Recovering and Reporting Australia's Early Colonial Case Law: The Macquarie Project

BRUCE KERCHER

When it was established in 1788, New South Wales became the most remote, and most peculiar, of the British empire's overseas colonies. The founding colony of what would eventually become Australia, it was established as a penal colony, a place to send the unwanted criminals of Britain and Ireland. Britain lost more than the majority of its North American possessions in the late eighteenth century. It also lost its principal repository for unwanted felons. New South Wales filled the gap.	1
The amateur justice that was so common in the frontier courts of new colonies had a military tone in early New South Wales. Its first judges bore the title judge advocate, and officers in full uniform sat as jurors in major criminal cases. Some of this military character disappeared when a permanent Supreme Court was established in 1823, along with a legislature and familiar officials such as an attorney general and a solicitor general. The new court was constituted by professional judges, some with experience in other colonies in the Americas or Africa. It was still a penal colony however, with military officers playing the role of governor.	2
In April 1836, the three judges of the Supreme Court of New South Wales decided that the court had power to try a murder case in which both the victim and the defendant were Aborigines. 1 This famous decision, R. v. Murrell (1836) 1 Legge 72, is still cited as authority for the proposition that the Australian common law courts have jurisdiction over Aborigines. There is no such thing as Aboriginal law or sovereignty, the court held. Only one body of law exists in Australia, that derived from the laws of England.	3
Modern lawyers assume that the law report version of Murrell is accurate and complete. In fact, the report was published sixty years after the decision was made. Its editor, Gordon Legge, based his report on a newspaper account of the decision, but failed to check it against the judges' manuscript versions of the decision. The newspaper, and thus the law report, omitted two crucial points, which are both in a surviving manuscript written by the leading judge, Burton J. First, the manuscript shows that this decision was the first unambiguous statement that Australia was subject to the doctrine of terra nullius, that it was a land without owners and a land without sovereigns at the time the British first began to occupy the country in 1788. Burton thought that the indigenous people were too primitive to have laws or sovereignty. Second, however, Burton held that Aborigines were not British subjects: they could become subjects if they chose to do so, but until then they were independent peoples, albeit aliens without laws of their own. These ambiguous aliens were entitled to the protection of English laws and subject to it. 2 The widely held assumption that Murrell is support for the proposition that Aborigines were automatically British subjects from 1788 onwards is wrong.	4
Questions concerning the indigenous peoples of Australia are among the most important legal and political issues facing the country at the end of the twentieth century, yet the foundation documents on the point are inadequately reported or simply missing from the formal law reports. In 1827, 1829, and 1841, the New South Wales Supreme Court faced these issues and made serious, considered judgments. None of these decisions is at all well known. Each of them has been recently published in accessible form for the first time. 3 Until they are absorbed into the canon of Australian law, we will continue to fail to appreciate the complex subtleties of the relationship between European and indigenous versions of law.	5
These errors and misunderstandings are caused by the great paucity of law reporting in colonial Australia. At the end of the nineteenth century, Gordon Legge recognized the need for better reporting and compiled his two volume set of reports of New South Wales cases going back to 1830. In this, the oldest and largest Australian colony, there were no continuous law reports until the commencement of the thirteen volume series called Reports of Cases Argued and Determined in the Supreme Court of New South Wales, covering cases decided between 1863 and 1879. Like Legge's retrospective reports, this series was based on newspaper accounts. It also included a few cases before 1863. Apart from a volume published in 1846, 4 contemporary law reporting as we now know it did not begin until the New South Wales Law Reports commenced in 1879. Very few cases decided before 1863 have ever been reported, and, as Legge's report of Murrell shows, even those were sometimes incomplete accounts of what the judges said in court. Legge's oldest case, dated 1830, is the oldest formally reported legal decision in Australia. Yet it is six years after the establishment of the permanent New South Wales Supreme Court and over forty years after the colony's first trials were held in 1788. The first chief justice of New South Wales, Francis Forbes, occupied the bench from 1824 until 1836, but Legge included only seven of his decisions. His court made thousands of decisions in this legally fertile period, and very few have reached the reports.	6
This does not mean that records of these decisions have been lost to us. In the 1820s and 1830s, three major Sydney newspapers devoted a large proportion of their columns to law reporting. The colony's most exciting stories were told in these reports. It was a time of convict murders, piracy, escapes from notorious places like Norfolk Island, violent conflict with Aborigines, and attacks by bushrangers. (In this period, bushrangers were escaped convicts who lived rough and preyed on isolated roads and farms.) The newspapers' law reports were sometimes dull, worthy records of judgments but more often they included the racy material that tabloids still report. There are many thousands of these reports in the old newspapers and thousands more in the judges' notebooks. Forbes presumably kept notebooks in Sydney (as he had as chief justice in Newfoundland), 5 but they have been lost. The records of his successor as chief justice, Dowling, more than make up for this loss. Over 250 of his notebooks survive in the State Records of New South Wales.	7
In order to make this mass of fascinating material accessible, a team at Macquarie University in Sydney has been working for the last four years to publish much of it on the Web. Inspired by the Selden Society's publications, we have been collecting, selecting, editing, and commenting on these materials with the aim of making them available to other researchers. When we choose to report a particular version of a case, we aim to reproduce the original in full and to repeat all of its idiosyncrasies of spelling and grammar. Once we choose to reproduce one or more versions of a case, we also give references to all other surviving versions, cross-link it to similar cases, and write sometimes extensive notes to it, based largely on other source materials such as the judges' private correspondence. By the middle of 2000, we will have completed the period from 1824 until the end of 1838, which is part way into the time in office of the second chief justice. 6 At that time, we will have published about fifteen hundred cases, which average about fifteen hundred words each; we select and publish about one hundred cases for each historical year. Only about 10 percent of these cases include formal judgments. The rest concentrate on minutes of evidence. This material is designed to appeal to a variety of readers, including legal historians, legal academics and students, general historians, and genealogists.	8
This is a painstaking and time-consuming project. We have spent about $US100,000 on these thirteen years of materials, mainly on teaching relief, typing, research assistance, and photocopying costs. Our first major grant, by the Australian Research Council, a federal government agency, has just run out. In the relative absence of a philanthropic tradition in Australia, our next step will be to apply to the legal profession, the courts, and the state government for further funding.	9
We do not publish every account of every case that we come across. If we did, the project would make little chronological progress, and our funding submissions would be even more difficult to write. We must be selective, both as to the cases to report and the versions to include. In any historical year, there may have been over one thousand decisions reported in the notebooks and newspapers, and up to five or six versions of each decision. When we commenced the project, we decided on the following criteria for selection. First, we include all cases in which more than trivial points of law are at issue. Second, we choose all cases involving well-known people. This does not mean just the elite, because the collection includes cases concerning Afro-Americans like Billy Blue, for example. 7 Third, we include at least one of each kind of case we come across. This means that there is at least one case on criminal conversation, for instance. 8 Thus the selection is not typical of the decided cases but is instead representative of the range. Fourth, we select all cases that are of present day social, political, or historical interest, such as those concerning Aborigines. We have made a very deliberate decision that the body of records to be published should be as useful to historians as it is to practicing lawyers. We also want the results to be useful over a very long period, which means that we must try to anticipate what might be of interest in the future.	10
The process of selection and editing is, of course, based on our turn-of-the-century views of what is significant. Even though we always err on the side of inclusion rather than exclusion, we cannot always anticipate what might be interesting to readers who might want to use our materials in 2030 or later. An important, but very expensive and as yet incomplete, part of the project is the construction of a database of every case record we find, classified by reference to the cause of action. We are also keeping photocopies of every newspaper case record, which will be archived once the project is complete.	11
Our own reporting is actually the second stage of selection. There were also prior selections and editorial decisions by those who compiled the original sources. The newspaper editors tended to emphasize criminal trials and defamation actions against themselves and their fellow editors. In the absence of public sessions in the legislature, the courts were the site of the great political debates of the period. The struggle for such institutions as trial by jury reflected the major political division in the colony, between emancipated convicts and those whose purity had never been touched by criminality. These issues often had a legal dimension, both in the composition of the courts and in actions for sedition and criminal libel. In reporting these cases, newspapers under-represented the dominance of debt recovery in litigation.	12
We are also aware that there is no such thing as an objective record of what was said and done in court. Even the judges' notes were kept for their own purposes and were selective accounts of court activities. Although the newspapers brought their political views to bear in their selection of cases to report, there is less reason to be concerned in the contents of their law reports. They were rightly proud of the editorial independence of their law reporters, some of whom took shorthand. Editorial bias did occasionally affect the way a case was reported, however. We sometimes choose to publish more than one account of a case, to emphasize a variation in viewpoints. This does not mean that all reports are subjective. On many occasions we can be sure that the report we have reflects what the judges intended to say in their judgments. They occasionally handed down written judgments that were reported in more than one newspaper. At other times they sent copies of newspaper accounts of judgments back to England with the note that they were accurate. We are also comforted by the fact that the newspapers occasionally published corrections of their reports and that in some cases the judges' notebooks confirm the reports.	13
The intellectual basis of our project is a concern with the contested nature of colonial law and the way it extends to law reporting. New South Wales was, in legal theory, a settled colony. It supposedly received all of the laws of England that were applicable to its circumstances, 9 and its first legislature was prohibited from passing laws that were repugnant to the received laws. Our aim is to question this assumption that all laws trickled down from above, with only minor, compatible variations in the colonies. Some judges, such as Burton J, applied this imperial theory in a strict fashion. He declared in his notes to Murrell that the so-called laws of Aborigines were not laws at all but were merely "consistent with a state of the grossest darkness & irrational superstition." 10 He had only slightly more regard for the legal practices of those who had preceded him on the bench of New South Wales. His chief justice, Forbes, was much more willing to adapt English law to local circumstances or to hold that it was inapplicable to the case at hand. Even within the judiciary, then, there were conflicts about the nature of law in the British empire, whether it was unitary or pluralist. We are also interested in other views about legality, including those of the Aborigines of course, but also those of the litigants and supposedly passive recipients of the glories of English law. Some of our selections are made with these contests in mind. Even in a convict colony with a military governor, there was evidence of resistance to official, imperial law. Irish and Quebecois convicts, for instance, were not necessarily satisfied with English law.	14
Our belief that every colony received law in its own way has led us to the next stage of the project. We have just received pilot funding for a parallel website on the decisions of the supreme court of Van Diemen's Land (later Tasmania). Van Diemen's Land was at first part of the colony of New South Wales, but in 1824 it received its own supreme court and legislative council under the same legislation as that of New South Wales. Both were penal colonies, but in one the first fully professional court was established by Francis Forbes, a liberal with a background in the West Indies and Newfoundland. The Van Diemen's Land supreme court was established by a man of quite different character, John Pedder. His portrait in the supreme court building in Hobart shows him to be a worried, apparently defensive young man. He was in office for thirty years, in the first nine years of which he was alone on the bench. He just saw out the end of convict transportation to his beautiful island colony. There is more to the practical and legal reception of English law than the characters of their primary judges, of course. Our aim is to provide a sufficient body of case law to allow comparisons between these two oldest Australian colonies. Ideally, we would do the same for other parts of the British empire, both before and after the American revolution. One collective aim is to provide the basis of a comparative, pluralist history of judge-made law in the empire, one that would look inwards and across from one part of the periphery to another, rather than merely outwards from London.	15
Our online project has many aims, including an expansion of the canon of received case law in Australia. We want to put that in a context of conflict over the meaning and contents of formal and informal law, as part of patterns of acceptance and resistance to imperial law. These are lofty aims, but they are not the only reason that we keep at this detailed work for year after year. The newspaper editors were right: these cases include some terrific stories. Among the first of the Van Diemen's Land cases we plan to publish is the trial of Alexander Pearce. He twice escaped from the brutal Macquarie Harbour with fellow convicts, whom he killed and ate as he ran out of food. 11 There is more to law reporting than legal doctrine.	16
Bruce Kercher is a professor of law at Macquarie University, Australia. Notes       1. See R. v. Wedge (1976) 1 New South Wales Law Reports 581 at 584; Wik Peoples v. State of Queensland (1996) 187 CLR at 181.
2. The manuscript version of the judgment was recently published in (1998) 3 Australian Indigenous Law Reporter 414.
3. See R. v. Lowe, 1827 (published at www.law.mq.edu.au/scnsw); R. v. Ballard, 1829 (published at the same location and in [1998] 3 Australian Indigenous Law Reporter 412; R. v. Bonjon, 1841 [1998] 3 Australian Indigenous Law Reporter 417).
4. Reserved and Equity Judgments of the Supreme Court of New South Wales, Delivered during the Year 1845. See A. C. Castles, Annotated Bibliography of Printed Materials on Australian Law, 1788-1900 (Sydney: Law Book Co., 1994).
5. See Sir Francis Forbes, Decisions of the Supreme Court of Judicature in Cases Connected with the Trade and Fisheries of Newfoundland, 1817-1821 (New South Wales: Mitchell Library), A 740; see also Bruce Kercher, "Law Reports in a Non-Colony and a Penal Colony," Dalhousie Law Review 19 (1996): 417-24.
6. The material is published at three locations. The Macquarie University site (www.law.mq.edu.au/scnsw) has a very detailed subject index to the cases. The Butterworths site is at online.butterworths.com.au. Both it and the Austlii site (www.austlii.edu.au/au/special/nswsc/pre1900) include a full text search facility.
7. See R. V. Blue, 1824.
8. Hart v. Bowman, 1828.
9. From 1828, this was in statutory form: (1828) 9 Geo. 4 c. 83, s. 24.
10. Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161 at 239.
11. His story was recently retold in W. Hirst, Great Escapes by Convicts in Colonial Australia (Kangaroo Press, 1999), chapter 2.

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