Felons, Mutineers and Other Learned Friends: A History of the Development of the Colonial Bar in Australia, and the Contribution of its Advocates to the Evolution of the Colonies 1788-1856. CATHERINE ELIZABETH DOUGLAS BA(Hons) LLB(Hons) Macquarie University Department of Law Submitted for consideration on 31 March 2007 M A C Q U A R I t HIGHER DEGREE THESIS AUTHOR’S CONSENT DOCTORAL T his is to certify th at I, . ... Lr.! A .... being a candidate for the degree of Doctor of — 1®-'’- ^ .........................................................am aware of the policy of the University relating to the retention and use of higher degree theses as contained in the University’s Doctoral Degree Rules generally, and in particular rule 7( 10). In the light of this policy and the policy of the above Rules, 1 agree to allow a copy of my thesis to be deposited in the University Library for consultation, loan and photocopying forthwith. M j - Signature of Candidate D ate this .day o f . .20 O j MACQUARIE UNIVERSITY—SYDNEY The Academic Senate on 13 July 2007 resolved that Catherine Elizabeth Douglas had satisfied the requirements for admission to the degree of Doctor of Philosophy. This thesis represents a major part of the prescribed program of study. CONTENTS Summary 4 Statement 5 Acknowledgements 6 Abbreviations 7 Preface 8 A Starting Point: Origins and Myths 10 Part One: Colonial New South Wales 1788-1856 27 1. Running the Penitentiary: 1788-1809 28 2. The Game of Kings: 1809-1823 52 3. Raising the Bar: 1823-1856 73 Interlude: Meanwhile, Back in Britain... 121 Part Two: Van Diemen’s Land, Port Phillip, Western Australia 125 and South Australia 1803 -1856 4. Van Diemen’s Land: The Forgotten Colony 126 5. Port Phillip: The Transplanted Bar 174 6. Western Australia: A New Eden 212 7. South Australia: Utopia in the Antipodes 236 Australia's Early Bar: A Case Stated 270 Bibliography 305 3 Summary This thesis can be viewed as having two tiers; firstly, the development of the institution of the Bar in Australia from 1788 until 1856, and secondly, the broader role that individual advocates played in the formation of each new Australian colony. This thesis is the first comparative history of Australian advocates and the development of the institution of the Bar. Previous histories of the Bar have either been restricted to the story of one colony, or the biography of a particular practitioner. It is my contention that a history of the institution of the Bar cannot be properly understood without a comparative examination of the colonial Bars, which also involves elements of general Australian history, legal history and judicial history. Traditionally, barristers trained in an English Inn of Court are seen as the members of the early nineteenth century colonial bars. The term ‘advocate’ is employed in this thesis to encompass the roles played by barristers trained in English Inns of Court, as well as certain attorneys, solicitors, convict attorneys and lay persons who performed an advocacy role in their colony. Often ‘advocate’ is more appropriate for early nineteenth century Australia as it also allows an examination of the roles played by people who did not have an English Inn of Court qualification, but who nevertheless performed court work. Advocates by definition represent the causes of other people in society, and in doing so contributed in a significant way to the social, political and economic development of each new colony, and their systems of law and order. In a sense this thesis can also be viewed as an examination of key events in Australian history from the viewpoint of barristers and advocates. Ultimately, an examination of key historical events can be used to aid our understanding of the dynamics of the modern-day Bar. It highlights the invaluable contribution that advocates make to society, but also reveals problems that are endemic within the Australian Bars. The argument is posed that there is a need for members of the Bar to understand their own history and the causes that have led to the modem state of the Bar, before they can make vital changes to guarantee the future effectiveness of their institution. 4 Statement This work has not been submitted for a higher degree to any other University or Institution. 1 j - Catherine Douglas, 31 March 2007 5 Acknowledgements I am grateful to the New South Wales Bar Association for its generosity in establishing the New South Wales Bar Association Scholarship, and to its members for offering me assistance over the previous four years. I further thank the Bar Associations in the other states for any assistance rendered, and in particular the barristers and judges who agreed to be interviewed about their careers. That project is still continuing, and on its completion it will be an invaluable repository of material on twentieth century legal practice. I would also like to take the opportunity to thank my supervisors, Professor Rosalind Croucher and Professor Bruce Kercher, for their advice over the past four years. I am also indebted to the late Emeritus Professor Alex Castles, who provided me with the inspiration to enter the field of legal history. Last but certainly not least, I will remain forever grateful for the invaluable assistance of my husband, Mark Douglas, who took a keen interest in this project and is an editor extraordinaire. 6 Abbreviations HRA Historical Records o f Australia HRNSW Historical Records o f New South Wales HRV Historical Records o f Victoria CO Colonial Office Records from the Australian Joint Copying Project GO Governor’s Office Records (Tasmania) Kercher’s Reports Decisions of the Superior Courts of New South Wales and Van Diemen's Land Votes and Proceedings Votes and Proceedings o f the Parliament o f New South Wales 1 PREFACE History can be written at any magnification. One can write the history of the universe on a single page, or the life-cycle of a mayfly in forty volumes. A very senior and distinguished historian, who specializes in the diplomacy of the 1930s, once wrote a book about the Munich Crisis and its consequences (1938-9), a second book on The Last Week of Peace, and a third entitled 31 August 1939. His colleagues waited in vain for a crowning volume to be called One Minute to Midnight. It is an example o f the modern compulsion to know more and more about less and less. Norman Davies' This is, unashamedly, a tertiary history of Australia. It draws from the invaluable work of many professional and amateur historians in the attempt to trace the genesis of the Australian Bar over more than half a century of history and an entire continent. It builds on the original, painstaking and dedicated work of many Australian legal historians, including John Bennett, Alex Castles, Enid Russell, Ralph Hague and Arthur Dean. This work documents all of the accessible primary sources that are available, but also acknowledges, where appropriate, the groundbreaking work of historians who have conducted the original research in particular areas. This thesis arose out of the significant need for works of genuine scholarship aimed at integrating the plethora of secondary sources that are either focused on the legal profession of an individual colony or state, or are biographies of a colonial lawyer. In observing the forest rather than individual blades of grass, recognisable arguments and themes can be examined which help to explain why events in society’s past have led us to where we are today. This all-important understanding of causation gives the subject of legal history its greatest immediacy and relevance to the modern-day reader and, more particularly, in examining past events facing the Bar we can shed light on its present-day status. Writing a history with such broad parameters always involves choices as to what should be included or excluded. Often, the subject matter that is excluded draws more comment than that which has been included. To take one such example, this history has been written with the deliberate decision to exclude much of the story of European contact with the first Australians who had settled these shores. The conscious choice to write a European history reflects the fact that the modem Australian Bar is a European-evolved institution. This is not to say that there were not influences from each side of the culture divide as a result of black and white contact throughout Australia’s history, but this simply did not seem to be the forum 1 Norman Davies, Europe: A History (1997) 1. 8 for their examination. The same observations could be made in relation to women’s history, the history o f religion and migration, none of which is given as detailed an analysis as is possible in such a work. The history o f the Queensland Bar is also examined only briefly, not so much by design, but because of the time frame entertained in this thesis. That being said, every attempt has been made to treat the history of the institution o f the Bar comprehensively and objectively. The Australian legal profession does not know its own story, partly because o f the absence o f tertiary histories on the subject, and the general public is largely ignorant of the crucial role that advocates play in society. This work, which is intended to be the first of three volumes telling the story of advocacy in Australia from its inception to present times, is in some small way intended to redress that problem. Finally, the author attempts to capture the excitement, passion and pathos encountered at every turn in reviewing the early history of the colonial advocates who played such a fundamental role in the foundation of the Australian colonies.