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Collins, the Courts & the Colony - Law and Society in Colonial New South Wales

Date: 21 March 1996
Author: The Hon Justice Michael Kirby AC CMG, President, Court of Appeal, Supreme Court of NSW (1984 - 1996)
Type: Book review
Subjects: Australia, Law, History
Organisation: Australian Bar Review
Location: Sydney
Publisher: University of NSW
Notes: J F Nagle, CollinsT The Courts & the Colony - Law and Society in Colonial New South Wales 1988-1796 UNSW Press, 1996. Recommended Price (Soft cover) $34.95.

This is an interesting book on the person who, in effect, became the first person to exercise quasi-judicial office in modern Australia. It is written from a study of original materials by John Nagle, a retired Judge of the Supreme Court of New South Wales. Its publication was supported by the Law Foundation of New South Wales and Charles Sturt University, with which the author had a long connection.

David Collins was born in England in 1756. He was therefore little more than thirty years old when he took up office in the convict colony of New South Wales as Deputy Judge Advocate in 1788. But already his life had been full of adventure. In 1772, he was a member of the crew of a Royal Navy vessel sent to Denmark to rescue Princess Matilda, whose sexual escapades annoyed her royal husband. In 1775 he participated in the War of Independence. In the 1780s the world in which he lived came to be influenced by two men of causican origin. One of them, Napoleon, was to cause much trouble to Britain and its Navy. The other, James Maria Matra was to provide a suggestion that settled Collins' fate and led to the establishment of the British settlement in the Great Southland. Matra proposed that the prisoners, who would formerly have been sent to the American settlements should be sent, instead, to Botany Bay which Captain Cook had reported following his voyage of 1770. Matra considered that "with good management and a few settlers" the new colony would prove a great stimulus to British trade with the East. He saw Australia's links with Asia long before we did.

The young Collins was appointed to the First Fleet. He came under the spell of Captain Arthur Phillip, a truly remarkable and enlightened administrator. Although he returned to England in 1796 with a good report from Phillip, he was treated ungenerously by the bureaucracy who refused to allow him to retire on half pay. Instead, he set to writing the account of his exploits in the new colony. His book, published in 1798, was widely read and favourably received.

In 1903, Collins was appointed Lieutenant Governor of the Port Phillip Colony. But like not a few since, who had spent time in Sydney, he did not find the southern settlement to his liking. He therefore proceeded south to Hobart as Governor, exhibiting the same enlightenment as he had learned from Arthur Phillip. He died in 1810. Objectively, he was a minor colonial official. Yet John Nagle has shown, by an analysis of his work and cases, the important role he played as Deputy Judge Advocate, bringing the rudiments of the rule of law to the harsh colonial environment in which fate had called him to serve.

The first section of the book is a description of Collins' early life and the enterprise that brought the first fleet to Botany Bay. This is followed by a section on Collins the man. Although a soldier, he was obviously imbued with elements of sensitivity which were to be reflected in his court work. In September 1791 he wrote to his father:

The next major part of this book is a description of the courts and colonial life in Australia. This is the most important and original section of the book because it sets out a short description of the earliest cases heard in the New South Wales colony, beginning with 1788 and finishing with 1796, just before Collins' recall. Necessarily most of the earliest cases concerned the application of criminal law. A wave of petty theft amongst the convicts and sailors bringing liquor ashore, contrary to orders of the Governor, soon impelled the early establishment of a court of criminal jurisdiction. On 10 February 1788, just a few days after arrival, Governor Phillip issued orders for the sitting of the court to be constituted under the presidency of Captain David Collins, with Captains Hunter and Bradley assisting.

The first defendants were Samuel Barsby, Thomas Hill and Thomas Cole, all of them convicts. In public, in the manner of jurymen in England, each of the members of the court took the usual oaths of allegiance and of judicial office. The convicts were then faced in and publicly charged. Eight witnesses were called to give evidence against Barsby who pleaded not guilty. He was found guilty and sentenced to receive 150 lashes on his bare back with a cat-o-ninetails. The sentence was immediatly criticised by Surgeon Bowes and contrasted with naval discipline.

There followed many records of trials and sentences which, by modern standards (as the author observes) appear somewhat irregular and unduly harsh. Thus, a prison Samuel Payton was tried for entering the marquee of a Lieutenant of the First Fleet and stealing some shirts, stockings and combs. His plea of not guilty was supported by an assertion that he had no knowledge of how he came to be discovered in the tent. The plea was rejected. He was convicted and sentenced to death. A pathetic letter to his mother, shortly before his execution, is reproduced verbatim. It shows the kind of resigned acceptance of a brutal penal regime that I have seen amongst prisoners in Cambodian gaols. This is just the way it is. Even the victims of the Nazi Holocaust, in large number, simply accepted their terrible fate.

The author takes the cases which he reports and offers commentary upon them from the point of view of defects in current rules of procedure and in the application of substantive law. Here are the comments of a most experienced judge of our age upon the rustic court proceedings at the beginnings of the colony.

By the time the record gets to 1796, the kind of offences had changed. From thefts and assaults connected with survival, they had moved to crime apt for an already growing settlement. The stealing of pigs and of expensive items of household refinement. Moreover, points were being taken of some sophistication. In one charge of assault, the offender sought dismissal on the ground that the charge had misnamed him. By this time too, the Deputy Judge Advocate was involved in the grant of probate and in early civil cases.

The book outlines the impact of Blackstone's writing, not only upon the American colonies but also in the new Australian settlement. The theory was that English settlers carried with them the common law of England. At least in terra nullius, as Australia was deemed to be, their law, as adapted to the needs of the convict community, was that of the common and statute law of England and applicable to all. Blackstone's Statement of Principles was therefore invaluable in the disposition of the earliest cases. The King's instruction to Governor Phillip was to establish a society with a civil government based upon the law of England. It was also a relatively enlightened instrument commanding respect for the indigenous Aboriginal people.

According to John Nagle, Collins emerges from his caseload, and from his later work in Hobartown, as a good second-in-command with a military man's ultimate subservience to authority but with elements of sensitivity indicative of the educated man of that time. He saw himself mainly as a soldier, fulfilling orders and establishing a well ruled community in the unpromising environment of a convict settlement. In his Account he described the problems inherent in the King's command that "A colony and civil government should be established in the place to which such convicts shall be transported." According to Collins:

The centenary of the Federal Constitution, following so soon after the bicentenary of the arrival of the First Fleet, focuses attention upon the history of Australia and its legal institutions. John Nagle has contributed a useful and interesting record which represents, truly, the story of the earliest court hearing in modern Australia. Because they are based on original court records, and are interspersed with the remarks of an experienced judge of our time, the story is well told, with an eye to detail but also to presenting the broad picture.

The book is well produced. It starts with a typically elegant Foreword by the Hon Rae Else-Mitchell, another Judge historian of distinction who, like me, sees in the book the great value of gathering and presenting original historical material in a succinct way, that might otherwise have been lost to the dust of government files. The work is well footnoted and indexed. I found only one typographical (on p 71) where "his majesty's" is presented in lower case. At first I thought this might be the work of a republican proof-reader but elsewhere it properly appears with royal uppercase.

Modern analogy

To this reviewer the chief interest of the book lay in the similarity which emerged to building a rule of law society in colonial Australia and the rebuilding of law in Cambodia. There, the anarchistic Khmer Rouge regime proclaimed year zero. Following the re-establishment of civil government it was necessary, as in the case of David Collins, for laypersons to take over the functions of the judiciary. In Cambodia, they were normally teachers whereas Collins was an educated soldier with no legal training. His gaps in the law he filled from the pages of Blackstone and from the commonsense which is the foundation of the common law. He saw himself, as the judges of Cambodia do, as servants of the King. His duties were, as theirs is, to suppress vice, to secure property and to preserve good order and peace. In critical matters he took orders from the Governor, just as today, copying the traditions of the colonial rule of the French, the magistrates of Cambodia consult and take orders from the Ministry of Justice. Violence was never far from David Collins' society or from modern Cambodia. Because of the lack of lawyers, the judicial officer is obliged to take over as inquisitor. Some of the punishments handed out appear in enlightened modern Australia to be inhumane. Occasionally to avoid that result, highly technical points succeed. They are accepted, as in Cambodia, as more tolerable than weak-kneed humanity. The basic judicial duty is to stave up society rather than to provide a truly independent system of justice, divorced completely from the executive power.

Sitting in a modern Australian court, with constitutional and conventional protections of judicial independence, it is difficult to put the mind into the same gear as that in which David Collins was obliged to operate. But reading the cases it soon becomes clear that he was generally striving to resolve disputes in a way comfortable to his conscience and to impose punishments which seemed compatible with the standards of the time.

It cannot be said often enough that modern Australia began as a child of the legal system. Its first migrant people were, like many who have come since, "boat people". They were sent here by the courts of England. They soon needed courts of Australia. Thus the establishment of the colonies and the English law and its institutions were inextricably intertwined. John Nagle's book portrays the earliest in the long line of men and women who have since been called to decide criminal and civil cases. The man who emerges from this description portrays various human faults. But he was clearly a man of his times and an honourable guardian against the only alternative to the rule of law: the rule of brute power, unchecked by limitations and obligations. To this extent, modern lawyers, and particularly modern judicial officers in Australia, may take some pride in the work of David Collins. They can also take pride in the work of John Nagle in rescuing our first "magistrate", military judge from oversight.