Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 55-73 3 Juristic Wisdom in Solomon’s Theatre

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Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 55-73

3 Juristic Wisdom in Solomon’s Theatre
. . . [T] people came streaming out looking flushed and hot . . . Still they were all exceedingly amused, and were more like people coming out from a farce or a juggler than from a court of justice.

Charles Dickens, Bleak House, 1853.
The working of the law in South Australia from 1837 to 1850 was often very much a hit and miss affair. Because it was a ‘free’ colony without convicts the ordering of legal affairs was left basically to the governors and the colonial legislatures, subject to the usual veto of the British authorities. But no effective planning took place on the running of the legal system, before Hindmarsh arrived in the colony. The colony’s financial disarray affected the courts as drastically as the governmental system generally, helping to keep them in a makeshift condition until a better economy led to improvements in 1849. In the early years, this situation was exacerbated by the artful meandering of a debt-ridden judge and the absurdities foisted on the colony by an amiable, humane lawyer whose personal eccentricities and other characteristics turned some important legal proceedings into palpable farce. The courts, too, had no permanent locations until the second half of the century. For seven years and more, the most important tribunal in the colony, the Supreme Court, carried on its business cheek by jowl with other government activities on what had been the stage of the colony’s first major theatre in a small side street in Adelaide called Gilles Arcade. A tavern in the building served its libations to the passing legal trade while members of an older profession who lived and worked nearby openly sought their sexual encounters in the vicinity.
It was not a strong beginning. But through all this some patterns began to emerge in the working of the legal system which were to survive for the remainder of the nineteenth century and sometimes well beyond. The supreme court established by the council of government in 1837 found a permanent place in the judicial hierarchy and is still the main centre of court authority within South Australia. From the outset, the colony’s legal system placed strong reliance on the services of justices of the peace to regulate many legal affairs and, although the use of these office holders has declined in significance in the twentieth century, they still play an important role in the administration of justice. Other features of legal activities which still operate in South Australia can also be traced directly to developments in the colony in its first years. The legal profession evolved with no strict division between barristers and solicitors, compared to England, largely due to the condition of the colony in this [56] period. The office of Coroner still plays an important role in the investigation of unexplained deaths and other matters, as it did from the earliest years of European settlement. As much as anything, habits of mind and attitude, based mostly on English legal traditions, quickly took root in the legal ordering of the colony’s affairs, with strong consequences from this sometimes flowing into the second half of the twentieth century.
Reliance on English models as one basis for the establishment and working of the colonial courts was facilitated significantly by the manner the British authorities treated the nature of the European settlement in South Australia. Because the region was regarded as empty territory with no pre-existing legal system, it was assumed as a matter of course that a range of British law could be operative in the colony without any further action by the British parliament or the colonial legislature. This included statutes passed by the British parliament from its earliest years in the fourteenth century, provided these were not just concerned with the internal regulation of British affairs. This body of statute law was taken to encompass not only statutes dealing with criminal offences, the regulation of private contracts and other matters like this, but extended also to some enactments which ordered the exercise of official authority by office holders like justices of the peace. There was clear acceptance, too, that principles of law which had been developed by English judges for seven centuries and more might also be used in the colony. These principles described collectively as the common law, also dealt with many legal matters including the nature of criminal offences, the making of contractual arrangements, and the regulation of commercial activities. These remained in force provided they had not been superseded or altered by the British parliament. In the colonial situation, these principles of the common law and the British statutes regarded as suitable for application in newly settled British territories could be treated as being in force, provided local courts were established with appropriate powers to apply them.
The immediate acceptance and use of British law along these lines became apparent in the first weeks of official European settlement in the colony. Without any special fanfare the first legal proceedings took place at the temporary seat of government at Glenelg. The hub of the colonial administration for the time being was a large tent with a rush hut alongside which had been erected for the colonial secretary, Robert Gouger. Pitched in the shade of a clump of gum trees, the tent was the place where Hindmarsh formally swore his oaths of office. Two days later the governor convened the council of government there when the first two legislative enactments for the colony were passed. On this same [57] occasion, the council also appointed several colonists, including Gouger, to be justices of the peace, or magistrates, as these office holders were still generally called at the time. As a matter of course, it was assumed that without any other special arrangements these new appointees could exercise the powers and functions which justices customarily used in England, including the conduct of judicial proceedings. These appointments carried with them the understanding, too, that the newly appointed justices would be able to rely on many of the self-same laws their counterparts used in England to carry out their official functions.
As Gouger related it in his diary, on 7 January 1837, just before his desperately ailing wife was transferred to his tent from the nearby hut, he used the tent in his capacity as a magistrate ‘to decide the first case which has arisen in the colony’. The matter involved a private dispute between two colonists. With tantalising brevity, the colonial secretary recorded simply that the plaintiff had lost and was required to pay the costs of the other party. A few days later, after official business had been transferred to the rush hut, Gouger once more assumed the role of a legal functionary. This time he dealt with two disputes between employers and their servants under the terms of the third enactment of the council of government which had been passed on 2 January. In his diary, the colonial secretary congratulated himself on the outcome, noting that the colonial Act he had helped to pass promised to be a ‘most useful law’ and ‘highly popular in the colony’.
The mix of British and colonial law which Gouger used to put the law into operation on these two occasions was soon a commonplace in the ordering of the colony’s legal affairs. As elsewhere in places occupied by British settlers, there was a ready acceptance of laws and practices of the mother country as one of the mainstays for the regulation of local affairs. From time to time, local conditions, special problems, might help to dictate that local lawmaking should be used to modify or even change the situation. But it was generally less complicated and well in accord with the sentiments of colonial societies like this that familiar legal standards should regulate their activities. When doubts arose on the application of British law, these were sometimes expressly incorporated into local law by the colonial legislature. Reliance on British laws like this was ordinarily to be accepted as a normal feature of colonial life, no different from the way European trees were soon flourishing around local dwellings designed on British lines and the place names from ‘home’ were being used to describe towns and other places. For many, the colony was essentially no more than an extension of the mother country. It was a place where things they knew and understood, including British law, would be transplanted to their new environment as best the local [58] circumstances would allow. South Australia, too, like the other British colonies in Australia, would aspire to be a ‘New Britannia in another world’, as William Charles Wentworth, Australia’s first, great, European patriot, had succinctly set out his hopes for his native country in 1823.
This situation was re-inforced strongly when the person designated to be the most important legal functionary in the colony deigned finally to grace South Australia with his presence on 21 April 1837. While no firm plans had been set for the colony’s legal system before Hindmarsh’s departure, a legally trained judge, Sir John Jeffcott, had been appointed to be chiefly responsible for the most important features of the administration of justice. It also seems to have been assumed that his appointment to the council of government would enable his legal expertise to guide the first governor on the way the legal system should be arranged. Jeffcott had other plans, however, not least to avoid a bevy of pressing creditors, which helped to delay his arrival in the colony. He had actually sailed for Australia on 3 September 1836, but his first destination was Van Diemen’s Land, where he arrived on 1 January 1837. His departure from Britain had been cloaked in secrecy and his selection of a ship which was not sailing to South Australia helped to keep his more avid creditors at bay. He was rowed out at night to the departing vessel. No regular arrangements had been made for his accommodation. During the long and often tedious voyage he seems to have slept as best he could on a sofa in the ship’s saloon.
The judge was a hot-headed, protestant Irishman whose most important claim to public acknowledgement was his indictment for committing murder while holding the position of Chief Justice of Sierra Leone. This appointment was hardly a jewel in the crown of empire, but Jeffcott had tried to make the most of it, hoping no doubt for his preferment into a more congenial situation, if this could be arranged. His devil-may-care approach to life, however, despite the rapid approach of middle age, had almost extinguished his legal career three years before it was resurrected with the help of powerful friends by his being given the appointment to go to South Australia. Like others of his ilk, Jeffcott seemed to have coveted the possibility that a favourable marriage, preferably to a lady of means with a bountiful dowry, would be the safest and surest way of guaranteeing his future well-being. It seems to have been with this particularly in mind that he was visiting England’s west country before he returned to Sierra Leone after a period of leave. But there he found himself embroiled in an ‘affair of honour’ with another Irishman in a dispute over Jeffcott’s truthfulness in his dealings with the man he hoped to be his future father-in-law. The two men fought a duel on Exeter racecourse and Jeffcott’s adversary was fatally wounded. [59] The judge fled back to West Africa from the scene of his altercation where he virtually went into exile for a period, beyond the reach of British authority. He was removed from his official position and meanwhile preparations were made to have him charged with murder when he could be found. By the double standards of the day, however, as Jeffcott knew, ‘gentlemanly’ affairs like this might be treated with leniency by the authorities, while ‘lesser’ mortals could be transported in chains to Van Diemen’s Land or elsewhere for relatively minor crimes. With the help of a lawyer brother and Irish politicians with the ear of high officials in London, he finally made his way back to Britain knowing that unless luck was seriously against him he would soon be freed of any legal blame for what had happened in the duel. He returned to the west country, his marriage plans long since in tatters, where he was formally indicted for murder. The influence-peddling of his friends and relations, however, helped to ensure that he would be relieved of any legal responsibility for what he had done. No evidence of the crime was presented against him and he was immediately set free.
Much like the battle of Waterloo, as the Duke of Wellington was supposed to have described it, Jeffcott’s brush with the law as a ‘near run thing’. But it seems to have done little, if anything, to improve his sense of responsibility as he approached the task of being a key figure in the administration of justice in South Australia. The colony was beginning to need his legal services urgently. Legislation was delayed in the council of government to await his arrival. There were serious criminal offences to be tried and other legal matters which required his attention. This was particularly so as Hindmarsh had developed a strong enmity for Charles Mann, the Advocate-General, who had been appointed to this position as the chief law officer in his administration. Jeffcott could have reached South Australia much earlier. He excused his delay on the pretext of consulting with legal officials in Van Diemen’s Land. But most of his time was actually spent at the family home of a distant relation, William Kermode, who had prospered well in the island colony. Soon, Jeffcott’s glib tongue and gentlemanly ways promised to help improve his straitened, personal circumstances. Before he finally set out to take up his new post he was engaged to marry a daughter of the house and could look forward to financial assistance from his prospective father-in-law to help ease the path of matrimony.
On his arrival in Adelaide, Jeffcott quickly ingratiated himself with the hard-pressed governor, siding with him against Fisher and others, like Mann, who had given their allegiance to the resident colonisation commissioner. There was urgent legal business to be discharged but the judge also had other matters which required his attention. He helped [60] with naming the streets of Adelaide and was rewarded when Jeffcott Street in North Adelaide was named for him while O’Connell Street nearby commemorated the powerful Irish family which had given him support in his years of direst tribulation. The judge’s kin in Van Diemen’s Land were also found sufficiently noteworthy to have Kermode Street named for them in the same neighbourhood. There was, however, a group of prisoners incarcerated on the vessel Buffalo at Holdfast Bay who needed to be tried for a series of alleged criminal offences. In the judge’s daily round in his first weeks in the colony, however, there seemed little time between naming streets and supporting Hindmarsh in his squabbles with other colonists to set up a regular court to do this. Instead, in early May, without any legislation being passed, a special commission was issued to Jeffcott by the council of government to try the claimed offenders in a manner based on English practice.
On 13 May, four-and-a-half months after reaching Australia, Jeffcott finally took on the chief role ascribed for him in the ordering of the colony’s affairs. For three days he conducted a series of criminal trials in the borrowed office of the resident commissioner. It was clear from the outset just how easily and naturally it was readily assumed that English law and its practices were regarded as operating in the colony. There were no wigs and gowns but the judge helped to make up for this with a spirited address which declaimed in the flowery rhetoric of the day on the virtues of the English legal system which Jeffcott now affirmed was to provide a basic foundation for regulating the colony’s affairs. With patriotic fervour he extolled the ‘inviolate Island of the brave and the free’ and its system of jury trial in particular which he indicated to the assembly was now to be solemnly entrenched in the working of the law in South Australia. His remarks were especially addressed to Colonel Light, and other ‘gentlemen’, who he noted with a touch of flattery compared favourably ‘with those of a similar class in the mother country’. As in England, Light and others had been empanelled as a grand jury with the surveyor elected as its foreman, and Jeffcott went on to tell the jury of its responsibilities in the legal process relating to the cases it was now being called upon to consider.
The proceedings as Jeffcott conducted them almost mirrored in their entirety the way English judges acted in similar circumstances. When the accused were placed on trial after indictment by the grand jury they were given no opportunity to give sworn evidence on their own behalf, a practice which was to remain enshrined in English and South Australian law for most of the remainder of the nineteenth century. The judge, however, did acknowledge the opportunity for accused persons to have the assistance of lawyers to help defend them, a right which had only [61] been fully recognised in English criminal proceedings in 1836. No appeals were to be permitted from the verdicts of guilty pronounced by petit juries, following the normal practice still adopted in the mother country. With one possible minor variation, the substance of the law which Jeffcott said applied to determine guilt or innocence was based squarely on the recognition that the principles of English criminal law automatically applied in the colony. Jeffcott had one special problem on this, however, which vexed him. In one instance he seemed to stretch the law to ensure that a ‘man of colour’, a ‘recent arrival’ from Van Diemen’s Land, as the judge described him, could be tried successfully for a more serious offence than might otherwise have been the case. The accused had been charged with burglary, stealing a watch and other personal effects from a dwelling house at night. The only trouble was that the victim’s residence was a tent and this did not fit neatly into the normally accepted definition of a dwelling house. Given the condition of the colony, however, Jeffcott finally advised there could be ‘no security of either life or property’ in the colony if tents and other forms of temporary accommodation were not regarded as dwelling houses, at least for the time being.
The use of English law and practices was rounded off in a striking fashion when the judge came to sentence those who had been convicted in these proceedings. The majority of the offenders were simply fined relatively small sums for their misdeeds. In the case of the ‘recent arrival’ from Van Diemen’s Land, however, his penalty on conviction was draconian and relied directly on the prevailing English practices for the punishment of more serious offences. For a century or more, the harsh, bewildering complexity of punishments meted out by British criminal law included transportation overseas, a form of involuntary exile regulated by statute, which could lead in many cases to years, even the remainder of a lifetime, spent in brutal, inhumane conditions. Even before Jeffcott arrived Hindmarsh assumed that the transportation of local offenders to the penal colonies to the east would be a normally accepted punishment in the colony. He had quickly issued an order which allowed this. Jeffcott now used this authorisation and the principles of British criminal law he took to be applicable to sentence the former ‘resident’ of Van Diemen’s Land to seven years transportation for burglary. It was a precedent which was soon to be well entrenched in the ordering of the colony’s legal affairs. Between 1837 and 1850, upwards of two hundred convicted of various offences in South Australian courts were given sentences of transportation, in some cases for the term of their natural life. In practice, after the abolition of British convict transportation to New South Wales in 1840, the offenders were sent to Van Diemen’s Land, until it too was barred from receiving convicts by the British government in 1852. [62] Meanwhile, transportees from South Australia were sent beyond the mind and conscience of the colony, in some cases finding themselves in that cesspool of inhumanity at Norfolk Island, which generally far exceeded in its brutality the treatment of convicts at places like Port Arthur in Van Diemen’s Land.
The use of English legal norms in South Australia along these lines was soon put on a more permanent foundation as the council of government moved with Jeffcott’s assistance in late May to pass new legislation on the administration of justice. The Supreme Court Act did more than simply establish a court under this title. It defined the powers and functions of the new court by reference to those used by a range of English courts on the clear assumption that their legal methodology and the laws they applied in the mother country would be similarly operative in South Australia, mostly without any further action being required by the local authorities. Essentially the supreme court was being directed to act as if the colony were an extension of England for legal purposes, a place where it could be assumed and expected that the colonists would be subjected to British laws and the English legal practices as a matter of course. The only major variation from this related to questions on the regulation of some family matters. It was firm British policy at the time that it was inappropriate for colonial courts to deal with matrimonial affairs. As a consequence, as elsewhere in Australia, the new court was precluded from dealing with these matters.
Although this Act seems to have been hastily drafted and later earned the strong criticism of a skilful lawyer, James Stephen Jr, the under-secretary for colonies in Whitehall, it was soon to have profound and lasting impact on the operation of legal affairs in South Australia. Traces of this original enactment may still be found in the legislation of the South Australian parliament which authorises and directs the working of the supreme court to the present day. The legislation helped to set firmly on English lines the tone and character of what was to be the most prestigious legal tribunal in the colony. But in the process it did considerably more than this by carrying with it the assumption that the detailed manner in which English courts carried on their business would also become entrenched within the colonial legal system. For the time being at least, the way the jurisdictions of English courts were used as the basis for the regulation of the court’s activities transplanted to South Australia some of the inherent weaknesses, and what were increasingly being exposed by legal thinkers as the archaic absurdities inherent in the working of English court. The English legal system at the time was no more than a euphemism for a collection of separated tribunals, each with its own traditions, practices and sources of law, which [63] sometimes overlapped and were at times in conflict with each other. There was a wilderness of complexity and accompanying technicality which often made a mockery of justice, as the novelist Charles Dickens and others exposed with devastating perception. The chief beneficiaries of all this were members of the legal profession and many lawyers understandably showed little real interest in or concern with changing the situation which lined their pockets in a manner which was too often out of all proportion to what was fairly needed to make the law work effectively. There were notable exceptions to this. But in South Australia, as in the mother country, the path of reform could be fraught with frustration once legal practices like those entrenched in the English legal system were transferred to the colony, as with the Act of council which established the supreme court.
There was, however, one important saving grace which helped to ameliorate some of the worst features of the English legal ‘system’ as it existed at the time. The Supreme Court Act transplanted the powers and functions of six of the main, separated English court elements into the structure of the new body. But it did this in a fashion which enabled a single court to carry out functions exercised separately by these English bodies. This meant that litigants were not forced to choose between different courts to proceed with some civil cases, nor would they need to activate more than one court before a matter could be resolved satisfactorily and completely, as was too often the case in the working of the law in England. It was an improvement but one which was not based on any deep philosophical intent to overcome patent defects in the operation of English law as it might be transplanted to South Australia. Rather, it was a recognition that in a colony with a small European population there was neither the funding nor the likelihood of sufficient litigation to require a more extensive system of courts along English lines, at least for the time being.
The Supreme Court Act also provided for another tribunal in the colony which was not so obviously based on English tradition. This was called the Court of Appeals. It was first constituted by the council of government, excluding the legal officials in the government administration who might be directly involved as lawyers in matters which could be brought to the tribunal. After 1838, when the judge in the colony ceased to be a member of the council, there was no provision for any person with legal expertise to be a member, a situation which was confirmed when the tribunal was reconstituted after the split in the functions of the council which occurred in 1842. In 1844, its membership was defined on what proved to be a long term basis, as the colony’s Executive Council, the governor and the top officials in the colonial administration.
[64]In 1846, Governor Robe acknowledged that the court was ‘not the most competent’ to expound the law. In essence it allowed appeals in non-criminal matters from the supreme court to government functionaries who were political office-holders. Nevertheless, although one newspaper in the colony in 1841 described the tribunal as a ‘positive farce’ it was not quite the aberration from English practice which this comment seemed to imply. The notion that the exposition of the law was the prerogative of the legally-trained, or even courts, had no firm acknowledgement in English legal tradition at the higher levels of appellate proceedings. It was not until the mid-nineteenth century, for example, that the House of Lords, serving as the highest appellate tribunal for some English courts, began to rely on its legally trained members to carry out this function. Even more significantly as far as British colonies were concerned, there was no requirement that appeals, which could be taken from these territories to the Privy Council, would be heard by persons who had legal expertise, a situation which remained in being for the remainder of the nineteenth century and beyond.
In practice, however, the supreme court was clearly intended to be the most important judicial body in the colony. The range of English-style powers and functions vested in it made it a key feature in the colonial legal system. It was authorised in this fashion to be the venue for the trial of the most serious criminal offences, crimes such as murder, rape and stealing. At the same time, it was also to be a court which dealt with the more important civil proceedings which took place in the colony. It was empowered to hear and determine disputes relating to land ownership, claims for damages arising out of accidents and the failure to meet contractual obligations. This authority over civil matters and much more, came from the powers used by three English courts, the Courts of King Bench, Common Pleas and Exchequer, which were collectively described as the courts of common law, even though they were largely, although not entirely, separated from each other. But civil litigation could also involve the principles of equity, rules which quite independently had been evolved by the lord chancellors of England since the middle ages. These, too, came within the aegis of the supreme court under the Act of 1837, making this separate stream of English law, regulating trusts and other matters, operable in the colony. To this were added some powers used by England’s ecclesiastical courts as they reached beyond purely Church matters into regulating community affairs generally. Thus, on the one hand, the supreme court was excluded from being concerned with matrimonial matters considered by these distribution of the estates of deceased persons. Finally, the court was empowered [65] to appoint guardians for infants and take control of the property of others who were found to be incapable of managing their own personal affairs.
The ink was barely dry on this enactment, however, and Jeffcott was on the move again, heading back to Van Diemen’s Land without actually setting up the new court. The ostensible reason for his departure was the loss of some of his personal belongings, including a small law library, which had gone down on a vessel bringing them from the island colony. As the judge explained it to the governor, he needed to obtain new clothes and other supplies in Hobart Town and elsewhere. At the same time, however, his financial situation was more precarious than ever, the belongings he had lost were not insured and colonial officials in London were becoming impatient with the pleas made to them by his English creditors. This visit to Van Diemen’s Land enabled him to get some financial aid from his prospective father-in-law and make further arrangements for his planned marriage to Anne Kermode. He also seems to have begun sounding out the lieutenant-governor of Van Diemen’s Land and others on the possibility of obtaining an official position in the island colony. Failing this, he also seems to have contemplated entering private legal practice there.
An eleven day journey from Launceston finally brought Jeffcott back to Adelaide on 10 October, more than seventeen weeks since his departure from the colony. He returned to a state of turmoil, with Hindmarsh engaged in bitter disputes with Fisher and others on the conduct of the colony’s affairs. Gouger had been suspended from office as colonial secretary after a public brawl with another colonist. There was a legal wrangle over the dismissal of another official with accusations of criminal libel bandied around when Fisher had issued a handbill challenging the legality of the governor’s action. Jeffcott was in a hot seat and he knew it, even before he set foot in the colony again. News of South Australia’s political ‘troubles’ was already a subject of discussion in Hobart Town and elsewhere. As he wrote not long afterwards, several of the disputes between Hindmarsh and others were set to be litigated in his court including ‘actions for libel and defamation innumerable’ adding to the mass of misery I have to encounter’, as the judge described the situation. At the same time, there were other more normal legal affairs which required his immediate attention, not least the necessity to organise the trial of twenty prisoners being held on serious criminal charges.
The judge was harried on all sides. He was counted as one of Hindmarsh’s supporters but privately he acknowledged that the governor was ‘a bluff, straightforward, but not very prudent sailor’. James Hurtle Fisher, as Jeffcott found him was capable of ‘splitting hairs on every insignificant point’ which added a special legal piquancy to the confusion [67] which now surrounded the colony’s affairs. In circumstances like this, as the judge had shown previously, he had a guileful, almost roguish, strength of purpose in seeking to protect his own well-being. He went through the motions of doing the minimum necessary to begin the operations of the supreme court. He produced a set of rules to regulate its activities which essentially did no more than provide that those used by English courts would be operative in South Australia except where they were clearly inappropriate to local circumstances. There was also an application for the release of a prisoner which Jeffcott considered and some civil matters which he dealt with. Meanwhile, Jeffcott convinced Hindmarsh that before he settled down more permanently to the business of judging he once more had a pressing, official need to return to Hobart Town. In the brooding presence of Mount Wellington, safely distanced from the discord convulsing the European inhabitants of the Adelaide plains, he would, as he explained it, be able to seek advice from other luminaries on two legal matters which were troubling him.
Fate, however, soon dealt its final blow to the peripatetic judge. Urged on by his spirit of adventure he joined a small party in a whaleboat to attempt the hazardous venture of crossing into the open sea from lake Alexandrina, through the Murray mouth, as he waited in the vicinity to obtain a berth to carry him on to Van Diemen’s Land. The whaleboat made its way successfully into the southern ocean. Suddenly, heavy rollers engulfed it. The judge, attired ‘in a dress coat with suitable continuations’, as one eyewitness described it, clasped at an oar as he was swept overboard with his companions. But he soon lost his grip of it. He plunged and just missed grasping a box floating nearby which might have helped to save him. As Hindmarsh and others watched from the shore, Jeffcott disappeared from view under the turbulent seas and his body was never found.
The judge’s well-dressed and dramatic tryst with posterity did not leave the colony entirely bereft of legal acumen. It quickly helped, however, to usher in a period which sometimes transformed the working of the supreme court into the style of farce much favoured by many nineteenth century theatregoers. For a year and more the court’s seals of office were held by an acting judge, Henry Jickling, who had been first appointed on Jeffcott’s departure and was reaffirmed in this position after the judge’s death. Jickling was no fool even if he sometimes seemed to be. He had theoretical legal erudition which well exceed many of his contemporaries and which had resulted in the publication of a large complex tome on an abstruse feature of English law. But his ability was overlaid with personal eccentricities, an unworldliness, even naivity, in his dealings with other people, a fear of open confrontation with his peers [68] which made it almost impossible at times for him to conduct legal affairs satisfactorily. This was particularly so in the often tense and bitter atmosphere in the early years of European settlement in South Australia. He dressed in badly fitting clothes with trousers which hardly reached his ankles and coatsleeves which never seemed to go much beyond his elbows. He peered through thick green spectacles but still seemed to mistake tree stumps for passers-by as he moved in an odd spring-like gait around the ill-formed streets of the embryo metropolis where he had now made his home. On receiving invitations to dine, he was known to have inquired about the menu and, after considering the proposed bill of fare, decided politely that he would not be able to be there. He had originally vainly sought appointment to the judgeship in the colony which Jeffcott had obtained, but his less than modest success as a barrister and his other attributes had counted strongly against him. Nevertheless, he had a streak of ambition, no family or other special ties, and he still ventured to the colony, acting as a tutor on the voyage to James Fisher’s children to help defray his fare. In his unworldly manner he seems to have made no real preparations for his colonial experience. His needs were simple, requiring little of the physical wherewithal of life and on his arrival he found his first accommodation in a corner of a tent erected for one of the colonists at Glenelg.
There was a harbinger of Jickling’s incapacity to regulate court proceedings soon after his appointment. He fled in a highly emotional state from a hearing after a strong verbal confrontation with Charles Mann, who had just resigned as the colony’s first advocate-general before Hindmarsh could pre-empt him and turn him out of office. Mann refused to leave the building where the proceedings were being held and officials were called to remove him. The civil sittings of the court in March 1838 were described by one commentator as resembling a ‘bear garden’. It was said, not without cause, that the acting judge proved to be unable to keep ‘either counsel, plaintiff or jurymen in order’. In a confrontation again involving Mann, Jickling once more fled from the courtroom, leaving a trail of confusion which soon involved George Milner Stephen, the new advocate-general, who acted as a mediator. When the case was finally determined the Register tartly remarked: ‘We spit upon a verdict so obtained’. But there were also other problems in store for the administration of justice as Jickling dealt with criminal charges. A few weeks later the first planned criminal sessions under Jickling’s supervision had be to be delayed for a month when it was discovered he had failed to summon a panel of jurors as the law prescribed. When the proceedings were finally held, the acting judge found them stressful, particularly when he was required to impose the death sentence in the colony for the first [69] time. By December 1838 the small gaol facilities in Adelaide were so overcrowded that the prisoners themselves unanimously called on Jickling to bring them to trial as soon as possible. But he delayed as long as he could, hoping he would soon be replaced by a permanent judge and could avoid the personal agony he had experienced at the criminal sessions earlier in the year, Finally he relented, declaring that further criminal sessions would take place in February 1839. But whether by accident or design, he once more failed to provide for the necessary jurors and the hearings had to be delayed for another month. When they finally took place the prosecutions were poorly organised. Key witnesses were missing or had left the colony. The jurors seemed obviously sympathetic to prisoners who had sometimes been languishing in the colony’s primitive, overcrowded gaol for six months or more. Ultimately, not one of the thirty-five accused arraigned before Jickling was convicted of any offence. Jickling himself seemed well satisfied with the result. At the conclusion of the trials he congratulated himself publicly for showing ‘clean hands’ and a ‘pure heart’ in the conduct of the proceedings.
The acting judge’s aversion to presiding over criminal trials seems to have been intensified by the nightmarish quality of the first execution in the colony. At his first criminal sessions Jickling had been deeply moved when the law required him to impose the sentence of death and one contemporary account suggests he may have wept as he did this. It was assumed as a matter of course that any execution in the colony would be a public spectacle in accordance with existing British law, following the time-honoured myth that such displays instilled respect for the administration of justice within the community at large. The place of execution was on the southern foot of what is now called Montefiore hill in North Adelaide. It seems to have been chosen because there was a reasonably large gum tree sited there which had a strong enough branch at a convenient height for stringing up the hangman’s rope. On the appointed day, a crowd variously estimated at between five hundred and a thousand gathered in the vicinity, something like a third of the European population of Adelaide at the time. There were roughly equal numbers of men and women, some it seems with children who had also been brought along to witness the event. The condemned man, Michael Magee, was a man of Irish ancestry in his mid-twenties. He had been convicted of attempting to murder the colony’s Sheriff, an office with a high-sounding title carried over from England which was essentially a middle-level administrative post in the colony. Ironically, the sheriff’s functions involved the service of legal processes and dealing with other matters relating to judicial administration, including taking charge of prisoners and being responsible for executions.
[71] From the outset, the planning for the execution was difficult, particularly as it proved to be almost impossible to find a hangman. With sardonic humour it was even suggested that the sheriff himself might fit the noose around Magee’s neck but this was felt by others to be unseemly. Finally the offer of what was then the princely sum of thirty pounds seems to have enabled a hangman to be employed. His anonymity was supposed to be guaranteed and he made his way to the scene of the execution in an outlandish disguise, seated with Magee on a coffin in a two-wheeled horsedrawn cart which was to play a key role in the hanging. The executioner’s face was covered with a mask. His body was bound at front and back in heavy padding to hide his figure. Although his identity was never determined with absolute certainty, it is probable that he was a cook who later came to be known by some as ‘Jim the hangman’. Whoever he was, he clearly had no experience in the delicate art of execution according to the form and manner of British law,
At first the proceedings went relatively smoothly as the crowd watched expectantly. The procession made its way to the gum tree escorted by sixteen marines and ten constables who had recently been sworn to be members of the mounted police. Magee was a Roman Catholic and as there was no priest available a lay member of his communion had served his personal, spiritual needs. But the Anglican chaplain of the colony nevertheless stood out prominently in the cavalcade, following the cart, solemnly intoning his church’s version of the burial service for the dead. Magee was made to stand up in the cart. He briefly acknowledged his guilt to the sheriff and other officials before a hood was placed over his head and his arms were pinioned. The hangman who had probably not been properly instructed seems to have wrongly placed the knot of the noose under Magee’s neck, rather than positioning it under an ear. When the horse was whipped, the cart moved off as planned, but instead of the condemned man’s neck being broken almost instantaneously, he was left strangling in mid-air, still very much alive. In the hurly-burly of the moment the hangman bolted into the nearby scrub. Some bystanders later claimed that Magee himself had been so poorly tied that he freed his hands, grasped the rope and managed to pull himself up by it to the overhanging branch from which the noose had been suspended. Whether this was true or not, the condemned man was able to shriek out, saying amongst other things, ‘Oh God, oh Christ, save me’. Women in the crowd were reported to have fainted, others set up chants of ‘murder’ and ‘cut him down’ and the situation promised to get completely out of hand. The sheriff, however, quickly found his composure, instructed the marines and police to maintain order and, as the unfortunate prisoner continued to struggle for life, ordered a constable to bring back the [72] hangman. His ungainly, almost grotesque figure soon appeared again, escorted by the constable who had been sent to fetch him. He moved to the foot of the gum tree, and in some fashion managed to grab hold of Magee’s legs, pulling him down into the noose which was still around the condemned man’s neck. The executioner then held on to the condemned man’s legs firmly, while Magee’s screaming continued for a short time before he was slowly strangled to death.
It was a gruesome finale to the first execution in the colony. Nevertheless, public hangings continued, although not with the same frequency as in the convict colonies to the east. In all, twelve prisoners tried by the supreme court up to 1850 were executed but, after the death of Magee, much greater care was taken in carrying out the sentences, at least when they took place in Adelaide. In 1839 two Aboriginals were hanged at or near the site where Magee had died. Local Aboriginals were encouraged to attend in considerable numbers and many Europeans were also there. The following year it was reported that a ‘multitude’ turned out to see an execution near the Police Barracks, just off North terrace, close to Government House. From 1840 to 1850 all of the executions were outside the site of the Adelaide Gaol, except in one instance in 1849, when three Aboriginals were transported back to Port Lincoln to be publicly hanged. All of those who were executed prior to 1850 had been found guilty of murder or other offences, which could have resulted in violent death, as in the case of Magee. Twenty-five other persons convicted of capital offences between 1838 and 1850 were reprieved. In several instances they were pardoned outright; most had their penalties commuted to sentences of transportation for the terms of their natural life or periods of ten years.
The potential for the infliction of capital punishment in South Australia in this period was in fact considerably lessened as the colonial legislature progressively limited the number of offences which were subject to the death penalty. From the 1820s onwards, the number of capital offences began to be rapidly curtailed by the British parliament and south Australian legislators simply followed the lead of the mother country in adopting British legislation which had been passed to achieve this. In marked contrast to the situation in New South Wales and Van Diemen’s Land, Governor Grey refused to make special exceptions to this in relation to sexual offences. The crime of rape, for example, was to remain subject to the death penalty in New South Wales and sometimes elsewhere in Australia for many years after the punishment was abolished for this offence in Britain in 1841. In South Australia, on the other hand, rape and the carnal knowledge of girls under ten were struck from the list of capital offences in 1845 when two local ordinances swept away [73] the death penalty for a number of offences. Sodomy, however, was still a capital crime until 1859 when a local Act adopted new British legislation which excluded this as well from the infliction of the death penalty. The colonial legislature had also acted in 1842 to outlaw hanging for some other crimes, including burglary, by adopting British Acts which had been passed since the foundation of the colony. Even while some of these offences had been formally still subject to the death penalty in the colony, no-one had been hanged for them. Only two convictions for rape seem to have been recorded in the supreme court before this crime was abolished as a capital offence. The two offenders, who were found guilty of attacking the same European woman in 1845, were transported for life to Van Diemen’s Land. Those convicted of stealing and similar offences while these remained subject to the death penalty seem to have had their capital penalties respited as a matter of course by the governors, with the substitution of periods of transportation as their punishment.

B. Select Bibliography on Individual Chapters

Chapter 3
Bennett and Castles, Source Book of Australian Legal History, op. cit., pp. 163-168;
Cabulis, Office of Coroner, in particular early Coroner’s Inquests in South Australia, legal history research essay, Salmond law library, university of Adelaide;
Castles, ‘Legal Beginnings of the Western Colonies’, chap. 12 in Australian Legal History, op. cit.;
Cavanagh, Capital Punishment: English Background and the South Australian Experience, 1836–1876, legal history research essay, Salmond law library, university of Adelaide;
Fischer, ‘Professional Theatre in Adelaide’, Australian Letters, March 1960;
Fischer, Queen’s Theatre, Adelaide, 1841–1842, 1957;
Hague, History of the Law in South Australia, op. cit., in particular, chaps 1-4, 7-10;
Hague, Sir John Jeffcott, op. cit.;
Hague, The Gentle Jickling, op. cit.;

Kitchen, Brief History of the Justices of the Peace in South Australia, and a comparison of their English Counterparts, legal history research essay, Salmond law library, university of Adelaide;

Mortlock library, research notes: Supreme Court House in Adelaide (including notes by Muirhead, 1950);
Notes on Buildings Used for the Adelaide Police Court, 1843–1852;
Moore, First Ten Lawyers in South Australia, legal history research essay, Salmond law library, university of Adelaide;
Saint Coroner’s Juries in South Australia, 1839 – 1850, legal history research essay, Salmond law library, university of Adelaide;
Sheedy, Incidence of Capital Punishment in the Colony of South Australia between 1838 and 1894, legal history research essay, Salmond law library, university of Adelaide;
South Australian public records office, Court of Appeals, Government Records Series, 51-58;
Thompson, Australian Admiralty Jurisdiction: Its Sources and Development, university of Adelaide, honours LL.B. thesis, 1977’
Tolmer, Reminiscences, op. cit.;
Index to Law and Related Matters reported in South Australian Newspapers, 1837 – 1860, university of Adelaide law school, op. cit.;
Vickers, The South Australian Local courts, legal history research essay, Salmond law library, university of Adelaide;
Whitelock, Adelaide 1836–1976: a History of Difference, 1977;
Worsnop, History of the City of Adelaide from the Foundation of the Province of South Australia in 1836 to the end of the Municipal Year 1877, 1878.
Directory: courses -> lawdemo -> FTP
FTP -> Canadian Perspectives on Law and Society: Issues in Legal History
FTP -> Citation: Bruce Kercher, The Unruly Child: a history of Law in Australia (Sydney: Allen & Unwin, 1995), pp XI-XXI introduction english Flotsam
FTP -> Chapter 2 — the contradictions of convict law freedom and the lash, 1788-1820
FTP -> Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 1-28 1 The Aboriginals and their Law
FTP -> Citation: E. P. Thompson, Customs In Common (New York: The New Press, 1991), pp. 159-175 V
FTP -> Citation: Richard Broome, Aboriginal Australians 2nd ed., (Sydney: Allen and Unwin, 1994), pp. 9-21 1 Traditional Life
FTP -> Chapter 3 — property, geography, and british columbia’s courts
FTP -> Chapter 5 — Cranford V. Wright: Law and Authority in British Columbia
FTP -> Citation: David Neal, The Rule of Law in a Penal Colony: Law and Practice in Early New South Wales (Sydney: Cambridge University Press, 1991), pp. 61-83 chapter 3 The Rule of Law
FTP -> Chapter 2 — the contradictions of convict law the impossibility of strict law, 1820–1840

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