‘Neither necessary nor convenient’: The Rule of Law at the Frontiers
English colonisation purported to derive its legitimacy from the innate rectitude of its civilising mission. In a large part, this hinged upon the capacity of colonisation to imprint the rule of law on barbaric territories, with its emphasis on entrenching fairness in judicial determination, curtailment of executive power and equality before the law.1
In practice, the norms that had been dearly won over centuries of English resistance to prerogative rule became variously suspended, denied and diluted in early colonial administrations. This essay will compare the emergence of the rule of law in England with the experiences of the colonies of New South Wales and Papua. In examining the issues surrounding judicial independence, attempts to diminish the concentration of executive power, and deficiencies in establishing equal access to the law, this essay will identify a fundamental inconsistency between the acceptable standards of English governance and their colonial substitutes.
It will be concluded that this inconsistency went beyond the limitations posed by distance, time lags and the insubstantial legal infrastructure available; rather, it stemmed from a long-standing colonial mentality of deference to administrative necessity in the face of constant perceptions of existential threat.
Judicial independence is a critical component of the rule of law, ensuring that the exercise of executive and legislative power is subject to checks and balances.2 Whilst dating back to the declaration of Magna Carta in 1215 that no person ‘shall be taken or imprisoned… except by the lawful judgement of his peers and the law of the land’,3 it was not until the Act of Settlement in 1701 that judicial independence was formally entrenched in English law.4
Prior to 1701, English judges served at the pleasure of the monarch. Attempts by judges to curtail the arbitrary exercise of royal power led to dramatic events such as the removal of Chief Justice Coke by James I, and the dismissal of twelve judges in four years by James II.5 After five hundred years of protests, imprisonments, two civil wars and the deposition of Charles I, the rule of law eventually evolved to a point wherein the separation of powers was sufficiently entrenched so as to pass the Act of Settlement.6
Uprooted from this context, judicial independence suffered a very different fate in colonial administrations. Where the rule of law had built up, crustacean-like, over centuries of struggle, the subjugation of indigenous peoples and their pre-existing legal systems in the colonies of New South Wales and Papua meant that the rule of law was essentially being transplanted, rapidly and inexpertly, onto a blank slate.7
Divorced from the institutional and cultural apparatus out of which the freedoms had been won, the value of these norms became diluted and lost. Tenure in the early period of colonial judiciaries was highly unstable, as it was broadly understood that governors could dismiss judges from their posts at will.8 This discretion drew upon a basic assumption set out in Blackstone’s Commentaries that colonists could only ‘carry with them… so much of the English law, as is applicable to their own situation and the condition of an infant colony’.9
To this end, judicial independence was regarded as falling into a category of laws deemed ‘neither necessary nor convenient’ for the colonies.10 Consequently, more than a century after the Act of Settlement had formally legislated against such wide executive discretion, the fate of judges who fell afoul of the King in the 17th century would also befall Ellis Bent, the first non-military officer to be appointed to the position of Deputy Judge Advocate in New South Wales in 1810.11
Whilst initially cordial, Bent’s relationship with Governor Macquarie deteriorated over fundamental disagreements between Macquarie’s insistence that Bent should be loyal to the executive, and Bent’s adherence to the principles of judicial independence he had learned as a barrister in England. 12 Similar struggles ensued between Macquarie and Ellis’ brother, Jeffrey Hart Bent, when the latter was appointed as the first Supreme Court Judge. The Bents’ complaints to the Colonial Office were routinely dismissed as ‘spilt milk’, reflecting a prevailing view that judicial independence was necessarily limited whilst the colony remained in a raw state.13
After Macquarie threatened to resign if the two judges were not removed, both Bents were eventually dismissed by Lord Bathurst, then Secretary of State for War and the Colonies, sending out a clear message as to the status of the rule of law.14 The conflict between Chief Justice Forbes and Governor Darling was to repeat this pattern, with Forbes writing indignantly to the Under-Secretary of State for the Colonies in 1827 that the Governor’s attempts to control the judiciary were ‘inconsistent with the nature of a Supreme Court’, which he argued must submit ‘… to no power but the supremacy of law’.15
Tenure proved similarly unstable for colonial judges in Papua.16 The first Chief Justice, Francis Winter, was dismissed by the governor following a string of trials in which he took a dim view of Englishmen accused of committing atrocities against Papuans. 17 Even into the early 20th century, under Hubert Murray’s 32-year governorship there continued to be a high rate of turnover among provincial magistrates, with secure tenure afforded only to the judges who could be trusted to preserve European impunity above the rule of law, and who could be relied upon to view local atrocities as necessary discipline.18
Consequently, although by the 19th century judicial independence had become virtually unassailable in the context of the relationship between the executive and the judiciary in England, the extent to which any judicial independence could be said to exist in the fledgling legal systems of New South Wales and Papua was doubtful.
Rule by Executive Power
In English history, the political victories towards diminishing executive power were major milestones for the rule of law. Where other nations might be subject to the ‘sultan’s caprice’, under the protections afforded by Magna Carta 1215, the Petition of Right 1628, the Habeas Corpus Act 1679 and the Bill of Rights 1689, the English citizenry could take comfort in the assurance that ‘king and magistrates were beneath the law, which was the even-handed guardian of every Englishman’s life, liberties, and property’. 19
In the context of the colonies, however, these hard-fought freedoms fell victim to arguments of administrative necessity and pragmatism.20 Routine departures from the norms on which English jurists prided themselves were justified on the basis that the rule of law had to be suspended in order to entrench rule by law in ‘lawless times’.21
Whilst English law may have nominally formed part of the ‘birthright’ of all English subjects, the uncertainties created by the blurred distinctions between paramount and non-paramount statute meant that it was not until the enactment of the Australian Courts Act 1828 (UK) that the exact content of applicable law in New South Wales was in any degree clarified.22
Consequently, up until 1828 in New South Wales, and well into the 20th century in the case of Papua, the confusion created by the doctrine of reception, and the underlying assumption that the success of the colony depended upon preserving wide powers for the executive, meant that early governance was almost exclusively bound up in the royal prerogative.23 Defined by Locke as ‘power to act according to discretion, for the publick [sic] good, without the prescription of the law and sometimes against it’,24 the royal prerogative- coupled with the pervading frameworks of crisis and emergency that accompanied early colonial life- enabled governors to operate with ‘elasticity’ towards the rule of law.25
This essentially translated into wide-reaching suspension of freedoms whenever a governor saw fit to declare martial law, which was not infrequent during 19th century occupation of the Australasian colonies.26 The possibility of the invocation of martial law had a chilling effect on rule of law in the colonies.27 From the outset it eroded public confidence in the justice system, and frequently exacerbated whatever tensions had prompted the declaration of martial law in the first place, as witnessed in the aftermath of the 1808 Rum Rebellion.28
Whilst it was widely appreciated that the running of a prison state or subduing restive indigenous populations necessitated strong governance, the memory of freedoms in England remained ‘pervasive’ in the colonies. 29 Discomfort towards the double standard for citizens residing in England vis-à-vis the colonisers began to emerge in the London papers, particularly in response to Governor Eyre’s proclamation of martial law in Jamaica after the 1865 Morant Bay rebellion.30
The public outcry surrounding Eyre’s despotic behaviour highlighted for the British public that the rule of law had been permitted to acquire a fundamental weakness in its journeys beyond the English Channel. In questioning the wisdom of investing enormous executive power in colonial governors, the English jurist James Fitzjames Stephens demanded to know ‘whether law was to be paramount within the British Empire, or whether officers could set aside the law and establish a military despotism with power of life and death’.31
The answer to that question, of course, was that such despotism was a necessity that ultimately formed part of the benevolence of the Empire’s ‘civilising mission’.32 Accompanied by an imperial mentality of hyper vigilance of crisis, and a constant need to entrench stability through strong governance, the argument of administrative necessity became one of the key factors inhibiting the emergence of the rule of law.
If the rule of law can be regarded as ‘the very antithesis of arbitrary and unbridled government power’, governance in New South Wales and Papua made a mockery of it.33 Denials of rights and freedoms that had driven England into civil war- as foreshadowed by Cromwell’s ominous warning that if the King did not ‘rule by red gowns, he resolved to govern by red coats’- were meekly accepted as the price of empire.34 In so doing, the readiness with which citizens made allowances for colonial executive rule, well into the 19th century, constitutes a critical difference in the nature of the struggle to entrench the rule of law in England, and the paltry substitutes that were accepted as the colonial norm.
Unequal Access to the Rule of Law
The roots of fundamental inequality in accessing the rule of law in the colonies lie in Blackstone’s pronouncement that where ‘an uninhabited country be discovered and planted by English subjects, all the English laws then in being… are the birthright of every subject’.35
On this basis, whatever rights managed to survive the ‘necessary nor convenient’ test- as administered by the whims of the governor- were primarily available to English subjects within the colonies.36 Whereas England’s relative ethnic homogeneity meant that, subject to class aberrations and anti-Irish prejudice, the rule of law could more or less be regarded as accessible to all,37 the indigenous populations of the colonies had no recourse to legal remedy.38
Nowhere was this more apparent than in the failure of colonial officials to punish Methodist minister George Brown in leading a massacre of some one hundred Papuans in 1878. 39 Despite public outcry over Brown’s brutal acts, Brown’s insistence that he was responsible for no more than invoking the ‘natural right’ of ‘Christian Englishmen’ over ‘unbounded savages’ allowed him to escape prosecution.40
This incident forms part of a long and bloody pattern for colonial rule in Papua, a system in which the territory was pacified by violence, reprisal and frequent extra- judicial killings as a means to enforce the ‘pax Australiana’.41 In 1888 one coloniser led a bloody reprisal for an attack on a trading schooner in Milne Bay, conducting summary executions in direct defiance of the orders of Chief Justice Winter.42
The first administrator of Papua, Sir William MacGregor, was notorious for his unrestrained use of force in subjugating the colony.43 When ‘sentimental’ proponents of the rule of law criticised his mass executions, paramilitary exploratory squads and tendency to use excessive violence, his response was that such methods were pre- emptively warranted by the civilisation mission itself.44
Use of force quickly became the lifeblood of colonial rule.45 Whilst undocumented killings were rife, what little is known of the frontier wars in accounts of the Appin, Bathurst, Waterloo Creek, Myall Creek, Rufus River, Evans Head and Nyngan massacres in New South Wales,46 and the Tari, Malaita, Korna, Finintugu, Kainantu, and Goaribari massacres in Papua,47 points toward a scale of violence that would be considered intolerable in 19th century England.
The legitimacy of the colonisation project in the midst of such brutality rested upon the coloniser’s ability to maintain a careful legal myopia in processing the discrepancies ‘between domestic liberty and imperial authority abroad’.48 The chief means by which this compartmentalisation was carried out rested upon the fundamental assumption that persons of colour were not entitled to personhood under the law.49
As Fitzpatrick notes, ‘[t]here were no rights for the savages in this scheme, apart from the “rights” to have things done to them so as to bring them within the ambit of civilisation’.50 For victims of indigenous massacres, routine frontier violence and mass land seizures in the colonies, the rule of law was meaningless.
This fundamental inequity comprises a key distinction between the development of the rule of law in England and the state of affairs in the colonies. Even as the brutality of early convict settlement began to be reigned in, political victories such as winning trial by jury in the Jurors and Juries Consolidation Act 1847 (NSW)51 or Papua’s reception of the full gambit of Australian law in the Papua Act 190652 could hold none of the holistic national significance of the Habeas Corpus Act 1679 or the Bill of Rights 1689, when their operation failed to reach vast sections of the population by reason of race.
Consequently, after having their traditional legal systems decimated in the name of the English legal order, and finding themselves stripped of legal personality in the process, in 2015 we can hardly be surprised that the rule of law remains meaningless to many indigenous persons in modern New South Wales and Papua New Guinea.
The emergence of the rule of law in England was a long and bitter process. Wars were fought and blood was shed in its name; and, subject to sporadic oscillations in the balance of power between the three branches of government, once England had won a freedom, she became loath to relinquish it.
The colonial experience of the rule of law, however, seemingly plunged the colonisers into collective amnesia. The argument of administrative necessity, in conjunction with an imperial mentality of perpetual crisis, soon generated a stark disparity between rights under the rule of law as it stood in England, and those which were deemed sufficiently necessary and convenient for colonial purposes. With colonisation having granted a fatal legitimacy to the exercise of anachronistic levels of executive power, it was to take several decades in New South Wales before the rule of law could be considered truly entrenched. Meanwhile, in the case of Papua New Guinea, the struggle is ongoing.
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