Journal & Proceedings of the Royal Society of New South Wales, vol. 151, part 2, 2018, pp. 135–141. ISSN 0035-9173/18/020135-07

Barron Field and the Myth of Terra Nullius

Justin Clemens Associate Professor, School of Culture & Communication, The University of Melbourne E-mail: [email protected]

Abstract While Judge of the Supreme Court of New South Wales, Barron Field published the first book of poetry in Australia in 1819. Field was also one of the founders of the Philosophical Society of Aus- tralasia in 1821.

he year 2019 will see another Austral- Yet it wasn’t only his enemies who mocked. Tian bicentenary, the 200th anniversary Many of Field’s friends weren’t so keen on of the first book of poetry published in this his verses, either. In his 1847 obituary for country. You could be forgiven for knowing Field in the New Monthly Magazine, Horace neither the book nor its author; you could Smith remarked of Field’s poetry that “as probably also be forgiven for not finding the truth is my friend, even more than Plato, event all that worthy of memorialisation, let I must confess my regret that he did not alone celebration. Aside from a few special- suppress them, for the gods had not made ists in colonial literature and a handful of him poetical, his ear appearing to have been historically inclined local poets, what pos- absolutely insensible to the requisite rhythm sible interest could the (exceedingly) minor of verse”. Such judgements have recurrently poetaster Barron Field — yes, his real name been made of Field’s poetry over the sub- — and his First Fruits of Australian Poetry sequent centuries: even when his poems hold for contemporary Australians? Would are (irregularly) anthologised, it seems to they be of more interest if they were crucial be more for their quaintness and histori- evidence in the establishment of terra nullius cal import than for their inherent power or in this country? interest. No wonder Field has never really Field’s own contemporaries tended to proven to be a key reference for Australian irritation and disinterest, when they weren’t poets or their critics. downright contemptuous. The wits had, so Then again, poetry may well have been to speak, a field day with his poems — the Field’s passion but it wasn’t his day job. He man’s name, unsurprisingly, providing rich was a lawyer, and, more to the point in this soil for the punsters. As one anonymous context, at the time of producing the book squib from the 1820s, now preserved in the in question he was Judge of the Supreme Mitchell Library, declares: Court of New South Wales. Appointed in “Thy poems, Barron Field, I’ve read May 1816, Field arrived in Sydney with his And thus adjudge their meed — wife, Jane, in February 1817, and was imme- So poor a crop proclaims thy head diately catapulted into the highest echelons A barren field indeed!” of colonial society. His salary, supplemented by court fees, was very substantial; he also received a large grant of land in Cabramatta.

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According to C. H. Currey’s entry in the the penal colony, and who ended up tabling Australian Dictionary of Biography, Field dealt three critical reports in the House of Com- with 165 actions at law and 13 equity suits mons, wrote of Field: between April 1817 and January 1821; he “The convict part of the population of also presided at the first sitting of a Supreme New South Wales view Mr Justice Field’s Court in Van Diemen’s Land in 1819. In administration of the law with senti- other words, Field was an exceedingly ments of dissatisfaction. The free classes important personage at a moment in the of the population … equally apprehend fledgling colony of New South Wales when the effects of his violent and unforgiving the vagaries of individuals could prove to temper, as well as of his personal preju- have disproportionate consequences. dices, upon his future decisions … In my That said, Field doesn’t seem to have opinion, Mr Justice Field does not pos- been a terribly successful law man either. As sess that degree of temper and deliberation John Byrnes rather understatedly remarks, necessary to conduct the judicial business “Field was not personally popular.” It would of such a Colony.” probably be more accurate to state that he The negative reviews don’t stop there. was outright loathed both by many of his Perhaps the most eminent hater was none colonial brethren and by the imperial gov- other than Benjamin Disraeli, who in 1830 ernmental types with whom he had pro- pronounced Field to be “a bore and vulgar fessional dealings. He fought bitterly with … a noisy, obtrusive, jargonic judge … ever Governor Lachlan Macquarie, as well as with illustrating the obvious, explaining the evi- John Macarthur, whose appointment to the dent, and expatiating on the commonplace”. magistracy Field had attempted to scotch. A rebarbative and inveterate mansplainer, Macarthur’s enmity was such that he sent then, avant la lettre. It was no doubt in part a threatening letter to Field before the lat- due to his less-than-winning personality that ter’s departure to England in 1824. “You will Field spent the remainder of his career as therefore, Sir,” Macarthur writes, “be pleased an ineffectual judge in Gibraltar, retiring to to understand that I accuse you of having England only a few years before his death. knowingly and deliberately committed an In a summation of Field’s contributions in act which the manners of a gentleman forbid Dewigged, Bothered, & Bewildered: British me to name even under the sanction of your Colonial Judges on Trial, 1800–1900, John example.” This is, as Byrnes notes, an invita- McLaren concludes that tion to a duel. Given Macarthur’s notorious irritability, it was clearly lucky for Field that “Field’s record as a judge could best be he was on his way out at the time. described as mercurial, a reflection of Yet it wasn’t just Macquarie and Macarthur his conservative belief system, a commit- who were hostile to Field. Towering figures ment to the culture of English law, and in the imperial administration at home were an opportunistic streak in his character … already entertaining doubts about his reli- Field’s counsel was not invariably sound ability. John Thomas Bigge, who had been or in keeping with the Colonial Office’s dispatched to New South Wales by Earl understanding of the legal proprieties.” Bathurst to investigate the functioning of

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And yet, and yet … despite such cal Memoirs on New South Wales; By Various continued bad press, Field was clearly not Hands, a collection he edited, where they sit without certain impressive endowments. He rather oddly with the journal entries and was a direct descendant of Oliver Cromwell, meteorological charts, the botanical descrip- a fact of which he was exceedingly proud. He tions and the imperialist opinionating. had published the self-confessed first analysis It has to be admitted that the poems are of Blackstone’s Commentaries, aimed at law pretty weird. Wreathed about with an ever- students, and it went into many editions accreting and often-mystifying apparatus of through the 19th century. He was theatre epigraphs and erudition, their subjects are critic for The Times. He was friends with the strange, their rhythms erratic, and much of great English Romantic critics Charles Lamb their matter is flagrantly plagiarised. “Botany and Leigh Hunt, as well as an aficionado Bay Flowers”, for example, is an extraordi- of the Romantic poets, especially William nary pastiche of Shakespeare, Milton and Wordsworth, of whom Field attempted a Wordsworth (and many more), where Field biography. The publication of the latter tells a tale of antipodean botanical adultery, was, sadly for Field, vetoed by Wordsworth in which he marries one flower, only to be himself in 1840. Despite this setback, Field, seduced by another. As for “The Kangaroo”, who was a lifelong enthusiast for Elizabethan let me quote the first stanza: and Jacobean literature, prepared editions of “Kangaroo! Kangaroo! Thomas Heywood and Thomas Legge for Thou spirit of Australia, the Shakespeare Society. Lamb in particular That redeems from utter failure, seems to have had a real admiration for and From perfect desolation, friendship with Field. He reviewed First And warrants the creation Fruits for the radical intellectual journal Of this fifth part of the earth, The Examiner in 1820, before dedicating Which should seem an after-birth, one of his most celebrated essays, “Distant Not conceiv’d in the beginning Correspondents”, to the lawyer-poet in the (For God bless’d his work at first, same journal in 1822. He also informed And saw that it was good), Field of the esteem that Wordsworth and But emerg’d at the first sinning, Coleridge had apparently shown for Field’s When the ground was therefore curst: — poem “The Kangaroo”. And hence this barren wood!” Field clearly felt his verses were worthy of Whatever your feelings about their value, attention. The first edition ofFirst Fruits in it’s difficult to miss the strong satirical streak 1819, printed by George Howe in Sydney, of these jaunty lines, along with Field’s evi- and with the legend “Printed for Private Dis- dent preparedness to pun on his own name tribution” on the title page, contained two and person. But it’s also significant that poems, “Botany Bay Flowers” and “The Kan- Field is using words that, however straight- garoo”. In 1823, Field had a second, revised forward they seem today, weren’t so at the and expanded edition, which added further time. There was as yet — perhaps most nota- epigraphs and apparatus, as well as four fur- bly — no country called “Australia”. There ther poems. Finally, in 1825, Field reprinted were the colonies of New South Wales and the poems as an “Appendix” to Geographi- Van Diemen’s Land, yes, and the name of

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Terra Australis was an ancient one in Europe. “According to the [Latin] grammarians satura Governor Macquarie had certainly started is short for lanx satura … which is alleged to to moot the idea, following the publication have been used for a dish containing various of Matthew Flinders’ journals a few years kinds of fruit.” Moreover, if “first fruits” is previously, but most people were still refer- an idiomatic expression denominating the ring to the landmass as “New Holland”. As earliest returns on labour, it is also, more David Brooks remarks, “Field’s use of the pointedly, a technical term from ecclesiastical term ‘Australia’ … is arguably the first in and feudal law. “First fruits”, as Justice Field poetry anywhere.” In fact, Field uses the knew very well from his professional role, name throughout First Fruits, strewing his is a form of income tax to the governor of a text with nominal and adjectival variations, territory. even preposterously rhyming it with “failure” As for his brief Australian sojourn, and “regalia”. residues of Field subsist all over the place. With all this plagiary and playfulness Mount Field in Tasmania is named after him, about, coupled with the explicit colonial while Cairncross Island in the Great Barrier attitudinising, it’s no wonder that the last Reef takes the maiden name of Field’s wife. few decades have seen a strong revivifica- Soon after arriving in New South Wales, tion of interest in Field’s work, particularly Field had edited Memoirs of James Hardy among postmodern and postcolonial critics. Vaux, famous, among other things, for its Many eminent Australian writers and aca- influential dictionary of thieves’ cant: “A demics — A. N. Cousins, Michael Farrell Vocabulary of the Flash Language”. As a keen and David Higgins, among others — have amateur scientist, Field observed, described all written important pieces on Field. As Jaya and collected a wide range of important Savige notes in his introduction to a special scientific and exploratory materials, much Australian edition of the prestigious journal of which was published by John Murray in Poetry, “To twenty-first-century eyes, Field’s 1825 as Geographical Memoirs on New South ‘thefts’ betray a poetics of appropriation and Wales; By Various Hands. Due to such labours, citation that wouldn’t look entirely out of Field has, according to Helen Hewson in place in a Kenneth Goldsmith class.” Yet the scientific plant journal Telopea, “two none of the critics so far has asked the ques- genera and one species … named in his tion: why is First Fruits called First Fruits? honour” (Fieldia australis, Fieldia lissochi- This might seem so obvious it’s not worth loides, and Cassia barronfieldii), as she offers asking: Field knew that he was publishing the new combination of Senna barronfieldii. the first book of poetry on Australian soil, As if that wasn’t enough, Field was critical and was pompously belabouring this fact to the establishment of the colony’s first in the title, a fact supported by a number of bank, when, according to C. H. Currey, he features in the book. mistakenly advised Governor Macquarie Furthermore, the invocation of fruits that “the governor had power, under his is alerting us to the satirical nature of the commission, to grant a charter to the Bank poems: one of the (disputed) etymologies for of New South Wales”. Established in 1817, the word “satire” is linked precisely to fruit. this bank is still with us: it was renamed As the Oxford English Dictionary informs us: Westpac in 1982. At least one other further

138 Journal & Proceedings of the Royal Society of New South Wales Clemens — Barron Field legal judgement Field proffered in the course between Lachlan Macquarie, the governor of of his antipodean duties would have quite New South Wales, and Barron Field, judge of extraordinary effects upon the subsequent the New South Wales Supreme Court, over history of Australia. whether the Crown, acting through Mac- In an important recent comparative study quarie, had the power to impose taxes on the of the relation between colonialism and law, residents of New South Wales, or whether Stuart Banner has demonstrated that Field that power was reserved to Parliament, as was decisive in the development of the was the case with taxes imposed on residents specifically Australian application of terra of Britain.” Field, in a self-conscious replay nullius. One of the abiding puzzles regarding of Sir Edward Coke’s objections to the use the centrality of this extreme doctrine in of the Kingly Prerogative by James I — that Australia is how it came to be established is, to the very disputes that ultimately led to at all. After all, there was no question that Cromwell’s victory in the English Revolu- the land was inhabited by the Australian tion — came down on the side of Parlia- Indigenous peoples, a fact acknowledged by ment. If Australia had indeed been invaded, all Europeans. If the doctrine had indeed then Macquarie, as the representative of the been previously applied in certain colonial sovereign, would have had that power, but, circumstances, by the 18th century the general for Field, Australia was freely settled, and this policy was acquisition by forms of treaty and was therefore a parliamentary matter. Earl contract. Even if the latter were evidently Bathurst, secretary to the colonies, referred iniquitous, they did not extinguish the facts the matter to Samuel Shepherd and Robert of inhabitation. For Banner, then, at least Gifford, respectively the attorney and solici- four factors contributed to the doctrine in tor generals of Great Britain, who accorded Australia: the land was sparsely inhabited, of with Field. another order than other places; the British So as far as we know the first formal state- saw no evidence of Indigenous cultivation ment of terra nullius in this country derives of land; the Indigenous peoples were not a from a tax dispute between the colonial gov- military risk of the same order as American ernor of the penal colony and the bumptious or New Zealand peoples; and the Indigenous supreme justice of that colony. peoples showed no interest in European In common European colonial thinking, goods or trade. (Needless to say, each it was agriculture that established “a more statement now appears highly contentious.) permanent property in the soil” (to quote Hence, although Captain James Cook had Blackstone). Field in Geographical Memoirs expressly been ordered not to seize land from notes the ongoing displacement of Austral- any inhabitants, by the 1780s Arthur Phillip ian flora and fauna through the extension of was. In such fashion, terra nullius was de European-style agriculture in the colony, not facto already enacted before it was formally to mention the distress of the original inhab- declared as doctrine. itants. Yet it was the agricultural civilisation How then did terra nullius ever come to and its fruits — taxes — that had primacy in be declared as doctrine at all? “The first such European law, and Field could hardly have statement,” Banner writes, “appears to have been more attentive to this fact. Banner’s been made in 1819, when a dispute arose own comparative studies have induced him

139 Journal & Proceedings of the Royal Society of New South Wales Clemens — Barron Field to suggest that “where indigenous people restitution or reparation without the repeti- lacked agriculture before European con- tion of misdeed. tact … the colonial acknowledgement of Field himself took the question of indigenous property rights was weaker or memorials very seriously. In the second nonexistent”. Let us add, following the work edition of First Fruits, the newly added of Bill Gammage and Bruce Pascoe, among poems directly pick up a European history others: agriculture recognisable to Europe- of memorialisation back to the ancient ans, that is. Greeks, in order to project a potential future At precisely the same moment that Field of glory for the colony. As a member of the is struggling over the legitimate grounds of Philosophical Society of Australasia, Field taxation with Governor Macquarie, he pro- was instrumental in sponsoring the first duces these poems and this book. They barely memorial erected in Botany Bay to Cook and resemble the poetry that he had previously Joseph Banks. Yet at least one of his sonnets, published in the early 1810s, for example as Chris Healy points out in From the Ruins in The Examiner, nor his only other collec- of Colonialism, “is rare in making explicit tion, Spanish Sketches, published in 1841. I the violence of the initial British encounters propose that they can be understood in the with Aboriginal people and in remembering context of this dispute, as if Field wrote them that the most material European remnant to say, “F*ck you, Macquarie, this satire is of the Endeavour’s brief stay in Botany Bay all the taxes you’re getting from me.” After was a grave”. What the Europeans brought all, the name “Australia” in Field’s poetry to a locale that they had named precisely doesn’t designate a stable financial or tax for its wild profusion of flora was the mark entity, but functions as an expressly fantastic of death. name drawn from an old European tradi- In his Defence of Poetry, the great Roman- tion of satirical takes on the Great Unknown tic poet Percy Bysshe Shelley resoundingly Southern Land. Yet, in order to do so, Field declared that “poets are the unacknowledged had to offer what has proven to be a most legislators of the world”. This proposition iniquitous legal fiction. has perhaps never been so directly true as So why return to Field today? In an epoch in Australia. “Barren field” is a possible, if of decolonisation struggles globally, where lateral, translation of one sense of terra nul- memorials to such figures as Cecil Rhodes, lius. It is as such that — unacknowledged yet American Civil War soldiers and, in Australia, omnipresent — the lawyer-poet Barron Field Captain Cook have quite rightly become the literally imposed his name on this land. objects of strenuous contestation, Field is at best a highly ambivalent figure. However, Acknowledgements the politics of memory and memorialisation Reprinted with permission from The Monthly, are paramount even in the most recondite October 2018. References added. academic researches. Every memorialisa- tion is also invariably a form of motivated forgetting; every memorialisation reopens the question of whether there can be some

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References Gammage, B. (2011). The Biggest Estate Banner, Stuart. (2005). Why Terra Nullius? on Earth: How Aborigines Made Australia. Anthropology and Property Law in Early Sydney: Allen & Unwin. Australia, Law and History Review, 23(1): Healy, Chris. (1997). From the Ruins of 95-131. Colonialism: History as Social Memory, Brooks, David. (2017). Field’s Kangaroo. The Cambridge: C.U.P. Kenyon Review. Mar/April, pp. 29-43. Hewson, Helen. (2005). Justice for Justice Byrnes, John V. (1961). Barron Field — Barron Field, Telopea, 11(1): 95-98. Recultivated. Southerly, 21(3): 6-18. Higgins, David. (2010). Writing to Colonial Cousins, A.D. (1999). Barron Field and the Australia: Barron Field and Charles Lamb. Translation of Romanticism to Colonial Nineteenth-Century Contexts, 32(3): 219-233. Australia. Southerly, No. 58, pp. 157-174. Little, Geoffrey. (1976). A Lesson in the Art of Curry, C.H. (1966), Field, Barron (1786– Poetry: Barron Field and Wordsworth’s Later 1846), Australian Dictionary of Biography, Revisions. AUMLA, No. 45, pp. 189-205. Canberra: A.N.U. http://adb.anu.edu.au/ Little, Geoffrey, (1997). “The Far Distant biography/field-barron-2041 Shores Where the Kangaroo Haunts”: Farrell, M. (2013), Affective and Transnational: Barron Field’s Voyages and Expeditions. The Bounding Kangaroo, J. of the Assoc. for Arts: The Journal of the Sydney University Arts the Study of Australian Literature, 13(3): 1-13. Association, pp. 69-87. Field, B. (1819) First Fruits. Sydney: Printed McLaren, J. (2011). Dewigged, Bothered & by George Howe, 8pp. Bewildered: British Colonial Judges on Trial, Field, B. (1823) First Fruits. 2nd Ed.. Sydney: 1800–1900. Toronto: University of Toronto Printed by R. Howe, 19pp. See also http:// Press. gutenberg.net.au/ebooks13/1304421h. Pascoe, B. (2014) Dark Emu, Black Seeds: html#ch22 Agriculture or Accident? Broome: Magabala Field, B. (ed.) (1825). Geographical Memoirs Books. on New South Wales; By Various Hands: The Philosophical Society of Australasia Containing an Account of the Surveyor 1821-22. (1921) Appendix: Complete General’s Late Expedition to Two New Ports; Minutes. Journal & Proceedings of the The Discovery of Moreton Bay River, with the Royal Society of New South Wales. 55: lxvii- Adventures for Seven Months There of Two cii https://www.biodiversitylibrary.org/ Shipwrecked Men: A Route From Bathurst to page/41519541#page/433/mode/1up Liverpool Plains: Together with Other Papers Savige, J. (2016). “Creation’s Holiday”: On on the Aborigines, the Geology, the Botany, the Silence and Monsters in Australian Poetry, Timber, the Astronomy, and the Meteorology Poetry, April. pp. 169-184. of New South Wales and Van Diemen’s Land. Shelley, Percy Bysshe. (1821). A defence of London: John Murray. https://royalsoc.org. poetry. https://www.poetryfoundation.org/ au/council-members-section/245-1822 articles/69388/a-defence-of-poetry Field, B. (1975). Barron Field’s Memoirs of Smith, B. (1985) European Vision and the nd Wordsworth. G. Little. (ed.), Sydney: Sydney South Pacific. 2 Ed. New Haven and University Press. London: Yale University Press. Field, B. (1841) Spanish Sketches. Gibraltar: Vaux, James Hardy, (1819) Memoirs of James Printed at Press of the Garrison Library for Hardy Vaux, Vol. 1. B. Field (ed.). London: Private Distribution, 28pp. W. Clowes. https://en.wikisource.org/wiki/ Memoirs_of_James_Hardy_Vaux

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