Decisions of the Superior Courts of New South Wales, 1788-1899
Introduction to Collection
These edited records of legal cases are the first fruit of a project which began in 1996. One of the primary aims of the project is to publish the records of decisions made by the superior courts of New South Wales prior to 1900. Although they are of great historical and legal importance, many of these records are at present buried in manuscript collections and in old newspapers, and are inaccessible to all but the most dedicated researchers. Formal law reporting in New South Wales was quite inadequate for most of the nineteenth century. The first running series of reports began in 1863, under the title the Reports of Cases Argued and Determined in the Supreme Court of New South Wales. They included some retrospective reporting of earlier cases. This series consisted of reports which had originally appeared in theSydney Morning Herald. Castles describes the "real beginning of long term, more effective law reporting of decisions of the Supreme Court of New South Wales" as the New South Wales Law Reports, which began publication only in 1879. Legge'sReportsappeared in the 1890s, purporting to be retrospective to 1825, the year after the beginning of the permanent Supreme Court. However they included very few cases from the early years.
These formal law reports are only a fraction of the total surviving records of the courts' decisions. The Archives Office of New South Wales and, to a lesser extent, the Mitchell Library contain thousands of pages of manuscript legal records. These begin with cases heard by the Court of Civil Jurisdiction and the Court of Criminal Jurisdiction in 1788. There are also manuscript records of the first Court of Appeal, and of the decisions of the first Supreme Court, which commenced in 1814. The Archives Office also contains hundreds of volumes of judges' notebooks written after the establishment of the permanent Supreme Court, which heard its first case in June 1824. The notebooks date from only a few years after 1824. In all, there are millions of handwritten words of legal records.
The best source of many of these legal decisions, and the one which contemporary lawyers relied on, is the law reporting in the old newspapers. Generations of clerks in the Supreme Court office pasted clippings into large books, which still survive in the Supreme Court Library. Many of these newspapers are now available on microfilm. Some of the newspaper reports are more reliable records than others of exactly what was said in court. After theSydney Herald (later called the Sydney Morning Herald) began publication in 1831, it soon became the lawyers' preferred source of law reporting. It employed legally trained reporters, unlike some of its competitors. Before then, the most reliable reports were those of theAustralian, at least when it was edited by two barristers, Wentworth and Wardell. TheAustralian began publication in October 1824, ending the monopoly which the Sydney Gazette and New South Wales Advertiser had enjoyed since 1803. In the mid-1820s, theGazette sometimes confessed to errors in its reporting of legal cases, and had the disturbing habit of mixing its own editorial comment with the reports of proceedings before the courts. This does not mean that the reports in the Gazette, or those in other, lesser known, newspapers such as the Monitor, are uninteresting. They, too, mediated court cases to their readers. None of these newspapers was neutral; they all had their own political and social stances. The Herald became the newspaper of the squatters, and the Australian favoured the emancipists. Although privately owned, the Gazette was semi-official and usually supported the governors. These preferences necessarily influenced their selection of cases to report, and, more subtly, the way in which the cases were reported.
The source of each report in this collection is always noted at the beginning of the cases which are reproduced in this collection. Sometimes the newspapers provided markedly different versions of the same case, and when that happened, the significant differences are noted in the footnotes. As a general guide, the Herald is chosen as the main source in this collection, and before it commenced publication, the Australian. Before October 1824, the Gazette is used. Where possible, the newspaper records are checked against the judges' notebooks. Occasionally the cases include reports from both notebooks and newspapers; judges and journalists sometimes had sharply distinct views of the significance of a case.
This collection of cases, then, is a selection of manuscript and newspaper material. The body of each record consists of as exact a transcript of the original as we have been able to achieve, including reproduction of punctuation, spelling and the use of capitals. We have not attempted to correct even obvious typographical errors, which we note with "[sic]". One result of this policy not to modernise these documents is that we are able to see that what we now consider American conventions, such as "honor" and "2d" for 2nd, were in common use in Sydney 170 years ago. Exact transcription is not always the best method of editing historical material for publication, but it is appropriate for these documents because the differences in style between the nineteenth and late twentieth centuries are not so great as to make the original material difficult to read. If this collection of cases is to be used as an authoritative source of legal judgments, that, too, is a reason for literal transcription. Only in some of the manuscript material did we expand some authors' shortcuts, such as "wd" for would. We have providedsample photographs of newspaper and manuscript material.
After finding and selecting the material, the main difficulty in a project such as this is reading it, even when the original material was typeset. The surviving newspapers are often smudged or torn, and the microfilms blurred. As the typists for this project are discovering, it involves more than simple copy typing. When a letter or word is missing it is noted in square brackets, and when it is unclear, the text is marked [?]. Justice Dowling's notebooks were sometimes sparse in their punctuation. When what appears to be the end of a sentence is not noted by punctuation, we have added three spaces to indicate that. Otherwise, the text is as it is in the manuscript, omitted punctuation and all.
There are many problems in a project such as this, not least of which is working out which day a case was heard. A computer program which prints monthly calendars for the nineteenth century has been invaluable in working out the date of "last Monday". The footnotes also include references to some relevant secondary sources, and sometimes a brief history of the relevant issue, before and after the case. The main function of the footnotes is to supply references to the private and public correspondence of the judges when that throws light on the case. In some cases, the footnotes are as long or even longer than the report of the case, because what went on outside the court was more important than occurred inside. One example of this is the important Aboriginal evidence case, R. v. Fitzpatrick and Colville(1824).
The initial collection began in the middle of 1824, the time of commencement of the permanent Supreme Court. Chief Justice Forbes was the only member of that court at the beginning. If he took notes of his own cases, then they have not survived in the Mitchell Library or the Archives Office. As a result, the beginning of this series is based primarily on the reports of theGazette and, from October 1824, on those of the Australian. Forbes' eventual successor as Chief Justice, James Dowling, arrived as a new judge of the Supreme Court in 1828, before being promoted to the Chief Justiceship in 1837. He left behind a vast collection of judges' notebooks, which include some judgments of his fellow judges as well as his own.
This collection is not intended to be confined to law reporting as it is now understood. Most of the reports of decisions in the newspapers look nothing like modern law reports. They emphasised the evidence given in court, and in the early years at least, few of them recorded the actual words of the judges in delivering judgments. The Gazette, and even the Australian, appear to have had two aims in addition to telling their readers what the court decided: entertainment and advocacy of their own political and social preferences. As a result, there is an overemphasis in the early years of the permanent Supreme Court on criminal actions, especially spectacular murder cases, and an under-reporting of civil cases, particularly debt recovery. Inevitably, that has affected the selection of cases for this collection.
In compiling this collection, there has been no attempt to reproduce every case reported in the newspapers, notebooks and other manuscripts. Very many cases are merely recorded in the newspapers as "Doe was charged with burglary. Guilty", or something equally uninformative. Even many of the longer reports of evidence were not chosen for reproduction here. As explained below, a longer term aim of this project is to publish a database of all surviving superior court records of judgment, whether or not they were included in the edited collection. That will show how many cases have been omitted and assist in gaining access to the original sources of them.
The criteria for selection in the present collection are:
1 All decisions involving more than trivial points of law are included. In particular, all cases concerning the adoption or otherwise of English law are included.
2 Trivial references to the rights of women, convicts and Aborigines. Cases on the latter are particularly useful at a time when native rights are receiving such attention as they are in 1997. The newspapers and manuscript records include many cases concerning Aborigines which have not yet been examined by historians or lawyers.
3 All cases concerning prominent people are included, such as the 1824 prosecutions of Hovell, the explorer, and Billy Blue.
4 At least one of every kind of case is reproduced, even when it does not meet the above criteria.
These criteria will be developed further as the project develops.
The first selection criterion means that this collection will be a reliable source of all cases raising significant questions of law heard before the superior courts, for which records survive.
The aim in compiling and editing this collection is to make it as valuable to general historians as to legal historians and lawyers. As has often been remarked, law reports are the main place in which the words of the illiterate are recorded. They also contain rich details of commercial, social and family life, which is often unavailable elsewhere. Formal law reports are often less useful to historians than newspaper reports of cases.
As stated above, a longer term aim of the project is to supplement this collection of edited cases with a database of all recorded legal decisions of the superior courts. The database is being prepared at the same time as this collection. I have already completed a separate database of the decisions of the New South Wales Court of Civil Jurisdiction between 1810 and 1814. This is now available at the website of State Records N.S.W. These databases should be particularly useful for genealogists, because the thousands of superior court decisions have never before been indexed by names. When using them, or searching this collection of edited cases for names, readers should be aware that names were often spelt differently in different places. In one case, the same name was spelt up to three ways in the one newspaper, and different newspapers often chose different spellings. The convention we have followed is to choose the most common spelling in the selected source of the report, and to provide alternatives in the footnotes when necessary. We have not "corrected" the spelling of names in the reports reproduced in the collection.
In 2008, we placed online many decisions of the courts of unlimited jurisdiction between 1788 and 1824. The next stage of the project will concentrate on cases up to 1863.
The first of these cases was placed online in 1997.
So far as we know, this is the first project of its kind to be published electronically. Since this project began, similar projects have commenced publishing the records of other courts:Tasmania, the Privy Council, New Zealand and the Old Bailey in London.
The Selden Society in the United Kingdom has provided a century of splendid service to British legal history, and James Oldham's The Mansfield Manuscripts is a model of editing and scholarship. In both cases, records of legal proceedings were published in book form rather than on the internet. Internet publishing makes related but subtly different demands. There is no sense of linearity and can be no assumption that a reader will have referred to one case before another.
This, then, is something of a pioneering effort. Readers' comments are very welcome. I am particularly interested in comments on the criteria for selection of cases, and on my chosen editorial policies. Anyone who wishes to comment on either of these issues, or on the project generally, can do so at Bruce.Kercher@law.mq.edu.au.
I am keen to encourage a group of supporters of this project, from whom I can seek advice. The assistance of both historians and lawyers would be welcome.
The State Records of New South Wales very generously gave permission to reproduce a selection of its invaluable legal materials.
Most definitions of legal terms are taken from the invaluable Butterworths Australian Legal Dictionary.
I am also grateful for the careful and skilled work of the project's research assistants, Joshua Barr, Leonie Wasson, Melinda Winning, Ashley Hogan, Jodie Young, Brent Clark, Marie Mittiga, Rachel Wolfenden, Julia Sorbara, Will Tuckey, Amanda Beattie, and especially Brent Salter, and of its careful typists, Cathy McMahon, Richelle Tickle and Maggie Liston. I could not have asked for a better group of people.
Much of this material is out of copyright. This introduction, the commentary, headings and footnotes, however, are copyright. Readers are free to use this material for non-commercial purposes, so long as the source is acknowledged. The copyright material was written by Professor Bruce Kercher; he is also responsible for the selection of documents for reproduction and for the creation of editorial policies.
 On the decisions of this court, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996.
 See A.C. Castles, Annotated Bibliography of Printed Materials on Australian Law 1788-1900, Law Book Co., Sydney, 1994, 39, 200, 336.
 The issues are examined by Gordon Wood, "Historians and Documentary Editing" (1981) 67 Journal of American History 871.
 R. v. Worroll/Worrell/Worrel, Australian, 31 January, 3 February and 7 February 1827.