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Decisions of the Nineteenth Century Tasmanian Superior Courts

Introduction

This site is a joint project of Stefan Petrow of the University of Tasmania and Bruce Kercher of Macquarie University.  We commenced it because of our concern that so little of Tasmania's nineteenth century case law is accessible.  The site is parallel to the New South Wales case law project.  Our aim is to encourage comparative studies of the role of law in the two jurisdictions.

The site begins with the first decisions of the Supreme Court of Van Diemen's Land, commencing in 1824.  Our sources are newspaper reports and archival documents.  Our aim is not to reproduce every existing record of every case decided by the court, but to provide a comprehensive collection covering the range of cases taken before the court.  Our criteria for selection 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   Non-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 at present. 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.

4   At least one of every kind of case is reproduced, even when it does not meet the above criteria.

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.

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 colonial Australia 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. We may decide to alter our policy later in this project if we need to reproduce notebook material which contains authors' shortcuts such as "wd" for would.

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 [?].

Readers' comments are very welcome. We are particularly interested in comments on the criteria for selection of cases, and on our chosen editorial policies. Anyone who wishes to comment on either of these issues, or on the project generally, may contact Bruce Kercher or Stefan Petrow.

Acknowledgments

This project would not have been possible without the support of the research office of Macquarie University. Most definitions of legal terms are taken from the invaluable Butterworths Australian Legal Dictionary.  We offer our sincere thanks to this project's patient assistants, Vicki Orshansky, Kate Ramsay, Eleana Sly, Amanda Beattie, Maggie Liston and Ed Martin.

Copyright notice 

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 and Dr Stefan Petrow.  They are also responsible for the selection of documents for reproduction and for the creation of editorial policies.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania