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Barron Field and the Supreme Court of Civil Judicature: Law, Personality and Politics in New South Wales, 1816–1824

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Barron Field and the Supreme Court of Civil Judicature: Law, Personality and Politics in New South Wales, 1816–1824 Barron Field and the Supreme Court of Civil Judicature: law, personality and politics in New South Wales, 1816–1824 Ronald Coleman Solomon A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy University of New South Wales School of Humanities Faculty of Arts and Sciences Submitted March 2013 PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: Solomon First name: Ronald Other name: Coleman Abbreviation for degree as given in the University calendar: PhD School: Humanities Faculty: Arts and Social Sciences Title: Barron Field and the Supreme Court of Civil Judicature: law, personality and politics in New South Wales, 1816-1824 Abstract 350 words maximum: (PLEASE TYPE) My thesis traces the progress and selection of a man of middling class, a direct descendant of Oliver Cromwell, to appointment as j udge in the superior court of civil law in the colony of New South Wales in 1816. On arrival in the colony Judge Field chose not to accept the company of Governor Macquarie when he learnt this entailed associating with ex-convicts. Instead Field joined the exclusive society of free settlers dominated by John Macarthur who pursued political beliefs of repression of emancipated convicts. Thereafter, an emancipist attorney commenced a political campaign against exclusivists with Field as their spokesman. This campaign began and ended in the courts as the only venue available for political conflict. The campaign revealed the importance of the role of the courts in colonial society. Not only the free but recently freed and prisoners made use of the courts. As political conflict intensified it was observed by the Royal Commissioner sent out to investigate whether the colony was fulfilling its objective for convicts of being a place of terror. The Commissioner recommended Field's recall. This was acted upon despite Field's achievements in the reform and development of the civil law in the colony. On his return to London he was unable to secure further judicial appointment for some years during which he returned to the Bar. Eventually after he secured a patron again he obtained a posting to Gibraltar. There his tenure was marred by further disputation with the governor. As it happened in New South Wales, he is sued by a litigant in Gibraltar. However the proceedings against him in the Privy Council were dismissed. His retirement followed and he followed his many interests of botany, natural science and Elizabethan literature. For a time he was a noted Shakespearean commentator. His death took place shortly after his retirement. AUTHENTICITY STATEMENT I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting , they are the result of the conversion to digital format. Declaration relating to disposition of project thesis/dissertation I hereby grant to the Unive rsity of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the Un iversity libraries in all forms of media, now or here after known , subject to the provisions of the Copyright Act 1968. I retain all property rights , such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). ... ...?.~ . ......f ....... 2..~.f3. Signature Witness Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or cond itions on use. Requests for restriction for a period of up to 2 years must be made in writing . Requests for a longer period of restriction may be considered in exceptional circumstances and requ ire the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements fo r Award : ABSTRACT My thesis traces the progress and selection of a man of middling class, a direct descendant of Oliver Cromwell, to appointment as Judge in the superior court of civil law in the colony of New South Wales in 1816. On arrival in the colony Judge Field chose not to accept the company of Governor Macquarie when he learnt this entailed associating with ex‐convicts. Instead, Field Joined the exclusive society of free settlers dominated By John Macarthur who pursued political Beliefs of repression of emancipated convicts. Thereafter, an emancipist attorney commenced a political campaign against exclusives with Field as their spokesman. This campaign Began and ended in the courts as the only venue availaBle for political conflict. The campaign revealed the importance of the role of the courts in colonial society. Not only the free But recently freed and prisoners made use of the courts. As political conflict intensified it was oBserved By the Royal Commissioner sent out to investigate whether the colony was fulfilling its oBJective for convicts of Being a place of terror. The Commissioner recommended Field's recall. This was acted upon despite Field's achievements in the reform and development of the civil law during his period in the colony. On his return to London he was unaBle to secure further Judicial appointment for some years during which he returned to the Bar. Eventually after he secured a patron again he oBtained a posting to GiBraltar. There his tenure on the Bench was marred By further disputation with the governor. As it happened in New South Wales he is sued By a litigant in GiBraltar. However the proceedings against him in the Privy Council were dismissed. His retirement followed and he pursued his many interests of Botany, natural science and ElizaBethan literature. For a time he was a noted Shakespearean commentator. His death took place shortly after his retirement. ii Table of Contents Acknowledgements iv Abbreviations v Introduction 1 Chapter One – Hunt for a career 19 Chapter Two – New Horizons 50 Chapter Three – A court awakes 91 Chapter Four – Emancipist stirrings 125 Chapter Five – Eagar’s challenge to Judge Field 163 Chapter Six – Convict stain 188 Chapter Seven – After New South Wales 226 Conclusion 260 Appendix A – Table of cases 263 Appendix B – Rules of court 296 Bibliography 312 iii Study to show thyself approved unto God, a workman that needeth not to be ashamed, rightly dividing the word of truth. 2 Timothy 1:15 Authorised (King James) Version. Acknowledgements Firstly, I owe my thanks to Dr. John Bennett for inciting my interest in Australian Legal History as a law student in the 1970s. He acted as a mentor, suggesting the path that I have taken to this point. For a time Emeritus Professor Bruce Kercher continued in this role. Finally Dr. Lisa Ford Became one of my supervisors. Her patience throughout the writing of this thesis has Been infinite and her encouragement and guidance, much needed. Associate Professor Anne O’Brien was equally supportive. In the final stages of preparation I have Been greatly indeBted to Peter Moore for his editorial skills. To my wife, throughout, I thank her for her understanding during my mental and physical aBsences and her unswerving Belief that our normal lives would one day Be resumed. iv Abbreviations ADB – Australian Dictionary of Biography. BT – Bonwick transcripts, Mitchell LiBrary. DNB – Oxford Dictionary of National Biography. E.R. – English Reports. H.R.A. – Historical Records of Australia. HTG – Hobart Town Gazette. LPI – Land and Property Information, a division of the Department of Finance and Services, New South Wales Government. ML – Mitchell LiBrary, State Reference LiBrary of New South Wales. NLA – National LiBrary of Australia. NLS – National LiBrary of Scotland. SC – Supreme Court of Civil Judicature of the Colony of New South Wales. SG – Sydney Gazette and New South Wales Advertiser. SR – The State Records Authority of New South Wales. SRL – State Reference LiBrary of New South Wales. TNA – The National Archives. v INTRODUCTION This thesis is a biographical study of Barron Field, judge of the Supreme Court of Civil Jurisdiction of New South Wales, hereinafter the Supreme (civil) Court, for the years 1816–1824. I give particular emphasis to the relationship between his judgments and colonial politics. The thesis contributes to legal history, the political role of colonial courts and to judicial biography. Courts were crucially important to a newfound convict colony for many reasons. As Neal has pointed out, ‘litigation was often politics carried on under another name’ in early New South Wales.1 Courts were compelled to resolve social, economic and political conflicts in this strange and unfree society.2 Judges were also central political actors. John McLaren has pointed out that in some colonies, tensions existed between judges and the executive. In this context he refers to the effects of personality and personal relationships in early nineteenth century colonial history.3 If judicial conflicts were endemic in Empire, then they were particularly acute in the convict colony of New South Wales. Field was involved in trenchant social, political and legal conflicts with successive colonial administrations. Barron Field and his court, then, form a key part of the story of the early settlement of New South Wales. Studies of the transformation of legal practice in the civil courts of the Macquarie period are incomplete. A growing coterie of scholars has examined the interaction of indigenous Australians with criminal courts in colonial Australia. Lisa Ford and Brent Salter reviewed the trial of Mow‐watty and Governor Macquarie’s efforts to bring order and law to New South Wales’ frontiers in 1816.
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