THINKING JURISDICTIONALLY: A GENEALOGY OF NATIVE TITLE
SHAUNNAGH DORSETT
A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy
© Shaunnagh Dorsett 2005
Abstract
In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ‘native title’ had survived the acquisition of sovereignty over the Australian continent and is ‘recognised’ by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ‘recognition’. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law.
Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ‘law of the land’. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ‘custom’. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation.
Acknowledgements
Foremost, I would like to thank my supervisors, Professor Garth Nettheim and Associate Professor Brendan Edgeworth. I am sure that without their guidance and experience the thesis process would have been far more arduous and the result the poorer. I have benefited enormously from their insight and critique. They have also both been personally very supportive throughout the process.
I would also like to thank several of my colleagues and friends, without whom I would never have reached the end. As always, Lee Godden, for her encouragement and for sharing a mutual love of ‘unpacking’ concepts. Grania Sheehan, for her friendship, support, walks and coffees. And of course Shaun McVeigh, without whose willingness to act as a ‘sounding board’ and constant encouragement to think more critically and clearly this work would be much the lesser. Further, he has taught me much about the importance of ‘entrance’ and ‘exit’ points!
Many other friends have been there throughout. I am sure they know who they are. I must, however, particularly thank the ‘PhD Support Group’ for dinners and encouragement in a particularly difficult period.
Thanks are also due to the School of Law at Griffith University and the Faculty of Law at Victoria University of Wellington, both of whom gave me time and space in the last year in which to write. Without that space I would still be writing.
To my parents, Jean and Robert Edmond, as usual their love and support has been unstinting. And to George, thank you for everything. Table of Contents
Page Numbers
ABSTRACT CERTIFICATE OF ORIGINALITY Acknowledgements...... i Table of Contents...... ii
1. FRAMEWORK...... 1 The Problem ...... 1 Jurisdiction...... 11 a. The Concept of Jurisdiction ...... 11 b. Territorial Jurisdiction ...... 18 c. Other Modalities of Jurisdiction: Status and Activity...... 27 Method...... 32 Outline of Thesis ...... 41 Note on Publication ...... 46
2. THE JURISDICTION OF THE COMMON LAW ...... 47 Introduction ...... 47 The Jurisdictional Landscape of the Early Modern Period ...... 52 a. The Origins of the Common Law ...... 52 b. Non-common Law Jurisdictions...... 58 The Law of the Land ...... 68 a. The Common Law ‘Time out of Mind’ ...... 68 b. The Law of the Realm...... 75 c. Rival Jurisdictions...... 82 Conclusion ...... 92
3. COMMON LAW JURISDICTION IN THE NEW WORLD ...... 95 Introduction ...... 95 The Realm and the Dominions ...... 105 a. The Royal Demesne outside the Realm ...... 105 b. Calvin’s Case...... 110 The English Common Law Courts and the New World: The Settled/Conquered Divide ...... 114 a. The Distinction between Settled and Conquered Colonies...... 117 b. Conquered Colonies and the Principle of Continuity ...... 126 Maintaining Proper Jurisdiction ...... 133 a. Transitory Actions...... 134 b. Justice in the King’s Dominions...... 141 Conclusion ...... 145
4. COMMON LAW JURISDICTION DENIED ...... 149 Introduction ...... 149 Early Colonial Jurisprudence...... 155 a. R v. Ballard: Common Law Jurisdiction Denied...... 158 b. R. v. Murrell, Re We-war: Common Law Jurisdiction Asserted ....165 c. The ‘Anomaly’ of R. v. Bonjon...... 174 d. Continuing Uncertainty: R. v. Peter, R v. Jemmy ...... 181 Civilisation as a Jurisdictional Marker ...... 188 Conclusion ...... 193
5. COMMON LAW JURISDICTION CONFIRMED ...... 197 Introduction ...... 197 A Univocal Law: Mabo (No. 2) and after...... 201 Normative Systems and Jurisdictions...... 218 a. Challenging Univocality: Intersecting laws...... 218 b. Yorta Yorta...... 229 Sovereignty, Territory, Jurisdiction...... 238 a. Australia ...... 238 b. Colonial Examples...... 245 Conclusion ...... 253
6. MAPPING TERRITORY ...... 257 Introduction ...... 257 The Graticulation of Space ...... 261 Mapping Territory ...... 266 a. Dividing the Globe...... 267 b. Creating New Territories: Mapping British Colonies...... 269 Abstracting Territory and Grounding law ...... 274 Mapping Native Title...... 280 Conclusion ...... 285
7. ACCOMMODATION: CONSTRUCTING NATIVE TITLE ...... 287 Introduction ...... 287 General and Particular Custom...... 291 The Disembedding of the Common Law from Local Life...... 297 The ‘Accommodation’ of Custom...... 305 a. Copyhold...... 309 b. Law Merchant ...... 312 c. Ireland: The Case of Tanistry...... 314 The Foundation of Native Title at Common Law ...... 327 a. Repositioning Relationship to Country as Custom ...... 329 b. An Adjectival Relationship: Proof of Native Title ...... 333 Conclusion ...... 341
8. CATEGORISATION...... 343 Introduction ...... 343 Classifying Law...... 345 a. Reforming the Law ...... 346 The abolition of the forms of action...... 348 The abolition of local and special jurisdictions...... 353 b. Reshaping the Law...... 359 Classification and Categories ...... 368 a. The Practice of Categorisation...... 368 b. The Domain of Native Title...... 372 Conclusion ...... 387
CONCLUSION ...... 390
BIBLIOGRAPHY ...... 398
1
Chapter One
Framework
“… to declare the law, which is not judgment but jurisdiction”.1
“And so laws keep up their good standing, not because they are just, but because they are laws: that is the mystical foundation of their authority, they have no other… .”2
The Problem
How are we to understand the legal entity of native title? What is the shape of native title doctrine? What is its relationship to the common law? It is only now that over a decade has passed since the decision in Mabo v. State of Queensland (No. 2),3 that we are beginning to fully grapple with these questions. Mabo (No. 2) provided that an entity called native title had survived the acquisition of sovereignty over the
Australian continent by Great Britain. The majority judgments also laid down rules on proof and extinguishment of native title. However, all the judgments failed to articulate either the nature of native title as a legal form or the relationship of that legal form to the Australian legal system. Twelve years later, although the High Court has recognised the need to consider these issues, it has still not managed to provide a satisfactory understanding of either the nature of native title, its relationship to the Australian legal system in general, or to the common law in particular. The central problem being investigated in this thesis, therefore, is the nature of the relationship between native title and the common law.4
1 Hobbes, T., A Dialogue between a Philosopher and a Student of the Common Laws of England, University of Chicago Press, Chicago, 1977 (1677), at 153. 2 Montaigne, Essais III, XVIII, at 1203, quoted and translated in Derrida, J., “Force of Law: The Mystical Foundation of Authority”, (1990) 11 Cardozo L. R. 921, at 939. 3 Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1 [hereinafter Mabo (No. 2)]. 4 The term ‘common law’ is used in a number of ways. In its primary (and earlier) meaning it refers to the body of law, originating in custom, as applied and developed in the common law courts, and 2
Why has the High Court been unable to articulate the relationship between native title and the common law? The central contention of this thesis is that the Court has failed to pay sufficient attention to the technologies and language of the body of law it administers – the common law. In particular, it has failed to pay enough attention to the idea of jurisdiction – the traditional language and practice through which the common law has ordered its relationship to other bodies of law.5 The language of jurisdiction, once central to the knowledge and practice of the common law, has slipped from sight and, along with that slippage, the common law technique of ordering and dealing with other forms of legal knowledge, such as Indigenous law, has been lost. In effect, the common law has forgotten its own history. This thesis, therefore, describes how the relationship between Indigenous law and the common law can be understood and ordered as a matter of jurisdiction. It also shows how native title is the result of the particular jurisdictional relationship between Indigenous and common law, as dictated by the common law.
In Mabo (No. 2), Brennan J stated of native title that:
“[n]ative title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.”6
particularly as opposed to ‘custom’ or local law. However, in modern legal usage it also refers to the case and statute law which, in part, the colonies inherited from England, and which together make up our modern legal system. In this second meaning it also generally includes equity. The term common law is used contextually in both senses in this thesis. Used either way, of course, the term ‘common law’ indicates a particular jurisdiction. As will be seen, in colonial and native title jurisprudence, judges tend to ‘slide’ between these two meanings, sometimes, for example, justifying the dominance of the common law (used in the second sense), by reference to the common law (in the former sense). 5 The concept of jurisdiction is discussed in some detail, infra. 6 Mabo (No. 2), supra note 3, at 58. 3
Thus, according to both Brennan and Toohey JJ in Mabo (No. 2), rather than being a common law interest, native title is ‘recognised’ by the common law.7 However, these are statements which invite more questions than they provide answers. If native title is not of the common law, what does it mean for something to be ‘recognised’ by the common law? What is the status of these ‘traditional laws’? How much of these
‘traditional laws’ or Indigenous law generally can be ‘recognised’? How can we conceptualise the relationship between ‘traditional laws’ and the body of law which recognises them, the common law? In decisions subsequent to Mabo (No. 2), the High
Court, and to a lesser extent the Federal Court, has been increasingly aware of the need to elaborate the relationship between what the High Court has designated as competing
“normative orders”.8 This need has culminated in the most recent decision of the High
Court, Yorta Yorta, in which the majority of the High Court both curtailed the potential scope of native title rights and restricted the possibility of any genuine engagement of common law with Indigenous law. While all these decisions are examined in some depth in Chapter Five, some short reference to the formulations used by the High Court will aid in problematising that Court’s approach.
Since Mabo (No. 2), the Federal Court and the High Court have expanded on
Brennan J’s statements in Mabo (No. 2). In Fejo v. Northern Territory, the majority of the High Court held that:
“Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws
7 Ibid, at 59 per Brennan J, 178 per Toohey J. 8 See, for example, Members of the Yorta Yorta Community v. Victoria (2002) 214 C.L.R. 422, at 443 [hereinafter Yorta Yorta]. 4
and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.”9
This statement was repeated by the majority of the High Court in Ward v.
Western Australia.10 In that decision, the majority further noted that “[t]o date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of “recognition””.11 Despite this, the court did not go on to elaborate what
‘recognition’ might mean, other than to give a rather circular restatement of the principle in Fejo in terms of the provisions of the Native Title Act:12
“Paragraphs (a) and (b) of s223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is that stated in par (c) of s223(1). This is the recognition of rights and interests.”13
Section 223(1)(c) requires that in order for rights and interests to be a native title they must be “rights and interests [which] are recognised by the common law of
Australia”. Given that the definition of native title in s223 was generally intended to encapsulate the judgment of Brennan J in Mabo (No. 2), paragraph (c) simply meant that native title interests must be of a type which have not been extinguished and which are not repugnant to the common law because they are contrary to natural justice, equity and good conscience.14
9 Fejo v Northern Territory (1998) 195 C.L.R. 96, at 128, footnotes omitted, emphasis in the original. 10 Western Australia v. Ward (2002) 213 C.L.R. 1, at 92, per Gleeson CJ, Gaudron, Gummow, Hayne JJ [hereinafter Ward]. 11 Ibid, at 66-67. 12 Native Title Act 1993 (Cth). 13 Ward, supra note 10, at 17. 14 Mabo (No. 2), supra note 3, at 61. See also Parliamentary Debates (Hansard), 2 December 1997, Australian Government Publishing Service, Canberra, at 10171. 5
In Yarmirr v. Northern Territory,15 however, the High Court interpreted this section, and ‘recognition’ to mean that native title interests must be such as to be capable of co-existing with common law interests. In other words, that the common law would recognise native title rights and interests where there was no inconsistency between those rights and common law rights. Where there was an inconsistency, the native title rights would be extinguished to the extent of the inconsistency. If there was no inconsistency, the rights could be ‘recognised’ as native title. On this formulation, recognition is a negative concept. It has no positive content. ‘Recognition’ simply means that the rights have not been extinguished: “[the common law] will “recognise” the rights by giving effect to those rights and interest owing their origin to the traditional laws and customs which can continue to co-exist with the common law the settlers brought.”16
Yorta Yorta provides the most complex elaboration yet of the intersection of
Indigenous and common law or, as the majority put it, the intersection of two
‘normative systems’. In Yorta Yorta, the majority held that rights and interests which can be ‘recognised’ as native title are those which survived the fundamental change of legal regime which occurred when Great Britain acquired sovereignty over the
Australian continent, and which can be enforced by the processes of the new legal order.17 However, while the majority acknowledged that there was more that one normative system operative within the Australian legal system at acquisition of sovereignty, it then denied that any system other than the common law could be operative thereafter:
15 Commonwealth v. Yarmirr (2001) 208 C.L.R. 1. 16 Ibid, at 49. 17 Yorta Yorta, supra note 8, at 453-4. 6
“Upon the Crown acquiring sovereignty, the normative or law- making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.”18
The assertion of sovereignty by the British Crown ‘necessarily entailed’ that thereafter there could be “no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and … that is not permissible.”19 In other words, it is an imperative of the modern state
(and the maintenance of singular sovereignty) that no parallel-law making systems can be tolerated.
The result of Yorta Yorta has been to deny law-making capacity to Indigenous normative systems post-sovereignty. As such, this judgment goes much further than earlier High Court decisions. More pertinently, however, rather than clarifying the relationship between native title (or more generally Indigenous law) and the common law, the result of Yorta Yorta has been to render this relation even less certain. If
Indigenous law has no real force, what exactly is being enforced or ‘recognised’ by the new dominant normative order? Is it simply remnants of old rights, or “frozen rights” in the language of Mabo (No. 2)?20 More fundamentally, can the common law even deny the efficacy of Indigenous laws, or can it just refuse to enforce them at common law?
The High Court deals with the spectre of Indigenous law by simply acknowledging its existence so as to be able to deny its force.
18 Ibid, at 443, emphasis in the original. 19 Ibid. 20 Mabo (No. 2), supra note 3, at 110 per Deane and Gaudron JJ. 7
Problematically, therefore, despite several attempts, the High Court has failed to elaborate the nature of the intersection between Indigenous and common law. None of its formulations provide any further guide to how, as a matter of law, we might understand the relationship between two normative orders. We are left with our initial question of what it might mean to ‘recognise’ native title. To this can now be added two more questions. What does it mean for two laws to ‘intersect’ and how does this happen as a matter of legal doctrine? Can the common law deny the efficacy of Indigenous law?
As a result of the loss of the language of jurisdiction, recent High Court decisions on native title and the common law, which would once have been conceptualised through the language of jurisdiction, have been rephrased as questions of sovereignty. This has led to increasing restrictions on the possibilities of articulating a place for Indigenous law, because Indigenous law is seen as threatening the order of the
Australian nation. The High Court has been anxious to shore up sovereignty in order to ensure that there can be no challenge to that ordering. As a result, the High Court has reached an impasse. Its refusal to accord any real contemporary law-making capacity to
Indigenous jurisdictions, and the loss of the language of jurisdiction as a way of ordering relations between competing normative orders, has left it unable to articulate any coherent theory of the relationship between the Australian legal system and
Indigenous law.
Throughout its history the common law has engaged with other legal orders, as only one jurisdiction in a pluralistic legal landscape. As will be discussed in Chapter
Two, until the seventeenth century a plethora of bodies of law co-existed in England. At that time, as Prest puts it:
There was little … coherent about that fragmented chaos of overlapping (and frequently conflicting) jurisdictions - national, regional and local courts, ecclesiastical and secular courts, courts 8
occasional and permanent, courts dispensing English common law, Roman civil law, canon law and a bewildering variety of local customary law, courts of considerable antiquity and courts newly erected or asserted, courts swamped with business and courts moribund for lack of suitors.”21
These overlapping and contradictory jurisdictions continued to be a feature of the English legal landscape for the next two centuries. As Gray points out, “the English legal system, down to its radical reform in the nineteenth century, was a congeries of quite distinct courts.”22 Thus, although many jurisdictions did fall into disuse, by the time of the settlement of Australia there were still numerous jurisdictions operational in
England. In the late eighteenth century, at the time of the importation of the common law into Australia, that body of law was still only one of many. Arthurs points out that in this period there were still over three hundred local courts which exercised civil jurisdiction, as well as arbitrators, domestic tribunals and administrative tribunals. Many of these courts did not apply common law, but administered distinctive sub-systems of local and special law. Altogether these bodies disposed of many more cases than the
Westminster Courts.23
For many centuries, it was a constant concern of common law courts to not only maintain common law jurisdiction against would be legal rivals, but to actively extend their coverage at the expense of other legal orders. If the common law has a project, then historically that project has been to maintain its authority, its unity and its univocality, at the expense of others. The tool used to define the limits of authority, and
21 Prest, W., “Lawyers”, in Prest, W. (ed), The Professions in Early Modern England, Croom Helm, London, 1987, at 65. 22 Gray, C., The Writ of Prohibition: Jurisdiction in Early Modern England, Vol 1., Oceana Publications, New York, 1994, at vii. 23 See generally Arthurs, H., “Special Courts, Special Law: Legal Pluralism in Nineteenth Century England”, in Rubin, G., Sugarman, D., Law, Economy and Society: 1750-1914: Essays in the History of English Law, Professional Books Ltd, Oxford, 1984. 9
to extend that authority over rival bodies of law, was (and is) the technology of jurisdiction. As Murphy notes:
“[c]entral to the maintenance of the substratum of the idea of the common law as social science was a concern with the paramountcy or exclusivity of jurisdiction. … Plurality of jurisdiction threatened the common law’s view of the whole. … the traditionary approach of the common law served precisely to achieve [the centralisation of authority as the process of modernisation], in supplanting or subordinating ‘rival’, and once relatively independent, sites of adjudication and authority.”24
The relationship between the common law and other bodies of law has historically been defined and managed as a matter of jurisdiction. In forgetting its own legal history, and the technology of jurisdiction, the common law has lost the means by which to define and regulate its relations with other bodies of law, other sites of adjudication and authority, including Indigenous law. Exclusivity of jurisdiction has prevailed over earlier plurality.
This thesis will provide an account of the history of common law jurisdiction, and its technologies, and in so doing will provide a way of understanding the legal interest of native title and its relationship to the common law.25 Reconceiving the
24 Murphy, T., “The Oldest Social Science? The Epistemic Properties of the Common Law Tradition” (1991) 54 M.L.R. 182, at 196-7. 25 The term ‘technology’ is used in this thesis because it connotes not only technique, but also encompasses the idea of devices, practices or organisational strategies. Thus it captures the practice of common law jurisdiction. Technology derives from the Greek technê, meaning craft, art or strategy. In a classical sense, technê described a power or capacity to produce things whose eventual existence was contingent upon the exercise of that power, things whose existence was “caused” by the craftsman. Technê (craft), as opposed to epistêmê (knowledge), connotes practical knowledge or practices ordered towards the production of something. There is, however, no strict dividing line between the two. For Aristotle, for example, technê, or craft, is also epistêmê, or knowledge, because it it is a practice grounded in an ‘account’. It is something which involves theoretical understanding. See Aristotle (Rowe, C. trans., Brodie, S. ed.), Nicomachean Ethics, Oxford University Press, Oxford, 2002. Thus, for example, mapping may be described as a technology of jurisdiction, because it is a practice/device/organisational strategy ordered towards the production or embodiement of a jurisdiction. For use of the term ‘technology’, and a discussion of legal rhetoric as technê, see Pottage, A., “Unitas Personae: On Legal and Biological Self-narration” (2002) 14 Law and Literature 275. The term is used by Foucault in relation to the self in the Technologies of the Self (Tavistock, London, 1988). Foucault was concerned with the technologies which make possible the social construction 10
problem of the relationship between two bodies of law - Indigenous law and common law – as a problem of jurisdiction enables an examination of their relations both as an historical question, and as one of a practice or technology. It also will provide an understanding of how native title is a product of the jurisdictional relationship between
Indigenous and common law. Part I of this thesis, therefore, is a genealogy of native title, drawn out through a history of ideas of common law jurisdiction. Part II looks to the practice of jurisdiction through an examination of three techniques of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: namely, mapping, accommodation and categorisation. What is offered, therefore, is a ‘thick description’ of common law jurisdiction, its technologies and its practices.
Obviously, such questions as above are not merely of academic interest. In order to understand the potential scope of the doctrine of native title – the kinds of interests and rights that it will accommodate – then it is crucial to first understand the legal foundations of the doctrine within the common law. Only then, as Strelein correctly states, can the “concept of native title be given greater consideration to ensure that it represents the most appropriate foundation for structuring the relationship between
Indigenous peoples and the Australian legal system.”26 Pearson has also recognised that
“[o]ur inability to articulate clearly the concept of native title has implications therefore on our understanding of its recognition, its extinguishment and its content”.27 The fact
of the self. For Foucault, technologies of the self are the specific practices, devices or techniques by which subjects constitute themselves as subjects within and through systems of power. See also Faubion J. (ed), “Space, Knowledge, Power”, in Power: Essential Works of Foucault 1954-1984, Penguin, New York, 1994, at 349-364. However, in this thesis the term technology does not have the foucauldian intimate connection with power/knowledge. 26 Strelein, L., “Conceptualising Native Title”, (2001) 23 Syd. L.R. 95, at 96 27 Pearson, N., “The Concept of Native Title at Common Law”, (1997) Issue 5 Australian Humanities Review,
that the High Court has not been able (or willing) to articulate a framework within which Aboriginal voices can be accommodated does not mean that there is no conceptual framework available.
Jurisdiction a. The concept of jurisdiction
The term jurisdiction is used in many ways, both legal and non-legal. It has many histories and contexts: temporal, spiritual, philosophical, pragmatic. In this thesis, jurisdiction is considered as a legal form and as a practice, across a number of registers.
For Rush, jurisdiction:
“… refers us first and foremost to the power and authority to speak in the name of the law and only subsequently to the fact that law is stated - and stated to be someone or something.” 28
While the notion of jurisdiction is foundational to law, little attention is paid to it per se. Within the common law there is no articulated theory of jurisdiction, no institutional history of asking what jurisdiction is. Rather, what accounts there are of jurisdiction consist of detailed descriptions of particular jurisdictions and their histories.
Often these descriptions centre on procedure, not surprisingly, as the origins of many jurisdictions, including the common law, are found in procedure. Much of Holdsworth’s
28 Rush, P., “An Altered Jurisdiction: Corporeal Traces of Law”, (1997) 6 Griffith L.R. 144, at 150. Rush’s piece remains the only work to consider the relations between indigenous law and the Australian legal system as a matter of jurisdiction, and hence is the seminal work in this area. His focus, however, is on the body of Australian law and its ability to represent both itself and its other. He offers a psychoanalytic account in which native title is described as a ‘substitute- formation’ (at 159), which can only ever be understood the second time around. The other important recent work on jurisdiction is Douzinas, C., “The Metaphysics of Jurisdiction”, in McVeigh, S., The Jurisprudence of Jurisdiction, forthcoming, Cavendish Press, 2005. (unpaginated). Douzinas’ primary concern in this piece is sovereignty, and the way in which bare sovereignty can be understood as jurisdiction. See also McNeil, K., Common Law Aboriginal Title, Clarendon Press, Oxford, 1989. In the context of contrasting territorial sovereignty with title to land, McNeil also describes territorial sovereignty as being primarily about jurisdiction, “involving questions of international and constitutional law” (at 108). On this point McNeil was quoted with approval by Toohey J in Mabo (No. 2), supra note 3, at 180. In this thesis, however, sovereignty is held separate from jurisdiction so as to emphasise the latter as discrete bodies of law and as a concept with a separate existence. Jurisdiction in fact pre-dates the modern notion of territorial sovereignty. It is not intended to deny that sovereignty can be conceptualised as jurisdiction. 12
sixteen volume A History of English Law, for example, is devoted to detailed accounts of particular jurisdictions: not only the common law, but the forest law, stannary law, ecclesiastical law and legions of others.29 Holdsworth provides meticulous descriptions of long vanished courts - the swanimote, the court of the Marshalsea and the court of piepoudre – their histories and procedures.30 He does not, however, provide a definition of jurisdiction. As late as 1903, in the introduction to his History of English Law, he maintained that for “present-day English law” it was crucial for a lawyer to know and understand jurisdiction.31 For Gray, who has written extensively on early modern common law, including the crucial period of the early seventeenth century, jurisdiction
“makes a significant study”.32 However, he similarly fails to offer a definition.
Only Coke provides a definition. Coke devoted the fourth volume of his
Institutes to a description of the jurisdiction of particular courts.33 Of jurisdiction Coke said:
“Jurisdictio est authoritas judicandi sive jus dicendi int’ partes de actionibus personarum et rerum secundum quod deducta suerunt in judicium per authoritatem ordinariam seu delegatum. Jurisdictio est potestas de publico introducta cum necessitate juris dicendi. It is derived of jus and ditio, i. Potestas juris.”34
[Jurisdiction is the authority to decide or give judgment among parties concerning actions to be taken over people and property, according to what judgment they are brought under, whether through common
29 Holdsworth, W., A History of English Law, Methuen, London, 1922-1972. Hereinafter citations are to individual volumes. 30 The swanimote was a court incidental to the forest law, and which was held three times a year by the verders of the forest, who acted as judges, with the swains, or freeholders, within the forest composing the jury. The court of Marshalsea was formerly held before the steward and marshal of the King's house to administer justice between the king's domestic servants; the court of piepoudre was a court which was incidental to a fair, and heard disputes between traders at the fair. 31 Holdsworth, History of English Law, supra note 29, Vol 1, at xliii. 32 Gray, The Writ of Prohibition, supra note 22, at viii. 33 Coke, Sir E., The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts, W. Lee and D. Parkman, London, 1644 [hereinafter Fourth Institute]. 34 Ibid, Preface, at B. 13
authority or delegated authority. Jurisdiction is the power to give judgment on a public matter, and is instituted by necessity. It is derived of jus (‘law’) and ditio (‘power/force’), that is, ‘power of law’.”]35
As Coke’s definition indicates, ‘jurisdiction’ is derived from the Latin noun ‘ius’ and the verb ‘dicere’. For Coke, unlike other commentators, it also can be derived from
‘ditio’ (force). While this is in keeping with an understanding of the effects of jurisdiction, ‘dictio’ is the more commonly understood derivation. Similarly, according to the OED, jurisdiction is composed of juris (fem. gen. of jus) law + dictio to say. Ius denotes law, and according to Benveniste, admits of two conditions. First, the factual situation of conforming to the law which is denoted by the derived adjective ‘iustus’, for example iusta uxor, legitimate wife. Second, ius, is often found with the verb ‘dicere’, to say/speak, and in this context denotes that which must be conformed to.36 It is from the combination of ‘ius’ and ‘dicere’ that court terminology is developed: iu-dex, he who says the law; iuris-dictio, saying or speaking the law. Ius dicere is the power or authority which the judge/court has to pronounce the law, rather than to make it (ius dare). Therefore, what is constitutive of law is the pronunciation of it.37
Thus jurisdiction is the doctrinal practice of pronouncing the law. It is, however, more than this. Jurisdiction inaugurates law. Through speech, it brings the law into being. According to Douzinas, “[I]n juris-diction, legal speech both constitutes and states the law”.38
“Jurisdiction speaks the law: it is juris diction – the diction of law,
35 This passage was kindly translated for me by Dr. Peter Gainsford, Lecturer in Classics, Victoria University of Wellington. He was somewhat scathing both about Coke’s abilities in Latin and his use of commas. 36 Benveniste, E., Indo-European Language and Society, Faber and Faber Ltd, London, 1973, at 391. 37 Ibid, at 392. 38 Douzinas, “The Metaphysics of Jurisdiction”, supra note 28, unpaginated. 14
law’s speech and word. As a double genitive, jurisdiction, law’s speech, has two aspects, which are inescapably intertwined. It refers both to the diction that speaks the law – law’s inauguration through words – and law’s speech – what the inaugurated law says. And if the Romans believe that law speaks, for the Greeks the word for jurisdiction is dikaiodosia, diken didonai, the giving of dike, of law and of order.”39
So jurisdiction is the first gesture of law. It is the question of law, for both it inaugurates law and asks what can properly be recognised as law. Jurisdiction is, therefore, as Douzinas says, both performative and constative.40
Further, Douzinas reminds us that any discourse, including juris-diction, requires a speaking subject. All discourse requires enunciation. If there is no enunciation, then discourse “remains a private matter … If the law must speak in order to exist, the law needs a mouth and voice. … The law to speak must be only one; only a unique individual can speak the law. … Juris-diction is individual because it is indivisible. The legislator or judex, the sovereign himself, is a function of law’s speech, of the speaking requirement of law”.41 In other words, it is univocal.
One further clue to jurisdiction may be found in the fact that accounts of jurisdiction link it to institutions or decision makers: a particular court, the Lord of the
Manor, a sovereign ruler.42 Jurisdiction is exercised by and through institutions and decision-makers, and is the manifestation of their authority. Thus, jurisdiction is authority: the authority to speak the law. In turn, authority connotes the idea of legitimate power. Therefore, jurisdiction is the power to declare the law, which is vested in certain bodies, institutions or persons. They enunciate the law, make it public, inaugurate it, pronounce it.
39 Ibid. 40 Ibid. See also Rush, “An Altered Jurisdiction”, supra note 28. 41 Douzinas, ibid. 42 See, for example, generally Holdsworth, supra note 29, Vols 1, 3. 15
Jurisdiction can also be conceptualised as a legal space. As such, jurisdiction marks a space from which authoritative determinations can be made in the name of the law. This should not obscure the fact that jurisdiction is about authority and voice. It is a legal concept, not a spatial concept. Thus it should be more properly denoted a “site of enunciation”.43 Nevertheless, the spatial analogy is a useful one. The notion of ‘space’ brings with it ideas of borders and boundaries and of the need to demarcate one space from another. Similarly, jurisdictions can be thought of as having boundaries and borders. If jurisdiction is the authority to speak in the name of the law, is a conceptual/legal space within which the law has competence, then inherent within jurisdiction is a limit point, a boundary, outside of which law has no voice or authority.44 On a smaller scale, jurisdiction also provides the limit point between different bodies of law, or even different legal categories.
In any situation in which it is necessary to determine the limits of a legal competence it is the concept of jurisdiction which is invoked: law/non-law, federal/state, and criminal law/tort law are just a few examples. While we most often conceive of courts or other legal institutions as having jurisdiction, the jurisdiction of an institution is in fact determined by the bod(ies) of law which it is authorised to administer. Until the eighteenth century, for example, jurisdiction was predominantly organised by subject matter or activity and personal status. Ecclesiastical courts determined matters relating to conscience and spiritual law. Jurisdiction attached either because of one’s status as a member of the clergy, or because the matter was one considered properly within the province of ecclesiastical law, for example divorce or
43 Rush, “An Altered Jurisdiction”, supra note 28, at 150. See also Goodrich, P., Law and the Courts of Love: Literature and Minor Jurisprudences, Routledge, London, 1996, Chapter One. 44 See Douzinas, “The Metaphysics of Jurisdiction”, supra note 28. 16
adultery. Manorial courts applied the body of customary law known as manorial law, and jurisdiction attached, for example, because of one’s status as a villein of the manor.
Courts of stannary decided issues relating to tin mining operations, and forestry courts oversaw the body of law known as the law of the forest. Any particular body of law had its own internal mechanisms for attaching jurisdiction. For example, within a particular body of law, the nascent common law, which was born of procedure, jurisdiction attached to any matter with respect to which a writ could be purchased. As will be seen in Chapter Eight, since the abolition of the forms of action, jurisdiction now attaches to bodies of law – contract, tort, crime, property.
However, while jurisdiction can usefully be thought of as a space or site of enunciation, it is also a practice or set of techniques. As a practice of law, jurisdiction pertains to the organisation of legal knowledge. The exercise of a jurisdiction is the organising of this knowledge and the determination of what is brought into a given legal order. Jurisdiction attaches legal significance to the world: to people, places and events, spatial relations. The exercise of jurisdiction over someone, or something, has the effect of endowing that person, thing or event with legal meaning. In so doing, they are juridified, and (re)created as objects of the law. Thus, jurisdiction creates legal order and simultaneously embodies or gives substance to a jurisdiction.
Finally, as Douzinas notes, jurisdiction gives order. It should be added that it gives order in two (related) senses. The first is that used by Douzinas. Jurisdiction gives law, and hence order, to the world. But it is also an ordering mechanism. It confers legal meaning and consequence to the world. As will be seen in Chapter Eight, through jurisdiction aspects of the world are juridified and brought into law as legal objects. It attaches through a number of modalities: status, activity, territory. Further, and in a different register, the common law, through its own internal categories and 17
organisations, juridifies people, places events. By exercising jurisdiction over these people, places, events, they are ordered into the law through the internal legal categories of the law. These legal categories are, of course, contingent and changing. For the common law, for example, until the 1870s the forms of action provided the internal skeleton of the common law. Now it is the new categories of law, created as a result of the reorganisation of knowledge that occurred after the abolition of the forms of action, which provide the internal order through which the external world is brought into law.
This is the subject of Chapter Eight. Territorial jurisdiction is discussed below, but it is important to note in passing that territorial jurisdiction in particular is a powerful technology of law, as potentially every person, event, thing, space within the territorial area can be juridified and ordered into law.
Jurisdictions are inaugurated or embodied through a range of technologies and organisational practices. What is presented in Part II, therefore, is a largely action-based account of the embodiment of jurisdictions through three particular technologies: mapping, accommodation and categorisation. These three technologies are all mechanisms by which the law creates its limit points. Mapping creates territorial limits, physical boundaries beyond which laws cannot pass. Accommodation as a technique of the common law demarcates the limit points of the common law by determining what is inside and what outside the jurisdiction of the common law. It determines what is juridified and what remains unrecognised and unenforceable within that jurisdiction.
Categorisation creates internal legal categories which are used to order the world into law. In so doing, mapping embodies a specific territorial jurisdiction, accommodation creates a new interest or category within the common law, one which embodies, as do all categories, a specific jurisdictional domain. 18
Jurisdiction is not, however, just instrumental. Jurisdiction brings with it questions of self-representation. Jurisdiction is about how the law, or a particular body of law, represents itself. Jurisdiction promotes a vision of that law as unified, or perhaps more accurately, univocal. The paradox of any jurisdiction is that it is self-authorising: jurisdictions determine their own jurisdiction, and those who recognise the authority of the system are authorised to do so by the system itself. In self-authorising, jurisdictions instantiate a vision of themselves as having a singular voice of authority. However, without any substantive notion of what it means to have jurisdiction, jurisdictions are required to constantly police their own boundaries, to redetermine the limits of authority of their own authority on a case-by-case basis. Thus, in responding to any questioning as to its jurisdiction, that body is responding to questioning about, and thereby determining, its own authority. Of course in undertaking this policing activity, jurisdictions also look to the limits of other jurisdictions. Where possible, they both expand their jurisdictions at the expense of others and prevent others from enlarging their authority.45 At common law there has long been a tension between exercising and expanding jurisdiction, and the maintenance of proper channels of jurisdiction. b. Territorial Jurisdiction
As a concept, jurisdiction is commonly linked with both sovereignty and territory. In fact, territorial jurisdiction is the pre-eminent ground for the assertion of jurisdiction and the mode of jurisdiction typical of modernity.46 It ensures that in the modern nation state, national law applies to all within that state. The mere presence of a foreign national in a particular state, for example, is enough to confer an effective basis
45 How this occurred historically is the subject of Chapter Two. In modern law one way in which boundaries are organised and policed is through the notion of ultra vires. 46 See, for example, SS Lotus Case (France v. Turkey) PCIJ Ser A (1927), No. 9 (Permanent Court of International Justice). 19
for proceeding against that person. Most states will assert jurisdiction over persons or events where any element of a matter takes place within its territory.47 However, while territory is the pre-eminent basis for asserting jurisdiction, it is only relatively recently that it has attained this status. Historically, jurisdiction was also exercised through a number of other modalities. It was most commonly based on status, or organised around particular activities.48
Territorial jurisdiction was not unknown in medieval England. Hundreds, boroughs and shires were all territorial in nature. The most notable form of territorial jurisdiction were franchises. Franchises were areas where the king had granted jurisdiction to the territorial lord, who might be either lay or ecclesiastical. In such areas the king’s writ did not run. They originated in response to the problems of governing remote parts of the kingdom, but became problematic by the sixteenth century. Some had reverted to the Crown through default of heirs, but continued with their own machinery and own customs, for example the Duchy of Lancaster, which was merged with the Crown when Bolingbroke, son of John of Gaunt to whom it had been granted, became King as Henry IV. A charter was granted which declared lands and possessions of the Duchy to be separate and distinct from those of the crown. Each franchise had its own court structure. It may be that the law of the franchise was the common law, as was the case with the Earldom of Cheshire.49 However, despite this the court structure of the franchise was separate to the central common law system.50
47 Treacy v. Director of Public Prosecutions [1971] A.C. 537. 48 Jurisdiction based on status or activity is discussed infra. 49 On franchises generally see Holdsworth, A History of English Law, supra note 29, Vol 1, at 87ff. 50 See Loades, D., Tudor Government: Structures of Authority in the Sixteenth Century, Blackwell, Oxford, 1997, at 10. 20
As forms of territorial jurisdiction, franchises differed significantly from the modern form of sovereign territorial jurisdiction that has dominated legal ordering for the last three centuries. Territories can function at different scales. What characterizes modernity is the predominance of the national scale over all others.51 The concept of territorial jurisdiction is a relatively recent phenomenon, as is the link between territory and sovereignty. The ‘modern’, Westphalian order of States arose in the context of the erosion of the institutional centrality of religion and the colonisation of the new world.
The simultaneous ‘re-spatialisation’ of Europe and expansion by first the Spanish and
Portuguese, then the Dutch and English, into the new world led in part to the new sovereign territorial state. The term ‘State’ became synonymous with bounded territories and specifiable populations and ‘sovereignty’ involved the assertion of independence: sole rights to jurisdiction over a particular people and territory.
Like jurisdiction, territory is a concept which is little discussed, not only within law, but within political geography as well. Legal texts focus on the rules of acquisition of territory, loss of territory and legal questions affecting sovereign rights over contentious matters such as frontiers, inland seas, rivers and so forth.52 Thus, the approach within law to understanding the legal concept of territory is similar to that which is taken towards jurisdiction: a rule-based, rather than conceptual, approach.
Challenges to territorial limits and jurisdiction are dealt with on a factual, case-by-case basis.
The origins of the concept of territory can be understood from its etymology.
Territory is derived from the latin terra, ‘land’ or ‘earth’, and the suffix torium,
51 See Taylor, P., Flint, C., Political Geography: World-economy, Nation-state, and Locality, 4th ed., Prentice Hall, 1999, at 154. 52 As to this point, see also Gottman, J., The Significance of Territory, University of Virginia Press, Charlottesville, 1973, at 2. 21
meaning ‘belonging to or surrounding’. Territory originally referred to the district surrounding a city over which it had jurisdiction. The term was initially applied to city- states in the classical world, and re-appeared to describe the jurisdictions of medieval
Italian cities.53 Thus, the term territory was always connected with jurisdiction, but not to sovereignty. Sovereignty, in the form in which it existed in the classical world, had no explicit territorial link. ‘Territory’ also has an alternative etymology. The OED suggests that territory may also derive from ‘terrere’ – to frighten. This can be seen in the now obsolete ‘terroir’ (territory). Thus territory is also a place from which people are warned off, in other words an area of exclusivity and authority.
The modern concept of territorial jurisdiction is intimately linked with the concept of sovereignty.54 The concept of sovereignty can be traced back to the Roman empire and the emperor’s imperium over the Empire. This was a personal political denomination with no explicit territorial link.55 The idea of sovereignty as being a personal political denomination survived in medieval Europe in the form of the sovereign status of the Monarch. However, in medieval Europe the link to territory was still absent, as power was hierarchical, based on personal protection and obligation, not on territorial unit. Medieval Europe was “a complex mixture of hierarchies and territories through which power was organized.”56 In England, the primary understanding of the relationship between the Crown and subjects was contractual.
53 Ibid, at 16. 54 It would be impossible within this thesis to provide a thorough discussion of the meaning of sovereignty. There is a rich literature on the changing meanings of sovereignty and there are innumerable attempts to provide an understanding of this concept. Any discussion of sovereignty here is only intended to supplement that on jurisdiction. For a recent work on sovereignty see, for example, MacCormick, N., Questioning Sovereignty: Law, State and Nation in the European Commonwealth, Oxford University Press, Oxford, 1999. For a discussion of the different ways in which the term sovereignty is deployed by Indigenous and non-indigenous Australians see Brennan, S., Gunn, B., Williams, G., “‘Sovereignty’ and its Relevance to Treaty-Making Between Indigenous Peoples and Australian Governments”, (2004) 26 Syd. L.R. 307. 55 Hinsley, F., Sovereignty, 2nd ed., Cambridge University Press, Cambridge, 1986 (1966), at 26ff. 56 Taylor and Flint, Political Geography, supra note 51, at 154. 22
Feudal contract bound monarchs and their vassals in a mutually recognized system of rights and obligations.57
At the end of the sixteenth century, political theory in general, and theories of sovereignty in particular, were not well advanced in England. As a generalisation the country was still living in “a world of medieval pluralism, where numerous laws and authorities interlocked, without a tidy hierarchy and without any identifiable sovereign”.58 Sixteenth century England had no mature concept of sovereignty. It is often contended that Henry VIII’s declaration of independence from the papacy was a declaration of sovereignty. However, as Loades points out, it is better described as a unilateral declaration of independence, and was one which did not embrace any theory of accountability as generally required by contemporary theories of sovereignty.59
According to Bodin a sovereign must by definition be immune from any lawful resistance whatsoever, for the person in whom the sovereignty rests is required ‘to give account to none but the immortal God alone’.60 Bodin was concerned to bolster the
Monarchy: “[t]he end he sought was the establishment of a coherent system of political organisation; the means he promoted to reach this objective was the concentration of supreme power in as few hands as possible”.61 Thus, it is meaningless to describe as sovereign any person or institution which is subject to constraint or limitation. English writers of the period, such as Sir John Fortescue and Sir Thomas Smith spoke of ‘most
57 See Ullman, W., Law and Politics in the Middle Ages: An Introduction to the Sources of Medieval Political Ideas, Cornell University Press, Ithaca, 1975. 58 Loades, Tudor Government, supra note 50, at 6. 59 Ibid, at 1. 60 Bodin, J., Six Bookes of a Commonweale, Cambridge University Press, Cambridge, 1992 (1576), Book I, Chapter 8. 61 Beaulac, S., “The Social Power of Bodin’s ‘Sovereignty’ and International Law” (2003) 4 Melb. J. Int’l L. 1, at 22. 23
high and absolute power’, but in so doing, they remained firmly within the context of medieval law:
“[w]hen Henry Bracton had written that the king should be ‘under God and the law’ he had not been using a polite figure of speech but declaring a contractual theory of monarchy. Monarchs were officers who derived their authority from God, and were answerable to him, but their office had been created for a purpose and others had a legitimate interest in the way in which it was exercised.”62
However, in the seventeenth century, older notions of authority as being merely superior power were slowly replaced by the conviction that sovereignty was the essential attribute of political authority – “that sovereign authority was the kind of authority which the political society, alone within a range of associations could possess; that since this kind of authority regulated the relations between the chief power in the political society to all and everything within it, it was the sole authority which the political society needed to possess.”63 The idea of sovereignty was gradually transferred to the control of a well-defined territory in the sixteenth century. That century was a decisive time in European affairs. Sovereign territory was claimed by both politics and legal doctrine as an important attribute of states.64 This link between territory and sovereignty can in part be traced to the Treaty of Westphalia. Concluded to end the thirty years war, the Holy Roman Emperor gave sovereign independence to princes who remained formally within the empire, and guaranteed the inviolable nature of state territory. By the end of the eighteenth century, “the notion of national sovereignty over well-defined territory had come to the fore in political practice as well
62 Loades, Tudor Government, supra note 50, at 1. 63 Hinsley, Sovereignty, supra note 55, at 131-2. 64 Gottman, Territory, supra note 52, at 17. 24
as in the theory of jurisprudence.”65 By the mid eighteenth century, the link between sovereignty and territory had become axiomatic.
The emergence of territorial jurisdiction closely allied with the sovereign state is one example of what Tully calls ‘the empire of uniformity’ and the tendency to cultural
(and legal) uniformity which characterises modernity.66 Centralisation of power and authority was an “understandable” response to the conflicting jurisdictions and authorities of the pre-modern world which were the cause of wars. Thus, modern sovereignty can be directly contrasted with the pre-modern “motley of overlapping legal and political jurisdictions, a kind of jus gentium common to many customary jurisdictions, as in the Roman republic or the common law of England”.67 In response modern societies emphasise legal and political uniformity: “a constitution of equal citizens who are treated identically rather than equitably, of one national system of institutionalised legal and political authority, rather than many, and a constitutional nation equal in status to all others.”68
In its modern form, sovereignty has both internal and external aspects. The
‘external’ aspect “is about who has power to deal externally with other nation states”.69
It also embodies a notion of non-interference. States do not interfere in each others’ sovereignty, and they must respect territorial boundaries. However, sovereignty no longer implies the absolute monopolistic control that characterised Bodin’s view of sovereignty:70 “[u]nder this modern ‘realist’ conception, sovereignty is divisible and
65 Ibid. 66 Tully, J., Strange Multiplicities: Constitutionalism in an Age of Diversity, Cambridge University Press, Cambridge, 1995, at 58. 67 Ibid, at 66-7. 68 Ibid, at 66. 69 Brennan, Gunn & Williams, “Sovereignty”, supra note 54, at 312. 70 See also Hobbes, T., Leviathan, Cambridge University Press, Cambridge, 1996 (1651). 25
capable of being shared or pooled across different entities or locations”.71 Internally, sovereignty looks “at how and where power is distributed within territorial boundaries”.72 It also connotes exclusive domestic legal control. Thus a state should have a national law which operates throughout the state.
The emergence of sovereignty in a form similar to its modern conception, and its linking to territory, occurred at what was a crucial time for the development of the common law. As will be discussed in Chapter Two, at the dawn of the seventeenth century the common law, although still one of many jurisdictions in a pluralistic landscape, was emerging as, and consciously fashioning itself as, the law of the land or of the realm. Sovereignty became linked to territory, and the common law became linked to the nation. Thus, the jurisdiction of the common law was poised to become the jurisdiction not only of the realm, but of the territory and of the nation.
Jurisdiction can function on different scales. It can be local, as in a small locally- based specialist tribunal, or it can be national, as in sovereign jurisdiction. If the national scale predominates, as it has since the rise of territorial sovereignty as the dominant modern form of legal and political ordering, then this follows through to jurisdiction. Jurisdiction becomes primarily understood for its connections to the national of sovereign territory, with a resultant obscuring of different less obvious forms of ordering. Originally independent concepts, sovereignty, territory and jurisdiction (in the form of common law jurisdiction) have been compressed. They now share the same conceptual and physical space. As will be seen in Chapter Four, this compression was more profound in the new world of the colony of New South Wales, than the old world of England. On importation to the new colony, the common law left behind the plethora
71 Brennan, Gunn & Williams, “Sovereignty”, supra note 54, at 312. 72 Ibid. 26
of small, alternative minor jurisdictions with which it had co-existed, and became the dominant, and for all intents and purposes, only jurisdiction in the new colony. It became the law of the land in a much more literal sense.
As will be discussed in Chapter Five, territorial jurisdiction has proved problematic for Indigenous claims to legal autonomy. In Australia, common law jurisdiction has come to be about integrity, uniformity and univocality. As outlined above, the High Court, anxious to maintain the logic of singular state sovereignty, has denied any space for Indigenous jurisdictions because of their perceived threat to the legal order of the nation. The “logic of territorial sovereignty was the uniform imposition of the same institutional and administrative arrangements and laws over
[that] territory,” a project of the later Enlightenment.73 The result is no physical or legal sphere of autonomy for Indigenous norms. The self-referential nature of jurisdiction is a powerful tool. Once common law jurisdiction was established in Australia, it allowed the common law to set the rules and conditions under which Indigenous norms will be given or denied a voice. Paradoxically, the High Court has used the device of jurisdiction to both construct native title, and to deny Indigenous jurisdictions their own voice.
Yet, the unbundling of sovereignty and jurisdiction reveals the possibilities of an ordering which provides a site of enunciation for both Indigenous and non-indigenous law, but does not threaten the sovereignty of the Australian nation. Throughout English legal history, both before and after the emergence of the sovereign nation, relations between bodies of law have been organised through a framework of jurisdiction. As will be seen, that ordering is also part of the history of Australian law and jurisdiction
73 Hobsbawm, E, Nations and Nationalism since 1780: Programme, Myth, Reality, Cambridge University Press, Cambridge, 1990, at 80. 27
remains a primary tool through which relations can be organised. The common law has a history and logic which recognises multiple sites of law and there is no necessary incompatibility between sovereignty and multiple jurisdiction. Remnants of multiple jurisdictions still survive, for example, in the form of modern administrative tribunals such as military tribunals, or even in the very concept of federalism. c. Other Modalities of jurisdiction: Status and activity
Historically, jurisdiction was effected through attachment to a number of modes, the most common of which were status and what can perhaps be called ‘activity’ rather than territory. Some jurisdictions which may on first glance seem to have been territorially based, for example the manor, were in fact primarily status-based. It was a person’s status as villein or freeman, and hence the way in which one’s land was held – freehold or copyhold - which primarily determined jurisdiction, rather than the strict notion of a manor as a territorial entity.74
Jurisdiction was also territorial in some contexts, exercised through, for example, the courts of the hundred, the shire, the palatine jurisdictions, the borough.
However, no pre-eminence was given to territorial jurisdiction. Although these clearly operated on a territorial basis, the jurisdiction of courts in those territories could be cross-cut by that of other courts, based on status and activity. As Ford points out, even those which operated on a territorial basis had few of the qualities we associate with territorial jurisdiction today. Most notably, they had no definite territorial boundaries.75
74 The manor was the commonest unit of land management, and ‘manor’ is a legal not topographical concept. The fields of a single village might be divided between several manors, or one manor might embrace a number of villages. The one characteristic they had in common was a court – presided over by the bailiff in the name of the lord. 75 Ford, R., “Law’s Territory (A History of Jurisdiction)”, (1999) 97 Michigan L.R. 843, at 881. 28
In medieval England, status was a concept familiar from Roman Law: the filius familius or the married woman or the soldier for example. Similarly, certain persons held a particular status in the medieval common law, for example the ecclesiastic, the lunatic, the married woman, the villein, the Jew, the person attainted, the infant, the leper, and most interestingly the monk, who was considered to be legally dead.76 In the medieval common law certain ranks, groups or classes occupied a special legal position of their own, and some remnants of this can be seen, for example, in the contemporary status of the minors.77 The status of these groups cut across the developing rules of the common law which came to apply to all, those whom Pollock and Maitland called the
“free and lawful man of English law”.78
The lunatic, for example, held a special position in medieval law. Those of unsound mind were divided into two classes: the idiot and the lunatic. While jurisdiction over those of unsound mind originally vested in the lord, the Crown acquired this wardship towards the end of the reign of Henry III. The King was entitled to the profits of the lands of “natural fools”.79 As this jurisdiction was a valuable right, it originally vested in the Exchequer.80 Later, however, as it became a duty, and one from which no profit could be made, the jurisdiction passed to the Chancellor, who appointed a committee to oversee the property of the lunatic. Jurisdiction rested on an express
76 Pollock, F., Maitland, F., The History of English Law before the Time of Edward I, 2nd ed., Cambridge University Press, Cambridge, 1968 (1895), Vol 1, at 416. 77 Jurisdiction based on the personality principle could be understood as a modern form of status jurisdiction. States have the right to exercise jurisdiction over their own nationals, including extraterritorially. It is to one’s status as a national that jurisdiction is attached. For the classic case on this see Joyce v. Director of Public Prosecutions (the Lord ‘Haw Haw’ Case) [1946] A.C. 347. However, in its modern formulation, jurisdiction based on personality is still attached to the concept of the nation. It is from one’s citizenship that jurisdiction derives. 78 Pollock & Maitland, History of English Law, supra note 76, at 390. 79 Hale, M., Prerogativa Regis, reproduced in Yale, D., Sir Matthew Hale’s the Prerogatives of the King, Selden Society, London, 1976, at [10]. 80 Holdsworth, History of English Law, supra note 29, Vol 3, at 474. 29
delegation of the Crown’s powers over those of unsound mind and the fact that it was the chancellor who issued writs necessary to inquire into alleged insanity.81 The status of being of unsound mind was a matter appealable to the House of Lords. Later, while the Court of Wards was in existence, this jurisdiction temporarily passed to it.82
A second example is that of the Jew. The Jew was under the wardship and protection of the King, and all that they had belonged to the King.83 Thus if the interests of the Crown were at stake he was under the protection of the King, if not he was dealt with as a gentile.84 Interests of the Crown generally meant the business of money- lending. In the twelfth century, a department of the Royal Exchequer, the Exchequer of the Jews, was organised for the supervision of this business. According to Pollock and
Maitland, it was “both a financial bureau and a judicial tribunal”.85 When property was involved, the Exchequer acted as a judicial body determining disputes between gentile and Jew in both criminal and civil causes. Civil matters purely between Jews, however, were left to the custom of the Jews and their own tribunals.
A different example of jurisdiction, based on status and activity, is stannary jurisdiction. Stannaries were districts in Devon and Cornwall where mining operations were carried on. This was a jurisdiction conferred on the corporation of Cornish or
Devon tin miners, which had a monopoly to extract and refine ore. Status was conferred upon the company itself, which had the right to hold a court. Thus stannary jurisdiction was personal rather than territorial, as the competence of the courts did not extend to all matters within mining districts. The court administered both common law and stannary
81 Ibid, at 474-5. 82 Ibid, at 475. 83 Thorne, S. (trans.), De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England), Vol XX, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1968, at f. 386b [hereinafter Bracton]. 84 Pollock and Maitland, History of English Law, supra note 76, at 469. 85 Ibid, at 470. 30
custom. The stannary jurisdiction provides an interesting example of an alternative or
‘minor’ jurisdiction. The charter declared the stannary courts to be exempt from the ordinary jurisdiction of the general courts except in pleas of land, life or limb within any
“vill, tithing and hamlet where some tinwork is situate and not elsewhere, and no longer than the same tinwork is or shall be working”.86 Thus, within its granted jurisdiction of the stannaries, with certain exceptions, stannary law was autonomous and paramount.
Tinners could be sued in the stannary court by other tinners, while ‘foreigners’ could be sued in the stannary court if the plaintiff was a working tinner and the cause of action arose in the jurisdiction and concerned tin work.87
Ecclesiastical law was a predominant jurisdiction in the middle ages. The ecclesiastical courts claimed cognisance of a cause in two circumstances. First, because the person concerned was specially subject to the ecclesiastical jurisdiction. This included, for example, members of the clergy and monastical orders. Second, the courts claimed jurisdiction where the matter in dispute was of an ecclesiastical or spiritual kind. Under this second rubric, the courts claimed a wide jurisdiction over such matters as consecration, ordination, tithes, marriage, divorce, legitimacy and wills.88 The medieval English ecclesiastical courts also tried to extend jurisdiction into matters temporal, such as contract and crime, by claiming cognisance over ‘pledges of faith’ and the health of the soul of sinners, but were blocked from so doing from the time of
Henry III onwards.89 In addition, ecclesiastical courts had jurisdiction over lands belonging to the church.
86 See Bainbridge, W., A Practical Treatise on the Law of Mines and Minerals, Butterworth, London, 1841, at 473-4. 87 Holdsworth, History of English Law, supra note 29, Vol 1, at 59. 88 Pollock and Maitland, History of English Law, supra note 76, Vol I, at 125. 89 Ibid, at 129-130. 31
A final example worth recounting is that of the forest. The English forests of the middle ages were governed by a distinct law and a distinct court system. A forest was an area of “wooddy grounds and fruitful pastures privileges for wild beasts and fowls of the forest, chase and warren”. The forests were set aside for the “delight” of the King.90
The King, however, was not the absolute owner of the lands of the forest. The owners of such lands could use them as they wished, subject to the condition that they could not interfere with the beasts of the forest. The organisation and beasts of the forest were administered through a series of specific courts and officials and jurisdiction of the forest courts could be pleaded in bar to proceedings at common law.91
The reach and uniformity of jurisdictions such as the stannary and the manor, as well as others, such as the forest law, was undermined by the growth of the common law. For example the growing uniformity of the criminal law began to obscure some differences between the free and the villein.92 Some jurisdictions fell away as the social conditions of their existence changed,93 while others were absorbed either as a by- product of the expansion of the common law, or as the result of a deliberate attempt by common law courts to assume their jurisdiction, particularly by extensive use of the writ of prohibition in the sixteenth and seventeenth centuries. However, the most significant impact on jurisdiction based on status was the rise of the modern territorial state, and its
90 Manwood, J., A Treatise and Discourse of the Lawes of the Forrest. Also a Treatise of the Purallee, 3rd ed. corrected, London, 1665 (1598), at 40. 91 Ibid, at 490-1; Coke, Fourth Institute, supra note 33, at 315-317. 92 Holdsworth, History of English Law, supra note 29, Vol 3, at 456. 93 An example is manorial jurisdiction, which was significantly undermined by the increasing mobility of the population as a result of the black death. On the demise of the forest law, see Thompson, E.P., Whigs and Hunters: The Origins of the Black Act, Penguin, London, 1990. On custom generally see also Thompson, E.P. Customs in Common, Penguin, London, 1993. 32
resultant linking to sovereign jurisdiction. In not only England, but across Europe, the system of law based on status eventually gave way to a system based on territory.94
One of the consequences of the shift in emphasis from jurisdiction based on status to modern territorial jurisdiction is that we have forgotten about other ways of conceptualising or effecting jurisdiction. The rise of the concept of territorial jurisdiction is not in itself the reason for the loss of status or other modes as primary methods of organisation – in many cases that was simply a by-product of the growth of the common law and legal centralisation, as well as the disappearance of certain persons who occupied a particular status as the result of social, religious and economic changes95 – but it has become a normalised construct which obscures earlier and alternative ways of organising jurisdiction.
Status provides a different way of thinking about jurisdiction. As will be seen throughout this thesis, it was a mode of jurisdiction which held sway until the sixteenth century, and which remained vital thereafter. As will also be seen, jurisdiction based on status was not uncommon in colonial jurisdictions where courts sought to fashion ways of understanding the relationship between the law of the coloniser and the colonised.
Importantly, it provides an understanding of jurisdiction which disrupts the pre-eminent model of jurisdiction based on territory, thereby revealing the possibility of multiple jurisdictions and a place for Indigenous voice within the common law itself.
Method
Lawyers generally engage in historical analysis in a number of ways.
Commonly, lawyers look to the past in search of authority which can be used in a
94 Graveson, R., Conflict of Laws: Private International Law, Sweet & Maxwell, London, 1974, at 31. 95 Holdsworth, History of English Law, supra note 29, Vol 9, at 3. 33
contemporary matter. It is a practical activity, done in the hope of finding something which will provide an avenue of argument with respect to a current issue.96 Second, historical accounts are written which are self-contained in that they do not purport to provide any illumination on an event of current import, but are simply explorations of a legal/historical event: an exploration, for example, of the meaning of a particular provision of the Wills Act of Henry VIII,97 by looking at the question of how that provision was understood at the time. Least common is the third approach – the one taken here – in which historical research is undertaken to find out how something came to be. This is an exercise in exposing the contingencies and practices which contributed to the current shape of a legal doctrine, in this case native title. It could, perhaps, be labelled a genealogy.98 In so doing, there is no intention to re-invent or revise history, but rather to reveal some of the gestures and practices of law which have contributed to the present shape of native title doctrine and which have been largely forgotten along the way. This is not a lawyers’ history, undertaken as “a trawling search for the authority of precedent”.99
Nor is this a history of all things labelled jurisdiction. Rather it is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This account is told through the examination of how a particular legal entity, native title, can be understood as an act of common law
96 On this see Youngblood Henderson, James [sákéj], “Míkmaw Tenure in Atlantic Canada” (1995) 18 Dalhousie L.J. 196, at 198; and generally Pocock, J., “Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi”, (1998) 43 McGill L.J. 481. 97 Statute of Wills, (1542) 32 Hen. VIII, c. 1. See, for example, Megarry , R., Wade, H., The Law of Real Property, 5th ed., Stevens & Sons, London, 1984, at 499-500. 98 See Foucault, M. (Sheridan, A., trans), Discipline and Punish: The Birth of the Prison, Pantheon Books, New York, 1973. Admittedly the word is used here shorn of the richness and complexity of Foucault’s approach. 99 McHugh, P., “The Common-Law Status of Colonies and Aboriginal “Rights”: How Lawyers and Historians Treat the Past” (1998) 61 Sask L.R. 393, at 394. McHugh was referring to the kind of history done, as he sees it, by legal historians such as F.W. Maitland. 34
jurisdiction. As such, it is not a work of philosophy, but of the history of a jurisprudence. Further, this is not the only possible account of native title.100 Nor does jurisdiction explain every facet of colonial law or of how native title came to be what it is, but it does allow the description of an assemblage of practices and techniques which contributed to the construction of native title. In addition, by re-describing the relationship of Indigenous and common law jurisdictionally, it becomes possible to envisage a plurality of legal orders co-existing under the ambit of Australian sovereignty, in which a place for Indigenous law and authority would be possible.
Through the historical account, this thesis tells two stories. First, it tells of how native title can be conceived of as a question of jurisdiction and how its legal form has come about as an act of jurisdiction. It also tells a story of jurisdiction as a technology and practice, and the ways in which jurisdiction orders legal knowledge and experience.
These stories are also stories of contingency and continuity. Any history, including that of jurisdiction and native title has many contingencies. This history is no different. The history of the common law generally is one of an assemblage of practices and doctrines, adaptations and accretions. Throughout its history the common law has expanded its substance and jurisdiction through the adaptation of doctrines and principles to new circumstances, principally by analogy. In part, its success as a jurisdiction has resulted from its willingness to rework the old to the new, and to absorb and recycle the knowledges and practices of other jurisdictions. As Smith puts it: “the common law has
100 See, for example, Pearson, N., “The Concept of Native Title at Common Law” in Galarrwuy Yunupingu (ed), Our Land is Our Life: Land Rights – Past, Present and Future, University of Queensland Press, St Lucia, 1997; Pearson, N., “Principles of Communal Native Title”, (2000) 5 Indigenous Law Bulletin 4; Pearson, “The Concept of Native Title at Common Law”, supra note 27; Rush, “An Altered Jurisdiction”, supra note 28; Strelein, “Conceptualising Native Title”, supra note 26. 35
always made its quilts from old rags”.101 However, as well as contingency, there is also a continuity through this historical account. The technology of jurisdiction can be traced from the origins of the common law to its contemporary form. Throughout its history, the common law has asserted jurisdiction over people, places and events in order to supplant other sites of adjudication and authority. The inaugural gesture of the common law as jurisdiction remains in place, albeit obscured and temporarily forgotten.
Jurisdiction may no longer be the language of the courts, but it has always been the language of the common law.
Of necessity, this is a history told largely from one perspective: that of the
European and of the common law. What is being examined is the history of certain aspects of the common law – in particular of common law jurisdiction - from within the common law itself, and not from the perspective of Indigenous Australians. However, this should not obscure that there is more than one history at stake here. Not only are there the multiple histories of the common law itself, but alternatively there are many
Indigenous histories. In present day Australia, white and black:
“… alternative histories are contesting for authority; not simply alternative accounts of the same events, but alternative cultural codes which give conflicting accounts of what authority is, and how it is generated in and transmitted through time, and how time and history are themselves structured by the authoritative systems set up by humans existing in them. The historian [and lawyer] will be operating in bihistorical and bicultural terms, recognising that all parties to the debate are trying to live in two histories simultaneously penetrating one another.”102
101 Smith, J., Appeals to the Privy Council From the American Plantations, Octagon Books, New York, 1963 (1950), at 468. 102 Pocock, “New Zealand and the Treaty of Waitangi”, supra note 96, at 486. While Pocock is commenting on the cultural and legal histories of pakeha and Maori in Aotearoa [New Zealand], his point is equally valid for other former colonial societies. In Australia, however, it would be more accurate to speak of multi-historical, rather than bi-historical. 36
Not only is there more than one history, but there are also multiple accounts of law. Other descriptions of Australia’s law and its history are given by Indigenous
Australians. Noel Pearson, for example, has written extensively on the nature of native title.103 It remains paradoxically the case, however, that even these accounts are written from within the dominant framework of the common law. As Pocock puts it, “it is hard in law to indict an opposed authority without at the same time legitimating it.”104 This is also an account written from within the common law because it is a contention of this thesis (and implicit within its jurisdictional descriptions) that native title is not really a descriptor of Indigenous relationships to country – but a category of white law – and thus must be understood within the confines of that law. This is what it means to
‘recognise’ native title. The logic of jurisdiction determines that native title must find its foundation and form within the common law. Its relationship to Indigenous law is adjectival.
The history presented in this thesis is a particularly Australian legal history.
Although the gesture of jurisdiction can be, and will be, traced back to the origins of the common law, the particular shape of native title also owes much to the history of jurisdiction in colonial Australia. Jurisdiction is, of course, not the only framework through which the legal relations of Indigenous and non-indigenous could be ordered.
Another obvious framework, for example, could be sovereignty, and, as will be seen, this is the framework through which the High Court has attempted, without success, to elaborate the relations between Indigenous and common law. While other former common law colonies, such as the United States, Canada and New Zealand have similar
103 See the list of Pearson’s work in this area, supra note 100. 104 Pocock, “New Zealand and the Treaty of Waitangi”, supra note 96, at 487. 37
questions as to the legal relationship between Indigenous and non-indigenous, their particular histories have resulted in differing orders.
In the last few decades Canada and New Zealand have looked to implement post-colonial settlements with Indigenous peoples, a task first undertaken by the United
States Supreme Court in the 1830s. In New Zealand the 1970s witnessed the institution of the Waitangi Tribunal, and in the 1980s and 1990s the ‘principles’ of the Treaty of
Waitangi were embedded in many legislative enactments.105 The result has been a judicial interpretation of these principles to include a notion of ‘partnership’, but one in which the sovereignty of the New Zealand Nation has been reaffirmed.106 In Canada, in
1982, as part of the patriation of the Constitution, s35 was enacted.107 Section 35(1) provides constitutional protection to ‘aboriginal rights’,108 and its purpose, as explained
105 The Waitangi Tribunal was established by the Treaty of Waitangi Act 1975. The Tribunal is a permanent commission of inquiry which is charged with making recommendations on claims brought by Māori relating to actions or omissions of the Crown, which breach the promises made in the Treaty of Waitangi. A wide variety of Acts include legislative requirements in relation to the principles of the Treaty of Waitangi. See, for example, State-Owned Enterprises Act 1986, s 9: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”; Conservation Act 1987, s 4: “This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.”; Crown Minerals Act 1991, s 4: “All persons exercising functions and powers under this Act shall have regard to the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).”; and Hazardous Substances And New Organisms Act 1996, s 8: “All persons exercising powers and functions under this Act shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).” See also Palmer, M., “The Treaty of Waitangi in Legislation”, (2001) N.Z.L.J. 207. 106 As to the notion of ‘partnership’, see New Zealand Maori Council v. Attorney-General [1997] 1 N.Z.L.R. 641: “There is … one overarching principle … that … the Treaty must be viewed as a solemn compact between two identified parties, the Crown and Maori, through which the colonisation of New Zealand was to become possible. For its part the Crown sought legitimacy from the indigenous people for its acquisition of sovereignty and in return it gave certain guarantees.”: at 673, per Richardson J. The partnership imposed on the partners the duty to act reasonably and in good faith: at 664, 667, per Cooke J, at 682 per Richardson J. See also Cox, N., “The Treaty of Waitangi and the Relationship between the Crown and Maori in New Zealand”, (2002) 28 Brooklyn J. Int’l L. 123. 107 In 1995, James [sákéj] Youngblood Henderson stated that: “[w]ith the proclamation by the Queen of the Constitution Act, 1982, the post-colonial era began in Canadian law.”: “Míkmaw Tenure”, supra note 96, at 196. Whether this “post-colonial order” (at 196) will ultimately result in a just settlement for First Nations peoples is yet unclear. 108 Section 35(1) provides that “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed”. For judicial interpretation of this section see Sparrow v. The Queen (1990), 70 D.L.R. (4th) 385; R. v. Van der Peet (1996), 137 D.L.R. (4th) 289; R. v. Gladstone (1996), 137 D.L.R. 648; Marshall v. R. (1999), 179 D.L.R. (4th) 193; Haida 38
by the Supreme Court of Canada, is “to reconcile the prior presence of Aboriginal peoples with the assertion of Crown sovereignty”.109 In the United States, the concept of
Native American nations as ‘domestic dependent nations’ was set out almost two hundred years ago by the United States Supreme Court. That Court has both confirmed that Native American Nations retain inherent sovereignty, and also stipulated that they are still subject to the plenary power of Congress.110 While the Courts in these overseas jurisdictions are still negotiating the limits of their settlements on a case by case basis
(in effect they are policing their own jurisdiction), they do have frameworks, however contested they may be,111 from within which to undertake this task.112
Nation v. British Columbia (Minister of Forests) (2004), 245 D.L.R. (4th) 33. 109 Delgamuukw v. British Columbia (1997) 153 D.L.R. (4th) 193, at 263. See also Van der Peet, ibid, at 303; Haida Nation, ibid, at 46. For an extensive discussion of Aboriginal law in the common law courts in Canada, and the relationship between the two, see Borrows, J., “With You or Without You: First Nations Law (in Canada)”, (1996) 41 McGill L.J. 629. Borrows takes his analysis of relations between Canada and First Nations further in “Nanabush Goes West: Title, Treaties, and the Trickster in British Columbia”, which is the fourth chapter in Borrows, J., Recovering Canada: The Resurgence of Indigenous Law, University of Toronto Press, Toronto, 2002, comparing Aboriginal and British sovereignty and arguing for a re-evaluation of their relative positions. For an exploration of Aboriginal title and the Canadian legal landscape from an Algonquian linguistic perspective see Youngblood Henderson, “Míkmaw Tenure”, supra note 96. For recognition of the importance of ‘jurisdiction’ in this context see McNeil, K., “Self- Government and the Inalienability of Aboriginal Title” (2002) 47 McGill L.J. 473. 110 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). These cases confirm the inherent, but dependent, sovereign status of the Indian nations, from which subsequent courts have extrapolated and developed the ‘Federal Indian trust relationship’, as a result of which Native American Nations are said to resemble “wards” of the government, or to be “in a state of pupillage”. The plenary power doctrine, was first articulated in Lone Wolf v. Hitchcock 187 U.S. 564 (1903). The plenary power doctrine says that Congress has plenary power over the Indians, so as to be able to legislate at will with regard to them, and to be able to unilaterally abrogate treaties. According to the Court in Lone Wolf “[p]lenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government”: at 565. The source of the plenary power was further clarified in United States v. Kagama, 118 U.S. 375 (1886), where it was held that the plenary Congressional power over the Indian nations derived not from the Constitution, but from the nature of tribal sovereignty itself. Indian tribes are wards of the nation, and thus the United States has a duty to protect them, but along with this duty comes the power to legislate over them: at 384. 111 For a sustained critique of the Supreme Court of Canada’s approach to reconciling Aboriginal rights and the Constitution, see Asch, M., “From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution”, (2002) 17 Can. J.L. & Soc’y 23. 112 A brief example of how such post-colonial settlements can structure legal ordering is provided by a comparison of two Canadian cases on the recognition of customary marriage. In Connolly v. Woolrich, a decision from 1863 which is discuss in some detail in Chapter Five, the court looked 39
Australia, by contrast, has yet to effect a post-colonial settlement. It has no such ordering structure as those mentioned above. As a result, the traditional common law gesture of jurisdiction remains central to any understanding of the legal relationship between Indigenous and non-indigenous Australians in general, and the legal entity of native title in particular. As will be seen in Chapter Four, after an initial period in which the New South Wales Supreme Court refused to intervene in matters between
Indigenous Australians on the grounds that it lacked jurisdiction to do so, it became settled that Indigenous customs were simply not recognisable as law, a position accepted as late as 1976 by Rath J in R. v. Wedge.113 Any provision made for recognition of Indigenous rights to land operated solely through interests created by statutory regimes.114 The non-recognition of Aboriginal law negated the problem of formulating a framework to regulate the co-existence of multiple normative systems. It was unnecessary to define the relationship between the common law and Aboriginal norms. The language of jurisdiction was lost along with the refusal to recognise
Aboriginal norms. Thus, this thesis examines the legal conceptual ordering which underpins native title and contends that it is jurisdictional.
The growing divergences between Australian jurisprudence, and that of other post-colonial jurisdictions was recognised by Kirby J in Fejo:
at whether a customary marriage could be recognised. In that case Monk J characterised the question as one of private rights, and held that ‘native’ law continued to operate along side common law: Connolly v. Woolrich (1867) 17 R.J.R.Q. 75, 1 C.N.L.C. 70 (Que. S.C.), affd. sub nom. Johnstone v. Connelly (1869) 17 R.L.R.Q. 266, 1 C.N.L.C. 151 (Que. C.A.). In the 1994 decision in Manychief v. Poffenroth recognition of customary marriage was recast through the lens of s 35(1), to be determined by the test of whether it was “integral to the distinctive culture” of the group. It thereby acquired a constitutional aspect, and was no longer merely a matter of private law. “Canadian jurisprudence does recognize the validity of a native marriage by custom. Marriage by Indian custom was an integral part of a distinctive aboriginal culture at the time sovereignty was asserted over the plaintiff's band, and such a marriage was therefore established as an aboriginal right”: (1994) 25 Alta. L.R. (3rd) 393, at 394. 113 R. v. Wedge [1976] 1 N.S.W.L.R. 581. 114 Examples include the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Pitjantjatjara Land Rights Act 1981 (SA). 40
“…[c]are must be exercised in the use of judicial authorities of other former colonies and territories of the Crown because of the peculiarities which exist in each of them arising out of historical and constitutional developments, the organisation of the indigenous peoples concerned and applicable geographical or social considerations. In the United States of America, for example, the law governing the rights of indigenous peoples to land was affected by the early recognition of a measure of sovereignty of, and the provision of a special constitutional status to treaties with, the Indian tribes. The position in Canada and New Zealand has followed a different course again, affected respectively by the supervening amendment to the Constitution and the re-interpretation of the legal relationship between the general population and the indigenous peoples.”115
As the story told in this thesis is a peculiarly Australian one, comparison with other post-colonial jurisdictions is limited. A detailed description of the jurisprudence of these jurisdictions could not, in any case, be undertaken within the confines of this thesis. More importantly, while acknowledging, for example, that colonial courts around the Empire did look to each other for guidance, this thesis takes seriously the idea of an Australian jurisprudence and the unique way in which law develops in diverse locations in response to local histories and the interactions of coloniser and colonised.
Finally, a practical limitation should be noted. Any historical work of this kind necessarily relies on court determinations. However, it should be remembered that prior to the twentieth century court reporting was not standardised and the quality of the reporting itself was variable. In the sixteenth and seventeenth centuries, in particular, it can be difficult to tell from a report precisely what the decision of the court was. Often cases consist of long tracts which report the arguments of counsel, followed by a brief judgment. To some extent this reflects the fact that the doctrine of precedent was in its infancy. Further, exactly what was reported from the arguments and decision often
115 Fejo, supra note 9, at 148-149, footnotes omitted. 41
depended on the interests of the reporter himself. As Gray had commented: “[t]he best reports from that period rarely approach the completeness and clarity of more modern ones, and many are so fragmentary and confusing that they have long since lost legal authority (as citable precedents). They are, however, the historical sources, no worse and often better than other kinds of sources for other kinds of relatively remote history.”116
Further, there is always the possibility of other, as yet undiscovered cases, which may change the way in which a particular legal issue is viewed. Bruce Kercher’s research on early decisions of colonial courts in Australian is such an example. Until recently, many of those decisions had been ‘lost’. Kercher has, however, made scores of these ‘forgotten’ cases available.117 As will be seen in Chapters Four and Five, the rediscovery of some of these colonial cases reveals a slightly different story of
Australia’s legal origins than that told in Mabo (No. 2). There is always the possibility, however, that even more court determinations will be made available, thereby changing yet again our understanding of this period.
Outline of Thesis
As noted earlier, Part I of the thesis (made up of Chapters Two to Five), is a genealogy of native title, drawn out thorough a history of ideas of common law jurisdiction. As such it consists of an historical account of the common law. It examines common law jurisdiction in a number of contexts - England, British Imperial constitutional law, early Australia colonial law and finally the modern native title cases.
It seeks to show how the history of common law jurisdiction, and the way in which the
116 Gray, The Writ of Prohibition, supra note 22, at x. 117 Colonial Law Project, Division of Law, Macquarie University, compiled by Bruce Kercher:
common law ordered its relations with non-common law jurisdictions, can provide a framework through which to understand the relationship between Indigenous and common law jurisdictions.
Chapter Two charts the rise of the common law as an independent jurisdiction.
Particular attention is given to three facets of its development. First, the traditional ordering of the relationship between jurisdictions, including the common law, through as a matter of jurisdiction. This is examined through the specific practice of the common law in the seventeenth century of absorbing other jurisdictions, or appropriating their traditional domains, through asserting itself as the dominant jurisdiction. This is related to the second facet of common law jurisdiction to be examined, the specific claim of the common law, also in the seventeenth century, to be the law of the land, or the law of the realm. In this period, the common law self- consciously fashioned itself into the dominant jurisdiction in England. Third, and again related to the above, is the separation of the general custom of the common law, from the specific custom of local practices or other jurisdictions, and the common law’s ordering of its relation to these specific customs as a matter of jurisdiction. The specific technology through which this is achieved is considered in Chapter Seven.
Chapter Three considers the extension of the common law to the new world. In particular, this chapter considers the cases – from Calvin’s Case to Mostyn v. Fabrigas
– which are considered to form the corpus of common law colonial jurisprudence.118 As such, these cases are usually portrayed as a unified body of jurisprudence, setting out the status of colonies and the rights of their inhabitants. To the contrary, however, the courts betray no evidence that they are consciously constructing such a jurisprudence,
118 Calvin’s Case (‘the PostNati’) (1608) ) 7 Co. Rep. 1a (77 E.R. 377); Mostyn v. Fabrigas (1774) 1 Cowp. 161 (98 E.R. 1021). 43
although they are concerned with the extension of common law jurisdiction into the new world. Rather, the cases concern ordinary matters, such as debts, wills, assault and trespass. In building this colonial law, the courts turn to the ordinary techniques and practices of the common law, extending them to new circumstances. Further, no cases by the central common law courts actually discuss the Indigenous inhabitants. This is left to the colonial courts. However, these cases do exhibit an ongoing concern with jurisdictional matters: the need to maintain the correct jurisdictional competences of different courts, coupled with a simultaneous appropriation of colonial jurisdiction from the Privy Council to the central common law courts. The result is that the common law is fashioned into not only the law of the land, but the law of the colonies, and it is the techniques and practices of the common law by which relations between colonist and coloniser are ordered in the colony of New South Wales.
Chapter Four considers the importation of the common law into the colony of
New South Wales, and examines early case law on the status of Aborigines. These cases show an ordering of the relations between colonists and their law, and Indigenous
Australians, based on the traditional ordering of jurisdiction. Early cases on Aboriginal
Australians, and their amenability to the common law, are constructed by and through the language of jurisdiction. An examination of these early cases reveals that the assertion of common law jurisdiction over Indigenous Australians was uneven, hesitant and equivocal and that arguments over jurisdiction, and the recognition of Aboriginal law, lasted until the late nineteenth century. As well as demonstrating the importance of jurisdiction in early Australia, the cases in this chapter also ‘set the scene’ for a discussion of the High Court’s approach to the relationship between indigenous and common law in contemporary native title cases. Many of the concerns of the High Court are foreshadowed by colonial courts. 44
Chapter Five considers the subsequent denial of Indigenous jurisdiction and autonomy by Australian courts, and the subsequent loss of the language and technology of jurisdiction. This chapter examines in detail the recent cases on native title, and attempts by the High Court to construct relations between Indigenous law and the common law, or Australian legal system, for they are seen as one and the same by the
High Court, without the language of jurisdiction. Instead, the majority has turned to the language of sovereignty in order to outline this relationship. However, by compressing sovereignty and jurisdiction, the High Court is unable to construct any relations which do not in, its eyes at least, threaten the univocal sovereignty, and hence ordering, of the
Australian nation.
Part II of the thesis (consisting of Chapters Six, Seven and Eight) looks to three specific technologies of jurisdiction: mapping, accommodation and categorisation.
These are three technologies through which jurisdictions are given substance and all three have contributed to the construction of native title as an act of jurisdiction. This
Part seeks to demonstrate how people, events and activities become juridified and are given legal meaning.
Chapter Six examines mapping and surveying as technologies of jurisdiction.
The main concern here is with the way in which a jurisdiction is inaugurated through the mapping of physical space. The practice of mapping makes possible the existence of the legal concept of territory. As a technology of jurisdiction, mapping allows space to be reconceptualised as place, allows the assertion of jurisdiction over far-flung horizons, and, along with its counterpart technology, surveying, allows the legal space of jurisdiction to be mapped onto the physical space of the land and sea. As a concern of jurisdiction, territory mediates between sovereignty and the physical earth. Once mapped, space becomes associated or identified with a sovereign and becomes a 45
territory. Thus, mapping is a jurisdictional device, a practice through which jurisdictions are embodied as territories and through which as a result people, places and events in that territory become juridified.
Chapter Seven considers the common law technique of ‘accommodation’. This is the technique by means of which historically the common law asserted jurisdiction over norms and practices of rival jurisdictions by accommodating them within the framework of the common law as ‘custom’. This chapter will include an examination of the Case of Tanistry, referred to by Brennan J in Mabo (No. 2).119 This case forms the link between the early exercises of jurisdiction by the common law in a domestic setting, and the eventual recognition of native title, by transferring the rules on accommodation of common law custom in an English domestic setting to the recognition of practices as custom in a colonial context. The chapter concludes by demonstrating that the same gesture of jurisdiction is evident in modern native title decisions.
Chapter Eight considers the legal practice of categorisation as a jurisdictional device. Categories embody a specific jurisdictional domain, each of which has a specific self-referential domain: a terrain over which it is sovereign. Categorisation is therefore a practice through which jurisdictions are given substance and through which people, places and events are juridified. In particular, this Chapter examines the shape and bounds of the domain of native title.
This thesis concludes that, contrary to the assertions of the High Court, there are multiple jurisdictions operating alongside the common law. Jurisdictions are
119 Mabo (No. 2), supra note 3, at 59. The Case of Tanistry (1608) Davis 28, at 31-32 (80 ER 516). For the English translation see Davies, Sir John, A Report of the Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland, Dublin, Printed for Sarah Cotter, under Dick’s Coffee House, in Skinner Row, 1762, at 78. 46
autonomous and self-regulating. It is beyond the authority of the High Court to declare
(for any purposes other than those of the common law itself) that Indigenous laws do not continue to have law-making capacity. Further, and again contrary to the assertions of the High Court, native title is a common law interest, fashioned in accordance with traditional evidential rules for recognition of practices undertaken continuously, without interruption, since time immemorial: namely custom. The common law itself provides a framework from within which Indigenous jurisdictions can be given voice.
Note on Publication
Some parts of this thesis have been published:
A condensed version of Chapters Two, Five and Seven has appeared as “‘Since Time
Immemorial’: A Story of Common Law Jurisdiction, Native Title and the Case of
Tanistry”, (2002) 26 Melb. Uni. L.R. 32.
Chapter Six is forthcoming as “Mapping Territory” in McVeigh, S. (ed), On the
Jurisprudence of Jurisdiction, Cavendish, 2005.
An earlier and condensed version of Chapter Eight appears as “In the Box: Native Title as Cultural Regulation” (2000) 3 Media and Culture Review 3.
In addition, an article co-written with Shaun McVeigh appeared as “Just So: The Law which Governs Australia is Australian Law” (2002) 13 Law and Critique 289. The authors were careful to ensure that any parts which touch on material in this thesis were solely written by Shaunnagh Dorsett. 47
Chapter Two
The Jurisdiction of the Common Law
“If a fair river overflow it will in the end lose its channels. So if the Courts know not or keep not their jurisdictions, they lose it.”1
Introduction
During a parliamentary debate on Fuller’s Case, Sir Edward Coke, Member of
Parliament, former Attorney-General and Chief Justice of both the Court of Common
Pleas and the Kings Bench, and foremost exponent of the common law, decried the, as he saw it, unlawful expansion of Chancery at the expense of other jurisdictions. Fond of metaphors, he likened the jurisdiction of courts to that of the channels and streams of rivers. Failure to keep to them would lead to a breakdown of the legal order.2 In fact, he went as far as to move for a bill which would establish once and for all the jurisdiction of all courts.3 Needless to say, no such bill was introduced into Parliament. Coke’s comments were ironic, however, given that much of his judicial career was devoted to the expansion of common law jurisdiction at the expense of other forms and sites of legal knowledge. At the same time that he was decrying the presumptuousness of
Chancery, the common law courts were continuing to utilise an increasingly complex array of legal fictions and writs in order to subsume and absorb a range of other
1 Comments by Sir Edward Coke during a Common’s Debate on Fuller’s Case [Hall v. Fuller (1607) 12 Co. Rep. 41 (77 E.R. 1321)], in Nolestein, W., Relf, F., Simpson, H. (eds), Commons Debates 1621, Vol 5, Yale Historical Publications, New Haven, 1935, at 12. 2 Of jurisdiction Coke also said: “For as the body of man is best ordered, when every particular member exerciseth his proper duty; so the body of the commonwealth is best governed when every several court of justice executeth his proper jurisdiction.” Coke, E., The fourth part of the Institutes of the laws of England: concerning the jurisdiction of courts, Knt, London, printed for E. & R. Brooke, London, 17th ed, 1797 (1644), “ A Proœme”, unpaginated [hereinafter Fourth Institute]. 3 White, S., Sir Edward Coke and the “Grievances of the Commonwealth,” 1621-1628, University of North Carolina Press, Chapel Hill, 1979, at 64. 48
jurisdictions. The common law courts were also engaged in a battle with Chancery itself for supremacy – one of the few battles substantially lost by the common law. Coke’s statements are indicative, however, of the role that the common law judges saw for themselves at the time, as being “procedurally in the driver’s seat and responsible for keeping jurisdictional lines straight… .”4
The purpose of this chapter is to serve as an introduction to, and background to, the jurisdiction of the common law. In particular, this chapter has two tasks. First, the chapter discusses a period in which certain habits and logics of the common law emerge. These habits and logics become part of not only the historiography of the common law, but of the self-representation of the common law as a jurisdiction. They are habits and logics “in whose shadow we still live”,5 and which will be seen playing out in different contexts in subsequent chapters. Secondly, and more straightforwardly, it also provides a description of the framework of interlocking jurisdictions in which the common law was located in the early modern period. The common law was one of a plurality of jurisdictions, each operating within its own largely autonomous realm, and with its own mechanisms for ordering its relations to other jurisdictions. For most of its history, the common law has existed along-side a multiplicity of other jurisdictions. At the time of the ‘settlement’ of the colony of New South Wales, the jurisdiction of the common law had achieved considerable dominance in England, but it is often forgotten that other jurisdictions continued to function, many well into nineteenth century.
The chapter commences with a brief description of the emergence of the common law as an independent jurisdiction. However, rather than the early period, the
4 Gray, C., The Writ of Prohibition: Jurisdiction in Early Modern English Law, Vol I, Oceana Publications, New York, 1994, at lxvi. 5 Goodrich, P. Hachamovitch, Y., “Time out of Mind: An Introduction to the Semiotics of the Common Law” in Fitzpatrick, P., Dangerous Supplements: Resistance and Renewal in 49
emphasis in this chapter is on the important formative period of the seventeenth century.
This period of English legal history was a crucial one for the development of the common law for many reasons, best known of which is the recourse to the common law as the defender of the liberties of the English, a theme which was an important part of the discourse of King and Parliament. This period was also, however, as Gray points out, an important precursor to understanding “how the common law redefined its relationship to its rivals and supplements over a lengthy span of modern history, from the later seventeenth century into the nineteenth and prepared for their fusion later on.”6
Of all periods in the history of not only the common law, but English law more generally, it was the seventeenth century which witnessed the greatest obsession with jurisdiction. In this period:
“Jurisdiction was taken more seriously, its problems handled more delicately, because the mixed character of the system was perceived as an essential and legitimate feature of it. The common law was in a sense only part of the system, though with a special trust to keep all parts, including itself, in proper channels.”7
The reasons for the prominence of the concept of jurisdiction in this period are complex. A number of interrelated factors, however, are of particular importance. First,
Henry VIII’s break with Rome caused enormous changes in how the English generally and, as a result the common lawyers, viewed their place in Europe. In a short period of time, the formerly outward-looking tradition, in which England was part of the broader scholastic traditions of Continental Europe, was replaced with a much more isolationist, inward-looking vision. Very quickly there emerged a particular historiography, both generally, and within the common law, in which England and English law had always
Jurisprudence, Pluto Press, London, 1991, at 161. 6 Gray, The Writ of Prohibition, supra note 4, at xv. 7 Ibid. 50
been separate from, and superior too, Continental traditions. As a result, for the common lawyers canon law and civil law were not only foreign, but suspect. They were too closely linked to the Catholic Church. The reaction of the common lawyers was to move to restrict the jurisdiction of the ecclesiastical courts in particular, but also the civilian courts generally.
That the common law judges were in a position to do this was in part due to the centralisation and consolidation of the emerging nation which had taken place under the
Tudors, again at least partly in response to the break with Rome. This centralisation had eliminated a number of alternative jurisdictions, leaving the common law in a dominant position, from which it was able to enforce its vision of how the English legal landscape should look on its remaining rivals. This process was aided by the appointment of Sir
Edward Coke as Chief Justice, first of the Common Pleas, and later of the Kings Bench.
Historians are divided on how to judge the impact of individuals on history.8
However, there can be little doubt that the impact of Sir Edward Coke on the development of the common law was significant. Coke’s vision of the common law as a unified, coherent body of doctrine, sourced in time immemorial, unchanging and perfectly suited to the English nation, may have been illusory, and at odds with its own history, but it became entrenched. The importance of, and persistence of, Coke’s historiography was due in part to the fact that Coke’s own Institutes and Reports were arguably the most important legal sources of the time. They became widely disseminated, both in England and in the American colonies. Regardless of the accuracy of Coke’s histories, his historiography and vision is arguably how the common law came to represent itself to itself.
8 For an outline of this debate see Carr, E., What is History? The George Macaulay Trevelyan lectures delivered in the University of Cambridge, January - March, 1961, McMillan, London, 51
The self-conscious expansion of the common law which occurred in this period was at the expense of alternative sites of legal knowledge. Other jurisdictions had already begun to wither as a result of the growth of the common law. Common law courts offered simpler procedures and enforcement mechanisms which proved attractive for plaintiffs. The judges of the common law courts had also begun to make significant inroads into the work of the courts of these smaller jurisdictions, often using the writ of prohibition to gather matters into their jurisdiction. However, again largely under the influence of Coke, this process accelerated in the early seventeenth century, as the common law courts increasingly wrested jurisdiction from other bodies of law. For example, the jurisdictions of manorial law, admiralty law and ecclesiastical law were all significantly curtailed in this period.
By the mid-seventeenth century, therefore, many of the characteristics and logics that we still associate with the common law were in place. As a jurisdiction the common law saw itself as a unified, logical structure. It was one that was wary of rivals, with a centralising tendency. If the common law had a project, that project was one of expansion at the expense of other sites of legal knowledge or jurisdictions. It was the self-proclaimed regulator of not only its own jurisdiction, but that of others. Perhaps most importantly, it saw itself as the law of the land and of the realm: English law for the English. These were logics and habits that it carried to the colonies, including the colony of New South Wales.
This period of legal history, and the themes of this chapter, are returned to again in Chapter Seven. This chapter considers the general tendency of the common law to expansion. Chapter Seven revisits this theme in order to examine one particular
1961, Chapter Two. 52
technology by which the common law ordered its relations to its rivals: namely the technology of ‘accommodation’. This refers to the tendency of the common law to assert jurisdiction over matters previously considered to be within the province of another jurisdiction, accommodating these matters as custom within the framework of the common law. This technology is significant in the context of understanding the shape and limits of native title.
The Jurisdictional Landscape of the Early Modern Period
The purpose of this section is to provide an overview of the jurisdictional landscape of the early modern period. This landscape was characterised for many centuries by a plethora of overlapping, conflicting jurisdictions. The plurality of the
English legal landscape for much of the last millennium has been forgotten surprisingly quickly, except by legal historians. This section commences with a brief description of the emergence of the common law as an independent jurisdiction. It then goes on to describe some of the other autonomous jurisdictions which co-existed with the common law in order to show a forgotten way of organising legal plurality. a. The origins of the common law
For first Fortescue, then later Coke, Davies and eventually Hale, the common law was founded in custom ‘time out of mind’. For Coke, the common law could be traced back to the Angles and Saxons. It had always been the law of England and embodied the best of all that was English. It was inseparable from the English nation, and as such was superior to all other jurisdictions. Coke justified decisions by not only claiming that certain practices or laws had existed since the time of King Arthur, and therefore had always been part of the common law, but also that Arthur was only 53
confirming a law that was already immemorial.9 This vision of the common law denied the validity of the role of other bodies of law, in particular canon law and civil law, as both of these were seen as deriving from foreign systems. Coke’s understanding of the immemorial and unchanging nature of the common law held sway until at least the time of Maitland and Holdsworth.
While Coke’s historiography of the common law became orthodoxy for many years, the common law actually originated in the personal power of the King, and owed much of its growth to the Monarchy of the Angevin and Plantagenets.10 At the beginning of the last millennium, the legal landscape was pluralistic, fragmented and decentralised. Jurisdiction was largely based on medieval political units, for example the shire, hundred or borough. From the tenth century onwards, nominally each of these jurisdictions was under the supervisory control of the King. The idea of the King’s peace provided a basis for jurisdiction over criminal matters, while moves in the early eleventh century to limit recourse to the King’s courts to those who had already sought a remedy in the hundred provided a basis for the assertion of jurisdiction over civil causes.11 In addition, the King was also a feudal Lord and hence was expected to provide justice to tenants.12 Combined, these did not provide a King’s law as such, but
9 See Pocock, J., The Ancient Law and the Feudal Constitution, Cambridge University Press, Cambridge, 1957, at 56. 10 There are a number of standard works which discuss the origins of the common law. See, for example, Holdsworth, W., A History of English Law, Vol I-XV, Methuen, London, 1922-1972 [hereinafter cited to individual volumes]; Baker, J., An Introduction to English Legal History, 2nd ed, London, Butterworths, 1979; Pollock, F., Maitland, F., The History of English Law before the Time of Edward I, 2nd ed., Cambridge University Press, Cambridge, 1968 (1895); Van Caenegem, R., The Birth of the English Common Law, 2nd ed., Cambridge University Press, Cambridge, 1988; Brand, P., The Making of the Common Law, Hambledon Press, London, 1992; Milsom, S., The Historical Foundations of the Common Law, 2nd ed, Butterworths, London, 1981. 11 Baker, English Legal History, ibid, at 11. 12 Although the King was a feudal Lord, this should be seen as a reference to social organisation, not to what we tend to call the feudal system, ie a system of tenures where all land is held ultimately of the King. It was not settled that all land was held of the King until some time after the Norman conquest. 54
did provide the foundation out of which the common law developed. The common law emerged in the twelfth century from an expansion of institutions which had existed in an underdeveloped form prior to 1066.13
In the eleventh and twelfth centuries, executive, legislative and judicial functions were vested in the King, who exercised his power through the Curia Regis, or King’s
Court. The Curia Regis followed the King’s person, but was often presided over by an officer, the Grand Justiciar, when it functioned as a judicial tribunal.14 The jurisdiction of the Curia Regis was limited only by the King’s will. Specifically, it had jurisdiction over Norman nobles and their feudal estates, as well as of certain groups who were within the special protection of the King, such as merchants and Jews.15 While initially a complainant had to sue in his local court, from which the case could be removed to the
Curia Regis, it soon became possible to apply directly to the Curia by means of writ.
This provided a more speedy access to justice, thereby contributing to the growth of the common law.
In the first part of the twelth century, a number of courts evolved from the Curia
Regis. These Courts became the three Superior Courts of the Common Law (the
Exchequer, Common Pleas and Kings Bench), and existed until the complete reorganisation of the Courts by the Judicature Acts in the late nineteenth century. The
Court of Exchequer began as the revenue department of the Curia Regis. While it was originally a tax board, rather than a common law court, by the fourteenth century it had developed into a court, administering separately both law and equity. The second court of original jurisdiction was King’s Bench, the jurisdiction of which covered pleas of the
13 Baker, English Legal History, supra note 10, at 15. 14 Thompson, G., “The Development of the Anglo-American Judicial System”, (1931) 17 Cornell L.Q. 9, at 19. 15 Ibid, at 21. 55
crown, civil causes involving force and replevin and assizes of novel disseissin. It was also the court of criminal jurisdiction. Common Pleas began as a central itinerant court which accompanied the King. Due to the seventeenth clause of Magna Carta, it gradually lost its itinerant character and became permanently located in Westminster.16
Coke described the Common Pleas as the “lock and key of the common law”.17
Common Pleas was the court of original jurisdiction with respect to civil actions involving both real and personal property. Although each common law court originally dealt with discrete areas, they gradually extended their jurisdiction until there was considerable overlap. For example, although the Common Pleas originally held jurisdiction over civil actions, by use of legal fictions, the other courts eventually gained concurrent jurisdiction with respect to these actions.
The emergence of the common law as an independent jurisdiction dates to the fifteenth century. As Royal courts, the King originally had significant control over the business before the court. Initially, as these were his courts, the King actually decided cases. Eventually this ceased. First the common pleas, then the King’s Bench became independent of the King and King’s Council. This happened first with the Common
Pleas, which ceased being peripatetic at an earlier stage than the King’s Bench, and settled permanently at Westminster. By contrast, the King’s Bench continued to follow the King until the end of the fourteenth century, and the King was deemed to be actually present before that court. After this time it became accepted practice that the King did not actually render judgment. In Prohibitions del Roy, Coke cited the accepted practice, that:
“[t]he King, in his own person cannot adjudge any case, either
16 Ibid, at 35-6. 17 Coke, Fourth Institute, supra note 2, at 98. 56
criminal, as Treason, felony, &c. or betwixt party and party, concerning his inheritance, chattels or goods, &c..”18
According to Coke, “this ought to be determined and adjudged in some court of justice, according to the law and custom of England; and always judgments are given, ideo consideratum est per Curiam, so that the Court gives the judgment.”19 While this is a generally accurate statement of practice, as usual Coke could not resist ‘gilding the lily’ in order to make his point. He went on to state, surely knowing that his comments were inaccurate, that: “[n]o king after the Conquest assumed to himself to make any judgement in any cause whatsoever, which concerned administration of justice within this realm, but these were solely determined in the courts of Justice.”20
Notably, however, while the common law courts may have functioned autonomously from this time onwards, there was not yet any notion of a unified common law. The causes of action still remained underdeveloped and while much substantive law had developed, the common law was still arguably dominated by procedure. Moreover, common law causes of action were still split between the common law courts, as they remained until the nineteenth century.
The primary jurisdictional mechanism of the common law was the writ system.
Unlike other jurisdictions, in which plaints were still initiated by a form of oral words, the common law relied upon writing at an early stage of its development.21 The law of writs was the earliest law of the common law. Writs preceded the substantive law.
Where a writ could be issued, the common law had jurisdiction. Thus, the issuing of a writ inaugurated the jurisdiction of the common law. The purchase of writs was seen in
18 Prohibitions del Roy (1607) 12 Co. Rep. 63, at 63-4 (77 E.R. 1342, at 1342). 19 Ibid, at Co. Rep 64 (E.R. 1342). 20 Ibid. 21 The County Courts, through which much of the judicial work of England continued to flow for centuries after the Norman Conquest, continued to initiate proceedings by oral plaint. 57
the reign of Henry II as a means of extending the King’s peace throughout England, and thus the procedure of purchasing special writs became transformed into the usual practice. Anyone could purchase a writ, which conferred jurisdiction on the King’s justices to hear the matter. Writs were initially a simple directive to do something, eventually however, performance became optional, as the matter could instead be contested.
By the time of Bracton, numerous writs had developed. While the form of each writ was rapidly becoming fixed, the number available was not yet finite. Would-be plaintiffs either fitted their grievance within the ambit of a known writ, or applied for a new one to be devised. Well into the thirteenth century, new writs were being developed, drafted in response to new situations and needs.22 Thus, until the mid- thirteenth century, the expansion of common law jurisdiction was limited only by the willingness of Chancery to issue a writ. With the closing of the category of writs, in part because of the sheer number of new writs which had been devised, the jurisdiction of the common law became bound and defined by those existing writs. The common law was fixed within a framework created by its jurisdictional origins in the writs.
As the writs became fixed, laws and procedures evolved around each one.
Maitland pointed out that each writ was in essence a ‘procedural pigeonhole’ which contained its own rules of substantive law, modes of pleading, of trial and of judgment.23 These became known as the ‘forms of action’. The machinery of the writ system drew lines of demarcation between local and royal jurisdiction.24 The writ system cut across local jurisdictions by allowing a plaintiff who purchased a writ to
22 Baker, English Legal History, supra note 10, at 65. 23 Maitland, F.W., The Forms of Action At Common Law, Cambridge University Press, Cambridge, 1965, at 4. 24 Milsom, Historical Foundations of the Common Law, supra note 10, at 33. 58
have his action heard by a Royal court, rather than, for example, a feudal or manorial court. Thus, the writ system gathered jurisdiction to emerging geographic centre of the common law courts. According to Stonor J in 1315, the writ was the basis of the common law.25
b. Non-common law jurisdictions
As well as considerable overlap and fragmentation of common law jurisdiction between the common law courts themselves, the common law was one of a number of bodies of law. Some of these were mentioned in Chapter One in the context of different modalities of jurisdiction. In this section it is proposed to offer a brief description of a number of the different systems which co-existed with the common law in order to demonstrate the plethora of jurisdictions which characterised the legal landscape of
England in the period between the Norman Conquest and the end of the sixteenth century. Many of these jurisdictions were quite small and specialised. Others, such as the county courts, were the most visible source of justice for many people. Some of these jurisdictions survived for many centuries after the beginnings of Royal law with their jurisdictions largely intact, for example the commercial courts of the staples and fairs. Others, such as the county courts, retained significant jurisdiction, but that jurisdiction was considerably modified by the new Royal law, its writ system and itinerant justices. Many eventually faded away, as a result of their jurisdiction being curtailed by the common law, or because the social and economic forces on which they depended simply disappeared. The forest law is an example of this.26 However, the inevitable impact of the common law upon many of these bodies of law should not
25 Horwait v. Courenay (1315) 45 SS 5, quoted in Baker, English Legal History, supra note 10, at 67. 26 See Thompson, E.P., Whigs and Hunters: The Origins of the Black Act, Penguin, London, 1990. 59
obscure the fact that they functioned along side the common law for many centuries as autonomous jurisdictions in a pluralistic framework.
An idea of the complexity and range of jurisdictions in England, particularly between the eleventh and seventeenth centuries can be gained from Coke’s Fourth
Institute, which is entitled “Concerning the Jurisdiction of Courts”. Coke examines the jurisdictions of over one hundred courts, many of which administered their own bodies of law. Unfortunately, although the fourth volume of Coke’s Institutes does provide an outline of numerous jurisdictions, both extant and disappeared, it is not a treatise on jurisdiction. In particular, he provides no ‘map’ or ‘guide’ to the way in which these jurisdictions interlocked in theory or practice. There were, in fact, no contemporary treatises written on jurisdiction, nor any written after this crucial period.27
By Coke’s time a number of the courts listed in his Institutes had been abandoned or dissolved. Examples include the Court of Augmentations, the Court of
General Surveyors of the Kings Lands and the Court of the First Fruits and Tenths
Ecclesiastical. Many continued to function, often co-existing within a small geographic area. Within the City of London, for example, eighteen separate courts existed, each with diverse, albeit limited, jurisdictions: the Court of Orphans, the Court of the
Coroner, the Court of the Conservation of the Water and River of Thames, and the
Court of the College of Physicians to name a few. The history of English law is littered with what Goodrich calls ‘minor jurisprudences’.28 On the other hand, a number of alternate jurisdictions were statutorily strengthened, in particular the courts of the
27 On this see Gray, The Writ of Prohibition, supra note 4, at ix. 28 In Law and the Courts of Love: Literature and Minor Jurisprudences, Routledge, London, 1996, Peter Goodrich explores a range of alternative or ‘minor’ jurisdictions, taken from law and literature. According to Goodrich, a minor jurisprudence is one which “neither aspires nor pretends to be the only law or universal jurisprudence. Its referent is a law whose jurisdiction is neither jealous of other jurisdictions nor fearful of alternative disciplines. It represents the strangeness of 60
stannaries, which had their jurisdiction enhanced in the seventeenth and eighteenth centuries.29
Ecclesiastical courts administered the canon law.30 There were also the commercial courts of the staple and the fairs or boroughs, including the Court of
Piepowder. These were matched by the maritime jurisdictions of the sea towns. In addition, there were also the courts of the Admiralty. Admiralty law survives today, albeit administered by the common law courts.31 Manorial courts administered to the villeins who lived within the manor. The county courts continued to exercise significant civil and criminal jurisdiction. There were also courts which administered forest law,32 courts of the Constable and Marshal, Courts of Wards and Liveries, and the coroners courts. In addition, were the private or franchisal jurisdictions, such as the palatinates and boroughs, courts pertaining to certain industries, such as the Stannary courts of the tin industry in Cornwall and Devon, and the private courts of Oxford and Cambridge
Universities.
Although many of these have been long forgotten, they were, as Gray puts it
“real courts”:
“… with power to compel attendance and apply sanctions as against all the King’s subjects and all sojourners within the reach of his authority. They were forums for the practice of professional lawyers, operating with bodies of formulable, “learned” law. The matters they dealt with were important for the everyday lives of many people.”33
language and so the possibilities of interpretation as also of plural forms of knowledge.”: at 2. 29 See 6 & 7 Will. IV, c. 106. 30 These included the ordinary courts of the Diocese, the Peculiar, the Province (courts of the Arches, Audience, the Praerogative court, court of the Peculiars and of the Vicar-General), High Court of the Delegates, and Court of High Commission. 31 In Australia, admiralty jurisdiction is administered by the Federal, State and Territory courts: see Admiralty Act 1988 (Cth), Pt II. 32 The courts of the forest were the Swanimote, the Court of Attachment, the Special and General Inquisitions, the Regard and the Eyre or Court of Justice Seat. 33 Gray, The Writ of Prohibition, supra note 4, at viii. 61
The impact of the emergence of the common law on these various courts and the bodies of law they administered was varied. Most obvious was the gradual gathering of the traditional jurisdictions of these courts to the new central courts of the common law.
In other cases, the courts continued to administer their own bodies of law, but adopted the (initially at least) simpler procedure of the common law, issuing their own writs which were virtually identical to those of the common law courts. Some courts administered the common law, but remained outside of the purview of the central common law courts. A number of courts continued to administer bodies of law which fell outside of the ordinary courts of law and equity. These included the courts which administered the commercial law, or law merchant, the ecclesiastical courts and the court of the Constable and Marshall. Each is briefly described below.
One of the examples given in Chapter One of non-common law jurisdictions which existed in England in the middle ages was canon or ecclesiastical law. This was no ‘minor jurisprudence’ in Goodrich’s terms. Prior to the reformation, and for many years after, this body of law had a significant jurisdiction and a high volume of cases passed through the English ecclesiastical courts. At the same time that the common law of England was developing through the centralisation of royal justice, the church was developing its own system of jurisprudence through the centralisation of ecclesiastical authority on Rome.34 The rules and pronouncements from Rome became a body of law known as canon law. In the pre-reformation period the canon law was received in
England as the ius commune of the church. Canon law recognised the Pope as the supreme legislator and judge of the Church,35 and was administered through a supra- national series of courts, including in England. English cases were frequently taken
34 Baker, English Legal History, supra note 10, at 146. 62
before the Pope.36 According to Bracton, the Pope had ordinary jurisdiction over all things spiritual, “as the king had ordinary jurisdiction over all in his realm in things temporal”.37 Hale, for example, acknowledged the international character of canon law.
Christian courts proceeded “according to the rules of the ecclesiastical canons, constitutions, decrees, forms and precedents which were common to all ecclesiastical courts beyond the seas as well as here”.38 Some of the matters within the jurisdiction of the canon law were outlined in Chapter One: consecration, ordination, tithes, marriage, divorce, legitimacy and wills.39
The canon, and later ecclesiastical law, was of profound importance to the way in which the common law viewed itself from the sixteenth century. It was against the canon law, and hence civil law generally, that Coke and others were defining the common law. The ecclesiastical law was suspect as ‘foreign’, while the common law was the native law of England. This was not an entirely new theme. In the pre- reformation period, for the common law courts “the law of jurisdiction was largely concerned with defining and protecting the sphere of English secular courts as against the organs of the international Church.”40 However, once the canon law courts were incorporated into the framework of English national courts and laws, hostilities by the common law judges became more unified than before. Despite claims that the ecclesiastical courts were part of the law of England, and always had been, they were irrevocably linked to the now suspect Catholic church. The ecclesiastical courts are
35 Holdsworth, History of English Law, Vol 1, supra note 10, at 355. 36 Maitland, F., Roman Canon Law in the Church of England, London, Methuen, 1898, at 122. 37 Thorne, S. (trans.), De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England), Vol II, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1968, at f412. 38 Hale, M., (Gray, C., ed.), The History of the Common Law of England, and An Analysis of the Civil Part of the Law, The University of Chicago Press, Chicago and London, 1971 (1713), at 21. 39 See Pollock and Maitland, History of English Law, supra note 10, at 124-135. 63
returned to later in the chapter. It should be noted that the ecclesiastical courts were not the only civilian courts. The Court of Admirality and Court of Requests also were areas of civilian practice. It is not coincidence, therefore, that these were also courts targeted by the common lawyers.
A second example is the law merchant, or lex mercatoria. This refers to the law governing commercial interactions during the medieval period. According to commentators, the lex mercatoria was “not the law of a particular country, but of the law of all nations”.41 The law merchant consisted of a body of principles and regulations applied to commercial transactions and was derived from the commercial standards and established practices of merchants and traders. Although it strove to be a European-wide system, it was inevitably subject to local qualifications, distinctions and exceptions.42 In
England, the law merchant was administered in special courts. Jurisdiction of these courts was asserted on the basis of one’s status as either a domestic trader or a foreign merchant. Until the 1600s, almost all cases dealing with commercial matters were adjudicated by these special courts, and according to the law merchant, rather than the common law.
The Court Pepoudrous or Court of Piepowder, sat at fairs and markets throughout England. According to Coke:
“This Court is incident to every fair and market, as a court baron to a mannor, and is derived of two Latin words, as is apparent, and so called because that for contracts and injuries done concerning the fair or market, there shall be as speedy justice done for advancement of trade and traffick, as the dust can fall from the foot, the proceeding
40 Gray, The Writ of Prohibition, supra note 4, at xiv. 41 Luke v. Lyde (1759) 2 Burr 882, at 887 (97 E.R. 614, at 617). See also Zouch, R., The Jurisdiction of the Admiralty of England Asserted, London, 1663, at 89. 42 Trakman, L., The Law Merchant: The Evolution of Commercial Law, Rothman & Co., Littleton, Colorado, 1983, at 19. 64
there being de hora in horam.”43
These courts had significant jurisdiction. The judges were the merchants who attended the fairs, and the court’s jurisdiction only excluded pleas concerning land or pleas of the Crown. There was no monetary limit on the jurisdiction, and they could even hear cases which had arisen outside of the limits of the fair.44 While the law merchant was recognised as a law separate to the common law, the common law adopted a number of its rules, and began to absorb that part of its work which covered domestic transactions. By the mid-fifteenth century, much of its business had been taken by the common law courts and late in that century the jurisdiction of the courts of the fairs was restricted by statute to matters taking place within the limits and time of the fairs.45 Along with many other jurisdictions, this remaining jurisdiction of the fairs was monitored and restricted by the common law courts in the early seventeenth century and finally absorbed into the common law in the time of Lord Mansfield.
At the same time as the domestic jurisdiction of the courts of the fair was restricted, a number of special courts were established by statute which dealt with matters arising from foreign trade. These were the Courts of Staple.46 These were specifically to administer the law merchant, not the common law, in towns which were set apart as Staple towns. They had plenary jurisdiction, excepting land and felony.
Unlike the courts of the fair, these retained significant jurisdiction, in no small part because at the time the common law had no jurisdiction over foreign contracts or torts.
43 Coke, Fourth Institute, supra note 2, at 272. In fact, the name probably derived from the fact that the courts were frequented by merchants with dusty feet, rather than being a reference to the speedy nature of the justice: Holdsworth, History of English Law, Vol I, supra note 10, at 536. 44 Ibid, at 536. 45 17 Edw. IV, c. 2, and ibid, at 539. 46 See, for example, the Statute of the Staple 27 Edw. III, c. 2 (1353). 65
Similar courts which dealt with cases arising out of shipping would be found in seaside towns.47 Many towns had courts which sat on the seashore at tide time: Ipswich,
Yarmouth, Newcastle, Padstow, Tynemouth and Harwich to name a few. These towns defended their jurisdictions against the encroachments of the Court of Admiralty by obtaining royal charters which exempted them from its jurisdiction. Their jurisdiction was further protected by legislation until the late sixteenth century.48 Inroads were made into their jurisdiction from the sixteenth century onwards, although by the Court of
Admiralty, rather than the common law. Remnants of their jurisdiction continued until
1835.49
The longest surviving jurisdiction of these maritime towns, and the oldest, was that of the Cinque Ports, comprised of Hastings, Romney, Hythe, Dover and Sandwich.
Although these towns originally came together informally in the eleventh century, their jurisdiction was confirmed by Royal Charter in 1260. In return for providing ship- service, that is ships and crews for warfare and royal transportation, they received a number of freedoms. These included freedom from tolls and similar taxes, the privilege of den and strand, which was the right to organise a herring fair each year and to dry and mend their nets, certain honours at court and, most importantly, the right to hold their own courts and remain exempt from the jurisdiction of other courts. The Cinque
Ports operated as a confederation, serviced by several courts, the main one of which was the Court of Shepway. It was presided over by the Lord Warden who sat with the freemen of the ports. The courts exercised an extensive admiralty jurisdiction, as well as a general civil jurisdiction. Influenced by the common law, they also developed an
47 Scrutton, T., “General Survey of the History of the Law Merchant”, in Association of American Law Schools, Select Essays in Anglo-American Legal History, Vol III, Little, Brown & Company, 1909, at 11. 48 Holdsworth, History of English Law, Vol 1, supra note 10, at 531. 66
equitable jurisdiction. They remained relatively autonomous until the mid-1800s, exempted from the jurisdiction of the Admiralty.50 While the courts have not sat for some years, they still exist and have jurisdiction over part of the North Sea and English
Channel.
The final example is the court of Constable and Marshall. This court had a much more restricted jurisdiction and was, according to Hale, concerned with matters of arms and matters of war. Its jurisdiction was administrative and judicial. On the administrative side, the Constable and Marshall kept lists of officers and soldiers.
According to Hale, their judicial power extended to:
“1st, Appeals of Death or Murder committed beyond the Sea, according to the Course of the Civil Law. 2dly, The Rights of Prisoners taken in War. 3dly, The Offences and Miscarriages of Soldiers contrary to the Laws and Rules of the Army: For always preparatory to an actual War, the Kings of this Realm, by Advice of the Constable, (and Marshal) were used to compose a Book of Rules and Orders for the due Order and Discipline of their Officers and Soldiers, together with certain Penalties on the Offenders; and this was called, Martial Law.”51
It also had jurisdiction over all contracts relating to “deeds of arms” made of the realm.52 Thus, outside the realm, the court had virtually unlimited civil and criminal jurisdiction in the context of matters of war, but inside the realm had only limited jurisdiction except in times of actual war. The jurisdiction of the Constable and Marshal came under fire during the Stuart period, and was the subject of some complaint in the
Petition of Right, Parliament preferring that jurisdiction be exercised by the common
49 Municipal Corporations Act 5 & 6 Will IV, c. 76 (1835). 50 Holdsworth, History of English Law, Vol 1, supra note 10, at 532-3. 51 Hale, History of the Common Law, supra note 38, at 26. 52 An Act Touching the Jurisdiction of the Contable of England 13 Rich. II, c. 2 (1389). 67
law courts. The court fell into disuse during the Interregnum.53 However, it clearly prefigures the modern military tribunals.
As can be seen from the above, courts exercised jurisdiction through all of the modalities outlined in Chapter One: territory, status and subject matter/activity. Some of them originated as a kind of early supra-national law, such as the law merchant, while others, such as the Court of Marshall and Sea, were peculiarly English, although military courts existed all over Europe. Unlike the common law, they also exercised extra-territorial jurisdiction. Merchants, soldiers and members of the church all became objects of the law as a result of the exercise of jurisdiction over them by one of the myriad courts of the period. However, what constituted ‘the law’ changed depending on context. Merchants could be subject to the law of the fair during the time of the fair with respect to matters relating to contract, but subject to the common law with respect to potentially criminal behaviour. Depending on their normal place of abode, they could also be subject to the jurisdiction of the local borough or some other franchise.
Similarly, a soldier was subject to the Court of Constable and Marshal in times of war, and the common law in times of peace, as well as other potential jurisdictions.
As will be discussed below, the English nation, in a form recognisable to modern eyes, emerged in the sixteenth century. For various reasons, again mentioned below, this was somewhat earlier than generally occurred elsewhere in Europe. When the nation could be called ‘sovereign’ is still a matter for debate. However, by the mid- seventeenth century, England could be called a sovereign nation in the sense of possessing the attributes we now associate with such a nation: singular sovereign authority, a definite territory and people. At this time, many of the non-common law
53 Holdsworth, History of English Law, Vol 1, supra note 10, at 577. 68
jurisdictions mentioned above still functioned. Their jurisdictions had been narrowed by the predations of the common law, but the legal landscape was still pluralistic. Further, while the common law may have been expanding at the expense of these other jurisdictions, these jurisdictions were just that – separate jurisdictions - and their courts administered bodies of law peculiar to themselves. Even as the jurists and commentators of the common law sought to redefine these jurisdictions as subject to, and part of the common law, the practitioners of these other jurisdictions struggled to maintain their independence.
The Law of the Land
In Magna Carta and some later statutes the customs of the land had been said to be ‘the law of the land’. In the seventeenth century, the common lawyers began to confine this phrase to mean the custom of the common law.54 Initially, the common law was literally ‘the law of the land’ as much of its early authority stemmed from its jurisdiction over land, and in particular freehold land. However, the idea of the common law as the law of the land began to take on not only a public law aspect, but a symbolic aspect. The common law emerged as the law of the land and the law of the realm in the wake of the emergence of the English nation. The immemorial common law is part of the ‘ancient constitution’ of England. a. The common law ‘time out of mind’
The period between 1550 and 1650 was a crucial one in history of the common law. As Murphy puts it, the emergence and consolidation of the common law “owes
54 Knafla, L., Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere, Cambridge University Press, Cambridge, 1977, at 166. 69
much … to its peculiar position in the convulsions of the seventeenth century.”55 The
Tudor impulse towards unified, centralist institutions, the later problems of King and
Parliament in the seventeenth century and the squabbles of the ruling classes all provided a opportunity for the common lawyers to consolidate the hold of the central courts.56
By the late 16th century, the English legal landscape had become a morass of overlapping, often competing, jurisdictions and was characterised by an unwieldy writ system, obsolete forms of action and numerous complaints about the legal profession.
The issue of law reform was considered pressing in the last years of the 1500s and the first decades of the 1600s. Many of the leading legal lights of the day were in favour of reform - Coke, Finch, Ellesmere, Davies, Bacon and Dodderidge - although they differed considerably in their approaches to the issue. At the same time, they were committed to not only consolidating the hold of the common law as the defender of traditional liberties, but to extending its influence.
Of those who both defended traditional rights and sought to expand the common law, the best known is Sir Edward Coke:
“The primary secular exponent of doctrinal apologetics is undoubtedly Coke, who manages in one body in one lifetime to defend the common law against foreigners, against scholars and against multiple forms of popular criticism.”57
Coke’s influence was particularly strong in the early 1600s, as his Reports
(published between 1600-1615) were virtually the only available law reports. Coke was accused of substituting his own opinions of the bench, of inserting long discourses as to
55 Murphy, T., “The Oldest Social Science? The Epistemic Properties of the Common Law Tradition” (1991) 54 M.L.R. 182, at 196. 56 Ibid, at 197; Milsom, Historical Foundations of the Common Law, supra note 10, at 11. 57 Goodrich, P., Languages of Law: From Logics of Memory to Nomadic Masks, Weidenfeld and Nicolson, London, 1990, at 83. 70
his own views, of failing to note where judges’ opinion was divided and particularly of reporting a matter as concluded when in fact it remained unresolved.58 The result, however, of the scarcity of records of legal determination was that Coke’s judgements became precedent for later decisions and contributed significantly to the development of the common law over the next two centuries.
How consciously Coke set out to ‘construct’ a new historiography of the common law is unclear. There was some precedent for such an approach. Seventy years before, after the break with Rome, Cromwell consciously set out to construct and ‘sell’ to the people a particular vision of England and of Henry VIII as not only the temporal and spiritual head of England, but as always having been.59 However, there is no clear evidence that Coke similarly set out to ‘manufacture’ a particular image of the law.
Rather, his work appears to have been the result of “deep-seated and unconscious habits of mind”.60 Coke wrote at the end of a period in which there was “a great hardening and consolidation of common law thought”.61 Pocock speculates that this either resulted from the common law’s need to defend itself from rivals, primarily the conciliar courts, or from Tudor centralisation, the effect of which “was to deliver it from more rivals than it created … actually mak[ing] it easier for it to regard itself as the sole and supreme system of law in England.”62 In either case, the result was that for common lawyers of
Coke’s era it was taken for granted that the common law was the only system that
England had ever had, and that the common law had to be defended against its rivals.
58 For a discussion of the criticisms of Coke’s Reports see Knafla, Law and Politics in Jacobean England, supra note 54, chapter VI. Both Lord Chancellor Ellesmere and Bacon were particularly strident in their criticisms, and prepared a number of tracts in which they sought to point out the deficiencies and inaccuracies in Coke’s Reports: ibid. 59 See, Jones, E., The English Nation: The Great Myth, Sutton Publishing, Phoenix Mill, 2003 (1998), Ch. 1. 60 Pocock, The Ancient Law, supra note 9, at 32. 61 Ibid. 71
The result was a particularly English view of both the law and the nation, one in which they are both untainted by continental traditions. The versions of history presented by both Coke and Cromwell became the official stories of law and nation. In the end, it was Coke’s vision of the common law which largely prevailed.63 It was not until the late nineteenth century that historians (legal or otherwise) began to seriously question the story of nation and common law which emerged from the seventeenth century. By the time the accuracy of Coke’s history had been seriously challenged,64 the common law had become virtually the only jurisdiction, just as it had begun to see itself in the 1600s.
For some, Coke is rather grandiosely credited with “remoulding the medieval common law in such a way that it was made fit to bear rule in the modern English state.”65 Others, such as Pocock, point to the insularity of Coke’s vision:
“Coke’s mind, it is clear, was as nearly insular as a human being’s could be. He saw the law he idolized as the immemorial custom of England, and he imagined it as being immemorial purely within the island. … The purely insular character of his ideas could hardly appear more clearly; the law is immemorial in Britain and ancient Continental law merely happens to agree with it.”66
Despite the insularity of Coke’s vision, his appeal to the customary, immemorial nature of the common law as the basis for its superiority, and as a buttress against James
I’s claims to be above the law were not unique. Across sixteenth century Europe, customary and feudal law had been appealed to as a bulwark against the growing power
62 Ibid. 63 See, for example, the alternative suggestions of Bacon, who compiled three hundred legal maxims, which he believed would help remedy the uncertainty of law. In 1597, Bacon presented 25 of these maxims to Queen Elizabeth with a dedication and a preface explaining their use. These were not published until 1630, after Bacon’s death: see Kocher, P., “Francis Bacon on the Science of Jurisprudence”, (1957) 18 Journal of the History of Ideas 3, at 5. 64 For one individual who seriously questioned Coke’s histories see Spelman, Sir H., The Original of the Four Law Terms of the Year, London, 1695 (1614), at 99. 65 Holdsworth, Some Makers of English Law, Cambridge University Press, Cambridge, 1938 at 346. 72
of the King, although this idealisation of custom did not elsewhere in Europe reach the heights it attained in England under Coke.67 In a number of countries appeals were made to the ‘ancient constitution’ of customary law “in order to prove that the rights it was desired to defend were immemorial and therefore beyond the king’s power to alter or annul.”68 In England, issues of royal prerogative under the Stuarts, coupled with the increasing quantity of legislation enacted by Parliament, highlighted the need to reconcile the common law with the power of parliament and of the king.69 The appeal to customary law was perhaps strongest in England, with its history of the lex non scripta of the common law, as compared with other European nations, such as France, whose law displayed a more mixed heritage of customary, written law and Roman law.
Coke attempted to impose a unity and structure on English common law and to translate medieval law to modern. He did so by sourcing the common law as being
‘time out of mind’. For Coke, therefore, continuity and antiquity were the basis of the unity, integrity and authority of the common law. The theme of the common law as sourced ‘time out of mind’ was taken up in the constitutional conflicts of the seventeenth century. Both parliamentarians and common lawyers identified Parliament and the ‘ancient constitution’ with the immemorial custom and hence common law of
England. The antiquity and authority of the common law was used to bolster parliament’s authority in its battles with the king.70 If it could be demonstrated that the customary law of England derived from a time before the Kings of England, or, even better, had simply always existed, then it could be shown that the king was under the
66 Pocock, The Ancient Law, supra note 9, at 56. 67 Ibid, at 15. 68 Ibid, at 16 69 Lewis, J., “Sir Edward Coke (1552-1633): His Theory of “Artificial Reason” as a Context for Modern Basic Legal Theory” (1968) 64 L.Q.R. 330, at 338. 70 See generally Pocock, The Ancient Law, supra note 9, at 91-123. 73
law, rather than the law under the king. The relationship of the king and the prerogative to the common law had been the matter of some debate for several centuries. However, the matter was brought to a head by the reign of James I.
As customary law, the common law was “the most perfect and most excellent, and without comparison the best, to make and preserve a Commonwealth. … a Custome doth never become a Law to bind the people, until it hath been tried and approved time out of mind … .”71 Thus, For Davies and Coke, the wisdom of the common law was above that of any one individual. Custom contained the wisdom of generations, because it embodied the “long and continual experience, … fined and refined, which no one man
… albeit he had in his head the wisdom of all the men in the world, in any one age could ever have effected or attained to”.72 For Coke, this accumulated wisdom was expressed through his notion of ‘artificial reason’.
According to Coke, the unity and authority of the common law rested on two related bases: its antiquity and continuity, and its artificial reason. Coke was particularly concerned to provide a genealogy for the common law which could be traced to a time before the Norman Conquest. In his Reports he stated that:
“Time out of mind before the Conquest there had been Sheriffs. … Likewise by all that time there were trials by the oath of twelve men… by like time there had been writs of assize and other original writs returnable to the King’s Courts… [These] manifestly prove that the common law of England had been time out of mind before the Conquest and was not altered by the Conqueror.”73
71 Davies, Sir John, Preface to his Irish Reports, Les Reports des Cases & Matters en Ley, Resolves & Adjudges en les Courts del Roy en Ireland, Collect & Digest per Sir John Davis, Chivaler, Atturney Generall del Roy en cest Realm, London, 1674, unpaginated. Davies’ Reports (although not the preface) are to be found in 80 E.R.. 72 Calvin’s Case (‘the PostNati’) (1608) 7 Co. Rep. 1a, at 3b (77 E.R. 377, at 381). 73 Coke, E., The Third Part of the Reports of Sir Edward Coke, Butterworth & Son, London, 1826 (1602), at xi-xii. 74
According to Coke, not just the courts and the common law, but also parliament, had existed ‘time out of mind’.74 In various other places, Coke traces the antiquity of the common law to before Arthur, or even Abraham. Not only was the law immemorial, but unchanging. According to Coke, it is the nature of law to be reasonable, and the test of its reasonableness is the ability to withstand the test of time:75
“The wisdom of the judges and sages of the law…have always suppressed new and subtle inventions in derogation of the common law. And therefore the judges say … we will not change the law which always hath been used.”76
For Coke, the second foundation of the common law was that of artificial reason. What was required, if English law was to exist as a unified system, was an element that provided that unifying force. Coke provided a foundation for this: the idea of perfect reason. Reason, of course, did not refer to the rationality of ordinary citizens, but to “artificial reason”, the prerogative of the learned judiciary as a whole:
“Reason is the life of the law, nay, the common law itself is nothing else but reason; by which is to be understood of an artificial perfection of reason, gotten by long study…, and not of every man’s natural reason… And therefore if all the reason that is dispersed into many several heads were united into one, yet could he not make such a law as the law of England is; because by many successions of ages; it hath been … refined by an infinite number of grave and learned men, and by long experience grown to such a perfection for the government of this realm. … No man (out of his private reason) ought to be wiser than the law, which is the perfection of reason.”77
Coke famously confirmed this view in his report of the Prohibitions del Roy, in which the common law judges determined that the King was subject to the common law. Cases were not to be decided by natural reason:
74 See Coke, E., Nineth Part of the Reports of Sir Edward Coke, Butterworth & Son, London, 1826 (1613), at xxi-xxiii. 75 Lewis, “Coke’s Theory of Artificial Reason”, supra note 69, at 339. 76 Coke, E., The First Part of the Institutes of the Lawes of England. Or, A Commentarie upon Littleton, not the name of a Lawyer onely, but of the Law it selfe, 15th ed., E. & R. Brooke, London, 1794 (1628), at 21 [hereinafter First Institute]. 75
“… but by the artificial reason and judgement of law, which law is an act which requires long study and experience, before that a man can attain to the cognisance of it: that the law was the golden met-wand and measure to try the causes of the subjects, and which protected His Majesty in safety and peace:”78
Antiquity, continuity and artificial reason gave the common law its authority, but also made it, in the eyes of many of its judges at least, superior to other forms of legal knowledge. The combined effect of Coke’s artificial reasoning and the ancient and continuous nature of the common law was to subordinate other sites of legal knowledge to that of the common law.79 However, for Coke, these rival sites of legal knowledge were unsettling. Concerned to defend the common law from rivals such as ecclesiastical law, with its popish overtones, and civil law, he constructed a view of the common law as unified and univocal. The common law had always been English law, and spoke for
England as a whole. As a result, all non-common law jurisdictions became suspect, not only ecclesiastical and civil law. The diversity of jurisdictions extant in England detracted from the common law as the customary law of all the English. b. The law of the realm
A nation needs a national law, and for Fortescue, Davies, Coke and others, the antiquity of the common law was what gave it its identity as English. It differentiated the common law from other laws. For Coke, because the common law could be traced to a time before human memory, and had remained essentially unchanged, it was free of the taint of other laws: “… if the ancient laws of this noble island, had not excelled all others it could not be but some of the several conquerors and governors thereof, that is
77 Ibid, at 1. See also Harbert’s Case (1584) 3 Co. Rep. 11b (76 E.R. 647). 78 Prohibitions del Roy, supra note 18, at Co. Rep. 65 (E.R. 1342). 79 Blomley, N., Law, Space and the Geographies of Power, The Guilford Press, New York, 1994, at 73. 76
to say the Romans, Danes, or Normans, especially the Romans … would have altered or changed the same.” 80 For Fortescue:
“Neither the law of the Romans, which are cried up beyond all others for their antiquity, nor yet the laws of the Venetians, however famous in this respect, their Island not being inhabited so early as Britain, neither was Rome at that time built. Nor in short, are the laws of any other kingdom in the world so venerable for their antiquity.”81
According to Davies, the common law was perfectly suited to the people and the nation. It was: “so framed and fitted to the nature and disposition of this people, as we may properly say it is connatural to the nation, so as it cannot possibly be ruled by any other Law.” As a result, there had been no “begging or borrowing a form of a
Commonweal, either from Rome or from Greece, as all other Nations of Europe have done … .”82 For Fortescue, Coke and Davies, therefore, there was a natural link between the English nation and the common law. They were inseparable. It was the cultural identity of England which is expressed through the common law. It was English law for the English:
“It is [the common law’s] origin in a time outside memory, a time outside chronologies that enshrines the particular national code as an inheritance that is closer to nature and to divine law than any other existent system of laws.”83
As Goodrich and Hachamovitch point out, Coke and others, such as Davies, were engaged in creating the secular myth of the common law.84 The defences of
English law by Coke, but also Davies and Fortescue “written between the end of the
80 Coke, E., The Sixth Part of the Reports of Sir Edward Coke, Butterworth & Son, London, 1826 (1607), at Z2a, quoted in Goodrich, The Languages of Law, supra note 57, at 212 n.1. 81 Fortescue, J., De Laudibus Legam Angliae, London, Abel Roper, London 1660 (written c.1470 and first published without a date during the reign of Henry VIII), chapter XVII. 82 Davies, Preface to the Irish Reports, supra note 71, unpaginated. 83 Goodrich, Languages of Law, supra note 57, at 214. 84 Goodrich, Hachamovitch, “Time out of Mind”, supra note 5, at 171. 77
fifteenth and the middle of the seventeenth centuries … reflect the symbolism and mythology of an English tradition and vernacular law in whose shadow we still live.”85
While Coke’s vision may have been exaggerated, it was not entirely symbolic.
By the sixteenth century the common law was not just seen by the common lawyers as the law of the land, but was recognised by other jurisdictions as dominant. While other jurisdictions, such as the ecclesiastical courts, were concerned to maintain their independence, and they frequently complained about the overuse of prohibitions by the common law courts, there is some evidence that they did acknowledge that the common law courts had some rights to oversee non-common law jurisdictions. Further, as will be seen below, use of the writ of prohibition allowed the common law judges to effectively undertake the role of superintending the English legal system, and to police not only its own jurisdictional boundaries, but those of other courts.
Further, as Gray points out, “the common law judges would simply not regard the non-common law authorities as fellow judges in the full sense of sharers of a common enterprise”.86 Other jurisdictions, such as ecclesiastical law, were ‘foreign’. No matter how hard the State had attempted to build a picture of ecclesiastical law as having always been English, not a derivative of canon law, for the common lawyers it was never the equal of their law. Further, as a civilian profession they were not part of the Inns of Court, from which the “cream of the common law bar” was derived.87 Rival non-law jurisdictions were tolerated, but subordinate in both the sense of being subject to common law control through the writ of prohibition, but also in the sense of being somehow ‘lesser’.
85 Ibid, at 161. 86 Gray, The Writ of Prohibition, supra note 4, at lxv. 87 Ibid. 78
The sense of superiority that common lawyers had of their own jurisdiction was only heightened by its role in the struggle between King and Parliament in the seventeenth century. There is a real sense in which as a result of the settlement of 1688, the common law emerged as the dominant jurisdiction it had seen itself as in the earlier part of the century. As will be seen in the next chapter, the only area in which the common law arguably did not hold sway was the new world. This was virtually the only jurisdiction which the Privy Council had held onto after the Glorious Revolution. As a result of the convulsions of the seventeenth century it had been determined once and for all that the King was under the law, that his prerogative was subject to common law control. In the new world, however, the King’s prerogative remained much more potent.
At the dawn of the eighteenth century, almost all colonies in the new world remained subject to rule by prerogative. The common law still had little part to play beyond the realm. By the mid-eighteenth century, the common law had largely taken that jurisdiction as well. The common law became not only the law of the English, but the birthright of English men to be taken to the new colony. The attitude that the common law was superior was clearly carried into the new world of England’s colonies
This isolationist view of English law cannot be separated from the general isolationist tendencies of the English nation in the preceding century which resulted from the break with Rome. Until the English Reformation, England was part of continental Europe. It was primarily through the Catholic Church that England was incorporated into Europe.88 Latin and French were part of a tri-lingual culture: scholars travelled extensively in Europe. The monarchy of the Angevins and Plantagenets was
“strongly Eurocentric, having their cultural centre on the Continent, to which they were
88 Jones, The English Nation, supra note 59, at 1. 79
strongly linked by religion, marriage, lands and trade”.89 The English Reformation abruptly changed this. Henry VIII’s break with the Roman Catholic Church ushered in not only a more isolationist and inward-looking vision of the English nation, but one which was self-consciously so. The implementation of the break with Rome, and the reconfiguration of spiritual and secular order of the State which resulted, was implemented primarily through a series of Acts between 1533 and 1536. Cromwell wrote a new version of English history into the preambles of the Reformation statutes:90
For some historians, such as Elton, the Act of appeals was a declaration that “England is an independent state, sovereign within its territorial limits.”91 However, these statutes are probably better seen as constituting a unilateral declaration of independence from
Rome. They were instrumental in the emergence of England as a political unit, if not as a fully sovereign State, a concept which did not emerge in continental Europe until the mid-1600s.
The preamble to the Act of appeals declared that “[t]his realm of England is an
Empire.”92 Furthermore, England was not just an Empire, but had always been.
Cromwell based Henry VIII’s regal supremacy, both spiritual and temporal, on a particular historiography in which the English Monarch had always had both spiritual and temporal authority. The Reformation statutes had not ousted the Catholic church, rather they had returned to the status quo. Further, according to the Act in restraint of appeals, England was a realm by virtue of “divers sundry old authentic histories and
89 Ibid, at 5. 90 Ibid, at 39. 91 Elton, G., England Under the Tudors, 2nd ed., Methuen & Co Ltd, London, 1974, at 161. 92 An Act that the appeals in such cases as have been used to be pursued to the see of Rome shall not be from henceforth had nor used but within this realm, 24 Hen. VIII, c. 12 (1533). The purpose of the Act of appeals was limited. It extended Richard II’s Statute of Præmunire to appeals lodged in Rome, thus ensuring that no cases could be appealed to Rome. The immediate result, however, was to enable an English court to free Henry VIII to remarry. 80
chronicles”. Henry had the right to appoint Bishops and Archbishops “as of old time has been accustomed.”93 It was confirmed by statute that Henry had always been the head of the Church of England.94 There had always been a Church of England, and Henry VIII’s ecclesiastical law had always been the law of the church.
If England was to be governed by ‘one Supreme Head and King” it was necessary to consolidate control over the entire territory. In light of this, Henry VIII (or more accurately Cromwell on his behalf) undertook a programme of consolidation and centralisation. In particular, this required the exertion of greater control in the localities.
This was due to a number of factors, including the need to ensure religious conformity post-Reformation and the need to raise money and finance warfare. In particular, in
1534, Henry VIII began an overhaul of Tudor provincial government which lasted throughout the 1530s. The overall thrust of the changes was to centralise control and to bring administrative structures for the peripheries more into line with the arrangements for the government of lowland England, the ‘core’ of the Tudor State.95 It was not just the common lawyers who viewed the common law as the law of the realm. The Tudors understood the importance of the law as a tool for suppression of local difference (and eventually for colonisation).
One mechanism of achieving control was the suppression of franchises and semi-independent rights within the borders of the realm itself.96 This was achieved by
93 An Act concerning ecclesiastical appointments and absolute restraint of annates 25 Hen. VIII, c. 20 (1534). 94 Act of supremacy 26 Hen. VIII, c. 1 (1534). The ‘truth’ of the Act of supremacy was confirmed judicially in Caudrey’s Case (1591) 5 Co. Rep. 1a (77 E.R. 1), according to which the Act of supremacy concerning ecclesiastical jurisdiction was not a statute which introduced a new law, but was declaratory of an old one: at Co. Rep. 8a (E.R. 10). 95 See generally Ellis, S., “Frontiers and Power in the Early Tudor State”, (1995) 45 History Today 35. 96 Elton, England Under the Tudors, supra note 91, at 175. 81
the Franchises Act,97 which effectively destroyed all franchisal rights and subjected the entire realm to government from Westminster.98 Finally, in the same year, the marcher lordships were reorganised as shire ground and the ordinary local administration of the
English county was extended to Wales.99 All of these statutes either abolished jurisdictions which were formerly independent of the central common law courts, or at least brought then within the control of those courts.
The link between administrative control over the nation, and the importance of the common law to that project is evident in Tudor colonisation of both Ireland and
Wales. Ireland, is discussed in Chapter Seven. For present purposes, however, the Act of
Union serves to demonstrate the growing link of law and nation. This statute again emphasises that England is an ‘Empire’, subject to no foreign control. It also, however, demonstrates that part and parcel of extending Tudor control was an extension of the common law to Wales. The Preamble commences by confirming that Wales “is and ever hath been” part of the English realm. Despite this, however, there are: “divers rights, usages, laws and customs [which are] far discrepant from the laws and customs of this realm.” “His highness, therefore, of a singular zeal, love and favour that he beareth his subjects of … Wales, minding and intending to reduce them to the perfect order, notice and knowledge of his laws … and utterly to extirp all the singular uses and customs differing from the same … established that this said country of Wales shall be
… incorporated, united, and annexed to and with his realm of England.”
The common law was not only common to all English, but to be common to those governed by the English – the Welsh and Irish. The nation and the common law,
97 An act for recontinuing of certain liberties and franchises heretofore taken from the crown, 27 Hen. VIII, c. 24 (1536). 98 Elton, England Under the Tudors, supra note 91, at 176. 99 Act for the Government of Wales (Act of Union) 27 Hen.VIII, c. 26 (1536); Elton, G., The Tudor 82
the political and the legal, cannot be separated from this time onwards: law, nation and land “are locked together for all time … . This suturing of nation, land, and common law … remains as a powerful ideological force in contemporary English life”.100 c. Rival jurisdictions
As already stated in Chapter One:
“[c]entral to the maintenance of the substratum of the idea of the common law as social science was a concern with the paramountcy or exclusivity of jurisdiction. … Plurality of jurisdiction threatened the common law’s view of the whole. … the traditionary approach of the common law served precisely to achieve [the centralisation of authority as the process of modernisation], in supplanting or subordinating ‘rival’, and once relatively independent, sites of adjudication and authority.”101
In concrete terms, the subordination by the common law of rival sources of legal knowledge played itself out in the jurisdictional battles between courts which characterised the late sixteenth and early seventeenth century. By this time, the writ of prohibition was being increasingly used by the common law judges to prohibit proceedings in causes before merchant, ecclesiastical and equity courts.102 This was the tool by which the common law would “prohibit and punish” other jurisdictions. It was the mechanism through which the common law controlled non-common law jurisdictions,103 and policed both its own boundaries and those of its rivals. While there are many examples, the expansion of common law jurisdiction seems to have occurred primarily at the expense of mercantile and ecclesiastical courts, as well as local and regional jurisdictions, such as the County Palatinates and the Council of the Marches of
Constitution: Documents and Commentary, Cambridge University Press, Cambridge, 1972, at 33. 100 Blomley, Law, Space and the Geographies of Power, supra note 79, at 75. 101 Murphy, “The Oldest Social Science?”, supra note 55, at 196-7. 102 Knafla, Law and Politics in Jacobean England, supra note 54, at 115. 103 Gray, The Writ of Prohibitions, supra note 4, at viii. 83
Wales, and private and corporate jurisdictions.104 Thus, no discussion of jurisdictional law in the seventeenth century would be complete without at least a brief consideration of the writ of prohibition. As will be seen in Chapters Four and Five, while neither the colonial courts, nor the later Australian courts, used the writ of prohibition, the attitude and intent of many towards non-common law jurisdictions is similar to that described in this part.
Prohibition was the main weapon used against non-common law courts. In principle any court which exceeded its jurisdiction could be prohibited. However, in practice the King’s Bench and Common Pleas did not prohibit each other.105 The writ could also be used against minor common law courts, but this was not frequent. The writ was primarily directed towards the main non-common law jurisdictions. In the seventeenth century, prohibitions were commonly used by the common law courts against courts administering ecclesiastical law, law merchant, and equity, as well as the admiralty courts.106 It was, however, in the context of ecclesiastical law that the writ
104 At the same time that the central common law courts were using the writ of prohibition to gather jurisdiction at the expense of non-common law courts, they were also individually expanding jurisdiction at the expense of each other. For example, the Court of Kings Bench had a relatively small jurisdiction, largely confined to criminal matters. This was being eroded, as many criminal causes were devolving to special commissions, the Assizes and the Court of Star Chamber. The Kings Bench attempted therefore to expand its civil jurisdiction at the expense of the court of Common Pleas. The judges creatively used the writ of capias, or ‘Bill of Middlesex’, to expand civil jurisdiction. For various historical reasons, the Kings Bench already had jurisdiction over anyone arrested in the County of Middlesex. A writ would be issued against a defendant, alleging he was guilty of trespass vi et armis. This was an offence within the jurisdiction of the court. The Sheriff of Middlesex was then directed to produce the defendant before the court. The King’s Bench allowed a writ of capias to be issued, which required that person to be arrested when he came into Middlesex. Once arrested, a writ could be issued against him for any common plea. If the accused was not in Middlesex, a writ of latitat (a form of capias) could be sent to where the person resided and they would be arrested and bought to Middlesex. Capias could be used therefore, to attach the jurisdiction of a particular common law court to the body of common law which it administered. On Capias see Baker, English Legal History, supra note 10, at 30-5, 182- 93; Holdsworth, History of English Law, Vol I, supra note 10, at 87. 105 Gray, The Writ of Prohibition, supra note 4, at xxviii. 106 In practice, the Chancery was never prohibited, although three lesser courts with an equitable jurisdiction frequently were: the Council of Wales, the Council of the North and the Court of Requests: ibid, at liii. 84
was most commonly used. It had developed as an anti-ecclesiastical instrument, and been extended to other non-common law jurisdictions.
The writ of prohibition was a judicial writ which was issued by the Kings
Bench, and to a lesser extent Common Pleas. It differed, therefore, from the usual writs issued by Chancery. These were used to initiate an action, and available on the payment of a fee. In order to obtain a writ of prohibition, however, cause had to be shown. The writ was used to stop an action in another court on the ground it was beyond the jurisdiction of that court.107 Thus, in one sense the writ was protective: it was used by common law courts to prevent encroachment on its territory. On the other, it could also be used pre-emptively, to take jurisdiction. Once granted, the prohibition prohibited the court and plaintiff proceeding with the action. The writ was enforced by contempt proceedings against both the defendant to the writ procedure and the judge of the other court.
Although there is no doubt that the writ of prohibition was used as a political tool by some common law judges, it would be overstating the case to suggest that a reading of the case law reveals that all the common law judges were specifically engaged in a political project or campaign against non-common law jurisdictions.108 As mentioned in Chapter One, case law from the period is rarely that easy to interpret. It is also unclear how far Coke was responsible for the perception that the common law was consciously undermining its rivals. Nevertheless, it is clear that common law judges of the time did think of both themselves and the common law as superior, not because of
107 For an excellent description of the process of applying for a writ of prohibition, and of defending the action, see ibid, Introduction and Chapter One. 108 Two works which provide particularly useful accounts of the political dimensions of the use of prohibitions by the common law courts are Knafla, Law and Politics in Jacobean England, supra note 54; and Gray, ibid. 85
“mere prejudice” but as a result of the kind of thinking which was outlined above about the law and its English nature undertaken by Coke and others.109
One jurisdiction which particularly suffered at the hands of the common law judges of the period was ecclesiastical law. A brief return to ecclesiastical law demonstrates the way in which the common lawyers of the sixteenth century viewed other sites of legal knowledge. Particularly noticeable is the way in which, as a result of common lawyers viewing their law as the English law, and therefore superior to all others, it is claimed that other jurisdictions have force only because they have been received and recognised by the common law. For the common lawyers, relations between the common law and other bodies of law were understood as a matter of jurisdiction. Writs, the basis of common law jurisdiction, were issued in order to pre- empt jurisdiction over matters which the common law believed were within its ambit.
As outlined above, prior to the reformation canon law and common law functioned as two separate bodies of law, administered by two separate courts, each with jurisdiction over particular matters. Post-reformation, old theories as to the relations between church and state began to break down. In England, Henry VIII’s break with Rome forced considerable changes to the relationship between Church and
State, and eventually to the relationship between ecclesiastical law and common law. As also outlined above, a new theory of Royal supremacy was gradually elaborated in the preambles to Henry VIII’s statutes. In particular, dual control over spiritual and temporal matters was to end.110 Henry declared himself supreme over all persons and causes, spiritual and temporal: “[t]he canon law of the Western church was to give way
109 See also Gray, ibid, at lxvii. 110 Holdsworth, History of English Law, Vol. I, supra note 10, at 360. 86
to King’s ecclesiastical law”.111 The result was an enormous shift in the relationship between the English Crown and the Church. For ecclesiastical lawyers this was a fundamental change: “[t]he judges sitting in the courts Christian became the king’s ecclesiastical judges and the ancient canon law became the king’s ecclesiastical laws”.112 However, for the common lawyers, Coke, Hale, and later Blackstone, such a question was one of jurisdiction, not of ultimate authority – spiritual or temporal. It was simply “an adjustment”.113 Ecclesiastical law and common law remained separate, autonomous bodies of law, each operating within its own jurisdictional sphere, although on occasion claiming jurisdiction over the same matter. However, the common law now claimed jurisdiction to supervise the ecclesiastical law. This is illustrated by the example of legitimacy and succession to real property.
Legitimacy was an issue which was conceded to be within the purview of the ecclesiastical courts. In the twelfth century it became accepted within the church that children born out of wedlock would be legitimated by the marriage of their parents.114
Thus, once legitimated, the church accepted that a man could be ordained, or inherit his father’s land and chattels. The common law courts, however, claimed exclusive jurisdiction over matters concerning land. Thus, the common law claimed jurisdiction to determine whether a man born out of wedlock could inherit real property.115 The result of the common law enforcing its rights to determine this matter was that a man born out
111 Ibid. 112 Richardson, H., Sayles, G., The Governance of Medieval England from the Conquest to Magna Carta, Edinburgh University Press, Edinburgh, 1974 (1963), at 8. 113 Yale, D., “Introduction”, in Hale, M. (Yale, D., ed.), The Prerogatives of the King, The Publications of the Selden Society, Vol. XCII, Selden Society, London, 1975, at xlvi. 114 Pollock and Maitland, History of English Law, Vol 1, supra note 10, at 127. 115 See Hall, G. (trans), Tractatus de Legibus et Consuetudinibus Regni Angliae qui Glanvilla Vocatur (The Treatise on the Laws and Customs of The Realm of England Commonly Called Glanvill), Nelson, London, 1965, at 15. 87
of wedlock could be determined as legitimated for the purposes of matters within church law, but a bastard and unable to inherit real property at common law.116
In the late sixteenth and early seventeenth centuries, the ecclesiastical courts were a significant part of the legal structure of England.117 There had been a considerable growth in litigation before the courts during the reign of Elizabeth, and their jurisdiction was wide. As noted in Chapter One, it included such matters as consecration, ordination, tithes, marriage, divorce, legitimacy and wills, as well as some limited criminal jurisdiction. Even before the break with Rome, the common law courts had set about restricting the role of canon law, by encroaching upon and absorbing its traditional jurisdiction. Post-reformation, they further infringed upon ecclesiastical jurisdiction. From the last decade of the 1500s, the common law courts began to develop, for example, remedies relating to collateral areas of defamation, slander and tithes.118 Notably, both pre- and post-reformation the common law courts turned to the same tool: the writ of prohibition. According to Knafla, in that decade, the issue of writs of prohibition against causes before ecclesiastical courts became common.119 Through use of this writ, the common law courts had already usurped ecclesiastical jurisdiction over lay fee, advowsons, most criminal cases, contract and tort.120 The result was to significantly restrict the jurisdiction of ecclesiastical courts. As Coke put it emphatically in Fuller’s Case:
“[I]t was resolved when there is any question concerning what power or jurisdiction belongs to the Ecclesiastical judges, in any particular case, the determination of this belongs to the judges of the common law, in what cases they have cognisance, and in what not. … And so
116 Pollock and Maitland, History of English Law, Vol 1, supra note 10, at 127. 117 Knafla, Law and Politics in Jacobean England, supra note 54, at 134. 118 Ibid. 119 Ibid, at 137. 120 Holdsworth, History of English Law, Vol I, supra note 10, at 356. 88
the determination of a thing, whether it belongs to the Court-Christian, doth appertain to the judges of the common law.”121
The issuing of the writ was generally justified on one of two bases. It had long been determined by the common law that two particular matters were rightly within its jurisdiction: the interpretation of statutes and the existence of a custom. Thus, where the suit in a non-common law court potentially involved either of these matters, the common law would be inclined to issue a prohibition. An example in each category will serve to illustrate the way in which jurisdiction could be taken. Both examples concern tithes,122 and demonstrate the way in which the common law policed its own jurisdictional boundaries, ensuring that custom and statutory interpretation remained its province. The example of custom, in particular, has resonances in later jurisprudence concerning indigenous ‘custom’.
Questions as to the existence of custom were frequent justifications for issuing prohibitions against ecclesiastical courts. Coke confirmed that custom was a matter within the jurisdiction of the common law. For him, the temporal law included “customs grounded upon reason, and used time out of mind; and the construction and determination of these do belong to the judges of the realm.”123 For Coke, the ‘judges of the realm’ referred to the judges of the common law. Any issues as to the existence of a custom (based on immemorial practice) were to be decided by jury. Even if a custom was found to exist, there were often questions of whether it was reasonable, which was a question of law for the judge. Questions as to the existence or reasonableness of customs often arose in the context of tithes. In some places particular customs were alleged to exist as to which land was affected by tithes, what form the tithes took, and
121 Fuller’s Case, supra note 1, at Co. Rep. 42 (E.R. 1323). 122 These examples are taken from Gray, The Writ of Prohibition, supra note 4, at xxxv-xxxix. 123 Thomas, J., Systematic Arrangement of Lord Coke’s First Institute of the Laws of England, Book I, 89
even whether some land owned by ecclesiastical institutions themselves were exempt from tithes. While custom was a category recognised in church law, although there was no need to show immemorial usage, the common law determined that it had the jurisdiction to determine matters relating to custom.
A number of statutes touched on tithes. One example was the Statute of
Monasteries, which allowed post-dissolution owners to claim ancient exemptions against tithes. The common law had already also determined that it had the jurisdiction to determine all matters where the interpretation of a statute was involved, and to try factual disputes based on those interpretations. Thus, any issue before an ecclesiastical court in which a statute touched on tithe law could be prohibited by the common law.
Similarly, in another arena, although intestacy was within the jurisdiction of the ecclesiastical courts, legislation regulating the conduct of intestacy proceedings allowed the common law courts to assume jurisdiction.124
While Coke was clear that statute and custom were matters within the province of the common law, and that non-common law jurisdictions were subject to the oversight of the common law, his Institutes do not reveal any particular ‘map’ or organisation of the relationship between these jurisdictions and the common law.
However, in Caudrey’s Case he stated that the ecclesiastical laws owed their force as laws to having been ‘approved and allowed’:
“As the Romans fetching divers laws from Athens, yet being approved and allowed by the state there, called them notwithstanding jus civile Romanorum: and as the Normans borrowing all or most of their laws from England, yet baptized them by the name of the laws and customs of Normandy; so albeit the Kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved and allowed here by and with a general consent, are aptly and rightly
William S. Hein Company, Buffalo, New York, 1986, at 8. 124 Gray, The Writ of Prohibition, supra note 4, at xl. 90
called the King’s Ecclesiastical Laws of England.”125
For Coke, it was obviously the common law which approved the ecclesiastical laws. Hale, writing a century later, is more explicit, not only about ecclesiastical law, but about the relationship between non-common law jurisdictions and the common law generally. For Hale and others, who believed in the reception test of local validity, ecclesiastical law, the law merchant and others had no force in England except as admitted and allowed by the common law. Hale’s view, stated in the context of canon or ecclesiastical law, is worth reproducing at some length. His understandings of the force of ecclesiastical law pertains not only to that jurisdiction, but is representative of his understanding of the relationship between the common law and many other jurisdictions, not just for example the other supra-national law, the law merchant, but also of other domestic jurisdictions, such as the forest law:
“… it is most plain, That neither the Canon Law nor the Civil Law have any Obligation as Laws within this Kingdom, upon any Account that the Popes or Emperors made those Laws, Canons, Rescripts or Determinations, or because Justinian compiled their Corpus Juris Civilis, and by his Edicts confirm'd and publish'd the same as authentical, or because this or that Council or Pope made those or these Canons or Degrees, or because Gratian, or Gregory, or Boniface, or Clement, did, as much as in them lie, authenticate this or that Body of Canons or Constitutions; for the King of England does not recognize any Foreign Authority as superior or equal to him in this Kingdom, neither do any Laws of the Pope or Emperor, as they are such, bind here: But all the Strength that either the Papal or Imperial Laws have obtained in this Kingdom, is only because they have been received and admitted either by the Consent of Parliament, and so are Part of the Statute Laws of the Kingdom, or else by immemorial Usage and Custom in some particular Cases and Courts, and no otherwise; and therefore so far as such Laws are received and allowed of here, so far they obtain and no farther; and the Authority and Force they have here is not founded on, or derived from themselves; for so they bind no more with us than our Laws bind in Rome or Italy. But their Authority is founded merely on their being admitted and received by us, which alone gives 'em their Authoritative Essence, and qualifies
125 Caudrey’s Case, supra note 94, at Co. Rep. 9a (E.R. 11). 91
their Obligation.”126
The supposedly customary nature of law was a double-edged sword. For the common law, its customary and immemorial nature, based on artificial reason and continuity, was the basis of its fitness to be the law of England. Other laws, however, could also be determined to be sourced in custom, and then relegated to the status of local and particular custom, subject to, and enforceable at, common law only under strict conditions. It became doctrinal orthodoxy that ecclesiastical law had always been part of the law of England, and enforceable as custom. In Mackonochie v. Lord
Penzance, Blackburn J held that:
“The ecclesiastical law of England is not a foreign law. It is part of the general law of England – of the common law – in the wider sense which embraces all the ancient and approved customs of England.”127
It was not only the ecclesiastical laws which received their force as custom enforced by the common law. For Hale, numerous non-common law jurisdictions were in the same position – even the prerogative. In fact, practically any jurisdiction could be re-formulated as custom and part of the common law:
“the Common Law includes, Lex Prerogativa, as 'tis applied with certain Rules to that great Business of the King's Prerogative; so 'tis called Lex Forestae, as it is applied under its special and proper Rules to the Business of Forests; so it is called Lex Mercatoria, as it is applied under its proper Rules to the Business of Trade and Commerce; and many more instances of like Nature may be given: Nay, the various and particular Customs of Cities, Towns and Manors, are thus far Parts of the Common Law, as they are applicable to those particular Places….”128
126 Hale, History of the Common Law, supra note 38, at 19-20. In this context, Hale uses the terms ‘canon’ and ‘ecclesiastical’ interchangeably. 127 Mackonochie v. Lord Penzance (1881) LR 6 A.C. 424, at 446. 128 Hale, History of the Common Law, supra note 38, at 18. 92
Hale then goes on to lay down the rules under which these jurisdictions could be recognised as custom.129 These are examined in detail in Chapter Seven as they provide the basis for the technology of jurisdiction whereby selective parts of other jurisdictions are recognised and accommodated within the common law. For present purposes, the claim that a jurisdiction, such as the ecclesiastical law, or forest law, could be no more than custom, had far reaching implications for the relations of the common law to other jurisdictions (and to custom generally). Not only had the common law supervisory jurisdiction over these other jurisdictions, but in fact they were (and of course always had been) part of the common law. To prefigure later arguments, if a jurisdiction such as ecclesiastical law, forest law or lex mercatoria could be understood by the common law itself as part of what Hale described as the great ‘ocean’ of the common law, so could other jurisdictions not yet encountered, such as Aboriginal jurisdictions.
Conclusion
“[there is] an habitual logic of law, one which throughout its history has systematically obliterated difference in all its manifestations, in all its discourses. … the logic of the common law has been one of a comparable lack of alternatives, of a refusal to recognise that vast host of other… .” 130
This quote of Goodrich’s is undoubtedly overstated, but nevertheless it captures something of the way in which the common law came to see itself and to represent itself as a jurisdiction to itself and to others.
The view of English law, and particularly the common law and the constitution, as immemorial and unchanging lost much of its force in the eighteenth century. For many, the liberties and freedoms of the English which had been guaranteed by their immemorial nature, were now guaranteed by the settlement of 1688. Although it
129 Ibid. 93
continued to be of importance in some circles, principally for the Whigs, for most it ceased to be a force which bound the nation politically. Writers such as Locke relocated arguments about sovereign will from the sphere of the historical to the political and the philosophical.131
However, the legacy of this period was lasting for the common law. Its self- authorised vision of itself as the unified, univocal law of the land was entrenched and had become part of common law orthodoxy. By the time that the manner of thought, or the particular historiography of the seventeenth century, which underlay the common law’s view of itself was challenged and superseded, it had become axiomatic that the common law was, and had always been, the law of the English, and that all other laws were subordinate to it. Hale’s view that all other laws derived their force from the common law was not just an instantiation of the view that the common law was the law of the land and the perfect law, it become orthodox legal doctrine within the common law itself.
It is the paradox of jurisdiction that it is self-representing and self-authorising. It is as a result of this paradox that non-common law jurisdictions came to be seen as functioning under the banner of the common law. As outlined above, for many centuries it was understood that these jurisdictions were autonomous, administering separate and distinct bodies of law. However, the ascendancy of the common law, resulting in part as a result of the centralisation of the state under the Tudors, and in part from the role of the common law as defender of liberties and privileges during the reign of the Stuarts, placed the common law in a position where it could impose its vision on the nation. The common law represented itself, to itself and the nation, as the only law of the land. The
130 Goodrich, Languages of Law, supra note 57, at 184. 94
jurisdiction of the common law authorises its own jurisdiction, which in this period came to include matters once dealt with by other jurisdictions.
In self-authorising in this manner, the jurisdiction of the common law instantiated a vision of itself as having a singular voice of authority – of being univocal.
It was the law of the land, a particularly English law for the English and it had the sole right to determine matters. This played out in the assertion that all other rival sites of legal knowledge received their force from the common law itself and were under the
‘superintendency’ of the common law. According to Hale, all these other laws were
“but Branches and Parts of [the common law] like as the same Ocean”.132 These were logics and habits which transferred themselves to the new world, and the common law’s dealings with the indigenous inhabitants of England’s colonies.
131 See generally Pocock, The Ancient Law, supra note 9, at 321ff. 132 Hale, History of the Common Law, supra note 38, at 18. 95
Chapter Three
Common Law Jurisdiction in the New World
“[t]he common law meddles with nothing that is done beyond the seas.”1
Introduction
In the first years of the eighteenth century, the famous case of Smith v. Brown was heard by Lord Holt, then Chief Justice of the Court of King’s Bench. That case concerned an “action for indebitatus assumpsit for a Negro sold in the Parish of the
Blessed Mary of the Arches in the Ward of Cheap”.2 In reality the Negro in question had been bought and sold in Virginia. Holt CJ held that the laws of England did not recognise slavery, stating that “as soon as a Negro comes into England he becomes free”. However, Holt CJ also directed the plaintiff that he should amend his declaration to claim the Negro was in Virginia, as Negroes could be sold as chattels by the law and statutes of Virginia “for the laws of England do not extend to Virginia, being a conquered country their law is what the King pleases; and we cannot take notice of it but as set forth…”.3
This chapter examines the colonial jurisprudence of the English common law courts and the way in which jurisdictional concerns played out in the common law expansion into the new world. In so doing, this chapter pays particular attention to the period between 1606 (Calvin’s Case) and 1774 (Campbell v. Hall).4 It is in this period
1 Statement by Coke to Parliament, 1628, in Johnson, J., et al (eds), Commons Debates, 1628, Vol 3, Yale University Press, New Haven, 1977-1983, at 487. 2 Smith v. Brown and Cooper (1702?) 2 Salk 666 (91 E.R. 566), Holt 495 (90 E.R. 1172), at Holt 495 (90 E.R. 1173). All citations are to Holt. 3 Ibid. 4 Calvin’s Case (‘the PostNati’) (1608) 7 Co. Rep. 1a (77 E.R. 377); Campbell v. Hall (1774) Lofft 655 (98 E.R. 848), 1 Cowp. 208 ( 98 E.R. 1045). All citations are to Lofft. 96
that the body of law known as British Imperial constitutional law was largely developed, and the common law’s jurisdiction with respect to matters in the colonies established. Importantly, of course, this period ends at the moment that Australia is
‘settled’ and the law of England, and in particular the common law, become the law of the colony of New South Wales.
The corpus of cases which constitutes British Imperial constitutional law is small. As Smith puts it, “the sum of judicial and forensic wisdom on the subject of common law reception” is contained in relatively few cases.5 Further, in some of these cases neither the reasons for decisions, nor the origins of the principles contained in them, is clear.6 The reason for the paucity of common law cases is, however, clear. By
1600 it was a well-established principle that the common law did not operate beyond the bounds of the realm. As Coke put it: “[t]he common law meddles with nothing that is done beyond the seas.”7 As will be discussed later in this chapter, there were some exceptions to this in cases of transitory actions. Nevertheless, the common law was severely circumscribed in its ability to operate in the colonies. As all the colonies in the
New World were considered to have been acquired by conquest, they were governed by
Royal Prerogative, and within the jurisdiction of the Privy Council.
Despite this, it is the decisions of the English common law courts, not those of the Privy Council, which establish the dichotomy between settled and conquered colonies that is a foundational component of British imperial law. That this body of law includes few non-common law cases is in part a result of the lack of reporting of Privy
5 Smith, J., Appeals to the Privy Council From the American Plantations, Octagon Books, New York, 1963 (1950), at 472. 6 See the discussion on law reporting of the period in Chapter One. 7 Statement by Coke to Parliament, supra note 1. See also Calvin’s Case, supra note 4, at Co. Rep. 20a (E.R. 401). 97
Council decisions during this period, or indeed for many years afterwards.8 The most frequently referred to decision of the Privy Council is that of the Case of Anonymous, and this case is only known of because a memorandum of it was reported by the Master of the Rolls.9 Further, decisions of the Privy Council had no precedential value, as post-
1688 the Council had no real locus standi in England’s domestic judicial system.10
Similarly, although the government, largely in the form of the Board of Plantations and
Trade, frequently sought legal advice on the position of the colonies, the common law courts did not refer to governmental policy in their determinations. While there must have been some ‘cross-fertilisation’, neither the manner in which this occurred, nor the extent to which it occurred, is clear.
Perhaps the most obvious reason why this body of law consists of decisions of the central common law courts is because they are the common law courts. As was seen in the last chapter, it has always been the common law which has determined its own jurisdiction, and the extent and circumstances of its reception into, and jurisdiction in, the New World is no exception. Thus, those rules on reception of law which matter to the common law are those of the common law itself. As will be seen, a similar tension is evident in this period as was observed in the last chapter – between acquisition and enlargement of jurisdiction and a concern to maintain proper jurisdictional channels.
The tools used to gather and maintain jurisdiction are different but the concerns are similar.
While this period is one in which the domestic expansion of the common law in
8 Smith, Appeals to the Privy Council, supra note 5, at 464. Smith points out that as the bulk of duties discharged by the Judicial Committee were advisiory or administrative, the Council clerks did not accord with common law standards of recording of the time “or with the contemporary urge for unofficial reporting”. 9 Case of Anonymous (1722) 2 P. Wms 75 (24 E.R. 646). 10 Smith, Appeals to the Privy Council, supra note 5, at 464. 98
the seventeenth century is matched by expansion outside the realm, there was never an unfettered ‘grab’ for jurisdiction in the new world by the common law courts. To the contrary, just as in the period described in Chapter Two, the cases reveal a concern with ensuring that jurisdictional streams were maintained. It is not the case that the common law appropriated jurisdiction in every case which came before it from the colonies.
Particularly in the earlier part of the period being examined, just as frequently as the
English common law courts asserted jurisdiction, they also denied that they had jurisdiction. In the case of colonies that were conquered, the writ of the common law generally did not run there. Even where jurisdiction was potentially available because the action was transitory, it appears from the cases that jurisdiction may still be denied on a number of bases: that there was another more appropriate jurisdiction, the law of another nation (French or Spanish law); or that local law (established as an exercise of the prerogative) was sufficient to deal with the matter; or simply that to assert jurisdiction would be to breach the common law’s own internal restraints on jurisdiction: for example, the rule against hearing an action that was properly local to another jurisdiction. In fact, by the time of the ‘settlement’ of the colony of New South
Wales, the common law still had little operation in colonies which were not considered
‘desert and uninhabited’ and there were, in fact, remarkably few of those.
The body of law known as British Imperial constitutional law has been frequently traversed. The small body of cases which is considered to form the corpus of common law colonial jurisprudence has been much commented on. In recent years, this has been predominantly, although not exclusively, by those writing in the area of indigenous rights.11 While accounts differ, most authors have similar concerns: to
11 See, for example, McNeil, K., Common Law Aboriginal Title, Cambridge University Press, Cambridge, 1989; McHugh, P., “The Common-Law Status of Colonies and Aboriginal “Rights”: 99
provide an account of the source and nature of indigenous rights, particularly rights to land. At its most general, this is seen to depend on the dichotomy between conquered and settled colonies which is established by the colonial cases. Indigenous rights in a colony depend on the classification of the colony as settled or conquered. Once that classification is established a short and clear set of rules can be applied to determine the law of the new colony (and hence the fate of the laws and rights of the indigenous inhabitants). If a colony is conquered then the laws of the conquered are to be respected until changed by the new Sovereign. If the colony is uninhabited, it can be considered as settled, and the common law is imported into the colony as the law of the colonists.12 Of course, the reality was far more complex.
Much of the analysis of the colonial cases has concentrated on the rules on settled/conquered colonies, and the emphasis placed on the importance of this dichotomy varies from author to author. For McHugh, for example, the dichotomy is a
“red-herring”.13 Walter, on the other hand, places some continuing importance on the distinction. While he recognises that the dichotomy is too rigid, that rights cannot be, and in practice were not, determined on a strict split between settled and conquered, he
How Lawyers and Historians Treat the Past”, (1998) 61 Sask. L. R. 393; McHugh, P., Maori Magna Carta: New Zealand Law and the Treaty of Waitangi, Oxford University Press, Oxford, 1991; Walters, M., “British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia” (1992) 17 Queen’s L.J. 350; Walters, M., “The Golden Thread of Continuity: Aboriginal Customs at Common Law and under the Constitution Act, 1982” (1999) 44 McGill L.J. 711; Walters, M., “Mohegan Indians v. Connecticut (1705-1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America” [1995] 33 Osgoode Hall L.J. 765; Walters, M., “The Extension of Colonial Criminal Jurisdiction over the Aboriginal Peoples of Upper Canada: Reconsidering the Shawanakiskie Case (1822-26)”, (1996) 46 Uni. Toronto L.J. 273; Slattery, B., The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of their Territory, Doctoral Dissertation, Oxford University, 1979; Slattery, B., “Understanding Aboriginal Rights” (1987) 66 Can. Bar Rev. 727. 12 See, in particular, McNeil, Common Law Aboriginal Title, ibid, Chapter 4. 13 McHugh asserts that: “[t]he effect of the common-law status of a colony on the status and rights of the Indigenous peoples in that territory is one of the reddest herrings in the scholarship of Aboriginal rights.” He further asserts that “the red herring is constructed and projected back into a past that, when inspected a little more closely, hardly sustains the doctrinal envelope in which it is Whiggishly enclosed.”: McHugh, “The Common-Law Status of Colonies”, supra note 11, at 402. 100
believes that it is possible to “tell a coherent story” of this law by providing a more complex categorisation of the cases so that the resulting jurisprudence covers the circumstances of all the colonies. Thus, he introduces categories such as ‘simple conquest/ and or cession’ and ‘complex settlement’.14 Others, such as McNeil, recognise that the settled/conquered divide represents a starting point, but that courts frequently do not (and historically have not) applied a rigid distinction.15
Given the amount that has been written on these cases, and that the purpose of this thesis is to provide an account of the relationship between native title and common law as being based in a set of jurisdictional practices, there is no attempt here to reproduce the body of scholarship which considers British imperial constitutional law.
Nor would an in depth examination of the doctrines of settled and conquered colonies be possible within the confines of this thesis. Nevertheless, some examination of British
Imperial constitutional law is necessary in order to provide a context in which the jurisdictional concerns of the period can be understood, and to set the framework for the discussion of common law and indigenous jurisdiction in Chapters Four and Five. A number of preliminary points can, however, be made about this body of law which will help frame the discussion throughout the chapter. First, and importantly, as recognised by McHugh, the rights of indigenous peoples were never considered by the small body of colonial jurisprudence laid down by the English common law courts.16 In the two hundred years of intense colonisation between 1600-1800 no substantive law was developed with respect to ‘the natives’ by the central common law courts as part of their
14 Walters, “A Comment on Delgamuukw”, supra note 11, at 365. 15 McNeil, Common Law Aboriginal Title, supra note 11, 115-116. See also Slattery, The Land Rights of Indigenous Canadian Peoples, supra note 11, at 23-30. 16 McHugh, “The Common-Law Status of Colonies”, supra note 11, at 402. 101
burgeoning colonial jurisprudence.17 Rather, in the main this issue was left to the
Crown, and while lawyers of note did provide advice on matters such as the validity of purchases by colonists of land directly from the ‘Indians’, the judgments of the English common law courts are free of these concerns.18
One particular respect, therefore, in which the following account varies from that of many other contemporary authors is that it maintains a separation between the decisions of the central common law courts in England, and the colonial courts. This chapter examines the jurisprudence of the English Court of Kings Bench. The decisions of the colonial courts are considered in the next chapter. In general, accounts of this area of law do not distinguish between these two groups. Rather, decisions from Canada, the
United States, New Zealand and Australia are discussed along with the decisions of the
English Court of King’s Bench.19 Again, this returns to the need of many authors to provide a coherent account of this area, in which decisions from all jurisdictions are incorporated. This is not to suggest that the decisions of the English courts were not referred to by the colonial courts. The colonial courts were fully aware of the dichotomy between settled and conquered colonies, and the ramifications of a colony being designated as one or the other. However, it is important to recognise that the concerns of
17 For an interesting parallel in the context of slavery see Bush, J., “Free to Enslave: The Foundations of Colonial American Slave Law”, (1993) 5 Yale J. L. & Hum. 417. Bush points out that similarly the English common law courts did not produce a jurisprudence of slavery. 18 The one exception to the lack of English jurisprudence in this period is the 1706 Privy Council decision, Mohegan Indians v. Connecticut. This case is discussed in Smith, Appeals to the Privy Council, supra note 5, at 442ff. For an in depth analysis of the entire dispute (which covered 70 years), not just the Privy Council decision, see Walters, “Mohegan Indians”, supra note 11. Although a part of the framework of British Imperial constitutional law, there is little evidence that this decision was well disseminated, although Marshall, Chief Justice of the United States Supreme Court seems to have been aware of the Mohegan litigation in the famous decision of Johnson v. M’Intosh. See Johnson v. M’Intosh 21 U.S. (8 Wheat.) 543 (1823), at 598. It was mentioned by Marshall CJ briefly as an example of the approach taken in the United States (or the colonies) to acquiring title to Indian land. In the case of the Mohegans, this took place by way of grant to the colony. 19 For an example of this approach see Walters, “A Comment on Delgamuukw”, supra note 11. 102
the English central courts and those of the colonial courts were vastly different.
The predominant concerns of the English common law courts were the division of powers within the British legal order and the laws by which the colonists should be governed in the colonies. The validity of acquisition of colonies was not within the scope of the authority of the Court of King’s Bench, just as the High Court held in
Mabo (No. 2), that for the Australian courts the acquisition of sovereignty was “non- justiciable”.20 As outlined in Part I of this chapter, the common law courts originated in, and remain bound by, matters within the realm. The colonial courts, on the other hand, had to deal with the local interactions of colonists and colonised. It is not surprising, therefore, that the colonial cases rarely fit into the neat dichotomy between settled and conquered which was developed by the English common law courts. Conditions in the colonies simply refused to neatly match the categories set up by the English courts.
With respect to Walters, any attempt to provide a hermeneutic account of this area of law can only be achieved at the expense of ignoring the particular circumstances and nuances of law in each colonial jurisdiction, as well as the fact that the decisions of the
English common law courts were not directed to, nor about, the indigenous inhabitants of the colonies. There simply is no “coherent story” that can be fashioned.
As will be seen in Chapter Four, as a result of the dissonance between local circumstance and the rigid bifurcation of colonies into settled and conquered, more attention was paid by the judges of colonial courts to the determinations of other
20 Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, at 32 [hereinafter Mabo (No. 2)]. For the most recent application of this principle see the unreported decision of the Pitcairn Supreme Court, 6 February 2004, in R. v. 7 Named Accused. That case concerns the trial of seven Pitcairn Islanders pursuant to the Sexual Offences Act 1956 (U.K.). The Public Defender sought to argue that Britain had no sovereignty or jurisdiction over the island. After a lengthy examination of the history of the island, the argument was in any case rejected on the grounds of the Act of State doctrine. Hence the court held it had no jurisdiction to consider the validity of the acquisition of sovereignty by the British Crown: at paras 125-151. The decision was upheld by the Pitcairn Court of Appeal and the decision has been appealed to the Privy Council: R. v. 7 Named Accused [2004] 103
colonial courts than was paid to those of the English common law courts. Rather than
English decisions, it is the writings of the jurist Vattel, the early decisions of the United
States Supreme Court on Indian title, and Kent or Storey’s Commentaries on the United
States Constitution which are the fare of colonial courts.21 While rejected in the English cases, the ‘new’ political theory of Vattel and others would become important for colonial courts struggling to fit local circumstance to British law. This is for the simple reason that, unlike the English cases, these sources actually discussed the position of indigenous peoples, thereby offering colonial courts some guidance. What the colonial courts did inherit was the common law’s understanding of, and concern with, proper jurisdiction, as well as the habits and logics of the common law which were considered in the last chapter.
Some of the jurisdictional concerns of the period are revealed by the short description of Smith v. Brown which opened this Chapter. The report is less than a page in length and is often cited as a foundational case on slavery law and the reluctance of the English common law judges to accept slavery as part of that law, although it is generally accepted now that this is a somewhat ‘Whiggish’ interpretation.22 For present purposes, however, a number of other things can be read from this decision. First, it is a decision of the Court of King’s Bench. Yet the contract was made in Virginia, not
England. Nor was the slave in England at the time of the decision. In fact, the decision was with respect to a matter wholly outside England. How then did the Court of King’s
P.N.C.A. 1. 21 Story, J., Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before The Adoption Of The Constitution, Vol I, Hillard Gray and Co, Boston, 1833; Kent, J., Commentaries on American Law, O. Halsted, New York, 1826-30; Vattel, E., de (Chitty, J. ed), Droit des Gens ou Principles de la Loi Naturelle Appliques aux Affairs des Nations et des Souvrains, T. & J.W. Johnson & Co., Philadephia, 1863 (1758). 22 Bush, “Free to Enslave”, supra note 17, at 429. 104
Bench found jurisdiction to hear the matter? It is not clear from the brief report that Holt
CJ was simply dismissing the matter for want of jurisdiction. Rather, he found that as a matter of law slavery was not part of the law of England, and thus the action for indebitatus assumpsit could not be sustained. Second, Holt CJ shows no reluctance to allow pleadings to be amended so that the matter can be determined according to the law of Virginia. According to Holt, the common law could ‘take notice’ of the law there. In other words, it could adduce evidence as to the law in Virginia on this matter.
Or, presumably, the action could simply be brought in Virginia. For Holt CJ, Virginia was a more appropriate jurisdiction, and one where the writ of the common law did not run. The matter would presumably, therefore, be determined differently in a jurisdiction where slavery is legal. Third, while this is a case which touches on slavery, it arises, as do all cases involving the colonies which came before the English common law courts, from an action based on one of the traditional forms of action at common law: indebitatus assumpsit.
Finally, one other respect in which the account provided in this chapter of
British imperial constitutional law is different to many others is that it begins in an earlier period. The majority of accounts start in the 1600s with Calvin’s Case, seen by many as the foundation of colonial law. However, the basic distinction between realm and dominion which underpins colonial law was in place several centuries earlier.23
Early law on Crown dominions reflected the origins of the common law as the King’s law and therefore the law of the realm. It also reflected the origins of the common law in its jurisdiction over land.24 As will be seen in Chapter Five, these origins can still be
23 Yet again, the exception is McNeil. In Common Law Aboriginal Title, supra note 11, he traces the Crown’s powers in relation to land back to the Norman Conquest and beyond. His account, however, focuses on land, rather than jurisdiction. 24 One author who does recognise the importance of the early period to later colonial law is Goebels: 105
discerned in Mabo (No. 2).
The Realm and the Dominions a. The Royal Demesne outside the Realm
By the time of Edward I, “England had become the centre of a congeries of royal possessions”:25 the Channel Islands, Brittany and the Isle of Man. Such islands were not considered part of the realm, but rather ‘dominions’ of the Crown. By the mid- fourteenth century, it had been recognised that these “dominions not parcel of the realm could be ordered by their own legal systems and that the King’s writ did not run into dominions of the Crown outside the realm”.26 The Isle of Man, for example, was considered separate from the realm of England, but dependent on the English Crown.27
Through the Isle’s changes in nominal sovereignty a number of times between its cession to Scotland by Norway in 1266, its eventual granting to the Stanleys in 1405
(“by homage and the service of rendering two falcons to the Kings of England at their coronation”28), and thereafter, it retained its own legal system. In Attorney-General for the Isle of Man v. Mylchreest, the Queen was described as being “seised in her demesne as of fee of the Island,…Lordship and Territory of Man.”29 According to Coke, the
King’s writ did not run into the Islands.30 Similarly, as the Channel Islands were originally part of the Duchy of Cornwall, and their law was founded on the customs and
see Goebels, J., “An Introductory Essay”, in Smith, Appeals to the Privy Council, supra note 5. 25 Ibid, at xxi. 26 Smith, Appeals to the Privy Council, ibid, at 468. 27 Moore, A., A History of the Isle of Man, Vol II, Manx National Heritage, 1992 (Fisher Unwin, London, 1900), at 738. 28 Ibid. 29 Attorney-General for the Isle of Man v. Mylchreest (1879) 4 A.C. 294, at 298 (italics in the original). The early legal history of the Isle of Man is succinctly set out in this case. 30 Coke, E., The fourth part of the Institutes of the laws of England: concerning the jurisdiction of courts, Knt, London, printed for E. & R. Brooke, London, 17th ed, 1797 (1644), at 286-7 [hereinafter Fourth Institute]. See also Le Patourel, J., The Medieval Administration of the 106
laws of Normandy, the Court of King’s Bench declared in the reign of Edward III that it had no jurisdiction over them.31
The common law was King’s law. The courts of the common law were, therefore, predominantly courts of the realm only – of England itself. As outlined in the last chapter, while the common law did not initially rely for jurisdiction on a connection to local territory, being instead attached to the various common law courts and the actions they entertained, it did have some territorial limits. With few exceptions, common law courts could not properly entertain causes of action arising outside of the realm, because of the rule that an issue of fact has to be tried by a jury from the place where it was laid: a jury could not be summoned from outside a county.32 The common law, and the writs which were at the heart of it, were primarily devised to protect private rights.
Despite the fact that common law writs did not generally run outside the realm of England, “…it is manifest that for practical reasons the central courts could not ignore, nor could the law be impervious to, aspects of royal authority outside the realm.”33 According to the common law, these were places without the realm, but within the ligeance of the King.34 Those places without the realm, but within the
Channel Islands, 1199-1399, Oxford University Press, London, 1937. 31 See Hale, M., (Gray, C., ed), The History of the Common Law of England, and An Analysis of the Civil Part of the Law, University of Chicago Press, Chicago and London, 1971 (1713), at 117-120. 32 Baker, J., An Introduction to English Legal History, 2nd ed, London, Butterworths, 1979, at 141. This rule found its modern expression in the idea that the common law could not extend beyond the high water mark: see New South Wales v. Commonwealth (Seas and Submerged Lands Case) (1975) 135 C.L.R. 337; Bonser v La Macchia (1969) 122 C.L.R. 177; Commonwealth v. Yarmirr (2001) 208 C.L.R. 1. 33 Goebels, “An Introductory Essay”, supra note 5, at xxi. 34 See the judgment of Sir Edward Coke in Calvin’s Case. Ligeance derives from liege homage, which was the highest degree of civil obligation, and owed only to the sovereign lord the King. According to Coke, “[l]igeance is the true and faithful obedience of the subject due to his Sovereign. This ligeance and obedience is an incident inseparable to every subject: for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign.”: Calvin’s Case, supra note 4, at Co. Rep. 4b (E.R. 382). This should be distinguished from feudal homage, which was 107
ligeance of the King were expressed to be the ‘dominions’ of the King. Bracton, for example, regards Ireland and Wales as being part of the dominions of the Crown.35 It is not surprising, therefore, that in considering these places, the common law utilised the language and logic of feudalism. Thus, “in so far as the common law arrived at any generalizations regarding the outlands, it was embodied in the conception “dominions of the King””.36
The word dominion was brought into English law by the Normans, and is one of those protean terms of eleventh century feudalism which is still part of the current legal vocabulary. Dominion was definitive not merely of proprietary or possessory rights in land but also of the governmental and contractual incidents of tenure. As long as these elements were present, lordship was synonymous with dominion.37 It is here, with respect to the outlands of Wales, Ireland, the Channel Islands and the Isle of Man, that we first see the use of the term dominion in the context of those parts of the King’s possessions external to the realm: the forerunners of the future colonies. At the hands of the common law courts the term dominion, a term of Lordship and governance, became predominantly a term of property law. As Goebels points out, the connoting of dominion as a term of property led to a mode of thought which “infect[ed] judicial thinking when the territorial aspects of the dominion of the King [were] involved.”38
Given the tendency of common law thinking, even in these early years, to
such obedience owed only to the immediate lord as was consistent with higher duty to the sovereign: see generally Chambers, R., (Curley, T., ed.), A Course of Lectures on the English Law (based on the Vinerian Law Lectures delivered from 1767-1773), Vol I, University of Wisconsin Press, Madison, 1986, at 268-270. 35 See Thorne, S. (trans.), De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England), Vol II, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1968, f.308b. 36 Goebels, “An Introductory Essay”, supra note 5, at xxi. 37 Ibid, at xxii. 38 Ibid. 108
proceed by analogy, the application of property rules to the areas beyond the realm is not surprising. The areas beyond the realm were areas of Royal right, where the King held as overlord and as such were part of his demesne. This inevitably suggested analogies with the common law rules which applied with respect to those parts of the
King’s demesne which lay within the realm, notably the manor. The courts were “faced with nearly identical limitations on their authority”.39 The ancient demesne was annexed to the Crown and thus the original writs of the common law did not run there. Royal prerogative was beyond the control of the central courts: “the King is so prerogative in his lands that he will have no one over him”.40 The common law courts dealt with the ancient demesne chiefly by way of review or collaterally.41 As part of this, and of importance later, the common law courts took note of particular customs which applied within the Royal demesne.
As jurisdiction over areas outside the realm was based on feudal overlordship, the body which had jurisdiction to hear appeals from the dominions was the appeal committee of the Privy Council. Thus early appeals from the Channel Islands went to the King and Council,42 and the central courts were prohibited in hearing matters arising from the Islands.43 Similarly, when the question of rights of appeal from the Isle of Man finally arose in 1716 in Christian v. Corren, the Privy Council asserted its right to hear appeals, rather than the common law courts.44 The ground on which the Privy Council asserted this right was that there existed a right to apply to the Crown for redress for
39 Ibid, at xxiii. 40 Year Book 33-35 Edw I (R.S.) 406. 41 Reviews were a point of jurisdiction derived from feudal law which vested appeals for default of justice in an overlord. 42 Order in Council, Henry VIII, 1475, cited in Safford, F., Wheeler, G., The Practice of the Privy Council in Judicial Matters, Sweet & Maxwell, London, 1901, at 228. 43 Holdsworth, W.S., A History of English Law, Vol I., Methuen & Co, London, 1922-1972, at 521. 44 Christian v. Corren (1716) 1 P. Wms. 329 (24 E.R. 411). 109
wrongs done by any court in any case where there was a tenure from the Crown.
The plaintiff in Christian v. Corren appealed from a decree of the Earl of Derby, described in the case as the “King of the Isle of Man”.45 The plaintiff argued that the
Earl of Derby’s ancestor had been granted the Island to hold by homage and other services, and that a right of appeal lay in all cases where there was a tenure of the
Crown. In this case, the King of England had an inherent right, inseparable from the
Crown, to distribute justice among his subjects. In accepting this argument, Parker LCJ specifically analogised the case to that of a copyholder, in other words one who holds land within the Manor, the demesne within the realm. The copyholder “… should sue by petition in the lord’s court, upon which the lord should give judgment, though no appeal or writ of error would lie of such judgment, yet the Court of Chancery would correct the proceedings…”.46 In 1725 it was laid down generally by a standing order of the House of Lords that all appeals from the Plantations were to be heard by King in
Council,47 reflecting the King’s traditional prerogative over plantations.
The limitations on the jurisdiction of the common law courts meant that, initially at least, they really did not need to grapple with problems of the new world or the relationship of the King to the colonies or its subjects. In fact, as will be seen, the rules pertaining to jurisdiction of the common law in new colonies were not settled until well into the eighteenth century. Piecemeal, however, as a response to new circumstances, rather than by design, from the 1600s onwards the common law began within the framework dictated by its feudal origins to fashion rules as to its own role in the New
45 Ibid, at P. Wms. 329 (E.R. 412). 46 Ibid, at P. Wms. 330-331 (E.R. 412). 47 Standing Order of the House of Lords, made 24 March 1725, reported at 2 Eq. Ca. Abr. 82 (22 E.R. 71). See also Fryer v. Bernard (1724) 2 P. Wms. 261 (24 E.R. 722), where it was held that appeals only lay from decrees made in the plantations to the King in Council and not the Court of Chancery: at P.Wms. 262 (E.R. 723). 110
World. The context for this was set by the decision in Calvin’s Case. b. Calvin’s Case
Calvin’s Case was decided at a crucial time. The early 1600s witnessed the beginnings of English colonial expansion in the New World, and the (legal) subjugation of Ireland. This colonial expansion stretched the common law beyond its domestic origins. Over the next century and a half, not only the colonists, but the central common law courts, were forced to innovate and mould the common law to fit new circumstances.
Calvin’s Case was a fabricated cause brought in order to secure a judicial determination with respect to the status in England of the Scottish subjects of James I.
The question before the Court of Common Pleas was whether Calvin, a Scot born after the accession of James I to the throne of England, was an alien and therefore unable to hold land in England.48 In the course of its judgment, the Court briefly considered the powers of the Crown generally as they related to the acquisition of new possessions, and it is from this discussion that the rules on common law jurisdiction in the New World were born.
Reflecting the importance of the issue at hand, Calvin’s Case was argued before a special court, known as the Exchequer Chamber, which was commissioned by the
King and was composed of the Lord Chancellor and all the judges from the three common law courts. However, it is Coke’s opinion which has emerged as authoritative, mainly because it was the only opinion published in Coke’s own reports.49 As noted
48 The case came before the Court of Common Pleas because by this time that court had acquired exclusive jurisdiction over pleas concerning land. An ‘alien’ was one whose allegiance was due at birth to another sovereign. The term can be contrasted with ‘liege homage’, discussed above, fn 34. 49 For the arguments of the Lord Chancellor Ellesmere, see Knafla, L., Law and Politics in Jacobean 111
earlier, Coke himself was of the opinion that the common law did not apply outside the realm. This was an opinion he never changed during the course of his career. This is not to say that some of the fundamental liberties enjoyed by Englishmen could not travel to other territories, but it was neither the case that the common law itself travelled to new territories, nor that it was possible to litigate in England over subject matter outside the realm.
Calvin’s Case reflects both the jurisdictional and feudalistic origins of the common law. The cause of action itself was firmly rooted within the traditional subject matter of the common law - land. Calvin, an infant, claimed that he had been disseised of a parcel of land in England which he had inherited. The defendants countered by arguing that Calvin was an alien, born within the ligeance of the King of Scotland, and therefore they were not obliged to answer the writ.50 As the court agreed that an alien could not sustain a real or personal action concerning land, the only issue was whether a
Scot born post the accession of James I was an alien.
The court held that Calvin was not an alien. His status was determined by the ligeance held to James I. Coke noted that ligeance was part of the natural law, which was in turn part of the common law.51 According to the court, the king had two capacities:
“[i]t is true, that the King hath two capacities in him: one a natural body, being descended to the blood Royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like; the other is a political body or capacity, so called, because it is framed by the policy of man … and in this capacity the King is esteemed to be immortal, invisible, not subject to death,
England: The Tracts of Lord Chancellor Ellesmere, Cambridge University Press, Cambridge, 1977. 50 Calvin’s Case, supra note 4, at Co. Rep. 1b (E.R. 378). 51 Ibid, at Co. Rep. 14a-14b (E.R. 394). 112
infirmity, infancy, nonage….”.52 The judges determined that ligeance was a personal bond, owed to the King in his natural rather than ‘politick capacity’. The feudal logic underlying this is obvious.
There is an inexorable link between property, sovereignty and ligeance. The bond between subject and King is like that of Lord and tenant. It is based on homage, which can only be sworn to a natural person: “a body politic … can as a body politic neither make nor take homage.”53
As a result, the King’s natural subjects in any dominion could hold land in
England and sue in English courts to protect it, as long as they were born after the
King’s acquisition of that dominion.54 However, this did not mean that the common law ran in these dominions. Mandatory and remedial writs (which included all writs both real and personal) were required to be returned to some Court of Justice within England, and to be served by the Sheriffs, and therefore could not “by any means extend into any other kingdom, country, or nation, though that be under the King’s actual ligeance and obedience.”55 On the other hand, non-remedial writs, such as the King’s writ to command his subjects living in any foreign country, were not tied to place, but followed subjection and ligeance.56 Thus Calvin’s Case confirmed the basic medieval distinction between the realm of the King and the dominions of the King. The common law was confined to the realm, while the King in Council had jurisdiction in the dominions.
Further, the underpinning of English property law “explains the archaic doctrine of the judges that what does not come by descent is by conquest”.57 According to the
52 Ibid, at Co. Rep. 10a (E.R. 388). 53 Ibid, at Co. Rep. 10b (E.R. 388). 54 Ibid, at Co. Rep. 18a (E.R. 399). 55 Ibid, at Co. Rep. 20a (E.R. 401). 56 Ibid. 57 See Smith, Appeals to the Privy Council, supra note 5, at 468. 113
court, these were the only two ways in which the King could acquire a dominion. This also reflected the only actual experience so far of colonial acquisition. While Scotland, for example, was acquired by descent, title to Ireland was based on conquest. According to Coke, the category of conquered colonies was further subdivided into those where that kingdom had been ruled by a Christian King, and those where the kingdom was ruled by an infidel. The basis given for this distinction was that made generally in
Calvin’s Case between subject and alien. Infidels were to be considered to be a specific kind of alien: the enemy. In the case of a country ruled by a Christian King, the laws were to remain until altered by the King, but in the case of a country ruled by an infidel, the laws were abrogated for they were against “the law of God and nature”.58 In contrast, where a King obtains a kingdom by title of descent, “there seeing by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws by himself, without the consent of Parliament.”59 This was, of course, the case of James in England.
While the general distinction between conquest and descent was to remain a part of
English law, Coke’s view that infidels were enemies was later overruled,60 and according to Holt CJ in Blankard v. Galdy, the preferable position was “that in the case of an infidel country, their laws by conquest do not entirely cease, but only such as are against the law of God”.61 Almost a century later Lord Mansfield told Counsel in
Campbell v. Hall not to quote the distinction to him “for the honour of my Lord
58 Calvin’s case, supra note 4, at Co. Rep 17b (E.R. 398). 59 Ibid. 60 Unnamed Case, 1 Salk 46 (91 E.R. 46). While this case has no year of judgment, as it appears in 1 Salk. it was most likely determined between 1689 and 1710. 61 Blankard v. Galdy (1693) 2 Salk. 411, at 411 (91 E.R. 356, at 357). The case is also reported at Holt 341 (90 E.R. 1089); 4 Mod 215 (87 E.R. 359), Comb. 228 (90 E.R. 445). References are to Salk unless otherwise specified. Similar comments are made in Comb., but do not appear in either the Holt or Mod. Reports. 114
Coke”.62
While the actual holding of Calvin’s Case in the end is no more than a confirmation of the status of the postnati as subjects of James I, and therefore able to maintain an action for land in England, the case weaves together the medieval law concept of ligeance with the distinction between realm and dominion. In so doing, however, Calvin’s Case remained firmly lodged within a jurisdictional concept of law in which each body of law operated within its own sphere. The common law remained bound to England, while colonists were required to rely on local law, with a right of appeal to the Privy Council. While the notion of ligeance permeates decisions for the next two centuries, it was not long before the common law courts began to move beyond the limits imposed in Calvin’s Case.
The English Common Law Courts and the New World: The Settled/Conquered Divide
At the beginning of the seventeenth century, the Crown policy on enterprises in the new world might, as Smith comments “have been contrived with Coke’s report of
Calvin’s Case at the judicial elbow.”63 The right to colonise was embodied in two kinds of royal charters, by means of which the Monarch granted to individuals or groups of individuals incorporated as joint stock companies a portion of his rights and privileges in the New World lands claimed by him: joint stock companies and proprietary colonies.64 The form of both of these charters reflected the approach in Calvin’s Case.
62 Campbell v. Hall, supra note 4, Lofft at 716 (E.R. at 882). 63 Smith, Appeals to the Privy Council, supra note 5, at 468. 64 Joint stock companies, the forerunners of the modern corporation, were used as a vehicle to raise money to finance a new colony. In a joint stock company, members subscribed to the common capital fund as much as they desired, and took a share of the profit or loss in proportion to their investment. The first of the great overseas joint stock trading companies was the Russia Company, formed in 1553. The Virginia Company (1606) was also a joint stock company. Of course, there were also numerous colonies which had no formal legal basis. These generally began as offshoots of other colonies, and were often set up as religious enclaves. 115
The 1606 Virginia Charter granted a group of colonists the right to settle between the thirty-fourth and forty-fifth parallels. The language of the Charter reflects the position of Virginia as a dominion of the Crown. Virginia is named as a royal territory
“appertaining to us”, and the Charter specified that all lands taken by the company were to be held “as of our Manor in East-Greenwich in the County of Kent.”65 Such a specification would be unnecessary if the common law were to be introduced. Further, an ordinance power is given with the proviso that the King or council or Virginia may make alterations to any ordinance that is not in conformity with the common law. This provides a standard by which local law making is to occur, without undermining the strength of control by prerogative.66 While no two charters were the same, the early colonies in the Americas and the Caribbean confirmed to the pattern of chartered colonies with extensive rights of self-government, subject to the proviso that these laws should not be contrary to the laws and statutes of England. According to their charters, the companies were not only corporate bodies, but bodies ‘politic’. The result, however, was that other than providing a ‘yardstick’ by which local laws could be measured, the common law had no part to play in the colonies.67
The outbreak of the civil war brought to a close the first era of English colonisation. The restoration of the Stuarts in 1660 inaugurated a new wave of expansion and settlement.68 The pattern of colonisation differed this time. The basis of the new colonies was the proprietary charter, patterned after the grant of Maryland to
Lord Baltimore in 1632.69 Proprietary colonies functioned by grant of land to an
65 Quoted in Castles, A., An Australian Legal History, Law Book Company, Sydney, 1982, at 3. 66 See Smith, Appeals to the Privy Council, supra note 5, at 469. 67 Ibid. 68 Jensen, M. (ed), English Historical Documents, Vol IX, American Colonial Documents to 1776, Oxford University Press, New York, 1969, at 26. 69 Ibid. 116
individual who would act as a landlord.70 The first attempts to formulate a uniform colonial policy can be discerned after the Restoration in 1660, its purpose to establish control over the political and economic life of the colonies. The colonial enterprise had progressed to the point at which English merchants began to demand government attention to the question of colonial trade.71 The Crown, badly in need of revenue, passed the notorious Navigation Acts, restricting the colonies to trading with England.72
Colonists, who objected vigorously to this policy, openly defied the Crown. According to Jensen:
“The charters, whether corporation or proprietary, gave their holders wide powers over and within the colonies; but at the same time they required the most nominal allegiance to the Crown and none at all to Parliament, since the colonies were in law and theory the domain of the Crown. At the same time the charters contained within them the germ of an institution - the elective legislature - which enabled the colonists not only to defy the proprietors but to defy both Crown and Parliament in the course of time.”73
It was increasingly obvious that colonial legislatures were the centre of resistance to the Navigation Acts.74 Thus, it became clear that one means of combating the independence of colonies was to cancel the charters and convert the colonies into royal colonies, governed by Governor and Council appointed by the King.75 The result was that colonies came to be governed largely by royal prerogative, exercised through the Privy Council. Although the domestic powers of the Council had been emasculated
70 Lloyd, T., The British Empire: 1558-1983, Oxford University Press, New York, 1994, at 28. 71 Jensen, English Historical Documents, supra note 68, at 31. 72 An Act for the Encouraging and Increasing of Shipping and Navigation 12 Charles II, c. 18 (1660). See also An Act for the Encouragement of Trade, 15 Ch. II, c. 7 (1663); An Act to Prevent the planting of Tobacco in England and for regulation the Plantation Trade, 22-23 Ch. II, c. 26 (1670); An Act for the Encouragement of the Greenland and Eastland Trades, and for the better Securing the Plantation Trades, 25 Ch. II, c. 7 (1672); An Act to prevent Frauds and Abuses in the Plantation Trade, 7 & 8 Wm. II, c. 22 (1696). 73 Jensen, English Historical Documents, supra note 68, at 32. 74 By 1640 almost all English colonies were governed by assemblies of elected representatives. 75 Jensen, English Historical Documents, supra note 68, at 33. 117
by the Glorious Revolution of 1688, it continued as a powerful instrument of Crown power as far as the colonies were concerned. a. The Distinction between Settled and Conquered Colonies
British Imperial constitutional law recognised a number of modes of acquisition of territory. At the outset of the seventeenth century, the modes of conquest, cession and descent were available.76 These categories naturally reflected the ways in which territory had been acquired in the past. By the end of the century a new method had been added to the list: that of settlement. The reasons for this are complex, and beyond the scope of this work. Suffice it to say that the addition of this category was not just a reaction to the discovery of uninhabited territory, or territory in which the law of the inhabitants was unsuitable to be applied to British colonists, but also resulted from the power struggles of Crown and Parliament, and the resultant ‘settlement’ of 1688: “the principles of the common law on settled colonies reflected the tenor of the seventeenth century constitutional settlements with their emphasis on circumscribing the power of the Crown”.77 Although the Crown acquired new colonies by exercise of royal prerogative, once designated as ‘settled’ the Crown’s power basically reflected that which it could exercise in Britain under the post-revolutionary settlement. Thus, its prerogative powers were limited. It could not legislate or levy taxation without parliament. It was assumed that both a legislative body and common law courts would
76 Descent, a mode common in Europe given the relationship between many of the European rulers, was essentially inapplicable to the new world. Cession, on the other hand, continued to be relevant as the British took colonies from the French and Spanish. However, the category of cession is generally subsumed into the category of conquest, as the cession rule followed that of conquest, with the added proviso that any changes to local law were subject to any specific terms in the treaty of cession or articles of capitulation. For an example of a colony acquired by cession, see Campbell v. Hall, supra note 4. 77 Castles, An Australian Legal History, supra note 65, at 9. 118
be established.78 Judicial attitudes towards the Crown’s powers in the new world tended to reflect their attitude to the exercise of the prerogative domestically: that it should be circumscribed and exercised subject to the common law. Not surprisingly, the first case to refer to the ‘uninhabited’ colony, over which the common law had jurisdiction, was determined soon after the settlement of 1688, although it had cautiously been suggested as early as 1670 that a dominion may be acquired by ‘plantation’ as well as by conquest.79
As noted above, the cases discussed below form part of the framework of British
Imperial constitutional law. British Imperial law is, however, more than just case law. It also includes a plethora of statutes, instruments issued under the Great Seal, such as letters patent and proclamations, or instructions to colonial governors. However, the examination of British Imperial law in this part is largely restricted to case law of the
English common law courts. This is so for several reasons. First, any examination of
Crown policy is simply beyond what is possible in this thesis. Second, the emphasis of this chapter is on the jurisdiction of the common law. As noted above, the concerns of the courts were not focused on the First Peoples of the new colonies, and hence decisions can appear at odds with Crown policy, which was interested in a much broader set of issues.
The principle that English law accompanied the colonists is generally traced to the 1693 decision of Holt CJ of the King’s Bench in Blankard v. Galdy, a case which is reported in no less than four versions.80 Blankard was Provost Marshal in Jamaica. He granted a deputation of this office to Galdy for a yearly rent, and the latter had given the
78 Ibid, at 10. 79 See Craw v. Ramsay (1669) Vaughan 274, at 300 (124 E.R. 1072, at 1084), per Vaughan CJ. 80 The pleadings are reported in Latin at 4 Mod 215 (87 E.R. 359). An excellent summary is provided by Smith, Appeals to the Privy Council, supra note 5, at 490ff, and this account of the facts is 119
bond for the performance of the agreement. The defendant later pleaded the Statute 6
Edward VI, c. 16 against the buying and selling of offices by virtue of which he argued both articles and bond were void. The plaintiff averred that the island had formerly been held and inhabited by Spaniards, Indians, and other foreign enemies of the Kingdom of
England, but it had been conquered in 1655. Since this time the inhabitants had been ruled and governed by their own proper laws and not by act of Parliament of England.
The defendant rejoined that before the conquest the islands had been governed by their own laws, but that since then they had been parcel of the realm of England and were governed by its laws and statutes.81
Sir Bartholomew Shower argued for the plaintiff that acts of Parliament did not bind in Jamaica because they had no representatives in Parliament. He cited Elizabeth’s
Statute of Labourers and the Statute of Usury as examples of non-applicability – the former obviously because of slavery and the second because of prevailing interest rates in Jamaica. Furthermore, the manner in which the Navigation Acts referred to an
“English plantation in America” indicated that the law of England did not extend there.
Statute 6 Edward VI, c. 16 did not mention Jamaica and therefore had no force there.82
Sir Francis Pemberton appeared for the defendant. He took the line that as the conquest destroyed both government and property rights, old laws did not remain and the laws of the conqueror took their place, It was unreasonable that Englishmen should lose their law by a conquest, for their law was their birthright and was carried wherever they went. Pemberton interpreted Calvin’s Case and Coke’s doctrine of conquest to mean that by virtue of English possession English law remained until the King made
based on that summary. 81 Smith, ibid, at 470. 82 Ibid. 120
some alteration.83 The argument that the common law was the right of Englishmen, and accompanied them to the new world, was one which appeared time and time again, eventually becoming part of the rules on settled colonies. Despite Pemberton’s arguments, Holt CJ held that Jamaica was a conquered colony and therefore England’s law was not in force there.84
The case of Blankard v. Galdy is generally accepted as having introduced the notion of a newly found uninhabited country. The Holt version of the case states that:
“In the case of an uninhabited country newly found out by English subjects, all laws in force in England, are in force there: but Jamaica being conquered, and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the Crown of England; the laws of England did not take place there, ‘till declared so by the conqueror or his successors.’”85
Holt CJ drew an analogy between Jamaica and Ireland and the Isle of Man, the latter of which were “part of the possessions of the Crown of England; yet retain their antient laws: and it is impossible the laws of this nation, by meer conquest without more, should take place in a conquered colony; because for a time, there must want officers, without which our laws can not be executed. Jamaica was not governed by the laws of England after the conquest thereof, until new lands were made; for they had neither sheriffs nor counties… .”86
A few months later the case of Dutton v. Howell was argued in the House of
Lords.87 In the King’s Bench Howell (as Executor for one Witham) had recovered in an action for trespass and false imprisonment brought against Dutton, the Governor of
Barbados. Witham had been incarcerated in Barbados pursuant to a warrant issued by
83 Ibid, at 471. 84 Blankard v. Galdy, supra note 61, at Salk 411 (E.R. 355). 85 Ibid, at Holt 342 (E.R. 1089). 86 Ibid. Note that while similar statements are made in the Salkend version, the lines referring to an uninhabited country” are not to be found in the other two versions. 121
the Governor.88 It was argued for Dutton that the cause was not cognisable at
Westminster, for the Governor had acted as judge and was a lawfully commissioned
Governor and was censurable only by the King.89 Shower appeared again, for Witham’s estate, this time arguing the other side to that which he had taken in Blankard. Shower followed a strict common law constitutional argument which was in keeping with what had been said in that case although he did not directly refer to it.
He denied that Barbados was a conquest – that there was no law available to the colonists as the country was uninhabited. “Twas a colony or plantation”, and so “the
Common law must and doth oblige there, for ‘tis a Plantation or new settlement of
Englishmen by the King’s consent in an uninhabited country”.90 When Englishmen “go and possess an uninhabited desert Country; the Common Law must be supposed their
Rule, as ‘twas their Birthright, and as ‘tis the best, and so to be presumed to be their choice; and not only that, but even as Obligatory, ‘tis so.”91 Shower then followed this by saying that even if one followed the international rule that title is gained by the first occupant, the rules of descent will be those of the settler, and grants of the Crown will be in socage – a common law tenure.92 He then argued that arrest could only be by known officers and that English law knew of no such office as Governor. The commission was not executed according the strict requirements of the common law.93 In reply, Dutton argued that regardless of whether the common law was the law of the colony, the appointment of Dutton was by letters patent, that the King had created a
87 Howell v. Dutton and Witham (1693) 1 Shower PC 24 (1 E.R. 17). 88 Ibid, at Shower P.C. 24 (E.R. 17). 89 Ibid, at Shower P.C. 27 (E.R. 19). 90 Ibid, at Shower P.C. 31 (E.R. 21), italics in the original. 91 Ibid, at Shower P.C. 32 (E.R. 22). 92 Ibid. 93 Ibid, at Shower P.C. 28 (E.R. 19). 122
Council of State for the Island and that was the body which should try Dutton because the power to do so was incidental to their authority.94 Shower did not win his case. It is generally considered that this is because the court did not accept the argument that the common law was the law of the colony.95 That seems plausible, although the actual determination is unclear on this point.
The 1722 Case of Anonymous is the first decision which appears to squarely separate the two types of colony: uninhabited and conquered. Further, it uses the now familiar phrase that “the law is the birthright of every subject, so, where they go, they carry their laws with them…”.96 The origins of the case are obscure. As noted in the introduction to this chapter, this case was a Privy Council decision, known only because of the report by Peere Williams. The memorandum of the decision is short, with no reference to parties, facts, cause of action, result of the appeal, nor even any indication from which colony the case originated.97 Nevertheless, it neatly summed up the state of the law at that time. It was also the opinion of the legal advisor to the Board of Trade,
Richard West, that the common law was the law of the plantations. In the course of advising of the applicability of the statute 28 Henry VIII, c. 15 (Admiralty jurisdiction over piracy) to West Indies, he stated that “the common law of England is the common law of the plantations. … Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear.”98
94 Ibid, at Shower P.C. 34-5 (E.R. 24). 95 See, for example, Walters, “A Comment on Delgamuukw”, supra note 11, at 362. 96 Case of Anonymous, supra note 9, at P. Wms 75 (E.R. 646). 97 For a discussion of this case see McPherson, B.H., Hon Mr Justice, “The Mystery of Anonymous (1722)”, (2001) 75 A.L.J. 169. McPherson reviews the evidence and concludes, relying in part on the work of Cahill, that the case originated in Barbados, possibly as an appeal from Mendez v. Battyn (Acts of the Privy Council of England: Colonial Series, Vol 2, §1203), a case concerning the validity of an entailing deed: see McPherson at 174-5; Cahill, J., “How Far English Laws are in Force Here” (1993) 42 Uni. New Brunswick L.J. 113. 98 Forsyth, W., Cases and Opinions on Constitutional Law and Various Points of English 123
Despite the comparatively wide circulation of these cases, it is clear that many governing in the colonies did not know of these decisions and remained in some disquiet as to what law applied. Further, such decisions were ignored where it was deemed expedient by local authorities to apply English statues: an example being the complicated litigation in Orby v. Long, a case originating in Jamaica which turned on whether or not the English Statute of Frauds applied to Jamaica.99 At that time, it was accepted (by the English courts, if not by the colonists themselves) that the American colonies had been acquired by conquest.
These decisions referring to ‘uninhabited countries’ were made against the backdrop of increasing claims by colonists in the Americas that the ancient freedoms and rights of the common law had accompanied the settlers to the new world. The common law was seen as a bulwark against the wide powers of the Crown by virtue of the prerogative. Thus, as McHugh points out, the “colonists were claiming the common law in the sphere of their public relations rather than in matters of private law inter se.
… the colonists were using the common law as descriptive of their relation with the
Crown.”100 The issue of the importation of the common law was one of the grievances leading to the War of Independence.101
However, while at the beginning of the eighteenth century the courts were beginning to refer to ‘uninhabited countries’, none of these cases actually concerned
Jurisprudence, Stevens and Hayes, London, 1869, at 1. See also Chambers, G., Opinions of Eminent Lawyers on various points of English Jurisprudence, chiefly concerning Colonies, Fisheries, and Commerce, Vol 2, Printed for Reed and Hunter, London, 1814, at 200 ff. 99 Orby v. Long, 1 Ms Jamaica Court of Errors Proceedings 19, referred to in Smith, Appeal to the Privy Council, supra note 5, at 477 100 McHugh, “The Common Law Status of Colonies”, supra note 11, at 409. 101 In the Declaration of Colonial Rights and Grievances, issued on 1 October 1774 by representatives of American colonist it was: “Resolved That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, and according to the course of that law”: reproduced in Jensen, English Historical Documents, supra note 68, at 805-808. 124
settled colonies. That all these cases were about conquered colonies is not surprising, given the paucity of cases before the English courts, and the fact that at the time there were few uninhabited colonies. McPherson suggests that: “the expression “new and uninhabited country” was descriptive of conditions at settlement only in Bermuda,
Barbados and possibly Antigua in the West Indies, St Helena in the South Atlantic, and
(but only much later) the Falkland Islands.”102 In fact, neither Barbados and Antigua were uninhabited on arrival of the British. The list of colonies, therefore, which were in fact ‘desert and uninhabited’ was remarkably short. In Blankard, it was held that the colony of Jamaica was conquered. Holt CJ confirmed in Smith v. Brown that Virginia was also conquered. In Dutton, Shower appears to have lost his argument that Barbados was settled. Later in the century, in Campbell v. Hall, Lord Mansfield confirmed that
Grenada had also been conquered. Subsequently, the colonies of New South Wales,
New Zealand and parts of what became Canada would be considered settled by the government and confirmed as so in local colonial court decisions.
In the first half of the eighteenth century, the American colonists relied on comments as to ‘uninhabited countries’, particularly those from Blankard v. Galdy, in order to bolster their arguments as to the applicability of the common law to the colonies.103 A number of the colonies argued that they were settled, not conquered, colonies, and therefore the common law had been received into the American plantations. The colonists saw the common law as their birthright. Either they were in the position of the conquered themselves or they were descendants of the original colonists, who had not forfeited their birthright by travelling to the new world. If they were not conquered, then it could only be the indigenous inhabitants of the colony who
102 McPherson, “The Mystery of Anonymous”, supra note 97, at 170. 125
were in that position. Some saw that as impossible, because “if there were any Pretense of Conquest, it can be only Supposed against the Native Indian Infidels, which
Supposition cannot be admitted, because the Christian inhabitants purchased great Part of the Land they at first took up from the Indians … .”104 Others thought that to suggest the colonies were conquered was to reduce the colonists to the position of the “savage aborigines”.105 Like the earlier common law cases on the colonies, the colonists’ arguments as to the settled nature of the plantations was directed at the rights of the colonists, not the indigenous inhabitants. The position of the indigenous peoples was only relevant in so far as it was considered a stumbling block to arguments that the colonies were settled.
By the end of the eighteenth century it had become accepted legal doctrine that the American colonies had been acquired by settlement. English and America constitutional writers, as well as American courts, not only affirmed the status of the colonies as settled, but also that it had always been. The noted American constitutional lawyer, Joseph Story, stated in his Commentaries, with respect to the state of Georgia that:
“There is not a single grant from the British crown from the earliest grant of Elizabeth down to the latest of George the Second, that affects to look to any title, except that founded on discovery. Conquest or cession is not once alluded to. And it is impossible, that it should have been; for at the time when all the leading grants were respectively made, there had not been any conquest or cession from the natives of the territory comprehended in those grants. Even in respect to the territory of New-York and New-Jersey, which alone afford any pretence for a claim by conquest, they were conquered from the Dutch, and not from the natives; and were ceded to England
103 See McHugh, “The Common Law Status of Colonies”, supra note 11, at 412-415. 104 The Resolutions of 1722 of the Parliament of Maryland, in Sioussat, G. (ed), The English Statutes in Maryland, John Hopkins Press, Baltimore, 1903, App. 1 73, at 74, quoted in McHugh, ibid, at 413. 105 Bland, R., “The Colonel Dismounted or the Rector Vindicated”, 1764, quoted in McHugh, ibid, at 416. 126
by the Treaty of Breda in 1667. But England claimed this very territory, not by right of this conquest, but by the prior right of discovery. The original grant was made to the Duke of York in 1664, founded upon this right, and the subsequent confirmation of his title did not depart from the original foundation.”106
His comments with respect to the other original states are similar. b. Conquered Colonies and the Principle of Continuity
The final two significant cases which make up the corpus of British Imperial law were decided some years after Blankard and Dutton, around the time of the American
War of Independence. They add little to the short, stark principles laid down in the earlier cases, although they do illustrate the factual complexities that could arise in these colonial cases. Both Campbell v. Hall and Mostyn v. Fabrigas concerned conquered colonies – from the French and Spanish respectively. They add, therefore, almost nothing to the tiny body of jurisprudence on settled colonies. Campbell v. Hall is discussed briefly, while Mostyn v. Fabrigas is considered below in the context of transitory actions.
Campbell v. Hall considered the legality of the imposition of a four and a half percent duty on all sugar exported from Grenada. The action was in indebitatus assumpsit, and brought by Campbell, the owner of a sugar plantation, against Hall, His
Majesty’s collector of duties. The facts are complicated, but can be summarised as follows. Grenada was a French colony until conquered by the British in 1762. The following provisions were included in the Articles of Capitulation. First, that although the Grenadans became British subjects, they continued to be governed by their own laws until those laws were changed by the King. This provision simply replicated the common law rules on conquered colonies. Second, that no additional duties would be
106 Story, Commentaries on the Constitution of the United States, supra note 21, Ch VX, §145. 127
payable to the British Crown, other than those that had already been levied by the
French. In 1764, by letters patent, a four and a half percent duty was levied on sugar exports. Between the Articles of Capitulation and the imposition of the duty, the King had issued a proclamation directing a Governor to be appointed for the colony, and for that Governor to establish a representative assembly and courts along the lines of those in the American colonies. The question before the court was whether the appointment of the Governor and the issuing of the proclamation rendered the subsequent duty void, on the grounds that the Crown had no power to issue the proclamation. The plaintiff argued that as it had effectively delegated all its powers of governance to the Governor and
Assembly the common law was in effect now the law of the colony and the Crown could no longer exercise its prerogative to impose a permanent tax.
The terms in which the arguments were made had changed since the earlier decisions of Blankard and Dutton. This was no mere argument about the effect of issuing the letters of patents, but about the power of the prerogative, and the King’s absolute authority in certain colonies. Mansfield called it “one of the greatest constitutional questions that, perhaps, ever came before this court.”107 Further, the influence of international political theorists, in particular Vattel who had published his
Droit des Gens in the intervening years, also served to change the terms of the debate, at least for counsel for the plaintiff. Campbell was argued before the King’s Bench three times. Each time, counsel for the plaintiff stressed the principles derived from the emerging international law, as principally expounded by Vattel, but also Grotius and
Puffendorf, in an effort to show that the common law was the law of the colony, not just from the time of appointment of the governor, but from the moment of conquest. In so
107 Campbell v. Hall, supra note 4, at Lofft. 721 (E.R. 885). 128
doing, they tried to massage both the limited principles of British Imperial constitutional law, and history itself, in the form of detailed accounts of the conquests of various other parts of the Empire, in order to show those principles and that history were in conformity with emerging international law:
“When a nation takes possession of a distant country and settles a colony there, that country, although separated from the principle establishment or mother country, naturally becomes part of the State, equally with its ancient possessions. Whenever therefore the political laws, or treaties, make no distinction between them, every thing said of the territory of the nation ought also to extend to its colonies.”108
All three counsel tried to use this to argue that the common law had become the law of the new colony on the acquisition of sovereignty, despite the fact that it was acquired by Conquest.109 This is not the first time arguments from the new political theory were used in such cases. Shower had made a similar argument based on Grotius’ notion of first occupancy as long ago as Dutton v. Hall.110 However, there is no evidence then, or later in Campbell, that the courts were particularly interested in such arguments. Despite the fact that much of counsels’ arguments had relied on ‘political theory’,111 backed up by an extensive examination of the history of England’s feudal possessions and colonies, Lord Mansfield’s judgment was rendered strictly within the terms of British Imperial law, albeit somewhat modified by the influence of the 1688 settlement. He made no reference, implied or explicit, to the new political theory, rather relying on Calvin’s Case and some explanatory examples from history and current practice. He also thought that the particular provision of the Articles of Capitulation which guaranteed that French laws would be respected was determinative of that part of
108 Vattel, Droit des Gens, supra note 21, at §210, quote by Mr. Alleyne, Counsel for the Plaintiff, Campbell v. Hall, ibid, at Lofft 683 (98 E.R. 864). 109 See ibid, at Lofft. 710 (E.R. 879) per Mr. Alleyne; at Lofft. 711 (E.R. 880) per Mr. Macdonald; at Lofft. 727-8 (E.R. 888) per Mr. Serjeant Glynn. 110 See Howell v. Dutton, supra note 87, at Shower P.C. 32 (E.R. 22). 129
the argument. This, however, only reinforced the general rule. Colonies which were conquered became a dominion of the King in right of his Crown. The conquered peoples become subjects and “received into the conqueror’s protection”. The laws of the conquered country remain until altered by the conqueror.112 However, according to
Mansfield, while the King did retain power to alter laws, his legislative power over the colony was “limited to him by the constitution, and subordinate to the constitution of
Parliament”.113 Thus, appointing a Governor, and setting in motion the ultimate establishment of an elected assembly, he had delegated his power to legislate. The letters patent, and hence tax, were void.
What is known as the ‘doctrine’ or ‘principle’ of continuity can be traced to the decisions on conquered colonies.114 As noted above, on conquest of a country, the laws of the conquered remained in force until changed by the Crown. Further, rights to property continued to be respected even under the new legal system.115 This has been interpreted by a number of commentators to mean that indigenous rights to land must be respected. However, as already mentioned, no decision of an English common law court actually provided that indigenous rights would continue, either after conquest or settlement of a colony. This is of course not fatal. The issue simply did not come before these courts.116
111 Campbell v. Hall, supra note 4, per Mr. Alleyne at Lofft. 686 (E.R. 866). 112 Ibid, Lofft. 741 (E.R. 895). 113 Ibid. 114 See generally Slattery, B., Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title, Studies in Aboriginal Rights, No. 2, University of Saskatchewan Law Centre, Saskatoon, 1983. The most detailed analysis of this is Walters, “The Golden Thread of Continuity”, supra note 11. 115 See generally Campbell v. Hall, supra note 4. 116 However, in a number of decisions in the twentieth century, this principle was recognised by the Privy Council. In Re Southern Rhodesia the Privy Council stated that “it is to be presumed, in the absence of express confiscation or of subsequent expropriatory legislation, that the conqueror has respected [pre-existing indigenous rights] and forborne to diminish or modify them”: Re Southern Rhodesia, [1919] A.C. 211, at 233. Similarly, in Oyekan v. Adele Lord Denning held: “In inquiring ... what rights are recognised, there is one guiding principle. It is this: The 130
There are, however, two problems with the principle of continuity. At least one proponent of this principle, Walters, acknowledges that there are difficulties in applying it to the laws of indigenous peoples.117 First, the colonies to which one might seek to apply the principle have been legally determined to be ‘settled’ colonies, rather than conquered. Second, and as a consequence of the first point, it is difficult to use the principle of continuity to argue that local laws were to be respected when the very reason the colonies were considered settled is because the indigenous inhabitants were considered legally to have no law. For Walters, arguing that the doctrine of continuity applied in British North America, this problem is overcome by attempting to show that it was recognised that the indigenous inhabitants did have laws. He acknowledges that there is almost no judicial opinion that supports this position, instead relying on a combination of imperial and colonial statute and policy.118 Such a position can arguably be sustained in North America (and New Zealand) where treaties were concluded with the indigenous inhabitants. This at least implies that they were considered to have sufficient legal capacity to be able to enter into such instruments.119
As there is no law in a settled colony, supposedly “… English law would immediately rush into what was supposedly a legal vacuum. Accordingly, even if the
courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law.”: Oyekan v. Adele, [1957] 2 All E.R. 785, at 788. See also the judgment of McLauchlin J of the Canadian Supreme Court in R. v. Van der Peet (1996) 137 D.L.R. (4th) 289, at 378-379. 117 Walters, “Mohegan Indians”, supra note 11, at 792-803. For further discussion of the doctrine of continuity generally see also Walters “The Golden Thread of Continuity”, supra note 11. 118 Ibid, at 798. 119 On this issue with respect to New Zealand see Pocock, J., “Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi”, (1998) 43 McGill L.J. 481. 131
inhabitants did have private property rights under their own legal system, those rights would be of no avail to them, because the law upon which they depended would have been displaced by English law.”120 As will be seen in Chapter Five, this is the picture painted in Mabo (No. 2), particularly by Brennan J, of the coming of the common law to the colony of New South Wales. Despite this, Brennan J, along with five other members of that Court, did hold that an interest called ‘native title’ survived. In addition, a number of the Court note the presumption that on change of sovereignty property rights are to be respected.121 In so doing, they do not distinguish between conquered and settled colonies. One might presume, therefore, that in deciding that the doctrine, or presumption, applied, the High Court was also recognising that Indigenous Australians had ‘laws’. However, despite some hints that this might be the case in Mabo (No. 2), as will be seen in the next chapter, the High Court has never specifically recognised indigenous jurisdictions, and in fact ultimately in Yorta Yorta, that Court hold that
Indigenous law-making capacity ceased in 1788.122
Even if indigenous laws are recognised by the common law as ‘laws’, it still leaves the question of how the different bodies of law are to interact. How do the law of the colonists and the law of the colonised interrelate? What does it mean to ‘respect existing property rights’? As a matter of structure, how do they sit with the new legal system? If Indigenous jurisdictions are not recognised, the relationship between ‘native title’ and the common law becomes even harder to conceptualise. In essence, of course, this is the question facing the High Court with respect to indigenous and common law.
It is also the question which faced the colonial courts which did recognise that
120 McNeil, Common Law Aboriginal Title, supra note 11, at 180. 121 Mabo (No. 2), supra note 20, at 56 per Brennan J, at 183 per Toohey J. 122 Members of the Yorta Yorta Community v. Victoria (2002) 214 C.L.R. 422. 132
Aboriginal customary law continued in their particular colony. This is the subject of
Chapter Four. As was discussed in Chapter Two, the municipal common law had long had a framework and mechanism according to which non-common law bodies of law could be incorporated into the common law. The principle of continuity was not a rule of private international law, according to which what was being recognised was a foreign law. Rather, it was about the incorporation of local law into British law. This was recognised some centuries later by Herschell L.C. in British South Africa Company v. The Companhia de Moçambique. Herschell L.C. clarified that these rules on jurisdiction were not derived from international law, although they were in conformity with it, but from municipal law, from British imperial constitutional law itself.123 How this might play out in contemporary law is the subject of Chapter Five. If, on the other hand we accept that, despite this initial recognition of indigenous law, it was subsequently denied to be law, then how do we explain the form of native title? Chapter
Seven examines how, if this is the case, which it seems to still be in Australia post–
Yorta Yorta, we might understand the shape of native title.
By the time of the first fleet to New South Wales, therefore, the category of settled colony had firmly been established. As can be seen from the above, however, the corpus of law on settled colonies was tiny: some three or four cases in which the rule had been stated in a few lines. No English court had actually attempted to apply the rules to a colony. Nor had any English case considered the position of the Indigenous inhabitants of the colonies. Some forty years before the colonists arrived in New South
Wales, the rules on settled and conquered colonies were included by Blackstone in his
Commentaries. However, the subtleties and nuances of the application of these rules
123 British South Africa Company v. The Companhia de Moçambique (1893) A.C. 602, at 623. 133
belong to the jurisprudence of the colonial courts, as will be seen in the next two chapters.
Maintaining Proper Jurisdiction
In an echo of the domestic jurisdictional maze of England, in the eighteenth century the legal framework of the Empire was pluralistic. There were colonies that were governed by Royal prerogative. An example of such a colony was Minorca, which continued to be governed by Spanish law. There were colonies which had their own elected Assemblies and laws into which the common law had arguably not yet been fully received, but which had passed their own laws which largely conformed to the common law. Jamaica and Virginia fall into this category. There were colonies which were still governed by chartered corporations, of which examples were the charters of the Hudson’s Bay Company and East India Company. In these cases, there was a colonial legal system in place for the colonists within the confines of the charter territory, while outside was arguably still under ‘local law’ (whatever that might actually mean). Finally, there were conquered colonies into which the common law had been imported (Grenada) and, later in the century, the new ‘settled’ colonies of New
Zealand and New South Wales. This pluralistic system sat under the overarching principles of British imperial constitutional law.
This part examines the tension between exercising and refusing jurisdiction over cases from the new world. On the one hand, using devices such as the transitory action, the court of Kings Bench had long been determining matters, particularly contractual, which arose in foreign lands. In the eighteenth century, this was extended to matters arising in the colonies. On the other hand, the Kings Bench clearly recognised the limits of its jurisdiction, generally refusing to intervene where there was another, more 134
appropriate jurisdiction. Throughout, the same concern for maintaining the channels of
‘proper’ jurisdiction that was seen in Chapter Two is evident. a. Transitory actions
To every rule there is an exception. While the common law remained essentially the law of the realm, and ‘meddled with nothing done beyond the seas’, there was one way in which the common law extended its jurisdiction to foreign lands. This was done by extending the notion of transitory actions. This is an excellent example of the way in which, as Smith puts it, “the common law made its quilts from old rags”.124
In the late seventeenth century, in his note Process into Wales,125 Vaughan CJ firmly reiterated that the original writs of the common law did not run into the dominions, Just as the writs of the common law courts did not run in Wales prior to the
Statute Concerning the Laws to be Used in Wales:126
“… the Courts of England had nothing to do with administration of justice there, in other manners than now they have with the Western Islands, Barbadoes, St Christophers, Mevis (sic), New England which are the dominions of England, and so is Ireland, the isles of Garnsey and Jersey at present, all which may be bound by laws, made respectively for them by an English Parliament; but all, or most of them, at present by laws appointed and made by Kings letters patents, and the Kings writs original or judicial from the Court’s of Westminster go not there; so anciently were Gascoign, Guyen and Calais of the dominions of England, but governed by the customes and laws used there, and out of the jurisdiction of the King’s Courts.”127
124 Smith, Appeals to the Privy Council, supra note 5, at 468. 125 Concerning Process out of the Courts at Westminster into Wales of Late Times, and How Anciently, (1677) Vaughan 395 (124 E.R. 1130) 126 Act for the Government of Wales, 27 Henry VIII, c. 26 (1535). 127 Process into Wales, supra note 125, at Vaughan 400-401 (E.R. 1132). In the same note Vaughan CJ, in what is written as a gloss on Coke’s discussion of mandatory and remedial writs in Calvin’s Case, stated that writs of error did lie into all of England’s dominions to reverse judgments. His argument is based on a number of grounds, including that such writs lay from Ireland, and formerly from Calais, as well as a general concern that without such writs being available “judgments might be then given to the disadvantage or lessening of the superiority of the King”: at Vaughan 402 (E.R. 1133). This was not the first time that Vaughan had made such a suggestion, having previously alluded to such a writ being available: Craw v. Ramsey, supra note 79, at 135
Nevertheless, by the end of the 1600s, the common law courts had begun to exert jurisdiction over people and events in the New World. This was accomplished through an extension of the idea of ‘transitory actions’. Originally a device which allowed actions which arose in one county to be heard in another, the courts extended this by analogy to matters which arose in a ‘foreign land’, but could be heard by the central courts in England.
The early function of the jury as the “sayers of truth” was reflected in the requirement that juries be composed of men from the neighbourhood – de visineto.
Even after the function of juries began to change, this requirement largely remained. In general, de visineto meant from the same country, and the same hundred. By the end of the thirteenth century, this rule had begun to cause considerable inconvenience. As a result, the common law courts developed the distinction between local and transitory actions. A local action was one in which the events and facts relied upon by the plaintiff had a necessary connection to a particular place. The most obvious example was actions involving land, such as ejectment. Transitory actions, on the other hand, were those where there was no such necessary connection, such as actions for debt or breach of contract (indebitatus assumpsit) or assault. In the case of a local action, the plaintiff was bound to lay the venue truly. In the latter, the plaintiff could lay the venue in any county. After a brief period in which plaintiffs could lay transitory actions in any venue they chose, the requirement of laying the correct venue were reinstituted. Again, however, fictions were used to circumvent this requirement and the practice arose of adding after the name of the place in which the action arose “to wit at Westminster in
Vaughan 290 (E.R. 1079). 136
the County of Middlesex” or wherever the plaintiff wished to initiate the action.128
Thus, in Dowdale’s Case, Coke allowed that within England, matters which were transitory could be tried in any county, regardless of their county of origin. In such a case “for conformity and necessity” a place must be named in the writ, and that place could, for example, be a parish and ward within London.129
Initially, however, the rules on transitory actions did not apply beyond the realm.
Thus, at the dawn of the era of colonial expansion, Coke held, again in Dowdales’ Case, that the courts had no jurisdiction over even transitory actions where that action wholly arose abroad. Thus, where a contract was made abroad, and “the performance of it is wholly made, or to be done beyond sea … it is not triable in our law”.130 Despite this, by the end of the sixteenth century, the courts were using the device of transitory actions to extend their jurisdiction over matters which arose in the colonies.
One of the first areas in which the common law used an extended notion of transitory actions to acquire jurisdiction over foreign matters was with respect to matters traditionally dealt with by the Courts of Admiralty. Chapter Two discussed the use of the writ of prohibition to take jurisdiction from non-common law courts, including the civilian jurisdiction of the Admiralty. The courts of the Admiralty formed one of the major jurisdictions of civilian practice. It is not surprising, therefore, that it was frequently targeted by the common lawyers.131 These courts had jurisdiction over matters on the ‘high seas’. The common law generally left matters arising exclusively
128 For a short summary of the rise of the transitory action see the judgment of Herschell L.C. in British South Africa Company, supra note 123, at 618. Local actions were finally made triable in any county by 3 & 4 Wm. IV c. 42, s.22. 129 Dowdale’s Case (1605) 6 Co. Rep. 46b, at 47a (77 E.R. 323, at 324). 130 Ibid, at Co. Rep. 48a (E.R. 325) 131 This was particularly so in the case of Coke. In Smart v. Wolff, Buller J said of Coke that “he seems to have entertained not only a jealousy of, but an enmity against, that jurisdiction.”: Smart v. Wolff (1789) 3 T.R. 323, at 348 (100 E.R. 600, at 613). 137
on the high seas to those courts. However, few actions in reality did arise exclusively at sea, and in cases where foreign lands were involved, the common law courts often asserted jurisdiction over the matter, using an extension of the transitory action. This allowed the common law courts, for example, to take jurisdiction over a claim of breach of contract where that contract was made in Madrid. The notion of the transitory action was enlarged beyond allowing a common law court to try an action arising in another county, to allowing the common law to take action with respect to matters arising abroad which would otherwise be within the jurisdiction of the courts of Admiralty.
Plaintiffs who wished an action to be tried at common law, rather than by the civilian courts of the Admiralty, pleaded fictitiously, for example, that a contract was made ‘at
Paris, France, in the county of Kent’. The defendant was barred from replying that the contract was in fact made in the real France, or that there was no such place in Kent as
Paris, France.132 Once such a plea had been made, the common law court would assert jurisdiction and prohibit the Admiralty courts from hearing the matter.
A number of the cases examined above, in which the common law courts considered the rules applying to conquered colonies and developed the notion of the
‘uninhabited new land’ were before the courts because they concerned transitory actions. Just as had occurred with respect to actions arising in ‘foreign’ counties, actions which arose beyond the realm were said in the pleadings to have taken place within a parish and county in London. An example of such pleading can be found in the famous
Smith v. Brown, the case with which this Chapter commenced, which concerned an
“action for indebitatus assumpsit for a Negro sold in the Parish of the Blessed Mary of
132 Gray, C., The Writ of Prohibition: Jurisdiction in Early Modern English Law, Vol I, Oceana Publications, New York, 1994, at l. 138
the Arches in the Ward of Cheap”.133 In reality the person in question had been bought and sold in Virginia. Likewise the cases of Campbell v. Hall and Mostyn v. Fabrigas were heard in England because they were transitory actions.
Throughout the seventeenth century, it was accepted that jurisdiction could be asserted over contractual matters where the matter arose wholly abroad, including in the colonies. Late in the century, it was confirmed that the English common law courts could also take jurisdiction in tort cases, even where the matter arose in a colony governed by Spanish law. In Mostyn v. Fabrigas, an action was brought for trespass and false imprisonment by a native Minorquin (Fabrigas) against the Governor of Minorca, for actions committed in Minorca. Minorca had been ceded to Great Britain by the
Treaty of Utrecht, according to which the inhabitants continued to be governed by
Spanish law. Lord Mansfield stated that if the matter was transitory and arose within the realm, it may be laid in any county. Similarly: “So all actions of a transitory nature that arise abroad may be laid as happening in an English county.”134
In that case, Lord Mansfield described the fictions according to which pleadings were made and jurisdiction taken. In Mostyn itself, as in Smith v. Brown, the assault and trespass was pleaded to have taken place in Minorca, with a videlicet in the Parish of St
Mary Le Bow, in the Ward of Cheap. Lord Mansfield described the fiction thus:
“But the law has … invented a fiction; and has said, the party shall first set out the description truly, and then give a venue only for form, and for the sake of trial, by a videlicet, in the county of Middlesex, or any other county. But no Judge ever though that when the declarations said in Fort St George, viz. in Cheapside, that the plaintiff meant it was in Cheapside.”135
However, the form of the videlicet had to be exact. If the venue and videlicet
133 Smith v. Brown and Cooper, supra note 2, at Holt 495 (E.R. 1172). 134 Mostyn v. Fabrigas (1774) 1 Cowp. 161, at 177 (98 E.R. 1021, at 1030). 135 Ibid, at Cowp. 177 (E.R. 1030). 139
were incorrectly stated, the fiction would fail. Throughout the early modern period, and into the nineteenth century, the assertion of jurisdiction at common law by means of the writ required absolute precision. If it appeared on the face of the writ that the matter had indeed occurred in a foreign part, in other words if the videlicet were not correct, the court would have no choice but to turn down jurisdiction.
There were limits, however, to the extension of jurisdiction using transitory actions. The courts resolutely refused to exercise jurisdiction with respect to matters which were in their nature local and which arose outside the realm. In Skinner v. East
India Company, it was held that that part of the claim which dealt with transitory matters could be heard by the common law courts, but that they had no cognisance over the local portion of the action. Skinner purchased the islands of Baretha from the
Crown, and built a warehouse which he filled with goods for trade. His goods were seized, and possession of the island taken, by agents of the East India Company. It was held that while the courts at Westminster could hear actions for “taking away and spoiling his ship, goods, and papers, and assaulting and wounding his person, notwithstanding that the same was done beyond the seas. But as to the detaining and possessing of the house and islands … he is not relievable in any ordinary Court of
Justice.” 136 Similarly, in Shelling v. Farmer, Eyre CJ held that the seizure of a house in the East Indies was not triable in England,137 and in Doulson v. Matthews it was held that an action for trespass with respect to a house in Canada would not lie.138
Admittedly the courts were not always consistent with respect to the issue of what
136 Skinner v. East India Company (1668) 1 Howell’s State Trials 710. 137 Shelling v. Farmer (1725) 1 Str. 646 (93 E.R. 756). 138 Dulson v. Matthews (1792) 4 TR 503 (100 ER 1143). 140
constituted a local action. Nevertheless, the rule held until the 1980s.139
Following the lead of the common law courts, the courts of equity, particularly under the Chancellorship of Lord Hardwicke, also extended jurisdiction to include certain matters arising in the colonies. In fact, by carefully distinguishing between land, and contractual obligations arising with respect to that land, the Courts of Chancery pushed their jurisdictional boundaries beyond that normally assumed by the common law courts. In Penn v. Baltimore, which concerned an action for specific performance of a contract between William Penn and Lord Baltimore which had been entered into to settle a dispute as to the boundaries and limits of the Provinces of Maryland and
Pennsylvania the court assumed jurisdiction based on the contract.140 Similarly, in Lord
Cranstown, the court was willing to hear an action arising out of the purchase of an estate in the West Indies by a creditor seeking to hold it as security for a debt owed. In that case, Arden M.R. stated that the “cases clearly shew, that with regard to any contract made or equity between persons in this country respecting lands in foreign country, particularly the British dominions, this Court will hold the same jurisdiction as if they were situated in England.141 The basis of the Court’s assertion of jurisdiction was stated to be not that it acts “upon the land directly, but acts upon the conscience of the person living here”.142 However, where the action was brought on the land, rather than contract, the Courts of Chancery refused to extend jurisdiction. In Roberdeau v. Rous,
139 It was argued that the rules made under the Judicature Acts which abolished local venues had removed any impediment to the courts hearing local actions arising in foreign countries. However, the Judicature Acts were held not to confer any jurisdiction not held previously by the courts with the result that the English common law courts still did not have jurisdiction to hear a local action arising in a foreign country: British South Africa Co, supra note 123; Hesperides Hotels Ltd v Agean Turkish Holidays Ltd [1979] A.C. 508. The rule was finally abrogated by s.30 of the Civil Jurisdiction and Judgments Act 1982 (UK). In Australia the rule was abrogated by cross-vesting legislation and the adoption by the High Court of the rule of forum non conveniens. 140 Penn v. Baltimore (Lord) (1750) 1 Ves Sen 444 (27 E.R. 1132). 141 Lord Cranstown v. Johnston (1796) 3 Ves. Sen 170, at 182 (30 E.R. 952, at 959). 142 Ibid. 141
Lord Hardwicke held that the Courts of Chancery had no jurisdiction to deliver possession of a moiety of lands in St Christopher’s: “Lands in the plantations are no more under the jurisdiction of this court, than lands in Scotland, for it only agit in personam.”143
While the mechanism used was the transitory action, it was a continuation of a personal jurisdiction, based on ligeance, which allowed the King’s courts, the common law courts, to assert jurisdiction over matters abroad. The medieval concept of ligeance, discussed above, is visible in the cases on transitory actions. As was held in Calvin’s
Case, every person born within the ligeance of the King, even if outside the realm, is a natural born subject.144 In Mostyn v. Fabrigas, for example, Fabrigas was born after the treaty of cession, and was therefore a subject of the Crown. According to Mansfield L
“it is impossible there ever could exist a doubt, but that a subject born in Minorca has as good a right to appeal to the King’s Courts of Justice, as one who is born within the sound of Bow Bell.”145 All the King’s subjects had a right to be afforded justice by the
King’s courts. b. Justice in the King’s Dominions
One reason given for the assertion of jurisdiction by common law courts over the colonies by way of transitory actions was the prevention of a “failure of justice in the King’s Dominions”.146 However, this generalised concern for ‘justice’ was not enough to overcome a concern for proper jurisdiction and the need for every court to
143 Roberdeau v. Rous (1738) 1 Atk. 542, at 543 (26 E.R. 342, at 342). 144 Calvin’s Case, supra note 4, at 9b (E.R. 388); Coke, E. Sir, The First Part of the Institutes of the Laws of England; or, A Commentary upon Littleton, 19th ed. corrected, London, 1832 (1628), at 129. 145 Mostyn v. Fabrigas, supra note 134, at Cowp. 171 (E.R. 1027). 146 Per Shower, counsel for the plaintiff, Howell, in Howell v. Dutton, supra note 87, at Shower P.C. 30 (E.R. 21). 142
function within its proper channels.
In Mostyn v. Fabrigas, Lord Mansfield related two cases in which he had been involved. These cases are not identified, but involved facts arising in Newfoundland.
These two cases, and this part of his judgment in Mostyn, are the subject of some criticism in later decisions,147 primarily because they are seen as attempting to extend the jurisdiction of English common law courts to matters which are local to the colonies, in particular to cases of trespass to land in the colonies. However, these cases also show a concern for providing justice where, in the absence of the central courts taking jurisdiction over the matter, there arguably would be none. The first of these anecdotes involved Admiral Palliser and some fishing huts on the Labrador Coast:
“I recollect another cause which came before me; which was the case of Admiral Palliser. There the very gist of the action was local: it was for destroying fishing huts upon the Labrador coast. After the treaty of Paris, the Canadians early in the season erected huts for fishing; and by that means got an advantage, by beginning earlier, of the fishermen who came from England. It was a nice question upon the rights of the Canadians. However, the Admiral from general principle of policy ordered these huts to be destroyed. The cause went a long way. The defendant would have stopped it short at once, if he could have made such an objection, but it was not made. There were no local courts among the Esquimaux Indians upon that part of the Labrador coast; and therefore whatever any injury had been done there by any of the King’s officers it would have been altogether without redress if the objection of locality would have held. The consequence of that circumstance shows, that where reason fails, even in actions which in England would be local actions, yet it does not hold to places beyond the seas within the King’s dominions.”148
The second also involved matters taking place in Newfoundland and concerned similar facts to the Palliser Case. This time the facts involved an action against one
Captain Gambier for pulling down the houses of some sutlers. While it was argued before Lord Mansfield that the action was not tenable as it involved a local matter, the
147 See, for example, the judgment of Herschell L.C. in British South Africa Co., supra note 123, at 617ff. 143
objection was overruled on the ground that the action was personal and for damages, and thus within the cognisance of the courts, as well as because “otherwise there would be a failure of justice, for it was on the coast of Nova Scotia, where there were no regular Courts of Judicature, and if there had been, Captain Gambier might never go there again, and therefore the reason of locality in such an action in England did not hold.”149 Notably, Lord Mansfield’s view on this matter was not accepted by other courts which, as outlined above, continued to deny jurisdiction over local matters, even where there was no other forum.
The paramouncy of jurisdictional concerns in this context is illustrated by the later case of British South Africa Company v. The Companhia de Moçambique which concerned an action for trespass to land in South Africa. In that case, after a lengthy examination of the law in this area, Herschell L.C. concluded that the common law courts had no jurisdiction to try the matter at hand, despite the contention of the respondents that “there is no competent Court where the land is situate: there is no
Court in the world, except in this country, where the action can be tried.”150 In so determining, Herschell L.C. stated that “[i]t might be a sufficient answer to this argument to say that this is a state of things which has undoubtedly existed for centuries without any evidence of serious mischief or intervention by the legislature….”151 The conclusion that no court has jurisdiction would not have been sufficient for Lord
Mansfield. In Mostyn v. Fabrigas he made it clear that: “in every plea to the jurisdiction, you must state another jurisdiction.” To bar the remedy sought in an
148 Mostyn v. Fabrigas, supra note 134, at Cowp 181 (E.R. 1032). 149 British South Africa Co, supra note 123, at 620 per Herschell L.C., quoting from Mostyn v. Fabrigas. In the same case, Lord Halsbury also refers to Lord Mansfield’s comments in Mostyn v. Fabrigas. Although he is also compelled to disagree with Mansfield, he charitably assumes him to have been misreported on this matter: at 633. 150 Ibid, at 615 per Sir Henry James QC for the respondent. 144
English common law court, “you must show a more proper and sufficient jurisdiction: for if there is no other mode of trial, that alone will give the King’s Courts a jurisdiction.”152 Similarly in Earl of Derby v. Duke of Athol, Lord Hardwicke in
Chancery held that in a plea to jurisdiction it must be shown what other court has jurisdiction.153 However, in the end Lord Hardwicke was no more followed on this point than was Lord Mansfield. Thus, concerns about maintaining jurisdictional boundaries
(the English common law courts cannot hear local actions) are paramount over any generalised requirement to “provide justice”.
Of course, in the majority of cases there was a sufficient law by means of which the colonists’ claims could be judged. In the Americas, for example, generally speaking, colonies were either governed by Charter, under which the Proprietor made laws, and local legislatures and judicial institutions were established, or were conquered from the
French or Spanish, in which case the laws of those nations continued. The reluctance of the courts to intervene in matters properly within the cognisance of the colonial courts is shown not only in the cases on local actions, but is a thread that runs generally through the corpus of English colonial law. As the century wore on, the English common law courts began to recognise that just as they should not intervene in the municipal law of another country they should not intervene in the municipal law of England’s colonies. It is at this point that the colonial cases appear to intersect with the nascent eighteenth century corpus on choice of law. If the law of a conquered colony was sufficient to dispose of the matter, the common law courts allowed the matter to be judged by that law, regardless that the outcome was not the same as it would have been had the
151 Ibid, at 625. 152 Mostyn v. Fabrigas, supra note 134, at Cowp. 172 (E.R. 1028). 153 Earl of Derby v. Earl of Athol (1748-9) 1 Ves. Sen. 202, at 203 (27 E.R. 982, at 983). 145
common law been the lex loci. However, it should be understood that the rules on jurisdiction, on transitory and local actions, were proper to the common law.
Conclusion
What then was the position at the time of the ‘settlement’ of the colony of New
South Wales? The distinction between colonies acquired by settlement, and those acquired by conquest, which would be so difficult for colonial courts to apply, had been established. However, the body of jurisprudence which instituted this form of colony was exceedingly small. As British Imperial constitutional law was directed to providing laws by which the colonists could be governed, it failed to take into consideration the circumstances of colonies which were not in fact uninhabited. In fact, the doctrine that uninhabited colonies included those where the inhabitants were ‘backward’ or
‘uncivilised’ is not even a part of the jurisprudence of the English common law courts at this time. It was derived from political theory, in particular the writings of Vattel and those who preceded him, and made its way into English law via the decisions of local colonial courts. In Freeman v. Fairlie, a decision of the Indian Court of Appeals, Master
Stephens summarised the position thus:
“I apprehend the true general distinction to be in effect between countries in which there are not, and counties in which there are, at the time of their acquisition, any existing civil institutions and laws; it being in the first of those cases [a] matter of necessity that the British settlers should use their native laws, as having no others to resort to; whereas in the other case there is an established lex loci which it might be highly inconvenient all at once to abrogate, and therefore it remains till changed by the deliberative wisdom of the new legislative power. … In the fact that this distinction has always, or almost always, practically corresponded with that between the absence and the existence of a lex loci, by which the British settlers might, without inconvenience, for a time be governed;”154
Further, given the restrictions on hearing local actions, the English common law 146
courts could not have heard matters relating to indigenous rights to land. Despite Lord
Mansfield’s occasional attempts to extend jurisdiction, the courts were simply not prepared to go as far as hearing local actions. The result is that only cases concerning personal actions could ever be heard by the English courts. When such cases were eventually heard in England, they were decisions of the Privy Council, acting as the final court of Appeal for the colonies.155
However, the common law which was exported to the new ‘settled colonies’ of
Canada, Australia and New Zealand was one which was bounded by jurisdictional concerns. As established in Chapter Two, the common law’s self-authorised vision of itself was as the unified, univocal law of the land and of the realm. It was superior to other non-common law jurisdictions and, in line with this, had a project of expansion at the expense of these jurisdictions. It also saw itself as the guardian of jurisdictional boundaries, policing the limits and extent of not only its own jurisdiction, but that of others. That same concern for jurisdictional competences can be observed in the case law on the colonies. In general, however, as seen above, these jurisdictional competences were not difficult to determine. The colonies from which the English courts heard matters were conquered colonies. With the exception of Lord Mansfield’s
Newfoundlandian examples, they were jurisdictions which had appropriate bodies of law by means of which colonists rights could be determined.
Notably, sovereignty was not at issue in the above cases. British Imperial constitutional law was not concerned with sovereignty or questions of the legitimacy of the acquisition of colony. English common law courts did not question these matters.
154 Freeman v. Fairlie (1828) 1 Moo. Ind. App. 305, at 325 (18 E.R. 117, at 128). 155 See, for example, St. Catherine's Milling Case (1888) 14 A.C. 46; Amodu Tijani v. Southern Nigeria (Secretary) [1921] 2 A.C. 399; In Re Southern Rhodesia, supra note 116. 147
Rather, the business of the courts was determining the legal disputes of the colonists.
Therefore, they determined the domestic law which applied, in order that they could decide the disputes before them. Further, the intimate connection between sovereignty and the common law which characterises modern Australian jurisprudence, as outlined in Chapter One, is not evident in these cases. British sovereignty was quite compatible with Spanish law or French law being the law of the colony, or even with government by royal prerogative. While the common law could be the law of the colony, either because it was declared to be so by the Crown, or because the colony was uninhabited, there was no automatic equation of sovereignty with the common law. In other words, the conflation of the two which characterises native title decisions is not present. There is no axiomatic link between them. The common law was not always the law of the colony and, as will be seen in the next Chapter, even when it was the law of the colony, it was not always the only law of that colony.
On the other hand, jurisdiction remained important to the English common law courts. This is hardly surprising given that these same courts were involved every day in jurisdictional disputes within the domestic sphere. Colonies with a number of different legal systems were tolerated, even encouraged, under the banner of British Imperial constitutional law. However, for common law courts it was important that judicial bodies continued to work within their appropriate defined channels.
It was determined by the Colonial Office that the colony of New South Wales had been acquired by ‘settlement’.156 Thus, the inevitable conflicts which arose inter se the indigenous inhabitants, or between coloniser and colonised, had to be determined within the framework of British Imperial law and by resort to the logics and knowledges
156 Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31, 148
of the common law. Given the common law’s own history, it is not surprising that it was the traditional common law legal method of ordering bodies of law to which the colonial courts turned to solve these disputes. As the common law was the law of the new colony, it was the ordering of jurisdiction which was the founding order of the new colony.
Australian Government Printing Service, Canberra, 1986, at 34. 149
Chapter Four
Common Law Jurisdiction Denied
“[f]or protection, and for responsibility in relation to the white man, the black is regarded as a British subject. In theory this sounds just and reasonable; but in practice how incongruous becomes its application!”1
Whatever it was, it was the boy’s intention to confront it. …The creature, almost upon them now and with Flash at its heels, came to a halt, gave a kind of squawk, and leaping up onto the top rail of the fence, hung there, its arms outflung as if preparing for flight. Then the ragged mouth gapped. ‘Do not shoot’ it shouted. ‘I am a B-b-british object!?’2
Introduction
Given the importance of jurisdiction, and of maintaining jurisdictional channels, to the English common law courts, why did the common law courts of the colony of
New South Wales seem less interested in talking about it? Why is any substantive language (or understanding) of jurisdiction missing from our legal vocabulary? While there are a number of reasons why concerns about jurisdiction eventually became less
pressing,3 the short answer is that jurisdiction was still important in colonial Australia, although this importance has been largely expunged from our legal memory. Some early judges were prepared to accept that Australian Aborigines had laws, however uncivilised and barbarous those laws might appear to English eyes. Where it was
1 R. v. Billy, Dowling CJ, 4 November 1840, Supreme Court of New South Wales, sourced from the Sydney Herald, 5 November 1840, reproduced at
accepted that Aborigines did have laws, the questions asked by the court about the amenability of those Aborigines to the common law were phrased in the traditional language of jurisdiction. They conceived of the relationship between two laws as being a matter of jurisdiction. The judges considered whether the common law courts had the right to intervene in another jurisdiction. As seen in Chapter Two, that was a question frequently asked in England by common law courts with respect to non-common law jurisdictions throughout the early modern period. For these early colonial judges, there was no assumption that the common law immediately became the law of the territory, and of all the people in it, although they did accept that the Aborigines were to be considered as subjects of the Crown, and thereby entitled to its protection. Further, questions relating to sovereignty and acquisition of territory were not visible in the majority of judgments. The courts accepted the designation by the Colonial Office of the colony of New South Wales as settled, even though the problems of this were obvious to them. The concerns of the colonial court in New South Wales were local justice, and those concerns were often conceptualised and argued using the language of jurisdiction.4
Unfortunately, acceptance by the common law judges that Aborigines had ‘laws’ did not last long. By the late-nineteenth century the common law had asserted itself as the unitary and univocal law of the new territory. In many ways, it attained a status that it had failed to in England. In effect, it achieved its own self-representation. In England, there were still a number of other competing jurisdictions.5 In New South Wales, by contrast, once Indigenous jurisdictions had been denied, the common law became for all
4 For a work recognising the importance of jurisdiction to early arguments concerning indigenous autonomy see Cooke, S., “Arguments for the Survival of Aboriginal Customary Law in Victoria: A Casenote on R v. Peter (1860) and R. v. Jemmy (1860)” (1999) 5 Aust. J. Leg. Hist. 501. 5 For a list of these see Chapter Two. 151
intents and purposes univocal. It not only became univocal, but according to the High
Court in Mabo (No. 2), it always had been. The law forgot a time when it had been any other way.6 For Brennan J, there had not been a time in legal memory when the common law had not been the law (and by implication the only law) of the territory. As will be seen below, the image in Mabo (No. 2) of univocality is undermined by an examination of early colonial case law, in which a more uneven, hesitant and pluralistic picture is presented. Arguments over jurisdiction, and the recognition of Aboriginal law, lasted until late in the nineteenth century.
The decision in the late nineteenth century that Indigenous law did not constitute law removed the need to order relations between bodies of law. Simply put, there was no other body (or bodies) of law with which to order relations. The yardstick used to justify and measure whether Aboriginal ‘laws’ amounted to laws in the western sense, as in other colonies, was that of ‘civilisation’. Too far down the scale of civilisation, and it could be denied that Indigenous jurisdictions constituted law. At the other end of the scale (such as in India), it was recognised that laws still existed, and it became a matter of working out which body of law, or jurisdiction, applied and to whom and in what circumstances it applied. The fact that no treaties had been signed with the Aborigines made it easier to determine that they had no laws. In many of the other British colonies, the signing of treaties had made it difficult for courts to later deny that the Indigenous inhabitants had ‘laws’ and hence retained some internal jurisdictional capacity. In the
United States, the fact that treaties had been signed materially contributed to the finding by the Supreme Court in the famous decision in Cherokee Nation that the Indian
6 Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, at 36 [hereinafter Mabo (No. 2)]. 152
Nations retained some sovereignty and hence internal jurisdiction.7 In New Zealand, it was also concluded that the Maori had sovereignty, so as to be able to enter the Treaty of Waitangi. With circular logic, as Pocock points out, in some jurisdictions, Indigenous
“tribes were recognised by treaty and jus gentium as “nations”, or gentes, and endowed with the capacity to exert rights and hold property – often, of course, to no other end than that they should be deemed capable of parting with it or selling it”.8 Having signed a treaty such as the Treaty of Waitangi, later courts were, often reluctantly, forced to acknowledge that the Maori retained their own laws and customs.9 The capacity to enter a treaty ensured that the signatories were considered to be on the ‘right’ side of the civilisation marker. In the Australian colonies, by contrast, such an acknowledgement through the signing of treaties was absent. As a result, the legal ordering of relations between the common law and the laws of the indigenous inhabitants remained the traditional mechanism used by the common law for ordering relations between itself and any other bodies of law: jurisdiction.
This chapter discusses common law jurisdiction over Aboriginal Australians in the colony of New South Wales. It points to jurisdiction as a foundational concept of legal ordering in the new colony and considers the early colonial jurisprudence of the
Supreme Court of New South Wales. For many years these cases were virtually
7 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). See also Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). 8 Pocock, J., “Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi”, (1998) 43 McGill L.J. 481, at 486-7. 9 For an early acknowledgement of aboriginal title and autonomy in New Zealand see The Queen (on the prosecution of McIntosh) v. Symonds (1847) N.Z.P.C.C. 387. However, this case was followed by a period in which judges were less willing to acknowledge Maori rights, and attempted to read down the Treaty of Waitangi: see, for example, Wi Parata v. Bishop of Wellington [1877] 3 N.Z. Jur. (NS) 72. For a modern recognition of customary rights in New Zealand, founded in common law rather than on the Treaty of Waitangi, see Te Runanganui o Te Ika Whenua Inc Society v Attorney General [1994] 2 N.Z.L.R. 20; Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 N.Z.L.R. 553; Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682 and Ngati Apa v. Attorney-General [2003] 3 N.Z.L.R. 643. 153
unknown. In recent years, Bruce Kercher has made available many decisions of the
Supreme Court of New South Wales, as well as more recently of the Tasmanian
Supreme Court.10 As a result, early cases which considered the status of Indigenous
Australians have become more readily available. Some, such as Murrell and Bonjon, are reasonably well-known, and have been the subject of considerable academic comment.11
Others, such as Ballard and Boatman are less so. Despite now being available, a surprisingly small amount has been written on them.12 Some, such as Re-War, a decision of the Full Bench of Magistrates in Western Australia and only recently rediscovered by Kercher, remain almost totally unknown.13 Yet they show that the picture presented in Mabo (No. 2) of the uniform importation of the common law was not entirely accurate. Equally importantly, for present purposes, they demonstrate that the early interactions between colonists and colonised were argued in terms of jurisdiction, and that while the government may have considered Australia a settled colony, some judges were still unclear how to proceed on this basis. These cases are discussed in some detail, in order that the picture provided in the case of the early application of the common law to the ‘natives’ can later be contrasted with the story of
10 These are available at
the importation of the common law told by Brennan J in Mabo (No. 2).
As will be seen in Chapter Five, the ‘advent’ of native title in the 1990s finally forced the High Court to acknowledge that indigenous ‘normative systems’ (to use the language of the High Court) still exist. Just as within Australian legal history there has been a cycle of recognition, denial and re-recognition of indigenous jurisdictions, there has also been a cycle within the case law on native title. This time, however, the cycle is reversed: denial of indigenous law is followed by recognition, only to have that recognition effectively taken away again. In Mabo (No. 2) the High Court almost entirely avoided acknowledging the continued existence of indigenous laws.14 Mabo
(No. 2) not only reproduces, but reinforces the common law’s self-representation of itself as unified and univocal. This was further reinforced by decisions such as Walker and Coe.15
In later cases, however, it became impossible to ignore the ramifications of native title. Indigenous jurisdictions were not simply rendered null and void by the imposition of the common law on the land of Australia. As McNeil points out “the practical consequences of this approach are … startling. Not only would pre-existing rights to land and personal possessions disappear, but contractual and even family relationships would be nullified in law as well.”16 In Fejo, therefore, we were told that
“native title is the intersection of two laws”.17 According to the court, despite extinguishment at common law, “the bundle of interests which we call “native title” would continue, for some time at least, within the world of [A]boriginal custom. It may
which this case is discussed. 14 This is discussed in some detail in Chapter Five. 15 Walker v. New South Wales (1994) 69 A.L.J.R. 111; Coe v. Commonwealth (1993) 68 A.L.J.R. 110. 16 McNeil, K., Common Law Aboriginal Title, Clarendon Press, Oxford, 1989, at 180. 17 Fejo v. Northern Territory (1998) 195 C.L.R. 96, at 128. 155
still do so.”18 By Yorta Yorta, however, the High Court was again in retreat, unable to conceptualise a legal order other than in the terms of singular law and singular sovereignty.19 Caught by its earlier recognition of indigenous jurisdictions, it attempted to reconcile its own jurisprudence by acknowledging that these jurisdictions functioned until sovereignty, but denied law-making capacity to indigenous jurisdictions thereafter.
To pre-figure the rest of the argument in Part I, therefore, Chapter Five looks to the loss of jurisdiction from the language of the Australian common law, and to the instantiation of the univocal common law over the Australian nation. It examines recent case law and the High Court’s attempts to deal with the spectre of indigenous jurisdictions and to maintain the, as the court sees it, singular state sovereignty and integrity of the common law. Despite the loss of the traditional common law language of jurisdiction it is clear that jurisdictional concepts still underpin the creation of the legal interest of native title. In the final three chapters, which together make up Part II of this thesis, three particular technologies of jurisdiction are examined, in order to show the way in which these practices contributed to the final legal form of native title.
Early Colonial Jurisprudence
In contrast to the multiplicity of jurisdictions which still characterised the structure of English law in 1788,20 on importation to New South Wales, the common law became, at least as far as the colonists were concerned, the pre-eminent law of the
18 Ibid. 19 Members of the Yorta Yorta Community v. Victoria (2002) 214 C.L.R. 422. 20 As Arthurs points out, in this period there were still over three hundred local courts which exercised civil jurisdiction, as well as arbitrators, domestic tribunals and administrative tribunals. Many of these courts did not apply common law, but administered distinctive sub-systems of local and special law. Altogether these bodies disposed of many more cases than the Westminster Courts: see generally Arthurs, H., “Special Courts, Special Law: Legal Pluralism in Nineteenth Century England”, in Rubin, G., Sugarman, D., Law, Economy and Society: 1750-1914: Essays in the History of English Law, Professional Books Ltd, Oxford, 1984. 156
new colony.21 Further, it was no longer split between the three central common law courts and other local courts as in England, but achieved a degree of centralisation which was not be accomplished in England until the reforms of the late 1800s.
From the beginning, the British government authorities seem to have assumed that New South Wales was gained by settlement.22 However, the legal justification for this, the notion of terra nullius, developed more slowly through a series of decisions of the New South Wales Supreme Court between 1829 and 1889, starting with R v.
Ballard23 and culminating in the Privy Council decision in Cooper v. Stuart.24 Cooper v.
Stuart, far from being the first case on terra nullius, as it is sometimes called,25 was in fact the culmination of a series of decisions by means of which common law jurisdiction was gradually, and unevenly, asserted over Indigenous Australians.
Arguably, terra nullius was not ‘elevated’ to a doctrine until the decision in Mabo (No.
2) itself.26
21 In fact, even the place of equity in the new colony was uncertain. The First Charter of Justice, which created the Court of Civil Jurisdiction, omitted equity from the explicit list of the civil court’s jurisdiction. For this point, and generally on the limitations of equitable jurisdiction, see Doe. Dem Harris v. Riley, Supreme Court of New South Wales, 12 October 1832, Forbes CJ, Dowling and Stephen JJ, sourced from the Sydney Herald, 18 October 1832, and reproduced at
While the English common law courts had set down the basic distinction between settled and conquered colonies which determined whether common law was to be imported as the law of the colony, it was the local courts and, in the case of the colony of New South Wales, the New South Wales Supreme Court, which was left to decide the position of the Indigenous inhabitants. As discussed in the last chapter, the decisions of the English Court of King’s Bench gave no real guidance on this matter.
Rather, judges turned to ‘principle’, as well as decisions and practices of other jurisdictions, and the writings of international jurists, primarily Vattel.27 The colonial judges were left to reconcile what precedent they had with the reality of local conditions.
The early cases in which jurisdiction over Aborigines was before the court were for the most part criminal matters, often, but not exclusively, involving the crime of murder. The reasons for this are obvious. Crimes are visible and have victims, and therefore difficult for the colonial authorities to ignore. Other matters, which at common law would be misdemeanours or civil matters, remained within the sphere of indigenous laws.
Due to the lack of formal reporting for many years, it can be difficult to tell in some cases what arguments were put to the court by counsel. However, it seems that objections to the court’s jurisdiction were common, in New South Wales at least until the decision in Murrell, and sporadically thereafter, and in other colonies until the
1860s.28 In the 1832 case of R. v. Boatman or Jackass and Bulleye, for example,
Critical Analysis”, (1996) 18 Syd.L.R. 5. See also Kercher, “The Origins of the Myth of Terra Nullius in Early New South Wales Courts”, supra note 12 and van Krieken, R., “From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship”, (2000) 23 U.N.S.W.L.J. 63. 27 Vattel, E., de (Chitty, J. ed), Droit des Gens ou Principles de la Loi Naturelle Appliques aux Affairs des Nations et des Souvrains, T. & J.W. Johnson & Co., Philadephia, 1863 (1758). 28 R. v. Murrell (1836) 1 Legge 72 [hereinafter Murrell]. The Legge version was only published in 158
Dowling J asked counsel “if he renewed his objection to the jurisdiction of the court in this case?”29 When Counsel indicated that he did as it was “in his opinion, a most important question, whether the aboriginal natives were subject to our laws”, Dowling J responded that “the regular course of proceedings was to plead to the jurisdiction”.
According to the report, he “admitted the subject to be one of deep importance to the colony”. Colonial cases which involve the prosecution of Indigenous defendants generally commenced with a plea to the jurisdiction.
This part goes through Australian colonial jurisprudence in some detail. As noted above, while some of these cases are relatively well-known, others have received no attention, in part because until recently they have been largely unknown. The recovery of decisions which had until recently been erased from our legal memory enables a story to be told of judicial views in colonial Australia on the legal relations between common law and Indigenous law. Undoubtedly the story is not complete.
There may be additional decisions which have not yet been recovered which will add to the complexity and diversity of early Australian approaches to common law jurisdiction over the Indigenous inhabitants.
1896, and relied on newspaper accounts. An edited version of this decision has also been republished at (1998) 3 A.I.L.R. 414. This more recent version has been reproduced by Kercher from files at State Records (Supreme Court, Miscellaneous Correspondence relating to Aborigines, State Records, New South Wales, 5/1161, pp. 210-216). It differs in some respects to the Legge version. In addition, Kercher notes that only Burton J’s decision was reported. The judges’ own versions of their decisions are not in the New South Wales Archives: Kercher, “R. v. Ballard, R. v. Murrell, R. v. Bonjon” supra note 11, at 410. Murrell is also now available at
a. R v. Ballard: Common Law Jurisdiction Denied
In the earliest known case, Ballard, the court determined that the common law had no jurisdiction over criminal matters committed by Aborigines inter se. Ballard was not, however, the first case involving an Aboriginal plaintiff. It had been earlier determined by the South Wales Supreme Court that it had jurisdiction over a matter where the property or persons of a British subject was at issue.30 A similar decision had been reached by the Tasmanian Supreme Court in the very first case before it, R. v.
Tibbs,31 and in the decision of the Western Australian Court of Quarter Sessions in R. v.
Gear (alias Obediah).32 Further, although white colonists were frequently not indicted for the murder of Indigenous Australians or, if indicted, were often acquitted, it was the position of the court that they were amenable to the court’s jurisdiction. However, it was quite a different matter as to whether there was common law jurisdiction where the matter was entirely inter se the indigenous inhabitants of the colony.
In Ballard, the Attorney-General sought the direction of the Court as to whether an Aborigine could be prosecuted for the alleged murder of another Aborigine, “both having been in a savage state at the time of the transaction in question”.33 Ballard had allegedly killed another Aboriginal man called Borrondire or Dirty Dick near the
Domain, not far from Sydney. The Court (consisting of Forbes CJ and Dowling J) was
30 R. v. Lowe, Supreme Court of New South Wales, 18 May 1827, Forbes CJ and Stephen J. The main source for Lowe is the Australian, 23 May 1827. The case was also reported in the Sydney Gazette, 21 May 1827. R. v. Lowe can be found at
of the opinion that “the prisoner ought to be discharged for want of jurisdiction”.34
According to Forbes CJ it had never been the practice of the Courts of New
South Wales to interfere in matters or quarrels which have taken place between the natives themselves. Indeed, it was not British policy to intervene in such matters.
However, where possible, conflicts between British subjects and the natives were subject to the Court’s jurisdiction. Forbes CJ made a clear distinction between “the savage and civilised state of man”.35 He described the defendant, Dirty Dick, as
“…wandering about the country, and living in the uncontrolled freedom of nature.”36 In so doing “[i]n some way or other he … caused the death of another wild savage.”37
According to Forbes CJ the most important distinction between civilised and savage man is that civilised man has “given up certain natural rights in exchange for the advantage of social security & other benefits arising from the institutions of civilised life.”38
Given the context of the case, the most important of these civilised institutions was identified by Forbes CJ as the Magistracy. As Indigenous Australians had ‘no recognised institutions’, Forbes considered that the natives could not be subject to the laws of England. How could they understand them? How could they conduct an adequate defence without an understanding of English language, laws and customs?
Rather:
“It is known as a matter of experience that the savages of this part of the globe, have a mode of dressing (sic) wrongs committed amongst themselves, which is perfectly agreeable to their own natures &
33 Ballard, supra note 23, at 412. 34 Ibid, at 413. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 161
dispositions, and is productive, amongst themselves, of as much good, as any novel or strange institution which might be imparted to them. In the absence of a magistracy which is an institution peculiar to an advanced state of refinement, the savage is governed by the laws of his tribe - & with these he is content. … They make laws for themselves, which are preserved inviolate, & are rigidly acted upon.”39
Importantly, Forbes CJ concludes that:
“[The Aborigines] make laws for themselves, which are preserved inviolate, & and are rigidly acted upon. However shocking some of their institutions may be to our notions of humanity and justice, yet I am at a loss to know how, or upon what principle this court could take cognizance of offences committed by a barbarous people among themselves. … There is good sense and reason in the principle that in all transactions between the natives & British subjects, the laws of the latter shall prevail, … [b]ut I know of no principle of municipal or national law, which shall subject the inhabitants of a newly found country, to the operation of the laws of the finders, in matters of dispute, injury, or aggression between themselves. … With these general observations, I am of the opinion that this man is not amenable to English law for the act he is supposed to have committed.”40
In a brief judgment, Dowling J agreed with Forbes CJ and added that:
“Until the aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought justify us in interfering with their institutions even if such an interference were practicable.”41
In Ballard, therefore, the Court was not prepared to treat the new colony as
39 Ibid. 40 Ibid, at 413-4. 41 Ibid, at 414. One point that should not be forgotten is that as the century wore on it also became easier to assert jurisdiction. The reality of colonial administration was that the Crown could only “gradually extend its sway over the territory over which it held nominal sovereignty”: Hill, R., State Authority, Indigenous Autonomy: Crown-Maori Relations in New Zealand/Aotearoa 1900- 1950, Victoria University Press, Wellington, 2004, at 31. In the early 1800s, when control of the colony was limited to areas immediately surrounding settlements, there was often little prospect of effectively asserting jurisdiction. As settlement spread out, the taking of jurisdiction became more practicable. To what extent the courts’ approach reflected the realities of colonial administration is unclear, although the judgments above reveal that the judges were well aware of the inherent difficulties of actually asserting jurisdiction over ‘the natives’. On the legal aspects of this see also McNeil, Common Law Aboriginal Title, supra note 16, at 112. 162
‘desert uninhabited’. Notably, having begun by stating that this was a case “sui generis, and the Court must deal with it upon general principles, in the absence of any fixed known rule upon the subject..”,42 Forbes CJ and Dowling J cite no authority for their conclusions. However, Forbes CJ does refer to practice in North America: “… it appears to me that it is wise principle to abstain [from interfering in matters between aborigines] in this Colony, as has been done in the North American British Colonies, with the institutions of the natives, which upon experience will be found to rest upon principles of natural justice.”43
Several years later Dowling J reiterated the view that the court did not interfere in matters inter se the Aboriginal population. In R. v. Boatman or Jackass Dowling J specifically followed the decision in Ballard. On prosecution of Boatman for sheep stealing, in response to counsel’s objection to jurisdiction, he stated that:
“The first question for consideration is whether the aboriginal natives of this Colony are subject to the jurisdiction of this court by the law of England. The general principle acted upon, I believe, with respect to these people since the foundation of this as a British Colony, is to regard them as being entirely under the protection of the law of England for offences committed against them by the white settlers & subjects of the Crown, & on the other hand to render them liable for any infraction of the British Law which may be injurious to the persons or properties of His Majesty's white subjects. We interfere not with their own habits, customs or domestic regulations, but leave them to adjust their own disputes & differences amongst themselves. Dirty Dick's case Vol. 22 p. 98.”44
It is not clear exactly what status Forbes CJ and Dowling J accorded the ‘habits and customs’ of the Indigenous inhabitants. On the one hand, their Honours referred to the ‘shocking nature’ of their institutions, which were against ‘notions of humanity and
42 Ballard, ibid, at 413. 43 Ibid. 44 R. v. Boatman or Jackass and Bulleye, Dowling J., 23 February 1832, Proceedings of the Supreme Court of New South Wales, Vol. 64, Archives Office of New South Wales, 2/3247, available at
justice’. On the other, they clearly felt that the Aborigines did regulate their own relations in a manner which was ‘perfectly agreeable to their own natures and dispositions’ and which was ‘productive … of much good’. Whether they thought these customs amounted to ‘laws’, or whether that was even a relevant consideration, is not clear. It is worth noting, however, that these decisions were made in an era which pre- dated the strict instantiation of legal positivism, in which ‘law’ and ‘custom’ became so sharply distinguished.45 Whatever their categorisation of indigenous ‘habits and customs’, they recognised both that there was a serious question of jurisdiction to be answered, that Indigenous Australians were not automatically amenable to the common law, and that interference in the internal affairs of the Aborigines was inappropriate in absence of their consent to be subject to the common law.
Ballard and Boatman were two of the earliest decisions of which we have a record in which a colonial court grappled with the issue of the amenability of an indigenous group to the common law. As outlined in Chapter Three, while the English common law courts had set out the basic dichotomy between settled and conquered colonies which underpinned British imperial constitutional law, they had had nothing to say about the position of the indigenous inhabitants of these colonies. Thus, in Ballard and Boatman, the Supreme Court of New South Wales had no real judicial guidance as to how such a matter should be determined. Subsequent cases in Canada, New Zealand, as well as Australia itself, looked to the famous decisions of the United States Supreme
Court in the Cherokee Cases, in which that court determined that Indian Nations had the status of ‘domestic dependent nations’, and hence retained subordinate sovereignty and
45 For a discussion of the way in which custom became seen as ‘degenerate’ and lesser than law because of its association with non-Europeans see Fitzpatrick, P., The Mythology of Modern Law, Routledge, London, 1992. 164
internal jurisdiction.46 However, these had not been decided at the time of Ballard.
Further, while Freeman v. Fairlie, a decision of the Privy Council from India, was determined the previous year, it would not be available to the New South Wales
Supreme Court for some time.47 Indeed, as stated by Forbes CJ himself in Ballard “this is a case sui generis, and the Court must deal with it upon general principles, in the absence of any fixed known rule upon the subject.”48
In the absence of any judicial guidance on the matter, the New South Wales
Supreme Court remained true to its own traditions: it answered a plea to jurisdiction by considering whether there was any basis on which it could legitimately assert jurisdiction and determined that there was not. Having done so, it denied jurisdiction.
Just as in England the common law limited the circumstances in which it interfered with the internal transactions of non-common law jurisdictions, in Ballard Forbes CJ declined to interfere in matters more properly the province of the ‘customs and domestic regulations’ of the indigenous inhabitants. As explained in Chapter Two, non-common law jurisdictions traditionally remained autonomous, unless there was a conflict between the two jurisdictions. This occurred where a non-common law jurisdiction purported to decide a matter which the common law determined was properly within its jurisdiction. In that case, the common law would assert its jurisdiction to determine the matter. In the colonies, both the New South Wales Supreme Court and Tasmanian
Supreme Court had determined that they properly had jurisdiction in any matter involving a colonist or their property. Where, however, the transaction was internal to the other jurisdiction – as the court considered matters inter se the aborigines were – the
46 Cherokee Nation, supra note 7; Worcester v. Georgia, supra note 7. 47 Freeman v. Fairlie (1828) 1 Moo. Ind. App. 305 (18 E.R. 117). 48 Ballard, supra note 23, at 412. 165
common law declined jurisdiction.
In denying jurisdiction in the above cases, Forbes CJ was influenced by a number of factors. He clearly thought that the Aborigines were self-regulating, regardless of the status of their customs. He also recognised the difficulty of applying the common law to a people who simply could not understand it or its institutions, as well as the unfairness of applying laws to peoples who were unaware of those laws. As a result, and in the absence of any precedent, counsel for the defendant and the court simply proceeded in the manner in which common law courts had long proceeded. A writ is issued, the defence pleads to the jurisdiction, the court rules on jurisdiction. The court in Ballard determined that the court did not have jurisdiction, that the matter should more appropriately be dealt with elsewhere: “it is known as a matter of experience that the savages of this part of the globe, have a mode of addressing wrongs committed amongst themselves.”49 The court did recognise, however, that the matter was one of jurisdiction, and as with all common law courts of the time, they took matters of jurisdiction seriously. b. R. v. Murrell, Re We-war: Common Law Jurisdiction Asserted
Despite these decisions, by the time that Murrell was heard some four years later, the Court had modified its approach to the issue of jurisdiction, finding ultimately that the Aboriginal inhabitants were subject to common law jurisdiction with respect to crimes committed inter se. Murrell, although reasonably well-known in New South
Wales legal circles, was not reported until the 1896 in Legge’s Reports and, as noted by the Australian Law Reform Commission, the case came to be regarded as authority for the proposition that there was no place for the recognition of Aboriginal law until well
49 Ibid, at 413. 166
into the 1970s.50 Yet, as will be seen from the following discussion of Murrell, the fuller version of the case now available suggests that the judgment was more hesitant and equivocal than was previously thought.
Jack Congo Murrell was charged with the murder of another Aborigine, Bill
Jabbingee, Jabingi or Jabenguy. Not surprisingly, given the authority of Ballard,
Murrell’s counsel, Stephen, argued that the Supreme Court had no jurisdiction to try him as New South Wales was not a deserted country at the time of European settlement, for it was neither conquered nor ceded. The “tribes have continued to be, and still are regulated and governed by such usages and customs as aforesaid, - and not by the laws and statutes of Great Britain”. They had been regulated by these customs and usages
“since time immemorial”. The court had no jurisdiction except over subjects of the
Crown, which the defendant was not. According to these usages and customs Murrell could “be made to stand punishment for the same, and can and may be exposed to such and so many spears as the friends and relatives of the said Jabbingee … may think proper to hurl and throw against the body of him.”51 In reply, the Attorney General argued “Great Britain did not recognise any independent power to exist in a British territory, but what was recognised by law”.52 As will be discussed in Chapter Five, the argument that no independent power can exist in a British territory is echoed some one hundred and seventy years later in the judgment of Gleeson CJ, Hayne and Gummow JJ in Yorta Yorta.53
Notably, the Crown did not attempt to argue that the Indigenous inhabitants had
50 Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31, Vol 1, Australian Government Publishing Service, Canberra, 1986, at 35; See Tuckiar v. R. (1934) 52 C.L.R. 335; R. v. Wedge [1976] 1 N.S.W.L.R. 581. 51 Murrell, taken from the Sydney Herald, 8 February, 1836, supra note 28. 52 Murrell, taken from the Sydney Gazette, 23 February 1836, at ibid. 53 Members of the Yorta Yorta Community v. Victoria, supra note 19. 167
no laws, or even, as far as can be judged from the reports, that these laws were insufficiently civilised to be recognised as such. Rather, the problem was that of recognition of multiple jurisdictions, on the basis that to do so would be to set up ‘an independent power’. This argument was made (and accepted) despite the fact that in a number of colonies, most notably India, it had been recognised by the courts that parallel laws co-existed under British sovereignty. In Freeman v. Fairlie, for example, it had been determined by Master Stephens that both English common law and ‘hindoo’ law functioned within the area subject to the delegated sovereignty of the British East
India Company.54 This argument also, of course, denies the history of English law itself.
However, both parties accepted that the issue was one of jurisdiction and, potentially, of co-existing bodies of law: could the common law and Aboriginal law co-exist in the same physical space, under the aegis of singular British sovereignty?
The Court’s judgment was delivered by Burton J, with whom Forbes and
Dowling CJJ concurred. The latter two judges had delivered judgment in Ballard and
Boatman. Burton J held that the Supreme Court had jurisdiction to try Murrell. There is no explanation given as to why Forbes CJ and Dowling J essentially came to a contrary conclusion to their judgements in Ballard. Nor was any outright reference made in the decision to Ballard. However, there is some evidence that Forbes CJ was originally inclined to take the view that jurisdiction should not be found. First, in the judgment handed down by Burton J on behalf of the court several phrases have been crossed out.
In particular, he notes that he “does not consider it necessary to state at large, the reasons upon which I have founded my individual opinion”.55 Originally this statement
54 Freeman v. Fairlie, supra note 47. This case is returned in to Chapter Five. 55 Murrell, Forbes CJ, Dowling and Burton JJ, in banco, 11 April 1836, sourced from the Supreme Court, Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5.1161, pp 210-216, supra note 28. 168
was followed by the words “as I should otherwise have found it my duty to do had I remained alone in that view”.56 The clear implication of such a statement is that Forbes
CJ was ‘brought around’ to the same view as Burton J.
Second, as Kercher points out, previous versions of Murrell have ignored the report of the original indictment. According to the Australian, Forbes CJ stated in reply to Stephen’s plea to the jurisdiction that in:
“…his opinion … the plea put in by Mr. Sydney Stephen on the part of the Aborigine accused of the murder of one of their tribe was perfectly just; as for any acts of violence committed by the natives against each other, even if amounted to death, they were subject to the custom of their own laws.” 57
Forbes CJ seems not only to have been of the opinion originally that jurisdiction should be denied, but also refers to the Aboriginals as subject to their own laws. Why did he change his mind? Again, we are indebted to Kercher for his research in this area.
While there is no definitive answer on this point, Kercher notes that Forbes was ill at this time, and unable to sit in court for two weeks. He was also generally under attack from conservative forces, such as the Sydney Herald, for his “liberality”, in particular towards emancipists.58 Whether this influenced his change of heart is unknown.
According to Burton J, New South Wales had been unappropriated at the time that it was taken into possession by the King of England. In particular, he was of the opinion that the entire area between 10º and 39º South, and as far as 129º E. was in the actual possession of the Crown.59 Thus, as the “English Nation has obtained and
56 Murrell, ibid. See Kercher’s comments at fn. 6. 57 Murrell, taken from the Australian, 9 February 1836, available at
exercised for many years the rights of Domain and Empire over the country thus possessed … the law of England is the law of the land”.60
Burton J further stated that “[t]his Court has repeatedly tried and even executed
Aboriginal natives of this Colony, for offences committed by them upon subjects of the
King, ever since the opening of the Court in May 1824; and there is no distinction in law in respect to the protection due to his person between a subject living in this Colony under the King’s Peace and an alien living therein under the King’s Peace.”61 Burton J founded common law jurisdiction on the fact that the Indigenous inhabitants had no laws recognisable by civilised states, and backed it up with reference to the statutory jurisdiction of the Court. On the first point, he held that:
“1st although it be granted that the aboriginal natives of new Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.”62
In private, Burton J appears to have had little respect for Aboriginal laws, which seems surprising given the relatively generous statement, above, that they are entitled to be “regarded … as a free and independent people”. It also provides some context for the statement that they are “entitled to the possession of those rights which as such are valuable to them.” While this can be interpreted to mean ‘rights to land’, in light of
Burton J’s views it may also have meant something lesser. He noted that their:
Major-General Sir Richard Bourke, 24 August 1835. The importance of mapping as a technology of jurisdiction is the subject of Chapter Six. 60 Ibid. Again, as will be seen in Chapter Five, this statement pre-figures later native title determinations. The notion that the common law is the law of the land was central to Brennan J’s judgment in Mabo (No. 2). 61 Ibid, at 416. 62 Murrell, taken from judgment of the court, supra note 55. 170
“practices are only such as are consistent with a state of the grossest darkness & irrational superstition and although in some cases being a show of justice – are founded entirely upon principle particularly in their mode of vindication for personal wrongs upon the wildest most indiscriminatory notions of revenge”.63
While it is impossible to speculate with any accuracy, it may have been that
Burton J’s private views were tempered in the final judgment by the opinions of other members of the Court. Whatever the explanation, Burton J’s private comments only reinforce his judgment: that one basis on which common law jurisdiction could be asserted was the lack of civilisation of the Aboriginal inhabitants of the colony.
Burton J further noted that by statute the Courts of Judicature in New South
Wales had been given “cognizance of all pleas civil, criminal, or mixed, in all cases whatsoever as fully and amply to all intents and purposes in New South Wales … as His
Majesty’s Courts of Kings Bench, Common Pleas and Exchequer at Westminster or either or them lawfully have or hath in England.”64 Thus, according to the Court, by enacting the Australian Courts Act the British Parliament had, as an act of sovereignty, asserted jurisdiction over a defined area with respect to a range of matters. The provisions of that Act specified not only the subject matter of the court’s jurisdiction, but the geographic extent of that jurisdiction. In essence, the Court applied a territorial mode of attaching jurisdiction rather than the status mode which characterised the same
Court’s decisions in Ballard and Boatman. In those judgments no reference had been made to the territorial scope of jurisdiction. The predominant mode of jurisdiction had
63 Murrell, Burton J’s notes for Judgement, in Miscellaneous Correspondence Relating to Aborigines, supra note 55, at fn 4. In a similar vein see also Burton J’s judgment in Macdonald v. Levy (1833) 1 Legge 39. 64 Murrell, ibid. The Act referred to was the Australian Courts Act (1828) 9 Geo. IV c. 83. This Act replaced the 1823 Charter of Justice, which established the Supreme Court of New South Wales and the Supreme Court of Tasmania, and which was issued under the authority of the New South Wales Act (1823) 4 Geo. IV c. 96. For a description of the early colonial courts see Kercher, An Unruly Child, supra note 22. 171
been based on status – either as Aboriginal or European - rather than on territory.
A similar approach to that of the court in Murrell was taken in 1842 in the
Western Australian case of R. v. We-War.65 The report of this case in the Inquirer asserts that We-war was “the first native who had been tried by our laws for an offence committed against one of his own people…”. It therefore occasioned “considerable interest”.66 Unsurprisingly, counsel for We-war, E.W. Landor, took the same approach as his colleagues in the other colonies: he pleaded to the jurisdiction of the court (in this case the full Bench of Magistrates). In so doing, however, he made no mention of any other decisions, either from Western Australia itself, or the other Australian colonies, which may have provided precedent. He may well not have known of them, as they were all unreported at the time. Landor declared that “… the natives have laws of their own, and stated punishments for particular crimes, and therefore the prisoner had most probably been already either punished or acquitted for the same offence, by the only laws he was acquainted with or bound to obey …”.67 Whether the colony was acquired by occupation or conquest, the common law could not be imposed upon the natives without their consent, nor was there any specific act of parliament which attempted to so do. For Landers, application of the common law was an ‘all or nothing exercise’: “if they [the natives] be subject to our laws, they must be subject to the whole machinery of the law, and ought to be punished for minor offences committed among themselves, as
65 R. v. We-war, 12 January 1842, sourced from The Inquirer, 12 January, 1842, and available at
slander, perjury, theft, indecent exposure of the person, &c. &c.”.68
The Bench relied on Vattel in order to justify the taking of the colony by mode of occupation. Such a taking was justified where “a large extent of the country is roamed over by wandering savages, who make no use, or a very trifling use, of the soil”.69 However, the Bench also explicitly recognised that Vattel did not “proceed to prescribe by what common principles or rules the intercourse of the Aborigines, within the limits so occupied, and the newcomers is to be regulated.”70
For the Bench, the fact of sovereignty led indisputably to jurisdiction. Thus, as occupation had led to sovereignty, the Bench upheld the jurisdiction of the court.
“… as jurisdiction is clearly an inseparable incident of sovereignty, it follows that the British Nation having … taken possession and assumed the sovereignty of a territory bounded by certain parallels and meridians, the law of that nation must be paramount co- extensively with that territorial sovereignty.”71
Of all the colonial cases, this one most closely ties sovereignty, jurisdiction and territory. It does so in a manner which is more reminiscent of the understanding of the relationship between sovereignty and jurisdiction which characterise modern native title decisions than of other contemporary colonial cases. However, while the Bench was of the opinion that jurisdiction was plenary, it also rejected Landers’ contention that if jurisdiction were to be asserted, the indigenous inhabitants must be subject to ‘the whole machinery of the law’. To so do would be to “incur the risk of burlesquing the persons of justice, or turning them into engines of wanton oppression.”72 Accordingly, jurisdiction should only be asserted over crimes which infringed the “sacred rights of
68 Ibid. 69 Ibid. 70 Ibid. 71 Ibid. 72 Ibid. 173
persons, which regard the safety of life and member…” of which “the vindictive spilling of blood is unquestionable one”. While the Bench acknowledged that until that point the court had not interfered with the “laws and usages” of the natives, as between each other”, British criminal law should be applied because the Bench could not
“submit to consider it possible that the local government, or any local authority connected with the administration of Justice would be disposed to apply that law in a wantonly oppressive manner.”73
The implication from the judgment is that while the Bench considered the
Indigenous inhabitants to be ‘savages’, they did not deny that they had their own laws.
Despite this, they were still prepared to assert jurisdiction over Aboriginal Australians in cases involving the rights of persons – in particular crimes. This contrasts with
Murrell in which the court asserted jurisdiction on the basis that the Aborigines were not sufficiently civilised for their ‘customs’ to be considered as ‘laws’. It was, of course, this latter approach which became accepted: that the aborigines were too uncivilised for their laws to be recognised as such, with the result that jurisdictional questions fell away. It is not until the modern native title decisions that we again see a recognition of the existence of Aboriginal laws accompanied by assertion of common law jurisdiction.
As will be seen, Re We-war and the High Court decision in Yorta Yorta have much in common.
Both Murrell and Re We-war specifically referred to the geographic limits of jurisdiction. For both courts sovereignty was territorial in nature, and jurisdiction was tied to territorial sovereignty. Sovereignty was singular, hence jurisdiction was singular.
In both these cases, therefore, the compression of sovereignty, territory and jurisdiction
73 Ibid. 174
which characterises our contemporary understanding of the Australian legal system can first be discerned. Murrell and Re We-war present a univocal understanding of law which, although not unchallenged, became orthodoxy, obscuring earlier visions of jurisdiction and multiplicity based on status, rather than territory. Was it a necessary consequence of recognising territorial sovereignty that jurisdiction become understood as similarly univocal? Did singular sovereignty have to mean singular jurisdiction? This is a matter returned to in Chapter Five.
Murrell set the standard for almost all subsequent decisions. No doubt aided by the unreported nature of Ballard and Boatman, Murrell commenced the process of erasing any legal memory of a time in which the common law’s jurisdiction was anything other than complete and uniform.74 The process of erasure, however, was not without the occasional dissent and without significant disquiet on the part of judges who subjected Aboriginal defendants to the common law trial process. Nor was the process of erasure uniform. The amenability of aborigines to common law jurisdiction for matters inter se remained a live issue not only in the colony of New South Wales, but in other Australian colonies for another forty years. c. The ‘Anomaly’ of R. v. Bonjon
Like Ballard, Murrell and We-war, Bonjon concerned the murder of an
Aborigine by another Aborigine.75 Bonjon was charged with murdering Yammowing.
74 Murrell still continues to exert considerable influence, despite the availability of other colonial decisions. See, for example, the recent report of the Northern Territory Law Reform Committee inquiry into Aboriginal customary laws, in which the only colonial case referred to was Murrell: Northern Territory Law Reform Committee, Towards Mutual Benefit: An Inquiry into Aboriginal Customary Law in the Northern Territory, Background Paper 2, 2003, at 9. 75 R. v. Bonjon (1841), published in (1998) 3 A.I.L.R. 417. This report is based on that of the Port Phillip Patriot of 20 September 1841. It was also reported in the Port Philip Herald of 21 September 1841. This latter version was eventually published in the British Parliamentary Papers, Papers relating to Emigration, the Aboriginal Population and other Affairs in Australia 1844, Irish University Press, Shannon, 1969, Vol 8, at 143-156: Kercher, “R. v. Ballard, R. v. Murrell, R. 175
Bonjon’s counsel argued that the court had no jurisdiction over aborigines for crimes committed inter se. New South Wales was occupied. This only gave the “Crown a right to the soil, but not any authority over the Indigenous inhabitants as subjects, unless there be some treaty, compact or other demonstration of their desire to come under
English law”, although this did not “interfere with the right of the sovereign to punish
Aborigines who attack the persons or property of British settlers.”76 He further argued that it was “impossible to apply the whole [of the English criminal law] to them.
Aborigines have their own modes of punishment, under their own regulations. Their regulations, like those of all societies, extend to murder. The aborigines live in self- governing communities. English law, then, was not the only law in the colony, and it could not be imposed upon them by terror.”77
In reply, the Crown Prosecutor relied upon the distinction between civilised and uncivilised societies, consigning Aborigines to the latter:
“… it is lawful for a civilised country to occupy the territory of uncivilised persons, as long as they leave them sufficient land to enable them to acquire subsistence. As a consequence of such settlement, the common law was transferred to the Port Philip District of New South Wales. All persons within that area owe a local allegiance to the Queen, and are bound by English law even for conflicts inter se. They are protected by the law and bound to obey it. Sufficient land having been left for them, they have no original rights to the territory of Port Philip, but merely an easement over the soil. Bonjon is as amenable to English law as a British subject.”78
It is notable that both the Crown Prosecutor in this case, and Burton J in Murrell asserted common law jurisdiction over crimes committed inter se, but nevertheless were prepared to concede that the Aboriginal inhabitants were not necessarily to be
v. Bonjon”, supra note 11, at 411. 76 Ibid, at 417. 77 Ibid. 78 Ibid. 176
considered British subjects, and that they did retain some rights of possession or use of the land.
In delivering judgment, Willis J expressly noted that he did not consider himself bound by the decision in Murrell. He further stated that the issue as to jurisdiction was only with regard crimes committed by the Aborigines inter se:
“Are in fact the aborigines (except with reference to aggressions on their part against the colonists, and with regard to that protection from the aggressions of the colonists which the aborigines are indisputably entitled to) subject to the law of England as it prevails in this colony?”79
Willis J himself was more than aware of the magnitude of the question that faced him. With respect to whether Bonjon was amenable to the court’s jurisdiction he stated:
“This, and this alone is the question; and it is a question, affecting as it does a vast and hitherto neglected, oppressed, and deeply injured multitude of the human race, more worthy of the judicature of a Roman Senate than of an obscure and single colonial Judge;”80
Willis J held that New South Wales was not unoccupied at the time of the colonists arrival. Rather, the Aborigines were to be considered as distinct, though dependent allies. They were not British subjects, and as such were not amenable to
English law with regards to crimes committed inter se. In coming to this conclusion, he looked at the opinions of various members of the colonial community as to the capacity of the Aborigines and the quality of their society, noting that men as diverse as Saxe
Bannister, a former Attorney General of New South Wales, the Rev. John Dunmore
Lang, Head of the Presbyterian Church, and John Batman, were of the opinion that the
Aborigines had “laws and usages of their own.”81
79 Ibid, at 418, emphasis in the original. 80 Ibid. 81 Ibid, at 420. 177
Willis J further noted the state to which the Indigenous inhabitants had been reduced. There were frequent scenes of drunkenness, and their numbers in the colony were reduced, he estimated, to less than 10,000. Rather than seeing this, however, as evidence of their lack of civilisation (and hence lack of laws), he instead decried the inactions of the government in protecting them. If they were British subjects, would they not be protected by the government?
“But why I would ask if the Aborigines be deemed to all intents and purposes to be British subjects and amenable to British laws – as it is now contended that they are; Why have not the Magistracy? Aye! And why not the Executive direct the Magistracy if negligent in their duty, to put forth the protecting arm of legal authority to save these wretched beings from these crimes – the crimes of infanticide and drunkenness – to save them from themselves, and from the effects of the inoculation of European vice?”82
Like colonial judges in other jurisdictions, Willis J recognised the shortcomings of the conquered/settled dichotomy of the English cases. While according to the law of nations, New South Wales may have been acquired by discovery or ‘simple occupation’, New South Wales:
“was however not unoccupied … at the time it was taken possession of by the colonists, for “a body of the aborigines appeared on the shore, armed with spears, which they threw down as soon as they found the strangers had no hostile intention.” This being the case, it does not appear there was any conquest, and it is admitted that there has hitherto been no cession under treaty.”83
Thus, the colony fitted into none of the accepted common law categories. This was no attempt to argue that the colony was conquered, rather than settled. Rather,
Willis J accepts that the colony is settled, but refuses to accept fully the consequences of such a determination under British Imperial constitutional law: that the colony is factually and legally empty and uninhabited. The same pragmatic stance was eventually
82 Ibid, at 421, emphasis in the original. 83 R. v. Bonjon, supra note 75, at 422, emphasis in the original. 178
taken by the majority of the High Court in Mabo (No. 2) when faced with the same dilemma.84 Neither Willis J, nor any judge in a colony, attempted to apply indigenous law to the settlers, which would be the result of applying the conquered colony rule. The limitations of British Imperial constitutional law having been exposed, Willis J turned, as had his colleagues in earlier cases, to the law of nations, and Vattel in particular.
While Vattel was quoted at Bar by Counsel, Willis J went further and extracted significant portions of Vattel’s Book I, ‘Of Nations Considered in Themselves’, in particular the section relating to sovereignty and the ‘Indians’ of North America. As the
Aborigines had shown by their resistance to white colonisation they were not a conquered people, nor was the land unoccupied, therefore by analogy to North America the Aborigines were in the position of a dependent nation which had placed itself under the protection of another, but not thereby forfeited its sovereignty. They were entitled to be considered self-governing communities.85
Willis J bolstered this argument by reference to Joseph Story’s Commentaries on the Constitution of the United States, referring in particular to that section which essentially restated Marshall CJ’s famous decision in Johnson v. M’Intosh.86 That case established the doctrine of pre-emption, whereby the Indians were seen to retain possession of their lands, but by right of discovery the Government acquired the sole right to purchase the lands from them. It is not clear that Willis J had actually read a copy of Story’s Commentaries. In his judgment he quotes an extract from Story which
84 See Mabo (No. 2), supra note 6, at 40-42 per Brennan J, at 81-83 per Deane and Gaudron JJ, at 181-182 per Toohey J. 85 R. v. Bonjon, supra note 75, at 423. 86 See Story, J., Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before The Adoption Of The Constitution, Vol I, Hillard Gray and Co, Boston, 1833, at Ch. 1, § 7; Johnson v. M’Intosh 21 U.S. (8 Wheat.) 543 (1823). Story’s Commentaries were highly influential around the common law world. Story sat on the United States Supreme Court in the cases of Cherokee Nation and Worcester v. Georgia, 179
in turn was from a speech by the Governor Sir George Gipps to the Legislative Council on a Bill respecting claims to grants of land in New Zealand. Nevertheless, the extract he refers to does contain direct reference to Johnson v. M’Intosh. Further, that extract from Story also incorporates Marshall CJ’s judgments in Worchester v. Georgia, in which he defines the Indian Nations as being domestic dependent nations.87
Finally, Willis J noted that Hobson, the Governor of New Zealand, had recently entered into a treaty with the ‘aborigines of New Zealand”, which vested sovereignty in the Crown, but recognised that the aborigines were a separate and independent people.
He was “at a loss to discover how the aborigines of New Zealand can be considered in a different light to those of Australia Felix”.88 This was particularly so given that he considered the two to be under the same government, as territorial limits in the
Commission under which New South Wales was established and governed included the
North Island of New Zealand.89 Surely if one group had the capacity to enter a treaty and were to be considered as a distinct people the same must be so for other groups within the same territory? For completeness, Willis J also referred to the position of the
‘Maroons’ in Jamaica and the ‘Charibs’ in St Vincent, as well as the “unchristian practices of suttees and the barbarous rites of Jughernaut which were permitted to prevail” in India.90 Finally, the situation of the Irish and Brehon law is thrown in for good measure.91
In conclusion Willis J held that “[f]rom these premises rapidly indeed collected,
concurring with Marshall CJ’s judgments. 87 This argument, that the aborigines are a dependent nation, was subsequently rejected by the High Court in Coe v. Commonwealth, supra note 15. See further Chapter Five. 88 R. v. Bonjon, supra note 75, at 423. 89 Ibid, at 421. 90 Ibid, at 424. 91 Ibid, at 425. The interaction of ‘Brehon law’ with the common law is discussed in some detail in Chapter Seven. 180
I am at present strongly led to infer that the Aborigines must be considered and dealt with, until some further provision can be made, as distinct, though dependent tribes governed among themselves by their own rude laws and customs. If this be so, I strongly doubt the propriety of my assuming the exercise of jurisdiction in the case before me.”92 In the end, Bonjon was acquitted, and it was therefore unnecessary for
Willis J to finally determine the matter of jurisdiction. It appears, however, from the tenor of the above judgment that he was prepared to deny the applicability of the common law. However, not only was Willis J’s decision not followed, but he was reprimanded for this decision, and reassigned to a new post. In the end, the case against
Bonjon did not go ahead, and he was handed over to the Aboriginal Protectorate. He subsequently escaped and was killed in payback.93
Willis J’s judgment in Bonjon was often considered to be an ‘aberration’, a decision which was simply out of step with the majority opinion on the applicability of the common law to Indigenous Australians. Undoubtedly, this reflects the unreported nature of the earlier decisions in Ballard, Boatman and Bonjon itself, as well as subsequent decisions, discussed below, which also cast doubt on common law jurisdiction. Of these early cases which denied jurisdiction, Bonjon was the best known.
However, it was Murrell which rose to prominence, remembered when earlier decisions had long been forgotten, in part no doubt due to being reported. As Cooke puts it
“[l]egal memory is made in law reports.”94 Other decisions virtually disappeared from the legal landscape. None of the early cases were referred to in Mabo (No. 2), the majority judgments referring instead to better known colonial decisions found in the
92 Ibid. 93 Sutherland, A, Victoria and its Metropolis, Vol I, Melbourne, 1888, at 249, quoted in ALRC, Recognition of Customary Laws, supra note 50, at 39. 94 Cooke, “Aboriginal Customary Law in Victoria”, supra note 4, at 225. 181
English Reports and the later Australian decisions such as Cooper v. Stuart. On the other hand, in R v. Wedge, Rath J found the reasons of the court in Murrell “as valid today as they were when judgment in that case was given…”.95 It is not surprising, therefore, that by the time of the decision in Mabo (No. 2) it was accepted as axiomatic that there had only ever been one jurisdiction in Australia, that of the common law, a view reinforced by the decision in Mabo (No. 2) itself.96 d. Continuing Uncertainty: R. v. Peter, R v. Jemmy
Despite later views of Bonjon as an ‘anomaly’, the issue of common law jurisdiction over matters inter se was not considered by contemporary courts to have been conclusively determined in Murrell. Case law continued to be inconsistent on this point, not only in New South Wales itself, but in the new colonies of Victoria and South
Australia.97 Arguments as to indigenous autonomy, and the survival of customary law, continued to be argued using the language of jurisdiction. Decisions of the courts in
Victoria and South Australia are even less well-known than those of the early New
South Wales Supreme Court, discussed above.
In 1860, the Supreme Court of Victoria heard two cases in which the issue of the amenability of Aboriginal defendants to the criminal law was raised. 98 Despite Murrell
95 R. v. Wedge, supra note 50, at 587. 96 This is despite the judgment of Blackburn J in Milirrpum v. Nabalco (1971) 17 F.L.R. 141, infra and Chapter Five. For an excellent piece on legal memory and the High Court’s use of legal history in Mabo (No. 2) and Wik, see Godden, L., “Wik: Legal Memory and History” (1997) 6 Griffith L.R. 122 [The Wik Peoples v. State of Queensland (1996) 187 C.L.R. 1]. 97 South Australia and Victoria were established as colonies in 1836 and 1851 respectively. 98 R. v. Peter (1860), reported in the Argus, 29 June 1860 and the Herald, 29 June 1860. R. v. Jemmy (1860), reported in the Argus, 7 September, 1860, Age, 7 September 1860. For a wide-ranging discussion of these two cases, which is beyond the scope of this thesis, see Cooke “Aboriginal Customary Law in Victoria”, supra note 4. Cooke reproduces the original reports from the Argus, Age and Herald in an appendix. As these are the only reproductions of the decisions, I have relied on these reports in the following discussion of these two cases. For a very brief comment on these cases see also Kriewaldt, Justice M., “The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia”, (1960-2) 5 U.W.A.L.R. 1, at 18. 182
it was clear that the matter of amenability of common law was not considered to have been determined. In fact, as Cooke points out, Murrell was not even referred to in Peter or Jemmy and “was certainly not given the prominence in Victoria that it has subsequently acquired”.99 Just as with the early cases of Ballard and Boatman, neither
Peters nor Jemmy were reported, although they were eventually noted under the title
‘Criminal Law’ in the first edition of the Australian Digest in 1936.100
Peter was the first of the two cases heard. The accused, Peter, “a blackfellow”,101 was tried for violating a girl under ten years old, who was described by the court as “an Englishwoman”.102 The case came before the court on a special plea, which questioned the jurisdiction of the court to try an Aboriginal native of the colony.
It was argued that Peter was “an aboriginal native of New Holland, and was born out of the allegiance of the Queen, that he belonged to the separate and independent tribe of
Ballan, and that he never acknowledged the allegiance of the Queen, and that the tribe had its own laws and customs…”.103 Dr Mackay, for the accused, argued that:
“[t]here were only three ways by which a nation could acquire jurisdiction over foreigners, especially savages, and these were by purchase, conquest and discovery. As regards the jurisdiction of England, the case of the aborigines of Australia was analogous to those of the red men of North America before there was any treaty for the cessation [sic] of land. In 3 Kent’s Commentaries, 461, it was set forth that the authority of Europeans was that of discoverers of an uncivilised country, and was good only against other Europeans who might follow, but gave no authority over the aborigines.”104
As well as referring to American authority, Dr Mackay also referred to the example of Brehon law, pointing out that “so late as the time of William III, the King’s
99 Cooke, “Aboriginal Customary Law in Victoria”, supra note 4, at 224. 100 Ibid. 101 R. v. Peter, taken from the report in the Argus, reproduced in Cooke, ibid, at 238. 102 R. v. Peter, taken from the report in the Herald, reproduced in Cooke, ibid, at 237. 103 Ibid, at 234-5. 104 Ibid, at 235-6. 183
writ would not run across the Shannon, and the inhabitants of Ireland beyond that river remained unconquered. Only three of the provinces of Ireland were conquered, and in them the Brehon laws remained in force until the people [by] their own act, by a meeting at Lismore, abrogated the Brehon laws, and placed themselves under the
English laws.”105
Given that the victim was not indigenous, it is hardly surprising that the court held that Peter was amenable to the common law. As outlined above, this was the approach that had been taken in New South Wales and Tasmania, although the court referred to neither of these jurisdictions in reaching its determination. In both those jurisdictions it had been held that when a matter involved either a non-indigenous accused or victim, the common law had jurisdiction. According to the report in the
Argus, the court held that “the Queen’s writ runs throughout this colony and that British law is binding on all peoples within it; and that the conviction was good.”106 That brief statement gives the impression that the Court was unanimous in its determination that no room was left for indigenous legal autonomy. That was certainly the opinion of Sir
William Stawell, the Chief Justice, who dismissed the plea on grounds that a failure to assert jurisdiction would be tantamount to acknowledging more than one (sovereign) power operated in the colony. This was a concern which would be echoed over one hundred and sixty years later in the High Court’s decision in Yorta Yorta. According to
Stawell CJ:
“[t]o admit that the Court had no jurisdiction over an aboriginal native because he belonged to an independent tribe, would be to admit that there were two sets of independent powers in the colony in opposition to each other, and that the British judges were to be restricted by the alleged laws of the native tribes. There could not be imperium in
105 Ibid, at 236-7. 106 R. v. Peter, taken from the report in the Argus, in ibid, at 238-9. 184
imperio.”107
Barry J, however, while holding that jurisdiction should be found in cases where
“the offence was committed on an Englishwoman”, was less clear that this should be the case where matters occurred inter se.108 He was, of course, not called to decide. The issue arose, however, shortly after in Jemmy.
As in Peter, in Jemmy at trial the issue of jurisdiction was reserved as a special case for the full court. Jemmy was tried and convicted of manslaughter for the murder of Betsy, an Aboriginal woman, described as his ‘lubra’, or wife.109 Counsel for Jemmy objected to the jurisdiction of the court, as this was a crime committed inter se.
In Peter, Dr Mackay had argued that the court had no jurisdiction, as Peter’s tribe had “its own laws and customs”. They were an independent tribe. He stopped short, however, of expressly claiming that the Ballan were sovereign. Rather than claiming sovereignty, Mackay couched his arguments in the language of jurisdiction. In
Jemmy, Adamson analogised the position of Indigenous Australians to that of the
‘native Indians’. Again, rather than outright claiming that Jemmy and his tribe retained sovereignty, he classed then as ‘subject’ or ‘dependent’. While in the American context the idea that an Indian nation was a dependent nation brought with it the connotation that it retained some limited sovereignty, Adamson focussed on the jurisdictional question. According to Adamson, the American cases showed that “in cases of dependence or qualified subjection, the subject or dependent race may obtain their immunity from the jurisdiction of the courts of the dominant race”.110
The decision of the Court as reported in the Argus and Age is brief. According to
107 R. v. Peter, taken from the report in the Herald, in ibid, at 237. 108 Ibid. 109 R. v. Jemmy, taken from the report in the Argus, in ibid, at 239. 110 Ibid, at 240. 185
the Chief Justice:
“It makes no difference whether the victim were an English-woman or a native. The jurisdiction of the court is supreme, in fact, throughout the colony, and with regard to all persons in it.”111
As in Peter, however, Barry J was less certain that common law jurisdiction was supreme. He did reject the argument that the Aborigines could be considered dependent nations by analogy to American law “as the aborigines had never been recognized as a separate nation here…”.112 He appears, however, to have understood that it was not necessary to recognise Indigenous Australians as retaining some sovereignty in order to found jurisdiction. According to the report in the Argus, he stated that Adamson’s arguments were “virtually a plea to the jurisdiction. It is not suggested what other jurisdiction could be named, so as to ‘give a better writ’.”113 In so saying, Barry J seems to suggest that had another jurisdiction been named, some consideration could have been given to the plea. Such a reading is supportable, as Barry himself made just such a plea when acting as counsel for Bonjon some nineteen years earlier.114 Barry’s argument before Willis J was similar to that made by Mackay and Adamson.115
According to Cooke, Barry argued that “the Aborigines had a jurisdiction of their own in which they took notice of acts of violence by members of one tribe against another”.116 Further, the occupancy of Port Phillip could:
“confer no authority whatsoever over the aboriginal inhabitants as subjects, unless there be some treaty or compact, or public demonstration of some kind on the part of the natives, by which they
111 Ibid. 112 R. v. Jemmy, taken from the report in the Age, in ibid, at 241. 113 R. v. Jemmy, taken from the report in the Argus, in ibid, at 240. 114 Cooke, “Aboriginal Customary Law in Victoria”, supra note 4, at 221. 115 Barry’s arguments before Willis J in Bonjon were reported in the Port Phillip Patriot, 18 and 20 September 1841: ibid, at 222, fn84. There is no reproduction of the reports from the Port Phillip Patriot. I have, therefore, relied on Cooke’s recount of these reports: ibid. 116 Cooke, ibid, at 222. 186
testify their desire to come beneath the yoke of the law.”117
Most importantly, Barry also contended that two separate jurisdictions could exist in the same place: “[h]e cited Mostyn v. Fabrigas, in which the accused was said to be entitled to choose between Spanish and English law, and cited the existence of
Brehon law in Ireland, French law in Canada, Dutch law at the Cape of Good Hope, and
(referring expressly to Willis’s own experience) Danish law in British Guiana. The two laws – British and Aboriginal – could, Barry said, both exist in the same place.”118
Interestingly, Barry J’s later implicit criticism of Counsel in Jemmy for not pleading to another jurisdiction echoes almost precisely that of Lord Mansfield in Mostyn, in which
Lord Mansfield made it clear that: “in every plea to the jurisdiction, you must state another jurisdiction.”119
Both the Chief Justice and Barry J also gave judgment in the later Victorian case of In Re Neddy Monkey.120 Barry J’s judgment in Neddy Monkey has been cited as a case in which the court denied any possibility of indigenous autonomy.121 However, a reading of the actual judgment suggests that again Barry J did not wish to exclude the possibility of recognising Aboriginal law. Neddy Monkey was, along with three others, charged with the murder of another Aboriginal, Sydney Bob. This time, counsel did not object to the jurisdiction of the court, but rather the compellability of Sally, described as
Neddy Monkey’s ‘lubra’, to give evidence against him. Thus, the case turned on the question of whether she could be considered as his wife. Barry J’s objections lay not with the issue of whether the court could admit evidence of Aboriginal customs in order
117 Ibid. 118 Ibid. 119 Mostyn v. Fabrigas (1774) 1 Cowp. 161, at 172 (98 E.R. 1021, at 1028). See Chapter Three for a discussion of Lord Mansfield’s judgment in this case. 120 In Re Neddy Monkey (1861) 1 Wyatt and Webb Reports (L) 40. 121 See, for example, Sarre, R., “Aboriginal Customary Law”, paper presented at ALTA Anniversary 187
to determine this (in other words whether the court could recognise a marriage according to Aboriginal law), but with the quality of the evidence provided. According to Barry J “evidence of the meaning of the word “lubra”, or of the facts constituting marriage according to the rites and ceremonies of these people” was required.122 The general rules of evidence were not to be “broken down” by the “assertion of vague rites and ceremonies”.123 It is this last reference to “vague rights and ceremonies” which has been read as a rejection of Aboriginal customs and laws as ‘laws’. However, as the
ALRC commented in its report on Customary Laws, Barry J’s judgment rather amounted to a suggestion “that recognition might be possible if appropriate evidence was available”. Further, “[a] decision which had first been framed in evidentiary terms
… became an uncompromising assertion of law”:124 namely that common law jurisdiction was plenary and excluded the possibility of Aboriginal jurisdictions having any remaining force. Thus, in the later case of R. v. Cobby, Martin CJ of the New South
Wales Supreme Court stated:
“… to take the statement of their customs from one of themselves [the Aborigines], is to go too far. We may recognise a marriage in a civilised country, but we can hardly do the same in the case of these aborigines, who have no laws of which we can take cognizance. We cannot recognise the customs of these aborigines so as to aid us in the determination as to whether the relationship exists of husband and wife.”125
Less is known about the approach in South Australia as little work has yet been done to recover early cases. One exception is the decision of Cooper J of the South
Australian Supreme Court who, according to Castles, refused in 1846 in R v. Larry to
Conference, 1995,
apply British law to an Aborigine who had killed another Aborigine, arguing that a legislative directive was necessary if this was to be the case.126 However, this may have been because of the impossibility of finding an interpreter, rather than because of a willingness to recognise indigenous jurisdictions per se.127 Again according to Castles, by 1848, Cooper J had reluctantly accepted jurisdiction over matters inter se, although he was of the view that the full penalty for the particular crime should not necessarily be imposed.128
Civilisation as a Jurisdictional Marker
The notion of ‘civilisation’ was readily adopted in the eighteenth century as the yardstick by which the acquisition of territory could be justified.129 The ‘discovery’ and
‘settlement’ of the new world was “the defining event of the modern age”.130 Its justification was, therefore, “seen as a leading task of European political philosophy”.131
These justifications, based on the fact that the inhabitants of the new world lived in a
‘state of nature’, in which they did not cultivate the soil, are well rehearsed in a vast body of literature and will not be repeated here.132 These justifications were initially set within Locke’s stages of history, which when taken up by the theorists of the French
126 R v. Larry, The Register, 14, 17 June 1846, in Castles, A., An Australian Legal History, Law Book Company, Sydney, 1982, at 529. 127 Castles, ibid. 128 Ibid, at 530. 129 On civilisation generally in the context of native title see Dorsett, S., “Cultivation, Civilisation and Indigenous Peoples”, (1995) 2 Griffith L.R. 214. 130 Tully, J., Strange Multiplicities: Constitutionalism in an Age of Diversity, Cambridge University Press, Cambridge, 1995, at 71. See also Pagden, A., European Encounters with the New World, Yale University Press, New Haven, 2001; Pagden, A., People and Empires, Weidenfelt and Nicolson, London, 2001; Tuck, R., International Order and Political Thought from Grotius to Kant, Oxford University Press, Oxford, 1995. 131 Tully, Strange Multiplicities, ibid. 132 See Locke, J. (Peardon T., ed.), The Second Treatise of Government, , Bobs-Merrill Educational Publishing, Indianapolis, 1952 (1690). While much is written on Locke, for a view which emphasises not only Locke’s political theory, but his role as Secretary for the Board of Trade and Plantations, see Arneil, B., “Trade, Plantations and Property: John Locke and the Economic 189
and Scottish Enlightenment resulted in the linking of progress and the history of civilisation in a staged series of means of material production: namely the hunting, the pastoral, the agricultural and the commercial.133 By the nineteenth century, therefore, there was a significant body of work concerning ‘civilisation’. Civilisation had had become a teleological concept, in which man progressed in incremental historical stages from hunter-gatherer to the contemporary European ideal. In the eighteenth century primitive peoples exemplified the earliest stages of civilisation.134
This approach was formalised by John Stuart Mill in his essay Civilisation as a hierarchy of the historical stages of man, identifying civilisation, in the form of
European civilisation, with race.135 As Young points out, this approach defines civilisation “through difference, against a hierarchy that invokes the state of other, historical or non-European societies”.136 Civilisation is defined against savagery.
Civilisation is all that savagery is not: “whatever be the characteristics of what we call savage life, the contrary of these, or the qualities which society puts on as it throws off these, constitute civilisation”.137 Modernity itself is constructed against the uncivilised, the primitive other. This exclusion of the customary, the primitive, the uncivilised was an important part of modernity’s project of uniformity, mentioned in Chapter One.138
Similarly, law, the instrument of modernity, is constructed by its exclusion of
Defence of Colonialism”, (1994) 55 Journal of the History of Ideas 591. 133 Fitzpatrick, The Mythology of Modern Law, supra note 45, at 71. 134 Young, R., Colonial Desire: Hybridity in Theory, Culture and Race, Routledge, London, 1995, at 34-5. 135 Ibid, at 35. 136 Ibid. 137 Mill, J.S., Civilization: Signs of the Times, from the London and Westminster Review, April 1836, quoted in ibid. 138 For the complicit role of anthropology in this process see Fabian, J., Time and the Other: How Anthropology Makes its Other, Columbia University Press, New York, 1983. 190
the customary, the Other.139 Thus, the notion of civilisation provided much more than a justification for the acquisition of the new world. It provided the benchmark according to which the limits of law itself could be marked. The notion of civilisation is, like most yardsticks, both arbitrary and compelling. Civilisation is a malleable and convenient concept, but once indigenous peoples fall on the wrong side of it, their laws and customs become irrevocably ‘not law’. Around the Empire, and as instantiated in the
Australian colonial cases, jurisdiction could be asserted over those who were sufficiently uncivilised that it could be assumed they had no law. Where Indigenous peoples were considered sufficiently civilised that their laws could be recognised as such, the jurisdiction of the common law was held not to apply. In this way,
‘civilisation’ still acted as a jurisdictional marker, but this time between two bodies of law: that of the coloniser and that of the colonised. Thus, by denying common law jurisdiction the courts were simultaneously recognising that indigenous peoples are outside Western law, but not outside ‘law’ itself. The more recognisable the indigenous customs and laws as laws, the more likely the common law would recognise these as another jurisdiction. The marker of civilisation persisted until the modern native title decisions, although the language of jurisdiction was lost. In Milirrpum v. Nabalco,
Blackburn J famously held that the Yolgnu had a recognisable legal system.
Nevertheless he failed to accord their rights any status at common law. He held that there was not sufficient authority to find that the doctrine of aboriginal title was part of the Australian legal system, and even if a court of first instance could do so, he could not make such a finding on the material in front of him.140 He also held that the legal system did not sufficiently equate to that of the dominant legal system. The Yolgnu’s
139 For the best discussion of this see Fitzpatrick, The Mythology of Modern Law, supra note 45. 191
interest in land was not sufficiently ‘proprietary’ to equate to ownership at common law.141
While the judges in these early decisions clearly believed that the indigenous inhabitants were ‘savage’ and ‘barbarous’ and that their institutions were ‘shocking’, they nevertheless were prepared to deny common law jurisdiction. For all judges who so denied jurisdiction, however, a central problem was the lack of civilisation. As seen from the cases above, it was rare for early courts to deny that the indigenous inhabitants had their own laws and customs. Many of the cases discussed above acknowledged the existence of two laws (albeit one considered most inferior to the other). As the ALRC put it, in the colonies there was the “reality of the co-existence of two laws for the
Aborigines.”142 The question was always whether indigenous laws were sufficiently civilised as to be recognisable to the common law as such, and therefore so as to provide a reason to deny common law jurisdiction. The implication in Murrell, for example, was that had the aborigines had sufficiently civilised laws, rather than “lewd customs” some recognition may have been able to be given to them.
It was, therefore, the lack of ‘laws’ which conformed to European-based systems of law which led to the assertion of jurisdiction, not a general failure to recognise the possibility of non-common law jurisdictions. In every decision above, the language of the courts is the language of jurisdiction, regardless of the outcome for the defendant.
After all, as seen in Chapter Two, multiple jurisdictions, and a consequent need on occasion to determine which would be dominant in a dispute, had always been a feature of the common law. No courts denied that the Aboriginal natives still predominantly
140 Milirrpum v. Nabalco, supra note 96, at 262. 141 Ibid, at 272-3. 142 A.L.R.C., Recognition of Customary Laws, supra note 50, at 35. 192
lived in their own societies according to their own customs. They simply denied that these customs were sufficiently civilised according to their standards to provide a reason why the common law should refrain from asserting its jurisdiction over the
Indigenous inhabitants. However, as the century wore on, the courts shifted from accepting Aboriginal Australians had laws, but asserting jurisdiction because they were insufficiently civilised, to asserting jurisdiction on the basis that they had no ‘laws’ as such.
If the Australian colonies can be regarded as an example of the approach whereby which the Indigenous inhabitants had ‘laws’ but these were insufficiently civilised to be recognised as another jurisdiction, then India represented the opposite, a place where jurisdiction was denied because the inhabitants were considered civilised.
In India, cases from which were referred to by both Counsel and Courts alike in
Australian colonial decisions, the ‘natives’ were considered sufficiently civilised that their laws were recognised as such, leading on occasion to a need to determine which jurisdiction applied. In Freeman v. Fairlie, Master Stephen held that that English law had been introduced into the territories of the East India Company.143 Stephen acknowledged that at the time of settlement India was clearly “well-peopled, and by a civilized race, governed by long-established laws, to which they were much attached
…”.144 Thus, in the circumstances of the colony, it could be neither that the laws of the inhabitants were abrogated in total (despite their non-Christian nature), nor that English law applied to all.145
It was not until later in the century that it became accepted that Indigenous
143 Freeman v. Fairlie, supra note 47, at Moo. 322-323 (E.R. 127). 144 Ibid, at Moo. 325 (E.R. 128). 145 This case is returned to in Chapter Five. 193
Australians had ‘no law’. However, once this was accepted, questions of jurisdiction became irrelevant. To use the language of the common law, there was no jurisdiction from which a better writ could be issued. Such concerns, although arising in a different context, echo those of Lord Mansfield: in any plea to jurisdiction, a better jurisdiction should be shown. In the eyes of the courts of the colonies in this period, no other jurisdiction existed. As Kercher remarks, by the latter part of the nineteenth century, the
“law [had] returned to its comfortable unitary view, that there was and only ever had been one legal system in Australia since 1788, that of England.”146 It is not surprising that courts should come to this conclusion at the moment of the nineteenth century when “social Darwinism” or “Spencerism” became the dominant racial theory. Of all societies supposedly at the earliest stages of civilisation, Australian Aborigines were
“assigned the role of exemplars par excellence of beginnings and early forms.”147
Conclusion
As stated at the outset of this chapter, jurisdiction remained an important concept for colonial courts and counsel alike. Trained in England, they were familiar with the pluralistic English legal landscape, in which multiple common law jurisdictions, as well as non-common law jurisdictions, co-existed. Challenges to jurisdiction were common and the common lawyers had long understood how the common law ordered its relations both within the plethora of common law courts themselves, and with other bodies of law. The common law had well-established procedures for dealing with jurisdictional conflicts, and the idea of the common law as one of a number of bodies of law was familiar. Unsurprisingly, when faced with the
146 Kercher, B., “Recognition of Indigenous Legal Autonomy”, supra note 12, at 7. 147 Hyatt, L.R., Arguments about Aborigines: Australia and the Evolution of Social Anthropology, Cambridge University Press, Cambridge, 1996, at xii. 194
questions as the appropriateness of applying their body of law to the indigenous inhabitants, and the reality that those inhabitants lived according to their own laws, counsel and courts simply used the tool of jurisdiction to formulate arguments and determinations. Multiple sites of jurisdiction were both understood and unthreatening.
Jurisdiction was the language and tradition of the common law and thus in early colonial Australia it was the language and tradition of the courts which administered the common law.
This is not to suggest that in determining jurisdiction the court was directly parallelling, for example, the pattern of jurisdiction that was presented in Chapter Two.
As was seen in that chapter, the common law courts commonly used a particular jurisdictional tool, the writ of prohibition, in asserting jurisdiction over matters traditionally within the purview of non-common law bodies of law. These writs were served on the court of the other jurisdiction. Clearly here such a mechanism was unnecessary and inappropriate. However, the common law courts in the colony did recognise that questions of authority and competence to determine were questions of jurisdiction and, as in England, they appropriated to themselves the sole right to determine these issues.
The picture presented above of colonial decisions on autonomy is one which is less uniform and unequivocal than the one we are familiar with. Murrell, long cited as the major authority concerning the recognition of indigenous autonomy, was merely one in a series of cases in which judges struggled with the problem of how to reconcile the dominant legal system with the customs and laws of the Aborigines. The cases reveal often equivocal and hesitant decisions, in which judges struggled to reconcile the authority of their own laws with the reality of indigenous laws. The decisions are crossed with personal views as to the inferiority of the aborigines, practical concerns 195
about how to apply the common law and, in some cases, genuine (albeit paternalistic) concerns as to how best to protect the native population.
In determining these cases, the courts were providing a foundational legal ordering for British colonisation. By deciding its own jurisdiction, the common law was asserting its authority in the new colonies, and hence the legal authority of colonisation itself. Through questions of jurisdiction, the courts effected a legal settlement of the colonies and consequently the new nation. Regardless of whether jurisdiction was asserted or denied, it was by this tool that relations between multiple sites of authority in the new colonies was ordered.
By the 1880s, it was taken as having been determined that the common law courts had jurisdiction over indigenous inhabitants, particularly in the context of criminal matters. Along with this, questions as to the competence of the common law to render decisions have dropped from the legal landscape. A unitary vision of law had been established. As a result, the language of jurisdiction has been confined to questions of the ability of individual courts to render judgment. In other words, we no longer have a substantive theory of common law jurisdiction. Rather jurisdiction is a mere procedural question to be answered prior to determining the matter according to the requisite substantive body of law.
Earlier stories of legal pluralism and Indigenous autonomy were expunged from legal memory. Once it was finally determined that the Aborigines had no laws, questions of jurisdiction fell away. By then, the common law had been established as, with the exception of indigenous jurisdictions, the only law in the new colony for almost a century. It has achieved a degree of univocality still unknown in England at that time. Challenges to jurisdiction, common in England, were infrequent. The
Supreme Court in each colony was dominant. There were no other courts to which 196
plaintiffs could have recourse. More common were questions as to whether particular statutes or common law rules had been imported into the colonies. The common law became the body of law: it had no other with whom to order its relations. The
(re)recognition of indigenous laws in recent years, discussed in the next chapter, sets, therefore, the stage for the reassertion of questions of jurisdiction as the High Court struggles to articulate the legal order of the Australian nation. 197
Chapter Five
Common Law Jurisdiction Confirmed
“The theory accepted by this Court in Mabo (No. 2) was not that the native title of indigenous Australians was enforceable of its own power or by legal techniques akin to the recognition of foreign law. It was that such title was enforceable in Australian courts because the common law in Australia said so.”1
Everything come up out of ground - language, people, emu, kangaroo, grass. That's Law.2
Introduction
As outlined in Chapter One, the High Court has described native title as the
“intersection of traditional laws and customs with the common law”.3 Further, we are told that native title is not of the common law, but ‘recognised’ by the common law.4
The Court has, however, given little guidance as to what is meant by ‘recognition’.
Even more problematically, the High Court has failed to explain how we might understand the relationship between two bodies of law – indigenous and common law.
How can this intersection be understood as a matter of legal doctrine? This chapter examines contemporary native title decisions, focussing on the way in which the High
Court has described the relationship between the common law and indigenous laws and customs, or, as the High Court now prefers to label them, indigenous ‘normative systems’.5
In so doing, this chapter draws together threads from the previous three chapters.
It shows how some of the concerns of earlier courts are echoed in contemporary native
1 Wik Peoples v. Queensland (1996) 187 C.L.R. 1, at 237-238, per Kirby J [hereinafter Wik]. 2 Hobbles Danaiyarri, a Mudbura man of Yarralin, in Rose, D., Nourishing Terrains: Aboriginal Views on Landscape and Wilderness, Australian Heritage Commission, Canberra, 1996, at 9. 3 Fejo v Northern Territory (1998) 195 C.L.R. 96, at 128, footnotes omitted [hereinafter Fejo]. 4 Ibid; Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, at 59 per Brennan J, 178 per Toohey J [hereinafter Mabo (No. 2)]. 5 Members of the Yorta Yorta Community v. Victoria (2002) 214 C.L.R. 422, at 443 [hereinafter Yorta Yorta]. All references to Yorta Yorta will be to the High Court decision unless otherwise indicated. 198
title jurisprudence. The views of some of the colonial courts that the recognition of
Indigenous laws was incompatible with sovereignty, for example, which were discussed in the last chapter, find parallels in modern decisions. Similarly, the elision of sovereignty with jurisdiction, which can be observed in these same decisions, also characterises modern cases. On the other hand, early courts understood that questions relating to the ordering of multiple bodies of law were questions of jurisdiction.
Therefore, this chapter also looks at how earlier uses of the technology of jurisdiction as the common law’s primary ordering mechanism can contribute to an understanding of the legal relations between indigenous and common law.
In the twelve years since the decision in Mabo (No. 2) the High Court has handed down a number of judgments which have clarified the law as set down by the majority in that decision.6 In the main, the High Court has elaborated the principles on extinguishment,7 including the effect of particular grants on native title8 and the permanency of extinguishment,9 the effects of dispossession and the requirement of an on-going connection,10 the operation of the Native Title Act,11 as well as the relationship between that Act and the common law.12 In addition, however, these decisions have betrayed increasing concerns to explicate the relationship between native title, or more broadly indigenous normative systems, and the Australian nation (largely as represented
6 Three judgments formed the majority in Mabo (No. 2). The most frequently cited is that of Brennan J (with whom Mason CJ and McHugh J concurred). Gaudron and Deane JJ delivered a joint judgment, while the third was that of Toohey J. 7 See, for example, Wik, supra note 1; Western Australia v. Ward (2002) 213 C.L.R. 1 [hereinafter Ward]; Fejo, supra note 3; Commonwealth v. Yarmirr (The Croker Island Case) (2001) 208 C.L.R. 1 [hereinafter Yarmirr]; Yanner v. Eaton (1999) 201 C.L.R 351. 8 Wilson v. Anderson (2002) 190 A.L.R. 313 [hereinafter Wilson]; Ward, ibid. 9 Fejo, supra note 3. 10 See, for example, Yorta Yorta, supra note 5. 11 Native Title Act 1993 (Cth). See, for example, North Ganalanja Aboriginal Corporation And Anor for and on Behalf Of The Waanyi People v. The State Of Queensland (1996) 185 C.L.R. 595; Ward, supra note 7. 12 See, for example, Ward, supra note 7; Yorta Yorta, supra note 5. 199
by the common law). These concerns culminated in the 2002 decision in Yorta Yorta. In essence, the Court seeks to follow other common law nations in effecting a post- colonial settlement, thereby clarifying the foundational legal ordering of the nation and its own authority. However, as will be seen, the judgments are riven with illogicality, as the Court tries to hold together a position in which it holds that native title is derived from indigenous laws and customs, but simultaneously refuses to accord the status of law to those laws and customs.
As discussed in Chapter One, Australia has not yet effected a post-colonial settlement. Nor, until the recognition of native title by the High Court in Mabo (No. 2) was one seen as necessary. It was understood to be settled that Indigenous Australians had no rights to land. Recognition of native title, however, opened the door to the recognition of Aboriginal law more generally, and hence to a need to articulate the legal relationship between indigenous and non-indigenous. Mabo (No. 2) effected a rupture in the fabric of the nation, one that the High Court has yet to close. Recognition of the continued existence of native title, however, did not signal a return to the foundational ordering of Australian law. If colonial cases were concerned with jurisdiction, recent cases have been all about sovereignty. The courts no longer ask jurisdictional questions.
Nor does counsel make pleas to the jurisdiction. In the native title decisions, relations that would once have been conceptualised through the language of jurisdiction have been rephrased as questions of sovereignty. Sovereignty and jurisdiction have become compressed. For the common law, singular sovereignty has come to mean singular jurisdiction, and that jurisdiction is its own jurisdiction. However, by compressing sovereignty and jurisdiction, the High Court is unable to construct any relations which do not in, its eyes at least, threaten the singular sovereignty of the Australian nation, the integrity of the common law, and hence its own authority. If alternative sites of power 200
and authority are to be acknowledged, then it seems that for the High Court these could only be derived from a sovereign order. If other jurisdictions exist, then they must threaten the legal order as it is perceived by the High Court, because they potentially signal a rupture in the the nation, a rupture which that Court refuses to acknowledge has already occurred. Jurisdiction and sovereignty have become inextricably tangled, and the High Court cannot unpick them. In the absence of treaties or constitutional provisions which dictate the legal relationship between indigenous and non-indigenous
(even though those very treaties and provisions may be contested), the High Court has only the technologies of the common law from which to fashion its settlement. In examining the native title jurisprudence, therefore, a return is made therefore to the language of jurisdiction as a way of conceptualising legal relations between indigenous laws and the common law. Issues of sovereignty are set aside until later in the chapter.
It seems obvious to state that for many Indigenous Australians their law continues as a reality of everyday life. As Ankar puts it “[d]reaming law … will always exist in the present tense”.13 Yet, despite the obviousness of this statement, the High
Court seems reluctant to acknowledge the continued existence of Aboriginal law. Its statements since Mabo (No. 2) on the status of Aboriginal law in general, and native title in particular, have been riven with inconsistencies. This is nowhere more obvious than in the majority judgment in the latest decision, Yorta Yorta. At times the High
Court (and Full Federal Court) appear to have acknowledged that Aboriginal law has an autonomous existence, at others they have flatly denied the possibility of legal pluralism by stating that there are no dual systems of law or parallel law-making in the Australian
13 Ankar, K., “Law in the Present Tense: Tradition and Cultural Continuity in Members of the Yorta Yorta Aboriginal Community v. Victoria”, (2004) 28 Melb. Uni. L.R. 1, at 3. See also Muir, K., ““This Earth has an Aboriginal Culture Inside”: Recognising the Cultural Value of Country” (1998) 23 Land, Rights, Laws: Issues of Native Title 1. 201
legal system. As will be seen, the result has been the creation of an ‘empty shell’,14 in which somehow indigenous norms subsist, albeit stripped of their law-making power.
This chapter concludes that, regardless of the language of the High Court, be it of ‘normative systems’ or ‘traditional laws and customs’, and regardless of whether the
High Court denies the existence of ‘dual’ systems of law, what is being described is the relations between multiple jurisdictions. Having determined this, Part II goes on to examine three technologies of jurisdiction, and how they have contributed to the final form of native title as a legal entity. In particular, Chapter Seven returns to an historical analysis of the techniques by which the common law ordered relations with non- common law jurisdictions, and extends earlier analysis to examine the way in which the common law provided a foundation within itself for matters generally considered to be within the province of another jurisdiction by reconceptualising them as custom. This analysis will provide a way of understanding the conceptual foundations of native title at common law.
A Univocal Law: Mabo (No. 2) and after
It would not be entirely original to claim that Mabo (No. 2) is a case which is simultaneously not about sovereignty and all about sovereignty.15 On the one hand sovereignty is not an issue in Mabo (No. 2). The plaintiffs in that case did not seek to challenge sovereignty. Indeed, as Keon-Cohen reminds us, to the contrary paras. 7-9 of the Statement of Claim “pleaded that by the extension of British sovereignty, the island became part of the Colony of Queensland in 1879 … subject to the laws in force therein.”16 In any case, the members of the High Court all agreed that acquisition of
14 Ankar, ibid, at 20. 15 Kerruish, V., “In the Court of the Strange God”, (2002) 13 Law and Critique 271, at 273. 16 Keon-Cohen, B. “The Mabo Litigation: A Personal and Procedural Account”, (2002) 24 Melb. 202
sovereignty over the Australian continent was non-justiciable - there was ample authority that the acquisition of territory is an act of state that cannot be challenged in a municipal court.17 While the court could (and did) consider the domestic consequences of that acquisition, the sovereignty of Great Britain, and subsequently, of Australia, was
(and is) beyond challenge. On the other hand, concerns about sovereignty, and an anxiety to ensure that no challenges are made to sovereignty, suffuse not only the decision in Mabo (No. 2) itself, but subsequent decisions concerning native title.
In Mabo (No. 2), the legal story of the coming to Australia by Europeans opens with the acquisition of sovereignty.18 Despite the refusal to discuss sovereignty, in
Mabo (No. 2), as well as later decisions such as Yorta Yorta, it is the key point of departure for the judgments. According to the court, all rights and recognition flow from the moment of assertion of sovereignty. In particular, the assertion of sovereignty has two important consequences. First, at the moment of acquisition of sovereignty, the common law became the law of the land, and of the territory, not merely the law of the colonists.19 Second, and consequentially, as the common law is the law of the land, native title is that which is ‘recognised’ by the common law.20 Thus, in Mabo (No. 2), the institutional history of the settlement of Australia proceeds from sovereignty.
What Mabo (No. 2) does not appear to be, therefore, is a case about jurisdiction.
It does not use the language of jurisdiction, preferring the idiom of sovereignty. Despite the judgment declaring that sovereignty cannot be challenged, and is not at issue, it is clear that the framework though which legal ordering is to be pursued is that of
Uni. L.R. 893, at 908. 17 Mabo (No. 2), supra note 4, at 31 per Brennan J. See also per Deane and Gaudron JJ at 78-79 and Dawson J at 121. 18 Ibid, at 31. 19 Ibid, at 37. 20 Ibid, at 59. 203
sovereignty. The description of sovereignty offered by the High Court, and Brennan J in particular, was orthodox: sovereignty is co-extensive with the modern state, and indivisible – the entire power of the state has to be vested in a single locus, a centralised legal authority. It is a vision of sovereignty which has been familiar since Bodin,21 and one which, as was discussed in Chapter One, characterises the post-Westphalian international legal order. It is also a vision of the state which has been constantly reinforced since Mabo (No. 2) in cases such as Coe v. Commonwealth and Walker v.
New South Wales,22 and which found its ultimate expression in the most recent High
Court decision, Yorta Yorta.23
Brennan J’s judgment in Mabo (No. 2), therefore, proceeded from the moment of acquisition of sovereignty. Brennan J reminded us that in a settled colony, such as
Australia, the colonists bring with them as much of English law as [was] applicable to their own situation and the condition of an infant colony.”24 But, according to Brennan
J, the law of England was not merely the personal law of the English colonists – it became the law of the land – of not just Europeans, but of indigenous Australians.25
Brennan J put the matter thus:
“The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a “desert uninhabited” country. The hypothesis being that there was no local law already in existence in the territory …, the law of England became the law of the territory (and not merely the personal law of the colonists).” 26
21 See Bodin, J., Six Bookes of a Commonweale, Cambridge University Press, Cambridge, 1992 (1576). 22 Coe v. Commonwealth (1993) 68 A.L.J.R. 110; Walker v. New South Wales (1994) 69 A.L.J.R. 111. 23 All three of these decisions are discussed infra. 24 Mabo (No. 2), supra note 4, at 35. 25 Ibid, at 37. 26 Ibid, at 36. 204
A similar legal history can also be found in a number of earlier decisions, most important of which was Cooper v. Stuart.27 In these versions of events, sovereignty was acquired over the territory of the eastern part of Australia, and the common law became the law of the territory and of the land. These cases are interesting for two, not unconnected, reasons. First, for the reason just mentioned. They present a vision of legal order in which sovereignty, territory and jurisdiction are understood as being compressed. While each is a separate term and concept, in these cases they are presented as occupying both an identical legal and physical space. Second, the most famous of these, Cooper v. Stuart, is cited as one of the foundation cases of the doctrine of terra nullius, the doctrine which essentially held that the Australian continent was legally uninhabited at the time of settlement. The second of these points will be taken up here: that of terra nullius. Sovereignty, jurisdiction and territory will be pursued later in the Chapter.
Until Mabo (No. 2), it was understood that the common law in Australia did not recognise native title. This was the conclusion of the only case prior to Mabo (No. 2) in which native title had been argued: Milirrpum v. Nabalco.28 This understanding was largely premised on the idea of terra nullius. The doctrine of terra nullius held that lands were acquired by occupation, rather than by conquest, if the inhabitants were
“backward” and not “organised in a society that was united permanently for political
27 Attorney-General v. Brown (1847) 1 Legge 312; Williams v. Attorney-General for New South Wales (The Government House Case) (1913) 16 C.L.R. 404; Randwick Corporation v. Rutledge (1959) 102 C.L.R. 54; Cooper v. Stuart (1889) 14 A.C. 286. 28 Milirrpum v. Nabalco (1971) 17 F.L.R. 141. Blackburn J’s decision, however, did not outright reject the doctrine of communal native title as part of the Australian common law. Rather, he held that insufficient authority existed in Australia to that effect. He may, however, even as a court of first instance been willing to make such a finding but for the fact that he found insufficient evidence on the material before him to make a positive determination: at 262. 205
action”.29 In other words, land was terra nullius if the indigenous inhabitants had no sovereign. Thus, the law did not deny that people inhabited these areas, but did declare that the land was legally empty, and open to acquisition by occupation. Importantly, as recognised by Brennan J in Mabo (No. 2), terra nullius therefore also meant that the indigenous inhabitants had no law:
“Ex hypothesi, the indigenous inhabitants of a settled colony had no recognized sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization.”30
Indeed, again as Brennan J himself noted, it was because the indigenous inhabitants had no law that the common law could become the law of the land.31
Since Mabo (No. 2), the place of the doctrine of terra nullius in Australian law has continued to fascinate commentators. Was terra nullius a doctrine before Mabo (No.
2)? Or was it simply elevated to a doctrine in that case so as to be discarded?32 For some, the answer is that terra nullius came from Mabo (No. 2) itself, based in part on the fact that the actual phrase was not used prior to that decision.33 For others, the idea behind terra nullius itself has a much longer history in the Australian colonies.34 Terra nullius can perhaps be traced to the early decision of the New South Wales Supreme
Court in Murrell,35 in which that court effectively confirmed that there was only one
29 Mabo (No. 2), supra note 4, at 33, citing Lindley, M., The Acquisition and Government of Backward Territory in International Law, Longmans & Co., London, 1926, Chapter 3. 30 Mabo (No. 2), ibid, at 36. 31 Ibid. 32 See Ritter, D., “The “Rejection of Terra Nullius” in Mabo: A Critical Analysis”, (1996) 18 Syd.L.R. 5. 33 See van Krieken, R., “From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship”, (2000) 23 U.N.S.W.L.J. 63. 34 For a partial acceptance of this view, see Kercher, “Native Title in the Shadows: The Origins of Terra Nullius in Early New South Wales Courts”, in Blue, G. et al (eds), Colonialism and the Modern World: Selected Studies, M.E. Sharpe, Armonk, 2002. 35 R v. Murrell, Forbes CJ, Dowling and Burton JJ, in banco, 11 April 1836, sourced from the Supreme Court, Miscellaneous Correspondence relating to Aborigines, State Records of New 206
sovereign and one law – the common law – although the language of terra nullius did not appear in the judgment.36 This at least was how Rath J interpreted the case over a hundred years later in R. v. Wedge.37 It is, however, in the somewhat later decision in
Cooper v. Stuart that terra nullius received endorsement in the form in which it was understood in Mabo (No. 2). As with other cases which apparently denied Aboriginal rights, Cooper v. Stuart did not concern indigenous rights at all.38 Rather, it concerned an exception or reservation of land as might be required for public purposes contained in a grant of land in fee simple, and whether it was void as against the rule against perpetuities. The determination of this issue depended on which laws had been imported to the colony of New South Wales, a question which in turn depended on the status of the colony as settled or conquered. In deciding that the law of perpetuities was part of the law of New South Wales, the Privy Council famously declared that the colony of
New South Wales was “a tract of territory practically unoccupied, without settled law or inhabitants, at the time when it was peacefully annexed to the British dominions”.39
Famously, of course, the majority judgments in Mabo (No. 2) chose to ‘discard’ the doctrine of terra nullius. Some of the most powerful rhetoric of the decision in
(Mabo No. 2) is found in those passages in which Brennan J discarded the notions that
Indigenous Australians were “backward” or “uncivilised”. He characterised, for example, the enlarged theory of terra nullius as “an unjust and discriminatory doctrine
South Wales, 5.1161, pp 210-216, found at
of that kind [which] can no longer be accepted.”40 Further, in overruling earlier decisions such as Cooper v. Stuart, he held that “it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.”41
In order to find that Australia had not been terra nullius, Brennan J found that
“the facts as we know them today do not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England”.42 That the
Aborigines had no law was a “false assumption”, as earlier shown in Milirrpum v.
Nabalco:
“Blackburn J. said (1971) 17 FLR 141, at p 267:
“The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me.””43
As a result of the facts no longer fitting the theory, Brennan J effectively jettisoned the distinction between inhabited colonies that were terra nullius and those which were not.44 An examination of international law having revealed that the notion of terra nullius no longer commanded support in that arena, Brennan J declared that:
“If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be “so low in the scale of social organization” that it is “idle to impute to such people some shadow of the rights known to our law” [In re Southern Rhodesia (1919) AC, at pp 233-234] can hardly be
40 Mabo (No. 2), supra note 4, at 42. 41 Ibid, at 41-2. 42 Ibid, at 39. 43 Ibid. 44 Ibid, at 40-43. 208
retained.”45
What then is the result of overturning those cases on which the universality of common law jurisdiction in the colonies is based? In the end, little turns doctrinally on the recognition that Indigenous Australians were neither ‘low on the scale of civilisation’ nor without recognised laws. It did not, for example, lead to the reclassification of the colony as conquered, with the attendant consequences that indigenous laws were considered to have remained in force until altered by the Crown.
Rather, the Court left the designation of the colony as settled untouched. This largely accorded with practice in other jurisdictions. The Canadian and New Zealand colonies had been considered as settled, yet the courts had not held that the indigenous inhabitants had ‘no laws’.46 In the United States, the Marshall Court had declared that
America was acquired by occupation, the international law equivalent of ‘settled’, yet that Court had still found that Native American Nations retained internal jurisdiction.47
Nor in any other jurisdiction have the courts felt the need to ‘deal’ with terra nullius in order to find aboriginal title. Crawford notes correctly that “…there is a tendency … to conflate the classification of Australia as settled or conquered with the existence or recognition of communal native title, which are essentially distinct issues.”48
Brennan J recognised the incongruity of extending the protection of the common law to the indigenous inhabitants, but simultaneously dispossessing them of their land.
45 Ibid, at 41. 46 See The Queen (on the prosecution of McIntosh) v. Symonds (1847) N.Z.P.C.C. 387 (NZ); Connolly v. Woolrich (1867) 17 R.J.R.Q. 75, 1 C.N.L.C. 70 (Que. S.C.), affd. sub nom. Johnstone v. Connolly (1869) 17 R.L.R.Q. 266, 1 C.N.L.C. 151 (Que. C.A.). These cases are further discussed infra. 47 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). 48 Crawford, J., “The Appropriation of Terra Nullius”, (1989) 59 Oceania 226, at 227. Much of the importance of terra nullius in the context of Mabo (No. 2) appears to have been as a result of Reynolds’ The Law of the Land, in which Reynolds paints terra nullius as having been central to the failure to recognise land rights: Reynolds, H., The Law of the Land, Penguin, Sydney, 1988. 209
“It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land …”.49
The same supposedly ‘barbarian nature’ of the indigenous inhabitants also led to the assertion of common law jurisdiction over the Aborigines by colonial courts. As
Brennan J further stated: “… the indigenous inhabitants of a settled colony were regarded as ‘low in the scale of social organization’, they and their occupancy of colonial land were ignored in considering the title to land in a settled colony.”50
However, as seen in Chapter Four, their lack of civilisation was exactly the basis on which early courts also chose to deny any efficacy to Aboriginal jurisdictions.
‘Civilisation’ not only marked the boundaries between jurisdictions, but the boundaries of law itself.
While judges in early cases believed that the indigenous inhabitants were
‘savage’ and ‘barbarous’ and that their institutions were ‘shocking’, they nevertheless were prepared to deny that the indigenous inhabitants had their own laws and customs.
In such cases, common law jurisdiction was denied. The question was always whether indigenous laws were sufficiently civilised as to be recognisable to the common law as such, and therefore so as to provide a reason to deny common law jurisdiction. The implication in Murrell, for example, was that had the aborigines had sufficiently civilised laws, rather than “lewd customs” some recognition may have been able to be given to them.
Yet, in overruling terra nullius, Brennan J avoided taking the further step of
49 Mabo (No. 2), supra note 4, at 39. 50 Ibid. 210
specifically recognising the existence of Aboriginal laws. There are, however, some indications that he did recognise the internal validity of aboriginal jurisdictions.
Whether he thought that aboriginal systems amounted to ‘law’ is unclear, and in any case such a determination was unnecessary. First, Brennan J referred to the judgment of
Blackburn J in Milirrpum, and in particular to that part of his Honour’s judgment in which he held that the plaintiffs in that case clearly had a ‘system of law’. Brennan J did not proffer any comments as to what this might mean for aboriginal jurisdiction. Rather, his discussion was solely directed towards justifying the ‘overturning’ of terra nullius.
Second, as McNeil has pointed out, in the context of discussing the inalienability of native title, Brennan J also impliedly recognised that Indigenous Australians retained some internal jurisdiction.51 He noted that native title was inalienable by the common law, and went on to state:
“It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people.”52
Thus, alienability internally within the community occurs according to custom and tradition, but externally can only be alienated to the Crown.53
Nevertheless, despite these comments, rather than specifically acknowledge
Aboriginal jurisdictions, recognition was limited to the extent necessary to achieve the
51 See McNeil, K., “Self-Government and the Inalienability of Aboriginal Title” (2002) 47 McGill L.J. 473, at 506. 52 Mabo (No. 2), supra note 4, at 60, footnote omitted. On this point Brennan J follows in the footsteps of a much earlier decision. Similar comments can be found in the judgments of Martin CJ and Chapman J in the famous New Zealand case of R v. Symonds (1847) N.Z.P.C.C. 387. The issue in that case was similar to that which faced the United States Supreme Court in Johnson v. M’Intosh 21 U.S. (8 Wheat.) 543 (1823) and both cases ultimately confirmed the Crown’s right of pre-emption. 53 See McNeil, “Self-Government”, supra note 51, at 506. 211
task at hand – recognising a specific right to land. This is, of course, the traditional approach of common law judges – to answer only the exact question the court is asked.
Even if one ‘combs’ the judgment, references to the continued existence and operation of aboriginal jurisdictions are sparse and limited to those above.
The logic of the colonial cases should have dictated that once it was recognised that aborigines were not uncivilised and that they had their own laws, some status should have been given to those laws. Mabo (No. 2) was not, of course, a case in which jurisdiction was at issue. Counsel did not actually ask the High Court to recognise
Aboriginal jurisdictions. Nor did Counsel plead to the jurisdiction of the court, for the simple reason that in order for the High Court to recognise native title it had to have jurisdiction to so do. As has been previously remarked, it is the paradox of indigenous rights that plaintiffs are forced to acknowledge the jurisdiction of the common law in order to argue for recognition of their rights. However, there are no indications that in overturning terra nullius the High Court was prepared to acknowledge the existence of indigenous laws beyond that which was strictly necessary to find that native title could be recognised at common law.54 This approach accorded with that of Blackburn J in the earlier case of Milirrpum. In that case, Blackburn J both held that the Aboriginal
54 The trial judge, Moynihan J, also appears to have been of the opinion that there was more than one legal system in operation. While the original statement of claim was filed in the High Court, Gibbs CJ remitted the trial of the action of the Supreme Court of Queensland in its federal jurisdiction, where Moynihan J determined the facts: see Determination Pursuant to Reference of 27 February, 1986 by the High Court of Australia to the Supreme Court of Queensland to hear and determine all issues of facts raised by the pleadings, particulars and further particulars in High Court action B12 of 1982, unpublished findings of fact by Moynihan J. Moynihan J stated in the course of considering admissibility of ‘traditional evidence’ by certain witnesses: “This is the nicety of my dilemma. We are talking about two parallel systems of law and their effect on each other. Ultimate questions revolve around how far I enter from one into the other in order to determine matters of evidence.” Cited in Keon-Cohen, “The Mabo Litigation”, supra note 16, at 925, citing in turn from Shaw, D., ‘Affidavit in Support of Summons’, 12 March 1987. According to Keon-Cohen this affidavit was tendered to Toohey J at a directions hearing and the passage does not appear in the court transcripts: ibid, at 925, fn235. It may be that having visited Mer and reviewed the evidence of forty four witnesses, for Moyihan J the reality of Malo’s law for the Meriam people was inescapable. 212
plaintiffs had a system of law, but also denied that any jurisdiction other than the common law operated. He stated that there was “some judicial suggestion [in early cases] that there was a law outside the ordinary common law which applied to
Aborigines”. However, this was “not significant except as a curiosity of Australian legal history”.55
Despite acknowledging not only the physical, but legal, presence of Indigenous
Australians, as well as the ‘hints’ that Aboriginal jurisdictions continued, New South
Wales is still portrayed in the judgments in Mabo (No. 2) as legally empty, a continental vacuum, waiting to be filled by the common law. Rather than weakening the jurisdictional hold of the common law, the High Court, and particularly Brennan J, is at pains to reinforce it. Brennan J reminds us that in a settled colony, the law of England was not merely the personal law of the English colonists – it became the law of the land.56 It is, of course, vital that the common law remain recognised as the law of the land, as it then binds not only the colonists, but the Indigenous inhabitants. The result is that the jurisdiction of the common law over Indigenous inhabitants is reaffirmed. The vision of law presented in Mabo (No. 2) is univocal. Presumably there is no need to
(re)present the issues in Mabo (No. 2) as issues of jurisdiction because the competence of the common law to render judgement is taken for granted. To engage with questions of jurisdiction is to raise the spectre of a possible plurality of legal orders and, as will be seen, legal plurality is, in the eyes of the High Court, incompatible with singular sovereignty.
Given the univocal language of the judgment, there was no need for the High
Court to consider the relationship of the common law to any other jurisdiction. Nor,
55 Milirrpum, supra note 28, at 262. 56 Mabo (No. 2), supra note 4, at 36. 213
necessarily, did the court remember a time when this occurred. It is notable that none of the colonial cases which considered how the common law related to indigenous law were cited in Mabo (No. 2). In fact, no colonial cases except Murrell were cited.
Undoubtedly, this was a result of the fact that of all the cases only Murrell was reported.
It was also a result of the fact that no serious plea to common law jurisdiction had been made in over a century. The exception was the judgement of Rath J, trial judge in the criminal jurisdiction of the New South Wales Supreme Court in, R. v. Wedge, in 1976.
On the authority of Murrell and Cooper, Rath J dismissed an argument that Wedge was not subject to the jurisdiction of the New South Wales Supreme Court on a charge of murder.57 Not only did Rath J find the arguments in Murrell convincing, but he also saw the challenge to jurisdiction as a challenge to the authority of the Supreme Court of
New South Wales, and the body of law it administers - the common law:
“The Court in which I have presided in this trial is the same Court as decided R v. Murrell. The Supreme Court of New South Wales had had an unbroken tradition since the third Charter of Justice was proclaimed in Sydney on 17th May, 1824. As a single justice of the Court, I am bound by the decision of the three justices in R. v. Murrell…”.58
The univocal view of the world presented in Mabo was reinforced in a number of cases which were determined soon after Mabo (No. 2) itself. Walker v. New South
Wales concerned an application by summons to dismiss a statement of claim by which
Walker, a member of the Noonuccal nation claimed that his actions should be governed by customary Aboriginal criminal law, not Australian criminal law. Mason CJ, at first instance, dismissed any suggestion that customary criminal law survived either English settlement or the introduction of the general provisions of English criminal law by the
57 R v. Wedge, supra note 37, at 587. 58 Ibid, at 586. 214
Australia Courts Act 1828. In a very short judgement, Mason CJ was at pains to reinforce the uniform nature of the criminal legal system. According to his Honour, “It is a basic principle that all people should stand equal before the law.”59 Further, and most tellingly, he stated that “English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.”60 Similarly to
Mabo (No. 2), therefore, Walker reinstitutionalises the place of the common law as the pre-eminent legal system in Australia and re-declares the right of the common law to determine its own jurisdiction and its relationship with alternative normative orders.
The univocal status of the common law as established in early cases such as Murrell and
Cooper v. Stuart remains undisturbed.
Once consequence of the unitary vision of law consistently reinforced by
Australian courts is that for the High Court there can be only one supreme internal, and therefore singular, legal authority. The High Court’s anxiety to maintain the unitary nature of Australian law is revealed in those recent decisions in which the sovereignty of the Australian nation has been challenged, or perceived to be challenged. Soon after the High Court decision in Mabo (No. 2), Isabel Coe, on behalf of the Wiradjuri People, to an area of traditional land in New South Wales. Inter alia, paragraphs 6-8 of the
Statement of Claim pleaded that the Wiradjuri were a sovereign nation, or, in the alternative, a domestic dependent nation.61 The matter was dealt with by the High Court at first instance on an application by the Commonwealth to strike out parts of the statement of claim. Relying on both Mabo (No. 2) and the earlier Coe decision in 1979
59 Walker, supra note 22, at 113. 60 Ibid. 61 See Coe v. Commonwealth, supra note 22, at 112. 215
in which the Wiradjuri had made a similar claim,62 Mason CJ struck out those parts of the statement of claim relating to sovereignty. His Honour made it clear that the Courts would not entertain any claims based on a sovereignty adverse to the Crown.
Specifically, he stated that:
“Mabo [No. 2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self- government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights or interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.”63
Yet again, this decision reinforces the right of the Australian legal system, and specifically the common law to determine when, and in what way, indigenous norms will be accorded a place within the white legal system. The High Court has constantly maintained that the only sovereign entity is the Australian nation.64 The High Court’s desire to maintain the singular nature of the Australian legal system is not unusual, but simply one example of a tendency towards cultural uniformity generally in the formation of the language of modern constitutionalism,65 a tendency which is a general characteristic of modernity.
Following the decision in Mabo (No. 2), therefore, the Court was concerned to clarify that while native title may have been recognised by the common law, it was in
62 Coe v. Commonwealth (1979) 53 A.L.J.R. 403. In this earlier report Paul Coe was described as a member of the ‘Wiradjeri Tribe’. 63 Ibid, at 115. 64 Legally, it is still unclear where sovereignty ultimately resides. At the time of settlement it was clear that ultimate sovereignty resided in the King in Parliament. It now seems clear that ultimate sovereignty resides in the people. However, that notion is not without qualification. One important qualification, for example, is to be found in s 128 of the Constitution. While the ultimate authority to change the Constitution lies with the people, this is subject to the requirements of s.128: see McGinty v. Western Australia (1996) 186 C.L.R. 140, at 274-5 per Gummow J. 65 For discussion of this tendency in Constitutionalism see Tully, J., Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge University Press, Cambridge, 1995. 216
effect an anomaly, an exception to the uniform and univocal nature of the Australian legal system. The court reinforced in Mabo (No. 2), Coe and Walker that the common law is the law of the land. The recognition of native title did not provide an opportunity to challenge either sovereignty or the authority of the common law or even High Court itself. There is in effect only one law – the common law.
Given the High Court’s approach in the above cases, it is unsurprising that an attempt to argue for the recognition of customary law beyond simply rights in land was unsuccessful. Although a number of cases in the area of criminal law have acknowledged traditional practices in the context of sentencing and defences to criminal matters,66 no case has actually granted status to customary law other than in the form of native title. The issue of recognition beyond rights to land was discussed by von Doussa
J in the Bulun Bulun case.67 The plaintiff, Bulun Bulun, brought an action for infringement of his copyright in an artistic work known as “Magpie Geese and Water
Lilies at the Waterhole”. The defendants had printed the design on clothing fabric. On one level, the argument was straightforward. The defendants admitted infringement of
Bulun Bulun’s copyright in the artistic work and withdrew the fabric from sale.
However, the claim did not just allege ownership by Bulun Bulun. In addition, it was alleged that equitable ownership of the work subsisted in the Ganalbingu people, as they are the traditional Aboriginal owners of Ganalbingu country and those who under the laws and customs of the Ganalbingu people have the right to permit and control the production and reproduction of the artistic work.68 This claim inevitably raised questions as to the status of such laws and customs. Could Ganalbingu law be enforced
66 See, for example, Neal v R (1982) 7 A. Crim R. 129, R. v. Miyatatawuy (1996) 6 N.T.L.R. 44, Munungurr v. R. (1994) 4 N.T.L.R. 63. 67 Bulun Bulun v. R & T Textiles Pty Ltd (1998) 157 A.L.R. 193 [hereinafter Bulun Bulun]. 68 Ibid, at 204. 217
within the Australian legal system? Were these rights incidents of native title? Or could these issues be reduced to questions of procedure and evidence?
Von Doussa J characterised the issue at stake thus:
“The Aboriginal peoples did not cease to observe their sui generis system of rights and obligations upon the acquisition of sovereignty of Australia by the Crown. The question however is whether those Aboriginal laws can create binding obligations on persons outside the relevant Aboriginal community, either through recognition of those laws by the common law, or by their capacity to found equitable rights in rem.”69
Von Doussa J rejected the notion that indigenous customs relating to protection of art and artistic works could be recognised within the Australian legal system, although he acknowledged, similar to the approach taken in cases involving sentencing for criminal matters, that evidentiary notice could be taken of such customs:
“The High Court’s decision in Mabo v. State of Queensland [No. 2] (1992) 175 CLR 1 shows that customary indigenous law has a role to play within the Australian legal system. … Whilst Mason CJ observed in Walker v. New South Wales (1994) 182 C.L.R. 45 at 49-59, that it is not possible to use evidence about indigenous customs and traditions to operate as “customary law” in opposition to or alongside Australian law … Australian courts cannot treat as irrelevant the rights, interests and obligations of Aboriginal people embodied in customary law.”70
For von Doussa J, Mabo (No. 2) and Walker were clearly to be understood as confirming that customary law was only to be recognised in the limited circumstance of rights to land, and that Australia was a univocal legal system. Thus, at the same time as acknowledging what he called “sui generis system[s] of rights and obligations”, von
Doussa J also reaffirmed the position of the common law as the pre-eminent jurisdiction and denied that rights and interests can be accorded other than by the Australian legal
69 Ibid. 70 Ibid, at 197. As a matter of law, von Doussa J held that no communal rights in artistic works could be founded through recognition of customary laws by the common law. Although he did not use the language of extinguishment, he held that s.8 of the Copyright Act 1968 (Cth) (“…copyright does not subsist otherwise than by virtue of this Act”) precluded recognition at common law: at 205. 218
system.71
Subsequently, however, it became increasingly difficult for the courts to maintain this position. Plaintiffs have sought to clarify and extend the decision in Mabo
(No. 2), with the result that the courts have been required to increasingly engage with questions concerning the relationship between the common law and indigenous jurisdictions. As a result, for the courts the challenge becomes one of limiting the recognition of indigenous norms to native title. Rather than denying the existence of indigenous norms, the task became one of containment, of both limiting the recognition of these norms to native title, and of limiting the doctrine of native title itself.72
Normative Systems and Jurisdictions a. Challenging univocality: intersecting laws
Initial challenges to the univocality of the common law were presented in the context of extinguishment. Following the recognition of native title in Mabo (No. 2), much of the legal argument in native title cases concerned the rules on extinguishment of native title. According to Brennan J. in that case, native title is extinguished by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.73 This most commonly takes the form of the grant of an interest by the Crown which is inconsistent with the continued existence of native title, for example an estate conferring exclusive possession, such as an estate in fee simple.74 Following Mabo (No.
2), however, the parameters of the inconsistency test, as it came to be known, were
71 Bulun Bulun, supra note 67, at 197. 72 The incidents and limits of the doctrine of native title are considered in Chapters Seven and Eight. 73 Mabo (No. 2), supra note 4, at 64-5, 68 per Brennan J. 74 This can be contrasted with the situation in Canada, where it has been held that the grant of an estate in fee simple does not necessarily exclude aboriginal use. The grant will only extinguish aboriginal title if the use to which the land is put is factually inconsistent with the continued existence of the aboriginal title: see Delgamuukw v. R (1993) 104 D.L.R. (4th) 470 (BCCA), at 532 per Macfarlane JA. 219
unclear.75 Thus, it fell to a series of cases following Mabo (No. 2) for the test to be further defined. The best known of these decisions is undoubtedly Wik.
Broadly put, the central issue in Wik was the effect of the grant of a pastoral lease on native title. In general, it was accepted by the Wik and Thayorre peoples that native title is extinguished by the grant of interests by the Crown which are wholly or partially inconsistent with the continued existence of native title, although the exact parameters of ‘wholly or partially inconsistent’ were unclear, as was the nature of a pastoral lease itself. However, while the Thayorre people, as it was put by Toohey J
“accepted the language of inconsistency”,76 the meaning of extinguishment was questioned.
Does native title simply cease to exist because of a Crown grant of land in the same physical space as is occupied by native title holders? Rather than accepting that native title ceased to exist, the Thayorre people argued that extinguishment really concerned restrictions on the enforceability of their laws and customs. In essence, the
Thayorre people argued that extinguishment is no more than a removal of common law recognition of native title. The grant of a Crown derived interest in land has no effect under traditional laws and customs. Thus, according to the Thayorre, no actual extinguishment, in the sense of ‘ceasing to exist’, occurs on the granting of an interest.
Rather, there is simply a failure of the common law to recognise indigenous norms.
Toohey J himself stated that “there is something curious in the notion that native title can somehow suddenly cease to exist, not by reason of a legislative declaration to that effect but because of some limited dealing by the Crown with Crown land. This is in no
75 On the issue of inconsistency see Dorsett, S., ““Clear and Plain Intention”: Extinguishment of Native Title in Australia and Canada post-Wik” (1997) 6 Griffith L.R. 96. 76 Wik, supra note 1, at 102. 220
way to impugn the power of the Crown to deal with its land. It is simply to ask what exactly is meant when it is said that native title to an area of land has been extinguished.”77
The purpose of the Thayorre people’s argument on extinguishment was that as extinguishment at common law only effects a lack of recognition within the common law system, extinguishment did not necessarily have to have a connotation of permanency. According to the Thayorre people, while extinguishment is operative within the legal space of the common law, it is ineffectual within that of the native title holders. Thus, once the action at common law which extinguished native title came to an end, there would be no reason why recognition could not be re-accorded to native title. For example, if native title ceases to be recognised (is ‘extinguished’) by the grant of a fee simple estate, then why could recognition not be re-afforded to that native title if the estate in fee simple reverted to the Crown? Extinguishment should not be seen as permanent, but as merely suspending native title. Predictably, however, the High Court held in Wik that extinguishment connotes a permanent state.78 Such a finding, however, does not deny the existence of jurisdictions other than that of the common law, merely that recognition cannot be re-accorded to native title interests once they are considered under the rules of the common law to have been extinguished.
Toohey J’s comments, above, go to the heart of any arguments about jurisdiction. How can ‘native title’ cease to exist simply because of a dealing with land
77 Ibid. 78 This is with the possible exception of Toohey J, whose judgment on this point is open to interpretation. It was confirmed in Fejo that extinguishment is permanent, and that no revival of native title is possible at common law: Fejo, supra note 3, at 127, 131. In 1998, the Native Title Act 1993 (Cth) was amended to include a definition of extinguishment. According to s237A: “The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.” 221
by the Crown? As seen in Chapter Two, jurisdictions are autonomous systems, which self-authorise and regulate. As the Thayorre People argued, what occurs in one system does not affect (on a legal level at least) what occurs in another jurisdiction. The failure to recognise according to the rules of the common law can in itself have no effect on the way in which Indigenous Australians understand and regulate their relations to land within their own world. On a practical level, however, there may be consequences which flow from extinguishment within the common law jurisdiction. As the common law is the law of the State, and therefore the dominant jurisdiction, extinguishment may take the form of authorising changes to the land, for example for residential, pastoral or developmental purposes, the result of which may lead to impairment of the relevant indigenous relationship to country. Nevertheless, the efficacy of the common law to
‘extinguish’ native title must be limited to that which is recognised within its own system.
A number of decisions subsequent to Mabo (No. 2) have also recognised that what happens at common law is not necessarily efficacious within, as it was put in Fejo,
‘the world of Aboriginal custom’.79 In Wik, in reiterating that native title is ‘recognised’ by the common law, Kirby J further noted that:
“This does not mean that, within in its own world, native title or any other incidents of the customary laws of Australia’s Indigenous peoples depends on the common law for its legitimacy or content.”80
Fejo itself concerned the effect of the grant of a fee simple estate on native title rights. The High Court unanimously confirmed that the grant of a fee simple estate extinguishes native title.81 Kirby J, in a separate judgment in which he came to the same
79 Fejo, supra note 3, at 151. 80 Wik, supra note 1, at 213. 81 Fejo, supra note 3, at 128, per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Callinan JJ. 222
conclusion as the majority, stated:
“The grant to John Benhyam in 1882 used the formula appropriate to a fee simple grant. Of its legal nature, that was incompatible with the continuance in respect of the same land of the fragile native title right which the Australian legal system will recognise. Doubtless, the bundle of interests which we call “native title” would continue, for some time at least, within the world of aboriginal custom. It may still do so.”82
In the Full Federal Court decision in Ward, North J stated the position even more clearly:
“The use of the word extinguishment is convenient as a shorthand reference. But it is inaccurate in a significant way. Whilst native title is not recognised by the common law in circumstances amounting to extinguishment, and is therefore ineffective under the common law system, native title does not cease to exist as an operative force among aboriginal people. It does not cease to exist for all purposes, only for the purposes of the common law. The use of the word extinguishment is apt to suggest that native title suffers a greater destruction than is the fact.”83
Given the recognition that “native title does not cease to exist as an operative force”, it became necessary for the High Court to engage with the issue of the relationship between common law native title and what happens within the world of
‘Aboriginal custom’. The result is that it is as a contact point, or as an intersection, between two systems that the High Court has come to regard native title. This was first described by the Court in Fejo. As outlined above, Fejo concerned the effect of the grant of an estate in fee simple on native title. Taking their starting point from the statement by Brennan J in Mabo (No. 2) that native title has its origins in traditional laws and customs, the High Court amplified their earlier comments:
“Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.
82 Ibid, at 151. 83 Western Australia v. Ward (2000) 179 A.L.R. 159, at 329 (FCA). 223
There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.”84
Two important concepts emerge from the above statement. First, there is “an intersection of traditional laws and customs with the common law”. There is, however, no indication as to what form that ‘intersection’ takes, nor how native title ‘sits/is formed/exists’ (and the verb choices are mine) at that intersection. Second, and merely repeating Brennan J in Mabo (No. 2), native title is not an institution of the common law. While these two aspects are clearly linked, the first, the ‘intersection’ of laws is discussed in this Chapter, while the second, that native title is not of the common law, is the subject matter of Chapter Seven.
Since Fejo, in almost every High Court decision at least one member of that
Court has reiterated that native title sits at the “intersection of traditional laws and customs with the common law”. In Yanner v. Eaton, the Gummow J simply quoted Fejo and repeated that “[w]hilst there is “an intersection” between them, common law (and statutory) estates and native title are derived from two distinct sources.”85 In Yarmirr, the main judgment (Gleeson CJ, Gaudron, Gummow and Hayne JJ) directly quoted
Fejo, above, and added that “[d]isputes of the present type require examination of the way in which two radically different social and legal systems intersect”.86 In Ward, the same four judges again simply quote Fejo.87 In Wilson, Kirby J again restates that the issue is one of ‘intersection’: “[s]ince Mabo (No. 2) there have been a number of decisions of the Federal Court and of this court, seeking to clarify the intersection
84 Fejo, supra note 3, at 128, footnotes omitted, per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ 85 Yanner v. Eaton, supra note 7, at 384. 86 Yarmirr, supra note 7, at 37. 87 Ward, supra note 7, at 92. 224
between Australian property law, as it has developed from its English origins, and native title rights which take their content from an ancient and very different legal system.”88
Despite Kirby J’s statement that both the High Court and Federal Court have sought to clarify this intersection, the above quotes in fact constitute (at least prior to
Yorta Yorta) virtually the entire jurisprudence on ‘intersection’. No real attempt was made to locate its place or nature. Similarly commentators have offered little help in determining this question. The major exception is Noel Pearson, whose concept of the
‘recognition space’ has been commented on by a number of other writers, if not by the
High Court itself.89 Pearson’s conception of the ‘recognition space’ is similar to the arguments of the Wik and Thayorre Peoples in Wik, outlined above, and originates in a similar time period. For Pearson, native title is “the space between two systems, where there is recognition.” Pearson is in no doubt that Aboriginal law is a legal system. For
Aboriginal Australians, it is also a “social reality”.90 The idea of the ‘recognition space’ proceeds from his denial that native title is an institution of Aboriginal law:
“The High Court tells us in Mabo that native title is not a common law title but is instead a title recognised by the common law. What they failed to tell us, and something which we have failed to appreciate, is that neither is native title an Aboriginal law title. Because patently Aboriginal law will recognise title where the common law will not. Native title is therefore the space between two systems, where there is recognition. … Adopting this concept allows us to see two systems of
88 Wilson, supra note 8, at 347. 89 Pearson, N., “The Concept of Native Title at Common Law”, (1997) Issue 5 Australian Humanities Review,
law running in relation to land. This is a matter of fact. No matter what the common law might say about the existence of native title in respect of land which is subject to an inconsistent grant, the fact is that Aboriginal law still allocates entitlement to those traditionally connected with the land the subject of the grant.”91
One of the results of this ‘recognition’ space for Pearson is that native title has two aspects: external and internal. The external aspect is that which is able to be described by the common law. For Pearson, if not the High Court, this external aspect should appear at common law as an ownership right, based on occupation and possession.92 The internal aspect is that which native title has in relation to its holders which must be ascertained by reference to Aboriginal law and custom, and which
“allocates rights and interests according to Aboriginal law and custom”.93
Pearson does not take this analysis any further. Nevertheless, it expands our thinking on native title. His staunch insistence that native title is not an Aboriginal law title, serves to remind non-Indigenous commentators that Aboriginal law continues to operate as an autonomous entity.94 Mantziaris and Martin have attempted to clarify or extend the ‘recognition space’ by analogising native title to the overlap in a Venn
91 Ibid. See also Pearson, N., “Principles of Communal Native Title” (2000) 5(3) I.L.B. 4, at 4-5. The idea that native title is not an Aboriginal law title is returned to in Chapter Seven. 92 Despite Toohey J’s comments on Mabo (No. 2), the High Court have chosen not to base native title on use and occupation, but rather on traditional laws and customs. This has, of course, led to a much more fragmented set of rights which are recognised than would be the case if title were based on occupation and possession. For an example of the latter approach see the decision of the Supreme Court of Canada in Delgamuukw v. British Columbia (1997) 153 D.L.R. (4th) 193. 93 Pearson, “Communal Native Title”, supra note 91, at 5. 94 Kado Muir has stated that: “As an Indigenous person brought up in a community which observed ‘the law’ first and then having to accommodate the vagaries of the Australian legal system, I was perplexed to discover there was limited recognition of ‘the law’ in the outside world”: Muir, “This Earth has an Aboriginal Culture Inside”, supra note 13, at 1. See also Borrows, J., “With You or Without You: First Nations Law (in Canada)”, (1996) 41 McGill L.J. 629. Borrows reminds readers that aboriginal laws continue to operate “with or without their reception into Canadian courtrooms” (at 662), First Nations law “originates in the political, economic, spiritual and social values expressed through the teachings and behaviour of knowledgeable and respected individuals and elders. These principles are enunciated in the rich stories, ceremonies and traditions of the First nations. … Some of these narratives pre-date the Common law, have enjoyed their effectiveness for millennia and have yet to be overruled or distinguished out of existence”. (at 646- 7, footnotes omitted). In this article Borrows provides a framework for the relationship between Aboriginal and common law and the place and use of Aboriginal law before the courts. 226
diagram. They draw overlapping circles, where indigenous law is one circle and common law is the other. The overlap’ is the recognition space, which is native title.95
However, again, this does not explain how legally the overlap or ‘recognition space’ functions within the Australian legal system? Can there be a space between systems? Is it in reality a space within the common law itself? If so, can native title really derive from outside the common law? None of these approaches explain the conceptual foundations of native title.
Notably, as was the case in Mabo (No. 2), and in other decisions such as Walker, the language of jurisdiction is absent both from these cases and attempts by subsequent commentators to conceptualise the intersection. While all recognise that Aboriginal law does not rely on the common law for ‘its operative force’, courts have scrupulously avoided use of the term ‘jurisdiction’ to describe bodies of Aboriginal law.
Nevertheless, it is clear that what is being described are jurisdictions separate to the common law. This raises questions as to how the relationship between the systems
(common law and the particular indigenous system at issue) is to be conceptualised and managed. Given the continuing reluctance of Australian courts to recognise customary law other than in the form of native title, native title inevitably becomes the contact point between the systems. This is where, if you will, the systems collide.
Why is there no language of jurisdiction? Problematically, while the High Court has acknowledged that native title sits at the intersection of common law with traditional laws and custom, and that native title may continue to operate within the world of Aboriginal custom, the High Court has consistently accorded Aboriginal law a status of something less than ‘law’, although that term has never been defined by the
95 Mantziaris & Martin, Native Title Corporations, supra note 89, Chapter One. 227
Court. In the above excerpts, the courts clearly recognise that ‘indigenous laws’ are not dependent on common law recognition or non-recognition for their existence. At the same time, the High Court has continued to deny that “dual” or “parallel” laws operate in Australia.96 These two statements seem incommensurate unless Aboriginal law is something lesser than ‘law’, than the common law itself. This taps directly into the
‘logic and habit’ of the common law, first seen in the seventeenth century and discussed in Chapter Two, of its own self-representation as superior to other sites of legal knowledge. Notably, in contrast to the High Court and most commentators, some
Aboriginal Australians, for whom Aboriginal law continues to be a daily reality, do use the term ‘jurisdiction’ in reference to their laws. 97
A further illogicality is introduced by the Courts’ recognition that ‘native title’ may, in spite of extinguishing events at common law, continue to operate ‘in the world of Aboriginal custom’. While this is undoubtedly true, the recognition by the High
Court that native title continues to operate sits uneasily with their denial of dual systems of law. Native title (or more accurately perhaps Aboriginal relationships to country because native title is only a white legal descriptor) must be authorised by some system, and that system is Aboriginal law. As outlined in Chapter One, jurisdictions self- authorise. That is the paradox and power of jurisdiction. Native title continues to exist because it is authorised to do so by the body of law from which it derives – Aboriginal law. It is also the power of jurisdiction that a body of law, such as the common law, can deny that for its purposes there is no other law. It can determine that Aboriginal law is
96 Wik, supra note 1, at 214, per Kirby J. 97 See, for example, Mabo, E. Jnr., “A Treaty for Whom? Indigenous Jurisdictions and the Treaty Sideshow”, conference paper delivered at the ‘Treaty – Advancing Reconciliation’ Conference, Murdoch University, Perth, 26-28 June 2002, at
something less than law. However, while that may be efficacious within the common law, it cannot change the fact that there is more than one body of law extant in the geographical space occupied by the Australian nation.
Pearson’s ‘internal’ and ‘external’ aspects of native title also speak clearly to this reality of dual laws. Chapter Two outlined the way in which multiple jurisdictions historically co-existed in England. Each jurisdiction was a separate ‘legal system’, functioning autonomously, but with rules for managing conflict and overlap. Each therefore, had, in Pearson’s terms, an ‘internal’ and ‘external’ aspect. Its internal aspect was just that – internal. Other jurisdictions had nothing to say about the authority and competence of a jurisdiction and its ability to internally regulate, or the ability and authority of its judicial and administrative bodies to manage. On the other hand, it could, in Pearson’s language, also be said to have an ‘external aspect’ in so far as conflicts or disputes over competence to determine a matter did occur. In particular, as stated in Chapter Two, the common law had a series of technologies by which it regulated its relations with other bodies of law, and by means of which it usurped the traditional authority and jurisdiction of these other bodies. Chapter Seven returns to these technologies and examines the ways in which echoes of these techniques can be seen in native title decisions.
It appears that the High Court has forgotten the history of the body of law which it administers. It has lost any substantive notion of common law jurisdiction, or the idea that jurisdiction attaches to bodies of law. Its inability (or unwillingness) to articulate legal relations between indigenous and non-indigenous through the language of jurisdiction has left it unable to articulate these relations, or to reconcile the seeming inconsistencies with which their judgments are riven. Why will the Court not recognise indigenous law, or the existence of multiple jurisdiction? It seems that the answer must 229
lie with sovereignty and the way in which sovereignty and jurisdiction have become compressed so that a challenge to jurisdiction is a challenge to sovereignty. The final part of this chapter examines the way in which sovereignty, jurisdiction and territory have become homologous, and some alternative ways of thinking about the relationship between the three. However, before so doing, the next part examines in some detail the
High Court’s decision in Yorta Yorta, a judgment which is arguably the most important judgment on native title since Mabo (No. 2), and one in which the High Court attempts to provide an understanding of the legal relations between indigenous and non- indigenous. b. Yorta Yorta
In examining Yorta Yorta it is necessary to return to the starting point of this
Chapter: sovereignty. Just as Mabo (No. 2) was, Yorta Yorta is a decision all about sovereignty. Unlike Mabo (No. 2), however, in this case the High Court is more overt in its concerns over possible challenges to the sovereignty of the Australian nation and is anxious to reinforce the status of that sovereignty as singular. In other native title cases, concerns about sovereignty hovered at the periphery. In Yorta Yorta, however, sovereignty is lynchpin of the decision. Concerns to ensure singular sovereignty led to the most emphatic denial of pluralism in the Australian legal system enunciated by the
Court to date.
Yorta Yorta concerned an application for a determination of native title with respect to an area which straddled the New South Wales/ Victorian border. The Yorta
Yorta commenced their claim in 1994, and it was one of the first claims lodged under the Native Title Act. Section 223(1) of the Act defines native title, and much of the argument before all courts centred on the correct interpretation of this section and in 230
particular of the word ‘traditional’.98 The word ‘traditional’ raised questions as to what did it mean for laws and customs to be ‘traditional’? How much could they change or
‘evolve’? What evidence was required of their transmission across the generations?
At first instance, Olney J found that native title did not exist on the grounds that native title had been extinguished by reason of loss of connection with the land. In so deciding, of crucial importance was the issue of the extent to which the Yorta Yorta still observed their traditional laws and customs. To succeed it was necessary to show that the Yorta Yorta were still a ‘traditional society’. In order to prove this what was required was an historical account of the laws and customs of the Yorta Yorta at the time of European contact. Native title could only survive if these laws and customs continued to be observed by the claimants.99 According to Olney J, the Yorta Yorta were unable to demonstrate that their contemporary practices demonstrated a continuous link back to the laws and customs of the original inhabitants. Thus, these practices did not have “the character of traditional laws acknowledged and traditional customs observed” as required by the common law and statutory definitions of native title.100 As a result, their title had been “washed away” by the “tide of history”.101
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 104 Section 223 provides that: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait islanders; and b) the Aboriginal peoples or Torres Strait islanders, by whose laws and custom, have a connection with the land or waters; and c) the rights and interests are recognised by the common law of Australia. 99 Members of the Yorta Yorta Community v. Victoria [1998] FCA 1606, at [3-5]. 100 Ibid, at [128]. 101 Ibid, at [126]. Olney J’s decision has been the subject of much criticism. See, for example, 231
The Majority of the Full Federal Court, Branson and Katz JJ upheld the trial judge’s decision, but in so doing rejected the so-called ‘frozen rights’ approach of requiring the tracing of tradition from pre-contact. While Black C.J. dissented, holding that Olney J had erred in applying too restrictive an approach to the concept of
‘traditional’, all members of the court were in substantial agreement that the traditional laws and customs that form the foundation for native title may adapt and change. The majority stated that:
“The test of whether a law acknowledged, or a custom observed, is a traditional law or custom is … principally an objective test. The primary issue is whether the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community.”102
Despite ongoing assertion of rights to land and maintenance of community identity, the majority supported Olney J’s findings that at some point after 1788 the
Yorta Yorta had lost their character as a traditional Aboriginal community, with the result that native title had ceased to exist.103
Before the High Court the judgments again considered what it means to say that native title rights must be based on traditional laws and customs. In determining this matter, the main judgment of Gleeson CJ, Gummow and Hayne JJ again started with the now familiar words from Fejo: “Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an
Kerruish V., Perrin, C., “Awash in Colonialism”, (1999) 24 Alt. L.J. 3; Reilly, A., “The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title” (2000) 28 FLR 453; Pitty, R., “A Poverty of Evidence: Abusing Law and History in Yorta Yorta v. Victoria (1998)”, 5 Aust. J. Leg. Hist. 41; Land, C., “Representations of Gender in E.M. Curr’s “Recollections of Squatting in Victoria”: Implications for Land Justice through the Native Title Process”, (2002) 5 ILB 6. 102 Members of the Yorta Yorta Community v. Victoria (2001) 180 A.L.R. 655, at 688 (FFC). 103 Ibid, at 701. 232
intersection of traditional laws and customs with the common law.”104 Thus, any application for a determination of native title “requires the location of that intersection”.105 Furthermore, the intersection was to be located by reference to the
Native Title Act, and the definition of native title in s223(1).106 The approach that any investigation must commence with the Native Title Act, not the common law itself, was not new, having been the opinion of a number of members of the High Court in previous decisions.107 It was also a decision which has received some criticism, not least from another member of the Court, McHugh J.108
Having confirmed yet again that the Crown’s acquisition of sovereignty is non- justiciable, according to the main judgment in Yorta Yorta the most salient consequence of the assertion of sovereignty by the British Crown was that the normative system which existed prior to the assertion of sovereignty could not thereafter validly create new rights.109 Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power would not be given effect by the legal order of the new sovereign. This is so because the assertion of sovereignty by the British Crown ‘necessarily entails’ that there could be no parallel law-making system in the territory over which it asserted sovereignty. If only a sovereign order can make law, and post-sovereignty there is only one (the new) sovereign order, it then follows, according to the logic of the main judgment, that the only rights or interests in relation to land or waters originating otherwise than in the new sovereign order are those that find their origin in pre-
104 Yorta Yorta, supra note 5, at 493. Emphasis added in Yorta Yorta. In this Chapter analysis of Yorta Yorta is largely confined to the main judgment. 105 Ibid. 106 Ibid. 107 Yarmirr, supra note 7, at 35; Ward, supra note 7, at 65-66. 108 Yorta Yorta, supra note 5, at 467. 109 The main judgment was delivered by Gleeson CJ, Hayne, and Gummow JJ. 233
sovereign law and custom.110 Laws and customs can only have meaning if they continue on, as an entailment of those laws and customs prior to the acquisition of sovereignty by the British Crown.
Furthermore, in order to be recognised under the Native Title Act, those laws and customs must have some normative content:
“… it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system - the body of norms or normative system that existed before sovereignty”.111
Without a normative content “there may be observable patterns of behaviour but not rights or interests in relation to land or waters”.112 Thus “to continue the metaphor of intersection, the relevant intersection, concerning as it does rights and interests in land, is an intersection of two sets of norms”.113 How then can normative be distinguished from non-normative?114 There was, of course, no discussion of whether
European laws were normative, but surprisingly, there was equally no discussion of whether Aboriginal laws were in fact normative. Rather, having set this requirement for recognition, the main judgment then side-stepped any consideration of the argument because such an inquiry would be neither “fruitful” nor “productive”:
“A search for parallels between traditional law and traditional customs on the one hand and Austin's conception of a system of laws, as a body of commands or general orders backed by threats which are issued by a sovereign or subordinate in obedience to the sovereign,
110 Yorta Yorta, supra note 5, at 453. 111 Ibid, at 441. For a discussion of the requirement of normativity in Yorta Yorta see Ankar, K., “Law in the Present Tense”, supra note 13. 112 Yorta Yorta, ibid, at 443. 113 Ibid, 441. 114 The work of H.L.A. Hart’s The Concept of Law was offered as an example of a theory of law that could be used to distinguish legal rules from habitual behaviour. However, Hart’s work on primary and secondary rules of recognition does not discuss normativity as such, although his concept of “internal attitudes” are a core element of normativity: Hart, H.L.A., The Concept of Law, 2nd ed, Oxford, Clarendon Press, 1994 (1961). 234
may or may not be fruitful. Likewise, to search in traditional law and traditional customs for an identified, even an identifiable, rule of recognition which would distinguish between law on the one hand, and moral obligation or mere habitual behaviour on the other, may or may not be productive.”115
Further, it was unnecessary to determine whether Aboriginal laws were normative as the definition of ‘native title’ in s223(1) includes both traditional laws and customs.116
The result, therefore, of the main judgment is this: native title is the intersection of two sets of norms. That intersection occurred once - on the assertion of sovereignty.
Without defining normative, we know that Aboriginal laws prior to sovereignty are to be taken as such, if for no other reason than because of the definition of native title.
However, if there can be no parallel-law making post-sovereignty, what then is now the status of these laws and customs? What happened to these normative systems in 1788?
Once (arguably for the main judgment) legal in nature, what becomes of them post- sovereignty? This is never directly addressed. Rather, the majority speaks of rights and interests and of an “identified body of law and customs” that are the creatures of a particular society that exists as a group and which acknowledged and observed those law and customs and continues to do so.117 So what was once legal is no more because it has been stripped of law-making capacity. In the eyes of the common law it has been downgraded from (possibly) law to something less. Ankar describes native title as an
‘empty shell’. She states that “[t]o speak of surviving rights, and interest, or an enduring legal system, without the capacity to create law, gives the system the character of a shell empty of organism to animate it and give it social sense”.118
115 Yorta Yorta, supra note 5, at 442-3, footnotes omitted. 116 Ibid, at 443. 117 Ibid, at 445. 118 Ankar, “Law in the Present Tense”, supra note 13, at 20. 235
Such a conceptualisation makes it difficult to envisage how the changes and evolutions of these customs that inevitably must occur in the wake of European occupation could be reflected in native title. While the majority denies that customs and traditions are ‘frozen’, the main judgment’s formulation of custom and tradition as tied to pre-sovereign formations inevitably lead towards a native title which is disarticulated from the normative system in which it is sourced. In one jurisdiction law and tradition change and evolve. In the other, they remain tied to an earlier era.
Despite the overt denial of legal pluralism in Yorta Yorta, the jurisdictional analysis built up over the last three chapters of this thesis provides a framework for understanding the plurality of bodies of law which operate in Australia. The recognition or non-recognition of Aboriginal law by the High Court can have no effect on the existence of Aboriginal laws. They are, as anthropologists put it, a social fact. It is, of course, within the competence and authority of any jurisdiction to determine what it will and will not recognise for its own internal purposes. But it is not within the competence of that jurisdiction to determine matters internal to another jurisdiction. Regardless of rules on native title at common law, Aboriginal law can and does continue to internally regulate relations to country and all that flows from that.
Once the ‘normative orders’ in Yorta Yorta are understood as jurisdictional entities, it also becomes far from axiomatic that the intersection between these jurisdictions and the common law took place only once. As discussed, typically, within common law such intersections have been understood and justified in terms of the history of an institutional and conceptual practice. Historically, common law recognition of other jurisdictions was never a ‘once and for all’ recognition.
Intersections (to use the High Court’s language) happened not once, but on an ongoing basis. Autonomous bodies of law co-existed with the common law. Only when a 236
conflict occurred would rights and interests be determined – according to the shape they had at that time, not at some arbitrarily determined earlier time. Just as the common law changed and grew over time, so the law in non-common law jurisdictions also continued to change, adjust and respond to new circumstances.
The self-representation of the common law in Yorta Yorta is similar to that seen in Chapter Two. Despite the fact that contemporary common law operates four centuries later, and half a world away from that described in Chapter Two, it self-portrays in a similar way. The common law was, and is, the self-proclaimed ‘law of the land’. More than that, it was, and is, the law of the sovereign nation. Just as in the seventeenth century, the common law represents itself, to itself and to the nation, as the only law of the land. Further, in Australia the common law has a much stronger claim to uniformity than, for example, in the United States. In the United States the common law varies from state to state. There is no single common law. In Australia, by contrast, the claim can be made that there is a common law.
The High Court is similarly anxious to maintain a self-representation of internal consistency and coherence, a task which in Yorta Yorta leads to yet another denial of indigenous jurisdictions. As outlined in Chapter Two, the common law’s self- authorised vision of itself as the unified, univocal law of the land was, by the end of the seventeenth century, entrenched and had become part of common law orthodoxy. It had become axiomatic that the common law was, and had always been, the law of the
English, and that all other laws were subordinate to it. That is a ‘habit and logic’ of the common law which transferred to Australia, and which, in the absence of a post- colonial settlement driven from outside the common law, has continued to structure and underpin the way in which the contemporary common law orders its relations with non- common law jurisdictions. As discussed in Chapter One, without any substantive notion 237
of what it means to have jurisdiction, jurisdictions are required to constantly police their own boundaries, to redetermine the limits of their own authority on a case-by-case basis. Yorta Yorta is an example of boundary policing. Arguments about native title constantly raise issues of the limits of common law authority, and hence the authority of the High Court itself. By declaring that singular sovereignty is axiomatic, the High
Court ties their authority to that of the nation. A declaration that there is no parallel law- making ensures that the common law, and hence the High Court, has plenary authority.
However, the High Court’s anxiety to maintain singular sovereignty in Yorta
Yorta confuses the need of modern states to point to a supreme internal legal authority with the authority and the capacity to decide and determine within a limited sphere under the auspices of the national law. This is particularly ironic in a federal system, such as Australia, which is based on the notion of singular sovereignty and fragmented jurisdiction. As outlined in Chapters Two and Three, multiple jurisdictional authorities have long been recognised within the tradition and history of the common law as compatible with single sovereignty. The final part of this Chapter, therefore, returns to the link between sovereignty, territory and jurisdiction.
Sovereignty, Territory, Jurisdiction
This part briefly considers a theme which runs through both the colonial case law on common law jurisdiction over Indigenous Australians and the modern native title cases: namely the connections between sovereignty, territory and jurisdiction. In so doing, this part returns to some of the colonial cases, examines concerns about sovereignty and jurisdiction, and traces how these concerns play out in modern High
Court jurisprudence. As will be seen, the High Court’s concern that Aboriginal jurisdictions are incompatible with, and a threat to, singular sovereignty, can be traced 238
to determinations in the mid-eighteenth century. However, at the same time as the New
South Wales and Western Australian Courts were collapsing jurisdiction into sovereignty, courts of other colonies were recognising that multiple jurisdictions could exist in one territorial sovereignty unit. In this part, therefore, some brief discussion will be made of a number of cases from other colonial jurisdictions which demonstrated alternative understandings of the relationship between sovereignty, territory and jurisdiction. a. Australia
The linking of the three concepts of sovereignty, territory and jurisdiction by the courts in Australia is problematic for the recognition of indigenous jurisdictions. By and large, as outlined in Chapter One, at least since Westphalia, the concept of sovereignty has been tied to that of territory. In modern parlance, we speak of sovereign territory.
We also speak of territorial jurisdiction. This is the type of jurisdiction typical of modernity in which nation states are sovereign within defined borders, and official state law predominates. As stated in Chapter One, since the rise of the sovereign territorial state, jurisdiction has become understood primarily for its connections to that sovereign state. The result has been the obscuring of different, less obvious, forms of ordering – such as indigenous jurisdictions. Territorial jurisdiction operates in a ‘blanket fashion’, juridifying all people and matters within its defined boundaries. As the common law is the law of the land it operates uniformly throughout the territory, leaving no room in the eyes of the High Court for the operation of non-common law, or indigenous, jurisdictions.
As also discussed in Chapter Four, initial decisions of the New South Wales denied common law jurisdiction over Indigenous Australians. There is little in the judgments to suggest that in so doing they considered that there was any incompatibility 239
between indigenous jurisdictions and Great Britain’s sovereignty. Their view of the common law was not spatial, but conceptual. In Ballard, for example, it appears that
Forbes CJ viewed common law jurisdiction as based on status, rather than territory. He accepted that the common law applies to colonists, and to the Aborigines where violations have occurred to either the person or property of these colonists. However, he also accepted that in matters inter se indigenous jurisdiction is maintained.119 There was no suggestion in Ballard that the on importation into New South Wales the common law automatically became the law of the land so as to bind colonists and Aborigines alike. In the later decision in Bonjon, Willis J specifically rejected such an argument.
The Crown Prosecutor argued that as a consequence of settlement the common law was transferred to the Port Philip District, so as to bind all persons in the area.120 While
Willis J was not ultimately required to determine whether the common law had jurisdiction over ‘the natives’, he did hold that the Aborigines were a ‘distinct tribe’, which was self-governing.121 Again, the common law did not bind all persons within the territory, nor was the self-governing and dependent nature of the Aboriginal tribes a threat to the sovereignty of Great Britain. Willis J was able to point to a number of examples from around the Empire, in which distinct peoples continued to be governed by their own laws under the auspices of British sovereignty.122 Some of these will be mentioned below. In both of these cases, jurisdiction was accepted to operate independently of sovereignty.
However, in the two main cases in which common law jurisdiction was asserted
119 See Chapter Four. R. v. Ballard, unreported decision of the Supreme Court of New South Wales, 13 June 1829, per Forbes CJ and Dowling J The notebook is to be found at Proceedings of the Supreme Court, Vol 22, Archives Office of New South Wales, 2/3205, at 98. A transcript of the notebook of Dowling J is provided by Kercher in (1998) 3 A.I.L.R. 412. 120 R. v. Bonjon (1841), published in (1998) 3 A.I.L.R. 417, at 417. 121 Ibid, at 425. 122 Ibid, at 424. 240
over Indigenous Australians questions of sovereignty are more overt. In Murrell, the
Attorney-General had strongly argued that English law did not recognise any independent power to exist in a British territory and that it “cannot be admitted to set up a law or usage contrary to the laws of England”.123 This argument was effectively accepted by the court, which held that as English nation had rights of Domain and
Empire, the law of England was the law of the land.124 The decision of the Magistrate’s
Bench in Re We-war was even stronger. The Bench considered jurisdiction to be “an inseparable incident of sovereignty”, and that the “law of [the] nation must be paramount co-extensively with territorial sovereignty”.125 Both of these decisions, and in particular Re We-war, strongly pre-figure the High Court decision in Yorta Yorta. Re
We-war presents the same vision of legal ordering, in which sovereignty, territory and jurisdiction are compressed, which characterises the modern Australian native title decisions. In so doing it reproduced a vision of sovereignty and jurisdiction derived not from within the traditions of the common law itself, but from the emerging international law, and justified by recourse to writers such as Vattel.126
Interestingly, while the Bench in Re We-war were concerned to tie sovereignty to jurisdiction, at least one contemporary commentator, Francis Lochee, advocated a more flexible approach. According to Hunter, he argued that there was “a distinction between personal and territorial law, stating that there were customs practiced under personal law that were not punished under British criminal law, (such as in India) even though they would be considered an offence.”127 He further noted that territorial
123 Murrell, supra note 35, at 415. 124 Ibid, at 416. 125 Re We-war, supra note 36. 126 Vattel, E., de (Chitty, J. ed), Droit des Gens ou Principles de la Loi Naturelle Appliques aux Affairs des Nations et des Souvrains, T. & J.W. Johnson & Co., Philadephia, 1863 (1758). 127 The Inquirer, Editorial, 20 January 1842, in Hunter, A., “The Boundaries of Colonial Criminal law 241
sovereignty was not necessarily co-extensive with jurisdiction in all cases:
“Perhaps the relation that exists between the red Indians of North America, and the Government of the United States, may afford a parallel case to ours, but there (I understand) although the territorial sovereignty of the Americans extends over a great part of the land of the Red Savage, the latter is answerable only to the laws of his own tribe for offences committed against any of his own people.”128
As seen in Chapter Four, decisions later in the nineteenth century denied that the customs and traditions of Indigenous Australians amounted to law. At least since the decision in Cooper v. Stuart, Australia had been understood to be a terra nullius. The effect of this understanding was to define Australia as a legally empty territory, ready to be filled by the common law. Indeed, this was the picture presented in Brennan J’s judgment in Mabo (No. 2). As discussed above, according to Brennan J, on importation, the common law became not only the law of the colonists, but the law of the land.
Brennan J’s judgment presents a simple picture of the legal acquisition of Australia: in
1788 sovereignty was acquired over the entire eastern part of the continent, and on arrival of the colonists the common law became the law of half the continent. This is a picture reinforced in subsequent native title decisions.
Problematically, this picture ignored the fact that Brennan J himself in Mabo
(No. 2) held that Australia had not been terra nullius. This version of the legal origins of the colony also ignores the British acknowledgement in the late eighteenth century that claiming territory only led to an inchoate title which required effective occupation to perfect it.129 Sovereignty was in fact acquired slowly, as the colonists moved out from
Sydney. Nor is there any indication in Mabo (No. 2) that there were early challenges to the jurisdiction of the common law. The picture presented of acquisition of sovereignty
in Relation to Inter-Aboriginal Conflict (‘Inter Se Offences’) in Western Australia in the 1830s- 1840s”, (2004) 8 Aust. J. Leg. Hist. 215, at 230. 128 The Inquirer, 20 January 1842, at 4, in ibid. 129 See generally Lindley, The Acquisition and Government of Backward Territory, supra note 29. 242
over the territory of New South Wales, on the heels of which the common law immediately followed, is in stark contrast to the more equivocal and hesitant picture of common law jurisdiction presented in Chapter Four. Mabo (No. 2) presents an image of the importation of law in which the physical space of the continent and the jurisdictional space of the common law are co-extensive. The common law immediately filled and inhabited the entire eastern side of the continent – as a new colonial territory.130 In this version of the origins of the colony of New South Wales, sovereignty, territory and
(common law) jurisdiction are homologous. The common law is the (only) jurisdiction of the sovereign territory. Ultimately, in Yorta Yorta the only way to maintain the univocal territorial jurisdiction and sovereignty which is a feature of modernity was to deny continued law-making capacity to indigenous jurisdiction post-1788.
However, this particular modern construct of territorial jurisdiction should not obscure the fact that other forms of ordering not only existed until comparatively recently, but continue to exist. Territorial jurisdiction and singular sovereignty are not necessarily incompatible with indigenous jurisdictions. The possibility of other forms of ordering than that portrayed in Yorta Yorta exist within the history of the common law itself. In addition to the early colonial case law in New South Wales, discussed above, the plurality of jurisdictions in early modern England, of which the common law was only one, was discussed in Chapter Two. As seen in Chapter Three, a plurality of jurisdictions was characteristic of a number of England’s colonies, such as Minorca. A number of examples of different colonial orderings will be outlined below.
However, for the High Court it seems that sovereignty, territory and jurisdiction have become interdependent in a way which means that questioning any one part
130 The precise delineation of ‘territory’ relies on the technology of mapping. This is the subject of Chapter Six. 243
(jurisdiction) is to challenge the whole (the sovereignty of the nation). Because jurisdiction has effectively been collapsed into sovereignty for over one hundred years it appears that the High Court now regards any attempt to argue multiple jurisdiction as an attack on singular sovereignty. To paraphrase Wittgenstein, “a picture holds [the High
Court] captive. And [they] cannot not get outside it, for it lies in our language and language seems to repeat it to us inexorably”.131
It is not only the High Court, however, that has linked authority to sovereignty.
Indigenous commentators frequently utilise the language of sovereignty in talking about authority and power, although with varying meanings attributed to the word itself. Some have specifically linked the on-going existence of traditional law and culture to sovereignty, and continue to claim that their sovereignty has not been extinguished. For example, Pat Dodson recently stated that the “reconstruction of the settlement thesis by the High Court, in order to accommodate Native Title fundamentally undermines it. The sovereign pillars of the Australian state are arguably, at the very least, a little legally shaky”.132 For others, sovereignty connotes self-control and decision-making capacity:
“Sovereignty can be demonstrated as Aboriginal people controlling all aspects of their lives and destiny. Sovereignty is an independent action. It is Aborigines doing things as Aboriginal people, controlling those aspects of our existence which are Aboriginal. These include our culture, our economy, our social lives and our indigenous political institutions.”133
It is not surprising, therefore, that for the High Court, anxious to shore up singular state sovereignty, recognition of aboriginal laws has become inextricably tied to challenges to sovereignty. However, from the discussion of jurisdiction in this and
131 Wittgenstein, L., Philosophical Investigations, Blackwell, Oxford, 1983 (1953), s115. 132 Dodson, P., “Sovereignty” (2002) 4 Balayi: Culture Law and Colonisation 13, at 18. 133 National Aboriginal and Islander Health Organisation, Sovereignty (1983)
previous chapters it can be seen that this version of sovereignty, in which it is linked to decision-making capacity, also could equally be understood as jurisdiction, and not necessarily antithetical to state sovereignty.134
Finally, because the predominant mode of jurisdiction is territorial jurisdiction, any attempt to argue for jurisdiction could be viewed as an endeavour to carve out territorial niches for Indigenous Australians. In the interdependent world of sovereignty, territory and jurisdiction, such territorial spaces would in turn almost certainly be viewed as threat to singular sovereignty. For the High Court, as for some commentators,
“[t]he power of law is always a territorial question”.135 This, however, ignores the history of the common law itself. b. Colonial Examples
The possibility of the co-existence of common law and non-common law jurisdictions in various parts of the Empire was well-recognised by colonial courts. In this part, several examples from India, Canada and the United States are given in order to demonstrate other ways of thinking about the relationship of common law and non- common law jurisdictions. Notably, Australian colonial courts, and the barristers who appeared before them, frequently referred to practice in other jurisdictions. Counsel who pleaded to the jurisdiction of the colonial common law courts often pointed to examples of the co-existence of common law and non-common law jurisdictions in other colonies.
In Murrell, for example, Stephen, who acted as Counsel for Murrell, pointed to Mostyn v. Fabrigas, and the general practice in conquered colonies, whereby the law of the conquered remained in force, and applied to those conquered, while the common law
134 For jurisdiction as an alternative to the idea of sovereignty in the work of Indigenous Australians see the references supra, fn 102, 135 Farmer, L., “The Law of the Land: Criminal Jurisdiction 1747-1908” in Rush, P., McVeigh, S., Young, A., Criminal Legal Doctrine, Ashgate, Aldershot, 1997, at 63. 245
applied to the British.136 Barry also referred to the Cape of Good Hope as an example of multiple jurisdiction. In Ruding v. Smith, a case concerning marriage in the Cape of
Good Hope, Lord Stowell noted that the conquerors could not automatically be subject to the laws of the conquered, “for clearly the Dutch law, taken by itself, cannot directly and by its own force bind them.”137 He continued that the rule that the laws of a conquered country remain until altered is a “reference to its obligation upon those whose usage it already existed, and not to those who are entire strangers to it…”.138
The example of India was also mentioned in a number of colonial decisions. In
Freeman v. Fairlie, as briefly discussed in Chapters Two and Four, it was determined by Master Stephens that both English common law and ‘hindoo’ law functioned within the area subject to the delegated sovereignty of the British East India Company.139 In
Advocate-General of Bengal v. Dossee, a somewhat later case, it was determined that the personal property of a ‘Hindoo’ who had committed suicide should not be forfeited to the British Crown, as he was not subject to the common law rule of felo de se.140
Dossee turned on the question of whether English law, and that particular rule of
English law, had been introduced to Calcutta, and if so, whether it applied to “Hindoos and Mahomedans, as well as to European British subjects”.141 Initially, English law was introduced into Calcutta in 1726 by Charter of George I. At that time, Calcutta was
‘merely a Factory’, established for trade. It was not part of the dominions of the Crown, although the English exercised jurisdiction over it. Thus, only English subjects could be bound by English law. Such settlements were made in “a very populous and highly
136 Mostyn v. Fabrigas (1774) 1 Cowp. 161 (98 E.R. 1021). 137 See Ruding v. Smith (1821) 2 Hag. Con. 371, at 380 (161 E.R. 774, at 777). 138 Ibid. 139 Freeman v. Fairlie (1828) 1 Moo. Ind. App. 305 (18 E.R. 117). 140 Advocate-General of Bengal v. Ranee Surnomoye Dossee (1863) 9 Moo. Ind. App. 391 (85 E.R. 786. 141 Ibid, at 398 (E.R. 789). 246
civilised country”, so that English law could not at that time apply to the natives.142 On acquisition of sovereignty, the local laws remained in place. Thus, common law applied to the British, and local law to the ‘natives’. Thus, while sovereignty was vested in the
British Crown, both common law and ‘Hindoo’ jurisdictions operated under the banner of that sovereignty.143
Possibly the best case example of co-existing jurisdictions is that of the
Canadian case of Connolly v. Woolrich. Monk J came to a similar conclusion to those above in respect of the area covered by the Hudson Bay Company. His judgment is particularly interesting, as he specifically acknowledged the possibility of joint occupation of land. In essence, he founded jurisdiction on status, rather than territory.
Connolly is generally considered to be the leading colonial decision from Canada on customary law and is worth considering in some detail on this issue. Connolly involved the common law recognition of customary marriage. The cases concerns Connelly’s two marriages: the first to a Cree woman at Rivière-aux-Rats in Rebaska County, in the
Hudson’s Bay Territory, and the second to a British woman in Lower Canada. The first marriage occurred in 1803 and was performed according to Cree law. The second was in 1832 and was performed according to the law of lower Canada and “the rites of the
Church of Rome”. The action in Connelly was commenced by a son from the first marriage for recovery of the estate. The issue before the court, therefore, was the validity of the first marriage. As Monk J put it at first instance, the central question was,
“whether the law of England , in regard of marriage, prevailed at Rivière-aux-Rats, in
1803, or whether the law of France or of her contiguous colonies, or the Canon law, or
142 Ibid, at 429 (E.R. 800). 143 Ibid, at 430 (E.R. 800). See also Lyons (Mayor of) v. East India Co. (1836) 1 Moo. Ind. App. 175 (84 E.R. 66); The “Indian Chief” (1801) 3 C.Rob 12 ( 165 E.R.367) 247
the decrees of the Council of Trent, were in force; or finally, whether the Indian customs and usages constitute the only rule by which this court can be guided…”.144
Monk J determined that the law of France had never been in force in the area.
While it seemed likely that French traders had visited the area, they had not as such extended trading explorations there and Monk J had no evidence of their activities in the area. Moreover, “[n]either the French Government, nor any of its colonists … ever attempted to subvert or modify the laws and usages of the Aboriginal tribes, except where they had established colonies and permanent settlements, and, then, only by persuasion …”.145
Nor was the law of England in force at Rivière-aux-Rats in 1803. The Rebaska region was not within the chartered limits of the Hudson’s Bay Territories, nor under the jurisdiction of the Company.146 Moreover, leaving the Charter aside, and applying the rules of discovery, even if the discoverers brought the common law as their
“birthright”, those laws did not apply to the Cree. Rather, Monk J contended that the laws of the Indian tribes were not abrogated, “but were left in full force, and were not even modified to the slightest degree in regard to the civil rights of the natives”.147 In so deciding he “could do no better than to cite the decision of the learned and august tribunal, the Supreme Court of the United States, … [i]n the celebrated case of
Worcester, against State of Georgia …”.148 Like Willis J in Bonjon, Monk J applied
Marshall CJ’s judgment so as to conclude that Indigenous laws remained in force and valid inter se. However, he did not specifically frame the relationship between ‘the
144 Connolly v. Woolrich, supra note 46, at 75. 145 Ibid, at 77. 146 Ibid, at 76. 147 Ibid, at 79. 148 Ibid. 248
natives’ and the Crown in terms of sovereignty, although he did refer to the ‘political rights’ of the Indians. After all what was at stake was a matter of private law, not involving the rights of the Crown. After quoting at length from Worcester, Monk J stated of that judgment that “[t]hough speaking more particularly of Indian lands and territories, yet the opinion of the court as to the maintenance of the laws of the
Aborigines is manifest throughout.”149 Thus, he had “no hesitation in saying that … the
Indian political, territorial rights, laws, and usages, remained in full force … .”150 In side-stepping territorial jurisdiction and its consequences, Monk J’s judgment harked back to earlier ways of understanding jurisdiction - the forest law, the stannary law, manorial law.
So how were these laws to function together? Rather than specifically advocating self-government based on a territorial area, such as characterised the
American system, Monk J saw the two laws functioning side-by-side in a manner which was reminiscent of the situation described in India in Fairlie v. Freeman.151 Even had the Rebaska region been within the territories of the Hudson Bay Company, the
Hudson’s Bay Charter specifically only applied to those who belonged to the Company.
Thus the common law would have applied to the members of the company but did “not apply to the Indians, nor were the native laws or customs abolished.” Monk J held that
“it is easy to conceive, in the case of the joint occupation of extensive countries by
Europeans and native nations or tribes, that two different systems of civil and even criminal law may prevail.”152
149 Ibid, at 81-2. 150 Ibid, at 82. 151 In fact, Monk J specifically quotes from a brief discussion of India in Phillimore’s International Law, but without mentioning any particular case: ibid, at 82. 152 Ibid, at 90. 249
The final example is that of the United States. To do justice to this example is impossible within the confines of this thesis. However, no discussion of indigenous jurisdiction could be complete without reference to the United States. The Cherokee
Cases,153 which underpin tribal jurisdiction, are probably two of the most written about cases in the common law world.154 The relationship between sovereignty, territory and jurisdiction presented in them, and which still underpins US/tribal relations, is somewhat different to the examples above. Unlike the above cases, in which jurisdiction was primarily based on status, there is a strong territorial element to the Cherokee
Decisions.
Both before, and subsequent to, the Cherokee Cases, many Indian nations had signed treaties with the United States government, or in earlier times the prior colonial power. These treaties not only recognised tribal sovereignty, but placed obligations on the United States government to provide specific services. In particular, in return for ceding vast tracts of land to the United States government, they also guaranteed a particular territorial area to the signatory nation, which was “set aside for the absolute and undisturbed use and occupation of the Indians”.155 These treaties were often disregarded and abrogated by the Federal Government, but they still remain a fundamental part of the framework which regulates the relationship between the United
States government and the Native American Nations. These reservations were at the
153 Cherokee Nation v. Georgia, supra note 47; Worcester v. Georgia, supra note 47. 154 The list of publications which consider these cases is far too long to reproduce. It ranges from classics such as Cohen, F. Handbook of Federal Indian Law, U.S Govt. Printing Office, Washington D.C., 1941, Wilkinson, C., American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy, Yale University Press, New Haven, 1987, Burke, J., “The Cherokee Cases: A Study in Law, Politics and Morality”, (1969) 21 Stan, L. R. 500 and Williams, R., The American Indian in Western Legal Thought: The Discourses of Conquest, Oxford University Press, New York, 1990 to recent work in imperialism, see for example Fitzpatrick, P., Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001. 155 This example is taken from the Fort Laramie Treaty of 1868, 15 Stat. 365 (1868), Art. II. 250
heart of the policy of non-intercourse, by which Indian and non-Indian were kept separate. The Indian Tribes were left alone to self-govern, with the exception of trade and the sale of liquor, which were regulated by the Federal Government, which also retained jurisdiction over some criminal matters on Indian lands.156 By the time, therefore, that the Marshall decisions were made, many Native American Nations had already had specific territorial areas guaranteed to them and this colonial policy had established a framework which in turn formed an important background to the early decisions of the United States Supreme Court.
The Cherokee Cases confirm the inherent, but dependent, sovereign status of the
Indian nations, from which subsequent courts have extrapolated and developed the
‘Federal Indian trust relationship’, as a result of which Native American Nations are said to resemble “wards” of the government, or to be “in a state of pupillage”.157 In
Cherokee Nation the Cherokees sought an injunction to restrain the State of Georgia from executing or enforcing certain laws within land which was designated as Cherokee
Territory by treaty. The Cherokee Nation argued that these laws could not be enforced as they were sovereign nations, owing allegiance to no one, and “deriving their title from the Great Spirit, who is the common father of the human family, and to whom the whole earth belongs.”158 The main issue before the Supreme Court was whether the
Cherokee Nation was even able to bring an action before the Supreme Court. In order to do so, it had to be a ‘foreign nation’ within the meaning of article III of the United
States Constitution.159 The Court held that the Cherokee Nation was not a foreign state.
156 Pommersheim, F., Braid of Feathers: American Indian Law and Contemporary Tribal Life, The University of California Press, Berkley, at 18. 157 Cherokee Nation, supra note 47, at 17. 158 Ibid, at 1. 159 Article III states that: “The judicial power shall extend … to controversies … between a state, or the citizens thereof, and foreign states, citizens or subjects.” 251
However, Indian territory did compose a part of the United States, and while not foreign nations, the “relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else”.160 By treaty, the Cherokees had acknowledged themselves to be under the protection of the United States, and they occupied a territory to which title was asserted by the US independent of their will. For all these reasons they were best “denominated domestic dependent nations”.161 In so determining, Marshall CJ impliedly rejected the argument made by defence counsel in
Johnson that a monist approach to law should prevail in the former colonies. This became clearer in the third case, Worcester v. Georgia.
After Cherokee Nation the question which remained unanswered was whether ultimate authority over Indian territories would be exercised by the state or federal government. In Worcester, at issue was the conviction by the State of Georgia of a
Vermont missionary for residing in Cherokee Indian territory without a statutorily required permit. Worchester appealed to the Supreme Court, arguing that the registration law, under which the permit was required, was unconstitutional and the alleged offence was committed within Cherokee territory, and therefore outside the jurisdiction of the state courts.162 Marshall CJ confirmed that “the whole power of regulating intercourse with [the Indian nations] vested in the United States”.163 The
160 Cherokee Nation, supra note 47, at 16. 161 Ibid, at 17. In so determining, Marshall CJ impliedly rejected the argument made by defence counsel in the earlier case of Johnson v. M’Intosh, supra note 52, that a monist approach to law should prevail in the former colonies. 162 This was, of course, an argument with significant political ramifications. As Burke points out, in Worcester the issue was nothing less than the “authority of the Supreme Court as the final arbiter of the constitutional system” as well as the supremacy of federal over state law: Burke, “The Cherokee Cases”, supra note 155, at 509. Georgia had already refused to enforce several court decrees, and had already executed an Indian convicted of murder within Indian territory despite a writ of error issued by the Supreme Court. Georgia refused to appear in court to defend either Cherokee Nation or Worcester: Kelly, D., “Indian Title: The Rights of Natives in Lands they have Occupied since Time Immemorial”, (1975) 75 Columbia Law Rev. 655, at 660. 163 Worcester, supra note 47, at 560. 252
Cherokee “possessed rights with which no state could interfere”.164 Thus, simultaneously, the Cherokee could exclude Georgia’s jurisdiction, but were denominated as ‘wards’ of the United States and, hence, as would be made clear subsequently in Lone Wolf, entirely subject to the jurisdiction and authority of the
United States.165
In confirming that the Cherokee, and hence other Indian nations, retained internal jurisdiction, the Supreme Court specifically linked that jurisdiction to territory:
“[t]he Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force.”166
Jurisdiction is linked to territory for both the United States itself, and the Indian nations within it. Combined, these cases confirmed that the United States had sole sovereignty, acquired by virtue of the principle of discovery. Hence, as against other nations it has sole jurisdiction over the territory of the United States. Within the United States the
Indian Nations have jurisdiction over Indian Country, to the exclusion of the states.167 In the case of conflict, the jurisdiction of the Cherokee must always yield to the authority of the United States.168
There are, therefore, a number of examples of instances in which courts accepted the co-existence of multiple jurisdictions, consistent with the approach that characterised the pluralistic legal landscape of England itself as discussed in Chapter
Two. In some cases, the main jurisdictional mode was status. Under the auspices of
164 Ibid. 165 Lone Wolf v. Hitchcock 187 U.S. 564 (1903). 166 Worcester, supra note 47, at 561. 167 “The term “Indian country” embraces all land within the limits of the United States to which the Indian title has never been extinguished, except that which lies within the exterior geographical limits of a state, and which was not excepted from the jurisdiction of that state at the time of its admission into the Union”: see United States v. Kagama, 118 U.S. 375 (1886), at 375. 168 See Lone Wolf v. Hitchcock, supra note 165. 253
British sovereignty, several jurisdictions operated, and one’s status as British or ‘native’ determined which of these applied. Thus, where sovereignty and even territorial jurisdiction were established, they did not lead automatically to the abolition of other jurisdictions. In the United States, by contrast, as a result of treaties, Native American jurisdiction is tied to tribal territory.
Conclusion
According to indigenous commentators, such as Pearson and Rose, many indigenous jurisdictions not only survived the acquisition of sovereignty by Great
Britain, but continue to function, as an inseparable part of relationships to country and the Dreaming. Yet according to the High Court, such jurisdictions were deprived of law-making capacity in 1788, relegated to an uncertain status. These two world views seem incommensurate.
In part, however, these two views can be reconciled through the lens of jurisdiction. As has been demonstrated in Part I, historically multiple jurisdictions did operate under the auspices of singular sovereignty. This occurred not only in England, but also in a number of Britain’s colonies. In such circumstances, jurisdictions are autonomous and self-authorising. They are also self-contained. The common law determines its own rules on whether it will recognise another law, and if so in what circumstances. It has always done so. However, it had, and has, no authority to decide matters internal to other jurisdictions: namely how other jurisdictions internally self- authorise, self-represent, or determine matters. That is how jurisdiction functions. Thus, one question posed in Chapter One can be answered: the common law cannot deny the efficacy of Indigenous jurisdictions. It can, however, and does, deny them efficacy within the common law itself. 254
As described in Chapter Two, given the common law’s reluctance to accept sources of authority other than itself, in the seventeenth and eighteenth centuries jurists, such as Coke, and more particularly Hale, promoted new understandings of the common law in which non-common law jurisdictions could be accommodated within the framework of, and receive their force from, the common law. Thus, to the extent that non-common law jurisdictions were seen by common law judges as requiring some
‘higher’ authority, that authority was not sovereignty, but the common law itself. For the practitioners of other jurisdictions, their jurisdictions required no external authorisation – they were autonomous and self-authorising. Within the common law, jurisdiction pre-dated state sovereignty. Bodies of law self-authorised and regulated their relations with each other long before the emergence of the modern sovereign nation state. Even after the development of notions of national sovereignty, non- common law jurisdictions continued to function along-side the common law, both in
England and the colonies.
Given, however, that the High Court has chosen to exert its jurisdiction to deny full efficacy to indigenous jurisdictions post-1788, what then is native title? How can two laws intersect when only one (the common law) is acknowledged to have full legal status? The answer appears to be that there is no intersection. Ironically, what is occurring is exactly that which the High Court denies: namely parallel law-making. The common law co-exists with indigenous jurisdictions, each of which operates within its own sphere, and has full competence to manage matters within its own ambit. As an exercise of its own jurisdiction, the High Court has chosen to acknowledge the full capacity of indigenous normative systems pre-1788 (it could hardly take any other stance), but deny this capacity for the purposes of the common law post-sovereignty. 255
An understanding of jurisdiction leads to the inevitable conclusion that native title is not ‘sourced’ in indigenous laws and customs as claimed by the High Court. It is not, as Pearson points out, an Aboriginal law title. While the High Court may claim that native title is not a creature of the common law, it is ineluctable that native title is a common law institution. If that Court, as claimed by Kirby J in Wik is not enforcing a foreign law,169 then as a matter of jurisdiction native title can only be a right created at common law according to common law principles. Exactly how the common law creates this right according to its own rules is the subject matter of Chapter Seven. That
Chapter will finally answer the question: as a legal interest, what is native title.
Part II will examine three technologies of jurisdiction which have contributed to the final form of the native title as a legal interest. Chapter Six continues the discussion earlier in this chapter of the relationship between sovereignty, territory and jurisdiction, and the impact of these concepts on an understanding of native title. This chapter discusses the technology of mapping. Mapping supports the concept of territorial jurisdictions by making it possible to define the boundaries and limits of land, and hence jurisdiction. Chapter Seven goes on to consider the technology of
‘accommodation’. This chapter considers how historically the common law selectively appropriated matters and activities traditionally considered to be regulated by other jurisdictions, and provided rights and remedies for these matters at common law by their enforcement as custom. As will be seen, echoes of this technique are evident in modern native title decisions. Finally, Chapter Eight examines the technology of categorisation. Once a foundation for native title is found, what rights and interests are encompassed by the entity of native title? This chapter looks at the categories of the
169 Wik, supra note 1, at 237-238 per Kirby J. 256
common law, the way in which legal categories structure the social and the problems of accommodating new categories of law within the existing framework. 257
Chapter Six
Mapping Territory
“…it is … the map that precedes the territory … that engenders the territory.”1
“[He’s] Got a thing about em, says Menzies. Just trouble, maps. You can’t really blame him. Like they suck everythin up. Can’t blame a blackfella not likin a map… . Go on the country, says the boy… Not on the map.”2
Introduction
Picture three images, all of the same native title claim area. The first is a map of the claim area, demarcated by latitude and longitude. The areas that cannot be claimed are marked with hatching. There are Crown reservation numbers, and a scale in kilometres. In fact, all the things we expect in a tenure map.3 The other images are paintings on canvas, in a form that westerners have labeled ‘dot painting’. Yet all address similar concerns, albeit expressed through different cultural lenses: in western legal terms jurisdiction, territory and ownership; for the Pila Nguru – the creators of the painting – the Tjukurrpa.4
In 1995, the Spinifex People lodged a native title claim with the Native Title
Tribunal. As part of the native title process, an art project was established to record and
1 Baudrillard, J., Simulacra and Simulation, University of Michigan Press, Ann Arbor, 1994 (1981), at 1. 2 Winton, T., Dirt Music, Picador, Sydney, 2001, at 312. 3 The visual representation of the map is supported by the following written outline of the claim area: “Commencing at the westernmost north western corner of Yowalga Location 7 as shown on Land Administration plan 20992 and extending east along the northernmost northern boundary of that location and east and south easterly along boundaries of Milyuga Location 20 to the Western Australian - South Australian Border; Then southerly along that border to latitude 29.500000 South; Then west to the south eastern corner of Delisser Location 9; Then west and north along boundaries of that location and north along the western boundary of Delisser Location 8 to the south western corner of Yowalga Location 7 and then generally northerly along boundaries of that location to the commencement point”: Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 (28 November 2000). 4 For westerners it is impossible to precisely define the term ‘tjukurrpa’. It is perhaps best said that it encompasses both spiritual and physical aspects, including notions of law, ownership etc: see 258
document ownership of the Spinifex area. Two paintings were produced initially, one painted by the men and one by the women.5 These are described as ‘native title paintings’. In 1998, the Spinifex People entered into a framework agreement with the
Western Australian Government, which was ratified by Parliament. The paintings were formally included in the preamble of the agreement.6 For the Spinifex People, the paintings are part of mapping territory.
This chapter examines mapping and surveying as technologies of jurisdiction.
The main concern here is with the way in which a jurisdiction is inaugurated through the mapping of physical space. The practice of mapping makes possible the existence of the legal concept of territory. Maps and territory are mutually supporting. The map is not the territory, but it does, to paraphrase Chase, represent a particular spatial embeddedness of authority and jurisdiction.7 As a technology of jurisdiction, mapping allows space to be reconceptualised as place, allows the assertion of jurisdiction over far-flung horizons, and, along with its counterpart technology, surveying, allows the legal space of jurisdiction to be mapped onto the physical space of the land and sea. As a concern of jurisdiction, territory mediates between sovereignty and the physical earth.
Once mapped, space becomes associated or identified with a sovereign and becomes a territory. Thus, mapping is a jurisdictional device, a practice through which jurisdictions are embodied as territories and through which as a result people, places and events in that territory become juridified.
Cane, S., Pila Nguru: The Spinifex People, Fremantle Arts Centre Press, Fremantle, 2002, at 16. 5 Ibid, at 16-17. It is also a term which is specific to the Western Desert. Other language groups have their own terms or words in which to describe similar ideas. 6 Ibid, at 17. 7 Chase, J., “Porous Boundaries and Shifting Borderlands: The American Experience in A New World Order”, (1998) 26 Reviews in American Hist. 54, at 59. 259
One particular example of that juridification is the way in which mapping aids in transforming the relationship of Indigenous Australians to their country into the legal construction of native title. As stated in Chapters One and Five, the result of defining territory was that it was possible to uniformly “impose the same institutional and administrative arrangements and laws over [that] territory,” a project of the later
Enlightenment.8 Thus, one of the effects of territorial jurisdiction is that it eliminates differences based on concepts such as status. All those who are within the territory become subject to that jurisdiction. By virtue of being within the territory, all people, places and events become juridical objects. Even where the remnants of an earlier mode of jurisdiction can be seen – the minor for example still has a special status at law – that status is overlaid by territorial jurisdiction. It is the courts of the state within which the minor is located that one must apply to for relief.
As outlined in Chapters One and Five, the predominant model of jurisdiction is that of territorial jurisdiction. However, as also outlined in Chapter One, this has not always been the case. In medieval England, jurisdiction was effected through attachment to a number of modes, the most common of which was status. Jurisdiction was territorial in some contexts. While some local divisions, such as the shire and the hundred, as well as the Manor and the borough, clearly operated on a territorial basis, they did not have exclusive jurisdiction in that territory. Even in these cases, however, territorial jurisdiction was often secondary to status. It was a person’s status as villein or freeman which primarily determined jurisdiction, rather then the strict notion of a manor as a territorial entity. As Ford points out, even those divisions which operated on a
8 Hobsbawm, E, Nations and Nationalism since 1780: Programme, Myth, Reality, Cambridge University Press, Cambridge, 1990, at 80. 260
territorial basis had few of the qualities we associate with territorial jurisdiction today.
Most notably, they had no definite territorial boundaries.9
In order to support territorial jurisdiction there must be a precise delimitation of territorial boundaries. Ford calls this the “bright line” rule.10 While the precise location of a boundary may be arbitrary, in jurisdictional terms it functions as an uncrossable barrier.11 One entity’s jurisdiction ends precisely at the boundary, and another begins.
One set of governing laws end, and another takes over. Without such a bright line, we are, according to the courts, left with a jurisdictional “No Man’s Land”,12 a neutral place to which “bad characters” may resort,13 knowing that jurisdictional uncertainty will render them safe from the interference of the authorities.14 The technology of mapping made possible the shift from jurisdiction based primarily on status, to the modern, familiar, territorial jurisdiction, by making it possible to define territory.
This chapter describes the history and process of graticulation, through which early cartographers were able to impose a grid across the known and unknown world, imposing a mathematical regularity across the globe. This process of graticulation supported both the assertion by early explorers of sovereign jurisdiction over the new world, including the continent of Australia. It also made it possible to delineate, and hence create, territories. The chapter further considers the relationship of the map to the physical earth and sea. On one level, that relationship is abstract, mathematical and incommensurate. The abstract nature of the map means that it will never map precisely to the earth. Thus territory can never match the physical. On another level, therefore,
9 Ford, R., “Law’s Territory (A History of Jurisdiction)”, (1999) 97 Michigan L.R. 843, at 881. 10 Ibid, at 853. 11 Ibid, at 850. 12 State of South Australia v. Victoria, (1914) 18 C.L.R. 115, at 139 (P.C.). 13 Ibid, at 123. 261
law must be simultaneously re-grounded through the inscription of law in the landscape by the use of physical markers. Finally, the chapter considers a particular example of the juridification which results from territorial jurisdiction, and argues that the embodiment of jurisdictions through western, Cartesian mapping practices facilitates the assertion of common law jurisdiction over native title, and renders Indigenous understandings of country incommensurable with the legal doctrine of native title.
The Graticulation of Space
In early modern Europe, to the extent where jurisdiction was territorial in nature, the reference point for dealings with such jurisdictions, as with land, was local memory and customs. Law was embedded in local life and the particularities of local knowledge and circumstance. Boundaries and communities were amorphous, lacking in physical and geographic distinction. What distinction existed were maintained by customary practices, rather than geographic ‘bright lines’.
One echo of this time exists in the perambulation, the practice of walking the physical markers of the property or jurisdiction. An example is the practice of “beating the bounds”. “The parson and parish old-timers would lead the rest of their neighbours around the boundaries of the parish. This village parade went over every stile, past every marker, along every hedgerow, providing the community with a “mental map of the parish” that could be drawn upon in cases of property dispute.”15 Similarly, the boundaries of Manors were defined by markers. Local topological and human-made features – stone walls, levees, hedges, boundary stones – marked the limits of
14 The State of South Australia v. Victoria (1911) 12 C.L.R. 667, at 682 (H.C.). 15 Bushaway, B., By Rite: Custom, Ceremony and Community in England, 1700-1880, Junction Books, London, 1982, at 84. To check no-one was encroaching on their land, the congregation would walk once a year from one boundary ‘mark’ to the next, shouting ‘Mark, Mark, Mark’ at each and beating it with sticks, or a stripped willow branch known as a wand. 262
ownership and/or jurisdiction. Remnants of such practices still survive and many US
State statutes still refer to boundary surveys as perambulations.16
In the absence of ‘rational’ and ‘objective’ qualities of spatial order, what mapping there was reflected the physicalised nature of communities’ relationships with land and jurisdiction. The tradition of medieval mapping typically emphasises the sensuous rather than the rational and objective.17 In other words, “the medieval artist believed that he could render what he saw before his eyes convincingly by representing what it felt like to walk about, experiencing structures, almost tactilely, from many different sides, rather than from a single vantage point.”18
Medieval Europe saw only “odd pockets of map-making [and] the occasional individual who drew maps.” Society “simply did not think in cartographic terms when confronted with the need to record or communicate topographic information, whether it concerned half a field or half a continent”.19 Those ‘odd pockets’ that did exist consisted largely of portolan maps, zonal maps and the medieval mappae mundi.20 There was also some recognition of the benefits of an improved system for locating places, including by reference to co-ordinate systems. For example, in his thirteenth century Opus maius,
Bacon had already proposed the use of co-ordinates of latitude and longitude to map the earth.21 However, as Woodward notes, “neither the data nor the demand were ready for
16 See, for example, Title 15 (Cities and Towns) – Wyoming State Statutes – Chapter 1, Art. 4. 17 Harvey, D., The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change, Blackwell, Cambridge MA and Oxford, 1990, at 243. 18 Edgerton, S., The Renaissance Re-discovery of Linear Perspective, New York, 1979, at 9. 19 Harvey, P., The History of Topographical Maps, Thames and Hudson, London, 1980, at 155-6. 20 Portolan maps or charts were Mediterranean sea charts. Zonal maps divided the earth into five climactic zones. Like the mappae mundi they were circular, and often maps combined elements of the two. 21 Woodward, D., “Maps and the Rationalization of Geographic Space”, in Levenson, J. (ed), Circa 1492: Art in the Age of Exploration, Yale University Press, New Haven, and National Gallery of Art, Washington, 1991, at 83. 263
the concept.”22 No-one had yet been able to project such a reticulated surface onto a flat chart.23
In 1400, Ptolemy’s Geographia arrived in Florence from the Byzantine East, apparently brought by scholars who were attempting to obtain texts for the purposes of learning Greek.24 Its arrival in Europe, and particularly in Florence, at a time of intellectual flowering, “spawned an unprecedented excitement about the Geographia.”25
Its spread was increased by the translation of the work into Latin in the first decade of the fifteenth century, and into print around 1475.
Rather than the maps and empirical knowledge of the world contained in them, it was the methods of mapping the world that made the Geographia so important. The
Geographia included three alternative cartographic methods. While all three methods were intended to allow the mapping on a plane surface of the longitudes and latitudes of the globe, it was the third method, contained in Book Seven, which was to revolutionise map-making. Ptolemy explained that his scheme enabled the mapping of places, preserving the proportion of individual locations (chorography) in relation to the whole
(geography):
“The end of chorography is to deal separately with a part of the whole, as if one were to paint only the eye or ear by itself. The task of geography is to survey the whole in its just proportion, as one would the entire head. For in an entire painting we must first put in the larger features and afterwards those detailed features which portraits and pictures may require, giving them proportion in relation to one another so that their correct distance apart can be seen by examining them, to
22 Ibid, at 84. 23 Edgerton, The Renaissance Rediscovery of Linear Perspective, supra note 18, at 98-100. 24 An interesting account of the arrival of the Geographia in Florence can be found in Edgerton, ibid. Note that some other authors place the date for the arrival of Geographia as earlier: see, for example, Turnbull, D., “Cartography and Science in Early Modern Europe: Mapping and the Construction of Knowledge Spaces”, (1996) 48 Imago Mundi 5, at 14. 25 Edgerton, ibid, at 114. 264
note whether they form the whole or part of the picture.”26
By using a grid system of longitude and latitude:
“[w]e are able therefore to know the exact position of any particular place; and the position of the various countries, how they are integrated in regard to one another, how situated in regards to the whole inhabitable world.”27
The advantage of the Ptolemaic system of cartography was that that the grid system reduced the world’s surface to geometrical and mathematical uniformity.
Further, at a time when an increasing amount of information was becoming known about the outside world, it made clear that the oikoumene (the known world) occupied only part of the whole sphere of the earth.28 Ptolemy’s projections did not show the entire globe (only 180º), but the map frame slowly expanded to encompass the globe.
By 1514, Ptolemy’s projection had been extended to cover the entire world: known and unknown.
By locating the oikoumene on only one part of a grid of latitude and longitude, the Geographia not only changed the way in which maps were structured, but the perception of space itself.29 The dominant form of map until this time had been the mappae mundi, a form of T-O map, in which purported to show the entire world, divided into three continents: Asia, Europe and Africa. These were often seen as representing the world “as divided among the three sons of Noah – Shem, Ham and
Japheth – and thus to illustrate the three great races of the world – the semitic, hamitic
26 Quoted in ibid, at 111. 27 Quoted in ibid. 28 Edgerton, ibid, at 113, 115. Ptolemy’s known world, the oikoumene, was from India in the East to Gibraltar in the west, and the steppes of Central Asia in the North to Ethiopia in the south: Brotton, J., Trading Territories: Mapping the Early Modern World, Cornell University Press, Ithaca, 1997, at 32 29 Brotton, ibid, at 32. 265
and japhetic.”30 These maps “emphasised the spiritual rather than the physical world”, they were a projection of Christian truths onto a geographical framework.31 The Psalter
Mappae Mundi, for example, shows Christ standing above the world, with outstretched arms,32 while Christ sits in judgment above the Hereford Mappae Mundi and the map revolves around Jerusalem, which is at the exact centre of the world.33 The maps, therefore, show a world structurally dependent on Christ and his earthly institution, the
Church,34 reflecting the dominance of the Church in medieval life.
By contrast, Ptolemy’s Geographia made it clear that the known world, the oikoumene, occupied only one part of the globe. The graticulation system changed the maps fundamentally, not only replacing the structure and technique of the T-O map with a system of co-ordinates, and confining the the oikoumene to a part of the globe, but in so doing undermining the Christian symbolism on which the T-O map was in part dependent.35 As Brotton states:
“Ptolemy’s impact on the world of geography was to revolutionize a certain perception of space itself, which was no longer charged with religious significance but was instead a continuous, open terrestrial space across which the monarchs and merchants who had invested in copies of his Geographia could envisage themselves conquering and trading regardless of religious prescription.”36
The graticulation of the globe meant that all known places could be located and distances and directions between them established. Furthermore, new routes to known destinations could be hypothesised. In the sixteenth century there was a proliferation of
30 Woodward, “Maps and the Rationalization of Geographic Space”, supra note 21, at 83. 31 Ibid. 32 The Psalter map is reproduced in Whitfield, P., The Image of the World: 20 Centuries of World Maps, Pomegranate Art Books, San Francisco, 1994, at 19. 33 See further, Harvey, P.D.A., Mappae Mundi: The Hereford World Map, University of Toronto Press, Toronto and Buffalo, 1996. 34 Ryan, S., The Cartographic Eye: How Explorers saw Australia, Cambridge University Press, Cambridge and Melbourne, 1997, at 104. 35 Brotton, Trading Territories, supra note 28, at 32. 266
maps, due to their obvious uses in trade and commerce. Maps became highly valued for the access to territories and commodities which they promised.37
Graticulation not only produced geometrical, abstract space, but also empty, homogenous space. The result of graticulation was a “… movement away from local topological concepts toward those of a finite, spatially referenced spherical earth, a tabula rasa on which the achievements of exploration could be cumulatively inscribed.”38 The outlines of the southern continent, for example, were progressively mapped onto the grids of longitude and latitude. Through this, geographers created a blank southern continent – a textual space on a map on to which could be projected a construction of the continent as either empty and uninhabited,39 or as populated by fantastic creatures and people. The construction of the southern continent as a tabula rasa had important consequences. The colonial moment of widespread appropriation, effected by the physical arrival and taking of jurisdiction over the continent, was preceded by a symbolic assertion of jurisdiction through mapping. Mapping rendered the new territory knowable, open to appropriation, prior to arrival.
Mapping Territory
It was not simply mapping, but the form of that mapping, which supported jurisdiction. Graticulation meant that unknown spaces could be given co-ordinates. The vast parts of the globe beyond the oikoumene could be assigned locations by latitude and longitude. Despite never having been seen by Europeans, the new world could be mapped: the unknown became knowable and, more importantly, claimable. The place of territorial jurisdiction could be created out of the space of the unknown.
36 Ibid, at 32. 37 Ibid, at 25. 38 Woodward, “Maps and the Rationalization of Geographic Space”, supra note 21, at 85. 267
a. Dividing the Globe
The linking of law to the emerging concept of national territory through mapping and geography was given impetus by Columbus’ voyage and the ‘discovery’ of the ‘new world’. One of the results of Columbus’ voyage was a reinvigoration of previous Castilian and Portuguese disputes concerning the demarcation of their relative spheres of authority in what Schmitt has termed the ‘free space’ of the emerging new world.40 This free space, open to European appropriation through land seizures, ‘made necessary certain divisions and distributions’.41 It required a delineation of spheres of authority – of the territories of various European princes.
Since the early mid-1300s, Castile and Portugal had competed for trade with, and possession of, newly discovered lands: the Canary Islands, Guinea, Morocco.
Alfonso of Portugal sought aid from the Pope in order to bolster his claims. By his 1452 bull Dum diversas, “Nicholas V granted King Alfonso general and indefinite powers to search out and conquer all pagans, enslave them and appropriate their lands and goods.”42 Three years later the bull Romanus pontifex settled the dispute between the two in favour of Portugal by confirming Dum diversas, specifying where it applied and granting it “the acquisitions already made, and what hereafter shall happen to be acquired”, which “do belong and pertain, to the aforesaid king and to his successors and to the infante, and that right of conquest which in the course of these letters we declare to be extended from the capes of Bojador and of Não, as far as through all Guinea, and
39 Ryan, The Cartographic Eye, supra note 34, at 101. 40 See Schmitt, C., “The Land Appropriation of a New World” (translation of Chapter II, “Die Landnahme einer neuen Welt” in Der Nomos der Erde im Völkerrecht der Jus Publicum Europeaeum, 1950, 2nd ed., Duncker & Humblot, Berlin, 1974), (1996) 109 Telos 29, at 30. 41 Ibid, at 31. 42 Davenport, F., European Treaties Bearing on the History of the United States and its Dependencies to 1648, Carnegie Institution of Washington, Washington DC, 1917, at 12. The following short account draws on this work. 268
beyond towards that southern shore….”43 Importantly, these belonged to the King and
“not to any others”.44
After Columbus’ voyage, Pope Alexander VI assigned Castile the exclusive right to acquire territory, to trade in, or even to approach the lands lying west of the meridian situated one hundred leagues west of any of the Azores or Cape Verde
Islands.45 The line was confirmed and moved westward by the Treaty of Tordesillas in
1494.46 In the Treaty the demarcation is described as follows:
“a boundary or straight line [shall] be determined and drawn north and south, from pole to pole, on the said ocean sea, from the Arctic to the Antarctic pole. This boundary or line shall be drawn, as aforesaid, at a distance of three hundred and seventy leagues west of the Cape Verde Islands, being calculated by degrees, or by any other manner as may be considered the best….”47
Davenport notes that the Spanish and Portuguese “evidently considered that the line established by the Treaty of Tordesillas passed around the earth”.48 Problematically, although the idea of the meridian had become commonplace, the ability to match the ideational to the physical surface of the globe lagged behind. Nevertheless, despite the continued problems in locating the line of demarcation, or agreeing on the distance represented by a degree, the treaty constituted an attempt to divide the globe in two – to demarcate and underpin spheres of authority by reference to the new technology of mapping. Importantly, this evidences a shift in the means of establishing political- territorial limits. Rather than the physical landmarks that defined the limits of medieval
43 The Bull Romanus Pontifex, January 8, 1455, as reprinted and translated in Davenport, ibid, at 23- 4. The bull was confirmed in Inter Caetera, March 13, 1456, by Calixtus III. 44 Davenport, ibid at 24. 45 Papal Bull Inter Caetera, May 3, 1493, cited in Davenport, ibid, at 56. 46 Treaty of Tordesillas, June 7 1494, ratified by Spain July 2, 1494, ratified by Portugal September 5, 1494. Reprinted in Davenport, ibid. 47 Ibid, at 95. 48 Ibid, at 2. 269
territorial units, the intangible, mathematical line of latitude demarcated the boundaries between one sovereign authority and another.
The practice of delineating jurisdiction by reference to ‘objective’ map co- ordinates became a feature of new acquisitions. For the Portuguese and Spanish, the two leading maritime nations of the fifteenth and early sixteenth centuries, which were exploring at a time when territories in the new world were not even yet discovered, mapping, navigation and astronomy were the key technologies which facilitated jurisdiction and appropriation.
As Schmitt notes, the lines themselves only acted as an internal division between different sets of European powers of zones of authority in which land appropriation could take place.49 Despite their often-contested nature, such zones functioned internally as a justification and demarcation of sovereign jurisdiction. While such divisions did not constitute a jurisdictional ‘carving up’ of the globe (for example, Spain and Portugal’s attempts to divide the new world between themselves were ignored by other European powers), internally to each power it constituted a grand exercise of sovereign jurisdiction, to set in motion the impulse of appropriation.
In the specific case of the English, however, there was no grand division of the globe. Rather, by the time that English commercial activity fuelled the impulse for appropriation, attention in the New World of the Americas had shifted to the carving up of the land mass of the continent: the creation of bounded places from space. b. Creating New Territories: Mapping British Colonies
The internal medium through which jurisdiction was asserted by the English
(later British) Crown in the new world of America was the Royal Charter, a
49 See Schmitt, “The Land Appropriation of a New World”, supra note 40, at 35. 270
legal/administrative document which produced a new colony as English territory “by creating jurisdictions in bounded space.”50 Royal Charters defined the newly created territories by a mixture of the new techniques of mapping and the ‘old’ technology of physical landmarks. There was never a complete shift in technologies between the localised of the perambulation, and the abstract of mapping. Rather, the two came to be mutually supportive in defining the new territories.
In the first charter of the Virginia Company (1606), James I:
“…vouchsafe[d] unto [the company] our licence to make habitation, plantation and to deduce a colony of sundry of our people into that part of America commonly called Virginia, and other parts and territories in America either appertaining unto us or which are not now actually possessed by any Christian prince or people, situate, lying and being all along the sea coasts between four and thirty degrees of northerly latitude from the equinoctial line and five and forty degrees of the same latitude and in the main land between the same four and thirty and five and forty degrees, and the islands thereunto adjacent or within one hundred miles of the coast thereof;” 51
The second and third charters of the Virginia Colony, in which the jurisdiction of the colony was extended, described the territorial jurisdiction according to more conventional reference points: (recently named) landmarks – ‘Cape Comfort’ - and physical features – ‘the sea coast’.52
The Charter of Pennsylvania (1681) combines the two technologies. It also demonstrates the specificity with which territorial jurisdictions could be defined: the
50 Tomlins, C., “The Legal Cartography of Colonization, the Legal Polyphony of Settlement: English Intrusion on the American Mainland in the Seventeenth Century”, (2001) 26 Law & Soc. Inquiry 315, at 316. 51 First Charter of the Virginia Company (1606). Reproduced at
precision of the bounded spaces which they created. Under the Charter, Charles II granted:
“… unto the said William Penn, his heirs and assigns, all that tract or part of land in America, with all the islands therein contained, as the same is bounded on the east by the Delaware River, from twelve miles’ distance northwards of New Castle Town unto the three and fiftieth degree of northern latitude, if the said river doth extend so far northwards; but if the said river shall not extend so far northward, then by the said river so far as it doth extend; and from the head of the said river, unto the said three and fortieth degree. The said land to extend westwards five degrees in longitude, to be computed from the said eastern bounds; and the said lands to be bounded on the north by the beginning of the three and fortieth degree of northern latitude, and on the south by a circle drawn at twelve miles distance from New Castle northward and westward unto the beginning of the fortieth degree of northern latitude, and then by a straight line westward to the limit of longitude above-mentioned.”53
In the Charter of Pennsylvania, Penn is granted full power over an area of land, the topography of which is unknown: two alternative methods of determining the northern boundary of the territory are given – depending on how far the Delaware River
“doth extend”, something unknown to Europeans at the time. The abstract divisions of meridians of longitude and latitude allowed the British Crown to assert territorial jurisdiction over a territory whose size and boundaries had not yet been fully established and whose interior was almost completely unknown to it.54
Similarly, Governor Philip’s instructions with respect to New South Wales confirmed the boundaries or limits of his jurisdiction – not only by subject matter - but by geographical scope. His jurisdiction was confined to “our territory called New South
Wales”,55 which was defined as:
53 Charter of Pennsylvania, 4 March 1681, reproduced in Jensen, ibid, at 93-4. 54 Much of the mapping of the coastline which had occurred had been by the Dutch, French and Portuguese. 55 Governor Phillip’s First Commission, King George III to Arthur Phillip, 12 October 1786, Historical Records of Australia, Series I: Governor’s Despatches to and From England, Vol. 1, The Library Committee of the Commonwealth Parliament, Sydney, 1914, at 1. The subject matter 272
“extending from the northern cape or extremity of the coast called Cape York, in the latitude of 10° 37´ south, to the southern extremity of the said territory of New South Wales or South Cape, in the latitude of 43° 49´ south, and of all the country inland to the westward as far as the one hundred and thirty fifth degree of longitude, reckoning from the meridian of Greenwich, including all the islands adjacent in the Pacific Ocean, within the latitude of the aforesaid of 10° 37´ sough and 43° 39´ south … .”56
The limits of Philip’s territorial jurisdiction were reiterated in his Second and
Third Commissions.57 Although Philip and the First Fleet had not yet departed for New
South Wales, Britain was claiming territorial jurisdiction over half a continent. At the time of Philip’s Commission, the entire coastline of the territory of New South Wales was still unclear. In particular, the coastline of the Gulf of Carpentaria was incomplete, as was the Great Australian Bight.58
Under international law, symbolic acts of possession, such as raising the flag, were insufficient to confer sovereignty. Rather a mere inchoate title was acquired, which required actual possession or occupation in order to confer territorial sovereignty.
The position under international law was recognised by the British Government.59
Despite this, the Commission appointing Captain Phillip as Governor conferred upon him jurisdiction to the eastern half of the continent, an area considerably larger than that claimed by Cook, including parts of the coastline and islands not yet seen by Europeans.
of Philip’s jurisdiction is outlined in his Second Commission and Third Commission, dated respectively 2 April, 1887, and 25 April 1887. These are reproduced in Historical Records of Australia, ibid, at 2 and 9. 56 Ibid. Notably, the western-most boundary of the colony was 135 E latitude, which equated to the line of demarcation declared between Spain and Portugal in the Treaty of Tordesillas. Lines comments on this coincidence, noting that “the reasons for the British Government’s choice of the 135 meridian of east latitude as the western boundary of Governor Phillip’s jurisdiction are not evident”, and are “the subject of much speculation”. He does not, however, advance any hypothesis as to a possible relationship between the two demarcation lines: Lines, J., Australia on Paper: The Story of Australian Mapping, Fortune Publications, Box Hill, 1992, at 11-12. 57 See Second Commission and Third Commission, supra note 55. 58 Lines, ibid, at 16. 59 See Smith, H. (ed.), Great Britain and the Law of Nations: A Selection of documents illustrating the views of the government in the United Kingdom upon matters of International Law, Vol II, 273
Similarly, the 1787 Charter of Justice, by which courts of civil and of criminal jurisdiction were established, also appears to have given jurisdiction to these bodies over a wider area than that so far occupied.60 Thus, jurisdiction was asserted, although sovereignty had not yet been acquired. As the settlers pushed out from Sydney Cove, towards the Blue Mountains and beyond, sovereignty followed in their wake.
Once appropriated, the systematic measurement and surveying of the new territory would become an essential aspect of European colonisation and the consolidation of European control. The administrative measuring and ordering of the territory underpinned the initial exercise of jurisdiction over the new land. Most commonly, in English colonies this was achieved through cadastral surveying.
In early modern Europe, space was not precisely defined as it is today by modern surveying. Rather, measurements were fluid and approximate.61 Measurement of land was understood in terms of everyday life. As Darby notes, units were often measured by reference to a day’s journey, or a morning’s ploughing and surveying (in so far as practices could be given that name) was marked by confusion between units of measurement, for example customary or statutory acres.62 However, new techniques in cadastral surveying, made possible in part by the rediscovery of Euclidean geometry, which allowed the land mass of the kingdom of Great Britain to be demarcated and ordered with increasing accuracy.63 Cadastral surveying arose in the context of land valuations. In the sixteenth and seventeenth centuries, however, its use moved from the private context to being predominantly used in state sponsored surveys. By the second
King, London, 1932-1935, at 1. 60 See Charter of Justice, 2 April 1787 (U.K.). 61 Ford, “Law’s Territory”, supra note 9, at 881. 62 Darby, H., “The Agrarian Contribution to Surveying in England” (1933) 82 Geographical Journal 529, at 530. 63 See generally ibid. 274
half of the nineteenth century, it was an axiomatic adjunct to effective government control of land.64 As with mapping, cadastral surveying projects a regular, ordered grid upon the blank landscape of the new territory. Slowly, and unevenly, surveys filled the blank, unpopulated interior of the new colony of New South Wales, allowing for the extension of Imperial control and jurisdiction and creating a multitude of jurisdictional spaces, public and private.
Abstracting territory and grounding law
Techniques of mapping facilitate the abstraction of territory from the physical earth and allow the concept of territory to act as a mediator between sovereignty/jurisdiction and the physical. At the same time, however, law is also re- grounded through the inscription of law in the landscape by the use of physical markers.
The problems of definitively pegging the abstract of latitude and longitude to the physical arose with respect to the boundaries between the colonies, later states, of South
Australia and Victoria. The boundary between New South Wales (later Victoria) and
South Australia was by the Act 4 & 5 Wm IV c 95 and Letters Patent issued under it, defined to be the 141st meridian of East Longitude. According to the Letters Patent:
“… we do hereby fix the Boundaries of the said Province [of South Australia] in manner following (that is to say) On the North the twenty sixth Degree of South Latitude On the South the Southern Ocean—On the West the one hundred and thirty second Degree of East Longitude— And on the East the one hundred and forty first Degree of East Longitude including therein all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last mentioned Island or to that part of the main Land of the said Province… .”65
64 Kain, R., Baigent, E., The Cadastral Map in the Service of the State: A History of Property Mapping, University of Chicago Press, Chicago, 1992, at xvii. 65 Letters Patent reproduced in State of South Australia v. State of Victoria, supra note 19, at 118- 120. 275
In addition, s.1 of that Act provided that on the partitioning of the territory of
South Australia from that of New South Wales, the laws of New South Wales would not, as might be expected, apply in the new Province. Rather, the new Province was to be treated “in law (as it was in fact) as new territory acquired by settlement, with the consequence that the settlers would take with them the Common and Statute Law of
England so far as applicable.”66 Thus the border would demarcate the different legal regimes applicable in each jurisdictional entity.
The Letters Patent were issued on 19 February 1836. However, the border remained undefined for some time, not least because of the acknowledged difficulty of ascertaining the location of the 141 meridian of East longitude in relation to the physical earth for the purposes of marking the boundary. By 1846 the boundary problem had created a zone of lawlessness, in which murder had been committed and revenues could not be collected.67 Different surveyors placed the 141st meridian in different physical locations. In the end, “a mean was struck between the calculations” of the two surveyors.68 A third surveyor, on the basis of these two earlier attempts, finally produced a survey result acceptable to both the Governors of South Australia and of
New South Wales. In March 1849 both Governors finally proclaimed the boundary and physical markers were made along the line. From that time until 1911 the line marked in that process was the de facto boundary between South Australia and Victoria, despite the realisation soon after the boundary was marked that it was approximately 2 miles to the west of the 141st meridian. In 1911, South Australia brought an action for recovery of what it alleged was two miles of its territory.
66 State of South Australia v. State of Victoria, supra note 22, at 667. 67 Ibid, at 683. 68 Ibid, at 686. 276
Both the High Court and the Privy Council recognised the impossibility at the time of both the fixing of the boundaries and commencement of the action of determining the exact location of the 141st meridian. Yet for the purposes of jurisdiction, some definite bright line was needed. The “rights and liberties of the inhabitants of the country” were at stake.69 If the border were to be the 141st meridian, in the strictest sense, then the relationship of the border to the physical earth would forever remain indeterminate. If this were so, then the consequence would be:
“… that neither at the date of the Order in Council nor at any subsequent time was it possible to fix with accuracy a line on the surface of the earth representing the meridian; he also submitted that the degree of accuracy with which this could be done had increased with the progress of knowledge and would probably increase still further in the future, and that therefore the boundary, however carefully fixed, could never be said to be the legal boundary or to warrant the claim of either colony to exercise jurisdiction up to it in view of the possibility that a redetermination of greater accuracy might shift its position.”70
In contrast to the Privy Council’s statement, however, it could be contended that there is a legal boundary, the 141st meridian, but that that legal boundary could never directly map to the physical.
In contemporary times, surveying and mapping in Queensland is undertaken within the framework of the Geodetic Datum of Australia 1994 (GDA94). GDA94 is the coordinate reference system which provides a correlation between surveys, maps, charts and the physical of the Earth’s surface.71 Prior to GDA94 coming into use in
2000, the reference system used was GDA84. One of the results of the new standard is that:
69 State of South Australia v. State of Victoria, supra note 20, at 140. 70 Ibid, at 136-7. 71 See Department of Natural Resources and Mines, Queensland Government, Geocentric Datum of Australia
Coordinates related to the current Australian Geodetic Datum (AGD84) will differ from those related to the proposed Geocentric Datum of Australia (GDA94) by about 205 metres.72
In consequence, maps and charts which pre-date July 1998 are issued with a
“warning note” as to their inaccuracy.73 Just as with the Spanish/Portuguese rayas, and the problems of defining the relationship between the 135 E meridian and the physical earth, as well as the delineation of the South Australian/Victorian border, the implementation of new standards for geodetic data also points to the relativity of the relationship between maps and the physical - AGD94 connects maps and charts to different physical points than AGD84 – they are 205 metres apart.
Underneath this layer of abstraction, however, lies an older technology – delineation by the physical – the boundary marker, the perambulation. In definition of territorial entities, the new technologies of mapping and survey are layered on top of the older sediments of local memory and the physical. There has never been a clear shift from one resource of delineation to another. The localised of the boundary markers and familiar physical features of the landscape survive as a basic tool in modern surveying, albeit in a different and new form. As the High Court observed in State of South
Australia and Victoria, some kind of physical demarcation is needed for a boundary:
“[t]he word “boundary,” imports, from the very nature and purpose of the thing described, a line of demarcation capable of being marked on the ground as the visible and permanent delimitation of separate independent adjoining jurisdictions.”74
Or according to the Privy Council in the same case: “[t]o define a boundary for such purposes it is necessary that the boundary line should be described or ascertainable
72 Ibid. 73 Ibid. 74 State of South Australia v. State of Victoria, supra note 14, at 712. 278
on the actual surface of the earth.”75 Such visible delimitation was to “… be marked upon the ground by a double row of blazing upon the adjacent trees, and by mounds of earth at intervals of one mile where no trees exist.”76
The original marking of the inter-colonial boundary between Queensland and
New South Wales occurred in 1865. The boundary was marked with human-made and physical features: rocks, trees marked with symbols (Çand ∆) and with steel pins, one inch in diameter and two feet long. Cairns and posts were also used.77 In 1879, the part of the boundary formed by the 29 parallel of East Meridian was resurveyed and marked by “well squared posts at every mile, concrete obelisks at the extremities of the initial five mile chords, east and west and two brick obelisks at Hungerford, and permanent marks at all important points”.78 A one-ton post was placed on the west bank of the
Barwon River. It marked the end of the survey and “was marked ‘QL’ on the north side,
‘NSW J Cameron GS’ on the South Side and ‘ÇLat 29’ on the west side”.79 Despite the acknowledged lack of precision in the location of 29th Meridian of Latitude East, according to both the Queensland and New South Wales’ governments, “the border as originally marked … defines the true position of the Queensland-New South Wales border”.80
The marking is the physical act “required to locate [the] position [of the meridian] with reference to the earth”.81 But it also harks back to the perambulation, the marking of trees, the insertion of posts - to an earlier time, to an earlier way of knowing
75 State of South Australia v. State of Victoria, supra note 12, at 140. 76 State of South Australia v. State of Victoria, supra note 14, at 689. 77 Redefining the Queensland-New South Wales Border: Guidelines for Surveyors, Queensland Department of Natural Resources and Mines and New South Wales Department of Information Technology and Management, 2001, at 4-5. 78 Taken from an account by Campbell, W., in The Surveyor, 1895, quoted in ibid, at 6. 79 Ibid, at 7. 80 Ibid, at 14. 279
and dividing the earth - when territory was more directly grounded in the physical and law was local. The marking grounds the law in the earth, attaching the legal and ideational of territory to the earth’s surface. Thus, law, through the jurisdictional places and spaces of the colonisers, becomes inscribed in the landscape, visible in trees and fences, cairns and posts. In 1993, the Queensland/New South Wales governments remarked the original boundary posts on the border. In the intervening century, almost ninety percent of the original mileposts had disappeared. The governments searched for physical evidence of the markers, and mathematically modeled the probable location of the remainder. Recovery marks were placed for the mileposts that were found. The states reinscribed the jurisdictional limits of the state in the physical and re-instituted the bright line on which territorial jurisdiction depends.
Jurisdiction is facilitated and supported by the technologies of surveying and mapping. These technologies mediate a relationship between the law and the physical earth through the concept of territory. Territory has no absolute relationship to the physical earth, because it relies in part on technologies which have no absolute relationship to the earth. Mapping, surveying and charting are themselves mediated.
They rely on co-ordinate reference systems - longitude and latitude in all their complexity – to mediate their relationship to the physical. Such reference systems are never ultimately pegged to the physical, but constantly redefined with increasing scientific precision by use, for example, of satellite imaging and mapping. However, law has never escaped the physical. It is still grounded in the physical – through its markers and stones, inscribed and re-inscribed in the landscape.
81 State of South Australia v. State of Victoria, supra note 14, at 723. 280
Mapping Native Title
The Pila Nguru, or Spinifex people, live in Tjuntjuntjara, the Great Victoria
Desert in Western Australia. The Spinifex people remained largely untouched by the arrival of Europeans until the 1950s, when their country was the site of British nuclear testing, requiring the removal of many of them to camps hundreds of kilometres away.
They slowly returned to their lands in the 1980s. Some of the Pila Nguru did not leave their country in the 1950s, and remained uncontacted until 1986.
Western Australia was formally claimed by the British in 1829. In that year,
Fremantle raised the flag at the mouth of the Swan River, and took possession of the area, founding the Colony of Western Australia, and claiming “all that part of New
Holland which is not included within the territory of New South Wales.” The English, aware that under international law possession was required to confirm title, were concerned to settle in the area to bolster their claim as the French, in particular, had also
‘discovered’ the west of New Holland. Despite the settlements in Western Australia being confined to a small section in the south west, it was taken that this was enough to confirm possession of the territory.
While the boundaries of the territory and its internal topography remained unknown, long before the arrival of the colonists the continent had been placed on maps and its shape and character hypothesised. Prior to the taking physical possession, geographers created an outline of Australia as a blank, inhabited only by fanciful creatures, onto which could be projected a construction of the continent as empty and uninhabited, awaiting a new order. The continent could be brought within Imperial jurisdiction by the imposition of a new textual regime. The construction of the continent as a tabula rasa set the pre-conditions for the later legal construction of terra nullius, which justified the assertion of jurisdiction, both sovereign and common law, on the 281
grounds of the uninhabited state of the continent, and the subsequent transformation from empty land to sovereign territory.
To recap Chapter Five, as a consequence of the acquisition of territorial sovereignty over the west of New Holland, the common law was introduced to the colony. In Mabo (No. 2), Brennan J. considered the introduction of the common law into New South Wales. In the context of that colony he noted that as there was considered to be no law in the new colony, the common law was imported not merely as the personal law of the colonists but as the law of the land. Brennan J. put the matter thus:
“The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a “desert uninhabited” country. The hypothesis being that there was no local law already in existence in the territory …, the law of England became the law of the territory (and not merely the personal law of the colonists). … The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization.”82
The majority in Mabo (No. 2) proceeded on this understanding, despite confirming that the colony had not been uninhabited.83 Thus, in Western Australia, as in
New South Wales, the common law became not only the law of the land, but of the entire territory. The result, therefore, is that as the common law is the law of the land, then it binds not only the colonists, but the Indigenous inhabitants. The consequence of the acquisition of territorial sovereignty was the uniform application of common law jurisdiction across that territory. All those who are within the territory become subject to that jurisdiction. By virtue of being within the newly acquired territory, the Pila
Nguru, and their relationship to country, are liable to become juridical objects. This is,
82 Mabo v. State of Queensland (No. 2), (1992) 175 C.L.R. 1, at 36. 83 Ibid, at 43 per Brennan J, at 78 per Deane and Gaudron JJ, at 182 per Toohey J. 282
of course, despite the fact that many of the Pila Nguru had no contact with the colonizers until 1986. On making their claim for native title, their relationship to country becomes juridified as native title. As the law of the territory, the common law prescribes the requirements for recognition of native title, which includes certainty of boundaries.84 In the bureaucratised system which regulates applications for a determination of native title, this requirement is fulfilled by mapping country, and in so doing by the imposition of western, Cartesian ways of understanding onto traditional country.
Section 62 of the Native Title Act prescribes that in order to register a claimant application for a determination of native title, certain information must be provided. The information required includes both a map of the claim area, and a detailed written description outlining the boundaries of the area covered by the claim area. As a result of this, the issue of mapping native title claim areas has become a complex one, requiring access to sophisticated geospatial data.
The Geospatial Analysis & Mapping Branch of the National Native Title
Tribunal produces geospatial technical guidelines for the preparation of maps to be used in claims. According to the guidelines, an adequate map will “contain a geographic or grid reference system, together with the map zone (where applicable) and reference datum, such as GDA94, AGD66.” It will also “depict and label (if scale permits) areas or features mentioned in the written description; clearly depict areas excluded (if applicable and possible); where other detail is used as a spatial reference (for example,
84 Native Title Act 1993 (Cth), s.62(2). 283
cadastral parcels), include the currency date pertaining to that information [and] include a locality map.”85
The guidelines provide that the accompanying written description of the claim area may define the external boundaries in a number of ways: “by way of reference to physical features such as watercourses and roads, together with the location on such; … by reference to administrative boundaries (for example, local government areas), other native title claimant applications or areas publicly notified (for example, land acquisition notices); … by metes and bounds description or a series of coordinate points or combination of each. If coordinates are used, the map zone (where applicable) and reference datum must be identified.”86
For a native title claim, the requirements of the Act may amount not only to a map and a written description of the claim area, but also pages and pages of detailed geographic co-ordinates: points of longitude and latitude in accordance with GDA84 or
GDA94. These co-ordinates are required to pinpoint the exact boundaries of the claim area. For the claimants, however, the precision of western mapping denies the complex nature of interrelations between families, clans and other groups. Western mapping practices reinforce the idea of the ‘tribe’ as a homogonous entity with clearly bounded borders and culture. Yet for some claimants the boundaries of their land may be incapable of such precise delineation – they are porous and negotiated. For the Spinifex
People, for example, there is no ‘bright line’ of territory or territorial jurisdiction.
Rather, there is a complex set of interconnected personal and communal associations
85 National Native Title Tribunal, Geospatial technical guidelines for the preparation of maps and area descriptions (July 2001), published at
which “form the basis upon which [they] recognise this country as theirs as distinct from that of their neighbours”.87 According to Cane:
“[t]hat recognition is enumerated through a constellation of sites related to an individual’s birth, parents, grandparents, brothers and sisters and Tjukurrpa, which together give shape to a geographic area associated with their community.”88
Rather than bright lines, boundaries are:
“…to a degree, arbitrary, drawn as a measure of cultural convenience around the area within which a given group has known associations and primary responsibility: ‘in the desert proper boundaries lose their significance and the focus is unequivocally on sites and the tracks (dreaming) that link them together’.”89
Similarly, for the Lardil People their territory extends out to sea “as far as the eye can see”.90 In The Lardil People v. State of Queensland, in an attempt to comply with the requirements of the Native Title Act to map their claim, the claimants plotted the location of the horizon from various high points on the land and the extreme ranges at sea from which those high points were visible from a boat. In the end, their attempt to comply was rejected, ironically because Cooper J, found that the claimants observed the seas in front of their countries from the dunes and beach, not high points, and that there was no evidence that at sovereignty people stood on the outlying islands looking seaward and claiming seas to the distant horizons. The Lardil People could not translate their territory into the bright-lines of Cartesian cartography.91
For some, territorial boundaries may be firm, while for other groups territorial boundaries are flexible and dynamic - to western eyes ambiguous. Yet for both
appended to the claim application as Schedule C. 87 Cane, Pila Nguru, supra note 4, at 54. 88 Ibid. 89 Ibid, at 56, quoting from Peterson, N., Long, J., Australian Territorial Organisation, (1986) 30 Oceania Monograph, at 56. 90 The Lardil People v. State of Queensland [2004] FCA 298. 91 Ibid, at [91]. 285
Indigenous and non-indigenous, visual representation is a way of demonstrating territory. Just as mapping demonstrate the bright lines of territorial jurisdictions, visual representations – paintings, maps if you will – represent for indigenous groups their ownership and jurisdiction.
Conclusion
Mapping has been described as the “mid-wife” of the nation state,92 and of territorial sovereignty. Along with the technology of surveying, mapping defined the globe as blank space into which imperial and common law jurisdiction could be projected, and in so doing obscured indigenous jurisdictions and ways of seeing and understanding country. The native title paintings of the Pila Nguru are representations of their country, beliefs and kinship systems and demonstrate profound connection to the land. They provide an older way of understanding spatial order, reflecting the physicalised nature of communities’ relationships with, and jurisdiction, over country.
Ironically, as a technology of jurisdiction, mapping has never entirely replaced earlier pre-cartesian ways of representing local environments. Territory still requires attachment to the earth through markers and cairns. Despite this, the two ways of seeing seem incommensurate. While relationships to country can be, and are, represented on western maps, something seems lost in the translation. As legal practice, the process of mapping for a native title claim juridifies the relation to country, and recreates it as
‘native title’. At the same time, the process of mapping for the claim reinstitutes sovereign and common law jurisdiction by reimposing the ordered grid of the western map onto the landscape.
92 Ford, “Laws Territory”, supra note 9, at 870. 286
Chapter Seven
Accommodation: Constructing Native Title
“… the … Common Law assumes divers Denominations, yet they are but Branches and Parts of it; like as the same Ocean, tho’ it many times receives a different Name from the Province, Shire, Island or Country to which it is contiguous, yet these are but Parts of the same Ocean.”1
Introduction
This chapter returns to the relationship between the common law and other, or rival, jurisdictions. As seen in Chapters Two and Three, while today we may think of the common law as the legal system and “the law of the land”,2 historically it was only one of a plurality of jurisdictions. However, by the sixteenth century, the common law had begun to establish itself as the pre-eminent jurisdiction, and to assert its jurisdiction over rivals. It was further argued in Chapter Five that there is still a plurality of jurisdictions co-existing in modern Australia: indigenous and common law. However, as also shown in that chapter, the High Court has determined that the common law does not recognise those other jurisdictions as autonomous bodies of law with law-making capacity. Hence, as an exercise of its own jurisdiction, the common law has maintained its self-representation and self-authorisation as the law of the land, and the univocal jurisdiction of the Australian nation.
How then does the common law recognise native title? What is the foundation of native title at common law? As was outlined in Part I, historically the concept of a plurality of jurisdictions operating within one (sovereign) geographic space is not uncommon. The common law co-existed in England with numerous other jurisdictions.
1 Hale, M., (Gray, C., ed), The History of the Common Law of England, and An Analysis of the Civil Part of the Law, The University of Chicago Press, Chicago and London, 1971 (1713), at 18. 2 See the judgement of Brennan J in Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1.
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It also co-existed with other European legal systems in colonies such as Minorca. In each case, the common law developed principles and rules which regulated its co- existence with these other bodies of law. However, problematically, in Australia the
High Court has denied that other autonomous jurisdictions operate. In Yorta Yorta, it was determined that there can be no “parallel law-making”.3 How then, does it source native title outside of the common law, but simultaneously claim that it must have a foundation at common law?
The claim made in this chapter is that native title can only be understood as a creature of the common law. Its source is not indigenous law. Rather, its source and foundation are within the common law. The way in which native title has been constructed can be understood by an examination of the common law technology of
‘accommodation’. The term ‘accommodation’ is not one of the common law itself.
Rather, it is used here to describe the technique by means of which historically the common law asserted jurisdiction over norms and practices of rival jurisdictions by accommodating them within the framework of the common law as ‘custom’. This is demonstrated by reference to three examples. The first two of the examples chosen to demonstrate this technology are copyhold and the law merchant, or lex mercatoria.
Copyhold originated as a form of landholding recognised within manors, and given effect to by manorial law. The law merchant, which was the body of law which regulated the international transactions of merchants, was administered in England by a number of courts, such as the Court of Piepowder, and the various Courts of Staple.
Both copyhold and the law merchant were gradually absorbed into the common law as matters traditionally within their ambit were recognised and given effect to by the
3 Members of the Yorta Yorta Community v. Victoria (2002) 194 A.L.R. 538, at 552, per Gleeson C.J., Gummow and Hayne J.J. [hereinafter Yorta Yorta].
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common law as ‘custom’. The final example is that of the Irish ‘custom’ of tanistry, which is considered by means of an examination of the Case of Tanistry.4 This example differs from the first two as it examines the same technology once transported to a colonial setting.
The chapter commences with a general discussion of the relationship of custom and the common law. It traces briefly the separation of ‘custom’ into the general custom of the common law and local and particular custom. It is suggested that the gradual divorcing of the common law from custom is an example of the general disembedding of the common law from the local and particular. The result is that by the 1600s, the common law has defined itself against local custom and has asserted jurisdiction over local custom. Custom is clearly seen as subservient to the common law. The chapter then examines the rules put in place by means of which custom can be recognised, or judicially taken notice of. The two examples mentioned above, copyhold and law merchant demonstrate how this technology allows the assertion of jurisdiction over rival jurisdictional bodies.
The chapter then goes on to consider the third example, that of tanistry, which concerned landholding in Ireland. By the 1600s, it had become clear that the military conquest of Ireland had been largely unsuccessful. In a change of policy, the Stuarts embarked upon a ‘legal conquest’. The mechanism sought to achieve this was the legal destruction of the power-base of the Irish nobility through the abolition of the forms of landholding of tanistry and gavelkind. This was achieved by the use of Judicial
Resolutions, backed by the famous Case of Tanistry. As will be seen, the Case of
4 The Case of Tanistry (1608) Davis 28 (80 E.R. 516). For the English translation see Davies, Sir John, A Report of the Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland, Dublin, Printed for Sarah Cotter, under Dick’s Coffee House, in Skinner Row, 1762, 78, at 87 [hereinafter “English Translation”]. See also Dorsett, S., “Headnote and Extracts: The Case of Tanistry”, (2002) 6(3) A.I.L.R. 73.
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Tanistry forms the link between the early exercises of jurisdiction by the common law in a domestic setting, and the eventual recognition of native title, by transferring the rules on accommodation of common law custom in an English domestic setting to the recognition of practices as custom in a colonial context.
Finally, the chapter concludes by demonstrating that the same technology is evident in Mabo (No. 2) and subsequent native title decisions. The technology of accommodation has been used to selectively accommodate indigenous practices within the framework of the common law as the legal interest of native title. Thus, this Chapter returns to the question still unanswered at the end of Part I: namely “what is the nature of native title”, or to put it another way, “what is the foundation of native title at common law?” In so doing, it concludes that, contrary to the High Court’s constant assertions, the foundation for native title is in fact the common law. The relationship of native title to indigenous law is adjectival.5
General and particular custom
As a legal concept, custom has a long history.6 According to Kelley, although custom was not included in the classical sources of Roman law “from the third century
5 The general argument in this chapter has been published as Dorsett, S., “‘Since Time Immemorial’: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry”, (2002) 26 Melb. Uni. L.R. 32. 6 Discussions of law and custom often start with some attempted definition of these respective terms: more commonly of custom than of law. These discussions often take place through the lens of positivism, promoting law as a unified, state-based concept. There still exists a basic assumption that those phenomena within the traditional doctrinal and hierarchical rules and sources of law are ‘law’, while normative phenomena outside this hierarchy must be non-law. This is clearly the assumption that informed the High Court’s discussion in Yorta Yorta. This further assumes that custom and law exist and function as two separate entities: the former subordinate to the latter. Such an understanding is, of course, based on the privileging of the official law of the State as against other forms of law. Custom is often perceived as something to be reconciled with the ‘official law’ of the state in order to preserve the unity of state legal systems. As a result, it is commonly defined in the negative – as something which is not ‘law’. Even the term ‘customary law’ has the clear connotation of something outside of mainstream legal frameworks – subordinate to the common law. This projection of positivist descriptions of law against the normative structures of non-official law provides a picture of custom as somehow having always been inferior to, and under the sway of, the common law, a view hopefully dispelled in this chapter.
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jurists began to recognise custom – “local” and “long” or “longest” custom – in a more formal sense than mere manners (mores) or “usage” (usus) or even “prescription”.”7
According to Hermogenianus, writing in the fourth century: “But also those rules which have been established by ancient custom and observed, like a tacit agreement, are to be followed no less than the rules that are written.”8 Ideas of custom were based in popular consent, embodied notions of pattern and repetition over time, and were seen as having parity with written law. According to Kelley, such ideas of custom “found a permanent home in the Digest, became standard fare in university instruction, and thence passed into the mainstream of European social, political, and cultural thought”.9 In England, for example, by the mid-thirteenth century it was well recognised by the Royal Courts that rights could arise out of continuous seisin or observation of such rights since ‘time out of mind’. For practical purposes, ‘time out of mind’ referred to the beginning of the reign of Henry II, and was later extended to the now well-known date of 1189.10 Thus, writs, such as the writ of right, could be utilised for the return of land by alleging seisin since time out of mind.11
From the late 1100s onwards, commentators make a distinction between the common law - the ‘law of the realm’ - and the law of other jurisdictions – local custom.
From the works of Glanvill and Bracton, for example, we can see the badging of many non-common law legal spaces as ‘custom’. However, unlike the nineteenth and early twentieth century historians such as Milsom, Glanvill and Bracton do not base the
7 Kelley, D., The Writing of History and the Study of Law, Variorum, Aldershot, 1997, at 133. 8 Hermogenianus, Digest, I, I, 2, quoted in ibid, at 134. 9 Ibid, at 134-5. 10 See Statute of Westminster 3 Edw. I, c. 15 (1275) 11 The writ of right was a royal writ addressed to the Lord of whom the plaintiff claims to hold a tenement, which ordered the Lord ‘to do full right’ without delay to the plaintiff with respect to a particular piece of land which the plaintiff claimed to hold of the Lord and which was at the time being held by a third party.
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emerging distinctions between the common law and ‘custom’ as based in source or enforceability, but in geographical extent – general laws as distinguished from regional and local variations. Both the emerging law of the King’s courts, and the laws of other spaces are based in custom.
Medieval legal commentators had already begun to write most frequently about the law of the King’s courts.12 By the time of Glanvill’s Treatise (1187-9), writers had begun to distinguish custom as a source of Royal or common law from its regional and local variations based in custom.13 While Glanvill, for example, simply referred to the
“laws and customs of the realm”,14 without explaining his understanding of either term, or the relationship between the two, the most frequent uses of the term ‘custom’ throughout his Treatise is in the context or Royal law, that part of the laws of England recognised by the King’s central courts.15 Nevertheless, he also recognised local modifications or variations to laws, for example in the context of patterns of inheritance of freehold land,16 an issue which later formed the subject matter of some of the best known cases on the common law’s recognition of custom. For Glanvill, the laws and customs of the realm have their origin in both reason and their antiquity.17
By the time of Bracton’s Treatise (1220-1250) centralisation and uniformity of
Royal law had progressed to the point where clearer distinctions could be drawn between the emerging common law, and the laws applied by various regional jurisdictions, such as those of the Manor or the Borough, although the relationship
12 Poos, L., Bonfield, L. (eds), Select Cases in Manorial Courts 1250-1550: Property and Family, The Selden Society, London, 1998, at xxviii. 13 Ibid, at xxviii. 14 Hall, G. (trans), Tractatus de Legibus et Consuetudinibus Regini Anglie qui Glanvilla Vocatur (The Treatise on the Laws and Customs of The Realm of England Commonly Called Glanvill), Nelson, London, 1965, at 2 [hereinafter Glanvill]. 15 Poos & Bonfield, Select Cases in Manorial Courts, supra note 12, at xxviii. 16 Glanvill, supra note 14, at 75, 77. 17 Ibid, at 2.
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between the common law and these other bodies of law is far from clear or neatly delineated. Bracton primarily viewed custom as a regional variation of the nascent common law:18
“Custom, in truth, in regions where it is approved by the practice of those who use it, is sometimes observed as and takes the place of lex. For the authority of custom and long use is not slight.’19
Further:
“England has as well many local customs, varying from place to place, for the English have many things by custom which they do not have by law, as in the various counties, cities, boroughs and vills, where it will always be necessary to learn what the custom of the place is and how those who allege it use it.”20
While this seems to suggest that Bracton does not view custom as law, drawing perhaps on Roman law’s distinction between lex and custom,21 in other places Bracton does recognise custom as the ‘law’ or lex of jurisdictions other than Royal law:
“Civil law, which may be called customary law, has several meanings….. it sometimes detracts from or supplements natural law or the jus gentium, for law different from that outside sometimes prevails in cities by force of custom, approved by those who use it, since such custom ought to be observed as law.”22
By the time of Coke and Hale, there was a clearer division between general custom, in the form of the common law, and particular custom. While their was some divergence of opinion as to the parameters of ‘particular customs’, both were clearly understood as having common origins - time out of mind - and both belonged to the category of unwritten law or lex non scripta. Coke distinguished between general customs, in other words those which are part of the common law, being current
18 Poos & Bonfield, Select Cases in Manorial Courts, supra note 12, at xxviii. 19 Thorne, S. (trans.), De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England), Vol II, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1968, at 22 [hereinafter Bracton]. 20 Ibid, at 19. 21 Poos & Bonfield, Select Cases in Manorial Courts, supra note 12, at xxviii. 22 Bracton, supra note 19, at 27 (translator’s footnotes omitted).
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throughout the realm, and particular customs, which are confined to smaller areas.23
Matthew Hale ordered the lex non scripta slightly differently:
“First, The Common Law, as it is taken in its proper and usual Acceptation. Secondly. Those particular Laws applicable to particular subjects, Matters or Courts.”24
Blackstone also divides the unwritten law into a number of categories:
“The unwritten or common law is properly distinguishable into three kinds: 1. General Customs, which are the universal rules of whole kingdom and form the common law, in its stricter and more usual significance. 2. Particular customs which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and used by some particular courts, of petty general and extensive jurisdiction.”25
The main distinction between general custom, in other words the common law, and particular customs, lies in their geographic reach or in being administered by particular bodies. Both are sourced in, and given their authority by virtue of, long-usage.
In the Case of Tanistry, it was stated that:
“… a custom, in the intendment of law, is such a usage as hath obtain’d the force of law, and is in truth a binding law to such particular place, persons, or things as it concerns. … but it is jus non scriptum, and made by the people only of such place, where the custom runs. For where the people find any act to be good and beneficial, and apt and agreeable to their nature and disposition, they use and practice it from time to time, and so by frequent iteration and repetition of the act, a custom is formed, and being used time out of mind, it obtains the force of a law…. And that which is expressed by several and continual acts of the same kind, is a custom; and so briefly, custom is a reasonable act, re-iterated, multiplied, and continued by the people time out of mind, And this is the definition of
23 Coke, E., The Compleat Copyholder: Being a Learned Discourse of the Antiquity and Nature of Manors and Copyholds, with all Things thereunto incident. Included within the First Part of the Institutes of the Laws of England: or a Commentary upon Littleton, eleventh edition, Eliz., Nutt and R. Gosling, 1719, at section 33. 24 Hale, The History of the Common Law, supra note 1, at 17. 25 Blackstone, W. (Morrison, W., ed.), Commentaries on the Laws of England, Cavendish, London, 2001 (1769), Vol I, at 50 [at *67 of the standard 10th ed., 1787].
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a custom, which hath the virtue and force of a law.” 26
Matthew Hale described the relationship thus:
“… the Common Law … includes the Laws applicable to divers Matters of very great Moment; and tho’ by Reason of that Application, the said Common Law assumes divers Denominations, yet they are but Branches and Parts of it; like as the same Ocean, tho' it many times receives a different Name from the Province, Shire, Island or Country to which it is contiguous, yet these are but Parts of the same Ocean.
Thus the Common Law includes, Lex Prerogativa, as ‘tis applied with certain Rules to that great Business of the King's Prerogative; so ‘tis called Lex Forestae, as it is applied under its special and proper Rules to the Business of Forests; so it is called Lex Mercatoria as it is applied under its proper Rules to the Business of Trade and Commerce; and many more instances of like Nature may be given: Nay, the various and particular Customs of Cities, Towns and Manors, are thus far Parts of the Common Law, as they are applicable to those particular Places…”27
Thus, as described in Chapter Two, the non-common law jurisdictions were understood as autonomous, but as enforceable within the framework of the common law because of their existence since ‘time immemorial’.
According to Blackstone, some 160 years later:
“… in our law the goodness of a custom depends upon its having been used time out of mind, or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it is weight and authority; and of this nature are those maxims and customs which compose the common law, or lex non scripta, of the kingdom.”28
This remains the contemporary understanding of the distinction between common law, or general custom, and the custom of particular places. In Hammerton v.
Honey,29 a case concerning an alleged customary right to use and enjoy a village green
26 The Case of Tanistry, supra note 4, at Davis 31-32 (80 E.R. 519-520), English Translation 87. 27 Hale, History of the Common Law, supra note 1, at 18. 28 Blackstone, Commentaries, supra note 25, Vol I, at 50 [*67]. 29 Hammerton v. Honey (1876) 24 W.R. 603, referred to with approval by the Court of Appeal in New Windsor Corporation v. Mellor [1975] 1 Ch. 380.
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“as a place for recreation and amusement, for air and exercise, and for the playing of all manner of lawful games”, Jessel M.R. stated that:
“A custom, as I understand it, is local common law. It is local common law because it is the law of a particular place as distinguished from the general common law. Now what is the meaning of local common law? Local common law, like general common law, is the law of the country as it existed before the time of legal memory, which is generally considered the time of Richard I. Therefore, when people allege a custom they allege that which they call a custom as having been the law of the place before the time of legal memory.”30
Thus, custom is local law. It is “lex loci, the law of a place”.31 In that particular place, it effectively substitutes for the common law, and is the local law in that place with respect to the matters covered. In those areas, the custom is “of equal authority with, and equally binding as, the common law”.32 However, custom may not be inconsistent with, or contrary to, the common law.33
The Disembedding of the common law from local life
In the period 1200-1550 a number of factors combined, as a result of which the common law began to separate from the vagaries of local life. According to Blomley, by the time of Coke and Hale, the common law had metamorphosed from ‘royal law’ a decentralised jurisdiction organised around the writ system, to a “disembedded superstructure”.34 As the common law emerged as the “law of the land”, it began to leave behind the particularities of local knowledge and circumstance and to rely less on local knowledge. The common law changed from a peripatetic system of justice, a
30 Ibid, at 603. For similar comments in a more recent case see Egerton v. Harding [1974] 3 All E.R. 691. 31 Miller v. Taylor (1769) 4 Burr. 2303, at 2368 (98 E.R. 201, at 236) per Yates J. 32 Re Smart, Smart v. Smart (1881) 18 Ch.D 165, at 170 per Bacon V-C. He added that “[t]heir antiquity is perhaps greater than that which can be ascribed to the common law”: ibid. 33 Lockwood v. Wood (1844) 6 Q.B. 50, at 64, per Tindal C.J.. 34 Blomley, N., Law, Space and the Geographies of Power, The Guilford Press, New York, 1994, at 76.
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jurisdiction focused around a procedural system of writs, to an administratively centralised court structure, with emergent general principles of law and a pretension towards uniformity. As Berman describes, in the eleventh century secular law as a whole remained embedded in “tribal, local and feudal custom or … the general custom of royal and imperial households.”35 Adjudication and government were localised and inseparable.36 During the following three centuries, law became increasingly divorced from locality, both as a political and intellectual concept, by the emergence of centralised legal and political authority.37 Understandings of the relationship between law and society remain, of course, problematic.38 While it is impossible to list all of the factors which led to this ‘divorce’ from the local, three key features will be described here.
First, the breakdown of local knowledges and ways of life generally had begun by the 1200s. According to Barrell, around this time the isolated local world of the village or manor began the “long process of delocalisation inseparable from the progressive capitalisation of agriculture, which operated indifferently by opening up a village to the world outside, or by opening up the world outside to the villagers.”39
However, while this process of delocalisation undoubtedly occurred, the previously isolated nature of communities should not be overstressed. Local communities were by no means immune to outside influences. Communities of immigrants with their own
35 Berman, H., Law and Revolution: The Formation of the Western Legal Tradition, Harvard University Press, Cambridge Massachusetts, 1983, at 85. 36 On the history of the common law, adjudication and government see further Murphy, T., The Oldest Social Science: Configurations of Law and Modernity, Clarendon Press, Oxford, 1997, particularly Chapter Four. 37 Berman, Law and Revolution, supra note 35, at 86. 38 For one of the most recent attempts to explicate the relationship between law and society see Fitzpatrick, P., Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001. 39 Barrell, J., The Idea of Landscape and the Sense of Place, 1730-1840: An Approach to the Poetry of John Clare, Cambridge University Press, Cambridge, 1972, at 188.
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customs sometimes joined English communities – the most obvious example being the
Normans who arrived with William I. Further, groups of foreigners lived in communities within towns: for example in guilds as weavers, fullers or dyers in
London, Marlborough or Lincoln.40 However, as Constable notes, it is paradoxically the permeability of community boundaries which made the maintenance of separate community customs so important, as they served as a means by which communities could self-identify:
“Although communities were in some ways amorphous, lacking in physical and geographic distinction … the preservation of customs as practices served to separate communities and distinguish members … .”41
From the thirteenth century onwards a process of delocalisation and population shift began. As a result of the civil war 1135-1154 shifts in population occurred with the depopulation and re-population of villages. Further, the English population became more mobile. A combination of factors, for example developments in industry and trade, the rise of the gilds, the black death, over-cultivation of the land and changes to the status of the villein class led to a new mobile workforce and a movement of population towards the towns and cities. One of the key factors in population shift was the beginning of the enclosure movement and the conversion of arable land to pastoral in the wake of the black death and low corn prices. Small farming communities were replaced by large sheep-walks in order to provide wool for the burgeoning English cloth industry.42 The rise of new trade in the fifteenth century led to a decline in the fortune of some towns, and a corresponding rise of that in those better placed geographically to
40 Constable, M., The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge, University of Chicago Press, Chicago, 1991, at 11. 41 Ibid, at 14. 42 Beresford, M., Hurst, J. (eds), Deserted Medieval Villages, Lutterworth Press, London, 1971, at 8.
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take advantage of new technologies and markets: particularly those able to take advantage of the new cloth industry.43 By the fifteenth century, there was widespread depopulation of many parts of the countryside and the disappearance of many small villages and hamlets.44 The towns too suffered from population shift. The effects of the black death were particularly pernicious in urban areas.
At the same time as society was beginning this process of delocalisation, the eventual administrative centralisation of Royal justice had begun. As a by-product of this we see the emergence of not only the common law as the law of the land generally, but two particular features of the common law: the establishment of substantive principles of law, fashioned around the procedural mechanisms of the writ system, and the rise of the jury as arbiter of fact. These factors materially contributed to the disengagement of the common law from local life and its eventual linking to the nation state.
Where a writ could be issued, the common law had jurisdiction. According to
Milsom: “[the common law] was an accumulation of expedients, as more and more kinds of disputes were drawn first to a jurisdictional and then also to a geographic centre.”45 The machinery of the writ system drew lines of demarcation between local and royal jurisdiction.46 The writ system cut across local jurisdictions by allowing a plaintiff who purchased a writ to have his action heard by a Royal court, rather than, for example, a feudal or manorial court. The end of the peripatetic nature of the royal courts, and their permanent location in Westminster, furthered centralisation and the
43 Thomson, J., The Transformation of Medieval England: 1370-1529, Longman, London, 1983, at 49, 57. 44 Jacob, E., The Fifteenth Century 1399-1485, Clarendon Press, Oxford, 1961, at 368. 45 Milsom, S.F.C., Studies in the History of the Common Law, Butterworths, London, 1981, at 33. 46 Ibid.
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common law’s disengagement with locality due to an inevitable uniformity of approach to issues originating in disparate geographical locations. This process of disengagement was, however, uneven, and was still incomplete by the time of Coke and Hale. For much of the fourteenth and fifteenth centuries, the Royal and local courts had concurrent jurisdiction, in so far as plaintiffs could often chose whether to institute proceedings in a local or common law court. Nevertheless, the twelfth and thirteenth centuries witnessed the first development of substantive legal principles and the beginning of what we now conceive of as the distinction between substantive and procedural law. Each new writ facilitated the emergence of new rules, in particular rules of evidence, so that the law and procedure associated with particular writs became forms of action.47 As Maitland points out, each writ was in essence a ‘procedural pigeonhole’ which contained its own rules of substantive law, modes of pleading, of trial and of judgment.48 While such a development should not be overstressed, as the common law did remain largely a creature of procedure for many centuries more, with the development of some general legal principles and rules of evidence, applicable throughout the realm, the common law could be seen to operate above the level of local practices and knowledges. Indeed, in part the local was incompatible with the pretensions of the common law towards uniformity and centralisation discussed in
Chapter Two. Conveniently ignoring the multitude of local jurisdictions still in existence in the 1600s, Coke declared that:
“…all the judges and justices in all the several parts of the realm … with one mouth in all men’s cases, pronounce one and the same
47 Goodman, E., The Origins of the Western Legal Tradition, The Federation Press, Sydney, 1995, at 234. 48 Maitland, F.W., The Forms of Action At Common Law, Cambridge University Press, Cambridge, 1965, at 4.
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sentence.”49
Of particular importance in this context was the development of trial by jury and the emergence of the distinction between ‘law’ and ‘fact’. It is unclear at what point the distinction between fact and law emerged. Perhaps the most that can be said is that between the twelfth and fourteenth centuries, the jury changed from a body which rendered verdicts, with no apparent distinction between law and fact, to a body whose purpose was to arbitrate ‘facts’. Further, implicit in this change is that the notion of fact becomes informed by a different metaphysics and ontology.50 In the early period the juries were those who spoke truth (literally ver-dict) in the sense of knowledge about community matters. Fact and knowledge were indistinguishable. However, they became bodies who determined fact in the sense of deeds or actions (facere).
Before the coming of Royal law, decisions were often rendered by a select number of the community. They determined the outcome of disputes and appropriate penalties: in other words they rendered judgment. A dispute might, for example, concern ownership of land. The answer, the verdict, was a decision on both law and fact
– in essence there was no distinction between the two. Thus matters as varied as ownership, the status of a person, the exacting of services or the laying of fines was determined on the sworn answer of certain persons in the community.51 According to
Thayer:
“Such persons were likely to know who was in possession of neighbouring land and by what title; they knew the consuetudines of their region, the free or servile status of the neighbours, their birth,
49 Coke, E., The Fifth Part of the Reports of Sir Edward Coke, Knt, Butterworth & Son, London, 1826 (1616), at iv. 50 Constable, The Law of the Other, supra note 40, at 15. 51 Thayer, J., A Preliminary Treatise on Evidence at the Common Law, Little Brown and Company, Boston, 1898, at 48
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death or marriage.”52
In other words, they spoke the “truth of the community”.53 This idea of judgement remained for some time after the coming of Royal law. The Normans had brought with them notions of trial by ordeal – duel, battle, compurgation. These were not modes of determining fact, but the determination of controversy by a mode of trial.54 However, previous modes of rendering judgment became absorbed into Royal law. Members of the community still functioned as witnesses and provided judgment.
Slowly the procedure for choosing these people, now “juries”, became formalised and bureaucratised.
When the matter came before the King’s court, the writ could specify that a jury be sworn in. The jury’s role was to give a verdict, to give an answer to a formal question, to declare the truth of a matter. While originally such writs were ancillary – one claimed a right to trial by jury rather than ordeal - from the mid-1100s onwards, the number of trials by jury increased. The Assize of Clarendon (1166) declared that in every country and every hundred the twelve most lawful men of each hundred and the four most lawful men of every vil should be sworn to present to the King’s justice or sheriff any man suspected of a serious crime.55 Further, in 1216 an edict of the Fourth
Lateran Council at Rome prohibited clergy from participating in ordeals. The Assize of
Clarendon and the edict of the Lateran Council aided the shift in changes in modes of determination, from those based on ordeal to a greater reliance on the judgment of early
52 Ibid. 53 Constable, M., The Law of the Other, supra 40, at 16. 54 Thayer, A Preliminary Treatise on Evidence, supra note 51, at 48. 55 Assize of Clarendon, 12 Henry II (1166). See Hurnard, N., “The Jury of Presentment and the Asize of Clarendon”, (1941) 56 English Historical Review 374.
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juries.56 By the late 1200s, trial by jury had become an established mode of trial under many writs.
The early function of the jury as the “sayers of truth” was reflected in the requirement that juries be composed of men from the neighborhood – de visineto. Even after the function of juries began to change, this requirement largely remained. In general, de visineto meant from the same country, and the same hundred.
With the development of principles of law and rules of evidence, and the geographic centralisation of justice, the function of juries began to shift from those who could speak to community knowledge and ‘truth’, to those who determined ‘facts’ in the sense of deeds/actions. Trials were no longer always held in local communities, and so juries were no longer necessarily members of the community in which the matter arose.
The requirement that juries be drawn de visineto was reinterpreted by the mid- fourteenth century to a requirement that men be from the same county. According to
Belknap C.J. in 1374:
“In an assize in a country, if the court does not see six, or at least five, men of the hundred where the tenements are, to inform the others who are further away, I say that the assize will not be taken. A multo fortiori, those of one country cannot try a thing which is in another county.”57
With the geographic break between juries and communities, juries could no longer necessarily attest to community knowledge and truth. They became deciders and arbiters of fact. The fashioning of substantive rules, however rudimentary, around the writ system, provided the beginnings of a system of uniform principles in which a new
56 See Baker, J., An Introduction to Legal History, 3rd ed, London, Butterworths, 1990, at 6; Plucknett, T., Concise History of the Common Law, 5th ed., Butterworth & Co, London, 1956, at 88. 57 Y.B. 48 Edw. III 30, 17; s.c. Lib. Ass. 48, 5 (1374), quoted in Thayer, J., A Preliminary Treatise on Evidence at the Common Law, supra note 51, at 91.
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place had to be found for local variants of law. Those laws which we now think of as
‘custom’, still firmly attached to the local, remained left behind by the increasingly centralised and bureaucratised common law. Juries no longer knew this law, in the sense of living within it, but now listened to witnesses describe it, and determined its form as fact. Local knowledge and laws, inseparable from local life, became transformed by the common law to a question of evidence – of fact rather than knowledge, of procedure rather than substance. The common law came to be associated with a larger ‘society’. It become detached from local community, knowledge of place and the particular. As will be seen in the next section, by the 1600s, a clear legal break between ‘common law’ and
‘custom’ was evident, and the common law had already formulated rules of evidence designed to determine when the ‘fact’ of customary practices could be recognised.
The ‘Accommodation’ of Custom
As discussed in Chapter Two, by the time of Coke and Hale, the common law had already asserted its superiority over other jurisdictions, and established a framework within which the common law was the superior law. Further, by the 1600s, the lex non scripta had been ordered into general custom (the common law) and local custom. The primary question of common law jurisdiction was not an issue. Both Coke and Hale confirmed that the determination of local custom was a matter within the province of the common law. According to Coke:
“The temporal law consisteth of three parts, viz. first on the common law …. and 3dly, on customs grounded upon reason, and used time out of mind; and the construction and determination of these do belong to the judges of the realm.”58
Hale put it somewhat more forcefully:
58 Thomas, J., Systematic Arrangement of Lord Coke’s First Institute of the Laws of England, Book I, William S. Hein Company, Buffalo, New York, 1986, at 8 [hereinafter Systematic Arrangement].
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“First, The Common Law does determine what of these Customs are good and reasonable, and what are unreasonable and void. Secondly, The Common Law gives to those Customs, that it adjudges reasonable, the Force and Efficacy of their Obligation. Thirdly, The Common Law determines what is that Continuance of Time that is sufficient to make such a Custom. Fourthly, The Common Law does interpose and authoritatively decide the Exposition, Limits and Extension of such Customs.”59
Thus, as Hale makes plain, the common law not only appropriates to itself the right to determine which customs are enforceable, but the parameters of that custom, what Hale calls the “Exposition, Limits and Extensions of such Customs.” Hence, the common law determines both the circumstances under which it will recognise something as custom, and the shape that that interest will take within the common law.
According to Hale, jurisdictions such as canon or ecclesiastical law, the law merchant and even civil law were only enforceable in England by virtue of their recognition by statute or by the common law as custom. Hale ranked civil law and ecclesiastical law as part of the lex non scripta of the Kingdom. He acknowledged that it may be perceived by some as a written law, but determined them to be unwritten:
“…because it is most plain, That neither the Canon Law nor the Civil Law have any Obligation as Laws within this Kingdom… for the King of England does not recognize any Foreign Authority as superior or equal to him in this Kingdom, neither do any Laws of the Pope or Emperor, as they re such, bind here: But all the Strength that either the Papal or Imperial Laws have obtained in this Kingdom, is only because hey have been received and admitted either by the Consent of parliament, and so are Part of the Statute Laws of the Kingdom, or else by immemorial Usage and Custom in some particular Cases and Courts, and no otherwise; and therefore so far as such Laws are received and allowed of here, so far they obtain and no farther; and the Authority and Force they have here is not founded on, or derived from themselves; for so they bind no more with us than our Laws bind in Rome or Italy. But their Authority is founded merely on their being admitted and received by us, which alone gives 'em their Authoritative Essence, and qualifies their Obligation.”60
59 Hale, History of the Common Law, supra note 1, at 18. 60 Ibid, at 19.
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Similarly, more localised jurisdictions could also be accommodated by way of custom. According to Hale, in England there are “are divers particular Laws, some by
Custom applied to particular Places, and some to particular Causes”.61 Likewise, Coke stated that the common law is “current through the whole Commonwealth, and used in every County and City…”, while particular customs “are confined to shorter Bounds and Limits, and have not such choice of Fields to walk in as general customs have.”62
Thus, the common law became the ‘law of the land’, while custom remained localised, rooted in everyday practices. Importantly, as we are reminded by Hale, it is the common law “which … has a Superintendency over those particular Laws that are admitted in
Relation to particular Places or Matters”.63
Thus, for Hale, once “admitted and received” by the common law as custom, such jurisdictions become part of the “divers Denominations” of the common law of
England.64 Similarly, Browne suggested that on receiving ‘judicial notice’ ‘customs’ such as law merchant or borough English cease to be custom in the technical sense of the word. The result is that “a usage of immemorial observance, which has received judicial sanction, becomes part of the general law of England, just as much as if it were incorporated in an act of Parliament it would become part of the statute law.”65
In his Institutes and the Compleat Copyholder, Coke provided a set of evidential rules which could be generically applied at common law in order to evidence local customs. These rules were used in order to determine the ‘Exposition, Limits and
Extensions of such Customs’. Following Bracton and Littleton, in his Institutes Coke
61 Ibid, at 37. 62 Coke, The Compleat Copyholder, supra note 23, at 44 (section 33). 63 Hale, History of the Common Law, supra note 1, at 19-20. 64 Ibid, at 18 65 Browne, J.H., The Law of Usages and Customs: A Practical Law Tract, Stevens & Haynes, Temple Bar London, 1875, at 13.
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stated that a custom which is recognisable by the common law has two elements: there must be usage from time out of mind, and that usage must be continual and peaceable without lawful interruption.66 He further added that customs against reason are void.67
As an example of a custom against reason, Coke cites Brehon law, abolished because “it was no law, but a lewd custom.”68 These requirements were further amplified in the
Compleat Copyholder, in which Coke adds another five requirements: that the custom be according to common right; that it be on good consideration; that it be compulsory; that it be certain; and that the custom be beneficial to those who allege it.69 These criteria have continued to be applied in diverse factual situations into the twentieth century: Examples include the enforcement of liability to repair a sea wall,70 the right to moor vessels in a navigable tidal estuary of the Thames,71 or a custom for victuallers to erect booths in the wasteland of a manor during a fair,72 or to dry fishing nets on private land.73
Thus, the relationship between the common law and local custom had become in part adjectival, or evidential. Whether or not there had been usage since time out of mind, or whether that usage had been continual, were questions of fact. In many nineteenth century cases, for example, questions relating to continual use and extent of rights were still put to juries,74 and cases down to this day have relied on the evidence of witnesses – often the oldest members of the local community. In Denne v. Mercer, for
66 Systematic Arrangement, supra note 58, at 27. 67 Ibid, at 29. 68 Ibid, at 30. 69 Coke, The Compleat Copyholder, supra note 23, at 44-45 (section 33). 70 L & NW Ry v. Fobbing Levels Commissioners, (1818) 66 LJQB 127. 71 Attorney-General v. Wright (1897) 2 QB 318. 72 Tyson v. Smith (1838) 9 Ad & El 406. 73 Mercer v. Denne [1905] 2 Ch 538. 74 See, for Example, A.G. v. Wright, supra note 71.
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example, a case concerning the right of fisherman to spread their nets to dry on the land of a private owner whose land is situated near the sea, the courts looked to elderly seafarers of the area in order to evidence the existence and content of the alleged custom.75 It suffices to note at this point that with the centralisation and extension of the common law throughout the realm of England the relationship of some jurisdictions, such as manorial law, to the common law, shifted, so as to relegate the laws of other jurisdictions to questions of fact at common law.
Some bodies of law, or jurisdictions, remained separate from the common law, such as civil and ecclesiastical law – with both their own court structures and the possibility of recognition at common law. Many localised jurisdictions or specialist bodies of law, such as lex forestae or the law of the fens, slowly disappeared under the pressure of societal change, leaving behind only those elements which had been accommodated within the framework of the common law. Thus, while lex forestae died away, by contrast part of manorial tenure survived, enforced by the common law as the custom of copyhold.76
In the next section, two examples of the accommodation of parts of particular jurisdictions as custom will be explored: copyhold and law merchant. The next section then explores the transition of this technology of jurisdiction to a colonial context, that of Ireland, by exploring the example of tanistry. Copyhold, law merchant and tanistry provide concrete examples of the common law’s technique of enforcing local laws when they can be proven according to the common law rules for evidencing custom.
75 Mercer v. Denne, supra note 73, at 541. 76 Copyhold was made commutable to freehold by An Act for the Commutation of certain Manorial Rights in respect to Lands of Copyhold and Customary Tenure, and in respect of other Lands subject to such Rights, and for facilitating the Enfranchisement of such Lands, and for the Improvement of such Tenure 4 & 5 Vict., c. 35 (1841). Copyhold was formally abolished on 1 January 1926, by The Law of Property Act 1922 (U.K.).
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a. Copyhold
Copyhold is described by Gray as a “villein tenement made new”.77 In medieval
England, villenage was not only a personal status, but also a tenure. This tenure was primarily, but not exclusively, held by unfree men. In return for the land, the tenant was required to render unfree services.78 From the view of a common lawyer, villein tenure most resembled an estate at will. As Gray points out, however, from a manorial vantage point, villein tenure appears very different:
“A manor is a territory – or, better, lest neat districting seem implied, a congeries of lands – that goes by the traditional name of the manor of such and such; it is an agricultural community in a world of intermingled open fields, shared commons, and labor services on the lord’s demesnes; it is a variegated private jurisdiction. … the jurisdictional aspect is most important, for the manorial court protects the villein tenant and his rights arise under its laws.”79
Villein tenure became slowly transformed to copyhold during the later fourteenth and fifteenth centuries. During this period, it became standard procedure to preserve manorial records in writing, including records of the manorial courts. Thus, grants made in villein tenure were entered into the rolls of the manorial courts. The tenant was given a copy of the roll: hence the term copyhold. Thus, the legal substance of the concept of villein tenure was preserved under the guise of copyhold.80 Issues relating to copyhold continued to fall within the jurisdiction of the manorial courts.
However, by the late sixteenth century, copyholders could apply to the common law
77 Gray, C., Copyhold, Equity and the Common Law, Harvard University Press, Cambridge, 1963, at 5. 78 Ibid. 79 Ibid, at 7. 80 Ibid, at 8-10. For an excellent discussion of why villenage was transformed to copyhold, rather than “dying out” see Gray, Copyhold, ibid, at 10-12.
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courts for a remedy.81 This recognition occurred by way of the granting of a remedy of trespass to copyholders against the lord of the manor.82
The common law did not accommodate copyhold by determining it to be a common law estate. Rather, a copyholder’s rights depended on demonstrating that his interest arose by custom. In other words, he was required to demonstrate that in his particular manor land had been held in a particular way since time immemorial. Once a claimant could show that he possessed land in a manor in which land had been held in that certain way since time immemoral, the common law would protect this customary interest in land by way of various remedies. The early case of Tropnell v. Twynytho demonstrates the way in which such an argument could be made.83
In that decision, Anne Tropnell and W. Twynytho brought an action in trespass against John Kyllyk and others for breaking their close (…portant brè de Trespass vers
John Kyllyk & anters de lour close debruse &c.).84 In turn, the defendants argued that they held the land by copyhold. Specifically, they argued that the plaintiffs had from time beyond memory (de temps dont memorie) demised the customary lands of the
Manor so long as the tenants rendered the services due and abided by the customs of the manor. The defendants argued that as they had rendered all services and abided by the customs then they were there by right of copyhold.85 Hence, in order to defend the action, the defendants were required to establish a right of copyhold arising by virtue of
81 Notably, the Courts of Chancery were first to offer a remedy to copyholders. Gray suggests that one of the reasons why the common law courts chose to recognise copyhold was because of the increasing tension or rivalry between courts of the common law and Chancery: see ibid, at 68. 82 Later the remedy of ejectment was also extended to copyhold. 83 Tropnell v. Twynytho (1505-6) Keilwey 76a (72 E.R. 237). This was an early decision on the copyright holder’s status at common law. It remained a virtual anomaly until the mid-sixteenth century. 84 Tropnell v. Twynytho, ibid 85 Tropnell v. Twynytho, ibid.
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immemorial custom. The court held the defendants were not trespassers as their land had been demisable in copy since time out of mind.86
The result of providing copyholders with standing at common law was the assertion of common law jurisdiction over matters previously considered to be within the competence or jurisdiction of the manorial court. Thus, jurisdiction was asserted over copyhold by the repositioning of that copyhold as custom arising from use time out of mind; and custom was a matter over which the common law had already determined that it had jurisdiction. As Coke stated: “… Custom is the Life and Soul of Copyhold
Estates, and whatsoever shall or can be spoken touching Copyholds, ariseth from this
Head.”87
In essence, therefore, the idea of accommodation, or recognition, of custom at common law did not directly involve the enforcement of other laws in their own right.
The legal validity of copyhold at common law did not flow from its existence as copyhold tenure within manorial law. Rather, the common law was willing, according to its own rules, to recognise the facts and practices which made up copyhold because those practices had been undertaken since time immemorial. As outlined above, the enforcement of practices undertaken since time immemorial had long been part of the common law.
This repositioning of copyhold as local custom did not mean that manorial jurisdiction ceased. Copyhold was only one facet of manorial jurisdiction. Nor was there any question as to the internal validity of manorial jurisdiction. In fact, despite
Tropnell v. Twynytho, there was little evidence of litigation at common law involving copyhold until the 1570s. It continued to be a matter within manorial jurisdiction.
86 Tropnell v. Twynytho, ibid, Keilwey at 77 (E.R. at 238). 87 Coke, The Compleat Copyholder, supra note 23, at paragraph 33.
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However, over the next century, litigation increased until copyhold became subsumed within common law jurisdiction. By the mid 1600s, manorial jurisdiction had almost disappeared, and that part of the jurisdiction that the Lord of the Manor had originally exercised had passed to the Justice of the Peace.88 b. Law Merchant
The law merchant, or lex mercatoria, refers to the law governing commercial interactions during the medieval period. According to commentators, the lex mercatoria was “not the law of a particular country, but of the law of all nations”.89 The law merchant consisted of a body of principles and regulations applied to commercial transactions and was derived from the commercial standards and established practices of merchants and traders. Although it strove to be a European-wide system, it was inevitably subject to local qualifications, distinctions and exceptions.90 As discussed in
Chapter Two, in England, the law merchant was administered in special courts. The
Court Pepoudrous or Court of Piepowder, sat at fairs and markets throughout England.
According to Coke:
“This Court is incident to every fair and market, as a court baron to a mannor, and is derived of two Latin words, as is apparent, and so called because that for contracts and injuries done concerning the fair or market, there shall be as speedy justice done for advancement of trade and traffick, as the dust can fall from the foot, the proceeding there being de hora in horam.”91
88 By the eighteenth century the various courts of the manorial jurisdiction had been merged in a single court, called variously the View of Frankpledge, the Court Leet, the Court Baron, the Great Court or the Little Court, which transacted so much of the business previously within the jurisdiction of various courts as had not been assigned to the Justices of the Peace: Hammond, J., Hammond, B., The Village Labourer, Longman, London, 1978 (1911), at 3-4. 89 Luke v. Lyde 2 Burr at 887. See also Zouch, R., The Jurisdiction of the Admiralty of England Asserted, London, 1663, at 89. 90 Trakman, L., The Law Merchant: The Evolution of Commercial Law, Rothman & Co., Littleton, Colorado, 1983, at 19. 91 Coke, E., The Fourth Part of the Institutes of the laws of England: concerning the Jurisdiction of Courts, Knt, London, printed for E. & R. Brooke, London, 1797, at 272 [hereinafter Coke’s Fourth
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Similar courts which dealt with cases arising out of shipping would be found in seaside towns.92 There were also a number of special courts, for example, the Courts of
Staple, established by statute which administered the law merchant.93 Some of these courts were discussed in Chapter Two as examples of non-common law jurisdictions.
Until the 1600s, almost all cases dealing with commercial matters were adjudicated by these special courts, and according to the law merchant, rather than the common law. In the early 1600s, however, the common law courts begin to appropriate the jurisdiction of the commercial courts. As with copyhold, matters covered by law merchant were determined to be ‘custom’,94 and therefore within the jurisdiction of the common law. According to Blackstone, lex mercatoria was an example of a ‘particular custom’ and as such had to be proved “as to existence” and the “usual method of allowance”. Proof was according to the general rules for proving custom: continuance, reasonableness and so on.95 Thus, like copyhold, the relationship between the common law and the law merchant was adjectival. In every action it was necessary to plead the law merchant as “secundum usum et consuetudinem Mercatorum”,96 and it was left to the jury to determine whether the custom existed and whether it applied on the facts.97
Institute]. 92 Scrutton, T., “General Survey of the History of the Law Merchant”, in Association of American Law Schools, Select Essays in Anglo-American Legal History, Vol III, Little, Brown & Company, 1909, at 11. 93 See, for example, the Statute of the Staple 27 Ed. III, c. 2 (1353). 94 See, for example, Sarsfield v. Witherby (1687) Carth. 82 (90 E.R. 652); Hawkins v. Hardy (1692) Carth. 466 (90 E.R. 869). 95 Blackstone, Commentaries, supra note 25, at 56-58 [*77-78]. Blackstone’s formulation of the rules on proving custom mirror almost exactly those of Coke in The Compleat Copyholder, supra note 23. 96 Scrutton, “General Survey of the History of the Law Merchant”, supra note 92, at 13. 97 See Scrutton, T., The Elements of Mercantile Law, William Clowes, London, 1891, Chapter One.
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Once proved, judicial notice was taken of the custom and it became treated as if part of the common law.98 c. Ireland: The Case of Tanistry
Ireland, while not strictly ‘the new world’ has been described as ‘the first adventure of the common law’.99 As such, it forms a bridge between the realm and the dominion. In particular, the Case of Tanistry is a link between the domestic common law and the common law in the colonies. In this case, one can see the shifting of the principles used by common law courts in England with respect to the appropriation of rival jurisdictions such as copyhold and lex mercatoria to a colonial context. In the Case of Tanistry, it was argued that one facet of what the English termed ‘Brehon law’ could be accommodated within the common law as the custom of tanistry. While the case may not have succeeded on the facts, both Sir John Davies for the Crown, and the defendants, agreed that the matter was to be fought out according to the rules on recognition of custom.
Ireland was originally considered by the English Crown as a dominion,100 and the King denoted himself dominus Hiberniae: Lord of Ireland. The title of King was not taken until Henry VIII, who assumed that title in 1543.101 However, Ireland remained a separate kingdom. The conquest, both military and legal, of Ireland was not, however, straight forward. Effective English control of Ireland was limited for centuries. Despite this, a number of attempts were made to import the common law into Ireland, as well as a number of more particular legal attempts to force conformity with England. As was stated in the Statute of Kilkenny (1366): “Diversity of Government and divers laws in
98 See, for example, Edie v. East India Company (1761) 2 Burr 1217 (97 E.R. 797). 99 See Johnston, W., “The First Adventure of the Common Law” (1920) 36 L.Q.R. 9. 100 See Stat. Hiberniae, 14 Hen. III. 101 See An Act for the Ratification of his Majesty’s Stile 35 Hen. VIII, c. 3 (1543).
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one land cause diversity of allegiance and disputes”.102 According to Coke, the laws of
England became the laws of Ireland in the time of King John:
“But our student must know, that king John in the twelfth yeare of his raign went into Ireland, and there, by the advice of grave and learned men in the laws whom he carried with him, by parliament de communi omnium de Hiberniậ consensus, ordained and established that Ireland should be governed by the laws of England, which of many of the Irishmen, according to their own desire, was joyfully accepted and obeyed… .”103
Whether or not this was so, it became the legally accepted time at which the common law was introduced.104 Given the Crown’s lack of success, however, in enforcing the use of the common law, a number of further patents were issued to the same effect. As Coke put it, soon after the Irish joyfully accepted the common law: “… many of the same soone after absolutely refused, preferring their Brehon law before the just and honourable lawes of England.”105
The universal application of English law to Ireland was an important step in the consolidation of English rule. Ireland was key in the developing of a jurisprudence of colonial expansion, the effects of which can be seen in the legal rules applied to the settlement of Australia. The Case of Tanistry, referred to briefly by Brennan J in Mabo
(No. 2),106 is perhaps the first case of which we have some report to consider the relationship of the common law to custom in the context of a colonial situation. Before considering the case, some background to the decision is necessary. What follows is
102 Statute of Kilkenny Ir. St. 40 Ed. III (1366), quoted in Davies, R., Domination and Conquest: the experience of Ireland, Scotland, and Wales, 1100-1300, Cambridge University Press, Cambridge, 1990, at 120. The purpose of this legislation was to proscribe the use of Irish surnames, Irish law, the Gaelic language, fosterage of sons and intermarriage with the Irish race within English areas. Failure to comply was considered high treason. 103 Coke, E. Sir, The First Part of the Institutes of the Laws of England; or, A Commentary upon Littleton, Vol 1, London, 1832 (1644) at 141a-141b. See also Calvin’s Case (‘the PostNati’) (1608) 7 Co. Rep. 1a, at 22b-23a (77 E.R. 377, at 405). 104 See, for example, Blackstone, Commentaries, supra note 25, Vol I, at 74 [*100-101]; Craw v. Ramsey (1670) Vaughan 274, at 297 (124 E.R. 1072, at 1083). 105 Coke, First Institute, supra note 103, at 141b. 106 Mabo (No. 2), supra note 2, at 59. See also at 162, per Dawson J..
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short, and very selective, history of the legal and social background necessary to understand the Case of Tanistry. There are a number of standard works on this period of
Irish history which provide a much more detailed picture.107
While many have heard of the Case of Tanistry, its content remains relatively unknown, as is the fact that it was proceeded by an extra-judicial resolution of the Privy
Council. Extra-judicial resolutions (ie those collective decisions made by the English or
Irish judiciary in conclave) were used during the first decade of the sixteenth century in
Ireland (and to a lesser extent in England) in order to establish policy guidelines in a variety of constitutionally and politically significant cases. Such decisions were intended to establish precedents which would compel other tribunals to follow their lead in cases involving similar disputes.108 There is some evidence that jurists of the day considered that such resolutions were binding in subsequent cases. In his Institutes,
Coke ranked judicial resolutions second only to statute law in terms of their binding nature.109 One of the most important applications of extra-judicial resolutions was to the problem of the assimilation of the Irish lordships.
It was generally conceded, not least by Sir John Davies himself, that prior to what is known as the reconquest of Ireland, or the Tudor conquest of Ireland, effective
British control of Ireland had been limited. As Davies characterised it in his work of
107 Some of these works include: Crawford, J., Anglicizing the Government of Ireland: The Irish Privy Council and the Expansion of Tudor Rule, 1556-1578, Irish Academic Press, Dublin, 1993; Ellis, S., Tudor Ireland: Crown, Community and the Conflict of Cultures, 1470-1603, Longman, London, 1985; Ellis, S., Reform and Revival: English Government in Ireland, 1470-1543, The Boydell Press, New York, 1986; Bradshaw, B., The Irish Constitutional Revolution of the Sixteenth Century, Cambridge University Press, Cambridge, 1979; Brady, C., Gillespie, R. (eds), Natives and Newcomers: Essays on the Making of Irish Colonial Society 1543-1641, The Chaucer Press, Suffolk, 1986. 108 Pawlisch, H., Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism, Cambridge University Press, Cambridge, 1985, at 35. 109 Coke, E. Sir, The Second Part of the Institute of the Laws of England, printed for E. & R. Brooke, London, 1797 (1642), at 618. See also Slade v. Morley (1602) Yelv. 21 (80 E.R. 15). It should be noted, however, that these comments relate to resolutions of the Exchequer Chamber, not the Privy Council.
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1612 entitled A discovery of the true causes why Ireland was never entirely subdued and brought under obedience of the crown of England until the beginning of His
Majesty's happy reign, there had been no “perfect conquest” of Ireland until the reign of
James I.110 Davies characterised a “perfect conquest” thus:
“For that [which] I call a “perfect conquest” of a country [is one] which doth reduce all the people thereof to the condition of subjects; and those I call “subjects” [are those] which are governed by the ordinary laws and magistrates of the sovereign. For though the prince doth bear the title of “sovereign lord” of an entire country (as our kings did of all Ireland), yet if there be two-thirds parts if that country wherein he cannot punish treasons, murders, or thefts, unless he send an army to do it; if the jurisdiction of his ordinary courts of justice doth not extend into those parts to protect the people from wrong and oppression; if he have no certain revenue, no escheats or forfeitures our of the same, I cannot justly say that such a country is wholly conquered.”111
Prior to this time, effective English control penetrated to only a handful of port towns and a fifty mile radius around Dublin, an area known as “The Pale”.112 Until the reign of Henry VIII, English policy had been largely directed not towards the integration of the Irish and English, but to the maintenance of a duality between the
Irish and the English.113 Throughout the period of English presence in Ireland, a number of well-known charters and statues had purported to extend English law to Ireland or to abolish, or forbid the use of, Brehon law. These statutes, however, only extended
English law to the English in Ireland. The Statute of Kilkenny, for example, proscribed in English areas, on pain of treason, the use of Irish surnames, Irish law, and
110 Davies, Sir John (Myers, J. (ed.)), A discovery of the true causes why Ireland was never entirely subdued and brought under obedience of the crown of England until the beginning of His Majesty's happy reign, The Catholic University of America Press, Washington DC, 1988 (1612), at 71 [hereinafter A Discovery of the true causes]. 111 Ibid , at 71-72. 112 Pawlisch, Sir John Davies and the Conquest of Ireland, supra note 108, at 36-7. 113 Hayes-McCoy, G., “The Royal Supremacy and Ecclesiastical Revolution, 1543-47” in Moody, T., Martin, F., Byrne, F. (eds), A New History of Ireland, Vol III: Early Modern Ireland 1534-1691, Clarendon Press, Oxford, 1976, at 39.
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intermarriage with the Irish.114 As Davies himself recognised: “only the English colonies and a few septs of the Irishry, which were enfranchised by special charters, were admitted to the benefit and protection of the laws of England, and the Irish generally were held and reputed aliens, or rather enemies, to the Crown of England; insomuch as they were not only disabled to bring any actions, but they were so far out of the protection of the law as it was often adjudged no felony to kill a mere Irishman in the time of peace.”115 This was reflected in the requirement that Irish living within the reach of royal writ purchase charters of denization as a pre-condition to owning land or suing actions in the Dublin Courts.116 Thus, absent a charter of denization, the action would be dismissed from court by virtue of a peremptory plea of Irishry – in other words, the action was beyond the writ of the common law and hence the jurisdiction of the court.
Davies makes it clear that in many parts of Ireland Brehon law remained largely operative after the arrival of the English, a conclusion generally agreed with by modern historians.117 He contrasts Ireland with England after the Norman conquest. Davies, probably the foremost apologist for the common law after Sir Edward Coke, considered that William “governed all, both English and Norman, by one and the same law, which was the ancient common law of England long before the conquest.”118. As a result, unlike Ireland, William:
114 See, for example, the Statute of Kilkenny, supra note 102. 115 Davies, A Discovery of the true causes, supra note 110, at 125-126. 116 Pawlisch, Sir John Davies and the Conquest of Ireland, supra note 108, at 60. Denization referred to the process whereby a person who was born an alien obtained letters patent in order to make himself an English subject. Such a person could then take lands by purchase or devise, which an alien could not, but was incapable of taking by inheritance. For a discussion of allegiance acquired by denization see Calvin’s Case, supra note 103, at Co. Rep 6a-6b (E.R. 383-4). 117 See, for example, Crawford, J., Anglicizing the Government of Ireland, supra note 107 , at 183-4; Bradshaw, B., The Irish Constitutional Revolution, supra note 107, at 14. 118 Davies, A Discovery of the true causes, supra note 110, at 142.
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“obtained a peaceful possession of the kingdom within few years; whereas, if he had cast all the English out of his protection and held them as aliens and enemies to the Crown, the Normans, perhaps, might have spend as much time in the conquest of England as the English have spent in the conquest of Ireland.”119
The Tudor conquest of Ireland was concluded by the Treaty of Mellifont on 4
April 1603. Despite their military victory, the English government restored much of the former property of the rebels, as well as decorated them with new titles. In return, for example, O’Neill, the Earl of Tyrone, agreed to renounce all ‘claims and title to any land but such as shall be now granted by his Majesties’ letters patent’, and to assist with the abolition of ‘all barbarous customs contrary to the laws being the seeds of incivility’.120 However, before long it became obvious that the Ulster Nobility were once again relying on the possession of vast tracts of land in order to enhance their power and authority.
Tanistry was the name given by contemporary English observers to the practice under which Irish succession devolved through the male line or agnatic descendants of a common grandfather to the most worthy male member of the extended kin group. The result of this was not infrequent strife between rival family factions. The Irish system of individual land tenure was known to the English as gavelkind, so named because it reminded the Norman settlers of a local feudal system in Kent, called gavelkind. Under this system, at least as it was understood by Sir John Davies, ultimate proprietorship of land lay in the extended kin group and the allocation of individual allotments of land was temporary and subject to periodic redistribution. Thus, possessory rights were seen
119 Ibid, at 142. 120 Treaty of Mellifont, 4 April 1603, quoted in Pawlisch, Sir John Davies and the Conquest of Ireland, supra note 108, at 65.
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as unstable, reliant on the political authority from which they devolved, ultimately deterring the formation of a stable body politic.121
Thus, tanistry and gavelkind were construed by Davies and other English jurists as constituting a system of law which lay outside the jurisdiction of royal writ.122 As such, they lay in the way of assimilation of the autonomous Gaelic lordships by providing a power-base outside of the jurisdiction of the common law. According to
Davies:
“…obstreperous Gaelic dynasts had always used their separate political institutions and landholding patterns, embodied in and legitimized by the domestic system of brehon law, to escape the jurisdiction of the royal writ and to assert independence from English rule.”123
In order to assert full authority over Ireland, therefore, it was necessary to proscribe Gaelic forms of land tenure. Thus, in 1606, by extra-judicial resolution, the customs of tanistry and gavelkind were, in the words of Sir John Davies, Solicitor-
General (later Attorney-General) for Ireland, “adjudged to be utterly void in law”, with the result that they were to “be shortly avoided and extinguished either by surrender or resumption of all the lands so holden.”124 The voided Gaelic tenures were then replaced with common law titles, with the result that in some parts of Ireland a large class of freeholders was created. This was not the first time the tenures had legally been
121 Ibid, at 61. 122 Ibid, at 45. 123 Ibid, at 45 124 British Library Add. Manuscript 4793, fos. 45b, 53b-54a, quoted in ibid at 46. While there is no extant copy of resolution by which tanistry was voided, the resolution on gavelkind is reported as The Resolution of the Judges, Touching the Irish Custom of Gavelkind, (1608) Davis 49 (80 E.R. 535). For the English translation see Davies, Sir John, A Report of the Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland, Dublin, Printed for Sarah Cotter, under Dick’s Coffee House, in Skinner Row, 1762, at 134.
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abolished. By the Statute of Kilkenny it had been declared that the Brehon law was wholly abolished, “for it was no law, but a lewd custome”.125
In 1608, the case known as the Case of Tanistry was referred to the Court of
King’s Bench from the Presidency Court of Munster. Although the issue of tanistry had supposedly been dealt with by extra-judicial resolution, this case provided the Crown with an opportunity to confirm the abolition of tanistry by a trial before a jury on the issue. The case involved a complicated set of land transfers, based in turn on a complicated family tree. At its most basic, however, the case revolved around the question of which of two competing titles to a particular piece of land was better: that of the plaintiff derived from the title of the tanist, or that of the defendant, derived from the title of the heir at common law. The main legal issue in the case was the validity of the
‘custom’ of tanistry. This required the consideration of two interrelated questions: firstly, was the custom of tanistry abolished by the introduction of the common law; and secondly, was the custom of tanistry good at common law? In other words, did it meet the common law requirements by which the validity of customs generally at common law were decided?126
In the Case of Tanistry, Sir John Davies, who represented the defendant, contended that the introduction and establishment of the common law of England had abolished tanistry: “for this custom of tanistry was the common custom of the land of
Ireland before the conquest … and therefore it must of necessity be abolished by the establishment of another general law in the same point.”127 Counsel for the plaintiff similarly characterised Brehon law as “the common law of the Irishry before the
125 See Statute of Kilkenny, supra note 102; Coke, First Institute, supra note 103, at 141a. 126 The Case of Tanistry, supra note 4, at Davies 29 (E.R. 517), English Translation 80. 127 Ibid, at Davies 37 (E.R. 524), English Translation 101. Of course, Davies conveniently ignored that he himself had stated that there had been no effective extension of the common law throughout Ireland: Davies, A discovery of the true causes, supra note 110.
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conquest”,128 and conceded that Brehon law had been abolished by the establishment of the common law of England, which had been “justly done according to the law of nations, notwithstanding that this was a christian kingdom, as appeared in Calvin’s case,
7 Co. rep.17 b.”129 According to Davies, after the Act of 33 Henry 8, c. 1, by which it was enacted that Henry VIII should be King of Ireland, the “all the meer Irish were from thenceforth accepted and reputed subjects and liege-men to the kings and queens of England, and had the benefit and protection of the law of England, when they would use or demand it”.130 According to Davies this was followed by a proclamation by
James I which “declared and published that he received all the natives of this kingdom into his royal protection, &c. by which it was clearly resolved that the common law of
England is now established universally through all this kingdom of Ireland, and that all persons and possessions within this kingdom ought to be governed by the rules of this law, and that every subject shall inherit his land in Ireland, by the just and honourable law of England, viz. in such manner and by the same law, by which the King inherits the crown of Ireland. And by these degrees the common law was introduced and established in this kingdom.”131
Thus, in the Case of Tanistry the case was argued on the basis that the common law was the univocal law of Ireland. This was an argument echoed many years later by
128 Ibid, at Davies 30 (E.R. 518), English Translation 84. 129 Ibid. To describe Brehon law as “the common law of the Irishry” promoted a view of Brehon law as a national law, such as the rapidly emerging common law of the period aspired to be in England. Originally, however, the word Brehon was simply an anglicisation of the Irish breitheamh, or judge, and did not define the nature of the law administered by such a man: Simms, K, “The Brehons of Later Medieval Ireland” in Hogan, D., Osborough, W., Brehons, Serjeants and Attorneys: Studies in the History of the Irish Legal Profession, Irish Academic Press, Dublin, 1990, at 51. According to Nicholls, Brehons settled legal disputes as arbiters rather than officials of the court. Their decisions were based on the principle of arriving at a compromise rather than necessarily on the basis of enforcing a known legal rule: Nicholls, K., Land, Law and Society in Sixteenth-Century Ireland, O'Donnell Lecture delivered at University College Cork, May 1976, National Library of Ireland, Dublin, 1978, at 6. 130 The Case of Tanistry, ibid, at Davies 39 (E.R. 526), English Translation 107. 131 Ibid, at Davies 40 (E.R. 527), English Translation 107.
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the High Court in Yorta Yorta.132 According to the Case of Tanistry, ‘Brehon’ law had been abolished by the introduction of the common law. It was, therefore, denied continuing law-making capacity. While the common lawyers were of the opinion that
Brehon law was less than civilised, they could not outright deny that, at least prior to the final acquisition of Ireland, it was a legal system. It had law-making capacity. They could, however, as an exercise of common law jurisdiction, deny any efficacy to those laws for the purposes of the common law. This was best achieved by simply declaring it to have been abolished. In Yorta Yorta, the main judgments conceded that aboriginal law existed prior to acquisition of sovereignty but that, thereafter, it was deprived of law-making capacity, effectively rendering it something less than law.
While the plaintiff in Tanistry conceded that Brehon law, the ‘common law of
Ireland’, was ‘abolished by the establishment of the common law of England’,133 he maintained that despite this, particular customs might stand, just as “the custom of
Gavelkind in Kent, and other customs in particular places in England remain’d after the
Norman conquest.” 134 These customs could be established by recourse to the usual common law criteria used to determine the validity of customs, as outlined earlier in this chapter: foremost their practice since time immemorial.
Not surprisingly, given that the case was reported by Sir John Davies, who acted as Counsel for the defendant, the report gives short shrift to the plaintiff’s argument, but deals with those of the defendant at length. Davies argued that “such custom ought to have four inseparable qualities:
1. It ought to have a reasonable commencement. 2. It ought to be certain and not ambiguous. 3. It ought to have an uninterrupted
132 See generally Chapter Five. 133 The Case of Tanistry, supra note 4, at Davies 30 (E.R. 518), English Translation 84. 134 Ibid.
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continuance time out of mind. 4. It ought to be submitted to the prerogative of the King, and not exalted above it.”135
The first three of these mirror the emerging rules in England under which local customs would be considered valid at common law, as outlined by Coke in The
Compleat Copyholder and the Institutes. Davies maintained, somewhat poetically, that
“[t]he commencement of a custom (for every custom hath a commencement, altho’ the memory of man doth not extend to it, as the river Nile hath a spring, altho’ geographers cannot find it) ought to be upon reasonable ground and cause.”136 In essence, this required the custom not to be contrary to the public good “which is the scope and general end of all laws”.137 On this point, Sir John Davies argued that the custom was unreasonable and void ab initio: “for it is against the commonwealth, and goeth utterly in destruction of it; for a commonwealth cannot subsist without a certain ownership of land.”138 Davies argued, inter alia, that:
“For if men have not such an estate in their lands, as their issue or cousins next of blood may inherit, so that they may know certainly for what person they travail and defraud their souls of pleasure, as Solomon saith, they will never improve their land to the best use and profit, nor build houses of any value, nor give civil education to their children; but having respect to their present time only, will be utterly careless of their posterity. And this is the true cause of the barbarism and desolation which was in all the Irish counties, where the custom of tanistry was in use.”139
On this point, the plaintiff maintained, somewhat more prosaically, that “any custom which giveth the land to the oldest and most worthy man of the blood and
135 Ibid, at Davies 33 (E.R. 520), English Translation 87. 136 Ibid, at Davies 33 (E.R. 520), English Translation 88. 137 Ibid, at Davies 33 (E.R. 520), English Translation 88-9. 138 Ibid, at Davies 33 (E.R. 521), English Translation 92. 139 Ibid, at Davies 34 (E.R. 521), English Translation 92
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surname of the man who died seised, is very reasonable in this kingdom, because he can better manure the land and defend it, than an infant or a woman.”140
Davies further maintained that the custom was not certain on the grounds that every person who has an estate of inheritance has it either in his natural or political capacity, and a tanist clearly has it in neither. The tanist does not have the estate in his natural capacity, because it comes to him by election, rather than as heir. Nor does he have the estate in a political capacity because he is not “incorporate by the common law”.141 In contrast, the Plaintiff, stressed the words oldest and most worthy. According to the plaintiff ‘the oldest’ is certain, and while the ‘most worthy’ seems uncertain, the law “which is always certain and infallible in judgment … will say that the oldest is the most worthy in this case as in other cases of this nature.”142
Thirdly, a custom must have continued, uninterrupted, since time out of mind.
According to Davies, the custom was interrupted and destroyed when the tanist
“executed an estate tail of it, according to the course of the common law.”143 Davies specifically analogized land held under tanistry to copyhold “which is a parcel of the demesne of the lord, and if the lord executes an estate of it, according to the course of the common law, the custom is gone forever.”144 The plaintiff replied that as the tenure of tanistry is not like an estate in perpetuity, then at most the tanist can alienate it for life.145
Finally, the custom of tanistry was argued to be void as against the king “as being prejudicial to his profit and prerogative”. If the lands were not held of the Crown
140 Ibid, at Davies 30 (E.R. 518), English Translation 80. 141 Ibid, at Davies 36 (E.R. 523-4), English Translation 98-9. 142 Ibid, at Davies 30 (E.R. 518), English Translation 82. 143 Ibid, at Davies 36 (E.R. 524), English Translation 99. 144 Ibid. 145 Ibid, at Davies 31 (E.R. 519), English Translation 84.
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then the “king would lose all the benefit of his seignory paramount in this land”, such as wardship and escheat.146 The plaintiff did not take up this point.
The Case of Tanistry demonstrates that, as with copyhold and the lex mercatoria, the court was not purporting to enforce the law of another jurisdiction, particularly as the case proceeded on the legal assumption that so-called Brehon law had been extinguished. Rather, the customs and practices which constituted tanistry could only be enforced at common law if they had been practiced since time immemorial. In other words, the source of the ‘custom’ of tanistry could only be the common law itself, not Brehon law. Thus if accommodated by the common law, the custom of tanistry would have become one of the “divers denominations of the common law”. Had it been found valid, tanistry would have been accommodated by the common law through the mechanism of judicial recognition of custom.
The Case of Tanistry is heralded as the case which abolished the custom of tanistry. In actuality, however, the judges never handed down a verdict. Rather, as is recorded on the final page of the judgment, after the case had been argued several times, and had languished before the Kings Bench for three or four years, the parties came to an agreement and divided the land.147 The so-called abolition of tanistry in fact stems from the earlier judicial resolution of the Irish Privy Council. Of course, for some time after both the judicial resolution and the Case of Tanistry, many Irish continued to pass lands to a tanist. Similarly, although the common law refused to recognise tanistry, it was recognised by the courts of Chancery until the 1840s. It may be obvious to state that simply because the common law declined to recognise or accommodate tanistry within its framework that there was no instant demise of the jurisdiction of so-called
146 Ibid, at Davies 36 (E.R. 524), English Translation 100. 147 Ibid, at Davies 42 (E.R. 529), English Translation 115.
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Brehon law. Similarly, as outlined in Chapter Five, the failure of the common law in
Australia to recognise Indigenous custom, other than native title, does not mean that many Indigenous Australians do not continue to live their lives according to their own laws and traditions. Rather, as will be now be discussed selective Indigenous practices, those relating to land, have been accommodated within the common law as native title.
Other Indigenous norms remain unrecognised.
The Foundation of Native Title at Common Law
At the end of Chapter Five, it was concluded that the relationship between indigenous and non-indigenous laws could be conceptualised as a matter of jurisdiction.
There is, as the High Court puts it, an ‘intersection’. However, that intersection is, contrary to the High Court’s assertions, of two systems with internal law-making capacity. In addition, they both have the competence to prescribe how rights and interests will be recognised in their own system. Just as in the Case of Tanistry, therefore, the common law in Australia similarly has the authority to determine how it will recognise Aboriginal law, or selected parts of it, as rights and interests at common law.
Notably, one of the claims made by the plaintiffs in Mabo (No. 2) itself was that their rights to land could be established as “local legal customary rights” – in other words, as common law custom. In so arguing, the plaintiff’s sought to apply the usual evidential criteria which apply to any claim at common law for the recognition of a particular custom: namely that the customs were certain; they had been exercised since
"time immemorial" without interruption; they were reasonable and not oppressive at the
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time of their inception; and that they had been observed as of right and not pursuant to any licence or permission granted by another.148
Only two members of the court, Toohey and Dawson J.J., mentioned this particular claim. Toohey J. found it unnecessary to determine the matter. However, it appears from his brief comments that it is unlikely that he would have found for the plaintiffs on this ground. His problem with recognising the rights of the plaintiffs as custom appears to have related to the potential scope of the rights which could be recognised. He simply commented that:
“Difficulties … arise in so far as authority supporting customary rights focuses on specific customs. Entitlement is to enjoy a particular custom rather than to continue a way of life, or occupation, generally. For example the custom of “Borough English” in which the youngest son, and not the eldest, succeeded to the burgage tenement on the death of his father”149
Ironically, as will be discussed further in Chapter Eight, the scope of native title rights has been confined by subsequent High Court decisions to specific interests in land, in other words to ‘particular customs’. Native title rights do not encompass ‘a way of life’. As outlined in Chapter Five, the High Court has specifically refused to recognise any aspects of indigenous law other than rights and interests in land. Further, as will be discussed below, the evidential requirements for native title are almost identical to those listed by Toohey J. with respect to the recognition of custom.
148 Mabo (No. 2), supra note 2, at 77. The possibility of claiming rights based on custom was raised by Greg McIntyre, subsequently retained as solicitor for the plaintiffs in the Mabo case, at a conference ‘Land Rights and the future of Australian Race Relations’, held in 1981 at Townville University. On custom see McIntrye, G., “Aboriginal Land Rights – a Definition at Common Law”, in Olbrei, E., Black Australians: The Prospects for Change, James Cook University of North Queensland Union, Townsville, 1982. It was at an in camera meeting held during this conference that the decision was made to launch a High Court case for the recognition of Aboriginal rights to land. On this meeting, and the genesis of the action generally, see Keon- Cohen, B. “The Mabo Litigation: A Personal and Procedural Account”, (2002) 24 M.U.L.R. 89. 149 Mabo (No. 2), ibid, footnotes omitted.
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Dawson J. also dismissed the claim. He found that on the facts the plaintiffs had failed to establish any custom by which they could be said to have inherited rights over the land which they claim. Further, he also found, as he had in relation to the claim of native title, that such customary rights required recognition by the new sovereign on assumption of sovereignty. This had not occurred.150 a. Repositioning relationship to country as custom
As outlined in Chapter Five, the High Court has maintained in a number of native title decisions that native title is determined by the intersection of two laws, although it has denied full law-making capacity to Indigenous laws. In so saying the
High Court has also emphasised that native title is not ‘of the common law’:
“Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.”151
Further, the Court has also denied that native title has any analogy with common law custom:
“… it was sought to draw some analogy with rights recognised in English land law like rights of common or customary rights. But reference to those rights in the present context is misplaced. They are creatures of the common law finding their origins in grant or presumed grant. And the rights that are now in issue - native title rights - are not creatures of the common law. That a right owing its existence to one system of law (a right of freehold tenure) may be subject to other rights created by that same legal system (such as customary rights or rights of common) is not surprising. But very different considerations arise when there is an intersection between rights created by statute and rights that owe their origin to a different
150 Ibid, at 160-161. 151 Fejo v Northern Territory (1998) 195 CLR 96, at 128, footnotes omitted, per Gleeson C.J., Gaudron, McHugh, Gummow, Hayne And Callinan J.J.
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body of law and traditions.152
Despite these denials, in a number of judgments, the Federal Court and High
Court itself have come close to recognising that the foundation of native title can only be the common law. Presumably it is only their continued insistence that ‘native title is not of the common law’ that obscures this. In the context of discussing the nature of native title (so as to clarify what kinds of grants would extinguish native title),
Beaumont and von Doussa JJ stated that:
“Once rights and interests that involve the physical use and enjoyment of land are identified, their recognition gives rise to jural rights under the common law system. Native title rights and interests thus give rise to jural rights which are “artificially defined” under the common law because they arise from the acknowledgement and observance of traditional laws and customs under a different legal system. The common law affords a status to, and permits enforcement of, those rights according to common law principles. The artificiality is a consequence of the intersection of the common law system of law with traditional laws and customs of the indigenous peoples.”153
Despite denying in Wik that Mabo (No. 2) had ‘created’ a dual system of laws,154 at the same time Kirby J. also went some way towards acknowledging that the foundation of native title can only be the common law. He variously held that:
“The theory accepted by this Court in Mabo (No. 2) was not that the native title of indigenous Australians was enforceable of its own power or by legal techniques akin to the recognition of foreign law. It was that such title was enforceable in Australian courts because the common law of Australia said so.”155
And:
“The source of the enforceability of native title in this or in any other Australian court is, and is only, as an applicable law or statute provides. … For Aboriginal legal rights, including to native title, to be enforceable in an Australian court, a foundation must be found within
152 Ibid, at 130. 153 Western Australia v. Ward (2000) 170 A.L.R. 159, at 189 (FFC). 154 Wik Peoples v. Queensland (1996) 187 CLR 1, at 214. 155 Ibid, at 237-238.
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the Australian legal system.”156
However, having gone this far, Kirby J. then retreated and reiterated that although the foundation must be found in the Australian legal system, native title is not
‘of’ the common law, but recognised by the common law “as not inconsistent with its precepts”.157 Unfortunately, this leaves the concept of ‘recognition’ and the nature of the foundation unclear.
It is contended that the foundation of native title is the same foundation as the common law historically found for copyhold and lex mercatoria. Thus, indigenous norms are reinterpreted and repositioned, just as custom has been, and the common law, in Matthew Hale’s words “does interpose and authoritatively decide the Exposition,
Limits and Extension of such Customs.”158 Or, as stated by Kirby J in Wik, above,
“because the common law of Australia said so”. The foundation of native title can be analogised with custom. It is an interest which results from the common law appropriating matters from other jurisdictions and enforcing them at common law by analogy to these rules. As Noel Pearson has said, native title is not an aboriginal law title.159 The High Court, and to a lesser extent, the Federal Court, have continually denied that native title is ‘of’ the common law, but have continually asserted that its foundation can only be found ‘at’ common law. Most recently, this has been refined to mean the Native Title Act.160 Yet they have been unable to reconcile these statements, and offer an explanation of what that foundation might be.
156 Ibid, at 214. 157 Ibid, at 213. 158 Hale, History of the Common Law, supra note 1, at 18. 159 Pearson, N., “The Concept of Native Title at Common Law”, (1997) Issue 5 Australian Humanities Review,
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The repositioning of copyhold as local custom did not mean that manorial jurisdiction ceased. Nor does the repositioning of certain facets of Aboriginal relations to country as native title mean that Aboriginal law ceases. It is only a small part of the relationship to country which is recognised at common law. However, just as the idea of accommodation or recognition of custom historically did not involve the direct enforcement of, for example, manorial law, nor does recognition of native title mean that Aboriginal law is being enforced. This is acknowledged by the High Court itself.
Nor, however, is aboriginal law the source of the rights and interests. The incommensurability between relationships to country and common law rights and interests alone should suggest this. Rather, the common law recognises certain of these practices because in turn they conform to the common law’s own evidential rules relating to custom. This is the very point of jurisdiction. Jurisdictions can only ever recognise rights according to their own principles. In this case, the common law can only recognise native title according to its own rules for creation of rights. This is not to say that there is no relationship between native title an indigenous law. Self-evidently there must be. However, the relationship between native title and indigenous law is adjectival, just as the relationship between copyhold and manorial law was adjectival.
What does it mean to say that the relationship is adjectival? As stated earlier, essentially, the relationship between common law and Aboriginal law is evidential. The foundation of native title is found at common law, but in order to determine its content, evidence is taken of the actual practices which it is being argued constitute the native title. In order to demonstrate this, a very brief consideration of proof of native title is required.
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b. An Adjectival Relationship: Proof of Native Title
As became the case with custom at common law, native title has become determined adjectivally – in other words evidentially.161 Recognition of indigenous relationships to country in the form of native title becomes a question of ‘appropriate evidence’: oral histories, documents, written histories. Just as with copyhold and tanistry, these ‘facts’ provide the content of the interest within the common law. The scope of native title at common law is, in part, dependent on what facts are admissible.
In the ten years since Mabo (No. 2) proving native title has become an extraordinarily complex and expensive task. The statutory overlay of the Native Title
Act has significantly added to the burden of proving native title which was placed on claimants in Mabo (No. 2) itself.162 As outlined in Chapter Five, in recent decisions the
High Court has confirmed that the statutory definition of native title in s.223 of the Act is the starting point for any examination of a claim. The definition in s.223 and the requirements of s. 62 appear largely consistent with the common law, although the main judgment in Yorta Yorta has had the effect of narrowing the potential range of claimants.163 Just passing the ‘threshold test’ for registration of a claim can be complex and expensive for claimants.164
161 On this see also Rush, P., “An Altered Jurisdiction: Corporeal Traces of Law”, (1997) 6 Griffith L.R. 144. Rush points out that not only native title, but Aboriginal Australians themselves have become adjectival: ibid at 155. 162 On proving native title see Bartlett, R., Native Title in Australia, 2nd ed., Butterworths, Sydney, 2004, in particular chapter 10; Bartlett, R., “An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta”, (2003) 31 U.W.A.L.R. 35; Lane, P., “Native Title Litigation”, (1999) 18 Aust. Bar. Rev. 147. 163 Section 62 stipulates the information which must accompany each type of claim made under the Act. 164 Registration of a claim under the provisions of the Native Title Act gives claimants access to certain procedural benefits, such as the ‘right to negotiate’ (Part 2, Division 3, Subdivision P). If claimants fail to gain registration, their claim will still procede for determination to the Federal Court.
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According to the Brennan J. in Mabo (No. 2), with whom Mason C.J. and
McHugh J. concurred:
“[n]ative title to particular land … its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those, laws and customs, have a connection with the land.”165
Deane and Gaudron J.J. further indicated that “[w]hat the common law required was that the interest under the local law or custom involve an established entitlement of an identified community, or group…”.166 Brennan J. emphasised that the traditional laws and customs of the group “must be ascertained as a matter of fact by reference to those laws and customs”.167 That the laws and customs are matters of fact, not law, has never been disputed.
The core elements of proof at common law, therefore, are an on-going connection, which is according to the traditional laws and customs of an identifiable community. These elements are now incorporated into s.223. It has been further clarified that “the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty …”.168 Further, “the only rights and interest in relation to land or waters … which will be recognised after the assertion of that new sovereignty are those which find their origin in pre-sovereignty law and custom”.169
165 Mabo (No. 2), supra note 2, at 70. 166 Ibid, at 86. Toohey J’s judgment referred to physical ‘presence’ and ‘occupancy’, rather than connection, an approach which suggests a use and occupation criterion, such as outlined by the Canadian Supreme Court in Delgamuukw, an approach which has not subsequently been followed by the High Court [Delgamuukw v. British Columbia]. He added that proof of such occupancy was “to be understood from the view point of the members of the society…”: at 188. For the most influential work which sources aboriginal title in possession see McNeil, K., Common Law Aboriginal Title, Clarendon Press, Oxford, 1989. 167 Ibid, at 58, emphasis added. 168 Yorta Yorta, supra note 3, at 553. 169 Ibid, at 552.
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Therefore, the society which acknowledged and observed those laws and traditions prior to sovereignty must continue to exist in order to fulfil the requirement in Mabo (No. 2) of a communal connection to the land.170 In short, what is required is that the interests that are sought to be enforced as native title must have been possessed under traditional law and custom, and exercised continuously and in an essentially uninterrupted manner since acquisition of sovereignty.171 The content of these traditional laws and customs are ascertained from oral histories, anthropological, archaeological and historical material, which is admitted and proven as ‘fact’. Given that in Yorta Yorta the High
Court has concluded that indigenous normative systems no longer have law-making capacity, that there can be no parallel law-making, these customs cannot be recognised other than as fact.172
The common law has a long history of adducing evidence as to matters within the purview of other jurisdictions. This evidence is admitted in court as ‘fact’. This has occurred in a number of contexts, both historical and contemporaneous. In some contexts, this amounts in essence to enforcing a foreign law. In Chapter Three, in the context of slavery, it was shown that the common law would ‘take notice’ of the laws of other jurisdictions and enforce contracts according to those laws, even though it had been held that slavery was not part of the law of England.173 Of course, Kirby J. has specifically denied that native title is recognised by “legal techniques akin to the recognition of foreign law”.174 Similarly, in the colonial context, as seen in Chapter
Three, the acquisition of a new territory did not always simply abolish the law of the
170 Ibid, at . 171 Mabo (No. 2), supra note 2, at 70. 172 On this point see also Bartlett, Native Title, supra note 162, at 79. 173 Smith v. Brown and Cooper (1702?) 2 Salk 666 (91 E.R. 566), Holt 495 (90 E.R. 1172), at Holt 495 (90 E.R. 1173). 174 Wik, supra note 154, at 237-8.
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predecessor state. In some cases, the laws of the newly acquired territory were regarded as foreign, “so as to be proved as fact and not as laws”.175 In such cases, the law of the predecessor continues, even though it does not derive from the sovereignty of the successor state. This was, for example, the case in Mostyn v. Fabrigas, discussed in
Chapter Three.176
Admitting evidence of activities or matters normally dealt with by other jurisdictions as ‘fact’ was also the way that the common law historically dealt with other domestic jurisdictions. As seen above, however, it was not the laws of other jurisdictions which were enforced, it was the factual activities or matters which founded rights at common law based on the common law’s own doctrines. In England, matters normally regulated by manorial law, ecclesiastical law and the law merchant, for example, could be described by witnesses, admitted to court as proven ‘fact’ and laid before a jury. In this case, the courts were not enforcing foreign laws. Rather, they were establishing a foundation for rights within the common law by reference to the common law’s own rules on recognition of custom, the content of which was described by adducing evidence. The rules on recognition of custom, as laid down in Coke’s
Compleat Copyholder and the Case of Tanistry itself are in fact described as evidential rules.
In the example of copyhold, described above, it was clear that the court was specifically not purporting to enforce manorial law. Rather, it found a foundation for the creation of rights within the common law by reference to its own rules on custom. The common law will recognise rights where there have been practices undertaken continuously, uninterrupted, and since ‘time immemorial’. The content of those rights is
175 O’Connell, D., Law of State Succession, Cambridge University Press, 1956, at 103. 176 Mostyn v. Fabrigas (1774) 1 Cowp. 161 (98 E.R. 1021).
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determined by examining what rights were exercised as a matter of fact. That these practices also led to rights within manorial law was not at issue. The common law was only concerned with finding a foundation within its own rules and principles. The relationship, if any, between the common law rights and manorial law was merely adjectival.
As noted above, the facts of a custom at common law were commonly adduced through the evidence of witnesses: “the usual course taken is to call persons of middle or old age to state that in their time, usually at least half a century, the custom has always prevailed.”177 In Mercer v. Denne, the courts looked to elderly seafarers of the area in order to evidence the existence and content of the alleged custom.178 Similarly, in the case of Mabo (No. 2) itself, the evidence of the oldest members of the community was of particular importance. Keon-Cohen (counsel for the plaintiffs in Mabo) makes the point that the evidence of the eldest members of the community as to their customs and traditions was vital.179 However, reliance on oral evidence of this nature is problematic:
“One thing though is certain: in the Mabo case, as in other native title trials, the same evidence could not be called again. Many of the 'best' Meriam witnesses, being elderly men with knowledge of custom and tradition, have now passed away - Eddie Mabo amongst them. Communities, in this sense, may have one chance only to present their ‘best’ case.”180
Thus, just as it did with regard to ‘Brehon law’ in the Case of Tanistry, the common law determines the enforceability and validity of native title within common law: it exercises its own jurisdiction in order to set the evidential rules for recognition.
177 Halsbury’s Laws of England, vol. 12(1), 4th ed reissue, Butterworths, London, 1998, at [627]; Hammerton v. Honey, supra note 29, at 604 per Jessel M.R.. 178 Mercer v. Denne, supra note 73, at 541. 179 Keon-Cohen, “The Mabo Litigation”, supra note 148, at 926-927. 180 Ibid.
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At a level of technique, these rules echo those laid down by Coke and Davies in the
1600s, and Hale in the 1700s. However, in the context of native title the requirements of continuous uninterrupted practices since time immemorial were translated in Mabo (No.
2) to a requirement that there be a continuing, on-going and uninterrupted connection with the land since sovereignty, as well as that that which is recognised not be repugnant to the common law.181 Clearly, for the purposes of the common law’s own jurisdiction in Australia, there can be no time prior to sovereignty. Thus time immemorial is translated in the colonial context to the coming of the common law on acquisition of sovereignty.
As outlined above, the enforcement of practices undertaken since time immemorial had long been part of the common law. Just as between copyhold and manorial law, the relationship between native title and Indigenous law is adjectival. The foundation of the doctrine of native title is clear: Indigenous interests in land have
“become a dimension of the common law”,182 known within the common law as native title. The validity and enforcement of native title stems from the continuous practice of
‘customs and traditions’ since the coming of the common law. At common law, their validity depends on the common law, and the common law exercises its own jurisdiction to determine the scope and limits of those rights and the criteria for their recognition and continued enforcement within the common law. The common law has always recognised the validity of practices undertaken ‘time out of mind’.183
181 Mabo (No. 2), supra note 2, at 70 per Brennan J. 182 Ibid, at 176. 183 Brennan J.’s requirement in Mabo (No. 2) that native title not be “repugnant” to the common law, in particular to “to natural justice, equity and good conscience” (Mabo (No. 2), supra note 2, at 61) also echoes the requirements for custom. The requirement that a custom not be repugnant was raised in the Case of Tanistry. In that case, repugnancy was argued to be a part of the requirement that a custom be reasonable: Case of Tanistry, supra note 4, at Davies 32 (E.R. 520), English Translation 88-89. A custom cannot be reasonable if it is contrary to the ‘first principles of
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This does not mean that native title is simply co-extensive with, or the same as, other kinds of common law custom. To the contrary, the contemporary common law rules pertaining to custom and those pertaining to native title are not the same. For example, the rules on extinguishment of custom, and the effect of interruption of use on the continuing validity of that custom, and those on extinguishment of native title are quite different.184 In fact, it is both easier to establish, and more difficult to extinguish common law custom than it is to recognise or extinguish native title. For example, while a short ‘loss of connection’ will extinguish native title, a customary right cannot be extinguished unless there is clear evidence of abandonment. Mere non-user will not suffice. Rather, there must be “a clear intention that neither the person entitled to the right nor his successors in title should ever use it again”.185 Similarly, while native title holders must now prove continuous connection since sovereignty, despite the obvious evidential problems of so doing, those who allege a common law custom are aided by various presumptions and inferences as to time of user. While immemorial custom should be proven back to 1189, the courts will uphold the custom if circumstances can be proven which raise a presumption that the custom existed at that date.186 This presumption can be raised by showing continuous user “as of right as far back as living testimony can go ..”.187 Thus, the courts will support an inference of fact which tends towards establishing the custom. “Consequently, it is a rule of law that wherever there is an immemorial custom the court must presume everything possible which could give it
justice’. A custom is not unreasonable just because it is contrary to common law principles, but only unreasonable if inconsistent with the general principles which underlie the legal system: ibid. 184 For the rules on custom generally see Halsbury’s, supra note 177. 185 Ibid, at [649]; Re Yateley Common [1977] 1 E.R. 505. 186 Ibid, at [607]; Jenkins v. Harvey (1835) 1 Cr M & R 877 (149 E.R. 1336); Mercer v. Denne, supra note 73. 187 Halsbury’s, ibid.
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legal origin.”188 While the presumption raised is, of course, rebuttable, it is a significantly easier standard that that set by the High Court for native title applicants.
Similarly, while local custom is considered of similar binding authority as the common law, in fact taking precedence over it where proven, native title remains subordinate to the common law, constructed in Mabo (No. 2) as a fragile interest easily defeated by
Crown tenures.
However, while native title and common law custom may now constitute separate bodies of doctrine, they have similar foundations within the common law, based on practices since time immemorial. They are both the product of the common law technology of jurisdiction: each is the product of the common law’s project of univocality, although each has developed (and is continuing to develop) in its own unique fashion. At the level of technique, they are both, to quote from Matthew Hale at the beginning of this chapter, “Part of the same Ocean”. They are both founded within the various streams of the common law.
Conclusion
Just as the Case of Tanistry represents a simultaneous recognition and disavowal of ‘Brehon law’, so the doctrine of native title represents a recognition and disavowal of
Australian Indigenous jurisdictions. In the Case of Tanistry, it was common ground that while ‘Brehon law’ once existed, it had been ‘abolished by the establishment of the common law of England’. While ‘Brehon law’ obviously continued to operate, as according to Davies it was the source of the Irish Lord’s power, the decision that it had been ‘abolished’ left only the possibility at common law of the recognition as custom of specific rights with respect to land.
188 Ibid; Cocksedge v. Fanshaw (1779) 1 Dougl. 119, at 132 (98 E.R. 80, at 88), per Lord Mansfield.
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Similarly, Australian judges have been at pains to acknowledge the existence of indigenous normative systems, but to deny their efficacy at common law. By stating that no parallel law-making is possible, the High Court has effectively placed indigenous law in the same position as Brehon law. While judges such as Kirby and Von Doussa JJ concede that many Indigenous Australians continue to live according to their own laws and traditions, the decision that indigenous law generally cannot be recognised, and the anomalous status left to indigenous law post-sovereignty, leaves only the possibility at common law of the recognition of specific rights with respect to land. Indigenous laws and traditions are recognised only to be closed off from enforcement at common law: by the same double movement recognised and disavowed.
By reiterating that native title only exists because “the common law of Australia said so”, the courts are able to contain indigenous norms and maintain the univocality of the common law. While the courts accept that indigenous norms exist independently of the common law, they pose no threat. Native title has its foundation at common law and the common law has appropriated to itself the sole right to determine its enforceability: in other words, sole jurisdiction.
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Chapter Eight
Categorisation
The Courts that were manifold dwindled to divers divisions of one…1
“… classifying consists in the acts of inclusion and exclusion. Each act of naming splits the world into two: entities that answer to the name; all the rest that do not. Certain entities may be included into a class - made a class - only in so far as other entities are excluded, left outside.”2
Introduction
The previous chapter outlined the technique by which the common law selectively appropriates aspects of rival jurisdictions, and incorporates them within the assemblage of the common law. Thus, practices can be ‘recognised’ and enforced at common law if they correspond to the traditional common law evidential rules for recognition of custom: practices undertaken continuously, in an uninterrupted manner, since time immemorial. A common law interest is created, which has an adjectival relationship to the other jurisdiction. In the case of the recognition of native title, these rules are reformulated as continuing connection, continuity of practice of traditional laws and customs since sovereignty, and the interest recognised must be one which is not repugnant to the common law. Having established the framework for recognition, this Chapter examines the shape and bounds of that which has been appropriated or
‘recognised’ by the common law: in other words of those parts of indigenous normative orders, or relationship with country, which are given force at common law as the construct of as native title.
In so doing, this Chapter has two related aims. First, this chapter describes the process by which the locus of common law jurisdiction shifted as a result of the
1 Unattributed quotation in Underhill, A., “Law”, in Shakespeare’s England: An Account of the Life and Manners of His Age, Vol 1. Clarendon Press, Oxford, 1916, at 389.
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nineteenth century law reforms, with a resulting loss of a substantive notion of jurisdiction from the common law. As will be seen, in the fluid legal environment which followed the procedural reforms of nineteenth century, a new way of organising legal knowledge was needed. New categories of law arose, and gradually became regularised.
Rather than the focus of jurisdiction at common law being the body of the common law itself, it shifted to the new categories or bodies of law: contract, tort, crime, property and so on. Thus, this first part looks to why our categories of law have their current shape.
Second, this Chapter considers the legal practice of categorisation as a jurisdictional device. Categories embody a specific jurisdictional domain and the boundaries between legal categories remain important. While we may seek to simultaneously invoke more than one cause of action, the categories of law themselves remain discrete and limited: tort; property; crime; contract. Each has a specific self- referential domain: a terrain over which it is sovereign. Categorisation is therefore a jurisdictional device, a practice through which jurisdictions are given substance and through which people, places and events are juridified. In particular, this Chapter examines the shape and bounds of the specific common law category of native title. In the decade since the decision in Mabo v. State of Queensland (No. 2),3 a project of the
High Court has been to determine which aspects of the relationship of Indigenous
Australians to their country are enforceable within the common law as native title, and which are excluded and hence unenforceable. The result is a new legal category - a new jurisdictional entity - that of ‘native title’. What then is the domain of this new category and what is being juridified?
2 Bauman, Z, Modernity and Ambivalence, Polity Press, Oxford, 1993, at 2.
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Classifying Law
In the late nineteenth and early twentieth centuries, a number of significant reforms and changes occurred to the legal system which together led to the re- organisation of legal knowledge, and resulted in the current shape and organisational structure of the law. In particular, reforms to common law procedure, of which the well known abolition of the writ system was one, resulted in a fluid legal environment, in which the project of organising the law according to ‘scientific principles’ could be furthered. This project of ordering was taken up by all arms of the law: courts, legislators and, in particular, the newly emergent class of legal academics. The process was a reflective one: academic lawyers, in particular those who sought to modernise the law, consciously sought to impose systematic and rational order on the law, suggesting a number of different possible organisational structures.4
Classifying law was only one facet of the general drive to classify the world which is a characteristic of modernity:
“[a]mong the multitude of impossible tasks that modernity set itself and that made modernity into what it is, the task of order (more precisely and most importantly, of order as a task) stands out … .”5
3 Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1 [hereinafter Mabo (No. 2)]. 4 On rationalisation and law see Weber, M., Wirtschaft und Gesellschaft, J.C.B. Mohr (P Siebeck), Tübingen, 1922, trans. Fischoff, E., et al., Economy and Society: An Outline of Interpretive Sociology, University of California Press, Berkeley, 1978, especially Chapter Seven “Rechtssoziologie” (Chapter 8 in the English Translation). “Rechtssoziologie” has also been separately published in an English translation as Shils, E., Rheinstein, M., Max Weber on Law in Economy and Society, Harvard University Press, Cambridge, Mass, 1954. In “Rechtssoziologie”, Weber discusses the English common law as a rational legal system. His view of the common law is, however, mixed. While he views certain features, such as the doctrine of precedent, as rational, he also considered the lack of systematic organization, a result of the attachment in common law reasoning to external considerations, as irrational: see Kronman, T., Max Weber, Edward Arnold, London, 1983, at 89. While Weber may have seen the abolition of the traditional common law system of pleading, an essentially irrational feature of the common law, and the resulting emergence of substantive categories as a move towards a more rational system, the continuing absence of a ‘modern Pandectist code’, a seamless and gapless system of rules, may continue to deny the English common law, and its derivative systems, the status of fully rational system in Weberian terms. 5 Bauman, Modernity and Ambivalence, supra note 2, at 4.
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The result of the classification project of the nineteenth and twentieth centuries was the creation of a new organisational scheme, a non-natural, imposed structure which gradually fossilised, became regularised and became self-reinforcing. In this part,
I consider the re-shaping of the law in this period. Against this backdrop, an examination of the practices of categorisation and the shape and configuration of the domain of native title can be undertaken. a. Reforming the Law
The nineteenth century debate about law reform was to end in a series of fundamental changes to the English legal system and those systems derived from it.6
From the 1820s, calls for law reform became increasingly pressing. As the century progressed, law reform became not merely an issue for Parliament and commentators, but engaged the mind of the general public. There were, however, various law reform agendas. Rather than a single aim or goal, dissatisfaction with legal institutions ranged across a variety of issues: calls for legal codification; debt collection; common law procedure and the writ system; Chancery procedure; and conveyancing.7
For the present purposes, two particular areas of reform are of importance: one well known, the other much less so. The first is the reforms to civil procedure commenced by the Uniformity of Process Act,8 which, inter alia, began the process of abolishing the notorious writ system. The second reform was the abolition of many local and particular jurisdictions by 1867 amendment to An Act for the More Easy
6 Note, however, that while most jurisdictions followed the English reforms, the State of New York introduced the Field Code in 1848, prior to most of those reforms: see infra. There were also early moves for reform in this area in India. 7 See generally, Odgers, W., A Century of Law Reform: Twelve Lectures on the Changes in the Law of England during the Nineteenth Century, McMillan, London, 1901. 8 Uniformity of Process Act, 2 Will. IV, c. 39 (1832).
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Recovery of Small Debts and Demands in England,9 better known as the County Courts
Act. In combination these reforms are of particular importance because of their effect on common law jurisdiction.
Reforms to civil procedure helped to encourage the emergence of new categories of law. In the fluid environment created by the abolition of the forms of action, and under the intellectual sway of the “modern” scientific approach to law, a new rational classificatory system for law was sought. These reforms of the nineteenth century are often related as a ‘move from form to substance’:10 in which substantive categories of law arise, and procedure becomes a secondary consideration. Such a view is, of course, encouraged by a glance at any law school curriculum in the common law world, in which procedure is generally relegated to one or two courses, while the rest of the courses are made up of substantive categories.
The reforms of the nineteenth century can, however, also be related as a story of shifting procedure and shifting jurisdiction. Prior to the reforms, common law jurisdiction attached to writs: namely those events, people, things which came within the ambit of the seventy-two writs (although many were of course obsolete) were juridified, and rendered amendable to the decision of the common law. It was still common to speak of the jurisdiction of the common law, to think of the common law as a particular body of law, although its administration was spread across an array of courts. After the reforms, the locus of jurisdiction shifted to the new categories of law which largely resulted from the classificatory exercises of the late nineteenth century.
9 An Act to Amend the Acts relating to the jurisdiction of the County Court 30 & 31 Vict. c. 142 (1867) [hereinafter County Courts Amendment Act]. 10 For a recent example see Kwai, D., “Where do Swallows go in Winter?: A Zoological Search for a Theory of the Causes of Action”, (1999) 22 U.N.S.W.L.R. 100, at 107.
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However, to state that jurisdiction attached to writs tells only part of the story.
Despite the growing pre-eminence of the common law over the proceeding centuries, a matter discussed in Chapter Two, prior to the late nineteenth century (and arguably even later), there was a sense in which England remained a plurality of jurisdictions. Many non-common law jurisdictions remained, albeit with their jurisdictional ambits withered and lessened. The abolition of many of the remaining local and particular jurisdictions as part of the procedural reforms finally left the common law (now administratively fused with equity) as the dominant jurisdiction.11 A glance at the same law school curriculum not only reveals the dominance of ‘substance’ over ‘procedure’, but also reveals the absence of alternatives to common law and equity. The demise of these other jurisdictions also had an impact on the locus of common law jurisdiction. The common law became less frequently thought of as a jurisdictional entity in itself. Ironically, when the common law was one of a number of jurisdictions its status as a jurisdiction was important, as it was necessary to consider whether it was the appropriate place in which to commence an action. When it finally became for all intents and purposes the only jurisdiction, it was no necessary to ask that question, and considerations of the common law as a jurisdictional entity faded away. The locus of jurisdiction shifted not only from the writ system, but from the common law itself, to the new categories of law.
The abolition of the forms of action
As previously discussed, prior to the mid-eighteenth century, common law jurisdiction was inextricable from the writ system. Where a writ lay, jurisdiction lay. As a result, the organisation of the common law was inextricable from the forms of action.
11 Of course some alternative jurisdictions still exist - admiralty law for example - but these frequently fail to rate a mention other than in specialist texts. They are no longer administered by separate court systems and have been integrated into the common law system.
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As Maine put it: “[so] great [was] the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law ha[d] at first the look of being gradually secreted in the interstices of procedure.”12 As a result, “…to a very considerable degree the substantive law administered in a given form of action has grown up independently of the law administered in other forms. Each procedural pigeon-hole contains its own rules of substantive law”.13 It has been suggested, therefore, that English law was
“intellectually and practically incoherent because substantive legal rights and duties were learned and classified for practice under the jumbled array of procedural forms.”14
Moreover, under the sway of the forms of action, any meaningful distinction between substantive law and procedure was impossible.
From the early 1800s there were calls for reform of common law procedure.15 In his notorious eight hour speech to the House of Commons in 1828, which consisted of a detailed critique of the law,16 much of Brougham’s criticism referred to the “defects occasioned by time and otherwise in the laws of this realm”.17 Brougham called for a commission to examine these defects, with the resulting appointment of the Common
Law Commissioners, who eventually issued five reports. In general, however, much of the focus of dissatisfaction with the common law centred on the issue of imprisonment
12 Maine, H., On Early Law and Custom, edition unknown, originally published by John Murray, London, 1883, at 389, quoted in Maitland, F.W., The Forms of Action At Common Law, Cambridge University Press, Cambridge, 1965, at 1. 13 Maitland, The Forms of Action, ibid, at 4. 14 Grey, T., “Accidental Torts”, (2001) 54 Vanderbilt L.R. 225, at 1240, emphasis in the original. 15 The following part relies to some extent on Michael Lobban’s short history of this period: See Lobban, M., “Henry Brougham and Law Reform”, (2000) 115 The English Historical Review 1184. His article provides an excellent narrative of the events of the 1820s-1850s. 16 Michael Lobban points out that Brougham’s speech was a critique of the workings of the law, not a programme of reform. According to Lobban he was “not a man to work out all the details”. Rather his aim was to be the prime architect of law reform, the detail of which would be carried out by others. See, ibid, at 1189. 17 See Brougham and Vaux, H. Brougham, Lord, Present State of the Law: the Speech of Henry Brougham, Esq., M.P., in the House of Commons on Thursday, February 7, 1828, Henry Colburn and Henry Butterworth, London, 1928. Brougham later became Lord Chancellor.
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for debt,18 and the demand for accessible justice.19
In the 1840s, however, much of the attention on law reform came to focus on two specific issues: the fusion of law and equity and “the use of a ‘natural’ procedure, with a simplified system of pleading and less exclusionary rules of evidence.”20 The assault on the forms of action had already been commenced in 1832 by the Uniformity of Process Act, which abolished the old original writs and provided a new form of writ by which all personal actions could be commenced. However, it was still necessary to insert into this writ a reference to one of the known forms of action. In addition, in 1833 the real and mixed actions were abolished.21 Despite these moves towards simplification, new complexities in pleading were introduced by the Hilary Rules of
1834.22
Attention became focused on these two elements of reform in part as a result of
18 Prior to the reforms of the nineteenth century, insolvency was a crime. Debtors were gaoled even before to the debt was proved, merely on an affidavit by the alleged creditor that a debt was owing. While traders could escape gaol by giving their assets for distribution and seeking relief from the insolvency laws, thousands of individual debtors were gaoled each month in England in the early part of the nineteenth century for alleged insolvency. 19 Lobban, “Henry Brougham and Law Reform”, supra note 15, at 1197. 20 Ibid, at 1211. The forms of action rendered litigation expensive and lengthy. As the forms of action stood, two cases of complaint could not be prosecuted in the same action unless they belonged to the same form. Thus, for example, an action on a covenant could not be pursued in the same action as a contract debt. On the other hand, if the wrong form of action was chosen, the defendant would be non-suited at trial and forced to pay the defendant’s costs. If successful, the courts of common law had limited remedies available to them: the return of the possession of particular land or goods, and damages, but no injunctive relief, nor ability to require performance. In addition, the rules of evidence stated that no one with an interest in an action could give evidence. Hence in a civil case of assault, for example, neither the person assaulted, nor the victim could give evidence. For a literary example, see Charles Dicken’s The Pickwick Papers, in which Mr Pickwick cannot give evidence as to why he will not marry Mrs Bardell in an action for alleged breach of promise of marriage. 21 Real Property Limitation Act, 3 and 4 Will. IV, c. 27 (1833). See s. 36 which lists sixty actions and provides that none of these sixty, nor any other action, real or mixed, shall be brought, with the exception of a writ of right of dower, a writ of dower, unde nihil habet, a quare impedit, or an ejectment. The majority of the writs spared were subsequently abolished by s. 26 of the Common Law Procedure Act, 23 and 24 Vic., c. 126 (1860). The majority of these writs had already been rendered obsolete, theoretically possible, but never used. Ejectment had come to be used in place of many of the old real and mixed actions. 22 Lobban, “Henry Brougham and Law Reform”, supra note 15, at 1211.
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the reforms in New York.23 The Field Code, named after its creator, David Dudley
Field,24 was soon followed in other U.S States. The Code abolished the distinction between actions at law and suits in equity, and the forms of those actions and suits. It substituted one form for the commencement of all civil actions, the summons. The Code also abolished all the traditional pleadings, replacing them with the complaint, answer
(or demurrer) and reply. Field visited London in 1850, and his speech to the Law
Amendment Society created a “sensation”, “exceed[ing] anything that we remember connected with the amendment of the Law”.25 The effect was not only felt in legal circles, but became a matter of public debate. Eventually, the requirement to mention a form or cause of action in a summons was abolished in 1852 by the Common Law
Procedure Act.26 This process was completed by the Judicature Acts,27 and the consequent civil procedure rules of 1875. The Australian colonies followed the English lead and legislatively implemented similar reforms,28 although it took some time before all the Australian jurisdictions were aligned.29
One of the most vocal opponents to common law procedure as it stood prior to the Judicature Act was Jeremy Bentham, to whom the distinction between substantive and procedural law owes much, and who “provided much of the ideological fuel for the
23 Ibid. 24 The Code of Procedure, Laws of 1848, Chap. 379 (The Field Code). 25 The Law Review, ciii (1851), 198, quoted in Lobban, “Henry Brougham and Law Reform”, supra note 15, at 1212. 26 Common Law Procedure Act, 15 and 16 Vic., c. 76 (1852) , s. 3 27 Supreme Court of Judicature Act 36 & 37 Vict., c. 66 (1873); Supreme Court of Judicature Act 38 & 39 Vict., c. 77 (1875). 28 See, for example Judicature Act 1876 (Qld); Supreme Court Act 1878 (SA); Judicature Act 1883 (Vic). 29 Tasmania, for example, did not finally institute all the reforms until 1932: Supreme Court Civil Procedure Act 1932 (Tas), although it went part way towards them in the Legal Procedure Act 1903 (Tas). New South Wales did not make provision for the concurrent application of common law and equity in the Supreme Court until 1970: Supreme Court Act 1970 (NSW).
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procedural reforms.”30 He supported the abolition of the forms of action and argued for a reversal of substance and procedure, in order that procedure should serve substantive law:
“As in fact every act by which a course of procedure is commenced has for its end or object, the bringing about the execution of some law of the substantive class, so, in point of utility, it may be said that the course of procedure ought to have in every instance, for its main and primary end at least, the accomplishment of the will manifested in the body of substantive laws. This is not only a use of it, but the only use for it.”31
By procedure, Bentham referred to “the course taken for the execution of the laws, viz, for the accomplishment of the will declared …”.32 This was to be characterised as adjective laws. The end of substantive law was “the maximization of the happiness of the greatest number of the members of the community…”.33 As the purpose of one was to support the other:
“… in jurisprudence, the laws termed adjective, can no more exist without the laws termed substantive, than in grammar a noun termed adjective, can present a distinct idea without the help of a noun of the substantive class, conjoined with it.”34
Under the Benthamite view, substantive law included not only the primary rights and duties of parties, but also remedies/sanctions. This contrasted with older conceptions which included in the notion of remedies both the rules governing sanctions and relief and the procedures through which the disputes were litigated.35 This
30 Grey, “Accidental Torts”, supra note 14, at 1239. See also Zagday, M., “Bentham on Civil Procedure” in Keeton, G., Schwarzenberger, G. (eds), Jeremy Bentham and the Law: A Symposium, Stevens & Sons, London, 1948. Note, however, Lobban, who suggests that Bentham’s influence may not have been as significant as traditionally thought: Lobban, “Henry Brougham and Law Reform”, supra note 15, at 1189. 31 Bentham, J., Principles of Judicial Procedure and the Outlines of a Procedural Code, in Bowring, J (ed), The Works of Jeremy Bentham, Vol II, William Tait, Edinburgh, 1843, at 6. 32 Ibid, at 1. 33 Ibid, at 2. 34 Ibid. 35 See Grey, “Accidental Torts”, supra note 14, at 1240-1.
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distinction between substantive and procedural law was important in arguing for procedural reform. Substantive law “was the substratum left unchanged by the purely procedural reforms”.36 Thus, procedural reform would not alter existing rights or remedies, it would merely simplify civil actions.
The abolition of the forms of action created space for a systemic re-classification of the law – a reorganisation of the substantive law (in the broad Benthamite sense) - free of the restrictions of the forms of action. By the second half of the nineteenth century, the organisation of legal knowledge along ‘scientific’ lines had been going on for two centuries. In addition, a number of areas, such as intellectual property, had already emerged by the 1850s, in much the form which they currently have – copyright, patents, designs.37 However, once freed from the rigid structure imposed by the forms of action, academic and practicing lawyers began to re-order legal knowledge in new ways, developing new substantive categories of law which remain foundational to current legal ordering.
The abolition of local and special jurisdictions
While many local or special jurisdictions had already atrophied or been absorbed by the early 1800s, it is nevertheless often forgotten how many them still existed. Local courts and courts of special jurisdictions continued to hold significant caseloads in the early nineteenth century. Arthurs points out that during the investigations into the legal system in the nineteenth century, what was at stake was “the shape of the English judicial system. … it was a matter of whether the common law would be the sole or pre- eminent legal regime, or merely exist as one component amongst many in a pluralistic
36 Ibid. 37 On the emergence of modern intellectual property law see Sherman, B., Bently, L., The Making of Modern Intellectual Property Law: The British Experience, 1760-1911, Cambridge University
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system.”38 A number of the local and special jurisdictions which were described in
Chapter Two continued to function, despite the challenges to them from changed social and economic conditions. These included, for example, the inferior courts of common law (the court of Pie Poudre, the Court Baron, the Hundred Court and the County
Court); the courts of bankruptcy and insolvency (the Court of Review, the
Commissioner’ Courts and the Court for the Relief of Insolvent Debtors); and courts of special or local jurisdiction (the County Palatinate Courts, Courts of Requests, Stannary
Courts, Courts of the Universities, Court of the Commissioner of Sewers, the
Marshalsea and the Palace Court).39 While the continuing importance of such jurisdictions should not be overstated, Arthurs suggests that many “overestimate[d] the extent to which the “ordinary courts” and the “ordinary law of the land” monopolised adjudication.”40
In part, the reform of the local court structures in the second half of the nineteenth century was a response to the new commercial environment and the continuing problems of debt recovery. Much of the small-scale debt recovery, for example, was still handled by the local courts of request, which were courts of non- record. These were each created by a separate act of parliament, and were limited jurisdictionally, both with respect to the monetary limit of the debt and geographically.
Debts could also be recovered in a number of special jurisdictions, most of which were also courts of non-record and all of which had different procedures. Despite the
Press, Cambridge, 1999. 38 Arthurs, “Special Courts, Special Law”, in Rubins, G., Sugarman, D. (eds), Law, Economy and Society, 1750-1914: Essays in the History of English Law, Professional Books Ltd, Oxford, 1984, at 384. 39 For a partial list see Manchester, A., A Modern History of England and Wales 1750-1950, Butterworths, London, 1980, at 111ff. A number of jurisdictions, for example the Lancaster and Durham Palatine Courts, survived until they were merged with the High Court in 1971: See the Courts Act 1971 (U.K.).
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criticisms of the system in the early nineteenth century, parliament continued to legislatively create courts of request during the first part of the nineteenth century.41
One of the requirements of efficient debt recovery was determined to be centralisation and uniformity of judicial processes. In order for the administration of justice to be focused on its central elements, the common law courts, what was required was “a flanking movement around rival and autonomous systems, through judicial or legislative appropriation of their unique jurisdictions, doctrines or procedures, thus enabling the central court system to compete with them more effectively.”42 The judicial appropriation of rival jurisdictions, and one technique by which this was achieved, has already been discussed in Chapter Seven. In this short part the emphasis is on legislative reforms.
In order to expedite the recovery of debts, in 1846 the new County Courts were created.43 Although there had previously existed bodies known as county courts, these new courts bore no relation to the previous county courts. The new county court system was designed to simplify the recovery of debts by providing for a centralised national system, as it was desirable that “… One Rule and Manner of proceeding for the
Recovery of Small Debts and Demands should prevail throughout England… .”44 This legislation, along with the Bankruptcy Act of 1842, were designed to facilitate commercial transactions by improving the legal and institutional framework which regulated commerce.45 Thus the County Courts were created in an attempt to rationalise
40 Arthurs, “Special Courts, Special Law”, supra note 38, at 384. 41 See generally Winder, W., “The Courts of Request” (1936) 52 L.Q.R. 369. 42 Arthurs, “Special Courts, Special Law”, supra note 38, at 383. 43 An Act for the more easy Recovery of Small Debts and Demands in England, 9 & 10 Vict. c. 95 (1846). 44 Ibid, preamble. 45 Bartrip, P., “County Court and Superior Court Registrars, 1820-1875: The Making of a Judicial Official” in Rubins & Sugarman, Law, Economy and Society, supra note 38, at 354-5.
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the existing profusion of local small debt courts, and initial jurisdiction was all personal pleas where the amount of debt or damage was twenty pounds or less.46 The County
Court, therefore, became the standard starting point for civil actions under a set monetary limit.
The jurisdiction of the County Courts was extended several times and, in order to further centralised debt recovery, in 1867 all courts that were not courts of record were effectively abolished. Section 28 of the County Courts Amendment Act provided, inter alia, that “… no action or suit which can now be brought in any County Court shall henceforth be commenced or maintained in any hundred or other inferior court not being a Court of Record…”. This section was not the subject of debate as it passed through parliament. Hansard merely recalls that the Lord Chancellor commented that cl.
21 of the Bill (s. 28 of the Act) “extinguished a number of petty courts which at present had jurisdiction in matters of debt”, and “it placed the recovery of loans by loan societies in the County Court instead of before justices.”47 Mandating that all matters of debt proceeded through a national system of courts ensured the predictability of outcome required in commercial matters.48 Thus, as Arthurs comments: “… the vast armada of local and special courts that comprised the English legal system in 1830 was replaced by a new national fleet of count y courts in 1846, and was securely anchored within the safe harbour of the common law, at least from the 1850s onwards.”49
46 Ibid, at 354 47 Parliamentary Debates 1830-1891, Vol. CLXXXVII, 1867, Debate on the County Courts Amendment Bill (No. 108), 2nd Reading Speech, May 31 1867, at 1385. 48 The common law courts which were locally administered had received considerable criticism by the Common Law Commissioners, on the grounds that they lacked competent staff, lacked power to attendance or enforce judgment and were limited both monetarily and geographically: See Fifth Report of the Common Law Commissioners, 1833, at 18. 49 Arthurs, H., Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century
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The result of section 28, however, was that little room remained for the practical operation of courts other than the County Courts. Those courts which remained, even if not part of the central court structure, almost entirely administered the common law. An example of such a common law court is the Vice-Wardens Courts of the Cornwall and
Devon stannaries, which, against the flow of reform, at this time had its jurisdiction extended rather than abolished.50 and which administered both common law and equity, as well as local stannary custom. As a further result of the introduction of the County
Courts, actions which would have been decided at common law, but by Courts not considered part of the central common law courts, were transferred to those courts. The effect of this was not only a reduced number of jurisdictions generally, but also a reduced number of common law jurisdictions. This dwindling of jurisdictions was furthered by the Judicature Act, as a result of which the various common law courts which had similar jurisdictions were consolidated into one High Court and Court of
Appeal.51
Therefore, despite the emphasis of commentators and reformers on the common law, in the first half of the nineteenth century it was still possible and common to speak of jurisdictions in the plural. It was still the case that the laws which governed disputes and regulated peoples’ rights were not those of the common law. As a result, the primary question of jurisdiction was still of importance. There was no automatic
England, University of Toronto Press, 1985, at 15. 50 Their jurisdiction was extended by an Act to make Provision for the better and more expeditious Administration of Justice of Stannaries in Cornwall 6 & 7 Wm IV c.106 (1836) and extended by An Act to Amend the Jurisdiction of the Stannary Court 18 & 19 Vict. c. 32 (1854). 51 See Supreme Court of Judicature Act 36 & 37 Vict., c. 66 (1873), ss. 3, 4. As a result of these reforms, the Court of Chancery, the Court of King’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate and the Court of Divorce and Matrimonial Causes were consolidated. There were originally three divisions of the High Court corresponding with three earlier courts (Pleas, Exchequer and King’s Bench), however these were consolidated into one (the King’s Bench) by Order in Council, 10th December 1880 (and all statutory jurisdiction of the Chief Baron and the Chief Justice of the Common Pleas was
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assumption that the body of rules and principles known as the common law would apply to any dispute – that the jurisdiction of the common law would be the site of authority and determination in all matters. While common law courts had come to dominate the legal landscape, the continued functionality of these other courts, and the overlapping jurisdiction of the three central common law courts, ensured that questions of common law jurisdiction remained important. The demise of the non-common law courts, and the institution of the new county courts, resulted in a shift in jurisdictional and procedural questions. Even where other bodies of law remained important, such as admiralty law, the administrative re-location of these to the new High Court of Justice largely completed the absorption of them by the common law which had been underway for almost 400 years. The common law courts became the automatic starting point for almost all actions. Rather than asking ‘which writ’, which court, which jurisdiction, issues such as the monetary limits of courts assumed greater importance.
With the demise of non-common law courts, new persons and new matters came within the ambit of the common law and became newly juridified by the common law.
The de-emphasis of the common law as a jurisdictional body led eventually to the loss of any conception of jurisdiction beyond the strictly procedural questions associated with courts and monetary limits. While jurisdictional matters still echo those of earlier times - concerns to define the boundaries of the jurisdiction of particular courts, questions as to where to commence actions - they differ in one significant respect: all take place under the uniform ambit of the common law. With the pre-eminence of the common law there was no challenge to its jurisdiction, and hence no longer any need to think about the jurisdiction of the body of the common law.
transferred to Lord Chief Justice of England: Judicature Act 1881, s 25).
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As discussed in Chapter Four, in Australia the common law had long held the pre-eminent position which it only assumed in the United Kingdom in the late nineteenth century. Due to the rules on reception of law in new colonies, only as much of English law as was relevant to the conditions of the colony was imported into the colony of New South Wales. There was, of course, as also discussed in Chapter Four, a period in which common law jurisdiction was challenged by Indigenous plaintiffs.
However, these challenges were eventually quashed and it was soon forgotten that there had ever been any question as whether indigenous jurisdictions operated along side the common law. As further discussed in Chapter Five, the High Court continues to paint an ambivalent picture of the position of indigenous normative systems post-annexation of the continent by Great Britain. The Court’s acknowledgment of normative systems, but effective denial that they continue to have law-making capacity, left undented the uniform authority of the common law as the pre-eminent body of law in Australia. b. Reshaping the Law
As described above, the abolition of the forms of action allowed the reorganisation and classification of legal knowledge. Further, the effective abolition of many remaining non-common law jurisdictions ensured that the knowledge which was to be reorganised was the knowledge of the common law. How then was this legal knowledge to be ordered and managed? There was no inevitability about the way in which this knowledge would be ordered, and consequently a number of different organisational methods and structures were suggested. This re-ordering took place in both the United Kingdom and the United States in much the same period, also in part as the result of similar legal reforms. In the US, well known scholars and jurists, such as
Oliver Wendell Holmes, John Norton Pomeroy, James Kent, and Joseph Story took enthusiastically to the challenge of systematisation. In the United Kingdom major areas
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of law were not only reorganised but developed, often through the writing of new texts, by academics such as Dicey, Anson, Pollock, Maitland and Stephens.
By the nineteenth century, not only had significant bodies of substantive law developed, particularly in the areas of contract, crime and property, but in some of these areas, despite the forms of action, that law had begun to take on its modern form. By the
1800s, for example, contract had emerged as an abstract entity, with a structure which was distinct from the forms of action.52 Tort, on the other hand, remained divided between trespass and case, and a large “residuary group linked together by nothing stronger than that the defendant was alleged to have caused loss to the plaintiff”.53
Negligence had begun to emerge, but much of this residual group consisted of a series of specific duties owned to specific classes of plaintiff, rather than a general principle of duty of care. Nor was tort fully separated from contract. Action on the case clearly covered not only tortious actions, but some which were clearly contractual.54 Property remained bifurcated: the division between real and personal property was (and still is) central to property law. Thus, while much significant substantive law had developed, the abolition of the forms of action allowed the unification of different parts which still subsisted within the interstices of the particular forms of pleading. The removal of the forms of action provided a conceptual space in which academics and jurists could begin to think about how to conceptually organise this substantive law.55
The categories of law which emerge are a product of the synergy between
52 Ibbetson, D., A Historical Introduction to the Law of Obligations, Oxford University Press, Oxford, 1999, at 215. 53 Ibid, at 169. 54 Ibid, at 171. 55 Of some importance also to the coalescing of categories was the shift in the eighteenth century in the balance of power between judge and jury. The jury’s role became confined to that of finders of fact, while questions of law were left to the judges. The result was that courts began to look behind the forms of action to the facts on which the case rested, and hence to police the boundaries
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academic writers, the courts and the legislature. However, in this part the emphasis will be on observing the emergence of these categories primarily though an examination of the textbook tradition. The reasons for this are two-fold. First, as Birks points out: “… the intellectual transformation of the common law [took] place through an interaction between the literature of the law and legal education.”56 The impact of university legal academics on the re-configuring of the law was important. Contract, criminal law and administrative law, for example, all largely received their current shape through the endeavours of “university jurists”.57 Second, textbooks (or their cousins, treatises) allow observation of the changes in the shape and organisation of the law, and reflect new classificatory endeavours by academics, as well as influential court determinations.
The seventeenth and eighteenth centuries witnessed fundamental changes in legal method. This was in part a product of the general change in intellectual orientation in the late sixteenth and seventeenth centuries.58 In part as a result of the opening of the new world, and the challenges to existing knowledge posed by it, a new empirical conception of knowledge arose and [an increase in the amount of knowledge.] As a result of this burgeoning of knowledge, a “major problem of intellectuals, scientific as well as humanistic, was how to cope with the huge weight of intellectual tradition produced by Renaissance scholarship.”59 New information destabilised traditional patterns of knowledge. As a result, many “mid-seventeenth century intellectuals were
between actions more carefully: see ibid, at 161, 173. 56 Birks, P., “Adjudication and Interpretation in the Common Law” (1994) 14 Legal Studies 156, at 156. 57 Ibid, at 159-160. Birks surveys the major volumes produced in these three areas in the late nineteenth century and argues that all were the product in England at least of University academics or those in practice with strong university connections. 58 For an excellent account of these changes see Yeo, R., Encyclopedic Visions: Scientific Dictionaries and Enlightenment Culture, Cambridge University Press, Cambridge, 2001. 59 Kelley, D., “Introduction” in Kelley, D., Popkin, R. (eds), The Shapes of Knowledge from the Renaissance to the Enlightenment, Kluwer Academic Publishers, Dordrecht, 1991, at 2.
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obsessed with restoring or creating foundations for social, economic, religious, and/or conceptual order in the face of perceived … chaotic tendencies.”60 One way in which this obsession surfaced was in the drive to classify and organise knowledge into systematic arrangements, a trend which was observable across many disciplines - including law. There was an emphasis on systemic organisation as a whole, as well as on the relationship between categories.
Intertwined with this was “[a] new emphasis on the historicity of English law, that is, in the normative character of its historical development over generations.”61
Fundamental to this was a change in understandings in the ways in which legal information was to be understood, as part of a legal science (scientia)62 or method: not only a body of knowledge about the law, but also a “systematic body of knowledge generated by the law itself, defining its functions and the ways in which it operates.”63
Rather than a collation of individual rules, law was to be understood as “a coherent systematic body of knowledge [which] relate[s] combining particular facts with general principles.”64 This shift in the organisation and presentation of legal knowledge was captured by Cruise, in the preface to his A Digest of the Laws of England respecting
Real Property (1804):
“It is but of late years that this mode of treating legal subjects has been adopted. Our abridgements and treatises on particular titles of law contain little more than a collection of the adjudged cases that had
60 Olson, R., The Emergence of the Social Sciences 1642-1792, Twayne Publishers, New York, 1993, at 7. 61 Berman, H., Reid, C., “The Transformation of English Legal Science: From Hale to Blackstone” (1996) 45 Emory L.J. 437, at 438. 62 “Science” in this context is used in its older sense of an organized body of knowledge, not in its emergent sense as a method characteristic of the study of nature - law was seen an outgrowth of the moral sciences: See Schweber, H., “The “Science” of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education” (1999) 17 Law & Hist. Rev. 421, at 422. 63 Berman, “The Transformation of English Legal Science”, supra note 61, at 441. 64 Ibid, at 440.
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been determined on each Title; disposed without much method, and without establishing or deducing any general principles. … The true mode of treating legal subjects, as well as other branches of science, is by a systematic distribution of abstract principles, illustrated and supported by adjudged cases … If law be a science… it must be founded on principle.”65
In 1814, Savigny published his influential essay Vom Beruf unserer Zeit für
Gesetzgebung und Rechstwissenschaft.66 While not the first to argue for a ‘scientific’ approach to law, his legal historicism and insistence on the importance of striving towards a logical and internally consistent set of concepts and principles was influential not only on the continent, but also in England.67 According to Savigny:
“…every part of our law has points by which the rest may be given: these may be termed the leading axioms. To distinguish these, and deduce from them the internal connection, and the precise degree of affinity which subsist between all juridical notions and rules, is amongst the most difficult of the problems of jurisprudence. Indeed, it is peculiarly this which gives our labours the scientific character… .”68
The new ‘scientific’ legal literature of the seventeenth and eighteenth century – the treatise - analysed, classified, systematized, and evaluated English legal institutions according to the dictates of this new legal science. The defining characteristic of the legal treatise was (and is) that it dealt with a single branch of the law which was conceived of possessing some quality of unity, and which was not intended, unlike institutional works, to be comprehensive. Thus, for example, while Coke’s Institutes were highly influential works, they were not a treatise. Rather, they are perhaps best described as a summa: the first Institute being in fact a gloss on Littleton.
65 Cruise, W., A Digest of the Laws of England respecting Real Property, Butterworths, London, 1804, preface unpaginated. 66 Vom Beruf unserer Zeit für Gesetzgebung und Rechstwissenschaft, Heidelberg, 1814, translated by Hayward, A, Of the Vocation of Our Age for Legislation and Jurisprudence, London, 1831. 67 On Savigny’s impact in England see Stein, P., “Legal Theory and the Reform of Legal Education in Mid-Nineteenth Century England”, in Stein, P. (ed), The Character and Influence of the Roman Civil Law, Hambledon, London, 1988.
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The treatises organised knowledge quite differently to the standard texts which emerged in the late nineteenth century. Knowledge was broken into smaller units, and was often highly procedural in orientation, reflecting the importance of the writ system.
Mostly written by judges and practitioners, early examples of treatises include Sir
Jeffrey Gilbert who, for example, wrote over fifteen of these works – on Devises,
Tenures, Uses and Trusts, Ejectment, Debt, Dower and, perhaps best known, on evidence.69 Some of the best known works of the period are those by Sir Matthew Hale, whose work demonstrated a particular interest in systematisation. In addition to his
Historia placitorum,70 is his famous The Analysis of the Law.71 Hale was explicit about the need for a methodical approach. In the preface he stated:
“That altho’, for the most Part, the most Methodical Distributions of any science rarely appear subtile or acute in the Sciences themselves, because while they principly study the former, they are less studious or advertent of the latter; yet a Method, even in the Common Law, may be a good Means to help the Memory to find out Media of Probation and to assist in the Method of Study.”72
Along with Blackstone’s Commentaries,73 which were inspired by Hale’s organisation, The Analysis of the Law was one of the last large works to attempt to digest and organise all branches of the law, not just common law but other important jurisdictions, such as merchant and ecclesiastical law.
68 Hayward, Of the Vocation of our Age, supra note 66, at 38-9. 69 See, for example, Gilbert, J., Sir, A Treaties of Tenures, 3rd ed, London, 1757; The law of uses and trusts. Together with A treatise of dower. To which is added, A complete table, London, 1734; The law of evidence, by a late learned judge [Sir J. Gilbert], 2nd ed (corrected), London 1760; Cases in law and equity: argued in King's bench and Chancery in the 12th and 13th years of queen Anne, with two treatises, the one on the action of debt, the other on the constitution of England, London, 1760. 70 Hale, Sir M., Historia placitorum coronæ (The history of the Pleas of the Crown), 2 vols, London, 1736. 71 Hale, M., The Analysis of the Law: Being a Scheme, or Abstract, of the several Titles and Partitions of the Law of England, Digested with Method, 2nd ed., Printed for John Walthoe in the Middle Temple-Cloysters, against the Royal Exchange in Cornhill, London, 1716. 72 Ibid, at A4. 73 Blackstone, Sir W. (Morrison, W., ed.), Commentaries on the Laws of England, Cavendish,
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This concern with systematisation, coherence, and the scientific method, was carried over into the nineteenth century. In the absence of the skeleton given by the forms of action, the work of classification and organisation of precedents largely fell to academic lawyers, in part because the fall of the forms of action coincided with the rise of law schools. From the 1850s onwards, universities began to appoint professional legal educators in numbers. As Sugarman tells us, if academics were to establish themselves as one of the new professions of the latter half of the nineteenth century, they needed to carve out and assert a body of expertise. What academics believed that they offered the profession was the ability to create order and cohesion through the organisation of the law into, and the teaching of, general principles that underlay the law.74 According to Sugarman: “[t]hey showed that the grubby, disorderly world of the court room and law office could … be regarded as ‘science in action’. … Here then was the raison d’être of the new professional jurist and university legal education.”75 Thus, one of the dominant legal tasks of legal education and scholarship became the
“exposition, conceptualization, systematization and analysis of existing legal doctrine”.76 As a result, the late 1800s saw the emergence of a number of new texts, some of which have remained continuously in print, and which have been exported to across the Anglo-Australian world.77 Anson’s Law of Contract, for example, was first published in 1879, and is now in its 26th edition.78
London, 2001 (1769). 74 Sugarman, D., “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition”, in Twining, W. (ed), Legal Theory and Common Law, Blackwell, London, 1986, at 29. 75 Ibid, at 29-30. 76 Ibid, at 31. 77 Cheshire and Fifoot’s Law of Contract, for example, is now in its 8th Australian Edition: Seddon, N., Ellinghaus, M., Cheshire and Fifoot’s Law of Contract, 8th ed, LexisNexis Butterworths, Sydney, 2002. 78 Beatson, J., Anson’s Law of Contract, 28th ed, Oxford University Press, Oxford, 2002, originally published as Anson, W., Sir, Principles of the English Law of Contract, Oxford, 1879.
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The shift from individual and specific laws to categories of law resulted in the search for an organisational rationale around which these new categories could be formed. Contract, the category which arguably most closely resembled its modern form prior to the demise of the forms of action, was given intellectual and theoretical coherence by an injection of continental theory, in particular the work of natural lawyers such as Pufendorf, Pothier and Savigny (the ‘will theory’).79 Torts became organised around the central concept of negligence. Again, in the eighteenth century the work of the continental natural lawyers was influential, this time in emphasising the importance of the concept of duty, and the imputation of acts to individual actors.80 In the nineteenth century, jurists and academics, such as Oliver Wendell Holmes and placed negligence at the heart of the domain of tort law.81 Stephen’s A General View of the
Criminal Law of England,82 combines the laws of public wrongs and the pleas of the
Crown and, in so doing, turned the “laws of crime to criminal law”.83 Property, supposedly underpinned by the ‘bundle of rights’ metaphor of property, remains in many ways the least coherent of the foundational categories, still deeply riven by the distinction between real and personal property.84
Neither these categories, nor their organising principles are, of course, immutable. During the nineteenth and twentieth centuries, for example, the ‘will’ theory of contract has waxed and waned. However, while contract may be in search of a new theory, as a domain of law it remains firmly in place. Similarly, the bundle of rights
79 See Ibbetson, Law of Obligations, supra note 52, chapters 12, 13. 80 Ibid, at 166ff. 81 See generally Grey, “Accidental Torts”, supra note 14. 82 Stephen, J., Sir, A General View of the Criminal Law of England, Macmillan & Co., London and Cambridge, 1863. 83 McVeigh, S., Rush, P., “Cutting Our Losses: Criminal Legal Doctrine”, in Rush, P., McVeigh, S., Young, A., Criminal Legal Doctrine, Ashgate, Aldershot, 1997, at 284. 84 For one of the few acknowledgements of this problem see Murphy, T., Roberts, S., Understanding
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metaphor of property has been under sustained attack for several decades.85 As the High
Court of Australia has commented “even this [metaphor] may have its limits as an analytical tool or accurate description”.86 However, while property may be in search of a conceptual or organising principle, it remains a powerful domain of law. However, one of the results of the ‘textbook tradition’ has been that:
“In the course of time, as textbooks have multiplied and university law courses have been built around textbooks, the boundaries of the subjects appear to have become immutably fixed, and this tendency has been reinforced by attempts to define the scope of the subject at any given time.”87
The classification and boundaries of the domains of law have become an element of the substantive law. The limitations of the common law which stemmed from the rigidity of the forms of action have in part been replaced by limitations stemming from the taxonomy developed by academic lawyers. The current legal classifications and categories have become ossified.
In Australia the categories of law are substantially identical to those of England.
Home-grown texts were few and far between, and those written by Australian academics and jurists were modelled on English counterparts. The results were not only that the divisions and domains of law remained the same as those of the United
Kingdom, but that that the local peculiarities, the local circumstances and the social effects of law were obscured or ignored within texts which simply reproduced English doctrine.88 Importantly, the reorganisation of common law knowledge coincided with
Property Law, 3rd ed, Sweet & Maxwell, London, 1998, Chapter One. 85 See, most famously, Grey, T., “The Disaggregation of Property” (1980) 24 Nomos 69. 86 Yanner v. Eaton (1999) 201 C.L.R 351, at 366. 87 Atiyah, P., Accidents Compensation and the Law, Weidenfeld and Nicolson, London, 1970, at 41. 88 In addition, the colonial, and later Australian, courts continued to look to English Courts for guidance, and the Privy Council remained the ultimate court of appeal for some states until the passing of the Australia Act in 1986: Australia Act 1986 (Cth), s 11. The Australian High Court has, of course, begun to move away from English precedent in areas such as torts or contract.
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the determination by Australian colonial courts that Indigenous Australians had ‘no law’, and the eventual ceasing of challenges to common law jurisdiction. Thus, by the end of the nineteenth century, the common law in both England and Australia saw itself as the only law and the new categories of law reflected only the legal knowledge of the common law.
Classification and Categories a. The Practice of Categorisation
Ordering people, events, things into categories ‘creates meaning and value by enacting taken-for-granted notions of the proper relations among objects in the world’.89
Categorisation is a device by which legal significance is attached to people, events and things. The act of categorising produces these people, events and things as juridical objects. It is only once these matters are included within a particular category of the law that they acquire legal significance. Until then they remain outside the jurisdiction of the law and are not amenable to a decision.
Thus, as a technology, categorisation functions as a device through which jurisdictions are embodied, or given substance. Each category itself embodies a specific jurisdictional domain: a terrain over which it is sovereign. As jurisdictional entities, each is a site of enunciation. Like all jurisdictions, categories are self-referential and each category, therefore, determines its own domain - its own jurisdiction. The paradox of all jurisdictions, after all, is that they determine their own jurisdiction. They are also largely autonomous. It is the rules of contract that determine whether an agreement is a contract: is there offer, acceptance, consideration? And it is the rules of contract that
Nevertheless, the divisions of law remain the same. 89 Sutton, J., “Imprisonment and Social Classification in Five Common-Law Democracies, 1955-
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then determine the dispute. The circularity of property law reasoning, for example, is often criticised, but is a criticism that could be levelled at all categories, not just at legal categories or even property law.
Classification/categorisation could be termed a ‘managerial’ technology.90 As outlined in Chapter One, jurisdictions can be thought of as having boundaries and borders. If jurisdiction is the authority to speak in the name of the law, is a conceptual/legal space within which the law has competence, then inherent within jurisdiction is a limit point, a boundary, outside of which law has no voice or authority.91 Law itself is a category, just as the component areas of law, such as property or contract, are categories. Classification is the device that maintains and polices the boundaries between the various legal domains or jurisdictions. When the boundaries of categories are challenged, this only leads to the need to constantly reinforce or redefine them. Case by case the boundaries are re-examined and re- determined. New members are admitted and juridified, or excluded.
As a result of the ossification of categories, new social problems, new technologies pose a taxonomic problem: either new categories arise, or new phenomena must be ordered into existing categories, with the attendant problems of fragmentation and incoherence of legal doctrine. Some new categories of law arose during the course of the twentieth century. Unjust enrichment is one, a new category which “coalesced out of the residuary mass” left over from the defining of the domains of contract and tort.92
Unlike tort and contract, “there was no easily accessible theoretical model that had been
1985”, (2000) 106 Am. J. Sociology 350, at 354. 90 See Bauman, Modernity and Ambivalence, supra note 2, at 3. 91 See Douzinas, C., “The Metaphysics of Jurisdicton”, in McVeigh, S., The Jurisprudence of Jurisdiction, forthcoming, Cavendish Press, 2005, unpaginated. 92 Ibbetson, Law of Obligations, supra note 52, at 263.
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worked out elsewhere and that furnished a framework that could be borrowed by
English law.”93 However, the notion of unjust enrichment did considerably pre-date the twentieth century, finally finding its niche as a category of the law in the middle of the century.
While new texts and new orderings seem to occasionally arise, these ‘categories’ are generally mere conglomerations of existing categories, rather than discreet, specific components of the legal order. Texts on ‘business law’, or ‘commercial law’ for example, abound. When examined, however, they are merely collections of relevant parts of existing legal categories: contract, partnership, corporations law, equity, property law.94 A more recent example is the new phenomenon of ‘cyberlaw’. Cyberlaw refers to the legal aspects of those transactions and interactions which occur in
‘cyberspace’. As a phenomenon, cyberspace defies existing legal categories: it is non- state based, encompasses a variety of transactions and interactions that would be generally thought of as being covered by existing categories: commerce, crime, property, intellectual property. Just as with business law, cyberlaw is not conceived of it as a legal domain in its own right: it must work through existing categories of law. As a result, transactions are fragmented: e-commerce becomes a subset of commercial law
(or more specifically contract law), so-called cyber-crime is a criminal matter (covered by several specific statutes), property aspects remain tied to state-based territories, jurisdiction becomes reduced to conflict of laws issues. These new categories lack their own site of enunciation and must be ordered into existing categories. Thus, new technologies and new social problems are juridified and enfolded within the assemblage
93 Ibid. 94 One of the first business law texts, for example, was Issacs, N., Business Law, Collier, New York, 1939.
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of the common law, but in a fragmented way – through different jurisdictional entities
– crime, tort, property – different aspects of each juridified through a different category.
Eventually new technologies and societal change may result in category shift.
The classifications that resulted from the reorganization of legal knowledge in the nineteenth century have imposed a seemingly natural organisational structure on the domain of legal knowledge. The result is that the categories of the law in turn function as a schema or classificatory grid, which is used to sort events, people, and things into these apparently natural categories. Although they did not exist in their current form until the mid-nineteenth century, the current legal categories through which in western, common law-based jurisdictions, legal information is ordered, have become normalized.
As Sugarman puts it: classifications “possess a reified logic or inevitability. It is as if the logic and categories of the law make choices for us…”.95 However, legal categories and classifications are not merely a sorting mechanism: they are the means by which law is embodied.
The categories of law which emerged in the late nineteenth and twentieth centuries represented not only a dramatic change in the way in which law was organised, but have had a profound effect on the (legal) organisation of the social world.
Classification gives order to the world. However, in order to impose order, a certain amount of violence is required.96 Categories, which are inevitably artificial constructs, are imposed upon reality. As Bauman puts it: “no … classification deployed in the construction of order can fully overlap with essentially non-discrete, continuous experience of reality”.97 If anything, the dissonance between legal categories and ‘real
95 Sugarman, “The Textbook Tradition”, supra note 74, at 28. 96 Ibid, at 5. 97 Bauman, Modernity and Ambivalence, supra note 2, at 61.
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life’ is even more stark. Legal categories do not neatly overlay the lives of those subjected to that categorisation. This dissonance, as will be seen below, is particularly problematic for indigenous peoples, and for recognition of indigenous rights to country as native title through the lens of western legal categories. As Geertz states, legal categories are only one way of ‘imaging the real.’98 These new normalised categories, and the resulting fragmentation in the ordering of new matters, is problematic for the juridification of indigenous relationships to country as native title. b. The Domain of Native Title
As discussed in the last chapter, in recognising native title, aspects of indigenous relationships to country are being juridified as a particular common law interest. In this part, I consider the domain of native title. Is it a new category of law? To return to the language of Matthew Hale, if the common law “does interpose and authoritatively decide the Exposition, Limits and Extension of such Customs”,99 what are those limits?
Allied to this is perhaps the most important question: what is being juridified by inclusion within the category?
The questions ‘what is a category’ or ‘how is a category formed’ are problematic. Within cognitive science and psychology, a number of theories of conceptual structure exist. While generally these theories can describe how people categorise, few provide models as such of categorisation – they cannot explain how categories come to be. With respect to legal categories, of course, we have some guidance on this issue, as we can trace the manner in which categories have coalesced.
A task which will be briefly undertaken with respect to the category of property.
98 Geertz, C., Local Knowledge, Basic Books, New York, 1983, at 56. 99 Hale, M., (Gray, C., ed), The History of the Common Law of England, and An Analysis of the Civil Part of the Law, The University of Chicago Press, Chicago and London, 1971 (originally
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Nevertheless, legal categorisation is not sealed off from general cognitive theories of classification.
Classical categorisation theory revolves around sameness or simularity. Douglas asks:
“Where does sameness reside? The answer has to be that sameness is conferred on the mixed bundle of items that count as members of a category; their sameness is conferred and fixed by institutions.”100
In this context, that institution is the common law itself. This does little to tell us, however, how categories are formed or how ‘sameness’ is chosen. Classical categorisation theory has given way to, inter alia, prototype theory. According to the
Prototype theory, categories are organised around central prototypes - the best example of the concept. According to this view, people categorize on the basis of how close something is to the “prototype” or ideal member of a category. People form prototypes - summary representations - that abstract across specific instances (e.g. birds have beaks, feathers, wings and fly) to give information about what members of the category are like on average.101 Thus, recognition of category membership is a process of comparing the features of the new item to the features of the prototypes of different categories and selecting the best fit. Any determination of features and best fit must, of course be contextual and culturally dependent. Prototype theory is particularly relevant for law, as
published 1713), at 18. 100 Douglas, M., How Institutions Think, Syracuse University Press, 1986, at 53. 101 See Rosch, E., Mervis, C. B., “Family Resemblances: Studies in the Internal Structure of Categories”, (1975) 7 Cognitive Psychology 573; Rosch, E., “Principles of categorization”, in Rosch, E., Lloyd, B. (eds.), Cognition and Categorization, Erlbaum, New York, 1978. The other major representational theory of conceptual structure is the exemplar-view. It varies from prototype theory in that it holds that a new item is not categorised as an instance of a concept by reference to characteristic features, but because it is represented by a set of particular instances of things in that category which are stored in memory. Both theories have their adherents. For an overview of the development of theories of conceptual structure, see Lakoff, G., Women, Fire, and Dangerous Things: What Categories Reveal about the Mind, University of Chicago Press, Chicago, 1987; Medin, D., Coley, J., “Concepts and Categories” in Hochberg, J. (ed), Perception and Cognition at Century’s End, Academic Press, San Diego, 1998.
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judges often form views of prototypical members of a legal category and admit new members by virtue of the closeness of their characteristics to that prototypical member of the category. Within law, questions of how judges choose categories or order into categories also clearly requires a theory of adjudication,102 as the categories of law vary from general categories in that they are not natural categories. Rather, they are also the result of an historical process such as that described above.
Native title occupies an unsettled place as an emergent category of law, seemingly created on the edges of property law, but never quite determined to be a property interest and admitted to the category of property. Like all new phenomenon, native title challenges legal taxonomy. If native title is a new category of law, then it is one of the first common law categories to emerge since the re-organisation of the late nineteenth century. As identified above, with the exception of restitution, the seeds of which had already been planted prior to its emergence in the twentieth century, most new categories of law have been legislatively driven. Native title, on the other hand, has been largely judicially driven, although in recent decisions the provisions of the Native
Title Act have begun to have significant effect on the High Court’s conceptualisation of native title.103 As an area of law, native title has emerged relatively quickly: in the early
1990s native title had not yet been recognised.
As discussed below, case law reveals that the central image of native title is physical use of land - subsistence hunting and fishing, caring for sacred sites, safeguarding traditional knowledge, undertaking traditional ceremonial practices and low-scale resource use such as taking ochre for face painting. Further, these rights have
102 Any discussion of adjudicative theory is beyond the scope of this thesis. However, see, for example, Stone, J., Legal System and Lawyer’s Reasoning, Stanford University Press, Stanford, 1964. 103 Native Title Act 1993 (Cth).
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been largely ‘frozen in time’: traditional hunting and fishing, rather than commercial harvesting, face painting, rather than mineral exploitation. Even those rights which at first blush may not seem based in physical activities, such as safeguarding cultural knowledge or caring for sites of spiritual significance, are recognised only in so far as they have a physical dimension. Its sameness, or similarity, has come to lie in an image of low-impact, physical uses of land. Hunting, fishing, ceremonies are the mixed bundle that have come to count as members of the category of native title. In just twelve years since the decision in Mabo (No. 2), the jurisdictional limits of the category have been set.
Indigenous relationships to country defy the existing category boundaries.
Country is more than the physical. The law comes from the land, and the law encompasses all aspects of life.104 Relationship to country is simultaneously all common law categories and no common law category. Common law categories form a series of neat boxes into which matters are ordered according to their similarity with the existing contents of the category. Relationships with country must be ordered through an existing category and through western understandings of categorisation generally. As will be seen below, particularly in the context of the decision in Bulun Bulun, Australian courts have refused to change category boundaries to encompass indigenous realities.
Therefore matters perceived as fitting within the category of intellectual property are so ordered. Matters fitting within the common law domain of criminal law are dealt with by that body of law. Native title itself is built within the interstices of land law. Thus, native title is about physical things on land. That which is not sufficiently similar to the
104 For a powerful work which examines indigenous relationship to country see Rose, D., Nourishing Terrains Aboriginal Views on Landscape and Wilderness, Australian Heritage Commission, Canberra, 1996, at 9. See also Rose, D., Dingo Makes Us Human, Life and Land in an Aboriginal Australian culture, Cambridge University Press, Cambridge, 1992 and Cane, S., Pila Nguru: The
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contents of the existing category is left behind. That is after all the function of categories – to establish inclusion and exclusion.
The shape of the category of native title has not only been determined by the common law, but has also been impacted upon by the legislative framework of the
Native Title Act. The Act and common law exist in a tension. The definitions in the Act inform the High Court’s understanding of native title, while the court’s decisions in turn inform our interpretation of those definitions. The practices of categorisation, and the categories of the law shape have as strong an impact upon legislative frameworks as judicial determinations. Further, as discussed below, the bureaucratic processes of the
Act, such as the registration test, also shape the contours of native title.
In 1993, following the High Court decision in Mabo (No.2), the Native Title Act was enacted. This Act was designed to perform several functions: to provide a claims process; to protect native title by assuring that any development activity which could potentially affect native title interests could not be carried out unless in conformity with the Act, and to validate any Crown grants made prior to the decision in Mabo (No. 2) itself which could potentially be invalid because they breached the provisions of the
Racial Discrimination Act.105 The Act also provides a definition of ‘native title’ in s223.
That definition includes the key aspects of native title as laid down in Mabo (No. 2): its communal or individual nature; that there must be a connection with land or waters; that native title rights and interests are those possessed, acknowledged and observed under traditional laws and customs. However, it was, as McHugh J pointed out in the Yorta
Spinifex People, Fremantle Arts Centre Press, Fremantle, 2002. 105 Racial Discrimination Act 1975 (Cth). This Act enacts into domestic law the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination 1965. Any grants made after 1975 which may have affected native title interests, and which were issued without compensation to native title holders, would potentially be rendered invalid by ss. 9 and 10 of the Act. Thus, the ‘past act’ provisions of the Native Title Act were designed to confirm the
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Yorta Case, widely understood at the time of enactment that the definition was not intended to be static, rather, it was intended that “the content of native title under the
Act was to be determined in accordance with the developing common law.”106 Thus the common law would continue to develop the doctrine of native title, and the Act would protect that native title as it was determined to be by the courts. As Senator Minchin stated during debate on the 1998 amendments to the Act: “I repeat that our [A]ct preserves the fact of common law; who holds native title, what it consists of, is entirely a matter for the courts of Australia. It is a common law right.”107
In Ward and Yorta Yorta, however, the courts took a different approach. Rather than commencing with the common law, the majority determined that the correct approach was to begin with the Act, and the definition of native title in s.223, rather than the common law.108 Not only was the centrality of the common law displaced,
Brennan J.’s judgment in Mabo (No. 2) was relegated to an interpretational aid:
“Much of the argument in the courts below, as in this Court, took as its starting point consideration of what was said in Mabo [No 2]. No doubt account may be taken of what was decided and what was said in that case when considering the meaning and effect of the NTA. This especially is so when it is recognised that pars (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo [No 2]. It is, however, of the first importance to recognise two crucial points: that s 11(1) of the NTA provides that native title is not able to be extinguished contrary to the NTA and that the present appeals are
validity of all titles issued in that period 106 Members of the Yorta Yorta Community v. Victoria (2002) 194 A.L.R. 538, at 572, per McHugh J. [hereinafter Yorta Yorta]. 107 See Senate, Parliamentary Debates (Hansard), 2 December 1997, Commonwealth Government Printer, Canberra, at 10171, quoted in Yorta Yorta, ibid. 108 223(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.
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claims made under the NTA for rights that are defined in that statute.”109
The Court further clarified in Yorta Yorta, that paragraph (c) of the definition of native title - that the native title rights and interests are recognised by the common law of Australia – meant no more than that recognition and protection of native title depends on that native title not having been extinguished and its not having incidents that are repugnant to the common law.110 Thus, rather then embodying a dynamic jurisprudence, s.223 has been interpreted as definitional. As a result, recognition of native title is limited by s 233(1) to “rights and interests… in land or waters”. Examples of such
‘rights and interests’ are given in subsection (2). Section 223(2) provides that “without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing rights and interests”. Similar kinds of activities are also specified in s.211. That section is designed to exempt native title holders in certain situations from licensing requirements. For example, if a licence is required under the resource legislation, as long as the activity fits within the classes of activity specified by the section, the native title holder is exempted from requiring a licence. Section 211(3) specifies the classes of activity as hunting, fishing, gathering, a cultural or spiritual activity. In addition, these activities can only be undertaken for domestic or non- commercial purposes (s211(2)).
In Yorta Yorta, the High Court reiterated that any examination of the parameters of native title must begin with the statute, not the common law.111 The court stated that while native title consists of rights and interests of indigenous peoples, the proper interpretation of s.223 meant that: “[t]hose rights and interests may be communal, group
109 Western Australia v. Ward (2002) 191 A.L.R. 1, at 16 per Gleeson C.J., Gaudron, Gummow, Hayne J.J. 110 Yorta Yorta, supra note 106, at 568.
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or individual rights and interests, but they must be “in relation to” land or waters.”112
Further, the High Court specified in Ward that that section also required each and every right claimed to be separately specified.113 As a result of Ward and Yorta Yorta it seems that native title rights are confined to physical activities done on land in relation to land or water: hunting, fishing, gathering – those activities listed as examples in the Native
Title Act itself.
Prior to the decision in Ward, although the courts looked primarily to the common law, not the Act, in order to determine the content of native title, the result was virtually identical. In previous cases, a limited range of physical activities were also recognised as native title. Those rights recognised include hunting, fishing, and gathering114 use of land for ceremonial purposes,115 a right to safeguard cultural knowledge (but only in so far as the exercise of the right involves the physical presence of the relevant persons on the site in question).116 Thus far, the High Court has refused to commit on the issue of whether a ‘spiritual connection’, in other words a relationship with the land in which there is no physical connection, could found a native title claim.117 Further, these rights are limited to activities traditionally undertaken by the claimant group at the time of sovereignty, although some limited capacity to ‘evolve’ is recognised. In other words, native title consists of activities which look suspiciously like traditional common law profits – hunting, fishing, gathering.118
111 Ibid, at 549. 112 Ibid.. 113 Ward, supra note 109, at 114 Yanner v. Eaton, supra note 86; Mason v. Tritton (1994) 34 N.S.W.L.R. 572; Dershaw v. R. (1996) 17 W.A.R. 419; Yarmirr v. Northern Territory (1998) 156 A.L.R. 370 (FCA). 115 Yarmirr, ibid. 116 Commonwealth v. Yarmirr (2001) 184 A.L.R. 113, at 427 (HC). 117 Ward, supra note 109, at 32. 118 See Dorsett, S., “Land Law and Dispossession: Indigenous Rights to Land in Australia”, in Dewar, J., Bright, S., (eds), Land Law: Themes and Perspectives, Oxford University Press, Oxford, 1998.
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The best illustration of this is the decision in Mabo (No. 2) itself. In Mabo (No.
2), there is no question that in determining that the Meriam people possessed native title, the Court was influenced by certain of the trial judge’s findings of fact. Notably, the Murray Islanders’ agricultural lifestyle closely resembled white land use patterns, as a result of which, in contrast to many mainland groups, the Islanders lived in settled villages. Further, their relationship to the land was one which was familiar to the court: it was based in economic need, and resembled the traditional English agrarian ideal of agricultural pursuits on small plots of land.
The findings of fact in the Mabo case came to over 400 pages. Finding of Fact
75 stated, inter alia, that:
“[g]ardening was of the most profound importance to the inhabitants of Murray Island at and prior to European contact. … Gardening was important not only form the point of view of subsistence, but to provide produce for consumption or exchange during the various rituals associated with different aspects of community life. Marriage and adoption involved the provision or exchange of considerable quantity of produce. Surplus produce was also required for the rituals associated with the various cults at least to sustain those who engaged in them and in connection with the various activities associated with death.”119
Further, cultivation was undertaken on small, individually owned plots:
“[t]here is no doubt that the evidence established that Murray Islanders recognise the continuance of claims to garden plots and recognise or dispute claims of entitlement by individuals in respect of those plots. It seems that an islander who claims a garden plot will generally be able to identify the person entitled to any adjoining garden plot, albeit that there may be a dispute with that person in respect of boundaries.”120
119 Determination Pursuant to Reference of 27 February, 1986 by the High Court of Australia to the Supreme Court of Queensland to hear and determine all issues of facts raised by the pleadings, particulars and further particulars in High Court action B12 of 1982, unpublished findings of fact by Moynihan J, Volume 1, at 110-111. Finding of Fact 75 comprises chapters 7-10 of Volume 1. 120 Ibid, at 178.
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This evidence of a relationship with the land akin to a proprietary relationship also extended to the villages:
“[t]he evidence seems to establish that within the boundaries of a village the land continues to be divided into what in modern town planning jargon might be referred to as single residential lots or house sites upon which is erected a single unit dwelling. … Each site was and is divided from the adjoining site by a boundary defined by some geographical or artificial feature, although on occasion adjoining occupiers might share some facilities. … The rights associated with a site include a right to use it for domestic residence to the exclusion of others and an entitlement to determine the disposition of the land, either during life or as a consequence of death.”121
The trial judge, Moynihan J., specifically held that the relationship of the
Meriam to their land was not primarily of a spiritual nature or religious nature as, for example, characterises that of many mainland Aboriginal groups.122 There seems little doubt that the judgment is a recognition of sameness,123 or in terms of categorisation theory, similarity.
Other examples abound. The recent decision of the Federal Court in the Lardil
Case, for example, provides yet another instance of this recognition of sameness.124
That case involved a claim for native title rights and interests in the sea “as far as they eye could see”.125 The applicants also asserted that the claimant groups owned the seas, the sea bed, the subsoil below the seabed and the resources of the seas in their respective territories. Cooper J. found, however, that the concept of ownership held by the applications was not one based on common law concepts of property. Rather, it was
“a concept born out of the connection of the peoples to each of the elements through
121 Ibid, at 173-174. 122 Ibid, at 155. 123 See also Motha, S., “Mabo: Encountering the Epistemic Limit of the Recognition of Difference”, (1998) 79 G.L.R. 79, at 82. 124 The Lardil Peoples v. State of Queensland [2004] FCA 298. 125 Ibid, at [15].
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their spirituality”.126 Further, the Native Title Act as interpreted by the High Court in
Ward which requires each individual native title right or interest to be identified means that indigenous relationships to country, including of course sea country, must be
‘translated’ into individual rights and interests. As a result of that requirement, and the primacy given by Cooper J. to the public rights of navigation and fishing, as well as the international right of innocent passage,127 the native title rights eventually recognised were minimal and did not include any rights of ‘ownership’ or exclusive possession.
Cooper J. held that native title consisted of hunting, fishing and gathering for domestic or non-commercial communal consumption; the right to take and consume fresh drinking water from springs in the inter-tidal zone; and access to land and waters seaward of the high water line for hunting, gathering and religious, spiritual or ceremonial purposes.128 Cooper J. also held that the claim of a “right to speak for country” was too imprecise for the Native Title Act.129
Thus, despite continual protestations by the High Court from Mabo (No. 2) to
Ward that it is inappropriate to force native title rights to conform to western property rights, and that as a result native title rights should not be forced to correspond with common law equivalents, this is exactly what has occurred. No rights have been recognised which do not conform not only to common law equivalents, but also to western notions of land use. The result, as the High Court itself has been forced to acknowledge, is the fracturing of culture and the exclusion from recognition at common law of the essentially custodian relationship of claimants to country:
126 Ibid, at [115], [147]. In this respect, Cooper J.’s judgment is reminiscent of that of Blackburn J. in Milirrpum v. Nabalco (1971) 17 F.L.R. 141. See further Chapter Five. 127 On this point, of course, Cooper J. faithfully followed the law as set down in Yarmirr v. Northern Territory, supra note 116. 128 The Lardil People, supra note 124, at [7], [194]. 129 Ibid, at [71].
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“The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the [Native Title Act]. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer.”130
This exemplifies the problems created by any categorisation system. Indigenous relationships are juridified by being ordered into the existing categories of law. These categories, as do all jurisdictions, function as largely autonomous, self-representing domains. Activities cannot be simultaneously intellectual property law, family law an property law. Certain activities and matters may give rise to remedies with reference to more than one category of law, but they receive their primary categorisation through one dominant category. That which does not fit within the category simply falls away. It is left behind, and only that which can be ordered within the existing parameters of the category is juridified.
Attempts to argue for broader recognition have been fruitless. The most notable attempt was the decision in Bulun Bulun.131 In that decision, von Doussa J excluded the protection of art from the ambit of native title. The claimant had characterised his creation of artworks as inseparable from his relationship with country:
“The creation of artworks such as ‘at the Waterhole’ is part of my responsibility in fulfilling the obligations I have as a traditional Aboriginal owner of Djulibinyamurr. I am permitted by my law to create this artwork, but it is also my duty and responsibility to create such words, as part of my traditional Aboriginal land ownership obligation. A painting such as this is not separate from my rights in my land. It is a part of my bundle of rights in the land and must be produced in accordance with Ganalbingu custom and law. Interference with the painting or another aspect of the Madayin associated with
130 Ward, supra note 109, at 15-16. 131 Bulun Bulun v. R & T Textiles Pty Ltd (1998) 157 A.L.R. 193.
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Djulibinyamurr is tantamount to interference with the land itself as it is an essential part of the legacy of the land, it is like causing harm to the spirit found in the land, and causes us sorrow and hardship.”132
In contrast, von Doussa J determined that:
“In order to be successful, the applicants' foreshadowed argument that a right of ownership arises in artistic works and copyright attaching to them as an aspect of native title would appear to require that the Court accept that the inseparable nature of ownership in land and ownership in artistic works by Aboriginal people is recognised by the common law. The principle that ownership of land and ownership or artistic works are separate statutory and common law institutions is a fundamental principle of the Australian legal system which may well be characterised as "skeletal"… .”133
In Ward, the High Court similarly rejected that protection of artistic works could form part of native title, not only for the reasons outlined above by von Doussa J in
Bulun Bulun, but because the right claimed went beyond the limits of the definition in s.
223, in particular because the requisite connection to the land could not be shown.134
A second element which determines the scope of native title is the registration test. While the primary role of the registration test is the determine access to certain procedural rights under the Native Title Act, it also plays a positive role in shaping the category of native title. Section 190A, B and C of the Native Title Act set out the conditions on which a claim will be registered and the procedure for registration. As a result of the amendments to the Act in 1998, the threshold test for registration was significantly raised. While applications are lodged with the Federal Court, the Registrar of the Native Title Tribunal must determine whether the application will be accepted for registration on the National Registrar of Native Title Claims.135 Failure to pass the
132 Ibid, at 198. 133 Ibid, at 204. 134 Ward, supra note 109, at 31-2. 135 The conditions relating to the merits of claims set out in s190B require, inter alia: • Identification of the area subject to native title (s 190B(2)); • Identification of the native title claim groups (s 190B(3));
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registration test does not prohibit the case from proceeding to determination. Rather, acceptance on the register allows the claimants to access various rights under the Act.
These rights are substantial, the most important being the “right to negotiate”.136 Thus, the registration process functions quite differently from that applying to land (the
‘Torrens system’) or the various intellectual property registers. In both of those cases,
the bureaucratic property rights (title to land or patent protection) arise on registration.
They are effectively created by the process of registration. In the case of native title,
native title rights only arise on determination by the Federal Court – in other words once
the Federal Court has determined that native title exists in the particular case at issue.
Nevertheless, the importance of registration as a pre-requisite to accessing the right to
negotiate, and its protection of the rights and interests claimed, means that the register
of claims plays a significant part in the regulation of the category of native title. The
form of the category is in part regulated by the practices of the Registrar. In turn, the
way in which the registration test is interpreted by the Registrar is constantly modified
• Identification of the claimed native (s 190B(4)); • Demonstration of a factual basis for the native title claim (s 190B(5)); • The Registrar must consider that prima facie at least some of the native title rights and interests claimed in the application can be established (s 190B(6)); and • At least one member of the native title group must have or previously have had a traditional physical connection with any part of the land or waters covered by the application or previously had and would reasonably have been expected currently to have a traditional physical connection but for things done by the Crown or a statutory authority of the Crown or a holder of a lease over any of the land or waters: s 190B (7). See Strickland and Another (on behalf of the Maduwongga People) v. Native Title Registrar (1999) 168 A.L.R. 242, at 246-7. 136 The right to negotiate is part of the “future acts” regime of the Native Title Act. The future acts provisions of the Act provide that no act can be done which might adversely affect native title unless it is done in accordance with the procedural requirements of the Act. An example of an ‘act’ is the government issue of a mining tenement. Once registered, claimants must be given notice of any proposed acts which may affect their native title rights (a ‘s. 29 notification’). The claimants then have an opportunity to make submissions to the Government party regarding the proposed future act, and to negotiation the government party and with mining parties regarding the doing of the act, including the placing of conditions on the doing of that act. Where agreement is not reached within six months of notification, parties may request that the arbitral body decide whether the act may be done. The right to negotiate process is a pre-condition for validity of all acts to
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in response to judicial determinations as to what can constitute native title. Thus, the limits of the category of native title are constantly (re)demarcated. The Registrar’s decision can be appealed to the Federal Court.137 Thus judicial determinations and the practices of the Registrar exist in a tension in which they combine to constantly redefine and re-establish the limits of native title.
In order to gain registration, the information provided by the claimants must be specific. Claims generally consist of hundreds of pages of anthropological, genealogical, historical, geographical material, as well as affidavits by the claimants. As a result of Ward, it is now necessary to identify each individual native title right or interest claimed, and for each of them to provide factual material which demonstrates the traditional law or custom which gives rise to that particular right or interest.138 Such a level of specificity makes it easy for the Registrar to police the boundaries. Claims fall foul of the detailed bureaucratic requirements, and, if at least not outright rejected, the claim is at sent back for detailed modification. Of course, the Registrar’s understanding of what is claimable is structured in turn not only by the requirements of the Act, but what has already been recognised as native title. He/She also looks for similarity with existing members of the group in order to determine whether rights claimed fit within the category of native title.
Thus, the boundaries of the concept of native title seem clear. Native title is determined by reference to the statutory definition in s.223, and is limited to physical
which it applies. 137 For example, as a result of the High Court decision in Ward, supra note 109, new interim guidelines were issued by the National Native Title Tribunal in order to ensure that the registration test was applied in a manner which was congruent with the decision of the High Court. Judicial interpretation in that case of the phrase “native title rights and interests” in s. 233 (definition of native title) impacted on the way in which that same phrase would be interpreted in the context of s. 190B (registration test). 138 Ward, ibid, at 18.
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activities undertaken on land or in waters. As a result, it is only those aspects of the relevant indigenous relationship to country which resemble traditional common law profits which are juridified by their inclusion within the category of native title. Other aspects of indigenous culture are left behind, excluded from the category of native title, and unable to be enforced by the common law.
While native title may have emerged as a category – a new discreet component of the legal ordering - its shape and boundaries are referential to those of the existing categories of law. The existing categories of law form a schema or grid, an organisational structure which determines the shape of native title. Although it initial limits were set from the category from within which it was formed – land law – inclusion and exclusion now depends on similarity with the existing members of its category. Thus, categorisation is self-reproducing and sustaining. Those which to a western lawyer appear to fit within any other category of law are excluded: artistic protection, family, crime. Native title has been built within the interstices of property law – its images are those of a by-gone era - the feudal (captured in law as the profit) or the noble savage – living with the land. Hunting and fishing are its core: its prototypes.
Conclusion
The shape of native title is an inevitable consequence of the common law’s classificatory scheme. Classification inevitably results in “the production of anomalies
(that is phenomenon which are perceived as ‘anomalous’ only as far as they span the categories whose staying apart is the meaning of order).” 139 According to Douglas,
“any given culture must confront events which seem to defy its assumptions. It cannot ignore the anomalies which its scheme produces, except at risk of forfeiting
139 Bauman, Modernity and Ambivalence, supra note 2, at 61.
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confidence”.140 Legal culture is no exception in this regard. The self-representation of the common law as both uniform and univocal, discussed in earlier chapters, requires the exclusion of that which threatens its own internal ordering. Thus, as seen in
Chapters Four and Five, indigenous jurisdictions are deemed to not be, or no longer be, law. Similarly, those facets of indigenous relationship to country which defy the existing categories of the law are excluded. As Davies argues, when something new comes along, “the law’s conventional strategy is to close gaps by pretending that the gaps do not exist, by finding a rule which seems appropriate to some and fits with the current system but which, in its nature as a rule, excludes others.”141 Law is no exception to the uniformity which is characteristic of modernity. The problem with the law’s construction of categories according to its own internal logic, by reading lived experience against existing categories, is that that which is left behind, the rest, is difference. What remains is sameness – native title is formulated according to the strictures of property. It is the imprint of traditional notions of land which are impressed on the category of native title. As Motha has said Mabo [and its successors] is more appropriately characterised as a recognition of ‘sameness’ rather than ‘difference’.142
Thus, the site of enunciation for ‘native title’ remains the common law, which creates and maintains the grid of categories which are imposed on indigenous life, and through which isolated components of the relationship to country are juridified. The
High Court may consistently maintain that native title is a creature of indigenous law, but its site of enunciation cannot be other than the common law. The relationship of the common law construct of native title to indigenous normative systems is adjectival. As
140 Douglas, M., Purity and Danger, Routledge & Kegan Paul, London, 1966, at 39. 141 Davies, M., Delimiting the Law, Pluto Press, London, 1996, at 42. 142 Motha, “Mabo: Encountering the Epistemic Limit of the Recognition of Difference”, supra note 123, at 82.
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a category, native title is already becoming regularised and ossifying. Its domain is that of the ‘traditional’, of the feudal profit and of the noble savage.
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Conclusion
“To use, I hope, not an overdramatic metaphor, native title may prove … to be a thing of shards and fragments, bits and pieces, with sharp edges and corners that have nothing much to do with the concept of country as the Aboriginal people see it.”1
The High Court decision in Mabo v. State of Queensland (No. 2) was greeted by many as a signal victory.2 That Court’s determination that an entity called native title survived the acquisition of sovereignty over the Australian continent by Great
Britain held forth the promise that the rights of Indigenous Australians to their country would, after almost two centuries of denial, be recognised, enforced and protected. In hindsight, however, Mabo (No. 2) can be seen as not only the initial victory, but also the high point of this recognition. Since then, it would not be too harsh to claim that not only disillusionment, but anger, has settled in for many. The common law interest of native title has failed to deliver on much of the initial promise. As Justice French predicted, in the quote above, the interest of ‘native title’ often has “nothing much to do with the concept of country as the Aboriginal people see it”.3
The central problem of this thesis, as set out in Chapter One, is the nature of the interest of ‘native title’ as examined through the broader question of the relationship between Indigenous and common laws. As identified in that first chapter, only when we understand the nature of native title can we determine whether it
1 French, R., President, National Native Title Tribunal, Evidence before the Joint Committee on Native Title, 24 November 1994, Hansard, Australian Government Printers, 1994, at 647. 2 Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1. 3 This is not to say that no gains have been made as a result of the recognition of native title. A few indigenous groups, notably the Meriam People themselves, have received significant rights as a result of court actions. However, the majority of gains have been made through negotiated processes, rather than litigation. It could be claimed that one of the most important functions of the recognition of native title has been as a catalyst for negotiated processes. This, of course, is not dissimilar to the history of Canada in the 1980s and 1990s, during which period many significant settlements were negotiated with First Nations Peoples (for example the Gwich’in Comprehensive Land Claims Agreement, Indian and Northern Affairs Canada, Ottowa, 1992), as a result in part of the catalyst provided by the Supreme Court of Canada decision in Calder v. British Columbia (1973) 34 D.L.R. (3rd) 145. 389 represents an appropriate foundation upon which to base the legal relationship between Indigenous and non-indigenous Australians. It is hoped that the picture built up throughout this thesis of the interest of ‘native title’ goes someway towards explaining why native title has become “a thing of shards and fragments”.
How then can we understand native title as a legal interest? What does it mean to ‘recognise’ native title? As has been demonstrated, the answers to these questions in turn require an answer to the broader question of what is the relationship between
Indigenous and common law. In the absence of an explicit post-colonial settlement, it has been argued that Australian courts have resorted (albeit unacknowledged) to the traditional techniques and doctrines of the common law. In particular, an examination of the time-honoured gestures of common law jurisdiction can do much to reveal the shape and nature of native title. Thus, in answering the above questions, this thesis sought to uncover, disinter or perhaps recuperate a substantive understanding of both common law jurisdiction and the mind-set of the common law which underpins it. By uncovering or restoring a central doctrine or organisational structure of law, it is possible to construct a framework of the common law within which native title can be located. This in turn leads ineluctably to the conclusion that native title is a common law interest. Contrary to the High Court’s assertions, native title is not derived from, or sourced in, aboriginal normative systems. Rather, it is derived from within the common law, constructed through a common law vision of the world, in accordance with the traditional common law concept of ‘custom’. Once this is understood, the incommensurability of native title and Indigenous relationships to country becomes more understandable, and perhaps the prospects for native title as a vehicle for justice less likely. 390
The jurisdictional framework for understanding the relationship between
Indigenous and common law was laid out in Chapter One. That chapter provided a basic history of common law jurisdiction. It presented a picture of a fragmented, pluralistic legal landscape, in which the common law operated alongside a plethora of other jurisdictions. In particular, it focused on the way in which the common law represented (to itself and others) its position in relation to other bodies of law. Certain
‘logic and habits’ of the common law were identified: namely its self-representation as unified, as coherent, as the law of the land, as superior to other jurisdictions. The chapter also examined to the way in which from the fifteenth century onwards the common law gradually expanded at the expense of other jurisdictions, and appropriated these other sites of legal knowledge, in part by declaring that they existed within, and took their enforceability from, the framework of the common law itself. In particular, the chapter identified the way in which from this time onwards common law courts would found rights, or grant remedies, with respect to matters traditionally within the domain of other jurisdictions, if it could be shown that the practice giving rise to the right or remedy had been undertaken continuously, and in an uninterrupted manner since time immemorial.
As was seen from the history of common law jurisdiction presented in this thesis, throughout most of their history the common law courts considered custom to be their particular province. Custom provided a basis on which to extend jurisdiction domestically. It also, however, provided a basis on which to do this in the colonial context, as was seen in the discussion of the Case of Tanistry.4 In that case, while denying the continued existence of ‘Brehon laws’ since the acquisition of sovereignty,
4 The Case of Tanistry (1608) Davis 28 (80 ER 516). For the English translation see Davies, Sir John, A Report of the Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland, Dublin, Printed for Sarah Cotter, under Dick’s Coffee House, in Skinner Row, 1762, 78, at 87. 391 the court was prepared to enforce the practice of tanistry as ‘custom’, so long as it conformed to the common law evidential requirements for recognition of custom. In order to be enforceable within the common law, it was required that the practice of tanistry have been undertaken continuously, in an uninterrupted fashion, since time immemorial. However, what arose was a common law interest, not a genuine recognition of another jurisdiction.
It Chapter Four it was demonstrated that jurisdiction remained an important concept in early colonial Australia. Lawyers, trained in England, were familiar with the pluralistic legal landscape of that country. It was routine in England to plead to the jurisdiction if counsel were of the opinion that the matter properly belonged to another jurisdiction. Similarly, in early Australia they plead to the jurisdiction of the common law on the grounds that it should not apply to the Aborigines. This argument was accepted by some judges, and although the courts subsequently decided to assert common law jurisdiction, pleas continued to be made to common law jurisdiction until the 1880s.
However, jurisdiction, the traditional language of the common law and its courts for 800 years, finally slipped from common usage in the twentieth century. A number of factors were identified throughout the thesis which contributed to this loss.
Firstly, on importation to the colony of New South Wales, the common law left behind the pluralistic landscape of England, and became for all intents and purposes the law of the new land. Once it had been decided that Indigenous Australians had no law, it became (in its own eyes) just that. It in effect achieved its own self- representation. Secondly, the decision in the late nineteenth century that Indigenous law did not constitute law removed the need to order relations between bodies of law.
There was no longer other body of law with which to order relations. Thirdly, the 392 reorganisation of legal knowledge after the abolition of the causes of action aided in changing the emphasis of jurisdiction within the common law. Once the question to be asked in commencing an action was whether the common law was the appropriate body of law within which to commence the action. In the twentieth century, however, attention shifted within the common law to the new categories of law themselves. The jurisdiction of the common law was replaced by the jurisdiction of substantive legal categories. Was the matter one of property, of contract, or of tort? Finally, in modernity sovereignty has become the dominant paradigm through which we view
States. The legal pluralism of pre-modernity has given way to the singularity of modernity. A modern state has a single locus of authority. It has a national law which applies to all. It seems that this is a paradigm that the High Court of Australia has taken to heart.
As a result of the decision in Mabo (No. 2) it seemed that it had again became necessary to consider how the common law might relate to other bodies of law. Terra nullius had been overturned. There was, it seemed, no longer any reason for denying that in many places indigenous laws continue to operate and to be a vital force for
Indigenous Australians. This was, after all, something that Indigenous Australians have always maintained and that courts in other jurisdictions have recognised. Yet, despite occasional hints to the contrary, the High Court continued to refuse to acknowledge that the common law operated alongside indigenous jurisdictions. The result it seemed was increasing incoherence. How could the High Court both maintain that native title was not a common law institution, but deny that there was more than one legal system extant in the conceptual and geographic space that is the Australian nation? The answer lay in the concept of jurisdiction. Any jurisdiction can determine what it does and does not recognise for its own purposes. The High Court can, and 393 has, denied that for the purposes of the common law indigenous laws continue to operate. However, jurisdictions are autonomous. These pronouncements by the High
Court have no effect on the existence or operability of indigenous jurisdictions.
Contrary to their assertion, indigenous laws do run in Australia and there is parallel law-making.
However, if the High Court as the High Court has specifically denied that aboriginal law exists, or that recognising native title is akin to recognition of a foreign legal system, what is native title? In Chapter Seven it was contended that, analogous to the approach taken in the Case of Tanistry, the High Court has created an interest at common law by modifying rules on recognition of custom. Contrary to the High
Court’s assertions, native title is a creature of the common law. Given the refusal to recognise other laws it can only be founded at common law. The High Court itself has stated that the foundation of native title must be found within the common law. In order to be recognised as native title, practices on land must have been undertaken continuously, in an uninterrupted manner, since time immemorial (acquisition of sovereignty). As Noel Pearson says, native title is not an Aboriginal law title.5 The common law has exercised its jurisdiction to create a new entity, one founded at common law, whose relationship to indigenous jurisdictions is adjectival.
Finally, it was demonstrated that jurisdiction operates through a number of different technologies. Three were identified in this thesis: mapping, accommodation and categorisation. This is not, however, an exhaustive list. Others could also be described. Writing, for example, is another technique or device through which jurisdiction attaches to persons, places and events. All three technologies demonstrated the way in which jurisdictions become embodied, and persons, events
5 Pearson, N., “The Concept of Native Title at Common Law”, (1997) Issue 5 Australian Humanities Review,
What are the implications of a jurisdictional approach? The most obvious possibility is that recognition of multiple jurisdictions opens the door to arguments about self-government and acceptance of the on-going existence and operability of
Indigenous laws. Jurisdiction provides a space, albeit minimal, from within which indigenous voices can speak. The jurisdictional approach described by this thesis provides a structure from within the common law itself through which Indigenous and non-indigenous legal relations can be ordered. This is not the pluralism of separate sovereignty, but a recuperation of the historical relations of common law and non- common law jurisdictions under singular sovereignty.
For Aboriginal peoples, and indeed for many non-indigenous academics, scholars and lawyers in countries such as Canada, the United States and New Zealand, the suggestion that Indigenous jurisdictions continue to exist is not novel. In
Australia, by contrast, over one hundred and fifty years of denying the force of
Aboriginal laws has led to the current dilemma, whereby the High Court no longer has the language (or will) to recognise what for Aboriginal Australians is, as Pearson puts it, ‘social reality’.6 As this thesis has demonstrated, the High Court is anxious to shore up the prevailing model of State in modernity, in which land, territory, sovereignty and law are sutured together in such a way as to deny Indigenous peoples any possible site of enunciation. Recuperating a substantive notion of jurisdiction, including a recognition of the different modes of jurisdictional attachment, would provide the
6 Ibid. 395
High Court with a tool by which it could fashion a different legal relationship between
Indigenous and non-indigenous.
What then of the current situation, in which the High Court continues to deny the on-going law-making capacity of Indigenous systems? The most obvious outcome is that already outlined. It must be questioned whether native title as it stands can provide an adequate foundation for relations between Indigenous and non-indigenous.
Constructed within, and caught by, the traditions of western law, and the common law in particular, native title reflects an understanding of law and property in which native title has become disarticulated from Indigenous culture and in which Aboriginal relationships to country are replaced within the common law by the common law customary interest of native title. The irony, and the paradox of jurisdiction, is that thus far the High Court has exercised its jurisdiction only to deny itself the possibility of recognising any other jurisdictions.
396
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410
Conference Papers
Sarre, R., “Aboriginal Customary Law”, paper presented at ALTA Anniversary Conference, 1995,
Statutes
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Australian Courts Act (1828) 9 Geo. IV c. 83. Colonial Courts of Admiralty Act 1890 (UK). Common Law Procedure Act, 15 and 16 Vict., c. 76 (1852). Common Law Procedure Act, 23 and 24 Vict., c. 126 (1860). Conservation Act 1987 (NZ). Constitution Act, 1982 (Can.). Courts Act 1971 (U.K.). Hazardous Substances and New Organisms Act 1996 (NZ). Judicature Act 1876 (Qld). Judicature Act 1883 (Vic). Legal Procedure Act 1903 (Tas). Native Title Act 1993 (Cth). New South Wales Act 4 Geo. IV c. 96 (1823). Pitjantjatjara Land Rights Act 1981 (SA). Racial Discrimination Act 1975 (Cth). Real Property Limitation Act, 3 and 4 Will. IV, c. 27 (1833). Stat. Hiberniae, 14 Hen. III. State-Owned Enterprises Act 1986 (NZ). Statute Concerning the Laws to be Used In Wales, 27 Henry VIII, ch. 26 (1535). Statute of Kilkenny Ir. St. 40 Ed. III c. 4 (1366). Statute of the Staple 27 Ed. III, c. 2 (1353). Statute of Westminster 3 Edw. I, c. 15 (1275). Statute of Wills, (1542) 32 Hen. VIII, c. 1. Supreme Court Act 1878 (SA). Supreme Court Act 1970 (NSW). Supreme Court Civil Procedure Act 1932 (Tas) Supreme Court of Judicature Act 36 & 37 Vict., c. 66 (1873) Supreme Court of Judicature Act 38 & 39 Vict., c. 77 (1875). The Code of Procedure, Laws of 1848, Chap. 379 (N.Y.) The Law of Property Act 1922 (U.K.). Uniformity of Process Act, 2 Will. IV, c. 39 (1832).
Cases
Colonial Law Project, Division of Law, Macquarie University, compiled by Bruce Kercher,
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Attorney-General v. Wright (1897) 2 Q.B. 318. Blankard v. Galdy (1693) 4 Mod 215 (87 E.R. 359), 2 Salk. 411 (91 E.R. 356), Comb. 228 (90 E.R. 445), Holt 341 (90 E.R. 1089). Bonser v La Macchia (1969) 122 C.L.R. 177. British South Africa Company v. The Companhia de Moçambique (1893) A.C. 602. Bulun Bulun v. R & T Textiles Pty Ltd (1998) 157 A.L.R. 193. Calder v. British Columbia (1973) 34 D.L.R. (3rd) 145. Calvin’s Case (‘the PostNati’) (1608) 7 Co. Rep. 1a (77 E.R. 377). Campbell v. Hall (1774) 1 Cowp. 208 ( 98 E.R. 1047), Lofft 655 (E.R. 848). Case of Anonymous (1722) 2 P. Wms 75 (24 E.R. 646). Caudrey’s Case (1591) 5 Co. Rep. 1a (77 E.R. 1). Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Christian v. Corren (1716) 1 P. Wms. 329 (24 E.R. 411). Cocksedge v. Fanshaw (1779) 1 Dougl. 119 (98 E.R. 80). Coe v. Commonwealth (1993) 68 A.L.J.R. 110. Commonwealth v. Yarmirr (2001) 184 A.L.R. 113. Concerning Process out of the Courts at Westminster into Wales of Late Times, and How Anciently, (1677) Vaughan 395 (124 E.R. 1130). Connolly v. Woolrich (1867) 17 R.J.R.Q. 75, 1 C.N.L.C. 70 (Que. S.C.), affd. sub nom. Johnstone v. Connelly (1869) 17 R.L.R.Q. 266, 1 C.N.L.C. 151 (Que. C.A.). Cooper v. Stuart (1889) 14 A.C. 286. Craw v. Ramsey (1670) Vaughan 274 (124 E.R. 1072). Delgamuukw v. British Columbia (1997) 153 DLR (4th) 193. Delgamuukw v. R (1993) 104 D.L.R. (4th) 470 (BCCA). Dershaw v. R. (1996) 17 W.A.R. 419. Determination Pursuant to Reference of 27 February, 1986 by the High Court of Australia to the Supreme Court of Queensland to hear and determine all issues of facts raised by the pleadings, particulars and further particulars in High Court action B12 of 1982, unpublished findings of fact by Moynihan J. Doe. Dem Harris v. Riley, Supreme Court of New South Wales, 12 October 1832, Forbes C.J., Dowling and Stephen JJ., sourced from the Sydney Herald, 18 October 1832, and provided at
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416
Parliamentary Debates and Parliamentary Committees
House of Representatives, Parliamentary Debates (Hansard), 2 December 1997, Australian Government Printers, Canberra, 1997. Senate, Parliamentary Debates (Hansard), 16 December 1993, Australian Government Printers, Canberra, 1993. French, R., President, National Native Title Tribunal, Evidence before the Joint Committee on Native Title, 24 November 1994, Hansard, Australian Government Printers, Canberra, 1994
Charters
Charter of Justice, 2 April 1787 (U.K.). Charter of Justice 1823, issued under the authority of the New South Wales Act 4 Geo. IV c. 96 (1823). Charter of the Massachusetts Bay Company, 4 March 1629, reproduced in Jensen, M. (ed), English Historical Documents, Vol IX, American Colonial Documents to 1776, Oxford University Press, New York, 1969. Charter of Pennsylvania, 4 March 1681, reproduced in Jensen, M. (ed), English Historical Documents, Vol IX, American Colonial Documents to 1776, Oxford University Press, New York, 1969. First Charter of the Virginia Company (1606), reproduced at
Papal Bulls
Papal Bull Romanus Pontifex, January 8, 1455. Papal Bull Inter Caetera, March 13, 1456. Papal Bull Inter Caetera, May 3, 1493.
Treaties
Treaty of Tordesillas, June 7 1494, ratified by Spain July 2, 1494, ratified by Portugal September 5, 1494.
Standing Orders
Standing Order of the House of Lords, made 24 March 1725, reported at 2 Eq. Ca. Abr. 82 (22 E.R. 71).
417
Technical Guidelines
Department of Natural Resources and Mines, Queensland Government, Geocentric Datum of Australia
Comprehensive Land Claims Agreements
Gwich’in Comprehensive Land Claims Agreement, Indian and Northern Affairs Canada, Ottowa, 1992.