Ó Cambridge University Press

David Neal, The Rule of Law in A Penal Colony -Law and Power in Early New South Wales (Cambridge University Press, Cambridge, 1991), Chapter 1.

Norwich Castle jail was a makeshift affair, like many other jails in eighteenth-century England. These were not the high security, single-cell prisons of the nineteenth and twentieth centuries. There was a great deal more coming and going both between the prisoners within the jail and between the jail and the outside world. In the eighteenth-century jails, prisoners often relied on family and friends to supplement their rations. The mediaeval castle at Norwich had been converted into a jail with rough shelters built up against the castle walls for some of the inmates. The jail was crowded too and food was in short supply. The local residents of Norwich took pity on the prisoners that winter and sent in special food for the festive [p 3] season. But the numbers of people building up in their local jail since the war had ended transportation to America worried the good citizens of Norwich and they petitioned the government to do something about it.3

In that year, a fleet of ships was being prepared to transport 750 convicts to a place called Botany Bay. Cook had landed there sixteen years earlier and explored the east coast. Now the British government planned to establish a colony there. Prisoners were being mustered from the overcrowded jails into old ships moored in ports around England. When it was discovered that there were insufficient women prisoners for the fleet, the order came from London to transfer the female convicts at Norwich Jail to the hulks at Plymouth. From there they would be loaded onto the ships bound for Botany Bay. Susannah Holmes was one of these women.4 Henry Kable's distressed pleas to be allowed to marry Susannah and accompany her to New South Wales fell on deaf ears.

Simpson's mercy dash, a round trip of some seven hundred miles by coach, and the story of the Cables attracted the attention of the press. The Norfolk Chronicle was pleased to report that 'the laws of England, which are distinguished by the spirit of humanity which framed them, forbid so cruel an act as that of separating an infant from its mother's breast.... it cannot be but a pleasing circumstance to every Englishman to know, that, though from the very nature of the situation of public Ministers, they must, on most occasions, be difficult of access.... when the object is humanity, and delay would materially affect the happiness of even the meanest subject in the kingdom, the Minister himself not only attends to complaints properly addressed, but promptly and effectually affords relief'. The London newspapers were equally fascinated by the story of 'John Simpson, the humane turnkey'. It attracted the attention of Lady Cadogan who organised a public subscription which yielded the substantial sum of twenty pounds - about twice the annual salary of a labourer at that time, and four times the value of the goods Susannah had stolen - enough money to buy clothes and other items for their new life in New South Wales. Their parcel was loaded onto one of the transport ships, the Alexander, before they set sail in 1787.5

On the first of July 1788, a writ in the names of Henry and Susannah Kable was issued from the new Court of Civil jurisdiction in New South Wales (see illustration p.26). The writ recited that the parcel loaded onto the Alexander had not been delivered to the Kables in Sydney despite many requests, and sought delivery of the parcel, or its value. It named the ships captain, Duncan Sinclair, as defendant. The court, consisting of judge-Advocate David Collins and two civilians, issued a warrant to the provost marshall ordering him to bring the captain before the court the next day to answer the complaint against him.

On the day of the hearing the court received evidence that the parcel had been loaded on the ship but - with the exception of some books which probably neither Henry nor Susannah could read - the contents of the parcel could not be found. Henry Kable swore that the missing goods were worth fifteen pounds. The court found for the plaintiff and entered a verdict for that amount.

Legally, the Kables' case is quite extraordinary too. In the place where a writ would usually describe the plaintiffs' occupation, the words, 'New Settlers of this place' have been crossed out and nothing has been substituted. To have described them as convicts would have been fatal to their case. Felons were regarded as if they had already been executed in English law and therefore unable to sue. The fact that Henry and Susannah were convicts and the legal consequences of that fact must have been obvious to some of those concerned; maybe the description 'New Settlers' was too close to a fabrication, and hence this part of the writ was altered in order to maintain a discreet silence.8

Whatever the reason, the omission allowed the case to proceed and the governor gave the orders for the royal letters patent which constituted the new court to be read, convening the court for the first time. Thus, the first sitting of a civil court in Australia and the first civil case to be heard, occurred at the behest of two convicts under sentence. Moreover, it named an important figure in the colony, a ship's captain, as defendant, subjected him to the power of the court's jurisdiction and officers, and made an order against him. It vindicated the property rights of two convicts and publicly demonstrated the ability even of convicts to invoke the legal process in the new colony. Nor was it to be the last time that convicts used the legal system to assert their rights in the colony, despite English law which regarded felons and former felons as civilly dead (i.e., unable to sue, unable to he a witness, to hold property, make contracts, etc.) or, as Blackstone graphically puts it, 'no longer fit to live upon the earth.... to be exterminated as monster and a bane to society.... by an anticipation of his punishment, he is already dead in law.'9 For the situation to have been otherwise in a colony overwhelmingly composed of convicts and former convicts would have created enormous difficulties in the conduct of the colony's commercial and legal affairs. Indeed when this spectre was malevolently raised thirty years later by a legally qualified judge who was prepared to break the tacit colonial amendment of the laws relating to attainder, as it was known, the colony was thrown into uproar.10 By that point, former convicts, including Henry Kable, dominated the mercantile class in Sydney, and held more property than the free settlers. The prospect that they might not be able to rely on the legal system to support [p7] their property rights or use the courts to enforce their contracts, rights assumed since the Kables' case in 1788, shook the foundations of the colony's legal, commercial and social order.11

Henry and Susannah Kable might easily have become Americans. As we have seen, their reprieves specified that they be transported to America. But the great events of the American Revolution meant that England had not been able to send convicts to the American colonies for some years. John Howard's 1777 report on the overcrowding and appalling conditions in English prisons increased the pressure on the government to find an alternative to places like Norwich jail. The residents of Norwich were by no means the only ones to petition the government about overcrowded jails.12

As Home Secretary, Lord Sydney had responsibility for law and order, which included prisons. It was an important responsibility but by no means his only duty. The Home Office still administered most domestic issues at the end of the eighteenth century, while the other great department of government, the War Office, conducted foreign affairs.13 However, in the early 1780s, the state of prisons was becoming a critical issue. A flood of petitions urged the Home Secretary to take action to relieve the pressure on the jails and bridewells now filled to over-flowing with long-term prisoners whose death sentences had been reduced to terms of transportation. England's eighteenth century prison establishment traditionally only catered for prisoners awaiting trial and those sentenced to short-term imprisonment. Corporal punishments - hanging, flogging, branding, the stocks, the pillory, etc. - had formed the central core of the penal system up to and including the eighteenth century, supplemented by short-term imprisonment, transportation and extensive use of the prerogative of mercy.14

Despite a lobby to build new-style penitentiaries in England, Pitt's government judged that transportation to a new colony would be a more effective, speedy and economical solution to the convict problem. Trade and naval strategy influenced the eventual decision to found the colony in the Antipodes, but penal purposes provided, and continued to provide over the next fifty years the predominant rationale for the British settlement of New South Wales.

The best description is that it was a penal colony at the start and, little by little, it came to be a free society by the end of the transportation period. I say why I think those are the correct characterisations in chapter 2. Why did it change? Obviously for a lot of different reasons. But not because the British government planned it that way. Many of the changes came about despite rather than because of the British government. This applied, for example, in the sphere of commercial development. Trade in the Pacific was dominated by the East India Company's monopoly; Sydney's merchant traders battled stubbornly to maintain their operations in the face of English legislation and opposition from the Company.19 Political and legal reforms came at the cost of long campaigns, mainly fought by people who started off with multiple disadvantages: they were arguing for the political liberties of ex-convicts, within a colony which London saw primarily as a place for dumping convicts, and at a time when most British people could not vote.

Despite the repression, the ideas of the French and American Revolutions were beginning to percolate into English politics. The first, and for the purposes of this story, most important manifestation of these ideas in England was the anti-slavery movement. The arguments against slavery depended heavily on universalist arguments about the rights of man.26 In January 1788, English antislavery lobbyists had 100 petitions before Parliament and, though baulked on this occasion by the French Revolution, they had sufficient influence to have legislation passed banning the slave trade in 1806. From then on, slave societies in the Americas and the West Indies would have to replace their staves by reproduction. This popular opposition to the slave trade, coinciding with the United States Declaration of Independence, the French Revolution and the settlement of Botany Bay, formed just the first stage of the anti, slavery campaign.27 In the succeeding fifty years anti-slavery campaigners battled British planter interests over the abolition of slavery in British colonies, especially in the West Indies. Drawing on the rhetoric of freedom and the rights of man, evangelicals like Wilberforce ran a political campaign that produced thousands of tracts, enormous public meetings and hundreds of petitions. Petitions against slavery in the 1830s attracted more signatures than even the widely-supported Chartist petitions in favour of the rights of English [p12] workers!28 Legislation for the abolition of slavery in the West Indies eventually came in 1832, pre-dating the decision to end transportation to New South Wales by only a few years. Anti-transportation campaigners drew the analogy between slaves and convicts assigned to private masters in New South Wales, tapping the fund of values and arguments which had developed around slavery. Changing ideas about punishment and especially the move towards penitentiary-style imprisonment - ideas propounded by those same anti-slavery, anti. transportation campaigners - intersected with the other arguments against transportation.

The combination of egalitarian political ideas and their embodiment in the anti-slavery movement changed the terms of political argument in England. Old measures of civic competence - the property qualification both for the right to vote and to sit in parliament - were challenged. In England - where social and economic mobility were relatively limited and wealth could conveniently be equated to virtue - the changes were slower in coming. But in New South Wales with its large number of wealthy former convicts, questions of merit were much more difficult. While the Emancipists - ex-convicts and their sympathisers - argued for the traditional measure of civic competence - wealth - their conservative opponents, the Exclusives, strived to develop counterarguments for the political disqualification of former convicts based on their prior convictions. But the English political climate of the 1830s - the era of the new industrialism, the first Reform Act, the ascendancy of Whig governments, reform of the criminal law and the abolition of slavery - was not conducive to arguments proposing new forms of political disenfranchisement.

The fifty years between the founding of New South Wales and the end of transportation also saw radical changes in English thinking about crime and punishment. These too had profound effects on New South Wales. The principal weapon in the eighteenth-century criminal law was the death penalty, or at least the threat of it. Some 200 offences carried the death penalty. As we have seen in Norfolk, for the unlucky few the capital sentence was carried into effect. In rural areas of England it was the climax of the elaborate assize court rituals.29 In London, court proceedings were much more mundane, though executions were public spectacles For the majority of capital offenders, however, the royal prerogative of mercy and the Transportation Acts gave the option of punishments short of death.

However, by the middle of the eighteenth century this policy was coming under attack. The Italian criminologist, Cesare Beccaria, argued for a more rational policy of deterrence based on certainty of apprehension, conviction and punishment. Moreover, the punishment should be tailored the seriousness of the crime rather than the one punishment - death - for all serious crimes, a punishment which everyone knew would not be carried into effect on the majority of occasions. Beccaria's theory gained currency in England through the publication of Blackstone's Commentaries in the 1760s. Later in the century, Bentham's campaign for penitentiary-style imprisonment would provide a punishment mechanism by which some of these ideas could be put into effect and elaborated.32

The English criminal justice system breached Beccarian principles in two important ways. In the first place, the absence of professional police forces meant that apprehension was very uncertain. The system of local constables supervised by amateur gentlemen justices of the peace did not produce the degree of certainty envisaged in the Beccarian scheme. Despite serious concern about crime and public disorder, the English ruling gentry strongly resisted attempts to establish professional police forces. For Members of Parliament, paid police forces conjured up folk memories of Cromwell's standing army and the French spy system, both much detested as threats to English liberty. Moreover, the arguments carried an implied criticism of the justices of the peace, themselves often members of the very parliament asked to establish police forces.33 These attitudes about justices of the peace and police flowed through to the colony, as will be seen in chapters 5 and 6.

Uncertainty of apprehension was matched by uncertainty of punishment. Because it was so draconian, the argument ran, the death penalty could be used only sparingly even against those criminals who happened to be apprehended. The examples we have already encountered from the Norfolk circuit confirm this. Although burglars and sheep stealers were liable to be hanged, robbery and burglary would usually earn the culprit fourteen years transportation, while theft of goods or animals was a seven-year offence. Our friend [p14] Henry was lucky to get only seven years for his burglary; Susannah's sentence of fourteen years was more usual and Henry's father and their friend went to the gallows. Bentham's penitentiary offered a system where the punishment could be better measured to fit the crime and would be carried out in every case.

Transportation to New South Wales, however, was on the cusp between the old and the new penal systems. From the outset, it served as the butt of Jeremy Bentham's campaign to establish the penitentiary as the main form of criminal punishment. The distance, discretion and arbitrariness involved in the transportation system offended almost every Benthamite principle. However, the old ideas were a long time dying. England did not establish its first modern police force until the late 1820s, about the same time as Bentham's disciples in government began to abolish the death penalty for a long list of offences. The penitentiary would become the principal instrument for criminal punishment but the real developments took place in the 1830s. These changes in the criminal justice system had profound effects on New South Wales. They led to the termination of its penal phase and cleared the way for political institutions consistent with its emerging status as a free society.

We have been discussing the English background to events in 'New South Wales. They form a crucial context for the development of the colony but they do not constitute the primary focus of this work. The punishment of convicts dominated England's purposes for the colony. But events in New South Wales forced an alteration. The dynamics of that change occupy centre stage in this story. The possibilities and pace of change were affected by the great events of the times. But the [p15] initiatives for the changes in the status of New South Wales came from the colony itself.

Within the colony several major forces for change were at work, and they were linked. One of them was simply the growth and changing composition of the population. Throughout the period England transported 80,000 convicts to New South Wales. More convicts arrived there in the last decade of transportation than in any other. The percentage of the European population which was convict ranged from 74 per cent in the first decade, dipping to 36 per cent in 1804, to 45 per cent in 1820, to 30 per cent in 1840 at the end of transportation, a rough working average of 40 per cent. If convicts, emancipists and their children are taken together, they made up 87 per cent of the population in 1828 and 63 per cent in 1841.

The overall population of the colony remained quite small for the first few decades. The original 1,000 grew to I 1,000 by 1810 and doubled to reach 23,000 in 1820. Very few free people felt inclined to launch themselves on a 12,000-mile journey to the edge of the eighteenth-century world, there to share their lives with convicts and, probably, never see England again. But there were free people in New South Wales. Children of convicts, unlike the children of slaves, were born free in the colony. Henry and Susannah Kable's son, Henry, was one of them; so were their ten colonial-born children. The wives of the governors, government officials, the military and, sometimes, of the convicts, also came to the colony. As sentences expired, emancipated convicts mostly stayed in the colony and added to the numbers of the free. Once in the colony, some of the soldiers saw economic opportunities and decided to stay and settle on the land granted them. But only a few people went to New South Wales for the purpose of settling there before 1820.

By 1820, as the population grew and stories of the fortunes that had been made there started to filter back to Britain, free settlers began to emigrate but they were still vastly outnumbered. Free emigration to the colony became more significant in the 1830s but the greatly increased number of unfree settlers transported in that decade more than matched this increase. In the 1830s, Britain transported 34,000 convicts to a colony that numbered 46,000 people at the beginning of the decade and 129,000 at the end.35

People in the colony divided into three groups. For one of them the Aborigines - the white invasion brought revolutionary change. The Aboriginal inhabitants occupied an ambiguous position in the new white polity. Colonisation proceeded on a legal myth: that New South Wales was terra nullius, a land that no one owned, either because no one lived there or those who did were uncivilised. The governors were instructed to conciliate and protect the Aboriginal natives. But that did not extend to recognition of their right to the land they lived in. On the one hand, the Aborigines were entitled to the protections of the legal system; on the other, because they did not believe in God, they could not take the oath and give evidence in court, thus rendering a fairly marginal protection even less effective. The truth of it is that for the first fifty years the colonial legal system had trouble deciding whether the Aborigines should be treated as subjects of the Crown or foreign enemies who could be hunted down in reprisal raids and shot. The New South Wales Solicitor-General in the 1820s, Saxe-Bannister, proposed a truly legalistic solution to this problem. Governor Darling should halt the military raiding parties in the Hunter Valley until martial law could be declared. Then he, Saxe-Bannister would lead the troops!39 As late as 1836, counsel for an Aboriginal defendant - charged with the murder of another Aborigine - argued that Aborigines did not come under the jurisdiction of the white laws and that New South Wales was not a settled colony. The judge rejected the submission but, significantly, it had taken forty-eight years to determine the issue authoritatively-40 For the white settlers, the Aborigines occupied a status appropriate to the English legal designation of the colony, terra nullius, a no-man's land. While the governors were instructed to conciliate and protect them, the Aborigines were mentally and often geographically peripheral to white purposes for the colony. The one thing that was clear about their position was that the whites wanted their land. When they [p18] resisted they were met with force. While the rule of law proved an effective instrument for groups and individuals within white society, for the Aborigines the protections it promised came to little. More than this, the law played a major ideological role in the expropriation of the original owners.41

Two major political groups emerged from the ranks of the colonisers: Exclusives and Emancipists. The main line of cleavage was a criminal conviction. Those who came to the colony free, especially the wealthy ones, distinguished themselves sharply as I respectable'. The nucleus of this group was formed by John Macarthur and former officers from the New South Wales Corps. Its numbers were swelled by the arrival of new wealthy free settlers, officers of the military garrisons sent out to the colony and colonial officials. Variously referred to as the Exclusives, the Settlers, the Emigrants and the Pure Merinos, the unifying feature of this group was its determination to exclude those with the convict taint from positions of status and power. This taint extended to convicts, emancipists and their children.42 The ranks were not rock solid. Henry Kable, for example, allied himself with Macarthur in the Rum Rebellion. As wealthy traders, they both had strong economic reasons to dispose of Governor Bligh. Two of Henry and Susannah's daughters married men from the Exclusive group. The great wealth of some emancipists could confuse social boundaries, especially if business called. Opposition to Whig and radical views also provided common ground. Many commentators, however, testified to the entrenched nature of the factions, and the fervour with which they practised their opposition. As free settlers came in larger numbers in the 1830s, and with the end of transportation, the old groupings began to fall apart and be replaced by more traditional factors, such as wealth. Post-transportation, the Emancipist leader Wentworth found he had more in common with other wealthy landowners; the Exclusive leader, James Macarthur no longer feared an Emancipist ascendancy.43

Aside from the free settlers who had suffered at the hands of the Exclusives, the Emancipists had some powerful sympathisers: governors like Macquarie and Bourke, some government officials and those of a liberal, Whig or radical viewpoint, like the wealthy knight, Sir John Jamison and E.S. Hall, the editor of the third newspaper, the Monitor. The Emancipists campaigned vehemently through the 1820s and 1830s in the colony and in England to secure their share of political power in the colony. As the Emancipist group grew in numbers and wealth, and the prospect of a new constitution drew nearer, conflict between the Emancipists and the Exclusives sharpened. Emancipists sought equality in all spheres, especially legal and political equality. Their opponents, the Exclusives, tried to impose an hereditary, inferior status.

But these concerns were not ridiculous. They were intimately connected to the question of who would exercise power in the colony, who would have access to official positions of status such as the magistracy, the jury and, eventually, the legislature. Political power was an open question in New South Wales. Would landed wealth be the sole criterion of political competence, or would the convict taint be an added bar to participation? The two factions, Exclusives and Emancipists, had dramatically opposed answers to that question. As various governors found, depending on which faction they favoured, both groups could fiercely and effectively contest the seemingly autocratic powers of the governor, even without the traditional instrument of a colonial legislature. The Exclusives campaigned against the pro-emancipist Governor Macquarie and were eventually able to have him recalled. The Emancipists kept up an incessant barrage against Governor Darling whose sympathies lay with the Exclusives.

By 1819, the first significant expressions of desire for political autonomy began to be aired. That year the man who would become the Emancipists' most articulate spokesman, W.C. Wentworth, published his account of conditions in New South Wales. He nominated two principal political objectives: a legislative assembly and trial by jury.46 In that year too, as detailed in chapter 7, trial by jury took pride of place in the first ever Emancipist petition to their monarch. It continued to he one, if not the most, important political issue in the colony for the remainder of the transportation period.

The petition of 1819 marked the emergence of the Emancipists as recognizable group in the public life of the colony and ushered in an age where politics in general took on a more explicit and recognizable form. The enquiries of Commissioner Bigge from 1818 on presaged changes in the colony's governance and the interested parties started jockeying for position. Newspapers entered the fray. The Australian - edited by the Emancipist leaders Wentworth and Wardell commenced publication in 1824 and ran a pro-Emancipist, 'loyal opposition' editorial line. The Australian competed with the established, pro-governrnent Sydney Gazette, which had started life as the official organ of the government, a heritage played on by the Australian. The third newspaper, the Monitor, took a radical viewpoint. The newspapers added a very important dimension to [21] politics in the colony. Not only did they amplify the political activity taking place in other forums - including the courts where Wentworth and Wardell carried many of the political contests - but they constituted an important political forum in their own right. More newspapers, more petitions about various issues, public meetings, lobbying in London and the appointment of parliamentary representatives in England marked a new phase in the political life of the colony as the prospects for devolution of some sort of political power increased.

Theoretically, the early governors of New South Wales were autocrats. But in practice, the absence of the usual political forums squeezed political action into different shapes and patterns. C)Opposition found its forms. The earliest opposition came from the ranks of the garrisons sent to guard the colony, especially the New South Wales Corps. And who did they oppose? The colony's governors. The marines told the governor that they would only obey his lawful orders.47 Whether they would perform police functions, whether they would serve on the civilian courts, and whether they were subject to civil laws and the jurisdiction of the colony's civil courts, all became matters of hot contention in the first decade of settlement.48 By the end of the second decade, the New South Wales Corps (alias the Rum Corps) - aided and abetted by John Macarthur, its former paymaster, and other commercial interests - concluded a long period of peaceful opposition in the courts and elsewhere by armed rebellion against Governor Bligh, who had stood in the way of their commercial advantage. Significantly for this story, the coup took place just as Bligh seemed to have finally outmanoeuvred Macarthur in the courts.49

The most striking feature about politics in the colony's early period is the extent to which politics took a legal form. The courts served as a de facto parliament. No one has seen this more clearly than H.V. Evatt in his account of the years leading up to the Rum Rebellion in 1808:

The courts provided an invaluable, strategic and legitimate means of political expression in the colony. They provided a public forum both for opposition to the governor's policy, and for the governor to have his authority underlined. They provided a State-backed means of harassing opponents and, for convicts and emancipists - people like the Kables - a site from which to establish the bench-marks of the new hierarchy. But Evatt's insight must be extended temporally and conceptually. The heightened political importance of the legal system continued long after the Rum Rebellion: indeed, it continued so long as the colony lacked its own elected legislative bodies. This is not to subscribe to a view of courts as apolitical in New South Wales post-1840. The stress on the courts, however, in the pre-1840 period arose because of the peculiar political form given to New South Wales by its colonial author.

Second, Evatt's point about the importance of courts states the issue in too narrow and cryptic a way. The courts form one element of an ideological and institutional complex encapsulated in the phrase, the rule of law. Wittingly or not, whoever allowed it or however it came about, that first civil suit in the colony brought by the Kables, two convicts, signalled the establishment of the rule of law in the penal colony and imported a configuration of power that proved, to be a most important source, and the most important medium of change in the transportation period.

This is a history of the transportation, not of convicts but of ideas and ideals. In particular, it is a history of a special set of ideas referred [p 23] to as the rule of law. England in the late eighteenth century prided itself on a system of political liberty secured by the rule of law. As one historian has put it, '... the law assumed unusual pre-eminence in that century as the central legitimizing ideology, displacing the religious sanctions of previous centuries. It gave way, in its rum, to economic sanctions and the ideology of the free market and of political liberalism in the nineteenth. Turn where you will, the rhetoric of the eighteenth century is saturated with the notion of Law'.51 Maybe we should not be too surprised that settlers in the penal colony of New South Wales continued to draw on that political idiom. But this was not a foregone conclusion. Convicts might have been cynical about the legal system. Irish convicts, Jacobins and those who saw the way to the future in the American model knew the other options. The choice and execution of a political strategy so heavily framed in legality are important parts of this story.

Within fifty years, the new settlers had persuaded England that what it saw as a penal colony should be regarded as a free society, entitled to its own elected political institutions. This was a quite radical transformation. Throughout the period, England continued to transport convicts to New South Wales. In the decade before a partially elected legislature was granted in 1842, more convicts than ever before were transported. At this time too, as we have seen, convicts, emancipists and their offspring made up the majority of the population. In very large measure, the political ideas and language the colonists drew on, both for struggles among themselves and against the metropolitan power, were based on their English legal inheritance. Rather than the universalistic, abstract language of the French and American revolutions, they claimed no more than their rights as free-born Britons, rights guaranteed by the Magna Carta, Habeas Corpus, the Bill of Rights, the Act of Settlement and the great synthesis of that inheritance, Blackstone's Commentaries.

The elite in New South Wales knew this history intimately. Their letters to the colonial newspapers are studded with references to Magna Carta, Habeas Corpus, the Bill of Rights and quotations from Blackstone about their British birthrights.54 The colony's military governors understood it too, although it did not sit easily with their ideas of order and discipline. Two years before the settlement of New South Wales, Governor Mostyn of Minorca had been successfully sued in England for illegal detention of a colonist. Lord Mansfield awarded 6,000 pounds damages against the Governor.55 The case was well known; Governor Macquarie feared a similar fate from disaffected colonists on his return to England. The non-elite in the colony also had a more intimate knowledge of the law than most. While prepared to mimic, mock and break the law, they also used it extensively before magistrates against their masters, in civil litigation.56 Rule of law claims - the right to jury trial and the right to bring law suits - formed the principal subjects of the first two Emancipist petitions to England.

Law became the means of expressing and contesting the differing conceptions of social and economic relations in the colony. When the conflict spilled over to England, the fact that it was couched in the familiar English forms and arguments gave the Emancipists their best chance of successfully asserting their claims for a devolution of political power and for equal status. A home government dependent on the rule of law for its own legitimacy could scarcely be unreceptive to arguments couched in those terms from its colony. Because of the penal nature of the colony, England resisted those arguments for a time, and sometimes failed to see them. But ultimately it yielded.

The history of New South Wales would have been radically different without the courts provided by the colonial power. A far more autocratic system would have prevailed, more akin to the governance of a prison or a military garrison. Other means would have had to have been found to have dealt with the conflicts and problems of status which arose. But this was not necessary. The courts in early New South Wales served as a vehicle through which a very complex [25] scheme of social and political arrangements were hammered out. The Kables' case immediately introduced a change into the inherited legal framework. By. dint of expediency, or serendipity, or oversight, convicts in New South Wales would enjoy the right to hold property and to sue in the colony's courts to protect that property. They would not have been able to do so in England. just how far the peculiar circumstances of the colony would justify further departures from English law proved to be a point of contention and creative ambiguity for many years. This was a decision that judges had to make and it committed considerable political power to their hands.

With the exception of the abortive Castle Hill uprising and the Rum Rebellion, one of the salient features of this story is the choice of political strategy. The American and French revolutions gave political actors in New South Wales recent models for political change. Neither the ideology of universal rights nor the strategy of armed revolution was adopted in New South Wales. The presence of Jacobins, Irish rebels and political leaders who were well-versed in those ideas and strategies meant that the strategies actually adopted were not adopted in ignorance of other possibilities. Indeed, Wentworth was prepared to threaten the possibility of an American solution to English intransigence. However, because of some of the events already outlined, extreme measures did not become necessary.

Instead, the terms of political debate in New South Wales proceeded on very traditional lines. The protagonists relied on their British birthrights and deployed the language of the rule of law to secure them and to forge new social and political order out of the penal colony at Botany Bay.