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Saturday 27 July 2013

New South Wales and the ‘rule of law’

NSW was by any standards a different sort of colony, like Newfoundland ‘an anomalous society too divided and too backward to be able to work the old representative system’.[1] In its early decades the lack of conventional legislative bodies and the single-minded commitment of Governors to establishing and maintaining a convict colony meant little open debate and conflict over the meaning of the rule of law. This occurred, despite the fact that Lord Sydney, the intellectual planner of the colony seems to have imagined it as a society of freemen. Under the practical disciplinary guidance of Governor Phillip and his successors various forms of radicalism including republicanism were entertained by some convicts, especially those transported for political crimes, such as Maurice Margarot, the Scottish martyr and General Joseph Holt, one of the many United Irishmen to be transported.[2] However, as long as these people were subject to penal law, most had no accepted public forum for voicing their views.

After 1800, the discourse and rhetoric of the rule of law began to be invoked more openly by groups in the colony who stood outside the executive and judiciary. Convicts were pardoned and emancipated. Some of these, such as Margarot, continued to nurse the radical views for which they had been transported. Others deployed the rule of law out of pure self-interest. George Crossley, a former attorney transported for perjury, appealed to both English law and the rule of law to vindicate his own dubious machinations in the court room, whether as litigant or legal adviser.[3] As Governor Philip Gidley King discovered, convicts or emancipists who were literate, gentlemanly and with influential friends in Britain, could be potential problems when they invoked the Ancient Constitution, Magna Carta and the rights of freeborn English men in their correspondence with the executive. King was well aware that his predecessor John Hunter had been recalled after complaints about the governor’s alleged fiscal mismanagement of the colony to the Colonial Office by Thomas Fyshe Palmer, Scottish Martyr turned colonial businessman.[4]

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Anonymous, Philip Gidley King

It was self-protective instincts at work then that caused King to react sourly to being castigated for abusing the rule of law by John Grant, in 1805.[5] Grant had been transported in 1803 after being sentenced to death for the attempted murder of a solicitor who had warned him off an heiress with whom he was obsessed. He had arrived in the colony with 50 hogsheads of brandy purchased in Rio and expected, given his class, to be put on the government pay roll. Governor King, no doubt distracted by the aftermath of the Castle Hill Rebellion of Irish convicts in 1804, was not responsive to Grant’s pleas to be allowed to land his brandy and to be granted a job. The gentleman convict reacted unfavourably when King granted him a conditional pardon in 1805, which he found to his dismay did not allow him to return to England until the close of his sentence. In high dudgeon he wrote to the Governor. After quoting from Blackstone on the rights of English subjects in ‘uninhabited’ lands and with a brief reference to Magna Carta, he inveighed

Now Sir! I ask you as an Independent Englishman, witnessing with astonishment the miserable state to which Thousands of Unfortunate Men are reduced in this country, by what Authority do those in power at home, by what Right do you, make Slaves of Britons in this distant corner of the Globe? ... [A]t your Door lies all the blood spilt in the struggle of half-starved Men for Personal Liberty in this Country. [6]

Even though Grant and several other gentlemen and political prisoners, including Margarot, were re-transported for their temerity in accusing the Governor of despotism, they can be said to have kept the discourse and rhetoric of the rule of law alive in the colony, at least in providing a yardstick by which governmental performance should be judged. Moreover, the fact that Grant who had also directed similar sentiments to Judge-Advocate Richard Atkins[7] was called before the judge on the direction of King, convicted of sedition and sentenced to five years hard labour on Norfolk Island and VDL suggests that those in the executive recognised the potential power, and, for them, the subversive quality of this rhetoric. [8]

Growing opposition to the arbitrary authority of successive governors came from an emerging colonial elite ready to impress its image of governance and society on the colony. The role of the exclusionists, led by John MacArthur, in seeking to secure their social and economic ends is a case in point. While they received a set-back in the wake of the Rum Rebellion of 1808, their disgrace was only short-lived. The exclusionists cultivated strong connections with conservative politicians in Britain and sought to exercise their influence both with the imperial government and at home in Australia,[9] They were the group from whom the magistracy was selected and, as a result, they secured considerable power at a local level. Moreover, with varying degrees of success they sought to put pressure on governors to further their aims of ultimate involvement in government of the colony. Lachlan Macquarie who sought the full inclusion of emancipists in colonial society was not well disposed to them.[10] They fared better with his successor, Ralph Darling, who faced attacks from the emancipists and their champions.[11] The NSW ‘Family Compact’, ‘a snug coterie’ and ‘a family party’ as W.C. Wentworth once described them, was not as consistently influential as its Upper Canadian counterpart. This is because there lacked the executive and legislative bodies through which they could influence the political process. Their pressure operated at a vicarious level in that they had to secure their ends through allies in the expatriate colonial administration or their friends in London.[12]


[1] Ward, J.M., Colonial self-government: the British experience 1759-1856, (Macmillan), 1976, p. 130.

[2] Ibid, Silver, Lynette, R., The Battle of Vinegar Hill: Australia’s Irish Rebellion, pp. 128-130 contains pen portraits of several convicts, including Maurice Margarot and Thomas Fyshe Palmer (‘Scottish Martyrs’). See also, Roe, Michael, ‘Margarot, Maurice (1745-1815)’, ADB, Vol. 2, pp. 206-207.

[3] Allars, K.G., ‘Crossley, George (1749-1823)’, ADB, Vol. 1, pp. 262-263 and ‘George Crossley: An Unusual Attorney’, Journal and Proceedings of Royal Australian Historical Society, Vol. 44, (5), 1958, pp. 261-300.

[4] Earnshaw, John, ‘Palmer, Thomas Fyshe (1747-1802)’, ADB, Vol. 2, pp. 312-313.

[5] On this see Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, (National Library of Australia), 2000, pp. 89-153 and Lynravn, N.S., ‘Grant, John (1776 -)’, ADB, Vol. 1, pp. 469-470.

[6] Ibid, Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, p. 105; Grant to King, 1 May 1805, HRA, Series I, Vol. 5, p. 537.

[7] Bennett, J.M., ‘Atkins, Richard (1745-1820)’, ADB, Vol. 1, pp. 38-40.

[8] Ibid, Cramer, Yvonne, (ed.), This Beauteous and Wicked Place: Letter and Journals of John Grant, Gentleman Convict, p. 116.

[9] Eddy, J.J., Britain and the Australian Colonies 1818-1831: The Technique of Government, (Oxford University Press), 1969, pp. 68-70.

[10] Ward, J.M., James Macarthur: Colonial Conservative 1798-1867, (Sydney University Press), 1981, pp. 20-33.

[11] Ibid, Neal, David, The Rule of Law in a Penal Society: Law and Power in Early New South Wales, p. 108. See also, Fletcher, B.H., Ralph Darling A Governor Maligned, pp. 103-130, 257-275.

[12] Wentworth W.C., Statistical, Historical and Political Description of the Colony of New South Wales, and its dependent Settlements in Van Diemen’s Land, 1819, 2nd ed., (G. and W. B. Whittaker), 1820, p. 383.

Saturday 20 July 2013

Australia and the ‘rule of law’

Elsewhere there might be the sultan’s caprice, the lit de justice, judicial torture, the slow-grinding mills of the canon law’s bureaucracy and the auto-da-fe of the Inquisition. In England by contrast, king and magistrates were beneath the law, which was the even-handed guardian of every Englishman’s life, liberty and property. Blindfolded Justice weighed all equitably in her scales. The courts were open, and worked by known and due process. Eupeptic fanfares such as those on the unique blessings of being a free-born Englishman under the Anglo-Saxon derived common law were omnipresent background music. Anyone, from Lord Chancellors to rioters could be heard piping them (though for different purposes).[1]

In this stylish statement Roy Porter pointed to the rule of law’s popularity as a rhetorical device in eighteenth century England where it was ‘the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries.’[2] Arising out of struggles between the monarchy, Parliament and the courts, the rule of law sought to protect individual liberty and private property by placing constraints on arbitrary authority. The ruling class used the rule of law ideology to enhance their power, but it also acted as a break on that power. All citizens from the monarch to the poorest citizen became bound by the rule of law and could settle their disputes in the courts presided over by judges, who were independent of manipulation.[3]

Most people in both English society and British colonial settler communities believed that the rule of law also had substantive content and was a highly flexible notion. The list ranged from the inherently legal to the explicitly political. Its meaning depended on who was employing it and for what purpose. In one form or another the rule of law embraced: the right to justice by the judgement of one’s peers conceded in Magna Carta and trial by jury (both elements of claims of an Ancient Constitution); habeas corpus, a protection solidified during the latter half of seventeenth century[4]; freedom from suspension of or dispensation from laws of Parliament secured after the Glorious Revolution of 1688; the independence of the judiciary established by the Act of Settlement 1701[5] but not operative in the colonies until the middle third of the nineteenth century and its corollary, the right to a trial according to law and established legal procedures involving the application of rational principles; and, freedom from intrusion and arrest by the use of general warrants developed by the courts during the mid-eighteenth century.[6] Closely allied and overlapping with the rule of law were a series of ‘constitutional rights’, some of which seemed settled, at least in Britain, such as no taxation without representation and the right to petition the Crown and others protections such as freedom of the press, freedom of association, freedom of assembly, and freedom of conscience.

The ideology and practice of the rule of law were exported to Britain’s colonies. According to the English jurist William Blackstone, writing in 1765,

...if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For the law is the birthright of every subject, so wherever they go they can carry their laws with them.[7]

But, as David Neal has pointed out, in practice this depended on the circumstances of the colony. Neal seeks to discover what the rule of law meant in the particular circumstances of the Australian penal colony of NSW from its foundation in 1788.[8] As convicts, ex-convicts, and their children made up an increasingly large proportion of the population (87 per cent in 1828 and 63 per cent in 1841), British governments wanted liberty to be restricted by their representatives, the governors and that did not augur well for the rule of law. Until 1823, governors ruled in an autocratic manner and had extensive discretionary powers but agreed with the British government that the transported criminals needed to be kept under close surveillance and punished firmly and quickly if they broke the rules.[9] Colonists whether free settlers (the Exclusives) or ex-convicts (the Emancipists), felt they were too closely watched and demanded that the rule of law be recognised as protection against the arbitrary rule of the governor. While the colonists waged their campaign for civil and legal rights, the courts became ‘a sort of broking house of power.’[10] Colonists expressed their opposition to the actions of governors, while governors sought to have their actions and authority legitimised by judicial process. Even convicts soon learned to use the magistrates’ courts for their own purposes.

Neal argues that the political ideas and discourse of the colonists were based on their English legal inheritance as systematised by Blackstone in his Commentaries on the Laws of England.[11] They claimed ‘no more than their rights as free-born Britons, rights guaranteed by the Magna Carta, Habeas Corpus, the Bill of Rights, [and] the Act of Settlement.’ Seeking ‘to forge a new social and political order out of the penal colony’, they demanded an independent judiciary, trial by civilian, not military, jury, and representative government.[12] The first important step in consolidating the rule of law in NSW occurred in 1824 when the newly established Supreme Court began to hear cases. It was staffed by judges appointed in England who supported the principles of the rule of law and were a major counterweight to the power of the governors. The achievement of a nominated legislature, the development of a free press and the introduction of civilian jury trials were also significant landmarks in entrenching the rule of law. But it was not until a partially elected legislature was formed in 1842 that, Neal argues, NSW finally changed from a penal colony to a free society, a situation helped by the ending of transportation to the colony.


[1] Porter, Roy, English Society in the Eighteenth Century, (Penguin), 1982, p. 149.

[2] Thompson, E.P., Whigs and Hunters: The Origin of the Black Act, (Penguin Books), 1977, pp. 263-264; see also Hay, Douglas, ‘Property, Authority, and the Criminal Law’, in Hay, Douglas, et al, (eds.), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, (Penguin), 1977, pp. 17-63

[3] According to Neal, the rule of law had 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.’ These elements must be applied in the everyday working of the legal system and not be used by the governing classes for rhetorical effect or only when convenient to their interests. See ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 67.

[4] This right was given legislative recognition in the Habeas Corpus Act 1679.

[5] The constitutional position of the judiciary was established in the Act of Settlement, 1701, s 3.

[6] See Leach v Money (1763) 19 State Trials, 981; Entick v Carrington (1765) 19 State Trials, 1045.

[7] Blackstone, William, Commentaries on the Laws of England, (University of Chicago Press), 1979, Vol. 1, pp. 104-105.

[8] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. xii, 15, 32 and 64.

[9] For the debate on the kind of convicts sent to Australia, see Garton, Stephen, ‘The Convict Origins Debate: Historians and the Problem of the ‘Criminal Class,’’ Australian and New Zealand Journal of Criminology, Vol. 24 (1991), pp. 24-82 and Dyster, Barrie, ‘Convicts’, Labour History, Vol. 67, (1994), pp. 74-83.

[10] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 190.

[11] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 23 and 25.

[12] See, Blakeney, Michael, ‘The reception of Magna Carta in NSW’, Journal of the Royal Australian Historical Society, Vol. 65, (2), 1979, pp. 124-142.