wisdom of exporting its legal, political and cultural values and superimposing them on overseas territories.1 As Coleridge was to discover, one consequence of the new model of colonial government, which continued the constitutional arrangements of the former sovereign in conquered territories, was that British colonial governments were forced to administer colonies within a legal and political framework very different from that which existed in Britain.2 Politicians were, inevitably, compelled to determine whether civil society should be governed within the framework of local positive laws and values or whether, as Burke had suggested in the notorious impeachment of Hastings, the former Governor of Bengal, justice, in public affairs, should be understood as a matter of conscience – in effect, that empire should be an ethically informed project presided over by a progressive and liberal metropolitan state.3 Government in Malta was, therefore, predicated upon assumptions about difference, namely that the Maltese legal and constitutional system could be worked effectively without a need for close conformity with the standards that were required by the English common law. How Coleridge responded to this challenge is of compelling interest. As we have seen in Chapter 1, his early journalism displayed an awareness of the importance of the rule of law. Importantly, he regarded this as embodying universal standards. How the Bandi and Avvisi, promulgated by him, conformed to these standards deserves consideration which is given in this chapter. But first, we shall consider Coleridge’s propaganda role in seeking to establish the legitimacy of British rule on Malta.

  • 4 Cf. Staines.
  • 5 See Chapter 2.

3As we have described, in Chapter 2, a large number of government policies were flawed either in conception or execution. The orchestrated complaints of the nationalists, although motivated by a desire to have Ball recalled, were not all without substance. Grievances simmered over breaches of perceived promises, to share prize money, after the fall of Valletta – the Segnatura was, consequently, flooded with complaining petitions; there had been a harsh crackdown after the anti-Semitic disturbances, in which Ball had interfered with the judicial process, to impose exemplary sentences which went beyond the criminal Code; free speech had been suppressed; taxes had been levied, notwithstanding a formal pledge to uphold a Maltese system that did not permit regular taxation; crime rates were high and witnesses were not coming forward to give evidence; the community supported deserters from the military who feared being sent on overseas service; bread was formally declared to be only fit for hogs, and so it went on. One of Ball’s detractors noted that Ball’s administration was lampooned for incompetence. Of course, this correspondent was politically motivated, with an axe to grind, but the frustration he recorded is likely to have been substantially true. Any argument that, in 1805, Ball was still enjoying the reputation and esteem he had won during his first administration is simply unconvincing.4 There was discontent amongst the Maltese which had led to protests on the streets of Valletta. Even in London, ministers hesitated to have full confidence in him.5 Ball had, as it were, suffered a steep slump in his popularity, albeit, as matters turned out, a temporary one.

  • 6 The Friend, 2, 552-4.

4Ball’s unpopularity in 1805-1806 mattered because, given his autocratic powers, he was a powerful emblem of British rule since all governmental action was taken in his name. All the major policy decisions were taken by him and communicated in his name (as Coleridge emphasised in The Friend).6 Coleridge’s task was of strategic significance. He used government information to try to make Ball and his administration popular; and in doing so he was attempting to dispel the notion that Britain’s Civil Commissioner was just another, autocratic, alien power whose presence on the Island was merely as exploitative and, as some alleged, more tyrannical, a rule than under the worst of the Grandmasters. Coleridge had to craft government information in order to suggest that British rule was perceived as benign, legitimate, and founded upon a supposed concurrence of British and Maltese interests.

Coleridge as Advocate for the Legitimacy of British Rule

5The concept of legitimacy offers a solution to a political problem governing the relationship between power and obedience. It thus governs the relationship between those governing and those being governed. Legitimacy also sustains legal credibility and contributes to the justification for political action. A system of government can be regarded as legitimate if it responds to widely accepted social needs and preferences. This is so because government involves the direction of public affairs in order to advance the common good. As we have seen, for pragmatic British politicians, achieving and maintaining legitimacy was essential to the stable long-term government of an overseas possession with a unique constitutional, political and social structure.

6The problem for colonial administrators was that a structural fissure lay at the heart of the colonial project: the inherent conflict of interest between the colonial territory and the Imperial power. The dominant strategic function of colonial government on Malta was to control the territory as a secure military base, which, from the British point of view, meant that all governmental power was to be retained under British control. This strategic policy conflicted with, for example, the political aspiration of the Maltese to share governmental power. Political dissent was vigorously suppressed, together with Maltese civil and political rights (e.g. the right to a fair trial).

  • 7 In September 1805 Ball had sought to retain Coleridge’s services for the government and he emphasi (...)

7Coleridge seems to have realised that the legitimacy and popularity of Ball’s administration depended upon achieving a recognised congruence between the values of the British civil administration, its policies and those of the wider Maltese social system. The Civil Commissioner’s instructions required Ball to win the hearts and minds of the Maltese – to ”attach” them to British rule. This meant that upholding the public reputation of the administration was, necessarily, a strategically-significant endeavour. In Ball’s opinion, Coleridge had clearly understood that information could be used as a powerful policy instrument.7

8In the absence of other mechanisms, designed to elicit Maltese popular opinion before a law was introduced, the measure itself could sometimes furnish a useful means for the ex post facto persuasion of those regulated. Coleridge’s instruments were not merely rules; they were also explanations, justifications and, sometimes, even ingratiations aimed at securing political support not only for obedience to the measure, but, ultimately, for British rule. They are exercises in government communication intended to win public support, influence Maltese opinion and alter behaviour. But they are not uncontroversial because the manner in which consent was invited, the partial nature of the information, how it was selected and presented, and above all, the underlying motivation of government, pose ethical questions about Coleridge’s actions.

Ethics

  • 8 For a discussion of ethics in modern governmental communication see Yeung.

9We must not overlook Coleridge’s function as a senior British official. Naturally, he would be required to favour and emphasise the British perspective and British interests. He could hardly be expected to be indifferent towards British policy goals, indeed, he was required to act as an advocate for them. But did Coleridge’s behaviour go beyond the reasonable, even if zealous, advocacy of Ball’s policies? Did he provide information that was strictly truthful in content, but was, nonetheless, intended to mislead?8 Many students of his work might consider that he was, at the very least, highly selective in the information that he disclosed. More troubling was that some of the information he communicated was inaccurate, possibly designedly so. Some statements seem to have been deliberately misleading; others may (according to a more generous interpretation) have been merely careless or incompetent.

10In principle, there is a fundamental distinction between information that is honest, comprehensive, fair and accurate and information that is biased, incomplete, or intended to mislead. This distinction lies at the heart of integrity in public office. Thus, how Coleridge deployed government information is important to an understanding of his experience of ethics in public administration. The record does not disclose the highest standards in public office and this illuminates Coleridge’s dilemmas in reconciling himself to the demands of practical politics.

  • 9 CN 2, 2412, 23 January 1805.
  • 10 The Friend, 1, 314. It is revealing that in his Notebook Coleridge had interested himself in the r (...)

11There is ample evidence that Coleridge was aware of the morally-complex nature of the public office he had assumed. His Notebook entries reveal that this analysis began whilst he still held office. Within a few days of his appointment as Public Secretary, he was already asking the fundamental question, ”Wherein is Prudence distinguishable from Goodness (or Virtue) – and how are they both nevertheless one and indivisible” (emphasis in original).9 This was Coleridge’s central dilemma. His experience of public office, and reflections upon it, eventually led him to reject a utilitarian conception of political morality. Governmental action should not merely be concerned with the consequences of a political decision but also with the impulses that directed and motivated it. A concern with actions and consequences should not make government indifferent to considerations of morality. Coleridge concluded that these ”inward” motives contributed the essence of morality to the outward expression of public policy.10

  • 11 Coleridge concluded that the Treaty besmirched British national honour: The Friend, 1, 571.
  • 12 To Daniel Stuart, 22 August 1806 CL 2, 1178.

12For Coleridge, writing after his Malta period, an exclusively empirical justification of public action was not the appropriate standard by which governmental decisions should be judged. This is made clear in his conclusions concerning the British policy that led to the Treaty of Amiens in 1802. From the British point of view, the terms of the Treaty had been hugely advantageous because they brought an end to the costly hostilities with France. For the sake of our peace, Malta would be sacrificed. In particular, the Maltese were to be forced to accept the return of the despotic Order of St John. This would mean not only that the archipelago would fall under French influence, but that it would also expose the Maltese people (who had rebelled against their former French occupiers) to the risk of reprisals.11 Coleridge’s experience of framing Bandi and Avvisi raise similar problems and are also likely to have been in his mind when he later rejected utilitarian principles. We can surmise that it was his disappointment with the ethical standards of colonial administration that led him, upon his return to England, to express such powerful condemnations of the ”wickedness” of colonial government.12 Fairness, truthfulness, accuracy, objectivity and comprehensiveness, in government communication, would have been of concern to Coleridge.

Ball as an Icon of British Values

  • 13 The Friend, 1, 555.

13Coleridge’s major task was to restore public confidence in Ball. He had to re-create a mythology of Ball as a wise, caring and selfless public official in order to re-connect with the tide of popularity, earned during the Maltese Uprising (1799-1800), that had led Ball to become known amongst them as ”father Ball”.13 Since legislative judicial and executive power was concentrated in Ball’s office, Ball was the high-profile embodiment of British values. The Bandi and Avvisi, could be used to promote this. For Coleridge, the Civil Commissioner needed to be not only a mere office-holder but also an icon. This was an integral part of retaining Maltese confidence in the administration. Thus, Coleridge lost no opportunity to present his superior as having a virtuous and prelatic concern for his people. When he warned the inhabitants about the circulation of counterfeit coinage he was careful to attribute kindly and paternal concern to Ball:

  • 14 (1774) 1 Cowp. 204, 209; 98 ER 1045, 1048.

[The Civil Commissioner] wishes to avert the Public of this so that everybody is properly informed, and may then make every possible effort not to be tricked. 14

14He also strove to counter the stentorian and autocratic public image that Ball was acquiring by suggesting that Ball did not have a monopoly on wisdom. The opening passage of his first Bando is interesting because it represents Ball as ”hoping” that he had exhausted all policy options in maintaining the roads – a formula which hints, to the Maltese, of a sense of self-doubt and which, thus, projects Ball’s humanity:

  • 15 Bando, 29 January 1805, NLM /MS 430 1/2 Bandi 1790 AL 1805, 356; 431 II/3, 50.

Given the great benefits to be gained from having a road network which is maintained in a good condition, His Excellency the Royal Commissioner wishes to relay to the Public his hope that, in seeking to obtain this important objective, he does not neglect any of the ways in which it may be achieved (Emphasis added)15

  • 16 The Friend, 1, 571; Bando 8 March 1805 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.
  • 17 Bando, 8 March 1805, ibid.

15There are also appeals to the Civil Commissioner’s ”duty” to the governed, and to his inexhaustible selflessness. These can be seen as direct responses to the fault-line underpinning the colonial relationship which was first made so evident to the Maltese after the Treaty of Amiens, and which Ball had revived by his actions in the early part of 1805. In The Friend, Coleridge revealed an awareness of the damage that the Treaty had caused to relations between Malta and Britain when the latter had pursued its selfish interests at the expense of the former. In an effort to counter this damage, His Excellency was depicted as working tirelessly for public causes.16 Coleridge was, therefore, to suggest a close nexus between British and Maltese policy; indeed that Ball would work tirelessly for their ”happiness”17 – a formula which Coleridge understood would suggest giving precedence to their preferences rather than others. It inferred that Maltese interests had been, and would continue to be, prioritised.

Devotion and Selflessness

  • 18 Ibid. See further below.

16Coleridge carefully associated Ball with a moral order to counter the Maltese opinion that Ball was merely an oppressive instrument of selfish British colonial ambitions. Religious imagery was deliberately employed because it would strike a powerful cord with the pious Maltese. In the Bando imposing the duty on wine and spirits,18 Coleridge emphasised Ball’s ”sacred duty” and stressed that the Commissioner worked tirelessly for the happiness of the Maltese people.

  • 19 In fact, this approach is an extension of a style that can be found in earlier British Bandi produ (...)

17This inexhaustible, selfless devotion had been emphasised a few days earlier in an Avviso of 1 March 1805 when Coleridge represented that, ”His Excellency devotes all his time to helping public matters”.19 This Avviso had, ostensibly, been issued merely to notify the public of the conviction of one Sacco for extortion. Had Coleridge confined himself to that subject alone the reference to Ball’s devotion would have been quite superfluous. Its inclusion reveals that Coleridge was seizing each opportunity to boost Ball’s image. The idea of Ball’s devotion was clearly a point that Coleridge felt deserved repetition, which invites the suspicion that he knew that, at this moment in Maltese history, the population needed to be convinced.

18The repression of political free speech, particularly the banishment of the petitioner before the Segnatura who requested political reform, was a shocking event for the Maltese, and was featured as a major grievance later presented in a Petition to the Crown. The Maltese nationalists, thereafter, felt disenfranchised and powerless, because political speech seems to have been relegated to the streets. The anti-Semitic demonstrations in Valletta and the lampooning, in graffiti, of Ball’s administration, suggest that the old avenues, by which autocratic power was managed, had been closed by the British. The Maltese were, no longer, prepared to risk banishment by approaching the Civil Commissioner with their political concerns.

19Such was the breakdown in trust that, Coleridge had to respond. He seems to have seized the first opportunity he could. The Avviso of 1 March 1805 was used to emphasise Ball’s commitment to open and consultative government. The Civil Commissioner, Coleridge declared, ”is always ready to listen to petitions from anybody”. Thus, although the Avviso was, ostensibly, a minor announcement about a named individual who had been imprisoned for extortion, its true significance was central to the government’s wider political agenda, not only in regaining public trust in Ball, but also the constitutional role of the Segnatura as a mechanism by which individual complaints could be heard in safety and addressed by government

Criminal Penalties

20The Bandi and Avvisi reveal the reluctance of the British to use the criminal law in cases where official action against widespread law-breaking would antagonise Maltese public opinion and provoke dissent. We have described, in Chapter 5, how Ball would have preferred to endure the politically embarrassing cost of repairing the roads rather than use criminal penalties to ensure that damaging wheels (used by the majority of Maltese) were removed from use (even though the damage they caused was expensive to repair). This reluctance is all the more evident given the extremely difficult budgetary crisis and the cost of maintaining the road network, which might, otherwise, have been reduced substantially and quickly. In fact, it is an indication of Ball’s political weakness: he simply dared not risk prosecutions of large numbers of Maltese, not least the poorer members of society, who would have been forced either to buy new wheels or face a fine. Coleridge’s language suggested a merciful, paternal care, in so far as the kindly voice behind the Avviso (ostensibly Ball’s) is concerned, to guide citizens as to their duties rather than allowing them to offend and be punished. This is a theme that emerged in many of Coleridge’s Notices. The Avviso of 22 March 1805 employed a similar strategy. Here Coleridge stated:

Given that he cares as much about the protection of trade as he does about the merchants themselves, His Excellency the Royal Commissioner is very much hoping to avoid the necessity of punishing anybody, or of making anybody suffer [a penalty].

21The Avviso of 14 June 1805 revealed that Coleridge was willing to repeat the political message:

… His Excellency...believed it necessary to use this notice to avert the Public of this case, hoping that it shall serve as an example to avoid similar punishments in the future.

22Coleridge clearly considered it consistent with the desired public image, of the kindly ”father Ball”, that the latter could, somewhat patronisingly, remind the populace of their duties so that they could comply with the law and avoid getting into trouble. Thus the Avviso of 25 May 1805, following the anti-Semitic disturbances, closes with:

Now that the senseless pleasure in inventing malicious slander has stopped, and the people have realised their own foolishness, and how damaging their credulity can be, His Excellency hopes that the nation shall again enjoy its former peace, regardless of those who are envious of its happiness. There should therefore be no more need to punish anybody…

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

23The emphasis on Ball’s stated unwillingness to punish is a careful response to the concerns which were later to emerge in the Petition of the Maltese to the British Crown in 1805. It will be recalled that this cited Ball’s ”thundering vengeance” and ”despotic scourge” – which imply the opposite of restraint.20 We do not know whether Ball was aware of the Petition, but there is a hint that Coleridge understood the scepticism that existed amongst the Maltese. In the Avviso of 5 August 1805, Coleridge seemed to acknowledge that Ball’s public reputation had been severely damaged by his use of criminal punishments (and the power of banishment). As in the other instances, he reiterated the Civil Commissioner’s distaste for punishment. However in this instrument, Coleridge conceded, frankly, that Ball’s claims to restraint required ”proof”, without which there would be lingering doubts about the Commissioner. The Avviso included the words ”[the] ...proof of his desire to prevent, rather than to punish crimes”.

Ball as War Leader

24Another technique was to depict Ball as the Maltese had first known him – a decisive military commander. Coleridge carefully emphasised the priority that Ball accorded to the safety of the Maltese and his personal sacrifice in prioritising their interests. Coleridge claimed that Ball was willing to take these steps notwithstanding the interests of his own career and reputation. In summary, Ball, selflessly, pursued Maltese interests even to the point of breaching the international legal order. Nothing would stand in the way of his duty to his people.

25The Avviso in question concerned passports. As we have seen, in Chapter 5, Coleridge, effectively, appealed to the Maltese to revive Ball’s earlier image, as an heroic and successful war leader, by using the narrative about Ball’s courage in securing food for a starving population. Ball was presented as an heroic war leader who took serious personal risks to protect the Maltese (for which they should be grateful). In rather stentorian tones Coleridge reinforced this image by pronouncing that Ball would not assist those who chose to defy him. He was presented as a strong, courageous and selfless protector of the Maltese, but also as a leader who demanded obedience.

Political Advocacy

26Apart from promoting Ball’s public reputation, Coleridge had to win the political argument for each measure he announced. In other words, Coleridge was required to convince the Maltese of the case for each new law that Ball introduced. In this way, the project to win back trust in the Civil Commissioner was buttressed by more explicit reasoning within the instruments themselves. Each strategy was intended to suggest the congruence of Maltese and British purposes and values. Coleridge’s task, essentially, embraced an endeavour to make this obvious and more convincing to the Maltese.

27If Coleridge’s motive was to win ex post facto popular consent for a measure, it is disappointing that, at times, he did not refrain from some dubious practices to get it. There are numerous difficulties with his use of government information. Many of the policies, which Coleridge was advocating, were introduced for more than one reason. Amongst the various motives, some may have been represented as primary or dominant and others as subordinate. In other words, had the subordinate motives not been present, the measure in question would still have been introduced.

28Moreover, when all the reasons underpinning a policy are taken into account it is apparent that some (whether dominant or subordinate) would have been more palatable to the Maltese than others. As we shall see, Coleridge suppressed the unpopular reasons, which are often the dominant reasons, and over-emphasised those that were subordinate yet more popular. This was done to avoid betraying an obvious lack of correspondence between Maltese and British interests. If the true reasons for a policy had become publicly acknowledged, it would have undermined the legitimacy of British rule; Coleridge recognised the need to obfuscate the true purposes of measures which predominantly benefited Imperial interests.

29This is not simply because the use of information involved inappropriate emphasis and a lack of objectivity. Some measures contained statements of fact there were simply untrue. As we have seen, we do not know whether this was a deliberate and dishonest attempt to mislead the Maltese, but if it was not, the error was certainly convenient and served policy goals. Thus as we shall see, Coleridge and Ball did not always furnish information that was honest, comprehensive, fair and accurate.

Fairness and Accuracy

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

30Coleridge’s first Bando of 29 January 1805,21 which regulated the manufacture of cart wheels, included significant justificatory (and exhortatory) material.

31This was because Ball refused to punish the continued use of certain detrimental wheels, and, therefore, Coleridge had to persuade the Maltese to abandon them voluntarily. Here Coleridge was concerned to show the Maltese that their self-interest aligned perfectly with the interests of the British administration. However, the measure was a fair and accurate statement of policy.

Incomprehensive Information

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

32The Bando of 22 March 1805,22 which regulated spirits, was different. There, we witnessed Coleridge deploying information which was not comprehensive and doing so with an inappropriate emphasis. His stated reason for the Bando was that regulation of alcohol was necessary to safeguard health. This message would, of course, have fortified the desired image of Ball as a paternal, beneficent lawgiver. However, we have suggested that the dominant motive behind this instrument was the urgent need to address military discipline and community safety given the presence on the Island of eight thousand troops of the expeditionary force. This is not altogether surprising. Had the measure been more accurately depicted, it might have alarmed the population and caused resentment towards the troops on the Island.

33A similar issue concerning emphasis and comprehensiveness arose in relation to the excise duty on wine. Here the major reason underpinning the enactment of the duty, reducing Malta’s financial subsidy from the British Treasury, would, if publicly known, highlight the structural conflict in colonial rule. In other words, policies such as this, designed to serve British interests, ipso facto burdened the Maltese by transferring wealth from Malta to Britain. Coleridge and Ball were, naturally, concerned that this information should not enter the public domain. As we have seen, Coleridge emphasised that the revenue raised would fund additional spending. This was undoubtedly true, but incomplete. The significant omission was misleading – that the majority of the funds raised would be devoted to addressing the deficit and funding existing expenditure. Coleridge’s selective use of information helped maintain the fiction that the legislation exclusively served Maltese concerns – the deserving causes – and that the Bando of 8 March 1805 was imposed for the benefit of the Maltese people. Far from achieving a genuine legitimacy, Coleridge seems to have been compelled to co-operate in manipulative behaviour.

34The Bando of 8 March 1805 also revealed other disquieting strategies because it disclosed Coleridge’s apparent willingness to exploit Maltese racist sentiment where it served British imperial purposes. He deliberately assured the Maltese that the re-introduced excise duty would be indirectly discriminatory against (unpopular) foreigners, since it was they, and not the Maltese, who comprised the largest group of consumers of wine. The hypocrisy of this propaganda would be revealed within a few months when the Administration was forced to inflict exemplary punishments upon anti-Semites such as Tagliana, Borg, Hasciach and Bonello. Ball and Coleridge were, then, quick to seize the moral high ground by declaring Ball’s displeasure about rewarding a courageous Maltese who had, supposedly, prevented the stoning of a victim. The point Ball wished to make, at that moment, was that standing up for the dignity and civil rights of foreigners was a civic duty and not an act that deserved a pecuniary reward. The striking language used in this later Avviso implied that all persons had a moral obligation to protect foreigners. The double standard is glaring.

35Even more concern, about manipulation and concealment, can be raised regarding the instruments concerned with the recapture of the army deserters. Coleridge had portrayed the enlisted men as a threat to community safety. The aim was to encourage informants to betray the whereabouts of the missing soldiers to the authorities. To promote his message he had adopted an alarmist tone by proclaiming that the men were ”…now armed and roaming the countryside, disturbing the population”.

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

36As he must have known, the deserters had only been successful in evading capture because they had the support of family and friends who did not wish their relatives to be sent on overseas service. The suggestion that the deserters were a danger to public safety was demonstrably fictitious. Moreover, this episode also raised other controversies about Coleridge’s approach. One particular issue is that the Public Notice of 5 August 180523 contained information that was objectively false.

37As we have seen, Coleridge, whether deliberately or carelessly mis-described the effect of a Proclamation of 1801, in order to suggest that those inhabitants who sold goods to deserters would be liable to punishment. His strategy at this time was to force the community to withdraw basic supplies from the deserters and starve them back to barracks. To do this he made unambiguous representations to the Maltese about the criminal law on harbouring, and aiding and abetting the deserters. That must have had a chilling effect upon those selling food to the deserters. However, his public statement that those selling bread to soldiers risked prosecution under the law of 1801 was simply nonsense.

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

38As we have seen, this was not the only bizarre instrument promulgated on that day: the unripened fruit Bando24 was also problematic. Even if the convenient misstatement was the result of negligence rather than a deliberate intention to deceive, it is an inescapable conclusion that Ball’s civil service did not invariably attain the highest standards in public administration. Was Coleridge so ill and exhausted that his effectiveness in office was impaired? Was he simply beyond caring? As the troops’ embarkation date drew nearer, was he under such pressure from Ball and the military that he and they felt justified in making any false statement that might assist in the recapture of the men? If it was, indeed, a deliberate deception, it was clearly desperate and even dangerous because the Proclamation of 1801 was a public record. Once the truth about the earlier instrument was realised, the falsehood would have been publicly revealed. Significant public damage to the integrity and reputation of Ball’s administration must have resulted.

39But this is not the only instance in which Coleridge’s published texts raise concerns about accuracy and a possible lack of truthfulness. In the Avviso of 25 May 1805, which announced the exile of Fortunata Tagliana, Coleridge emphasised that her purpose in orchestrating an attack on a suspected Jew was to harm her neighbour, with whom she had a grievance. This was inaccurate. There are at least two possible explanations for this. The first is that Coleridge was not fully briefed: events were moving at such a pace that he may not have seen the witness statements. If that was so then the inaccuracies were explained by, and lent credence to, the British view of the events as a dangerous emergency.

40An alternative possibility was that the inaccuracies were deliberate and helped Coleridge’s to control the Administration’s message. As we have seen, the emphasis upon Fortunata’s vendetta with her neighbour may have been politically convenient because it portrayed her as a threat to the Maltese community as well as the Jews. Coleridge seems to have depicted her conduct in a way that was intended to justify, in Maltese eyes, the severe punishment that she received at Ball’s direction.

Conclusion: Propaganda?

41Arriving at unambiguous conclusions about Coleridge’s work is a complex task. Modern conceptions of an impartial and professional civil service were, of course, inapplicable in Malta at that time. In particular, the obligation, contained in the modern Civil Service Code, to maintain integrity, impartiality and honesty, was for the future. The purpose of the twenty-first-century propriety conventions is to make sure that information should be used for government and not for party purposes. This normative framework delineating the modern boundary between legitimate use of information for explanatory purposes and its illegitimate use for party propaganda purposes had not been developed. And even if it had existed in 1805, it would not have been applicable in the context in which Coleridge worked.

42It must be recalled that Coleridge was not appointed to be impartial, independent and judicially-minded. Nor was he a civil servant who lacked a political role. He was a salaried politician/administrator and a senior member of an administration required to prioritise the strategic interest of the British Empire. His superior, the Civil Commissioner, was bound, by the Royal Instructions, to pursue the dominant strategic goals set for him by the Secretary of State in London. Pre-eminent amongst these was to make his administration popular. No guidance was offered as to how this popularity was to be achieved, nor were limits set on the tactics to be employed. Coleridge had to work within this political structure to serve the goals prescribed for him. What the Bandi and Avvisi so often reveal is the limited freedom of action Coleridge had to implement laws that conformed to standards he had advocated in his political journalism. Thus, in public office, because he was responsible to Ball, and subservient to the goals of British policy, he was not always able to introduce, into practical politics, the ethical and constitutional values for which he had earlier argued.

43That said, not all the techniques employed in Coleridge’s Bandi and Avvisi are controversial. Some of the instruments are simply explanatory. Examples include the Bando of 29 January 1805 (which appeals to self-interest to avoid damage to the roads) and the Avviso of 1 March 1805 to the extent that it merely reminds the population about the constitutional right of petition.

44In a different category are his instruments which use carefully crafted language to present Ball in a positive light – to boost Ball’s public image. ”Spin” that merely amounts to placing policies and actors in a positive, favourable light is commonly accepted even in modern government communication. It does not necessarily offend the modern propriety conventions, even if it does lack objectivity. Misleading information, by contrast, raises ethical questions. Because Coleridge’s texts were congruent with, and directed by the overriding policy to attach the Maltese to British rule, Ball’s constitutional position made him an emblem of that rule and an embodiment of its values. It was necessary to make him popular in order to make the government popular.

45However, Coleridge’s use of information went beyond merely presenting information in a positive light – he communicated incomplete information. A political choice was made as to what information to reveal and what to withhold. Whilst the content, of all of the limited information eventually communicated, might have been true, the effect, when judged in the light of what was omitted, meant that the instrument was calculated to mislead the inhabitants. In the examples given above, Coleridge can be seen as advocating the government’s viewpoint rather than merely explaining policy. He was seeking to alter Maltese behaviour for politically-sensitive reasons that could not be disclosed. Coleridge’s purpose was polemical in the sense that it revealed partisan and selective advocacy for the policy introduced. The intention in these instruments was clearly to delude the population. The Maltese consent that he aimed to secure was neither properly informed nor genuine.

46In yet more extreme instances, the information he communicated was inaccurate and possibly even untruthful. Here Maltese opinion was manipulated in ways that demonstrated an attempt to change opinion or alter behaviour regardless of the means necessary to achieve it. It is in this context that Coleridge’s work is most problematic. We encounter this tactic where the stakes were at their highest, for example in relation to the new excise duties and the recapture of the deserters. We can be less confident about Coleridge’s motive in the case of the deserters, although certainly the administration was at its wits end having failed by all other means to recapture them. Either there was a deliberate intention to deceive the Maltese about the criminal law (that selling food to soldiers was punishable behaviour) or Coleridge made an avoidable but careless mistake. This latter possibility, if it was true, means that Coleridge was simply negligent. If so, it would be consistent with his exhaustion and low morale in the late summer of 1805.

  • 25 To Daniel Stuart, 22 August 1806, CL 2, 1178.

47Undoubtedly, Coleridge was troubled by his experience in government. A political actor, concerned with developing a theory of principled governmental action would, naturally, have had qualms about the ways in which information had been used to shape opinion, alter behaviour and secure an apparent consent to British rule. The private admission that he now knew ”by heart the awkward & wicked machinery, by which all our affairs abroad are carried on”25 in part derives from his experiences of drafting and promulgating the Bandi and Avvisi.

6.1. Constitutional Questions

Introduction

48Coleridge’s struggle, to maintain the legitimacy and acceptability as well as the interests of British rule, caused him to seek justifications for departures from constitutional norms that he might, otherwise, have been disposed to defend. In his political and journalistic writings, published in the years prior to embarking for Malta, there is evidence of an interest in constitutional government, which was based upon assumptions about the rule of law and the separation of powers through balanced government. The question raised by an analysis of the Bandi and Avvisi is whether such assumptions, expressed from the critical perspective of the journalist-commentator, could survive and be adhered to whilst holding public office, given the consultative role he had and the reliance placed upon his opinion, by the Civil Commissioner?

The Morning Post

  • 26 See Erdman.
  • 27 EOT, 31-57.
  • 28 EOT, 276-311.

49Coleridge’s understanding of constitutional doctrine, some years prior to his going to Malta, is revealed through his work as political leader-writer, special parliamentary correspondent26 and critic for The Morning Post – a paper generally unsympathetic to the government. Important issues he commented upon included, for example, the introduction of the French constitution, 1799, which placed power in the hands of Napoleon,27 and Addington’s ministry and the peace policy, 1801-1802.28

  • 29 EOT, 57.
  • 30 ”a mere trick of French politeness”, EOT, 48.
  • 31 ”We are fortunate enough to live in a country in which, for all its defects, the national characte (...)
  • 32 EOT, 53.

50As we saw, in Chapter 1, these writings included a sustained attack upon the French constitution. It will be recalled that the grounds were, in particular, that power was to be vested in the Chief Magistrate (Napoleon) without adequate restraint. A constitutional theory can be inferred from this attack. It looks for the separation of powers and a system of ”checks and counterpoises”29 to include (though must not be based upon) popular representative institutions. Coleridge noted that the formal constraint on power in the French constitution lay with the people but it was, for Coleridge, a bogus, abstract, democracy which, in practice, excluded the poor and whose influence was easily avoided by elites.30 But Coleridge did not uphold universal suffrage and direct democracy. He stood for a system where the popular will could be a factor in limiting executive power and providing political energy but a factor that was itself to be limited by the constitutionally decisive and conserving role of property interests.31 The French constitution created a system of democracy, which, on the face of it, because it was indirect, was preferable to universal franchise. Upon examination, however, the popular institutions and the system of choosing representatives turned out to be bogus ”ornamental outworks of military despotism”32 because, in the end, the real benefits of indirect popular influence upon government were lost. It was the executive, and its creatures, which, in the final stage, were to select the members of the national assembly. Thus Coleridge, at this time, accepted the importance of having ways for all citizens to express their interests politically, but not in a way that was decisive. Stability and good government depended on maintaining property interests in the political system as the predominant check on the executive. These articles also made it clear that Coleridge was alive to the difference between appearance and reality; contrasting the justificatory language, in which power was exercised, with its reality. These perspectives can be compared with his defence, in Malta, of a system devoid of any representative institutions, as well as the justificatory and rhetorical role he performed in the drafting of some of the Bandi and Avvisi.

  • 33 EOT, 305.
  • 34 ”it had mistaken a bull-frog for a bull”, EOT, 279.
  • 35 EOT, 284, where Coleridge acknowledges the courage of those who opposed Pitt’s oppressive laws and (...)
  • 36 See also the discussion of Coleridge’s apparent acceptance of the need for informants, below.

51From these constitutional writings, a strong belief in the principle of political liberty can be inferred. In passages from The Morning Post articles of December 1801 and March 1802, for example, Coleridge’s objections to emergency measures, such as Pitt’s suspension of Habeas Corpus, come over as strong and principled in the sense that suspending Habeas Corpus and other measures was wrong in principle and could not be justified even in times of emergency. Some of the old groupings in opposition to Pitt were now allied to Addington and, in government, they reintroduced some of Pitt’s measures.33 In Coleridge’s view, this was an over-reaction to the weak French threat.34 However, this was not the crucial point. Coleridge implied that the existence of a threat was not a sufficient justification. Liberty is a constitutional principle that is to be defended against the executive claims that public emergencies justify its limitation.35 It is this principled confidence in opposing emergency powers that was, perhaps, most strongly challenged by his government experiences in Malta.36

The Morning Post Principles and the Maltese Constitution

52Coleridge might have looked upon the Maltese constitution with some consternation. Our discussion in Chapter 3 reveals how, in vesting supreme autocratic powers in the Grandmasters (and, later, the Civil Commissioners) the constitutional system did not embody contemporary conceptions of limited government. As we have seen, the power of the Civil Commissioner was unrestrained: he could pass laws on any subject matter, could appoint to any public post, and could overturn the decisions of the courts. There was no independent judiciary, the Civil Commissioners were not answerable to the Maltese courts for their decisions (although the English courts, through legal fictions, could and did obtain jurisdiction), and directions to the judiciary about criminal punishment in particular cases could be issued under the instructions of the Civil Commissioner. We have seen how, in at least one case arising from the insurrection against the Jews, Ball directed the criminal judge to impose a more severe sentence than that permitted under the Code de Rohan. This may have been action that lay within his powers, but it established beyond doubt that the Maltese, unlike their fellow British citizens, would not benefit from an independent judiciary, for their civil justice system was firmly under political control and direction.

  • 37 The Friend, 1, 169-70.

53However, it is highly significant that such conduct breached Ball’s own standards of justice (as well as Coleridge’s). As we have seen, when writing retrospectively in The Friend,37 Coleridge presented Ball as a model law-giver. We have already described how, as a naval commander, Ball published a code of disciplinary offences, along with the prescribed punishments, formally set out, in advance, for each type of military offence. No officer was permitted to depart from the published rules when inflicting a punishment. Thus, Ball linked justice with certainty and punishment only took place in accordance with published norms. In setting this standard of adjudication he had wished to avoid the perception that punishments were arbitrary, or that they could be varied.

  • 38 See Chapter 5.4: Public Order and Crime.

54This makes a surprising and controversial contrast with Ball as Civil Commissioner. In this office, Ball lapsed into a system where ”justice” was merely the will of the governor, and where published norms could be ignored if he thought circumstances merited it. For example, there is good evidence that he was willing, if the occasion demanded, to impose penalties beyond those allowed in the Code de Rohan without going through the processes of changing the law.38 Thus, the Maltese were not treated in accordance with standards of fairness extended to Royal Navy crews. The significance of this is all the greater when it is recalled that the crews were under military discipline in war time. Even this emergency did not, in Ball’s opinion, justify a departure from minimum standards of fairness for British seamen.

  • 39 Ibid.

55However, this standard of adjudication was not to be applied to the civilians of Malta, and the decision relating to Borg, Hasciach and Bonello speaks volumes about Ball’s true approach to government. It reveals to us how even the civil justice system was recruited to serve imperial purposes,39

56Thus, Coleridge’s account of Ball as a naval commander, in The Friend, which he related in order to depict Ball’s approach to civil government, is not only seriously misleading, but also a particularly striking example of Coleridge continuing the propagandist role he developed in Malta even after he had left the Island and was reflecting retrospectively upon his experiences there.

57In fact, the evidence of Coleridge’s response to what happened on Malta is difficult to interpret and is not straightforward. As we have seen, his later private correspondence suggested profound disquiet about governmental practices on the Island. It would reflect his struggle between his preference for principled governmental action and a system capable of responding to all contingencies – the darker world of practical politics. But he also refers to the ”wisdom” of action, a likely reference to the anti-Semitic uprising which Ball dealt with by taking apparently unlawful actions. Coleridge’s choice of words suggest his agreement with the policies pursued and his support for action that lay outside the prescribed normative framework.

  • 40 The Friend, 1, 298 et seq.

58Coleridge’s apparent willingness to support, in Malta, the political direction of the judicial process, as well as his stout defence of Ball’s unlawful policy of granting passports to foreigners, does not sit happily alongside his fierce and, by implication, principled criticism of, for example, the re-suspension of Habeas Corpus by Addington’s administration, mentioned above. Coleridge seems to have accepted in Malta something he apparently rejected in London, that a government’s perception of emergency could justify restricting liberty and limiting the normal processes of law. The reasons are not clear: could it have been an early expression of support for British colonial power that allowed him to advocate disproportionate and pre-emptive force by the British, in order to retain unimportant overseas territories,40 or was it an acceptance that the subject Maltese were less deserving of constitutional morality than other British subjects? There is no clear explanation. Perhaps the most likely explanation is a proto-Machiavellian acceptance, based upon experience, of the moral compromises required for effective government.

6.2. Coleridge’s Laws and the Rule of Law

The General Principle

59The rule of law implies that a person should be legally (as distinct from morally) bound only by the law and not by the discretionary judgements of officials if made without legal authority. It is not enough for a public official to act in pursuit of his or her conception of the public interest. Actions must be capable of being authorised under rules of law; and it is to the judges, and the judges alone, that the identification of those social rules which count as legal rules and which are to be the necessary and sufficient guides to official conduct, is entrusted.

  • 41 See, for example, the survey of the rule of law in the twentieth century by G. Marshall, in Bogdan (...)
  • 42 See Van Caenegen, 17-21, outlining a series of political and intellectual processes beginning in t (...)
  • 43 D. Hay, ’Property, Authority and the Criminal Law’, 17-64.

60By the twenty-first century the rule of law had become a complex body of open-textured obligations and values.41 Even in the eighteenth century the general idea of the rule of law was accepted as an important constitutional value.42 Douglas Hay,43 for example, suggests that the idea of law was central to the ideology of Georgian England by which the rule of property was sustained.

  • 44 Dicey, 107.
  • 45 E.g. Entick v Carrington (1765), 19; Howelll’s State Trials 1029.

61Though an important legitimating principle, the rule of law had not, in the early nineteenth century, been given the developed and particularised theoretical exposition that it currently (in the twenty-first century) enjoys. Nevertheless, Dicey’s assertion of the ”rule or supremacy of law”,44 a late nineteenth-century abstraction from constitutional history, contrasts the rule of law with arbitrary government. The underlying idea is that one of the weapons against arbitrariness is to authorise government only on the basis of legal rules ultimately determined by an independent judiciary.45 At the very least, this is a formal constraint upon the exercise of power. The Coleridge Bandi exemplify some interesting tensions with this simple idea of the rule of law.

Rules and Discretion

62The opposition of the rule of law with arbitrary government means that legal rules should be appropriately specific about the powers granted to public officials and the offences for which punishment can be imposed. The rule of law is challenged by legal rules which grant indeterminate, personal discretion to officials. If the rule of law means governance on the basis of rules, it should mean that the point and bite of the rules should be precise enough to both limit the administrator and to be followed by the citizen.

  • 46 Bando of 22nd March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

63One of the noticeable characteristics about the Coleridge Bandi is that they are remarkably different in terms of the degree of official discretion that they allow. The usual approach is a wide-ranging discretion, such as the discretion of the court over the way in which the wine trade was licensed.46 In contrast, many of the criminal sentences imposed were fixed, with no judicial discretion to vary them. Most of them do not have any leeway for adjusting the penalty to the degree of wrongdoing by the defendant or to his or her circumstances. Today, such automatic punishments raise serious difficulties (under the European Convention of Human Rights, for example) but even in the eighteenth century, common law judges would have resisted this restriction of their discretion.

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

64In contrast, in terms of the procedural detail they laid down, it is striking how detailed some Bandi appeared to be. The best example is in the Bando of 21 June 1805.47 This imposed a duty on foreigners to register with the courts. Apparently, as a matter of legal obligation, it required the President of the Court and the Chief of Police to meet every morning; and the time of meeting was expressly stipulated to be 10 o’ clock. The names of the permitted foreigners were then to be entered into a book which the officials had to carry. The required entries recorded the names of permitted foreigners, and the dates when they left the Island. But this was not all because the Bando continued that this and other information was to be placed on the same page but separated by a margin. The following extract illustrates the minutiae of state control:

They should make clear notes in the margin of all observations relating to the person, to the reason for their arrival and residence on the island, and to the permit granted as a result, and they should provide details of the documents examined. Then, in a separate column, but on the same page, the Chief of Police should note in the above mentioned book the departure of the foreigner, and whether or not he gave back his permit.

  • 48 In the absence of any requirement for notification, it is also quite unclear from the Bando how th (...)

65Similarly prescriptive regulation characterised the vehicle and vessel registration scheme. The President had to keep a register of carts, gigs, ferry boats and fishing boats; the Administration also interested itself in the details of how the entries were recorded. The Bando specified that each boat or vehicle was to entered on a separate page. This extraordinary concern for detail is itself a challenge to the rule of law since, by its elimination of discretion and flexibility, it creates a legal duty that is not a practicable reality to put into effect. Any failure to meet these detailed requirements and, presumably, the absence of remedy thereto, would bring the law into disrepute.48

Comprehensible

  • 49 This requirement is treated here as a logical requirement of legal rules aiming to govern behaviou (...)

66If behaviour is to be governed by law, it must follow that the laws must be ”followable”. At the very least, their requirements must be comprehensible and capable of being acted upon.49 Coleridge’s laws, however, contain a number of provisions that fail the test of comprehensibility. It is impossible to tell, with any degree of certainty, sufficient to guide conduct, what is required or is prohibited by the instrument.

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

67An Avviso of 22 March 180550 is an example. It announces that random quality inspections of wine will be carried out. First, it is an Avviso and, as such, was not a law amending instrument. If that had been the intention, a Bando was the appropriate instrument. An Avviso merely indicated how the laws were to be applied in particular situations. However, the text of this Avviso did not refer to any law that was being applied; rather it referred to ”a well known and long-established custom” of inspection. Such a reference did not meet a requirement of certainty. Matters get worse because the point of the Avviso was to announce not only that a regime of inspections will begin, but also to threaten the confiscation of bad wine which failed the inspection. The Avviso also referred to the Commissioner’s (His Excellency’s) desire not to ”punish” anyone. Again, it is quite unclear what, if any, authority the Commissioner, or, indeed, a court, would have to exact punishment. So, we have here a notice which fails the rule of law test in two ways. Firstly, it fails the publicity test in the sense that, unless it is itself a legal act, it fails to identify the law which authorises the actions being proposed (see below). Secondly, it fails the certainty test in that it makes no clear distinction between criminal and civil law.

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

68Similar issues arise in connection with the Avviso of 22 May 180551 concerning the punishment of Borg, Hasciach and Bonello for spreading false rumours. The Notice threatened severe punishment for certain individuals who did not ”undeceive” listeners to false rumours. It is not possible to infer the existence of a criminal offence. There is no way of knowing objectively under what conditions a rumour may have been false, so as to trigger the duty to inform; nor any indication of how a false rumour was established. The concern is that wide, discretionary power, to impose punitive sanctions, was created for the benefit of the executive, but in a way that was, in effect, uncontrollable by the courts.

  • 52 Avviso, 12 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 10.

69A similar problem arose in relation to the threat to punish those who did not hand in counterfeit coins.52 No references were made to the legal basis of any offence and the duty imposed was not specified, for example, in terms of the state of mind and the degree of knowledge that was necessary to justify a punishment. On the face of it the Avviso was an exercise of arbitrary power.

  • 53 Avviso, 8 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 3.
  • 54 Avviso, 19 August 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 20.

70Even where the Avvisi were merely bureaucratic measures making arrangements for how claims against the Administration were to be settled, clarity was sometimes lacking. An example is the Avviso of 8 March 180553 dealing with distribution of prize money still outstanding from the surrender of Valletta in 1800. Coleridge included in the distribution those whose claims had not been settled in an earlier distribution of 1803. Nothing in the Avviso made it clear how these claims were to be resolved, nor what evidence had to be produced.54

71Thus, any legal analysis of ”Coleridge’s laws” cannot but be struck by these lapses of clarity, certainty and authority that characterise some of the Bandi and Avvisi. Obligations were apparently imposed which were quite unclear in their particular application and which (regarding certain Avvisi) did not disclose the legal authority by which they were authorised.

Publicity

72If ”law” represents the principle of governance on the basis of rules, then publicity and promulgation are two of the necessary conditions for law’s authority. In other words, the law must be communicated to those to whom it applies. Enforcement is also at issue because all citizens are assumed to know the law and ignorance of the law does not provide an excuse. Such principles would not only be unreasonable but also ineffectual if there was not some form of process by which laws are publicised. Publicity is, thus, part of the process of legitimation.

73Coleridge’s laws were announced and displayed in local ceremonies which took place in customary locations in the four cities and Floriana, and in some instances, at farmhouses in rural areas. Annotation at the bottom of each instrument recorded that the ceremony of promulgation had taken place. This recorded how and when the instrument in question was brought to the attention of the public and the means used, such as the beating of drums or the playing of trumpets. No doubt the fanfare had been intended to draw a crowd to ensure the widest possible dissemination of the information contained in the measures.

74An example of the annotations relating to publication is as follows:

  • 55 Bando of 8th March 1805, NAM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

Today [date] it has been read, published and displayed in the usual places of these four cities and Floriana, to the sound of trumpets and in the presence of a great number of people.55

  • 56 LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9.
  • 57 See annotation of Avviso 25 May 1805 (LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9) which includes the wo (...)

75It seems that there were no legally-mandatory procedural requirements governing either the publication ceremonies or even a mandatory requirement to record that they had taken place. The annotations and the events they described appear to have had no legal significance other than to place on record the fact that publication in accordance with existing custom and practice had taken place. No legal obligations seem to have been involved. The only reference to any ”duty” to record the fact that a ceremony had actually occurred concerned the case of one Avviso (25 May 1805).56 In this case, a letter ”requesting” publication came from the Public Secretary’s office. This letter may simply have been a re-enforcement of customary practice rather than a constitutional requirement.57 Interestingly, the absence of annotations as to promulgation is a common feature of earlier Bandi (pre-Coleridgean) and this does not appear to have affected their validity as recognisable and enforceable laws.

76During Coleridge’s Malta period, the laws and public notices were promulgated in Italian. Although this conformed to established local practice, (and was consonant with the ”continuity” strategy) it raised important questions, not least because the majority of the inhabitants spoke the Maltese tongue; indeed, two thirds of them probably spoke no other language. Thus, the laws were published in a language that the majority of those bound by them did not understand. This has been considered in Chapter 4. However, the failure of the British administration to communicate its laws effectively in the language spoken by the majority of its population seems explicable only in the context of its overwhelming desire to continue, in so far as was possible, the laws and customs of the ancien regime.

6.3. Enforcement and Forms of Punishment

The Use of Sanctions

77We have noted, above, instances in which Ball was reluctant to impose criminal penalties upon the population, hoping instead that a warning Avviso would encourage the inhabitants to comply with the law. Where Coleridge’s Bandi and Avvisi did disclose a willingness to compel behaviour under threat of a criminal sanction, the different forms of enforcement, permitted by the Bandi, are an interesting feature of his approach. The Bandi created a range of both positive and negative obligations, which were enforced by a range of penalties, although no clear distinction was made between criminal, civil and administrative penalties.

Capital Punishment

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

78Punishment needed to be lawful. Punishments authorised by the Code de Rohan included capital punishment. This was imposed relatively infrequently and only for the most morally-heinous crimes such as murder committed during a deliberate attack, parricide (execution was then followed by severing the perpetrator’s hand, if death had been by the sword, and burning of body and hand) and parent killing (Book 5 item 3). Coleridge’s Bandi did not create capital offences. There was, however, one unexplained reference to the danger of being shot. This was in an Avviso of 9 March 1805.58 As we have described, this concerned the misuse of a critical navigational aid moored in the Harbour. The Avviso explained the purpose of the rope and so removed any excuse a person may have for misuse. The Avviso ended: ”and any person who continues to misuse this marker will have only themselves to blame if they are greeted by rifle shots”. The implication of this was quite unclear: whether the rifle shots were a punishment or came from sentries seeking to deter unlawful immigration or avoidance of quarantine or from unspecified others. Any legal documents, whether advisory or mandatory, that contain such vague and uncertain threats are open to criticism on those grounds.

Prison

  • 59 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.
  • 60 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 5.
  • 61 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 19.

79The threat of imprisonment is found in the Coleridge Bandi. The Bando of 22 March 180559 created a range of legal obligations in relation to trading in wine and spirits, such as the need to obtain a licence. The penalty was, initially, a fine, but non-payment could lead to imprisonment. The term was not specified, but an alternative (presumably at the discretion of the court) was six months on public works. This was within the lower end of punishments (in the Code, for example, a year on public works was part of the punishment for placing slanderous or abusive placards in public places). Imprisonment of one month was imposed for extracting cotton inappropriately (Avviso of 22 March 180560), one month in prison ”at his own expense” if an owner of land sold unripened fruit (Bando of 5 August 1805).61

Public Works

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

80Being put to public works is another major punishment in the Code. It could be used for vagabondage or for aggravated brawling, for example. In the Coleridge Bandi it is used once – as a punishment for the non-payment of the fifty oncie fine that could be imposed upon unlicensed producers, wholesalers or retailers of unlicensed liquor under the Bando of 22 March 1805.62

Fines

  • 63 NLM LIBR/MS 430 1/2 Bandi 1790 AL 1805, 356; 431 II/3, 50.
  • 64 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.
  • 65 Bando, 21 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 14.

81Fines are widely used in both the Code de Rohan as well as the Coleridge Bandi. A twenty oncie fine could be imposed upon craftsmen who manufactured wheels in a way damaging to roads (29 January 180563); fifty oncie had to be paid by sellers of liquor (producers, wholesalers, retailers) who were not licensed under the terms of the Bando of 22 March 1805.64 A ten oncie fine was to be imposed, as well as a deportation order, upon a resident foreigner who failed to obtain a resident permit.65

82An important characteristic of the system of fines was that the discretion of the sentencing judge to fix the amount was frequently removed. In other words, a fixed fine, rather than a scale, was imposed upon rich and poor alike. There was no attempt at proportionality through equality of burden, nor was the court permitted to take into account the circumstances of the offence, nor of the offender, nor any mitigating circumstances, nor was there judicial discretion to impose a higher sentence than that stipulated, for repeat offenders.

  • 66 See the Avviso of 22 May 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8.
  • 67 Coleridge informs us in The Friend, 1, 169-170 that Ball would not allow pre-scribed fixed penalti (...)

83One explanation for not allowing judicial discretion was that the British wished to control the fate of convicted persons rather than leave it to their fellow Maltese. Ball, indeed, exercised his powers under the Maltese constitution to impose higher sentences than those prescribed, where he considered it to be appropriate.66 Another reason was that a fixed penalty offered certainty. This recalled Ball’s approach to punishment whilst he served as a naval captain (discussed above).67 The Maltese would understand what would happen to them if they offended and, perhaps, would be less willing to pursue a more lenient sentence through the petitioning process discussed in Chapter 2.

84The only exception arose in connection with the army deserters who were still successfully evading capture in September 1805 notwithstanding earlier Avvisi designed to secure their return to barracks. By then it must have been very clear to the authorities that the deserters were calling upon a network of local supporters to assist them. No doubt in many cases these were friends, family and relations. Ball allowed the Maltese judiciary to determine the sentences of those convicted of aiding and abetting the deserters. In pursuance of this decision, Coleridge explicitly directed the judiciary to take into account the identity of those involved, which was, no doubt, a signal to the judges to recognise the conflicting loyalties of the families. Besides, allowing the judiciary this exceptional sentencing discretion distanced the administration from the penalties imposed: this was a Maltese matter. It may also have helped erect a limited cordon sanitaire around Ball (and the British military) in respect of a policy that was controversial and unpopular.

Exile

  • 68 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 14.
  • 69 Royal Commission of 1812, 236.
  • 70 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8; NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9.

85Exile was a draconian punishment in the Code de Rohan that was also used in the Coleridge Bandi. In the Code it could be used against vagabonds, manufacturers of weapons without a licence or aggravated fighting. Delinquent women could be exiled to Gozo. In the Bando of 21 June 1805,68 exile would be the chosen punishment for a Maltese inhabitant who rented accommodation to a foreigner without a permit. It is arguable that at least some of the uses of exile authorised by the Code are preventative measures which remove hooligans from the country; more fearsome but similar in purpose to the way, in twenty–first-century Britain, a football supporter’s order can prevent a person leaving the country or an anti-social behaviour order can limit the places a person can inhabit. In this respect the Royal Commission of 1812,69 discussing the autocratic powers of the Civil Commissioner, noted that he enjoyed the power of exile ”by a simple warrant to that effect”. This was understood to be a preventative power since it was available where the perceived safety and tranquillity of Malta so required. An example of this prerogative act was the exile of the petitioner to secure the safety of the islands to which reference was made in the Petition of the Maltese to the British Crown in 1805. The use of exile in the Avvisi of 22 and 25 May 180570 (announcing the punishments of Tagliana, Borg, Hasciach and Bonello for spreading false rumours), on the other hand, was clearly a judicial punishment.

Administrative Penalties

86If there is uncertainty as to whether a penalty is a criminal punishment or a preventative measure, there is more uncertainty on a range of other enforcement measures which, no doubt, are distinctly disadvantageous to the individuals involved but appear to be administrative penalties. An administrative penalty is one imposed with the aim of ensuring the effectiveness of some regulation or order. It prevents activities continuing which should be properly authorised and, thereby, maintains the effectiveness of the order. The penalty, therefore, engages only with the activity regulated and is distinguished from a punishment in that a punishment is aimed at retribution, deterrence or reform rather than achieving the particular state of affairs aimed at by a regulation.

87Thus, the Bando of 22 March 1805 created offences concerning the importation and production of spirits. The punishment for breaking these regulations was a fine of fifty oncie and imprisonment for an unspecified period, or six months service on public works if the fine was not paid. In addition, though, the offender could lose his livelihood since he was also made to suffer the ”permanent” removal of the right to run a shop or business.

  • 71 Avviso, 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 6.
  • 72 Bando, 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.
  • 73 Bando, 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 5.

88Three such administrative measures were used in a series of trade and consumer protection measures enacted on 22 March 1805. These were the permanent confiscation of wines which failed health inspections;71 loss of a licence to sell wine on anyone who breached a range of licence conditions;72 confiscation of illegally grown and unlicensed cotton.73

Informants

89The Bandi and Avvisi attest to the widespread use of rewarded informers to enforce the criminal justice system. In the absence of an organised police force (the modern Malta police force dates from July 1814) one way of seeking to enforce the law was through the use of informers.

  • 74 It is interesting that Gauci was reprimanded by the shop workers for protecting a Jew by helping h (...)
  • 75 Borg to Eton, 30 May 1806, Kew, CO 158/12/no folio reference.

90However, making the system work clearly presented problems because the Maltese seem to have been reluctant to inform on their fellow citizens. For example, the unenthusiastic public response to informing the authorities about fugitives, or the whereabouts of military deserters, clearly caused official exasperation. Even the need to re-draft the law governing unripened-fruit sales so as to avoid the need for a victim (and thus the need for witness evidence relating to a contract of sale) permits the inference that, on a small island, community solidarity, possibly enforced by witness intimidation, was a difficulty impeding law enforcement.74 Borg complained to Eton that the high crime rates, especially of robbery, were a problem, and that the assailants went undetected; and a possible explanation for this may have been the reluctance of witnesses and neighbours to come forward.75 A financial inducement to inform may have been the only possible means of encouraging individuals to give evidence against their neighbours.

  • 76 Bando, 21 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814,14.

91Informers were rewarded by being granted a share of the gains achieved by their actions. There was clearly an incentive for bounty hunting with all the issues that can bring with it: e.g. false evidence by the informer and the danger of entrapment. Such concerns do not seem to have entered into the consideration of Coleridge or the Civil Commissioner. Thus, those inhabitants who informed on craftsmen making wheels to a forbidden pattern would receive ten oncie, half of the fine (twenty oncie); the other half going to the Treasury. Those who informed on those illegally growing cotton would receive one quarter of the confiscated cotton. Those who informed the Civil Commissioner of the hiding places of deserters from the Maltese Regiment would be given a ”suitable reward”. Ten scudi would be paid to a person who informed on a foreigner living illegally.76

92In some circumstances, Sir Alexander Ball showed himself to be opposed to the informer/reward system. This was not necessarily because of fear that the evidence would be unreliable and the innocent convicted; rather it was the sense that informing was a public duty and should not be further rewarded. He seems to have felt it inappropriate to reward someone for merely fulfilling a civic obligation. In the ”Fortunata Tagliana” episode, in particular, it was made clear, through the Avviso of 25 May 1805, that not only was the Civil Commissioner displeased at having to punish Fortunata herself but (according to a literal reading) he was even more displeased at having to reward Francesco Borg, the informant, for doing his normal duty and not acting beyond it. Ball communicated his displeasure at rewarding behaviour that fell within his conception of a normal civil responsibility.

  • 77 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 17.
  • 78 Avviso, 22 May 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8.

93Informing was not always just a voluntary, rewarded, activity. It could also become a legal obligation. In the Avviso of 15 July 1805,77 severe punishment was promised for those who failed to inform the authorities of the whereabouts of deserters from the Maltese Regiment. Coerced informing was necessary, it seems, because it is most likely that many of the deserters were willingly supported and nurtured by their families. Whipping and exile was threatened for those who did not report to the courts false rumours or who did not try to undeceive those spreading false rumours.78

  • 79 The Bill is said to have ”established espionage by law” (EOT, 1, 284, emphasis in original). The p (...)
  • 80 ”When the authors of acts, like these [Bills of Indemnity] seem inclined to shake hands with freed (...)

94There were some startling contrasts here with Coleridge’s views, expressed in 1801, on the use of informants by Pitt and the threatened revival of the practice, by Addington, through the enactment of a Bill of Indemnity. This measure was to indemnify those concerned with detaining political opponents after the suspension of Habeas Corpus in 1793.79 At that time, Coleridge condemned the use of informants in strongly partisan words. It was hardly honourable, likely to lead to alarmism and over-reaction by government, to corruption even, if well motivated,80 to the entrapment of others and to state crimes immune from prosecution. In Malta, by contrast, he co-operated in the laws requiring the use of informants and their reward and was even prepared to make informing a legal duty.

Coleridge and a Civil Administration at War

95To what extent can it be argued that wartime conditions justify and explain the constitutionally and legally controversial actions of the British administration on Malta?

  • 81 CN 2, 2614.

96Coleridge’s own account offers some hints of the strain upon the civil government of a territory at the centre of the Mediterranean theatre of operations. By the summer of 1805 the Island had been filled with troops preparing for an expedition, under Lieutenant-General Sir James Craig, to open a new front in Naples. Recruitment to the Royal Regiment of Malta was expected to provide significantly more troops, but to the embarrassment of the civil authorities who could not persuade Maltese civilians to deliver up the deserters, the unit was by no means at combat readiness despite the approaching date of the offensive. Expectation and nervousness must have been contagious. For Coleridge, the raucous sounds of the increasing military presence had now become a ”torture”.81 He was ill, overworked and clearly strained.

97However, these were not the only reasons for tension within the civil administration. Ball had gambled the credibility of his administration on the corn mission as a last attempt to fulfil expectations in London that he could balance the Island’s budget: but this mission was already going awry. Admiral Lord Nelson was at sea; ever more prizes were being adjudicated in the Vice-Admiralty Court in Valletta; the British had not yet been victorious at Trafalgar and an invasion force, protected by the French fleet, still threatened at home. Maltese dissatisfaction with government was deepening, and there had been, during that spring of 1805, grave public disturbances against the Jews. No doubt, the civil administration was nervous, even to some extent, alarmed. But to what extent did these tensions and uncertainties explain or justify the departures from appropriate legal norms?

  • 82 This is more fully explored in Chapters 2 and 3.

98Much depended upon the nature of the measure in question. However, it would not be possible either to explain or justify all controversial governmental behaviour by reference to the conflict or a state of emergency. Malta was not, for example, under martial law: the constitution was still in force, the courts still sat and judges and administrators applied Maltese laws. Unlike in England, where the government had enacted special ”emergency” powers, removing the right of the subject to challenge, in the courts, their arrest and incarceration, Ball had not felt any need to enact emergency legislation on Malta. It was, therefore, the particular political context, more than fears about the general military situation, which informed Ball’s strategy for government.82

99Nevertheless, the political and military issues were complex and often intertwined because Ball’s assessment of the value of the Maltese archipelago originated in its military value. It was, indeed, this military agenda that ultimately lay behind many of the policies of the civil government. Ball’s immediate problems resulted, as we have seen, from the Secretary of State instructing the Civil Commissioners, in 1801, to achieve Maltese consent to British rule, if necessary by indulging their prejudices. Stability, despite the maintenance of an exclusive British control over Maltese public life, had been the dominant objective. Thus there had been no contradiction between crushing anti-Semitic violence (and punishing other forms of anti-Semitic agitation) whilst also subjecting foreigners to more extensive regulation purely on the grounds of nationality. Similarly, Ball’s willingness to banish political opponents was also aimed at removing potentially de-stabilising agitators.

100Thus, the major characteristics of Ball’s polices, as implemented in Coleridge’s Bandi and Avvisi, were not adequately explained as immediate responses to the military conflict, although his ultimate desire to retain Malta as a military base could not be discounted. The war neither explained nor justified many of the departures from appropriate legal or constitutional standards. The internal inconsistency of some of the Bandi and Avvisi, the lack of clarity in their draftsmanship were pre-eminent examples of problems that might well have arisen from Coleridge’s authorship in more stable and peaceful times.

101Often what was at stake was the identification and pursuit of the ”public interest”. We frequently found that this ”public interest” was coterminous with British interests, and where they conflicted with those of the Maltese, the former were routinely prioritised over the latter. This occurred most significantly in the British refusal to establish the Consiglio Popolare (i.e. the refusal to share power with the Maltese); but this priority was also present in some of the Bandi and Avvisi. Coleridge tried, for example, to persuade the Maltese that the new excise duty had been for additional public spending; as we have seen, it had been to meet the demands of the British Treasury. And the fiasco over the recruitment to the Royal Regiment of Malta had been caused by the decision to disregard the willingness of the Maltese to serve only as a local defence force. In each of these examples, Ball had been responding to the objectives set for him by the Secretary of State, in the Royal Instructions, and later despatches, rather than any war time emergency.

102The one instance in which Ball might have pleaded that a state of emergency existed that justified actions not normally consistent with rule of law standards would have been in relation to the severe punishments imposed upon the anti-Semitic agitators. This argument might have arisen, in particular, in the case of the youth, Bonello, aged twelve, and the increased penalties for his co-defendants. The decision to exile these offenders, when taken with the other terms of the Avviso that reminded the public that children would indeed be treated as harshly as adults, did signal official disquiet and even alarm. But even in these extreme cases Ball would not have claimed to have acted outside the law. If challenged he would have argued that the power to augment a criminal sentence was vested in him under the terms of the Maltese constitution, and that he was not using a perceived emergency as a justification for departing from the Code de Rohan.

Conclusion

103In Coleridge’s Bandi and Avvisi we have a rich and fruitful insight into the workings of a ”colonial” legal system. Pre-eminently the legal system, like the political one, was, ultimately, an instrument of British policy and served British imperial purposes. Maltese interests were vindicated only if they were consistent with those of the Imperial power.

104Given the overarching policy of ”attaching” the Maltese to British rule, most notably expressed in the ”continuation” strategy, this tension was dangerous. If exposed as acting selfishly, the British would lose the support of Maltese public opinion; and the future of the territory as a British possession would be jeopardised. It was a tension that had to be recognised and managed. This required deft political accomplishments, but not necessarily moral integrity. Here must have lain Coleridge’s central dilemma.

105Coleridge, as acting Public Secretary, was principally responsible for presenting the British administration, and each of the legislative measures it proposed, as benign and designed to protect and benefit Maltese society and its fundamental values. His ability to present the laws as congruent with the interests of Maltese society would have been seen by his fellow officials as crucial to the continued British presence on the Island. Moreover, in these Bandi and Avvisi, Ball was heard, but only through Coleridge’s voice. Ball’s reputation rested significantly upon Coleridge’s skills as a draftsman and propagandist.

106Despite his earlier writings upon constitutional morality, we discover, in the Bandi and Avvisi, a more ambiguous and elusive Coleridge. He supported harsh measures against anti-Semites, even children; he disguised, from the Maltese, the reasons why new duties were to be imposed; he proscribed future conduct and announced new punishments without apparent legal justification; he encouraged, even compelled, the use of informers; he obfuscated the important distinction between a Proclamation and a Public Notice; and he launched a sustained public relations campaign to preserve Ball’s image as a ”father” to ”his” people. Some of his drafting was so obscure as to be virtually meaningless; sometimes what he demanded of officials was so unnecessarily demanding that compliance would have been almost impossible. Rule of law values such as nulle peona sine lege, and the independence of the judiciary were often outweighed by expediency. Coleridge, not least in his praise of Ball, if not in his expressed support for Ball’s polices, was complicit in those acts, even if he was not complacent about them.

  • 83 Wordsworth Trust, Grasmere, manuscript WLMS A. Ball, Alexander, Sir.

107But, on the other side of the coin, we also find Coleridge as a skilled propagandist. Whilst he could manipulate public opinion by crude obfuscation, he could also produce powerful moral argument to instil outrage against offences and offenders. Coleridge is both more comfortable and more successful when securing deterrence by argument and reason. In a time of public anxiety about the violence between foreigners and the inhabitants, this was essential opinion forming, and it would have been far more valuable to the British authorities than the levelled muskets of the military garrison. This explains why Ball was, in September 1805, keen to have Coleridge return to Malta as editor of Il Cartaginese.83

Notes

1 Generally, see Manning.

2 For a general introduction to the geopolitical context, see Rapport.

3 Marshall (ed.), vol 5; Ahmed, 28.

4 Cf. Staines.

5 See Chapter 2.

6 The Friend, 2, 552-4.

7 In September 1805 Ball had sought to retain Coleridge’s services for the government and he emphasised the role Coleridge could play as a propagandist and political journalist (see Chapter 1).

8 For a discussion of ethics in modern governmental communication see Yeung.

9 CN 2, 2412, 23 January 1805.

10 The Friend, 1, 314. It is revealing that in his Notebook Coleridge had interested himself in the relationship between positive law and ”the dictates of right reason = inter Jus et aequitatem”. CN 2, 2413.

11 Coleridge concluded that the Treaty besmirched British national honour: The Friend, 1, 571.

12 To Daniel Stuart, 22 August 1806 CL 2, 1178.

13 The Friend, 1, 555.

14 (1774) 1 Cowp. 204, 209; 98 ER 1045, 1048.

15 Bando, 29 January 1805, NLM /MS 430 1/2 Bandi 1790 AL 1805, 356; 431 II/3, 50.

16 The Friend, 1, 571; Bando 8 March 1805 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

17 Bando, 8 March 1805, ibid.

18 Ibid. See further below.

19 In fact, this approach is an extension of a style that can be found in earlier British Bandi produced under the hand of Alexander Macaulay in which there are references to the wish of His Excellency to ”govern wisely”.

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

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

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

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

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

25 To Daniel Stuart, 22 August 1806, CL 2, 1178.

26 See Erdman.

27 EOT, 31-57.

28 EOT, 276-311.

29 EOT, 57.

30 ”a mere trick of French politeness”, EOT, 48.

31 ”We are fortunate enough to live in a country in which, for all its defects, the national character is made up, though in different quantities, by all these three principles, the influence of a Court, the popular spirit, and the predominance of prop erty”. Ibid.

32 EOT, 53.

33 EOT, 305.

34 ”it had mistaken a bull-frog for a bull”, EOT, 279.

35 EOT, 284, where Coleridge acknowledges the courage of those who opposed Pitt’s oppressive laws and, even in ”the trying hour”, persisted in acknowledging and proclaiming ”the divinity of [liberty’s] mission”.

36 See also the discussion of Coleridge’s apparent acceptance of the need for informants, below.

37 The Friend, 1, 169-70.

38 See Chapter 5.4: Public Order and Crime.

39 Ibid.

40 The Friend, 1, 298 et seq.

41 See, for example, the survey of the rule of law in the twentieth century by G. Marshall, in Bogdanor, 56-7; ”open texture” (following the definitions of H.L.A. Hart, The Concept of Law, 2nd Ed. (Oxford: Clarendon Press, 1994), Chapter VII/I: pp 124-36) implies a core meaning (that government is entitled to act only if authorised by a rule, whatever its content, identified by the courts as a rule of law) and a penumbra of extended meanings and glosses which are attached to the term in different contexts through which procedural and substantive content to the term is added.

42 See Van Caenegen, 17-21, outlining a series of political and intellectual processes beginning in the early thirteenth century. In England the classic authority for the subordination of government to law as laid down by an independent judiciary is Entick v Carrington (1765), 19 Howell’s State Trials 1029 (see Chapter 2). Thompson, 263, referring to Douglas Hay’s researches accepts that ”law assumed unusual pre-eminence[ in Eighteenth Century England]…[it was the] central legitimising ideology…England is saturated with the notion of law…Royal absolutism was placed behind a high hedge of law”.

43 D. Hay, ’Property, Authority and the Criminal Law’, 17-64.

44 Dicey, 107.

45 E.g. Entick v Carrington (1765), 19; Howelll’s State Trials 1029.

46 Bando of 22nd March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

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

48 In the absence of any requirement for notification, it is also quite unclear from the Bando how the authorities would become aware of the sale or transfer of a registered vehicle or vessel.

49 This requirement is treated here as a logical requirement of legal rules aiming to govern behaviour. It is not historically specific. The idea has, of course, been given a full theoretical exposition in the twentieth century by Lon Fuller (see Fuller).

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

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

52 Avviso, 12 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 10.

53 Avviso, 8 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 3.

54 Avviso, 19 August 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 20.

55 Bando of 8th March 1805, NAM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 2.

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

57 See annotation of Avviso 25 May 1805 (LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9) which includes the words: ”Today, the 26th May 1805 it has been read and published to the sound of drums as requested by the letter from the Government Offices… ”

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

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

60 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 5.

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

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

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

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

65 Bando, 21 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 14.

66 See the Avviso of 22 May 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8.

67 Coleridge informs us in The Friend, 1, 169-170 that Ball would not allow pre-scribed fixed penalties imposed for disciplinary offences to be varied by any officer, including himself as captain.

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

69 Royal Commission of 1812, 236.

70 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8; NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 9.

71 Avviso, 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 6.

72 Bando, 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.

73 Bando, 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 5.

74 It is interesting that Gauci was reprimanded by the shop workers for protecting a Jew by helping him to obtain police assistance. This hints at a community prepared to insist on its own standards of behaviour, which may have been standards other than those intended by the British authorities.

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

76 Bando, 21 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814,14.

77 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 17.

78 Avviso, 22 May 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8.

79 The Bill is said to have ”established espionage by law” (EOT, 1, 284, emphasis in original). The passages referred to are EOT, 1, 281-5.

80 ”When the authors of acts, like these [Bills of Indemnity] seem inclined to shake hands with freedom, we dread the poisoned gloves of Italy”. EOT, 1, 284.

81 CN 2, 2614.

82 This is more fully explored in Chapters 2 and 3.

83 Wordsworth Trust, Grasmere, manuscript WLMS A. Ball, Alexander, Sir.

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