This site is devoted to uncovering the hidden case law of the British empire's colonial courts. The overall aim is to encourage the development of a comparative legal history of the British empire. The more we study the case law of the empire's courts, the more we see that it was characterised by a pluralist web of influence rather than one way traffic from London downwards. The judges often served in more than one colony, and took their previous experience with them when they travelled to a new place. The local people in each of the colonies often developed their own approaches to the law, which they sometimes managed to have elevated into formal case law. According to reception of law principles, the empire's law ought to have been fundamentally English. It was usually that, but not always. The term imperial might better describe the empire's law, except that it carries implications of strict hierarchical authority which was often lacking in practice. At least until the middle of the nineteenth century, the empire's restrictions were sometimes more a matter of form than substance.
Featured extract, September 2015 Tsai Ah-Kao and Yin Yin Chuan (Mixed Court, Shanghai, 1885),
With the end of the British legal empire came a renewal of diversity in the judge-made law of the former colonies. That allows rich comparisons to be made across the world's courts. An inspiring illustration of this is the Federal Court of Australia's website of admiralty case law.
Some of the Macquarie University colonial court websites (New South Wales, Tasmania and the Privy Councill's appeals from the Australian colonies) are fully developed, being based on a mixture of newspaper and manuscript accounts of the court records. The New South Wales site has been operating for well over 10 years now and is the best developed. It includes an Introduction which explains the methodology used on all Macquarie sites.
Other Macquarie sites, those from other Australian colonies and from colonies around the world, are presently less developed. The aim of these sites is to see what can be uncovered simply from the newspaper records which have begun appearing on the web in full text form. For the most part, these sites do not use manuscript records. Fully developed sites such as that of New South Wales are extremely expensive. These other sites are being developed more or less as a hobby, without financial support. Austlii's Australasian Colonial Legal History Library aims to provide a comprehensive collection of Australian colonial case law.
The North American and Caribbean newspaper reports on cases are often short, but the Halifax Gazette stands out among them. Its reports are very short, but they cover many colonies, supplying details about eighteenth century punishment practices from numerous colonies. It offered occasional trial reports too, including one from Antigua about the piracy of a slavery vessel. The Halifax Gazette cases from the 1750s onwards are very much worth reading. Among its non-court reports of shipwrecks, tragic accidents and clashes with indigenous people, we read of the courts' remarkable sentences. The usual penalties of capital punishment, flogging, the pillory and imprisonment were joined by more physical and humiliating penalties. A prisoner guilty of counterfeiting was sentenced to be branded on both cheeks with a C and another to have his ear cut off, two duellers were sentenced to sitting on the gallows for an hour with ropes around their necks, and a prostitute was required to sit on a stool for an hour displaying a sign with the words of her crime displayed in capital letters. No doubt there are other penalties to discover in later issues of this fascinating newspaper.
These less developed sites are based on online collections of old newspapers. These include the digital newspapers site of National Library of Australia. There is also a great Canadian site called Paper of Record, which goes well beyond Canadian papers. (It is the source of the Halifax Gazette.) After being offline for some time, Paper of Record is now available again, but at a monthly fee.
There are other collections of newspapers online. I have not yet explored much of Digital Library of the Caribbean, but it appears to be based mainly on recent rather than historical newspapers.
Another site of great potential is the British newspapers site. Access to the British site is limited, though it is available through some libraries outside the U.K. (such as the State Library of N.S.W.). It is a marvellous collection of digitised newspapers, many of which reproduced articles from colonial newspapers. A quick scan of the whole database using the name of a colony followed by the word court throws up a long list of articles to examine. There is a great deal of work ahead on these sites alone. Among the interesting cases from here are those of the slave court in Jamaica, which tried slaves for criminal offences.
Peter Bullock, a great supporter of these sites, is supplying excellent case reports from the peripheries of the British legal world. He is selecting, editing and transcribing case law from British courts in places as diverse as Egypt, China and Siam. These cases are accessible through the list on the left of this page. They concern the personal rather than the territorial jurisdiction of the British Crown. Peter has a particular interest in coronial inquests, which are collected under the heading of Coronial Inquests.
As explained below, New Zealand is among the leaders in newspaper digitisation, which is being used by a team of New Zealand legal historians.
There are also two important historical case law sites which are not connected with this Macquarie University based project.
The first is the brilliant New Zealand Lost Cases site. It is well funded and will become a model for work in other jurisdictions. It is based on that country's excellent National Library newspaper digitisation.
The second non-Macquarie University site is Old Bailey Online. Technically superb, it is a digital collection of the records of the Old Bailey court in London. In many cases it is possible to trace individual convicts from New South Wales or Tasmania back to their Old Bailey trials. Recidivism was occasional rather than universal.
All of these sites are designed to supplement existing law reports. Colonial law reports sometimes go back to the eighteenth century, but in other jurisdictions they are much less comprehensive. In any event, the cases reported in this collection of sites are not always based on the formal development of legal reasoning evident in traditional law reports. Case law had a complex relationship with social developments: it expressed its society, influenced it and was influenced by it. That broader approach to legal history underlies all of these web sites.
Bruce Kercher, January 2009, revised December 2014