1 Introduction
Historians have shown a growing interest in the way in which smoke pollution emerged as a concern during the Victorian period and the legal measures that were adopted to address it (Ashby and Anderson Reference Ashby and Anderson1981; Beck Reference Beck1959; Bowler and Brimblecombe Reference Bowler and Brimblecombe2000; Flick Reference Flick1980; Mosley Reference Mosley2001; Thorsheim Reference Thorsheim2006). However, while this literature has broadened our understanding of the history of smoke pollution in important ways, it has also given rise to new questions. One paradox in particular has puzzled the literature: why did the nineteenth century see so little actual progress in the abatement of smoke pollution, even as smoke pollution was increasingly recognised as a problem and economical technological solutions were identified (Brimblecombe Reference Brimblecombe1987, pp. 98–106; Wohl Reference Wohl1983, p. 215).
Several reasons have been offered to try to explain why progress in smoke abatement during the Victorian period was slow. It has been argued that because of the continued popular association of smoke with economic prosperity, convincing manufacturers of the need to abate smoke proved difficult (Mosley Reference Mosley2001, pp. 70–78; Wohl Reference Wohl1983, pp. 215–19). Relatedly, some scholars have suggested that since regulation required costly outlays, it was resisted by industry – particularly during periods marked by low profitability (Fouquet Reference Fouquet2012, p. 146; Pontin Reference Pontin2007, p. 196). While these explanations are not without merit, they disregard the fact that smoke abatement was early on recognised to be a potential source of savings and was supported by manufacturers even during times of economic downturn.Footnote 1 Another set of explanations has focused on the loose drafting and lax enforcement of legislation, which is said to have been the result of the influence of industrialists in parliament and local government (Wohl Reference Wohl1983, pp. 220–23). This, however, begs the question of why the influence of industrialists resulted in the failure even of economical methods of smoke abatement. A third factor that has been identified (even though it has not been explored much in the literature) is that although smoke abatement was technologically possible in theory, in practice its success depended on the diligence of stokers who generally showed little interest in the abatement of smoke (Ashby and Anderson Reference Ashby and Anderson1981, pp. 8–9; Brimblecombe Reference Brimblecombe1987, p. 98). While this article shares the general diagnosis that this was one of the biggest factors responsible for the slow progress of nineteenth-century smoke abatement efforts, scholars who have noted this factor have often reproduced Victorian ideology in a problematic way by analysing stokers’ carelessness in moralistic and individualistic terms rather than as a result of the structure of nineteenth-century industrial relations.
Social historians have emphasised the need to study how what Marx called the ‘hidden abode of production’ (Reference Marx1990 [Reference Marx1867], pp. 279–80) conceals the role of power in shaping the capitalist labour process (Steinberg Reference Steinberg2016, pp. 11–25) and its relationship to technology (Samuel Reference Samuel1977, p. 8). In the context of regulation studies, it has been further noted that the effectiveness of regulatory interventions can only be examined if the particular character of the labour process under study is taken into account (Lange Reference Lange1998, pp. 463–64). This article contends that to understand the slow progress of Victorian efforts to address smoke pollution, the relationship between stokers and masters must be placed at the centre of analysis and situated in a broader legal and social context. While the inability of stokers and masters to co-operate to abate smoke may have been inevitable in the concrete historical conditions of Victorian capitalism, it must be understood as the result of the particular social relations characteristic of that period. Through such a contextual approach, it is possible to see how nineteenth-century social relations contributed to an unequal distribution of the costs of regulation, thereby undermining its legitimacy and effectiveness.
The article shows that the relationship between stokers and masters during the Victorian era was exceptionally fraught, a fact which was symptomatic of the conflict between capital and labour under capitalism more broadly. While many manufacturers considered it desirable in the abstract to reduce smoke pollution (while conveniently also cutting their fuel bills), this was outweighed by their reluctance to upskill and reward their stokers, who they wanted to remain docile and cheap workers. Although considerable efforts were made during this period to compel stokers to exercise greater care and thus contribute to the abatement of smoke, this almost invariably took the form of coercion rather than attempts to reach some kind of mutually beneficial agreement. The law played an important role in this regard, frequently siding with the masters to impose legal liability for smoke pollution on stokers. Furthermore, even in cases where stokers were not prosecuted for smoke pollution directly, employers often demanded indemnities from stokers as compensation for careless stoking. This reinforced the sense of mistrust and animosity between stokers and their masters, undermining efforts to bring stokers on board with the goal of abating smoke. In short, it will be argued that nineteenth-century efforts to regulate industrial smoke pollution were hampered by the relationship between nineteenth-century furnace technology and capitalist social relations. While efforts to abate smoke required the co-operation of masters and stokers, the antagonistic relationship between these two classes prevented the alignment of incentives in a way that would facilitate the successful abatement of smoke. These findings may provide historical insights to better understand the weaknesses of contemporary legal efforts to address climate change, as climate law and policy continue to be opposed despite the availability of greener technologies and the existence of a scientific consensus about climate change.
The article begins by explaining, in Section 2, why the transition to capitalism created both the need for capitalists to secure control over labour, and also difficulties in doing so. It then shows how the transition to steam power in the second quarter of the nineteenth century was one way of strengthening capital’s power over labour. In Section 3, the article revisits debates around the regulation of industrial smoke pollution, showing that although smoke abatement was cautiously welcomed by manufacturers as a potential way of lowering fuel bills, concerns about the carelessness of stokers emerged as one of the key obstacles to reform efforts. Given this context, Section 4 examines two responses which emerged to compel stokers to exercise greater care in the abatement of smoke. The first was to bring statutory smoke nuisance cases directly against stokers as the persons liable for unlawful emission of smoke. The second was the creation of indemnity schemes, whereby stokers had to reimburse their masters when their alleged negligence led to smoke nuisance. As this article shows, both of these methods were used extensively. Section 5 traces the institutional reasons why stokers ended up bearing much of the burden of regulation, and shows that the enforcement of smoke regulation only reinforced the mistrust between stokers and masters, undermining efforts to bring stokers on board with the goal of abating smoke.
Before proceeding, one caveat is necessary. Even though common law litigation and regulatory regimes such as the Alkali ActsFootnote 2 or the Rivers Pollution Prevention ActFootnote 3 might raise similar questions about the role of social relations in shaping how law deals with environmental problems, they have been left out of the present investigation for reasons of space. Ben Pontin has argued that private nuisance was used extensively and with considerable success during the nineteenth century to restrain the polluting activities of Victorian manufacturers (Reference Pontin2012, Reference Pontin2013). Pontin’s work shows that private litigants often brought claims directly against polluting industrialists. Such a course of action would have made sense, as it would have maximised a plaintiff’s chances of a successful outcome, be it an award of meaningful damages or an injunction. However, this article examines how the distribution of costs was negotiated within a public law framework which was institutionally more complex, and involved a much finer balancing of competing interests than private litigation. Moreover, Pontin’s work does not tell us where the costs of a successful private nuisance claim fell within factories that were on the receiving end of such a lawsuit. The findings presented in this article suggest that the existence of similar indemnification schemes as were adopted by many manufacturers in the context of the smoke regulatory framework cannot be ruled out as one of the consequences of successful private litigation. The Alkali Acts and the Rivers Pollution Prevention Act offer a closer point of comparison than private litigation, and some similarities between the former and the regulation of smoke from steam-engines are identified in the conclusion of this article. Unfortunately, limitations of space do not allow for a more extensive treatment here.
2 Law, labour control and the transition to steam power
As Marx was one of the first to explain, one of the key features of capitalism is the sale of labour-power by a worker to a capitalist for a wage for a definite period of time (Reference Marx1990 [Reference Marx1867], p. 271). For a capitalist to make a profit, the value produced by the worker over the contracted period of time needs to be larger than the wage she receives for her work. The more value the capitalist can get the worker to produce over the contracted period of time above her wage, the greater his profit. To ensure that he gets a return on his ‘investment’ into the worker’s wage, the capitalist acquires the right (limited, in theory, by the law) to use the worker’s labour-power however he sees fit to maximise the value produced by his enterprise. Capital is therefore, according to Marx, ‘command over unpaid labour’ – the power of the capitalist to determine how the worker will carry out her work to produce maximum value (Marx Reference Marx1990 [Reference Marx1867], p. 672).
In the early phase of the Industrial Revolution, however, capitalists faced a difficulty in securing the kind of command over labour they desired. The working class was not composed of people who volunteered to work for a wage. It was created by dispossessing peasants from land, and disrupting their traditional subsistence economies and the modes of living around which those economies were based (Thompson Reference Thompson1966, Reference Thompson1967, Reference Thompson1971). People were forced to adjust to new working habits, such as working based on the clock and under the command of a capitalist rather than in a relatively autonomous, task-oriented way, as many had done before (Thompson Reference Thompson1967, pp. 58–63). These changes, together with the broader demise of the old subsistence economy, were resisted through refusals to carry out work in the manner commanded (Thompson Reference Thompson1967, p. 90) as well as, in extreme cases, the occasional riot (Thompson Reference Thompson1971, pp. 84–88). Given this context, capitalists were always searching for more effective ways of controlling labour. One of the mechanisms through which this was done were the master and servant laws, which emerged in the eighteenth century as a mix of common law and statute to regulate labour relations and ‘aimed to impose a more rigorous system of work discipline upon the growing numbers of labourers, artisans and outworkers employed in manufacturing’ (Deakin and Wilkinson Reference Deakin and Wilkinson2005, p. 62). The laws did this by obliging workers who had entered into an employment contract to ‘serve their employers’ dictates’, with a breach of this obligation treated as a criminal offence, in principle punishable by imprisonment (Steinberg Reference Steinberg2016, p. 35). Under the laws (Steinberg Reference Steinberg2016, pp. 3–4),
‘[W]orkers under a contract of service could be prosecuted for being absent from work, disobeying an employer’s orders, not committing full effort to their jobs, leaving work without proper notice (which covered much strike activity), and a number of other “offenses”.’
The transition to steam power in the first half of the nineteenth century has traditionally been explained as a necessary result of the capitalist search for endless growth, which could only be underpinned by an inorganic rather than organic energy source (Wrigley Reference Wrigley1962). But as Andreas Malm has recently shown, the adoption of steam during this period was as much – if not more – driven by the need to better control labour (Reference Malm2016). The traditional explanation of the transition to steam power assumes that steam would be adopted once economic activity created insatiable demand for organic energy sources, thus making them scarce, increasing their price and forcing the adoption of a new, cheaper energy source (Reference Malm2016, pp. 32–36). However, the problem with this explanation is that water power, which was the dominant source of energy in the cotton industry where the pivotal transition to steam would occur in the 1830s, continued to be cheaper and abundant even as the transition to steam power took place (Malm Reference Malm2016, pp. 82–85).
The better explanation for the transition to steam power is that it increased capital’s ability to control labour. In the first decades of the Industrial Revolution, cotton manufacturers built ‘factory colonies’ around waterways in remote parts of the country in the hope that this would allow them to maximise their ability to exploit labour. In these ‘colonies’, they would provide accommodation, subsistence and basic education to their workers. However, despite such outlays, workers remained free to leave at any time (Malm Reference Malm2016, pp. 125–31). A further blow for manufacturers came with the passing of factory legislation, which restricted children’s working hours. This forced factories to shut down at night, making it nigh on impossible to make a return on the investment made into the factory colonies (Malm Reference Malm2016, pp. 172–88). In contrast to water-powered factory colonies, which were often located outside of large urban centres, the physical properties of coal allowed it to be transported easily across distances, enabling manufacturers to move to towns where labour was increasingly concentrated. This allowed manufacturers to dismiss their workers at will and retain access to a reserve army of potential employees, thus increasing their relative power over labour. Moreover, moving to towns allowed manufacturers to benefit from an existing social and physical infrastructure – roads, houses, schools, hospitals – on which their workers relied, without having to pay for this infrastructure directly (Malm Reference Malm2016, pp. 144–64).
In sum, the Industrial Revolution came hand in hand with a growing need by capital to control labour so as to maximise surplus value. One way in which this was achieved was the law (particularly the master and servant laws), which was used to coerce workers into diligent work. Another way was the adoption of steam power, which allowed manufacturers to move to towns where workers were increasingly concentrated to make the firing and hiring of workers easier. But growing urbanisation and the increasing use of steam power also created negative side effects, one of which was the exacerbation of smoke pollution.
3 The importance of diligent stoking in efforts to abate smoke
The problem of smoke pollution appeared on the political agenda in the late 1810s following growing complaints by inhabitants of northern manufacturing districts about the increase of black smoke in their neighbourhoods (House of Commons 1819, p. 5). At around the same time, some doctors began to connect smoke pollution to adverse public health effects (House of Commons 1819, p. 11). While the negative public health effects of smoke would only come to be widely recognised in the mid-nineteenth century, as the popular view of smoke as a disinfectant that purified the air from miasma fell into disrepute (Thorsheim Reference Thorsheim2006, pp. 16–17, 28–30), the complaints of smoke as a nuisance began much sooner. By the mid-1840s, it was observed that residents of Britain’s industrial towns ‘are frequently annoyed, and have much reason to complain’ (De la Beche and Playfair Reference De la Beche and Playfair1846, p. 7). In Reference Mackinnon1843, William Mackinnon MP, a pioneer of smoke pollution regulation, told Parliament that ‘great injury had been done to the health and habits of the public by the deteriorated state of the atmosphere, caused by the great quantity of smoke that was emitted from different manufactories’.
However, the growing reliance on steam power together with the economic crisis that marked the second quarter of the nineteenth century (Malm Reference Malm2016, pp. 58–61) meant that if reformers were to get support for regulation, they would need to be able to convince industry of the economic benefits of smoke abatement. As one manufacturer from Birmingham told a Select Committee as early as 1820, insofar as he had any interest in the abatement of smoke, he was ‘particularly drawn to the … saving of fuel’ (House of Commons 1820, p. 7). This was echoed twenty years later by a furnace engineer who told a Select Committee that ‘a great desire on the part of the manufacturers is, if they do adopt a plan, to adopt it for their own benefit, rather than the benefit of the neighbourhood; they must have a return for any expenses incurred’ (House of Commons 1843, p. 24). The Birmingham manufacturer George Frederick Muntz described the sentiment prevailing among industry in the mid-1840s bluntly: ‘in the present state of trade … every shilling is an object to the manufacturers’ (House of Commons 1843, p. 5).
At first, this did not seem like an impossible task. As early as the late 1810s, it was starting to be understood that the palls of black smoke that could be seen hanging over manufacturing districts were the result of incomplete combustion, which incidentally also amounted to wasteful use of fuel (House of Commons 1843, pp. 164–65). If coal was burnt more completely, this could not only eliminate black smoke but also result in considerable fuel savings. In 1820, a worsted manufacturer named Josiah Parkes was reporting a successful reduction of ‘our consumption of coals … from thirty-six hundred weight to twenty-five hundred weight daily’ (House of Commons 1820, pp. 5–7). Other manufacturers, who had taken measures to achieve complete combustion, cited comparable fuel savings (House of Commons 1819, pp. 7–9). In 1843 a Select Committee report concluded that ‘the expense attendant on putting up whatever apparatus may be required to prevent Smoke arising from furnaces is very trifling, and, as some Witnesses observed, the outlay may be repaid within the year by the diminished consumption of fuel’ (House of Commons 1843, p. iv).
This seemed promising, but was not without its difficulties, for there were two factors on which the more complete burning of coal depended. The first was furnace design. A well-designed furnace facilitated a steady supply of oxygen into the fire without significant loss of heat, which was conducive to achieving complete combustion. However, while a good furnace could help, whether a manufacturer would indeed succeed in achieving complete combustion ultimately depended on whether his stoker worked the furnace in a diligent manner. While a diligent stoker could reduce smoke pollution considerably even with a relatively basic furnace, the converse was not true – careless stoking invariably resulted in black smoke and a higher fuel bill, regardless of the quality of the furnace. Without diligent stoking, any investment into a better furnace was bound to go to waste.
In theory, diligent stoking could benefit both the manufacturer, who would enjoy considerable fuel savings, and the stoker who – one can imagine – might receive some of the money saved on fuel as pecuniary compensation for his efforts. However, this was not the reality of nineteenth-century industrial relations. Not only was the second quarter of the nineteenth century generally one of the most turbulent periods in British history, with social unrest and class conflict seemingly on the verge of breaking point (Hilton Reference Hilton2006), but stokers in particular were ‘drawn from “the lowest dregs of society almost”, underpaid, uncooperative toward their masters, and difficult to supervise’ (Ashby and Anderson Reference Ashby and Anderson1981, p. 8). The evidence collected by various Select Committees on smoke pollution between 1819 and 1845 reveals the difficulties manufacturers faced in getting stokers to show the required level of care. As one manufacturer from Birmingham told a Select Committee in 1820, ‘so much care and skill required from the [stoker]’ is ‘seldom to be found in persons so employed’ (House of Commons 1820, p. 7). In the mid-1840s, a Select Committee report on smoke pollution concluded that ‘the manufacturers are completely at the mercy of the stokers’ in their efforts to reduce pollution (House of Commons 1845a, p. 70). As late as 1880, an anonymous Manchester foreman was complaining that (The Manchester Guardian 1880, p. 9):
‘I cannot find a sufficient amount of careful hand firing. I have taken infinite pains with my men. I have delivered numberless short lectures on the nature and properties of combustible gases; illustrated these discoveries by sight holes at the end of boiler flues; demonstrated that by admitting a little air “over the bars” by means of slits in the fire doors or by opening the doors themselves a little the smoke completely disappeared and the whole length of the flue was as transparent and as free from smoke as the chimney of an argand lamp; showed them that by alternately opening or closing the door slit smoke could be produced or burnt at will. I had their full acquiescence in my views and have walked away proudly conscious that I had at least made one thorough convert and that by pursuing this line I should at last get over my smoke troubles. But how short a time even conscious virtue lasts. No sooner had I turned my back than the dog returned to his vomit. I either found my new convert had wholly relapsed, or what was worse (and this frequently happened) that though complying strictly with the letter of my rule by opening his slits or doors, he rendered his act completely nugatory by pushing down his damper at the end of the boiler.’
This helps explain the prevailing sense during the nineteenth century that even as complete combustion came to be increasingly seen as a realistic aim in theory, achieving it in practice continued to prove difficult, giving rise to complaints that proposals to abate smoke were ‘all failures’ (House of Commons 1843, p. 24) and forcing reformers to conclude that most factories ‘do not generally succeed’ in reducing their smoke emissions (De la Beche and Playfair Reference De la Beche and Playfair1846, p. 7). Importantly, it was a widely shared sentiment that, as a Leeds manufacturer explained in 1845, ‘very few [furnace] patents have failed otherwise than through the negligence of the stoker’ (House of Commons 1845a, p. 29).
Manufacturers could perhaps have tried to motivate their stokers to exercise greater care with pecuniary rewards. But while this happened in some cases, it was the exception rather than the rule. The much more common response of manufacturers and foremen was to try to come up with ways of coercing their stokers into diligent work and punishing them if they fell short. The most popular among these was imposing fines on negligent stokers. As an engineer told one Select Committee, ‘I would recommend that if any smoke occurred at any furnace during the week, the man who attended to that furnace should be fined’ (House of Commons 1843, p. 28). Two years later, James Holdforth, owner of a large silk mill in Leeds, argued that when a proprietor had ‘gone to considerable expense’ to make his furnaces consume smoke but was unsuccessful in doing so because of his stoker’s negligence, it was appropriate for a portion of the blame to shift on to the stoker (House of Commons 1845a, p. 26):
‘Perhaps it is questionable whether [a penalty] ought not to extend also to the stoker, for this reason, if the master have taken great pains in procuring the best apparatus, and he feels satisfied that that would consume the smoke, but the man, from his negligence and inattention, allows the smoke to escape, then, I think, all the blame ought not to rest upon the master but a portion of the blame on the man; and if blame attaches, then perhaps a portion of the penalty ought fairly and equitably to attach also.’
Notably, such sentiments were not unique to the fraught period of the second quarter of the nineteenth century. As late as the 1880s, we find our dispirited anonymous Manchester foreman writing that because ‘smoke production is entirely in the hands of the firemen, smoke will not cease until these men are compelled to use “careful hand firing” on the pain of sufficiently heavy fine or imprisonment’ (The Manchester Guardian 1880, p. 9).
How did the apparent inability of manufacturers to rely on stokers in their efforts to reduce smoke pollution and cut their fuel bills translate into legal reform and changes in industrial practice? The historiography on Victorian regulation of smoke pollution has not explored this question in any great detail. Two works stand out for having registered the issue, albeit only in passing. Ashby and Anderson in a seminal study argue that despite the ‘autocracy of the masters and the weakness of trade unions in those days, a suggestion that the stoker himself should be fined if the chimney smoked did not commend itself’ to reformers (Reference Ashby and Anderson1981, p. 9). Mosley offers a slightly different interpretation of this history. Although focusing only on enforcement in Salford in the period after 1862, he claims that in this context, regulation imposed liability for smoke pollution on stokers. Importantly, however, while ‘the Health Committee regularly prosecuted the “negligent stoker” rather than the factory owner … the stoker’s nominal fine was nearly always paid by the employer’ (Reference Mosley2001, p. 169). While Mosley departs from Ashby and Anderson in arguing that it was nominally the stoker who was targeted by enforcement, the practical consequences are the same, as the fines that were imposed by the court on the stoker are said to have ultimately been paid by his employer.
The discussion so far points to two ways in which the costs of smoke pollution regulation could have been transferred on to stokers. The first would entail the stoker being directly prosecuted as the person liable for the unlawful emission of smoke. The second, more indirect way, would be for the stoker to be fined (or, in extreme cases, fired) by his employer as punishment for failing to abate smoke. Various combinations of these can be imagined. For example, the stoker might be prosecuted but reimbursed by his employer, as suggested by Mosley. Conversely, the manufacturer might be prosecuted but seek indemnity from the stoker who caused the emission of smoke. Equally, the owner might be prosecuted and also bear the fine (as Ashby and Anderson indicate, though they do not make the latter point explicitly) or lastly, the stoker might be prosecuted and, additionally, be fired or required to indemnify his master as further punishment (for example, the master might fire the stoker and also keep any outstanding wages owed to him). Which of these can be found in the historical record?
4 The distribution of the burden of smoke pollution regulation
4.1 Allocation of liability by courts
The first question concerns the extent to which stokers were prosecuted under smoke pollution regulation as the persons nominally liable for the unlawful emission of smoke. But before examining this question, it is first worth situating it in legal-historical context. How common, if at all, was it for workers to be held personally liable for their actions during the course of their work, as opposed to their employers being held vicariously liable? The answer to this question is not straightforward. As one legal historian has noted, ‘vicarious liability was, and it remains, curiously unsatisfactory’ (Swain Reference Swain2019, p. 641) . This is partly to do with the fact that even as fault became a central component of tortious liability during the nineteenth century, ‘no very coherent explanation’ for vicarious liability ‘was forthcoming’ (Swain Reference Swain2019, p. 642). To obtain some grasp on the question, it is useful to distinguish between tortious and criminal vicarious liability.
In tort, the principle that an employer is liable for the wrongful conduct of his servant has been relatively well-established at least since the early eighteenth century, even if the origins and conceptual basis of such liability have been debated.Footnote 4 In the seminal case of Turberville v. Stamp the defendant was a landholder alleged to be liable for the effects of a fire kindled on his land by his servant.Footnote 5 Lord Holt CJ held that (Turberville v. Stamp, pp. 264–65):
‘[I]f the defendant’s servant kindled the fire in the way of husbandry, and proper for this employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire; for it shall be intended that the servant had authority from his master, it being for his master’s benefit.’
By the mid-eighteenth century, Blackstone was writing that ‘if a servant … by his negligence does any damage to a stranger, the master shall answer for his neglect’. Explaining the principle underpinning the law, he noted that ‘the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant’s misbehaviour, but never can shelter himself from punishment by laying the blame on his agent’ (Reference Blackstone2016 [Reference Blackstone1765], pp. 277–78).
From the late eighteenth century, the doctrine came to be articulated in terms of ‘scope of employment’. Despite this new terminology it did not change much from Holt CJ’s time (Swain Reference Swain2019, p. 645). In Laugher v. Pointer it was said that ‘a man is answerable for the conduct of his servants in matters done by them in the exercise of the authority that he has given to them’ (p. 577).Footnote 6 Some thirty years later, Charles Smith wrote in a treatise (adopting the more contemporary language) that ‘a master is ordinarily liable to answer in a civil suit for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in his master’s service’ (Reference Smith1852, p. 151).
In contrast to tort, vicarious criminal liability was slower to develop, and much more controversial (Baty Reference Baty1916, pp. 215–19). Notably, one of the most prominent areas where it was developed during the nineteenth century was public nuisance, an offence which was considered ‘civil in its nature’ even if remedies awarded for it were ‘anomalously criminal’ (Baty Reference Baty1916, p. 203). In some cases, public nuisance warranted finding the master liable even in the absence of fault on his part. Thus, in R v. Medley, Denman CJ held at nisi prius that ‘if persons for their own advantage employ servants to conduct works, they must be answerable for what is done by those servants’, notwithstanding the fact that this was a case of indictment for ‘common’ (public) nuisance and that the owners were not in any way at fault (p. 299).Footnote 7 Thirty years later in R v. Stephens, the servants of a quarry owner threw debris into a river without his knowledge and against his order, obstructing its navigation. Blackburn and Mellor JJ held that the owner could be indicted for public nuisance despite his lack of ‘guilty knowledge’.Footnote 8 According to Mellor J, although ‘this in point of form is a proceeding of a criminal nature’, in ‘substance’ it is ‘in the nature of a civil proceeding’. The object of the indictment in this case was of a public policy kind – ‘to prevent the recurrence of the nuisance’ – as a result of which strict liability was appropriate: ‘the defendant finds the capital, and carries on the business which causes the nuisance, and it is carried on for his benefit’ (R v. Stephens, pp. 707–09). Indeed, as early as the 1850s, Smith had stated that ‘masters are liable to indictments for public nuisances – such as carrying on offensive trades – committed by their servants, although their masters have nothing to do personally with the nuisance complained of’ (Reference Smith1852, p. 148).
Now, before turning to how vicarious liability was developed in the context of smoke pollution regulation, a word of caution is necessary. The developments surveyed above in the context of tortious and criminal vicarious liability all took place at common law. The regulatory framework for addressing smoke pollution examined in this article, by contrast, was a creature of statute. From a strictly doctrinal perspective, there is nothing problematic per se about a statutory framework not following developments at common law. However, from a socio-legal perspective, it merits asking what choices were made about the allocation of liability during the drafting and enforcement of a regulatory framework and to what extent these aligned with the underlying justification of comparable developments at common law. If they did not, what social factors might explain this discrepancy?
A robust statutory framework for regulating smoke pollution was slow to develop. In 1821, the Steam Engines Furnaces Act was passed to make it easier to bring private nuisance claims for smoke pollution but it was never ‘put to the test in the courts’ (Ashby and Anderson Reference Ashby and Anderson1981, p. 6).Footnote 9 In the following two decades, some local Improvement Acts included smoke clauses, but these were generally agreed to be hard to enforce and provided for only trivial penalties (Ashby and Anderson Reference Ashby and Anderson1981, pp. 6–7). The first relatively robustly enforced statute passed to address the problem of smoke pollution was the London Smoke Act 1853 (Ashby and Anderson Reference Ashby and Anderson1981, pp. 15–19).Footnote 10 Under Section 1, the Act required every new and existing furnace to be ‘constructed or altered so as to consume or burn its own Smoke’. Anyone using a furnace not ‘constructed so as to consume or burn its own Smoke’ or using such a furnace ‘negligently’ or ‘without using best practicable means’ was upon first conviction to pay a sum of not more than five pounds, upon second conviction a sum of ten pounds and upon each subsequent conviction double the amount of the previous conviction. In addition, through Section 4, the Act implemented a system of enforcement overseen by the Metropolitan Police. Police officers were given powers to enter factories and examine the construction and operation of furnaces. The provisions of the London Smoke Act were extended to the entire country through the Sanitary Act 1866,Footnote 11 which under Section 19 obliged all local authorities to prosecute those ‘sending forth black smoke in such quantity as to be a nuisance’, unless they used best ‘practicable’ means for the consumption of smoke.
At first sight, it is not obvious who these Acts were meant to impose liability on. This was explicitly acknowledged by Field J in Chisholm v. Doulton,Footnote 12 which concerned the allocation of liability for the negligent emission of smoke under the London Smoke Act. Agreeing with Cave J that the defendant, an owner of a pottery works, could not be held criminally liable under the Act for the negligence of his stoker when he was not at fault, Field J nonetheless expressed ‘doubt … as to the correctness of our construction’ (Chisholm v. Doulton, p. 740). In reaching this conclusion, Field J distinguished the case from Stephens, finding that ‘the offence charged against the respondent is a criminal offence’ whereas Stephens was found to be in substance a ‘civil’ proceeding (Chisholm v. Doulton, pp. 739–40). This is somewhat uncompelling though, as in Stephens Mellor J had explicitly said that the proceeding was criminal in ‘form’, albeit civil in substance – a seemingly similar situation to Chisholm.Footnote 13 However, in this case Field J based his reasoning instead on the fact that ‘the general rule of law is that a person cannot be convicted and punished in a proceeding of a criminal nature unless it can be shown that he had a guilty mind’, and it was ‘for the prosecution in each case’ to rebut that presumption by showing that the legislature had intended to create a strict liability offence (Chisholm v. Doulton, p. 739). Ultimately, Field and Cave JJ found that on a textual reading of the statute, the legislature did not intend to make the master liable. However, this did not come without difficulties, with Field J admitting that ‘the penalty payable on the first conviction is one which, with the costs, there would be great difficulty in getting paid by a mere stoker’, which ‘does seem to suggest that the person responsible is the person to whom the premises belong’ (Chisholm v. Doulton, pp. 740–41).
While Chisholm was the first case decided by the higher courts under the London Smoke Act, it appears to have been broadly in line with practice at London petty sessions, insofar as this can be gleaned from contemporary newspaper reports. These reports suggest that liability under the Act depended on whether the furnace in operation was properly constructed – if it was not, this was taken to be the fault of the master; if it was, however, it was presumed that the stoker had been negligent, making him responsible. Take the following report from 1868 of the prosecution of William Crouch, a stoker employed by tyre smiths Smith & Co, at Southwark petty sessions (The Observer 1868, p. 7):
‘Mr. William Sandison, the Government inspecting engineer, said he had visited Messrs Smith’s premises, and found the furnace properly constructed so as to consume the smoke. The Nuisance was caused by the defendant’s neglect. There was no fault on the part of his employers. The defendant said he was very sorry, but one of the furnaces had been under repair, and did not work well. Besides, the smoke from one of the forges passed into the shaft in question. Mr. Sandison denied that the forges had anything to do with the shaft. With ordinary care defendant might have prevented the smoke.’
As this was his first offence, the judge said Crouch ought not to be treated too harshly and was fined 5s and 2s costs – a couple of days’ worth of wages.
All evidence indicates that Crouch was not an isolated case, but in line with adjudicative practice at petty sessions. Thus, for example, in the same year as Crouch, John Jones, a stoker employed by the candle manufacturers Ogilby & Co, was indicted at Lambeth police court for working a properly constructed furnace in such a way that it produced ‘dense black smoke’. In his defence, Jones argued that he only left the furnace ‘for a short period’ for the purpose of ‘oiling an engine’ and on the whole, he ‘paid the greatest attention to the working of the apparatus’. This was rejected by the magistrate, who said that ‘it was useless for manufacturers to adopt expensive apparatus if their servants would not properly attend to them’ (The Times 1868a, p. 11). It seems therefore that once a furnace was found to be properly constructed, any unlawful emission of smoke gave rise to an almost irrebuttable presumption against the stoker.
This is borne out in the reports. At Southwark, John Anderson was fined 40s and costs or 21 days’ imprisonment ‘for neglecting to use a furnace so as to consume the smoke, the furnace being duly constructed to do so’ (The Observer 1867, p. 7). Horton Stockin was fined 5s and 5s 3d costs for ‘negligently attending to the furnaces under his care, such being constructed to consume smoke’ (The Times 1872, p. 11). Stephen Watkinson was summoned ‘for negligently attending a furnace constructed to consume its smoke’ and fined 5s and £1 6s 6d costs (The Times 1876d, p. 11). Thomas Webber, chief stoker of the Lion Brewery Company, was fined £1 10s 3d ‘for negligently attending to the furnaces properly constructed so as to consume the smoke’ (The Times 1877, p. 12). At Lambeth, Thomas Sundgrove was fined 10s and costs for negligently working kilns with a ‘proper apparatus’ which ‘would not smoke if attended to’, and John Pugh was fined 20s and costs for negligently stoking furnaces ‘supplied with the proper apparatus’ (The Times 1867, p. 11). Thomas Barbell was summoned before magistrates at Marylebone for ‘negligently using a certain furnace … so that the smoke arising therefrom was not effectually consumed’ and fined 23s and costs (The Times 1876c, p. 9). At Hammersmith, George Reynolds was fined 5s and £1 13s 6d costs for ‘using a furnace negligently’ after the smoke inspector ‘found the furnaces in good order and good fuel being used’ (The Times 1878, p. 10). Although the reports are often not clear on who ended up paying the fine, the relatively low fines compared to the maximum limits set out in the London Smoke Act may indicate that these were intended to be paid by stokers (the fines ranged from a few days’ worth of a stoker’s wages to around a month’s worth of wages). Moreover, as some of the reports indicate, stokers were sometimes imprisoned when unable to pay, indicating that their employers did not always cover the fine (The Times, 1868b, p. 11).
When a proprietor had not created good conditions for smoke abatement, responsibility usually rested with him. Conrad Wohlgrmouth, a sugar refiner, was indicted for not having a furnace constructed so as to consume smoke and fined £5 and £1 13s 6d costs (The Times 1875, p. 9). The master of a workhouse was indicted for supplying his stokers with bad quality coal and fined £5 and £1 13s 6d costs (The Observer 1875, p. 3). An owner of a hotel was indicted for having an improperly constructed furnace and fined £1 and £1 13s 6d costs (The Times 1876a, p. 11). In one notable case, a confectioner was fined despite having a good apparatus which was being worked negligently by the stoker, as his manufactory was ‘in a filthy state, and it was impossible a stoker could do his duty’ (The Times 1876b, p. 11). Taken together, these decisions support the conclusion that the master was generally held liable only where he was at fault, for example by having faulty equipment, low-quality coal or an improper working environment, while the stoker was responsible in all other cases.
How did the situation in London compare with the rest of the country? Given the localised nature of the system of petty sessions, restraint is required when drawing any definitive conclusions. A further difficulty comes from two judgments handed down by the Queen’s Bench in 1868 and 1872 respectively on this issue, which are somewhat hard to reconcile. In Willock v. Sands,Footnote 14 the owners of a sanitary tube manufactory appealed after being convicted at Leeds petty sessions under the Leeds Improvement Act 1866Footnote 15 for using their furnaces so as to allow smoke to escape. The Act provided in Section 70(A) that:
‘If any person shall … use [a] furnace which shall not be constructed so as to consume or burn its own smoke, or shall so negligently use any such furnace as that the smoke arising therefrom shall not be effectually consumed or burnt … without using the best practicable means for preventing or counteracting such annoyance, every person so offending being the owner or occupier of the premises, or being a foreman or other person employed by such owner or occupier, shall, upon a summary conviction for such offence before any justice or justices, forfeit and pay a sum not more than 5l., nor less than 40s., and upon a second conviction for such offence, the sum of 10l., and for every subsequent conviction the sum of 20l.’
It was agreed at trial that the furnaces were properly constructed and the appellants employed a skilful stoker, but that stoker had on this particular occasion ‘without the knowledge and in the absence of the appellants’ attended the fire negligently. Nevertheless, the appellants were convicted at petty sessions. With a majority of three to one, the court held that the appellants had been improperly convicted. Cockburn CJ admitted that ‘the statute is very obscure, and my mind is bewildered’ but ended up holding that ‘the masters were not properly convicted’ as ‘when the master does all he can be expected to do, he ought not to be held liable for this constructive negligence of his servant’. The dissenting judgment was delivered by Blackburn J, who ‘thought the statute intended to make the master as well as the servant liable’.
Four years later, Blackburn J would deliver the sole judgment in Barnes v Akroyd,Footnote 16 which raised the question of whether the appellant was entitled to summon the owners of a works at Copley Mill for the emission of black smoke under the Nuisance Removal Act 1855,Footnote 17 without first inquiring into who the stoker was. The Nuisance Removal Act provided in Section 12 that when a nuisance complaint is made, a justice shall:
‘Issue a summons requiring the person by whose act, default, permission, or sufferance the nuisance arises or continues, or, if such a person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises to appear before any two justices.’
Finding for the appellant, Blackburn J held that the magistrates were wrong to find that the ‘person by whose act, default, permission, or sufferance’ the nuisance occurred had to be interpreted to only mean the stoker. ‘If they were satisfied that he was the servant of the respondents, then the latter were the persons who created the nuisance and are responsible for so doing’, he said. It is notable that even though Blackburn and Mellor JJ who decided the case had sat on Willock four years earlier, the decision does not seem to have been referenced in their judgment. Instead, Blackburn seems to have decided based on the principle that an owner is strictly answerable for nuisance emanating from his works, which underpinned the decision of the court in Stephens (on which both Blackburn and Mellor JJ sat) as well as, presumably, his dissent in Willock.
Of the two judgments, Barnes seems to have been the outlier (owing partly to its sui generis procedural character), with local practice mostly following (consciously or not) the principles laid down in Willock (and later confirmed in Chisholm in the context of the London Smoke Act). For example, in September 1882, a stoker was indicted at Salford borough court for causing a nuisance by ‘negligent firing’ while using a boiler ‘fitted with smoke-consuming apparatus’, and fined 40s and costs (The Manchester Guardian 1882, p. 10). As late as the mid-1890s, we find a report of three stokers being fined in Salford for ‘negligently using furnaces constructed to consume their own smoke’ (The Manchester Guardian 1894, p. 7). Conversely, when a manufacturer who was summoned proved that he was doing everything in his power to reduce his emissions of smoke, magistrates showed exceptional leniency, going as far as postponing his case (The Manchester Guardian 1856, p. 4).
Overall, the evidence supports the conclusion that across the country, proprietors were often immunised from prosecution (which instead targeted stokers) as long as they maintained a proper furnace and supplied their stokers with good fuel. This conclusion suggests that courts did not follow the strict liability approach to vicarious liability that the Queen’s Bench had laid down in Stephens in the context of public nuisance. It also suggests that Ashby and Anderson underestimated the willingness of public officials to bring claims directly against stokers and of magistrates to uphold these claims. Conversely, the findings support one aspect of Mosley’s findings, namely that smoke inspectors often brought claims directly against stokers. What is left to examine is the second part of Mosley’s claim – that the fines imposed on negligent stokers at petty sessions were usually paid by their employers.
4.2 Smoke abatement in the ‘hidden abode’
None of the evidence presented so far necessarily proves that the costs (financial or otherwise) of smoke regulation were ultimately borne by stokers. While it was shown that indictments for unlawful smoke pollution were routinely brought against stokers directly (both in London and elsewhere), this does not rule out that the practical impacts of enforcement on stokers may have been minimal (recalling Mosley’s finding that the fines were almost always paid by the manufacturers).
This section shows that such a positive assessment does not adequately capture the historical record. In fact, several negative impacts of smoke control on stokers can be identified from a careful reading of the evidence. First, it seems unlikely that employers generally reimbursed stokers for the fines imposed on them by the magistrates. Admittedly, some more paternalistic employers did,Footnote 18 and it is possible that practice between regions varied. However, in some places (especially London), there is also contrary evidence of stokers being locked up in default of payment, showing that the practice of employers paying their stokers’ fines was not as widespread as Mosley’s findings in Salford may suggest (The Times 1868b, p. 11). Beyond this, at least two other negative consequences of smoke enforcement for stokers can be identified: the practice of dismissing stokers whose negligence was believed to have resulted in smoke; and the (less extreme but even more common) practice of demanding indemnity payments from negligent stokers.
Evidence of the first – the dismissing of negligent stokers – can be found as early as the minutes of the 1845 Select Committee on smoke pollution. The Leeds industrialist James Holdforth explained to the Committee in 1845 that his policy was to tell every stoker that ‘whenever I see smoke issuing from that chimney, that is your notice to quit at the end of the month’. Such a warning, alongside ‘a present of a shilling’ which he would give to his stoker whenever there was ‘no smoke issuing from the top of the chimney’, apparently helped ensure that Holdforth’s mills had managed to almost entirely eliminate smoke. Notably, Holdforth told the Committee that he had not increased his stoker’s standing salary despite achieving significant fuel savings (House of Commons 1845a, pp. 21–23).Footnote 19 The fact that Holdforth’s policy represented general practice is confirmed by a testimony by a solicitor from Leeds, who told the Committee that it was not uncommon for manufacturers in Leeds to dismiss stokers who allowed smoke to escape (House of Commons 1845a, p. 17). Further evidence supports the conclusion that in other places too, it was not unusual for proprietors to fire stokers who were found to be careless in their efforts to abate smoke – even if this was said to do little to address the problem, with the next stoker often being as careless as the previous one. An 1856 article in the Manchester Guardian reports an owner of a mill complaining to the magistrates about the difficulties of compelling his men to work diligently: ‘after discharging a stoker for making smoke, [we] got a worse in his place’ (The Manchester Guardian 1856, p. 4). The same complaint can be found in a letter to the editor of the Manchester Guardian from 1880, in which a foreman writes, after explaining the difficulties of compelling stokers to abate smoke (The Manchester Guardian 1880, p. 9):
‘It may be asked, why keep these careless men? Well, in my case I have rarely come in contact with more than two sorts of stokers – bad, and very bad – and if I discharge a bad one today I may get a very bad one tomorrow.’
This aligns with the evidence collected by the Select Committee in the mid-1840s from Leeds about the widespread nature of the practice of dismissing negligent stokers.
Some employers opted for measures short of dismissal. The most common was the requirement that stokers indemnify them for the consequences of careless stoking. As one Manchester foreman explained (The Manchester Guardian 1880, p. 9):
‘I have posted a printed notice at each fire … stating that the men in charge of these at the time the offence is committed will have to pay pro rata any fine which the authorities may impose … I fully hope in the working of my scheme the extraction of a few half-crowns will have the effect of making my men very alert and watchful.’
An article in the Observer from 1854 reflecting on the one-year anniversary of the passing of the London Smoke Act makes clear that the practice of fining stokers who failed to abate smoke was widespread (The Observer 1854, p. 5):
‘In several large factories the plan has been adopted with great success of making the stoker personally responsible for the consumption of smoke. The stoker is allowed so much extra per week when there is no complaint of smoke, and fined when any is apparent. By this method it is his interest to be very careful in the management of his fire.’
Importantly, indemnification was a reflection of the master’s autocratic power in the workplace rather than legal right. Indeed, as one commentator has pointed out, there are no reported cases from the nineteenth century of a master suing his servant for an indemnity (Jolowicz Reference Jolowicz1956, p. 102). But rather than evidence that servants in Victorian Britain did not indemnify their masters, this is better understood as showing that the payment of indemnities by servants to their masters was generally governed by power dynamics within the employment relationship, outside of the formal legal framework. As Marx wrote, ‘in the factory code, the capitalist formulates his autocratic power over his workers like a private legislator, and purely as an emanation of his own will’ (Reference Marx1990 [Reference Marx1867], pp. 549–50).
The minutes of the 1845 Select Committee on smoke pollution indicate that this was not always a smooth process. Darnton Lupton, the mayor of Leeds, suggested empowering courts to make orders about the payment of indemnities in cases where a master was found to be liable for smoke pollution because of his stoker’s carelessness, arguing that this would relieve ‘the master of the odium of turning off the man’ (House of Commons 1845a, p. 33). Interestingly, the suggestion to formalise the payment of indemnities was taken on board by the reformers. An amended Bill to regulate industrial smoke pollution included a provision under which employers could avoid liability for smoke pollution by showing negligence of another person (House of Commons 1845b, pp. 4–5):
‘If any occupier … upon being convicted of any offence against this Act, shall pay the penalty and costs which may be awarded against him, and shall charge that the said offence was committed through the negligence or wilful misconduct of any other person, it shall be lawful for any Justice of the Peace … to summon such other person … and if the said occupier shall satisfactorily prove that the said offence was wholly or in part caused by the negligence or wilful misconduct of such other person, the Justices … shall order the whole, or such part as they shall think fit, of the penalty and costs, which have been adjudged to be paid by the said occupier, to be reimbursed to him by such other person.’
That this provision was aimed (at least in part) at stokers is evident towards the end of the provision, which provides that:
‘If at the time of any such order being made … such other person be in the receipt of or entitled to receive any wages from such occupier … it shall be lawful for the said last-mentioned Justices to authorize such occupier to deduct the money so ordered to be reimbursed to him … out of the wages.’
While the attempt to formalise the system of indemnification did not come to fruition in the end, this did little to stop manufacturers and their foremen from exercising their power to demand compensation from their negligent stokers outside of the formal legal process.
5 The role of class conflict in the slow progress of Victorian efforts to abate smoke
In his study of the English criminal justice system in the late eighteenth and early nineteenth centuries, legal historian Peter King wrote (Reference King2006, p. 2):
‘[T]he processes through which legislation was produced have proved very hard to unravel. While the wording of the statutes themselves is easily accessible, it is often very difficult to understand the balance of forces that resulted in their being passed or the intentions of those who initiated them. Each act of parliament has its own history and its own complicated relationship to practice on the ground. However, by focusing a lot of their attention on the major courts, and by sometimes giving legislative activity rather too central a role in their accounts of reform, historians may have underestimated the importance of local rather than central initiatives within the balance of interactions which determined the nature of justice in this period.’
Something similar could be said of Victorian smoke pollution regulation. It is not clear whether it was the intention of parliamentary reformers to create legislation whose burden would fall disproportionately on stokers, although this cannot be ruled out (and many of those involved no doubt had precisely this aim). What is more likely, however, is that the question of who should bear the costs of the regulation was either not fully thought through or received different responses, as a result of which the answer to it was only worked out on the ground in the course of enforcement.
If the text of most Victorian smoke pollution regulations was somewhat ambiguous as to the allocation of costs and liability and allowed for different interpretations, the institutional context helped secure in most cases an interpretation favourable to manufacturers. This can be explained with reference to the structure of the administration of local justice at petty sessions, which was biased toward the interests of industrialists. Starting in the 1820s, and accelerating as a result of municipal reform in the 1830s and 1840s, industrialists and their allies began to populate borough courts, putting themselves in a position to ensure that laws were interpreted and enforced in their favour (Hay Reference Hay, Hay and Craven2004, p. 107). In fact, this was so evident that ‘working-class advocates and activists throughout the period complained, sometimes bitterly, of the partiality of borough courts’ (Steinberg Reference Steinberg2016, p. 40). It is unsurprising that urban magistrates interpreted smoke regulations in such a way as to broaden the range of cases in which stokers could be held personally liable for smoke pollution.
Throughout the nineteenth century, the relationship between stokers and their superiors was characterised by deep mistrust and even fear, with efforts to remedy this situation ending in failure. Stokers were regarded by their masters as incompetent and lazy. As one foreman put it in 1880, ‘there is not a fireman in Manchester at this moment who does not know how to prevent smoke with a little trouble to himself’ (The Manchester Guardian 1880, p. 9). And yet, getting stokers to apply themselves to this task was almost impossible: ‘The most rigid personal supervision was quite unequal to keeping smoke down. The occasional detection of one offender, and the imposition of a small fine, was totally useless.’ (The Manchester Guardian 1880, p. 9) In 1898, a Lancashire smoke inspector is said to have complained that ‘these men [stokers] are sometimes very hard worked, and in such cases take but little interest in the prevention of smoke’ (Mosley Reference Mosley2001, p. 154).
The tragedy of the situation is perhaps best illustrated by an episode from the final decade of the nineteenth century. When in 1894 the Manchester and Salford Noxious Vapours Abatement Association suggested training stokers to improve the salary and status of this thankless job while at the same time helping reduce manufacturers’ fuel bills, the directors of the Manchester Chamber of Commerce unequivocally rejected this idea, fearing that organising and upskilling stokers would ‘create difficulties in the management of works’ (Mosley Reference Mosley2001, p. 155). The directors took this position despite it being widely known by then that ‘it pays to educate firemen in the most economical methods, and to encourage them by paying adequate salaries’ (Bryan Reference Bryan1900, p. 21). However, it was a chronic fear of organised workers rather than any utilitarian calculation that seems to have guided the decisions of British manufacturers. In sum, the reason why smoke abatement throughout the century remained slow was not because methods for eliminating smoke and achieving fuel savings did not exist but rather because the social context made it almost impossible for the interests of manufacturers and stokers to align in such a way as to turn this technological potential into reality.
6 Conclusion
This article has argued that an important reason why Victorian regulation of smoke pollution failed was because of the contradictory relationship between furnace technology and capitalist relations of production. Successful abatement of smoke in the nineteenth century depended on the stoker’s diligence. However, industrial relations during this period were characterised by class conflict in general and extreme mistrust between stokers and their masters in particular, with the latter seeing the former as lazy and incompetent. Although Victorian manufacturers showed considerable interest in the abatement of smoke, primarily because of the fuel savings it was associated with, their efforts to compel stokers to work diligently comprised primarily coercion rather than a search for a mutually beneficial compromise. Law played an important role in trying to coerce stokers into diligent work, with stokers often held personally liable for industrial smoke pollution. Moreover, even when smoke inspectors brought claims directly against manufacturers, these often resulted in the indicted employer demanding an indemnity from his stoker. The result was the exacerbation of tensions between stokers and their masters which did little to get stokers on board with the goal of abating smoke. Overall, the contention of this article is that the history of Victorian efforts to regulate the emission of smoke can only be understood by centring the relationship between law, technology and social relations.
Admittedly, the findings of the present investigation need to be qualified in light of the high number of prosecutions for smoke pollution carried out during the nineteenth century under various local and national laws. According to one study, as many as 147 prosecutions were brought in the first eight months after the passage of the London Smoke Act (Ashby and Anderson Reference Ashby and Anderson1981, p. 18). While the London Smoke Act was famously enforced exceptionally vigorously, this still gives an idea of the scale of primary source-material that is potentially available for future research. Moreover, because the prosecutions took place at petty sessions, an exhaustive record is only available in local archives. While the evidence examined in this article shows that existing literature has missed the extent to which stokers bore the costs of enforcement in this area of law, the findings of the present investigation could be tested and refined through an examination of a more comprehensive dataset. Such a dataset could only be developed based on more extensive archival research.
The findings of the present investigation in the context of smoke pollution regulation could also be compared with adjacent regulatory frameworks, such as the Alkali Acts or the Rivers Pollution Prevention Act. In the case of the Alkali Acts, several points of comparison can be identified by way of preliminary observation. Notably, in the Alkali Acts context, we also find evidence of pervasive complaints by chemical manufacturers about the difficulties of reducing the emissions of noxious vapours in line with statutory requirements because of the carelessness of their employees (House of Lords 1862, pp. 29, 85). Moreover, as in the context of coal smoke, these complaints seem to have been reflected in law. For example, Section 5 of the Alkali Act 1863 allowed a manufacturer indicted under the Act to
‘Prove … that he has used due Diligence to comply with and to enforce the Execution of this Act, and that the Offence in question was committed by some Agent, Servant, or Workman … in which Case such Agent, Servant or Workman shall be liable.’Footnote 20
Moreover, under Section 13 the Act empowered:
‘The Owner of any Alkali Work [to] make, alter, or repeal Special Rules for the Guidance of such of his Workmen as are employed in any Process causing the Evolution of Muriatic Acid Gas, or whose Duty it is to attend to the Apparatus used in the Condensation of that Gas, and may annex: Penalties to any Violation of such Rules, so that no Penalty exceeds Two Pounds for any One Offence.’
And, as the Royal Commission on Noxious Vapours would discover, the practice of fining workmen who allowed noxious gases to escape was not at all uncommon (1878, p. 35).
The comparison of the present investigation with the Alkali Acts invites further investigation into the history of vicarious liability, in particular the question of how liability for both statutory and common law environmental nuisances was distributed, both under the letter of the law and also through more informal indemnity schemes that may have existed (as we saw in the context of smoke pollution). It is notable, for example, that when Section 5 of the Alkali Act 1863 was debated in the House of Lords, it was defended by Lord Stanley of Alderley (Reference Stanley1863) on the basis that it ‘followed the analogy of the Factory Act, which exempted masters under similar circumstances’. In response, Lord Chelmsford (Reference Chelmsford1863), one of the critics of the clause, said that he was ‘surprised to hear of the existence of such a clause in the Factory Act, for it was a plain violation of the principle of law, that a master was civilly liable for the actions of his servants’. This exchange points to widely divergent views about the state of the law on vicarious liability and its underlying justification even during the nineteenth century – an observation which is borne out in the investigation above, particularly in the context of the muted reception of the principles underpinning the decision in Stephens in the case law on smoke pollution. Future research could explore how debates about the allocation of liability in the context of the Industrial Revolution intertwined with class conflict and ideas about social justice.
Competing interests
None.
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