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

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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
The Rule of Law
It was this great and universal esteem he [i.e. Sir Mathew Hale] was then in, that made Cromwell so desirous to have him for one of his judges, which offer he would willingly have declined. Being pressed by Cromwell to have his reason he at last plainly told him, that he was not satisfied with the lawfulness of his authority, and therefore scrupled at accepting any commission under it, to which Cromwell replied, that since he had got possession of the government he was resolved to keep it, and would not be argued out of it; that however it was his desire to rule according to the laws of the land, for which purpose he had picht upon him as a proper person to be employed in the administration of justice, yet if they would not permit him to govern by red gowns, he was resolved to govern by red coats.

Sollom Emlyn, 16781

Ye Captains to a Monarch lov’d rever’d

Draw on his head and yours disgrace Down!

The ‘Magna Charta’ our forefather’s rear’d

That brightest jewel in the British Crown

Ye trample on *! – Tho’ Britons rule the Waves

Great George’s subjects (Britons!) here are Slaves.

0 country beauteous! Climate healthful! mild!

0 George belov’d (Unlike some Kings) abus’d!

0 People into Slavery beguil’d!

0 Rulers guilty of a power misus’d

When shall All cry ‘Britannia rules the Waves

And Free-born Britons are no longer Slaves’?

John Grant, convict, 18052
[62] So how did people in New South Wales go about the task of transforming New South Wales from a penal colony to a free society? What shape would politics take in a newly formed penal colony? As foreshadowed in the introductory chapter, legal ideas and institutions played a major role in the politics of the Botany Bay settlement. Indeed a cluster of ideas known as the rule of law provided the major institutions, arguments, vocabulary and symbols with which the colonists forged the transformation. The rule of law served as a fund of English ideas about political ordering, as the instrument with which to accommodate these traditions to the unlikely circumstances of the penal colony of New South Wales, and as a means of incorporating the newer democratic ideas of the nineteenth century. Like all new societies, New South Wales confronted the problem of political authority. Who is entitled to give orders and how are conflicts about those orders resolved? Cromwell faced the same above problem after the English Civil War. As the quotation illustrates, he knew the limitations of force and sought to legitimate his government through the forms of law. Like the other seventeenth-century judicial colossus, Sir Edward Coke, Hale saw the rule of law as the touchstone in English politics, even in the face of monarchs and quasi-monarchs. The bloody instruction of the mid-seventeenth century left a deep impression about the importance of the rule of law. It was an impression that travelled to Botany Bay along with those who sailed there. John Grant was simply one of the more eccentric examples of the strength of this ideology but the same sentiments saturate political discourse in the colony. In the battles between the colony’s judges and governors, for example, themes familiar to Coke and Hale play again and again in the unlikely setting of a penal colony two centuries and 12,000 miles away.
Politics and law mixed to a far greater extent in New South Wales than existing accounts of the colony suggest. To many modern minds – especially in countries like England and Australia, where the doctrine of the separation of powers has produced sharp mental borders between law and politics, and legal positivism has taught people to think of law as a technical and value-free science – there appears to be a natural separation between law and politics. The effects of this way of thinking can be found in many spheres, and one of them is the way in which people have written about early New South Wales. The historiography pays little heed to the importance of law in the political and day-to-day life of the colony. On the one hand, general historians have either failed to notice it at all or, like Clark, Shaw and Ellis, have reduced it to the pedantic or politically motivated interference of various judges with the prerog-[63]-atives of the governor. On the other, the self-conceptions of legal and constitutional historians tend to treat law and constitutional history as discrete fields of inquiry with politics at the margin or left out altogether. Despite Evatt’s pioneering insight about the political role of the courts, the general histories and the legal histories have proceeded in parallel.3 Even in the most recent of the general histories, Hughes makes only a passing reference to the political role of the courts, and even this is misunderstood. He claims that convicts’ rights counted for little prior to 1810. His bibliography makes no reference to the legal and constitutional histories.4
But law, to borrow Edward Thompson’s phrase, was ‘deeply imbricated’ at all levels and in all aspects of the colony’s life. Evatt’s argument about the importance of the courts up to the Rum Rebellion in 1808 only partly captures this. The courts occupied a central political role in the colony throughout the transportation period, not just in the period to 1808.5 Courts provided a physical and institutional site for a rich tradition of political and legal concepts referred to in modem parlance, though not so commonly at the time, as the rule of law.6
But the focus on the courts is too narrow; the rule of law concept encompasses a great deal more than courts. The law supplied the basis for the transportation of the majority of the population; it also set the length and terms of sentences. When convicts became free, master and servant law fixed the parameters of their employment. Law supplied the framework for property holding and the contractual basis on which people traded. Police and magistrates – with varying degrees of fidelity – gave practical effect to the law throughout the colony. Newspaper editors went to the limits of laws setting press freedom, and sometimes beyond. Governors and their subordinates had to worry whether the actions of the executive conformed to law lest they find themselves before the courts in New South Wales or England. To be sure, there was some play in all of this, as Henry and Susannah’s case shows. English law did not allow felons to sue. But sue they did and so did others like them. That flexibility and the fund of tradition incorporated in the rule of law, proved to he a great boon to those in the colony who sought political change; their opponents found it hard to counter arguments couched in terms of the Magna Carta and the birthrights of all true Britons.
To fathom this, we need to cast ourselves into the cultural background of the settlers. Seventeenth- and eighteenth-century English Politics laid heavy stress on the rule of law. Hay and Thompson claim that the rule of law underpinned political authority in England.7 They are joined in that assessment, as will be seen, by an impressive [64] list of contemporary seventeenth- and eighteenth-century authorities and by historians.8 The rule of law occupied a central role in the struggles and settlements of the seventeenth century and their consolidation in the eighteenth century. What they all mean by the phrase, how importantly they regarded it, requires careful examination. This examination forms essential background for understanding the importance of the same ideology in fashioning a new order in the penal colony.
Discussions about the rule of law take place in a twentieth-century context, where the phrase has importantly different connotations from those which it had for seventeenth- and eighteenth-century English people. Whereas a twentieth, century commentator like Hayek concerns himself with legal certainty in the context of the dangers he sees in the discretions exercised in the welfare state,9 seventeenth- and eighteenth-century concerns focused on battles between king and parliament, the royal prerogative, the independence of the judiciary and the rights of free-born Britons, guaranteed by the British constitution.10 The older debate takes up the rule of law in a political configuration very different from that of the twentieth century. At the beginning of the seventeenth century, the monarch was still powerful and exerted extensive control over both the parliament and the courts. The conflict centred on the relative powers of these three. While at bottom many of the same issues run through both debates – individual liberty in particular, constraints on authority, and the idea of rule by rational principles rather than the wishes of some individual or group – different historical conjunctions throw up importantly different settings for the operation of the rule of law. For English settlers in New South Wales, conflicts over the extent of the governor’s powers – a governor who stood in the place of the king in the colony but wielded more power than any king since James I – conjured up seventeenth-century demons about royal tyranny.
But aside from the differences generated by different historical contexts, additional problems arise from the widely divergent political viewpoints of the various commentators who invoke the phrase, the rule of law. While its rhetorical force has sounded loud and long in the halls of conservative and liberal political thought, recently it has also been taken up and hotly debated among Marxist historians.11 Can they all be talking about the same thing?
Both time and political viewpoint affect the meaning of the rule of law. But its importance varies too. For example, according to Hay, the [65] rule of law weighed more heavily in the political life of seventeenth, and eighteenth-century England than it did in the nineteenth or twentieth centuries. Vivid memories of the turmoil of the Civil War and its aftermath produced an almost ridiculous scrupulousness for legal form in the 1688 revolution.12 The seventeenth century reliance on the ‘ancient constitution’ and on the rule of law as the protectors of English liberty – underlined not only by the Bill of Rights but also by the Act of Settlement of 1701, which protected the independence of the courts by granting life tenure to judges – left a powerful legacy to the Whig consolidators of the eighteenth century.13 It was a legacy which allowed England to be governed by the gentry without a standing army or a professional police force.14 The changes of the nineteenth century (e.g. the dominance of the laissez-faire ideology, the growth of a capitalist industrial structure, the advance of police forces and prisons, and changes in the electoral franchise) and the rise of the welfare state in the twentieth have meant that the rule of law occupies a different and arguably less central place in the legitimation of political authority. But what would the rule of law mean in a penal colony? The answer to that question begins in understanding the meaning and salience attached to the rule of law by people in late eighteenth-century England.
At the most general level, people distinguish between the rule of law and rule of men. Properly understood, the opposition means to suggest that government operates on the basis of general rules laid down in advance – the first element of the rule of law conception rather than ex-tempore decisions by the ruler. The antithesis is somewhat misleading in that it suggests that law is self-executing; it conceals the inescapable discretion involved in the application by human beings of general rules laid down in advance of specific situations. The tension between the requirement of generality and the vagaries of individual cases is accommodated by a second element implicit in the rule of law: the requirement that the rules be applied rationally. Properly understood, the idea that we are ruled by law, not by men, signifies the restrictions imposed by the rule of law on rulers, not the reign of an impersonal order of rules. ‘The laws ensure that reasons rule and not particular passions, but they are invented and maintained by men and can prevail only when men are guided by reason to the public good and not by passion to private ends.’15
The power of the rulers is subjected to constraints against arbitrariness. What they do must be justifiable in terms of the preexisting general rules. Societies where the rulers’ power rests predominantly [66] on physical force(e.g. reliance on the army, hit squads, terror and secret police) do not operate on the basis of the rule of law. I do not mean to suggest here that governments which do adhere to the rule of law in theory and in practice do not rely on physical force. The monopoly on the use of legitimate physical force is a fundamental claim of modern political authority. But to say that the state can and does resort to physical force in the ultimate case is a very different thing from saying its power depends predominantly or in large measure on physical force. Legitimate power makes normative claims on the obedience of its subordinates based on reasons of religious or secular principles. This differs from obedience based predominantly on fear of physical coercion. The rule of law is a way of organising power, not the opposite of power. It is, however, the opposite of arbitrary power.16
If reasons rule, the notion of reasons is wider than the general legal rules of the society, such as thou shalt not kill or thou shalt not steal. Does Shylock’s contract entitle him to his pound of flesh? Does the law of attainder prevent Henry and Susannah Kable from suing in New South Wales? How are the general rules elaborated to bridge the gap between them and the particularities of the case to be adjudicated? We have already seen that the general legal rules have to be applied rationally but the notion of rationality at work here is of a specialised kind. Legal rationality superimposes a specialised process of argumentation on the general conception of rationality. Cases, as Coke said, are not to be decided by natural reason ‘but by the artificial reason and judgment of the law’. Law has special traditions, forms and styles of argument, judgments about appropriate analogies, hierarchies of authority, references to precedent and so on. Only a certain sort of rationality will be admitted in legal argument from general rules to particular cases.17
Although most of these points logically apply to anyone in society, the rule of law theme usually plays on the relationship between governors and governed. Thus, while the first strand in the rule of law concept emphasises that the governors may only act pursuant to preexisting rules, the obverse is that the governors are also bound by the rules. But there is still more to it than this.
Sometimes stated as equality before the law, and sometimes that nobody is above the law, the rule of law framework does not allow irrelevant exemptions – on account of wealth, position, ability to pay a bribe, etc. – where the rules otherwise apply. The principle does allow classification of people to whom particular rules apply, within limits of generality; once these are established they apply equally to [67] all those affected.18 But the important part of this principle, established in the seventeenth-century struggles between the Stuart kings and their parliaments, is that everyone, including the king, is bound by the rule of law. More importantly, it meant – and still means that executive government may only do what has been authorised in the form of law by Parliament. In New South Wales – and this became a vital point – it meant that colonial governors and their officials could he sued in the courts if their actions were not backed by law.
The third element of the rule of law concept is the courts. The rule of law connotes more than the rational application of general rules, at least in the case of complex societies, and certainly in English usage of the term. A king who sat and adjudicated personally, applying the general rules according to the dictates of legal rationality, would be described either as practising only a very attenuated form of the rule of law, or as overlooking an essential aspect of the rule of law, a differentiated legal system. As understood in England, and systems deriving from the English system, the rule of law involves courts, judges and a legal profession independent of the executive. The courts provide the mechanism through which executive actions can be examined against the standard of the general rules applicable to the society. Theoretically a king, a governor or officials could assess their own actions in terms of the laws. If law was the mechanical process that it is sometimes supposed to be, this might work. But people intuitively mistrust those who are judges in their own cause, an intuition which correctly identifies the flexible nature of legal rules. Fidelity to the rule of law requires independent forums for adjudication, a key part of the modern understanding of the separation of powers.19 It places the courts between citizens and governments.
To this point we have established that the rule of law has at least three elements: general rules laid down in advance, rational argument from those principles to particular cases, and, at least in a developed form, a legal system independent of the executive for adjudication of disputes involving the general rules.
It is important to see what this promises, and what it does not. First, the rule of law is compatible with the existence of morally bad general rules. If, for example, the general rules are racist, such as those of the American South during slavery or in South Africa today, then the operation of courts applying those rules in a rational way will still signify the existence of the rule of law. Stalin’s terror, Nazi Germany and other examples are often cited in connection with this [68] point either to deny that these cases are examples of the rule of law because of the fundamental immorality of the rules,20 or to deny Thompson’s claim that the rule of law is a ‘unqualified human good’.21 This is not the place to rehearse the long debate over whether fundamentally immoral rules count as law.22 For present purposes, I simply want to declare my legal positivist stance on this point and say that fundamentally immoral rules can count as laws. So, to take the South African case, I would regard the apartheid laws as morally repugnant but laws just the same.23
What follows from this is that in such systems, the rule of law exists and enforces morally repugnant laws. It also follows that in such situations the claim that the rule of law is an unqualified good may not amount to much. But it does amount to a constraint on arbitrary power, a not inconsiderable advantage over death-squads, disappearances, and mass executions, to nominate some current examples of arbitrary power. Regimes, which in fact rely on the rule of law, do accept limitations on what they might otherwise do. In this limited sense, the rule of law does seem to be a unqualified human good.
But the rule of law has to be practised, not just preached. The examples noted above can only dubiously claim to operate under the rule of law. To be valid the claim to adhere to the rule of law must correspond reasonably closely with the actual practice of government in that society. Ideals which exist only in political rhetoric or in a constitutional document do not equate with the rule of law. The essentially executive flavour of the phrase should suggest that the practice must show fidelity to the ideal. If, at a minimum, the rule of law requires known principles laid down in advance but the practice is that the rules are not ‘public’ or are invented ex post facto, then this is not the rule of law but a fraud.24 Arbitrary power is impatient of such standards, valuable as against power because of the demands they make for justification. Insofar as a regime such as that of South Africa in practice conforms to the procedural canons of legality, then that society is governed by the rule of law, notwithstanding the repugnant nature of its apartheid legislation.25 Fuller’s attempt to avoid this conclusion by reliance on a requirement of certainty – that the apartheid laws are so vague in some cases as to make it impossible to determine whether a particular citizen is bound by them – is not convincing.26 Determination of a person’s racial category is no more and no less certain than a host of other laws that no one thinks to question, be they tax laws or the penal code. For example, the law respecting self-defence and provocation in murder, the most serious [69] crime and hence the one where the highest degree of certainty should be expected, depends on very fine judgments about the reasonableness of the action, the immediacy of the threat, the degree of the provocation, etc. Similarly, thousands of disputes about the application of tax laws do not yield the conclusion that their uncertainty nullifies their status as laws. Other examples from all branches of the law would show the point over and again. Some degree of uncertainty is inherent in the application of general rules to particular cases. There is a limit on the degree of uncertainty but it is sufficient here simply to say that these limits allow enough room for the application of immoral rules. Seen this way, the rule of law offers a certain structure of power, in which the executive government has to justify its actions in terms of the general rules and legal argumentation to an independent legal system. This will not protect the governed from immoral general rules but will protect them from arbitrary interference by government.
Finally, and this point follows from the preceding points, the rule of law does not promise absolute certainty or ‘right’ answers, at least in the sense of a right answer in arithmetic.27 As already seen, the nature of general rules laid down in advance means that a particular instance will require reasons and arguments to act as a bridge from the general rule to the particular situation. The variety of circumstances to which the general rules may be applied means that very often the outcome will not be clear in advance of adjudication. The very fact that two well advised litigants are prepared to spend large amounts of money to take their case to court, that learned judges at a variety of levels in the court system, from trial court to appeal court (or appeal courts in some cases) differ, should be enough to demonstrate this point.
Legal logic does not have mechanical precision. It is closer to moral or political decision-making than it is to reasoning in the ‘hard’ sciences.28 It draws on rules, principles and policies which have a great deal more play in them than arithmetical logic. Words and devices like ‘reasonable,’ ‘necessary’ and ‘insofar as the circumstances of the colony permit’, allow rational people – and judges – to differ without being arbitrary. In the end, the right decision is determined structurally rather than by reference to ‘absolute truth’. Decision rules based on judicial majorities and court hierarchy determine what is the ‘right answer’. Hence, when historians assert that Chief Justice Forbes was wrong in his decision about the Governor’s power to revoke assigned convicts from private service, they may mean something different than that the judge did his sums wrongly.29 It might be [70] that the judge did make a methodological error, for example, if he overlooked a relevant case or statute. But that is not so in the case about the governor’s power to revoke the assignment of a convict; that controversy concerned the interpretation of a statute. In fact, in terms of narrow legal decision rules, Forbes was right, since he formed the majority in the highest court to take up the case. It is not to the point that the governor, or James Stephen who drew up the statute at the Colonial Office, or the historian disagrees with the interpretation. That is a commonplace among disappointed litigants and frustrated legal drafters. It might be suggested that Forbes was improperly substituting his views for the clear provisions of the statute. However, that would be a difficult case to establish, especially where ambiguities in the statute or constitutional provisions (such as ‘insofar as the circumstances of the colony permit’) require fine judgements about the application or meaning of the rule in a particular factual setting and the appropriateness of that interpretation of the rule in an unusual and changing society.
To summarise the main point, the rule of law does not promise absolute or even nearly absolute certainty but decision-making within a specific type of procedural framework. And within this framework of general rules, legal argumentation and personnel independent of government, there will be considerable room for different people to arrive at different results while still being faithful to legality. Although a great deal of the legitimating rhetoric surrounding the law suggests something more mechanical, legal reasoning is more art than science.
The structural elements of the rule of law may be found in many different societies. But in English eyes, especially in the eighteenth century, the rule of law had much fuller meaning, a meaning which was the legacy of English history. While it is possible to separate the rule of law into two aspects – one structural and one cultural – as various writers have suggested,30 the people with whom we are concerned saw the rule of law as an integrated entity which underpinned the British polity. To understand the rule of law through the eyes of the New South Wales colonists, we must appreciate not only its key structural elements but also its centrality in their political ideology.
The window to that appreciation opens onto England in the seventeenth and eighteenth centuries. That is the primary source of the cultural inheritance which the settlers brought with them to the new colony. Many of the constitutional problems of England in the seventeenth [71] century – as well as the radical ideas and actions of the American and French revolutions – found their analogues in the small penal colony on the other side of the world. The importance the colonists attached to the rule of law – their rights as free born and English, their reverence for the Magna Carta, Habeas Corpus, the Bill of Rights, their concern about the independence of the judiciary, trial by jury, and their opposition to paid police forces, all encapsulated for them by Blackstone in the second half of the eighteenth century – was rooted firmly in the politics of the seventeenth and eighteenth centuries. These features of British politics were central to their conceptions about the shape of the new colony in a way not at all captured by the phrase civil liberties, suggested by some as a substitute for the rule of law31 and by others to describe the campaign for trial by jury in New South Wales.32
Under the tutelage of J.G.A. Pocock, historians of seventeenth century England have stressed the overwhelming importance of the, ‘ancient constitution’ in the political struggles of that epoch. The relative powers of the king, parliament and the courts occupy the centre stage. Argument about these issues takes its referents not from theories of a social contract but from England’s ‘ancient constitution’, lost in the mists of time, which set the pattern of the relationship between king, parliament and courts, over a very powerful subtext about English birthrights. As one historian summarised it, ‘the Revolution Settlement was first and foremost the Rule of Law. It was the triumph of the common law and lawyers over the king, who had tried to put prerogative over the law.’33
The drama opens at the beginning of the seventeenth century with Sir Edward Coke, judge of the King’s Bench and the foremost legal figure of his day, at the feet of his monarch telling him that even the king is subject to the law. The details of the story are better told elsewhere,34 but here is the stuff of powerful icons, coming from a judge appointed and dismissible by the king. The idea of the separation of powers was not even a speck in Montesquieu’s eye at this point,35 and life tenure for judges, a product of the experiences of the seventeenth century, still almost one hundred years away.36 Coke’s legacy for the purposes of this story lies in his assertion that no person, including the king, is above the law. Even then the sense of this had to be qualified by reference to the king’s prerogative, which clearly was part of the law, a prerogative that would be whittled away in the course of the century. Confinement of this prerogative, so that the king could then neither make laws by proclamation nor offer dispensations from the parliament’s legislation, made it clear that the [72] king could not make laws. This was a legacy the early settlers of New South Wales and their governors were to remember almost two centuries later.
But this was by no means Coke’s only legacy. In the course of the seventeenth century he and his brother judges were able to extend that bridgehead by establishing not only that nobody was above the law but also that the only interpreters of that law were professional judges, educated in the arcane mysteries of the law. By the end of the century both houses of parliament and the prerogative courts had yielded their jurisdiction over legal disputes.37
But probably the greatest legacy of the seventeenth century lay in the stress on the rights of free-born Britons, resurrection of the Magna Carta and the embodiment of English political principles in the Bill of Rights. The political actors were careful to invoke the precedent of the English constitution and to pay punctilious attention to legal detail while executing Charles I, forcing James II into exile and tricking the line of royal succession to suit the needs of the day. Their precedent established the essential role of parliament for legislation, confined the prerogatives of the Crown and established the independence of the judiciary. The balanced constitution they produced – king, lords and commons, underwritten by the rule of law guaranteed true liberty. Indeed for them true liberty meant government under law.38 But this constitutional system also contained other features, most importantly the right to trial by jury, sourced to the Magna Carta and held by John Maynard to be the ‘subject’s right yea his birthright and inheritance as his lands are’. Hallowed by Blackstone, a thorn to the executive, and one of the triggers of the American Revolution, the eighteenth century valued it no less than the seventeenth.39
Other issues, such as royal taxation to maintain standing armies, raised constitutional questions about the legislative power which would also remain a powerful legacy to the eighteenth century and become an issue in New South Wales when governors sought to raise revenue by port duties and road tolls.40 The depredations of the army under the Commonwealth and the appointment of Catholic officers by James II made standing armies anathema to the Whiggish ideology of the eighteenth century. The involvement of the army in civil government was seen as a detestable encroachment, as late eighteenth-century debates on unsuccessful proposals to establish standing armies or paid police forces showed.41 However, if these were the contours of the rule of law for English [73] people of the seventeenth century, its salience for them is also a very important consideration. Part of Coke’s difficulty in convincing James I that the ‘artificial reason’ of the law had to be left to professional lawyers lay in the fact that some training in law was thought essential to an English gentleman’s education. What need of judges did the king have when he could deduce the proper legal outcome for himself? But the more important dimension of this was that the gentry was accustomed to a legal measure in all aspects of life. Their private affairs, especially land and marriage arrangements were set up in extremely complex legal arrangements, while their duties in parliament and as justices of the peace required a working knowledge of the law. As Christopher Hill tells us, ‘Most gentlemen had a legal education of some sort, and thought of politics in legal terms.’42 This habit of thought and action is reflected in the way the great political issues of the day were framed in legal terms. A recent historian of the period has put it this way:
The one element of constitutional continuity in seventeenth-century England was the acceptance by king and parliament of a political rule of law. Law was the touchstone of politics. No matter how men might differ over what the law said or what it might be made to mean, all were committed to a legal standard in the conduct of their political affairs. . . the common law provided a constant conceptual framework for political
action . . . virtually every important controversy was formulated, and every position justified, in legal language and common law paradigms.43
The Whig inheritors of the 1689 settlement elevated the rule of law to a central place in their political ideology.44 ‘The rhetoric of eighteenth-century England is saturated with the notion of law’45 for a variety of good reasons. In the first place, as the pacific nature of the 1688 revolution and its emphasis on legal form suggests, the violence of the Civil War and the ensuing upheavals had quenched the country’s inclination towards violent solutions. Hence we hear the leading spokesmen of the age blunting the revolutionary justifications offered by the seventeenth-century precedents and by Locke’s Two Treatises of Government. Blackstone stressed the perfection of English laws and institutions. The balanced constitution of king, lords and commons combined the best aspects of the possible forms of government, thus inviting the conclusion that the circumstances which would justify a revolution must be very rare. Stability was the order of the day.46
A second reason for the importance of law in the ideology of the [74] eighteenth century can be found not so much in the strength of legal ideas as in the absence of a plausible alternative. As has been noticed by a number of historians, religion had undergone a marked decline as a legitimating force by the eighteenth century, leaving the role of secular priest to the assize judge and the rituals of law.47 Another unavailable option, a standing army or what amounted in their eyes to the same thing, a paid police force, supplied a third reason for the pre-eminence of the rule of law in the eighteenth century. Despite Jacobite threats, outbreaks of rioting and disorder throughout the century, and the deep fears engendered among the rulers by the French Revolution, neither a standing army nor a paid police force could be countenanced. The memories of the seventeenth century bulked large here and raised a panoply of gentry fears. First, paid police and standing armies conjured up the violence they sought to avoid. Second, they posed a threat to English liberty by raising the spectre of the French spy system. Third, paid forces threatened the balance of the constitution, because they were inconsistent with the existence of the county militia and – unlike the militia which was controlled by the local gentry – paid forces were open to control by central, executive government. Fourth, the gentry would be taxed to pay for these expensive innovations or forced to billet troops as they had been during Cromwell’s time. For all these reasons, the gentry chose to rely on the rule of law and their own resources rather than resort to a standing army or a paid police force.48
Their solution to the problem of how to govern, as a growing body of literature shows, was to base their authority on the rule of law, in particular, the criminal law rather than the force of arms.49 The theatre of criminal justice most vividly illustrated this theory of legitimacy, a theory which can be found powerfully in conservatives like Blackstone,50 as well as in radicals like John Wilkes, whose strategy actually depended on the adherence of his opponents to a rule of law model.51 Whether this system was actually fair is for present purposes, beside the point.52 What is important, is the significance attached to the rule of law:
In seventeenth and eighteenth-century England the law was a remarkably potent force. It was the chief means of exercising authority, the main vehicle of state power, an important way of resolving disputes and, because of the extraordinarily wide acceptance of the notion of the rule of law, a vital means of legitimising private initiatives . . . The fiction of the rule of law commanded remarkable support and was the framework within which most conflict occurred.53
Although Whigs took these principles more seriously than Tories, [75] Tories also subscribed to them even if, as we will see, they sometimes strayed from virtue. The rule of law occupied a central place in the political, ideology of late eighteenth-century England. It was from this political culture, then, that the white settlement of Australia was launched.
The author of the poem quoted at the start of this chapter, John Grant, was a convict. He wrote the poem on the way to Norfolk Island where he was being transported for irritating Governor King beyond endurance. Grant was an eccentric and a gentleman, not representative of the convicts in general. His eccentricity was, in part, that he took the Magna Carta too seriously. By pushing the claims too far, he enabled a no doubt exasperated Governor King with whatever nagging doubts in case Grant had a legal point – to put him beyond the pale.
Grant’s fellow ‘settlers’ all had direct personal experience of the rule of law. Fragments suggest a sort of wry, mocking humour among the convicts about the legal system: ‘Farewell to the well-known Old Bailey, where I once used to cut such a swell’ go the words of the song ‘Botany Bay’. Surgeon, Peter Cunningham, describes convicts staging full-dress satires of their trials on the decks of the transport ships; convict slang for the sharks they saw off the sides of the ships was ‘sea lawyer’.54 But the humour does not run to wholesale rejection of the English legal system. If anything, the evidence suggests a cautious appreciation of its possibilities. Grant wholeheartedly embraced English rule of law principles and was astonished that King George could have allowed the travesties of New South Wales. Bentham’s A Plea for a Constitution proceeds along a similar line of argument. Others like the Kables and the officers of the New South Wales Corps were more pragmatic. They had as keen an appreciation of the power reposed in the legal system as any of the combatants in the constitutional struggles of the seventeenth century. People in New South Wales saw the potential of the colonial legal system and used it to pursue their political and other objectives. If indeed the British government had intended to establish a purely military system of command at Sydney Cove, the provision of civil courts was a fatal mistake. The Kables proved that within the first six months. Henry and his business partners, emancipists Lord and Underwood, used the civil courts to their business advantage repeatedly in the ensuing years. Commentators express their surprise at the amount of litigation in the colony. Some convicts were prepared to make their Complaints to magistrates, as indeed they were encouraged to do by [76] Governor Macquarie. They were even prepared to complain about the merciful magistrate who departed from the legal forms; they could pick a counterfeit.55 Indeed, their willingness to employ the legal system in the colony, their ability to mount criticisms of the colony’s hybrid institutions based on their own close observation of the English system, and their predisposition to cast their claims in terms of their constitutional inheritance showed an acceptance of authority which ultimately yielded a radical rather than a revolutionary political stance.
In short, the convicts, like the other settlers – from officials, to army personnel, to free settlers – bore with them a strong conception of what the rule of law meant, the uses to which it could be put, and its importance in English political life. While new and unusual circumstances called for some reorientation of the rule of law model, they drew on this heritage when confronted by the problems of establishing a new political order. Like their seventeenth-century forebears, they summoned up the ancient constitution, their birthright and inheritance, rather than adopting the revolutionary road and philosophical schemes of the French or American revolutions.56 Although Tom Paine’s ideas and Jacobinism had a group of highly educated and articulate proponents in New South Wales from the 1790s onwards, plus rebellious Irish convicts, their impact was at best indirect compared to the prominence of ideas drawn from the English rule of law model.57
The rule of law in colonial New South Wales meant from the outset, that the pressures against arbitrary rule were considerable. The presence of courts meant convicts could claim the benefits of the laws of England in criminal and civil matters. It also meant that settlers and convicts could he tried only for offences known to the law; in the superior courts after 1810, trials were conducted by judges who were legally qualified. The liability of officials to be sued in the colony for exceeding their powers – and of the governor to be sued on return to England – was well known.58 On several occasions this principle necessitated indemnity legislation either for the governors or the magistrates, and ultimately provided sufficient leverage to make them conform to the law. When the marines under Major Ross reminded Governor Phillip that they need only obey his lawful orders;59 when Governor Hunter reminded the military that ‘no man within this colony can be put out of the power or lose the protection of the law under which we live, from the meanest of his Majesty’s subjects up to the Commander in Chief [i.e. himself] or first Magistrate, we are all equally amenable to and protected by the laws’;60 [77] when Mr Justice Jeffery Bent refused to pay at the toll gate on the basis that the Governor lacked the legislative power to exact it;61 when others made similar arguments, they were re-asserting the principles of the rule of law, established in the seventeenth century and venerated in the eighteenth as the English inheritance from time out of mind.
Both their actions and their words reflect the meaning and emphasis on the rule of law described in this chapter. John Grant’s poem, quoted at the beginning of this chapter, is indicative of the language used in the politics of the colony. There were many in the colony prepared to brandish the Magna Carta and Blackstone at would-be autocrats. Free settlers, convicts, emancipists, governors and judges objected, as we will see, to the un-British nature of their institutions. They were referring to the absence of trial by jury, to the fact that the officers who made up the Criminal Court all sat in their uniforms, to the governor’s power and to their lack of a colonial assembly. When the Emancipists came to assert their political claims, they did not plead the rights of man. Rather they pleaded that the terms of their pardons restored them to all their British rights and liberties, and the Magna Carta’s guarantee of trial by jury. Throughout the 1820s, the colony’s three main newspapers were filled with this rule of law rhetoric. The Emancipist leader, lawyer and journalist, W.C. Wentworth, flamboyantly argued the Emancipist cause in the colony’s courts and then broadcast virtual transcripts of the proceedings via his newspaper, the Australian. The newspapers took on the de facto role of law reporting; editorials and letters could read like law journal articles. Points and authorities on the availability of the writ of mandamus were not beyond the popular press. The colony’s third newspaper, the Monitor, edited by the radical E.S. Hall, campaigned ceaselessly for the legal rights of convicts. As the number of judges and lawyers in the colony grew, especially from about 1820, the rule of law ideology found more eloquent and authoritative exponents. Chief Justice Francis Forbes assessed his own role with a great sense of the history described above:
The People of this country look with the most intense anxiety at every act, every opinion of the Judge; without trial by jury, without the corrective Power of an assembly, without one single popular right, they naturally regard the Supreme Court as their only protection against absolute power; their rulers may be the best possible, but they will not probably be better than the rulers at home, and why have the People of England imposed all those checks and balances, but upon the assumption that they are necessary; and if they are necessary there, why should they be less so in New South Wales? . . . I have strained hard to preserve its [i.e. the Supreme Court’s] independence . . . a far greater protection to the government, than in the seeming acquiescence of a pliant judge, than in all the subserviency of the most obsequious bench.62
But of course, these Botany Bay Whigs did not have it all their own way. ‘Damn the Law! My will is the Law!’, Governor Bligh expostulated with a fine disregard for the rule of law tradition. He was not the last of the military and naval governors of New South Wales to become impatient of the checks placed on his authority. Justice Jeffrey Bent scorned Governor Macquarie’s principle of government described by the judge as, ‘quod gubernatori placet, legis habet vigorem.’63 Similarly, Chief Justice Forbes said apprehensively of Governor Darling that there was ‘Law in his voice, and fortune in his law.’64 It is not difficult to hear the echoes of the seventeenth century in these utterances.
On the other side of the argument, governors, and the Exclusives, chafed at the idea that felons had rights. Yet even they were sensible of the demands of the rule of law. John Macarthur and his faction skilfully used the courts in the lead up to the Rum Rebellion to achieve their objectives. Only when that strategy failed did they resort to armed force. After the Rebellion they sought to cloak their actions in legality.65 Macquarie, at his wits’ end and driven to ill-considered actions by the recalcitrance of his judges, pleads for an indemnity from the government for ‘unwitting’ illegalities.66 After a brief flirtation with rights for convicts, Governor Darling thought it absurdly pretentious of the Emancipists – as the quotation opening chapter 2 shows – to assert rights that he considered forfeited by those, bond and free alike, who had settled in a penal colony.67 Exclusives’ spokesman of the 1830s, James Macarthur, complained to the Molesworth Committee about the Supreme Court’s harassment of the gentry magistrates with ‘legal’ technicalities.68 From the Bench in 1834, the Tory judge Burton’s famous charge to the jury railed against the Emancipist campaign for trial by jury.69 James Mudie ridiculed the claims of ‘the felonry of New South Wales’.70
For the original inhabitants of the colony, the Aborigines, the rule of law provided cold comfort. For the white free settlers, convicts and emancipists, it provided a measure of protection against power from the top, and eventually was the instrument through which their claim to political status was realised; for the Aborigines, its authority stood behind their forceful dispossession, its protection proved largely illusory, its courts were closed to Aboriginal testimony, and its principles denied the existence of their own laws. As we have seen in [79] chapter 1 – and will see again in relation to policing – legal rules, even for murder could mean little without the mechanisms and the will to realise the protections promised by the rule of law. At times this could descend to savage parody. In 1826, for example, Attorney General Saxe-Bannister protested to Governor Darling about the illegality of an army reprisal patrol against Aborigines in the Hunter River area:
I have formed the opinion that the indiscriminate slaughter of offenders, except in the heat of immediate pursuit, or other similar circumstances, required preliminary solemn Acts – and that to order soldiers to punish any outrage whatever in their way is against the law, which is powerful enough to guard the Public Peace from any permanent aggression.71
As the governor pointed out to London, the attorney-general’s solution to the problem was mad: a declaration of martial law and the attorney at the head of the troops.72 Official enquiries into such raids raised the ire of land-hungry white settlers and antagonised the governors only agents for the imposition of the rule of law at the frontier, the military and the police.73 Aborigines were excluded from the protection of the rule of law just as surely as they were from their land.
Two cases in the 1830s clarified the status of the Aborigines. In the first, Jack Congo Murrell was tried for murder of another black. Defence arguments that the British law did not protect the blacks, that they did not understand the white law, and evidence that they had their own code of laws all failed.74 Two years later seven whites were tried for the murder of some 28 Aboriginal captives. It was dubbed the Myall Creek Massacre. At the first trial they were acquitted. The attorney-general filed a new presentment for murder of victims, including some children, not named in the first indictment. This time the jury convicted and seven defendants were hanged. White campaigners for the defendants berated the attorney-general; the Grand jury system – a casualty of the colonial situation in New South Wales – would not have issued an indictment, they claimed. Since one of the organisers of the campaign was a magistrate and therefore likely to have been on any Grand jury, this was almost certainly true. The gentry regarded the attorney-general’s role as a dangerous innovation and a threat to their freedom.
The Myall Creek murderers were civilians, and those who hanged were convicts or emancipists. A large part of the protest on their behalf turned on the injustice of selecting them for prosecution and Punishment, despite the occurrence of many previous similar inci-[80]-dents. The number of blacks killed, the cold-blooded nature of the killings and the fact that those tried were all convicts or emancipists probably explained the selection. But the argument reveals how little protection the rule of law offered Aborigines.75 An inquiry in the following year was unable to find conclusive evidence against a combined party of soldiers and the Mounted Police led by Major Nunn. Governor Gipps had to yield the day against them and the British government resigned itself to anarchy and the extermination of the Aborigines beyond the frontier. It was not willing to pay the price required to enforce the rule of law at and beyond the frontier.76
The rule of law had a strong hold within white society because whites had access to the courts. The blacks had to rely on whites to activate the processes of law for whatever protections it offered them. Despite the ruling in Murrell’s case, as a practical matter, the Aborigines stood outside the protection of the rule of law. While the whites carried on their own battles within the rule of law framework, it was put to one side in their dealings with the blacks.
The transition of New South Wales from penal colony to free society owes a great deal to the English conception of the rule of law. Although the claims of convicts on emancipation owe something to the ‘rights of man’, they owe more to arguments based on the terms of their pardon which purported to restore them to all the rights and liberties of English people. Through the legal system, as will be seen in the following chapters, they explored those rights and had them symbolically confirmed, for example, by testing their standing to sue in the courts, paradoxically a right not allowed to people in England convicted of a felony unless in receipt of a royal pardon. Their complaints about the constitution of the Criminal Court in the colony, staffed by a judge-advocate and uniformed officers, echo the themes of English history for the two previous centuries: they objected to the involvement of military officers in civilian tasks; they objected to being tried by any means other than a British jury, a vital aspect of their liberty; they objected, with good reason, to the partiality of the military juries in the early years. They saw these departures from English models as deprivations of the rights guaranteed to them by the Magna Carta which, as Blackstone assured, accompanied them wherever English people planted colonies.
The growth in wealth and influence of the Emancipist group by about 1820 meant that the ambiguities of their position and that of the colony, somewhere between a penal colony and a free society took on new importance. The increasing numbers of free former con-[81]-victs, in addition to the handful of wealthy free settlers meant that pressures built up to realign relationships not only between the free settlers and the emancipated convicts, but also between those groups and the autocratic power of the colonial governors. The issue had been developing in earnest since Governor Macquarie’s arrival in 1810. He attempted to enlist the symbolic force of the legal system to pursue his pro-emancipist policy. His attempts to establish a place for emancipists in the magistracy and to force the courts to continue to allow ex-convict attorneys to practise before them met tenacious opposition from the Exclusives.77
This conflict intensified opposition between Emancipists and Exclusives. Moreover, by 1819 it was becoming clear that some devolution of political power was on the agenda. The legal status of emancipists became a politically crucial issue. If they were indeed returned to all the rights and privileges of free-born English people, then their wealth and greater numbers guaranteed them a large share in such power. On the other hand, if they could be fixed with some disability pertaining to their former status, power would be left to the Exclusives. As their name suggests, the Exclusives did try to use former convict status as a disqualifying factor over and above property qualification, the traditional criterion of civic status in English politics. They fought out this battle within a legal rubric in which from 1819, trial by jury became the central issue of contention.78
Parallel to this struggle, two others ran on at the same time. The first centred on the power of the governors. Successive governors found themselves in conflict with the opponents of the particular group they favoured. The second concerned the position of the courts in the configuration of power. Their relationship to the governor and to the contending groups was crucial because so many of the disputed issues either fell to the courts for decision or, because of the limited options for political action in the colony, were forced into legal form and directed to the courts as a strategy in the political conflict. The usefulness of the courts in this strategy depended on their relationship to the governor; they would be of little use to the contenders if they were simply subordinate to the governor on issues touching government policy.
As we will see in chapters 4 and 5, the issue of the independence of the courts, both at the level of the Supreme Court and the magistrates’ courts, was a persistent one throughout the transportation Period. For the first two decades, the judge-advocates (with one brief exception) had no legal training. In a colony where the government was small, any finding of executive illegality would be one untrained [82] person’s opinion as judge against that of his governor. Moreover, the ruling was more than likely to touch on an issue in which the governor was directly involved, and hence to constitute a very public blow to the governor’s authority.
With the arrival of the first of the professional judges in 1810, and the growth of a legal profession which could claim expertise in legal matters (convict attorneys in the colony prior to 1808 had advised the governor and assisted the courts), the potential for these conflicts increased. The judges, without exception, found themselves caught up in the politics of the colony on one side or the other, pro-governor or pro-monopolist, pro-Emancipist or pro-Exclusive, radical or conservative. The arrival of Wentworth and Wardell in the early 1820s – men skilled as both barristers and journalists enlivened these conflicts with their radical ideas. Not content with the political forum offered by the courts, they used their own newspaper, the pro-Emancipist Australian, to broadcast their courtroom arguments and rule of law rhetoric. Attempts by the conservative Governor Darling to silence these press critics only gave rise to further conflicts, which were played out in the Supreme Court. In a very direct sense, the judges and the lawyers were the culture bearers who engraved the detail on colonial politics using the rule of law as their cutting stone.
At another level of the legal system, the magistracy offered another site from which to fight the colony’s political battles, a site colonised by the Exclusives. Governors were forced to rely on justices of the peace to administer the convict system as well as to run the summary courts and administer the police at local level. Yet the traditions of the office, as well as the independence offered them by the rule of law in their judicial capacity, meant not only that the magistrates could enjoy a good deal of freedom from the governor’s supervision, but also that the position could be used to oppose the governor’s policy, harass political opponents and enhance the claims to prestige of the office holder. And this is to say nothing of the personal power and advantages offered by the magistracy at local level over the convict and the free population.
As we will see in chapter 5, after a few emancipist appointees, magisterial appointments fell to the Exclusives. With the exception of stipendiary magistrates, whose loyalties were somewhat divided, control of local government and those everyday enforcers of the rule of law, the police, fell to the Exclusives. In the end, however, they missed their opportunity to maintain this power by their failure to move into the squatting districts beyond the frontiers of the settlement. Policing of this territory fell by default to forces controlled by central government.
[83] The concept of the rule of law in a penal colony may appear incongruous. We might have expected something more akin to martial law or prison discipline administered by the governor, as some in England had envisaged.79 However, courts were provided and politics in the penal colony soon took on an English form which stressed the rule of law as the measure of legitimacy. Ideas which were already prominent in English politics took on heightened importance in a penal colony where there were so few other means of political expression.

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 -> 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
FTP -> Chapter 5 — Cranford V. Wright: Law and Authority in British Columbia
FTP -> Chapter 2 — the contradictions of convict law the impossibility of strict law, 1820–1840

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