Legal History for Australia PDF (2021)

McKibbin, Sarah , Libby Connors , and Marcus Harmes. A Legal History for Australia. Oxford: Hart Publishing, 2021. Bloomsbury Collections. Web. 23 Oct. 2024. <http://dx.doi.org/10.5040/9781509939602>. Accessed from: www.bloomsburycollections.com Accessed on: Thu Oct 24 2024 01:19:15 Australian Eastern Daylight Time Copyright © Sarah McKibbin. Libby Connors. Marcus Harmes. All rights reserved. Further reproduction or distribution is prohibited without prior permission in writing from the publishers. 4 Responsible Government, Law and Justice in Eighteenth-Century England Introduction Many modern constitutional arrangements had their origins in the aftermath of the Glorious Revolution. During the eighteenth century, a shift in political power from the royal court to Parliament occurred as the office of Prime Minister and cabinet government were established. The monarch’s power gradually declined. By the 1760s, the dominance of the Whigs (or, broadly, liberals) in ministerial office had also declined after decades of dominance under the Hanoverian monarchs. Under the guidance of Lord Mansfield, modern commercial law evolved. This chapter pursues these constitutional and legal developments, but also moves attention to the darker aspects of the period’s legal history, including the theatre of public executions and autopsies, and trial procedures that to modern eyes seem startlingly unfair. From time to time, the chapter will break its chronology back to the seventeenth century, including a reappearance by Sir Edward Coke, to explore the administration of justice before the Glorious Revolution, to provide context for the administration of justice in the eighteenth century. Some of this chapter sits in the domain of criminal law, although other sections continue the focus on constitutional law in chapter three. 94 Government, Law, Justice: 18th Century England Learning Resources The content in this chapter is supported by: Chapter Historical Constitutional Pause for Glossary Overview Cameos Detours Thought Lord Harwicke Judicial on Equity, Independence Slavery and Separation of Religion and the Marriage Powers the Head of Act 1753 State The ‘Golden The chapter Thread of Latin, Law begins with an Criminal Law’ French and Lord overview Medieval Mansfield explaining its The Legal English terms intentions and History of Rape are defined focus The Treason Trial of Modern Sir Slavery Sir Ambrose William Rookwood and Blackstone the Vulnerable Defendant Chapter Overview Place Time Period Dates Kingdom of England Stuart and 17th–18th centuries American and Hanoverian dynasties Caribbean colonies Key Figures Key Institutions Key Terms William III Bill of Rights Responsible William Blackstone Act of Union government Lord Mansfield Marriage Act Separation of powers Lord Hardwicke Cabinet and Junto High treason and James Somerset Trial Act petty treason Thomas Lewis The Old Bailey Presumption of innocence Tyburn Whigs and Tories Reception of English law Slavery The Act of Settlement 1701 95 Learning Outcomes At the end of this chapter, readers should understand: The importance of the Habeas Corpus Act 1679 and the Bill of Rights 1689, including their application in modern Australia. The separation of powers, responsible government and judicial tenure. The origins of defence mechanisms, lawyers’ participation in trials, and the presumption of innocence. The legal issues involved in the abolition of slavery in the British Empire. The Act of Settlement 1701 The political and legal developments of the eighteenth century emerge from the religious tensions of the seventeenth, including the overthrow of the Catholic James II. The Act of Settlement 1701 (as originally passed) secured the Protestant succession to the throne by excluding Roman Catholics, and those who marry Roman Catholics, from the line of succes- sion. As will be discussed shortly, the Succession to the Crown Act 2013 (UK) repealed the provisions that disabled those who might be in line to the throne from marrying Catholics. The Protestant Succession Mary II, daughter of James II and wife of William III, died in 1694 without any surviving children. After William III, the closest Protestant heir to the throne was William Duke of Gloucester, the son of William’s sister-in-law Princess Anne – James II’s daughter and Mary’s sister. The Duke of Gloucester was Anne’s only surviving child; however, he died in 1700 from multiple illnesses. After 18 pregnancies but no surviving children, Princess Anne was not expected to – nor did she – have another child.1 With it unlikely that William III would marry again after Mary II’s death in 1694, Parliament set about ensuring the Protestant succession to the throne to permanently exclude James II and his son. They did this in the Act of Settlement 1701. Meanwhile the Catholic Stuarts deposed in 1688 had not vanished. James II, his son James Francis Edward Stuart (later dubbed the ‘Old Pretender’) and his grandson Charles Edward Stuart (known to history as ‘Bonnie Prince Charlie’) moved to the Continent and maintained their own court at St Germain, maintaining their claim on the throne and their Catholic faith. As such, Mary II and Anne’s two younger and healthy half-siblings, James Francis Edward and Louisa Maria Teresa (children of the expelled James II and VII and Mary of Modena), were the next nearest competitors to the throne. Neither were a viable option because of their Catholicism. Parliament determined that the throne would pass 1 Elizabeth Lane Furdell, The Royal Doctors, 1485–1714: Medical Personnel at the Tudor and Stuart Courts (Rochester, New York, University of Rochester Press, 2001) 231. 96 Government, Law, Justice: 18th Century England to the Protestant House of Hanover in northern Germany, who were the closest living Protestant relatives of the House of Stuart. The English Government had to go back three generations and down a female line (James I’s daughter Elizabeth who had married into this line) to find a suitable Protestant heir. The chosen heir presumptive – as only male children are heirs apparent – to the crowns of England, Wales and Scotland was Sophia, the Electress of Hanover. She was the Protestant granddaughter of James VI and I. Sophia died almost two months before Queen Anne’s death in August 1714. Her son, Princeps Elector (LaƟn): the members of the electoral Georg Ludwig of Hanover, the new Elector (or Princeps college of the Holy Roman Elector), inherited the throne as King George I of Great Empire Britain and Ireland. Pause for Thought Religion and the Head of State The Australian head of state, the Queen (or King) of Australia, must be a member of the Church of England, even though Australia is a multicultural and pluralist society. While the Succession to the Crown Act 2013 (UK) has removed other religious and gender-based limitations, this one remains. During the debate on the second reading of Australia’s Succession to the Crown Bill, the then opposition leader Bill Shorten commented on the ‘the anachronistic quality of this debate’; that included questions such as ‘whether Australia’s head of state can be the eldest princess, or whether they can be a Catholic, or indeed whether their marriage accords with an act passed in Westminster 243 years ago’.2 Questions to Consider Is there an anachronism in these questions and these constitutional circumstances? Where might the anachronism lie? ConsƟtuƟonal Detour Judicial Independence The Act of Settlement fixed judicial salaries and based the holding of judicial office on ‘good behaviour’, instead of being at the monarch’s ‘pleasure’. By authorising judicial sala- ries, the Act of Settlement was a move closer to judicial independence. Judges no longer risked losing office or having their salary reduced for delivering a decision unfavourable to the Crown. In 1701, England had no inferior courts (county courts or circuit judges). 2 Commonwealth, Parliamentary Debates, House of Representatives, 17 March 2015 (Bill Shorten, Leader of the Opposition) 2552. The Acts of Union 1707 97 Before the Act of Settlement, a monarch could dismiss a judge at will. It was the King’s will that determined appointments and their termination. Edward IV dismissed Sir John Markham CJKB after he directed a jury in a 1468 treason trial contrary to Edward’s wishes. In the last 11 years of Charles II’s reign, he dismissed 11 judges. Over four years, James II dismissed 12 judges. By the Act of Settlement, however, the monarch is only able to dismiss a superior court judge for misbehaviour after petitions from both Houses of Parliament. In the United Kingdom, this has only occurred once: Sir Jonah Barrington, an Irish judge, was removed in 1830 for misappropriating litigants’ money. The Acts of Union 1707 Before the Acts of Union 1707, England and Scotland were independent countries with separate Parliaments and privy councils but a shared monarch. James VI of Scotland had merely united the English and Scottish thrones on his accession to the English throne in 1603 in his person. His attempts to achieve a closer union between the countries were in vain. A century later, a much closer union between the two countries occurred. From 1 May 1707, the Act of Union merged England and Scotland as ‘one kingdom by the name of Great Britain’ and created a single Parliament. The English and Scottish Parliaments each passed an Act of Union. By respectively passing these, the two Parliaments voted themselves out of existence and merged into the Parliament of Great Britain at Westminster.3 In 1701, the new Parliament had 16 Scottish peers and 45 MPs representing an overall Scottish population of over one million – only about 3,000 of whom were entitled to vote! The Acts of Union had several significant implications. First, trade, customs and excise duties became uniform throughout Great Britain. Second, however, the separate legal and judicial systems of England and Scotland were preserved.4 Scotland’s highest civil and crim- inal courts remained the Court of Session and the High Court of Justiciary, respectively. None of the royal courts at Westminster would hear a Scottish cause of action (and to this day Scottish jurisprudence is notably different from English common law, owing more to European civil law). From 1711, however, the House of Lords developed appellate jurisdic- tion over Scottish civil matters. Third, England settled Scotland’s official debts and Scotland received compensation for taking on a share of the English national debt. The compensation or the ‘Equivalent’ amounted to £398,085 – an extraordinary sum of money at the time. The true reason for the ‘Equivalent’ was to compensate victims of the failed Darien Scheme and save Scotland from the brink of bankruptcy. In 1695, Scottish Parliament had set up the Company of Scotland Trading to Africa and the Indies to rival England’s East India Company.5 Over 25 per cent of Scotland’s liquid assets 3 Ireland remained separate until it became part of the United Kingdom of Great Britain and Ireland in 1801. 4 Mark Godfrey, ‘Parliament and the Law’ in Keith M Brown and Alan R MacDonald (eds), History of the Scottish Parliament: Parliament in Context, 1235–1707 (Edinburgh, Edinburgh University Press, 2010) 184. 5 Frances G Davenport, European Treaties Bearing on the History of the United States and Its Dependencies to 1648 (Clark, New Jersey, Lawbook Exchange, 2004) 117. 98 Government, Law, Justice: 18th Century England were sunk into the Company of Scotland’s Darien Scheme. The aim was to establish a new colony in what is now Panama. The failure of that settlement almost bankrupted Scotland and induced the Scots to join with England as the United Kingdom of Great Britain. Emergence of Responsible Government If parliamentary sovereignty is the main achievement of the English seventeenth-century parliament, the achievement of the eighteenth century was responsible government. Over the course of the century, the monarch’s power gradually declined. Constitutional conventions (parliamentary rules with no legal effect but nevertheless accepted and followed by politicians) on parliamentary practice developed. Two broad political factions flourished but, for most of that century, the Whigs domi- nated. The Whigs, who strongly supported commercial interests, heavily populated ministerial positions between 1714 and the 1760s. The Tories were the party for landed gentry.6 Responsible government is a system of government in which the executive (the administrative arm of government) is responsible to the legislature – the law-making arm of government. Ministers, who are also members of parliament, run the executive. Principles of responsible government are not contained in formal written rules. The Office of Prime Minister Even if he denied it, Sir Robert Walpole was the first British Prime Minister. During George I’s reign, Walpole became the First Lord of the Treasury and Chancellor of the Exchequer and, as such, lived at Number 10 Downing Street, Whitehall, which remains the home of the UK’s Prime Minister. Between 1721 and 1742, he held these offices continuously.7 From 1717, George I regularly absented himself from regular meetings of ministers (known as cabinet); however, the suggestion that he did so because of poor English is unfounded. Like other cosmopolitan and well-educated European men, George was multi- lingual, and he and Walpole conversed with each other in French.8 He did however spend significant periods in Hanover where he was still Elector. From 1721, Walpole chaired these meetings in place of George I. Walpole also had effective leadership over the House of Commons and ensured it complied with his wishes. Walpole rose to power and gained the confidence of Parliament through his successful management of the South Sea Bubble of 1720, an unprecedented financial crisis for England. European wars, the Prince of Wales forming a coalition with the Tories, issues of royal succession abroad and a disastrous 1741 election all contributed to Walpole’s resignation in 1741. He resigned because he lost the support on the floor of the House of Commons. 6 Linda Colley, In Defiance of Oligarchy: The Tory Party 1714–60 (Cambridge, Cambridge University Press, 1985) 5, 146. 7 John M Beattie, The English Court in the Reign of George I (Cambridge, Cambridge University Press, 1967) 242. 8 John Plumb, The Growth of Political Stability in England, 1675–1725, 1st edn (Harmondsworth, Penguin Books, 1967) 113. Cabinet Government 99 ConsƟtuƟonal Detour SeparaƟon of Powers In 1731, the French lawyer Montesquieu published De L’Esprit des Lois. The book introduces the doctrine of the separation of powers, of importance to constitutional thinking ever since. Of the separation of powers, he wrote: There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. Montesquieu thought separate bodies should exercise these three powers: the legislature, the executive and the judiciary: the US Constitution was drafted to specifically integrate this doctrine.9 Montesquieu compared the checks and balances that he thought he saw in the British Constitution with absolutist regimes in France and other European powers, where power was vested in the monarch and his advisers. However, Montesquieu misunderstood the British system by dividing the King (the executive) too strongly from Parliament (the legislature) and failed to see that the ministers – the real executive – came from Parliament. Additionally, one party, the Whigs, controlled the Parliament in 1731, with leadership exercised by one man, Walpole. Cabinet Government Laws passed by Parliament require the monarch’s assent before enactment. For some time after the Glorious Revolution, ministers were appointed and dismissed at the monarch’s pleasure. Ministers were ultimately responsible to the Crown. Throughout the century, the monarch chose their ministers from the two political parties, the Whigs and the Tories. These terms however need considerable nuance related to a range of issues including voting consistency on the floor of the House of Commons, relations with dissenting and estab- lished religion, and the interactions between British parliamentarians and European treaties and alliances.10 During William III’s reign, a group of ministers formed. Initially known as the junto, later the term ‘cabinet’ stuck. These Junto: the members of ministers were responsible for national affairs. In time, the Prime the Whig party lead- Minister chose the cabinet – he advised the monarch who to ing government in the reign of William III appoint. Though the monarch could still choose ministers, this came to be a politically unwise move. Much of this arose because only Parliament can raise taxes and authorise the expenditure of money. As the executive or ‘government’ (the King’s ministers) needs money to govern, the practical necessity was for the King to choose his ministers from a group that had suffi- cient control of the Parliament to be able to have Parliament raise money and appropriate 9 See chapter five of this volume. 10 Geoffrey Holmes, British Politics in the Age of Anne (London, Macmillan, 1967) 57, 76–80, 102. 100 Government, Law, Justice: 18th Century England it for the Government of the kingdom. In time, it meant that the group that had a majority of seats in Parliament and that had ‘the power of the purse strings’ had to be appointed as government. The King took his advisers from the majority group in the Parliament. To this day, in ‘Westminster systems of government’, the group that holds the majority in the Parliament is the one that the Crown commissions as its government and which sits on the treasury benches. Criminal Law and Criminal Trials in the Eighteenth Century There were different implications cascading from the Glorious Revolution, the Bill of Rights, and the Act of Settlement. In addition to the developments in parliamentary and cabinet government and the notion of responsible government discussed above, these included developments in the administration of the law and the conduct of trials. Judicial tenure for good behaviour does predate the Glorious Revolution and expectations that royal officials and servants, including judges, held office contingent on their conduct is apparent from the medieval period.11 However, the forceful statement of tenure itself has important implications for how judges acted during a trial. This next section examines the development of criminal justice from the end of the seventeenth century and into the eighteenth. The opponents of James II and the instigators of the Glorious Revolution fixated on James’s Catholicism and were part of a culture of paranoia about the Roman Catholic Church, but James’s absolutist tendencies (ineluctably linked in popular minds with his Catholicism) was also a motivating factor for his opponents. That conduct provided justi- fication for the Glorious Revolution and informed legal changes that came after it, owing to the justification that William of Orange’s invasion was necessary to protect the English from arbitrary rule. The period immediately prior to the Glorious Revolution had already promoted legal safeguards. Chief among these was the ancient legal right of habeas corpus, re-stated in the Habeas Corpus Act 1679, passed by the Parliament held that year12 Habeas corpus is traceable to at least the twelfth century. It is the right, and the insistence, to bring prisoners before court rather than suffer indefinite detention. A number of the treason trials took place during the Restoration and during a period of heightened political and religious paranoia before the eighteenth century. These included the trial of the wholly innocent priests accused of the ‘Popish Plot’ and the victims of the ‘Bloody Assizes’. At the treason trial of the Jesuits accused of the Popish Plot, Sir William Scrogg, CJKB was a bullying and hectoring presence on the bench. 11 Ryan Rowberry, ‘ The Origins and Development of Judicial Tenure “During Good Behavior” to 1485’ in Travis R Barker (ed), Law and Society in Later Medieval England and Ireland: Essays in Honour of Paul Brand (London, Routledge, 2018) 182. 12 31 Car 2 c 2 ss 1–8, 11, 15–19; George Clark, The Later Stuarts 1660-1714, 2nd edn (Oxford, Clarendon Press, 1955) 99. Criminal Law and Trials in the 18th Century 101 Among other things, he and his fellow judges excused the lapses in memory of the Crown witnesses while making no similar allowances for the defendants.13 Because the stakes were so high and they were so frequent, trials for treason are an excellent place to consider the emergence of the contours of a modern trial, including the evidentiary principle that someone is presumed innocent until proven guilty, the major operative principle of an Australian trial. ConsƟtuƟonal Detour The ‘Golden Thread’ of Criminal Law The presumption of innocence is almost universal; however, it has a special association with English legal history. In 1935, the House of Lords heard the appeal of Woolmington v Director of Public Prosecutions.14 Lord Sankey LC famously proclaimed that ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt’.15 Sankey pointed to earlier cases where that principle was apparent, but his 1935 ruling remains the most coherent and celebrated articulation of this signature aspect of the English justice imported throughout the British Empire and Commonwealth. Perhaps most famously, the fictional barrister Horace Rumpole (the creation of John Mortimer QC) waxed lyrical about the ‘golden thread’ running through English justice and expanding to the law courts throughout the British Empire.16 The actual barrister Sir Edward Marshall Hall KC (1858–1927), one of the greatest barristers in history and one of the models for Rumpole, would flamboy- antly dramatise the presumption of innocence in closing speeches to the jury, turning an abstraction into a performance by swaying his body from side to side as he spoke and declaring of the scales of justice ‘in the one scale, in the prisoner’s scale, unseen by human eye, is placed that overbalancing weight, the weight of the presumption of innocence’.17 Underpinning these affectionate notions are earlier statements recognised as William Blackstone’s maxim (a ratio of 10:1) that it is better ten guilty persons go free than one innocent person be convicted. As commentators point out, this valorised ratio has a huge margin of error.18 Neither was Blackstone saying anything new and acknowledged earlier jurists had made similar points about the weight placed on a person’s presumed innocence. 13 Lois G Schwoerer, ‘ The Attempted Impeachment of Sir William Scroggs, Lord Chief Justice of the Court of King’s Bench, November 1680–March 1681’ (1995) 38(4) Historical Journal 843, 859. 14 1 AC 462. 15 Ibid 481. 16 Brad Buchanan, ‘A Nice Point of Blood: Race and Religion in Rumpole’s Return’ in Julie H Kim (ed), Race and Religion in the Postcolonial British Detective Story: Ten Essays (Jefferson, McFarland, 2005) 42. 17 Edward Marjoribanks, The Life of Sir Edward Marshall Hall (Auckland, Pickle Partners Publishing, 2019). 18 Jonathan Kertzer, Poetic Justice and Legal Fictions (Cambridge, Cambridge University Press, 2010) 119. 102 Government, Law, Justice: 18th Century England ConsƟtuƟonal Detour The Legal History of Rape The last detour observed the attachment of the English legal system and its colonial offshoots to the presumption of innocence – but where does that presumption become complex and, even, disturbing? One of the jurists whom Blackstone acknowledged as having earlier articulated something close to his ratio of ten innocent people and one guilty person was Sir Matthew Hale CJKB (1609–76).19 Hale made other pronounce- ments on the presumption of innocence, including in cases of rape. Hale commented ‘it must be remembered … that it [rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent’.20 Hale had however delineated how rape was to be defined and recognised in law, as to ‘make a rape there must be an actual penetration in res or re (as also in buggery) and there- fore emission seminis is indeed an evidence of penetration, but singly of itself it makes neither rape nor buggery’.21 As Gilbert Geis points out in his study of this particular aspect of Hale’s career,22 Hale’s statement has endured in Anglo-American law though it is deeply problematic. Rape has a long legal history in English law, gaining statutory definition in the Statute of Marlborough 1285.23 The case law on marital rape included the 1888 decision of the Court for Crown Cases Reserved in R v Clarence.24 The majority of R v Clarence quashed the convictions of a man who had knowingly transmitted gonorrhoea to his wife as a result of sexual intercourse. The husband was aware of his disease but had not informed his wife. The man’s conduct was found not to have constituted an offence either of assault occasioning actual bodily harm or of unlawfully and maliciously inflicting grievous bodily harm. More broadly, marital rape immunity relied on Hale’s writings. Hale’s cool scepticism about rape is inversely related to his acceptance of witchcraft accusations in a trial at Bury St Edmunds in Suffolk in 1662.25 As Geis further points out, the mode of proof Hale used in the witchcraft trial (a physical examination for the witch’s mark) was one deployed in a rape trial where Hale presided but with precisely opposite results. The examination of the accused female witch found a mark; the examination of the man found his bowels had collapsed, his 19 Jeffrey Reiman and Ernest Van Den Haag, ‘On the Common Saying that it is Better that Ten Guilty Persons Escape than that One Innocent Suffer: Pro and Con’ (1990) 7 Social Philosophy and Policy 226. 20 Matthew Hale, The History of the Pleas of the Crown: In Two Volumes, Volume 1 (Little Britain, T Payne, 1800) 634. 21 Ibid 627. 22 Gilbert Geis, ‘Lord Hale, Witches, and Rape’ (1978) 5 British Journal of Law and Society 26, 40. 23 52 Hen 3. 24 (1882) 22 QBD 23. The ruling included the observation ‘the husband’s connection with his wife is not only lawful, but it is in accordance with the ordinary condition of married life. It is done in pursuance of the marital contract and of the status which was created by marriage, and the wife as to the connection itself is in a different position from any other woman, for she has no right or power to refuse her consent.’ 25 A tryal of witches at the assizes held at Bury St. Edmonds for the count of Suffolk on the tenth day of March, 1664 [i.e 1665] before Sir Matthew Hale, Kt., then Lord Chief Baron of His Majesties Court of Exchequer / taken by a person then attending the court (William Shrewsbery, 1682) sig E4. Developments in Criminal Law 103 genitals were scarcely visible, and Hale concluded he was incapable of raping someone.26 Geis deftly reconstructs the social and religious forces building a web of misogynistic thinking about both witchcraft and rape. Hale’s view that rape was easy to claim but hard to prove, and his encouragement of scepticism, was long lasting to the detriment of female victims of sexual assault. It was quoted as recently as 2009 in the House of Lords in R v JTB.27 Developments in Criminal Law Precisely because it was the worst and the most serious crime, treason is a crime where important developments in the presumption of innocence, rules of evidence, trial procedure and the use of counsel are apparent. High treason was in fact one of the first common law crimes given a statutory basis in the Treason Act 1351,28 which remains law in the United Kingdom and New South Wales.29 As Edward Coke explains, high treason is so-called ‘in respect of the royall majesty against whom it is committed’.30 Convictions for high treason enforced the King’s authority (as high treason was the reverse of allegiance) and the execu- tions of traitors visibly rendered royal authority. English kings displayed the rotting heads and other body parts of traitors throughout the kingdom as exemplary warnings.31 Edward Coke graphically described the physical punishment meted out to traitors, interpolating that with the symbolic meaning underpinning the actions. Speaking with lip-smacking relish in front of the defendants accused of the 1605 Gunpowder Plot, Coke described how: He shall have his judgement to be drawn to the place of execution from his prison as being not worthy any more to tread upon the face of the earth whereof he was made: also for that he hath been retrograde to nature, therefore is he drawn backward at a horse-tail. And whereas God hath made the head of man the highest and most supreme part, as being his chief grace and ornament … he must be drawn with his head declining downward … For which cause also he shall be stran- gled, being hanged by the neck between heaven and earth, as deemed unworthy of both, or either …. Then he is be cut down alive and to have his privy parts cut off and burnt before his face as being unworthily begotten, and unfit to leave any generation after him. His bowels and inlay’d parts taken out and burnt, who inwardly had conceived and harboured in his heart such horrible treason. After, to have his head cut off, which had imagined the mischief. And lastly his body to be quartered, and the quarters set up in some high and eminent place, to the view and detestation of men, and to become a prey for the fowls of the air.32 26 Geis (n 22) 40. 27 1 AC 1310. 28 25 Edw 3 St 5 c 5. 29 See the Imperial Acts Application Act 1969 (NSW) sch 1. 30 Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes (Union, New Jersey, Lawbook Exchange, 2002) 19. 31 Ernest Jacobs, The Fifteenth Century 1399–1485 (Oxford, Oxford University Press, 1993) 53. 32 The Gunpowder Treason. Trials of the Conspirators: Extracted from Cobbett’s Collection of State Trials: with Account of Their Arraignment and Execution. Also, History of the Gunpowder Plot, Written by King James, Extracted from the First Collection of His Works Published During His Life-time (Northampton, J Taylor & Son, 1867) 19. 104 Government, Law, Justice: 18th Century England As treason was plotting against the King, kings took particular interest in the law, none more so than Henry VIII. In 1531, a cook called Richard Roose (a servant in the house- hold of Bishop John Fisher) stood accused of putting poison in the household’s food. Fisher was close to the royal court, and the case compelled Henry’s personal attention and his insistence that both Houses of Parliament not only attaint Roose for high treason but make poisoning a treasonous offence. Perhaps ironically for a cook, Roose was then boiled to death. The significance here was that Roose did not receive a common law trial but his trial proceeded by the parliamentary attaint.33 Roose was only a humble serv- ant, but the greatest magnates in the land did not have protection from prosecution for treason.34 In 1540, Henry VIII’s great minister was attainted and executed with Henry left unmoved by Cromwell’s frantic efforts to save his life, writing from the Tower of London: ‘Most graycous prynce, I crye for mercye mercye mercye’.35 People close to the monarch died after an accusation of treason, and Henry VIII’s second wife, Anne Boleyn (mother of Elizabeth I) and his fifth wife, Catherine Howard, were tried, convicted and executed for treason.36 Where there was high treason there was also petty (or petit) treason. Coke defined it as ‘when a servant slayeth his master, or PeƩy or peƟt treason a wife her husband, or when a man secular or religious slayeth his (French): a subordinate prelate to whom he oweth faith and obedience’.37 A petit traitor, murdering a superior such as a wife who had killed her husband, was burnt at the stake, as happened in a case in 1662, when a woman killed her husband by stabbing him with a pipe stem.38 Treason, whether high or petty, resulted in the traitor’s estate escheating to the Crown, rather than to their heirs. That possibility led accused persons to refuse to plead in a trial on a capital charge. If they refused, they were compressed, the physical torture intended to make them plead. This torture, called peine Peine forte et dure forte et dure, meant the accused were stripped, tied on the ground, (French): punishment and compressed by heavy weights.39 Social class and sex were no hard and forceful barrier to this treatment. Notable people pressed this way include Margaret Clitherow, now a saint, who was pressed in 1586 under her own front door after being accused of the felony (under an act against Jesuits) of harbouring Catholic priests.40 Charles Stourton, 8th Baron Stourton, changed his mind about refusing to plead in a murder trial when threatened with pressing. 33 Krista Kesselring, ‘A Draft of the 1531 “Acte for Poysoning”’ (2001) 116(468) English Historical Review 894. 34 Michael Graves, ‘Freedom of Peers from Arrest: The Case of Henry Second Lord Cromwell, 1571–1572’ (1977) 21(1) American Journal of Legal History 1, 4. 35 Robert Bigelow Merriman, Life and Letters of Thomas Cromwell (Oxford, Oxford University Press, 2000) vol 2, 273. 36 Lacey Baldwin Smith, A Tudor Tragedy: The Life and Times of Catherine Howard (London, Reprint Society, 1961) 175. 37 Coke (n 30) 19. 38 Andrea McKenzie, Tyburn’s Martyrs: Executions in England 1675–1775 (London, Hambledon, 2007) 18. 39 Andrea McKenzie, ‘“ This Death Some Strong and Stout Hearted Man Doth Choose”: The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth-Century England’ (2005) 23(2) Law and History Review 279, 280. 40 27 Eliz 1 c 2. Developments in Criminal Law 105 There may have been no such thing as a typical treason trial, but the many hundreds of cases collected in the Complete Collection of State Trials build up an impression of how they proceeded. There was some degree of awesome majesty involved. Kenyon likens a treason trial to a morality play, ‘staged as a demonstration of government power’.41 The customary exchange between the court and the accused at the start of a trial carried a supernatural resonance. The clerk would ask ‘culprit, by whom will thou be tried?’ The answer would be ‘By God and my country’, to which the clerk intoned ‘God send thee a good deliverance’. Nor were the events completely a procedural free-for-all; for instance, defendants could challenge the empanelment and swearing of jurors.42 Trials from earlier in the seventeenth century give some impression of how events unfolded. Sir Walter Raleigh, the famous sailor, stood trial for high treason in the Great Hall of Winchester Castle in 1603, prosecuted by Edward Coke, then the Attorney General. As much as Coke is valourised as the doughty champion of common law against monarchy, his conduct as prosecutor remains notorious, largely for his almost complete absence of anything resembling evidence for a case and his reliance simply on ever more hysterical invective.43 He seemed ‘clownish and bitter’ according to the contemporary observer John Aubrey.44 ‘Thou art a monster! Thou hast an English face but a Spanish heart!’ is one of Coke’s characteristic jibes at Raleigh. Coke also shouted ‘thou traitor! I will prove thee the rankest traitor in all England!’ It would seem even the judges were slightly embarrassed by Coke’s performance and Chief Justice Popham excused Coke’s behaviour as being ‘zeal of his duty for the service of the King’.45 Coke together with jurist Sir Francis Bacon later participated in the trial of the Earl and Countess of Somerset in 1615, also known as the Overbury trial. Although a murder rather than a treason trial, it illustrates many features of a criminal trial still pertaining in the eighteenth century. In fact, this trial had it all. The background was a high society scandal at the court of King James I, whereby the Countess of Essex gained an annulment of her marriage to the Earl of Essex (alleging his sexual dysfunction) and married the Earl of Somerset. Meanwhile, Somerset’s friend the poet Thomas Overbury was imprisoned in the Tower of London. He was charged with high treason after angering the King by refus- ing to become the ambassador to the Russian tsar46 and died in the Tower. These events all occurred in 1613 but, by 1615, the Somersets had lost their place in King James’ affec- tions and the King tasked Coke and Bacon to investigate what had happened to Overbury, Somerset’s friend, in the Tower. 41 John Kenyon, The Popish Plot (Harmondsworth, Penguin, 1972) 132. 42 For the trial of Lady Alice Lisle, see A Complete Collection of State Trials and Proceedings Upon High Treason and other Crimes and Misdemeanours, from The Reign of King Richard II to the End of the Reign of King George I (London, J Walthoe, 1730) vol 4, 106. 43 Patrick Keane, ‘Lecture One: Edward Coke’ (Selden Society Lecture, Supreme Court of Queensland, 23 April 2015) , available at media.sclqld.org.au/documents/lectures-and-exhibitions/2015/Justice-Keane- Selden-Society-lecture-one.pdf. 44 John Aubrey, Brief Lives (edited by Oliver Lawson Dick) (Harmondsworth, Penguin, 1972) 226. 45 Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke 1552–1634 (London, Hamish Hamilton, 1957) 167–69. 46 Chester Dunning, ‘ The Fall of Sir Thomas Overbury and the Embassy to Russia in 1613’ (1991) 22(4) The Sixteenth Century Journal 695, 695. 106 Government, Law, Justice: 18th Century England Figure 4.1 Thomas Overbury, a Poet whose Murder was the Basis of a Remarkable Trial S van de Passe, Viva effigies Thomae Overburii equitis aurati aetat. 32, veneno obit September 1613 [graphic] (London, Compton Holland, 1614). Call #: ART File O96.6 no.3 (size M). Used by permission of the Folger Shakespeare Library under a Creative Commons Attribution-ShareAlike 4.0 International Licence (CC BY-SA 4.0), https://creativecommons.org/licenses/by-sa/4.0/. What followed in the trial of the Earl and Countess as well as their co-conspirators could be described as a legal freak show. One of the accused conspirators, Weston, only agreed to plea after being threatened with peine forte et dure. Evidence against other conspirators included puppets and magic spells, and another was accused of having given Overbury a poisoned tart. The Earl of Somerset declared he would not attend his own trial unless carried there in his bed.47 A poem purportedly written by Overbury’s ghost appeared in print.48 Not all trials were as colourful, but the events in the Overbury case do distil some of the wildness and chaos of an English trial before important reforms. 47 Gerald Chapin, ‘An Historic Murder’ (1906) 14(8) American Lawyer 343. 48 The Harleian Miscellany (London, T Osborne, 1746) sig Y2. Developments in Criminal Law 107 After the Glorious Revolution and the Bill of Rights, a further legal landmark that shaped the eighteenth-century law is the Trials Act 1696.49 It is worthwhile thinking in ‘before’ and ‘after’ terms for criminal trials. ‘Before’ defendants spoke for themselves (as did Walter Raleigh), were unable to prepare a defence in advance, and were not on oath. The Act created a number of legal safeguards, including the two-witness rule, insisting on two witnesses to corroborate that there had been a crime. Further, court granted the accused a defence coun- sel in the courtroom and the court would provide an attorney for them if the defendant could not source this support.50 Additional changes included a statutory right to see the indictment five days before trial and for questioning witnesses under oath, meaning the jury could attach greater credibility to the defence case. These changes registered immediately in the treason trial of Sir Ambrose Rookwood in April 1696. ConsƟtuƟonal Detour The Treason Trial of Sir Ambrose Rookwood and the Vulnerable Defendant Sir Ambrose Rookwood was part of a conspiracy to assassinate William III. The conspir- acy failed and the conspirators, Rookwood among them, stood trial for high treason in April 1696. Rookwood’s plea was not guilty, but he was found guilty and strung up at the Tyburn gallows. So far that could be a summary of almost all treason trials up to this point, but there is a difference in that Rookwood had a defence counsel to speak for him and test the prosecution case.51 Bartholomew Shower, his counsel, held strong political opinions in sympathy with the Tory and Jacobite ideals that had inspired the assassina- tion plot. However, before the King’s Bench he was less assured, and the trial transcript in State Trials makes clear his awareness of his novelty in being a defence counsel and to assure the judges that they should not blame him for what his client did! Begging leave to speak, he explained ‘we hope that nothing which we shall say in Defence of our Clients, shall be imputed to ourselves’ and added that ‘We come not here to countenance the practices for which the Prisoner stands accused’.52 These changes to the conduct of trials were a long-term process, some proposed for some time. These changes are more than technical and relate to the political landscape of the era, one dominated by Whigs whose political philosophy meant they wished to achieve a statutory framework for treason and for other capital crimes.53 As noted above, judicial tenure was also more stable and by 1761 a judge’s appointment no longer ended when the monarch died.54 49 7 & 8 Will 3 c 3. 50 Lamar Hill, ‘The Two-Witness Rule in English Treason Trials: Some Comments on the Emergence of Procedural Law’ (1968) 12(2) The American Journal of Legal History 95, 95. 51 Francis Young, Rookwood Family Papers, 1606–1761 (Woodbridge, Suffolk, Boydell Press, 2016) xxxvi. 52 A Complete Collection of State-Trials and Proceedings upon High Treason (London, 1730) vol 4, 651. 53 Alexander H Shapiro, ‘Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696’ (1993) 11(2) Law and History Review 218, 252. 54 John H Langbein, The Origins of Adversary Criminal Trial (Oxford, Oxford University Press, 2003) 81, 82. 108 Government, Law, Justice: 18th Century England Historically, a defendant in an English trial was meant to be vulnerable. They were not on oath and their evidence was less credible.55 In hindsight, unfairness is the most obvi- ous feature of this arrangement. Counterintuitively perhaps to modern eyes, the more serious the offence, the more vulnerable was the defendant. Counsel was permitted for both the defence and the prosecution in civil cases and for misdemeanours but not for felonies (including treason) when a person’s life was at stake.56 There were jurispruden- tial reasons, as a judge could assist the defendant, including through exercising his power to include or exclude evidence.57 The judges therefore were active participants in a trial, doing what in a modern trial the counsel would do, including conducting the cross- examinations but also bullying the defendants and the witnesses.58 John H Langbein has coined the ‘Defendant speaks’ mode of trial, and the point is to be taken literally. He refers to the historic arrangement whereby jailors brought the defend- ant up to the dock. The defendant heard the indictment read out and was expected to answer it. The legal theory behind this approach was that the person to speak in their defence was the defendant. Likewise, in legal theory the defendant was the person best positioned to interrogate prosecution witnesses.59 These ideas were, by 1696, long stand- ing. In the sixteenth century, Sir Thomas Smith described a trial as an altercation between an undefended accused and the accuser. Far from seeing that as unfair, Smith admired the purity and clarity of this approach, as the defendant would know the facts of the case and answer to them.60 Jurisprudentially, it also speaks to an understanding of a trial as testing facts, not the law. William Hawkins’ Pleas of the Crown (1721) regarded a trial as an occasion for speaking of facts, making the accused person the best lawyer.61 There was a further reason to have made the defendant vulnerable, which was the belief that a sure way to judge a person’s guilt or innocence was to see their unmediated reac- tion to hearing the indictment. Images of the Old Bailey The Old Bailey: the courtroom from the eighteenth century show that the internal Central Criminal Court arrangements made the defendant a visual centrepiece. The judge and jury would be able to see their face and watch their facial expressions. The accused sat beneath a large mirror above the dock that caught the light from high windows and shone it on the defendant’s face. It enabled judge and jury to see the defend- ant’s face and determine if they seemed honestly surprised by what they heard.62 55 Ibid 48. 56 Simon Devereaux, ‘Arts of Public Performance: Barristers and Actors in Georgian England’ in David Lemmings (ed), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham, Surrey, Ashgate, 2012) 108; Kenyon (n 41) 131. 57 Langbein (n 54) 215. 58 Kenyon (n 41) 133. 59 Shapiro (n 53) 222. 60 John H Langbein, ‘ The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries’ in The Privilege Against Self-Incrimination: Its Origins and Development (Chicago, University of Chicago Press, 1997) 84. 61 Devereaux (n 56) 108. 62 Ibid 109. Developments in Criminal Law 109 This theoretical basis of this mode of trial was in doubt by the 1680s and beyond. Doubts were not merely procedural or technical but spoke more deeply to political philosophies and the pretexts given for the Glorious Revolution. Whig politicians viewed this mode as inherently unfair. In theory, judges could assist defendants, but did not in practice.63 Amongst other concerns and doubts were expressed anxieties about perjury, and the likelihood that courts would find an innocent man guilty. Political philosophies that espoused support for the Glorious Revolution and the Bill of Rights also spoke to the importance of freedom of speech, delivered in court with assistance from a defence counsel. The Glorious Revolution focused attention on the administration of justice to the extent that the safeguards emerging from the 1690s seemed a ‘new bill of rights’.64 Beyond the intersection of the political context with trials, there was also a question emerging from natural law of the right to deny counsel to an accused person.65 Langbein also directs attention to a most fundamental aspect of the lived experience of justice. As he points out, at the centre of many of the ‘defendant speaks’ trials would have been frightened and bewildered men and women lacking any skill or experience in public speaking who found themselves the sudden centre of attention. They most likely were also dirty, unwell from jail fever and hungry.66 One lawyer who was prepared to enter these filthy environments was William Garrow (1760–1840) celebrated for his singular impact as counsel for the defence case. His ability to cross-examine witnesses and there- fore test the prosecution case remains celebrated along with his defiance of judges.67 He remains sufficiently well known that a period drama Garrow’s Law appeared on the BBC between 2009 and 2011. Earlier, a ‘before’ and ‘after’ in trial modes was suggested and this notion can be usefully reintroduced to consider the adversarial trial mode that is now the common Anglo-Australian mode. Underpinning this mode is an evidentiary principle: the presumption of innocence. The presumption of innocence points to where the burden of proof lies. This presumption also intersects with there being rules of evidence and the adversarial process to test the prosecution case. In this mode, the rules of evidence can include ones such as the character rule, the corroboration rule, and the hearsay rule, and the rule of materiality, with the jury being the arbiter. Further, the body of rules can be mobilised to exclude probative evidence from the proceedings.68 Philosophically, the presumption of innocence indicates a newer emphasis in political theory on individual rights. Structurally, there comes the change to adversarial mode with a defence counsel testing the prosecution case. The Tudor notion of the altercation 63 Shapiro (n 53) 223. 64 Ibid 251. 65 Ibid 240. 66 Langbein (n 54) 62. 67 Andrew Watson, Speaking in Court: Developments in Court Advocacy from the Seventeenth to the Twenty-First Century (London, Palgrave Macmillan, 2019) 59. 68 Langbein (n 54) 179, 237, 315; John H Langbein, ‘Historical Foundations of the Law of Evidence: A View From the Ryder Sources’ (1996) 96 Columbia Law Review 1168, 1172. 110 Government, Law, Justice: 18th Century England evolves into the interpretation and presentation of evidence in the ‘crisp’ division of the defence and prosecution.69 This evolution is the ‘lawyerisation’ of trials, but it should not be overstated. Professional counsel cost money and, while there were some notable early defence counsels such as William Garrow, most trials in this period still did not have counsel involved. Nor was the involvement of defence counsel automatic to all crimes; it started with treason and moved to other felonies later.70 Public Execution and Justice Regardless of the Trials Act and the lawyerisation of trials, a person brought to trial would likely die. Public executions were popular, and large crowds attended the executions at Newgate Prison and Tyburn (then a village in Middlesex, now near the junction of Marble Arch and Edgware Road in London). However, these crowds were raucous rather than solemn, and were able to come remarkably close to the condemned men and women. Executions were public spectacles in England until 1868 with the passing of the Capital Punishment Amendment Act 1868.71 Why had they been public? In theory, the person on the gallows should have a ‘good death’. Unlike most, they knew when the moment of their death would be and would be able to prepare themselves; they would be spared a mors improvisa.72 Mors improvisa (LaƟn): The legal authorities intended crowds to see a penitent person a sudden and unplanned who would endorse their sentence and provide an example and death the public executions were one aspect of the administration of justice.73 Other points explain the focus placed on public executions. There was no professional police force until the nineteenth century, making public deterrents necessary. Reality rarely matched theory. The eighteenth-century artist William Hogarth created the work ‘The Idle Apprentice’, showing a raucous crowd around the gallows at Tyburn. In this famous image, there is less emphasis on gallows and prisoner and more on the frank enjoyment of the crowd. Hogarth’s moralistic series of prints also included ‘The Reward of Cruelty’, depicting the dissection and anatomisation of the executed criminal Tom Nero. Under the Murder Act 1751,74 the bodies of hanged murderers were to be ‘immediately conveyed’ from the place of execution and delivered to Surgeons’ Hall for use in the teaching of anatomy by autopsy. The demand for anatomical corpses saw executed people denied decent Christian burials. Hogarth shows the full extent of the post-mortem degradation facing anyone on trial on a capital charge, for they are not only dissected but dissected publicly. 69 Langbein (n 54) 259. 70 John H Langbein, ‘The Historical Origins of the Privilege against Self-Incrimination at Common Law’ (1994) 92(5) Michigan Law Review 1147, 1048. 71 31 & 32 Vic c 24. 72 McKenzie (n 38) 160. 73 Simon Devereaux, ‘Recasting the Theatre of Execution: The Abolition of the Tyburn Ritual’ (2009) 202 Past and Present 127, 129. 74 25 Geo 2 c 37. The Reception of English Law Abroad 111 The Reception of English Law Abroad The preceding sections have considered legal developments on English soil. Coterminous with these was the overseas expansion of the British Empire, taking English people and their law abroad. The English went abroad for commercial gain and to seek commodities such as spices. Trade also included buying and selling human beings as slaves, which this section will consider as an aspect of legal history. Reception is the process by which English law became part of the law of other countries. Other terms exist for this process – transmission, introduction, adoption and incorporation – but ‘reception’ is most commonly used. Where settled colonies were English in language and tradition, the process was more like a transplantation of the English law to the new environment. According to William Blackstone, a coloniser could acquire a colony in three ways: by settlement, conquest or cession. The common view before Blackstone was that English settlers took the law overseas as part of their English birthright (the ‘colonial birthright theory’). The Privy Council explained the birthright theory in Case 15 – Anonymous in the context of Barbados in the Caribbean: 1st, That if there be a new inhabited country found out by English subjects, as the law is the birth- right of every subject, so wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England … 2dly, Where the King of England conquers the country, it is a different consideration: for there the conqueror, by saving the laws of the people conquered, gains a right and property in such people; in consequence of which he may impose upon them what law he pleases.75 The notion that colonisers settled Australia as terra nullius was shattered in Mabo v Queensland (No 2).76 In English ideas of private land ownership, cultivation of the land and land ownership were intimately related. Terra nullius as a legal and philosophical principle does not mean that the land is empty, but that the land has no master. From the fifteenth century, royal charters or letters patent authorised the creation of overseas territories. Judicial opinions and texts explored theories about the reception of English law. Calvin’s Case (reported by Edward Coke),77 established that the existing legal system of the conquered or ceded territory survived, but the monarch had an absolute royal prerogative – a personal power – to legislate over the territory and its subjects. The monarch could legislate in conquered territories. In other words, the law of conquered and ceded colonies remained ‘in force until … altered by the conqueror’.78 Within the royal preroga- tive was the power to import the English legal system into the conquered colony to alter or completely replace any pre-existing law it may have had. After 1689, Whigs progressively challenged the idea of an absolute royal prerogative. The American colonies, which had gained independence as the United States after the American Revolution, were not the only British possessions in North America. Among the colonies acquired were Newfoundland, territories of the Hudson Bay Company, Nova Scotia, 75 (1722) 2 P Wms 75; 24 ER 646. 76 (1992) 175 CLR 1. 77 (1608) 7 Co Rep 1a; 77 ER 377. 78 Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045. 112 Government, Law, Justice: 18th Century England Quebec, Upper Canada (now Ontario) and the West Indies, including Jamaica. These were all part of the North American colonial system. France ceded some West Indies possessions – including Grenada, Tobago, Dominica – to the British in 1763. Other Caribbean islands – such as Antigua, Barbados and Jamaica – had been in British possession for a longer period. In Caribbean colonies, English law in force was already confirmed – although some colonies delayed confirming this until the early nineteenth century. English law came to India in a very limited sense from the early eighteenth century by means of royal charters, treaties, concessions, legislation and judge-made law. English law was not received wholesale into India. The East India Company, incorporated by a royal charter issued by Elizabeth I in 1600, had a monopoly of trade with the East Indies. This commercial venture saw English law received in trading factories established with the authority of local Indian monarchs. From the early-eighteenth century, the colonial governments created special courts in Chennai (Madras), Kolkata (Calcutta) and Mumbai (Bombay) with jurisdiction at common law; in equity; and in admiralty, lunacy and ecclesiastical matters. These were restricted to Company employees and British subjects in areas in which the Company acquired sover- eignty by conquest. Non-Europeans were restricted from accessing these special courts, which brought about clashes of jurisdiction and laws corrected in the late-nineteenth century. Historical Cameo Lord Hardwicke on Equity, Slavery and the Marriage Act 1753 Philip Yorke, 1st Earl of Hardwicke (1690–1764) was Lord High Chancellor of Great Britain for 19 years between 1737 and 1756. He was the longest serving lord chancellor of the eighteenth century. Before his time as Lord Chancellor, Lord Hardwicke served as Chief Justice of the King’s Bench (1733–37), the country’s Attorney-General (1724–33) and Solicitor-General (1720–24). The patronage of both Lord Macclesfield, himself a Chief Justice (1710–18) and a Lord Chancellor (1718–25), and the Duke of Newcastle gave Hardwicke a ‘leg up’ enabling his rapid rise through the ranks of the legal profession and Parliament.79 This historical cameo discusses only three elements of Hardwicke’s life, but ones with which he is most commonly associated: the emergence of modern equity, slavery and clandestine marriages. The Emergence of Modern Equity Lord Hardwicke refined the laws of equity. In the eighteenth century, the doctrine of precedent was not as we know it today. Past cases were not as binding. However, Lord Hardwicke still used past cases for the principles they established or as factual analogies. Through analogical reasoning, Hardwicke helped to give decisions consistency, 79 George Harris, The Life of Lord Chancellor Hardwicke: With Selections from His Correspondence, Diaries, Speeches, and Judgements, Volume 1 (London, E Moxon, 1847) 426–27. The Reception of English Law Abroad 113 legitimacy and the potential for future use. Though he often strictly followed ‘precedent’, Lord Hardwicke was more flexible in cases involving fraud, the mentally ill and the underage. In one famous case, Chesterfield v Janssen, Lord Hardwicke classified five different types of fraud that equity would relieve against to prevent contractual unfairness. It was a novel approach because fraud, one of three traditional heads of equitable jurisdiction, had not until then received that sort of structure.80 Slavery and the Yorke-Talbot Opinion, 1729 Between the seventeenth and early-nineteenth century, England grew rich from trafficking in humans. The transatlantic slave trade saw many Africans enslaved and transported to the West Indies and North America to work as slave labour on sugar and cotton plantations. Liverpool, the major eighteenth-century slaving port, became prosperous on the back of this trade and slavery intersected with other industries and manufactories including shipwrights and cotton merchants.81 The number of slaving ships departing from Liverpool for Africa increased from 15 a year in 1730 to over 50 during the 1750s. It was inevitable that legal questions about the status of slaves would confront English courts. During Hardwicke’s time as Attorney-General, he penned the 1729 Yorke-Talbot opinion with Charles Talbot, the Solicitor-General. A West Indies lobby of slave-owners sought Yorke and Talbot’s opinion on the legality of slavery in England out of concern that slaves might be free by stepping on English soil or becoming Christians. The Yorke-Talbot opinion was not a binding legal deci- sion; rather, and perhaps startlingly for us, the opinion was offered to the slave-owner lobby after a dinner in Lincoln’s Inn – one of the Inns of Court. Inconsistent decisions created the perfect storm for this particular slavery debate. In Cartwright’s Case – a mid- sixteenth century ruling referred to in subsequent reported cases – an English court had apparently stated: ‘England was too pure an Air for Slaves to breathe in’. Earlier, in Calvin’s Case, Sir Edward Coke said that ‘infidels’ could be enslaved because they were ‘perpetual enemies’ of Christians. Chief Justice Holt’s (Chief Justice until his death in 1710) rulings included that: ‘Slaves’ were not property to be traded; English law did not know the state of slavery, but it did recognise ‘slavish servants’; and ‘As soon as a negro comes into England, he becomes free. One may be a villein in England but not a slave.’82 Based on Sir Edward Coke’s decision in Calvin’s Case, opponents of slavery reasoned that Christian baptism would free ‘infidel’ slaves. However, Yorke and Talbot disagreed. 80 (1750–1) 2 Ves Sen 125; 28 ER 82. 81 Eric Williams, Capitalism and Slavery (Chapel Hill, UNC Press, 2014) 58, 68. 82 Holt’s cases included Chamberlain v Harvey (1697) 1 Ld Raym 146 and Smith v Gould (1705–07) 2 Salk 666, quoted in Somerset v Stewart (1772) 98 ER 499. 114 Government, Law, Justice: 18th Century England Asked in their capacities as law officers for their opinion, which they delivered after a dinner at Lincoln’s Inn, they concluded that a slave was not freed either by converting to Christianity or upon entering England. A Slave by coming from the West-Indies to Great Britain, doth not become free, and that his Master’s Property or Right in him is not thereby determined or varied: And that Baptism doth not bestow freedom on him, nor make any Alterations in his Temporal Condition in these Kingdoms Slaves could be compelled to return to the colonies from whence they came.83 That however was an unreported decision, one made by law officers but not made as a ruling in a court and it was informally reported.84 Lord Hardwicke maintained this position in Pearne v Lisle.85 He held that trover was available for slaves – a finding consistent with cases predating Holt. Trover is an old cause of action involving a plaintiff who, after losing property, finds it in possession of the defendant. The plaintiff sues the defendant, who refuses to hand the property back and instead ‘converts’ the property to his own use. In holding that an action in trover was available for the recovery of slaves, Lord Hardwicke was holding that slaves were property. Lord Hardwicke’s Act To pause for a moment the discussion of slavery, other aspects of human life and experi- ence were attended to by the law in the eighteenth century. The Marriage Act 1753 (popularly referred to as Lord Hardwicke’s Act) became law on 25 March 1754. The Act controlled irregular or clandestine marriages. There were various forms of clandestine or irregular marriage. A few examples of irregular marriages include marriage by a minister of religion and not in a church, marriage by a priest but not in a church, and marriage by a priest in a church but without ‘banns’ (public notice) having been read out loud several weeks beforehand, or a licence. The mischief that Lord Hardwicke’s Act sought to correct were marriages celebrated in prisons by clerical inmates and in the prison surrounds. These marriages had caused ‘great Mischiefs and Inconveniences’ and were ‘one of the growing evils introductive of much calamity and ruin to families’.86 As the Lord Chancellor and, so, the judge in the Court of Chancery, Lord Hardwicke was exposed to irregular marriages, most typically involving wealthy heiresses. He wanted law reform to curb these marriages, ‘which are not only introductive of great mischiefs, but put Courts of judicature under great difficulties’.87 83 Anon, The Trials of the Slave Traders, Samuel Samo, Joseph Peters, and William Tufft (Cambridge, Cambridge University Press, 2014) 61. 84 Srividhya Swaminathan, Debating the Slave Trade: Rhetoric of British National Identity, 1759–1815 (Aldershot, Hampshire, Ashgate, 2009) 64. 85 (1749) Amb 75; 27 ER 47. 86 Hervey v Aston, West T Hard, 350, 426 (1737–38). Reports of Cases Argued and Determined in the High Court of Chancery: From 1736 to July, 1739: from the Original Manuscripts of Lord Chancellor Hardwicke and the Contem- poraneous Reports, Compared with and Corrected by Lord Hardwicke’s Notes: with Notes and References Volume 1 (London, Joseph Butterworth and Son, 1827) 435. 87 Ibid 197. The Reception of English Law Abroad 115 In one case, a 17-year-old ward of court was plied with alcohol until she was intoxicated and married in London’s Fleet Prison. The Act required: The calling of banns on three successive Sundays before marriage in the church or chapel of the parish where the couple had resided for at least a month. Parental consent for minors, those under the age of 21. Two witnesses to the marriage ceremony. The public reading of Lord Hardwicke’s Act from the pulpit on four occasions each year. These requirements did not extend to Jews, Quakers, the Royal Family and Scotland. With the Act having limited territorial reach, places on the Scottish border, such as Gretna Green, became marriage havens for English couples. Scots law only required marriage per verba de praesenti, that is to say, the exchange of vows indicating the giving of present unconditional consent. As always, writers of fiction were keen observers of the laws of their times and in Jane Austen’s Pride and Prejudice, Lydia Bennett and Mr Wickham elope and intend to make for Gretna Green. Historical Cameo Lord Mansfield William Murray, 1st Earl of Mansfield (1705–93) was Lord Chief Justice of England from 1756–86. Legal historians credit him for developing English commercial law and for delivering two famous slavery decisions, Somerset’s Case88 and the Zong Case (Gregson v Gilbert).89 Lord Mansfield’s judgment in Somerset’s Case is famously – albeit erroneously – associated with the end of slavery in England. Lord Mansfield remains one of the most eminent judges of the common law tradition. William Murray was born in Scotland in 1705. He was initially educated there but, as a 13-year-old, he went to Westminster School. In 1723, Murray matriculated at Christ Church, Oxford. After graduation, he was admitted to the Bar at Lincoln’s Inn in 1730. During the 1730s, Murray gradually developed a strong practice in equity, colonial disputes and Scottish appeals to the House of Lords. In 1742, he became a Member of Parliament to fill a vacancy that had opened for the posi- tion as Solicitor-General (in office 1742–54). He was the Attorney-General for England and Wales (1754–56) for a short time before serving for 30 years as Chief Justice of the Court of King’s Bench (1756–86). On his swearing in, Murray became Baron Mansfield. As Chief Justice, Lord Mansfield expanded the jurisdiction of the Court of King’s Bench. Using his experience as a Chancery lawyer, he borrowed from equity and introduced some equitable doctrines to the law.90 In one case, Lord Mansfield made the plaintiff 88 (1772)Lofft 1, 98 ER 49. 89 (1783)1 Dougl, 233 ER 629. 90 James Oldham, English Common Law in the Age of Mansfield (Chapel Hill, University of North Carolina Press, 2005) 27–28; 116 Government, Law, Justice: 18th Century England disclose documents (the law calls this ‘discovery’) to the defendant.91 He was by no means the first judge to do so. Matthew Hale’s biographer Bishop Gilbert Burnet noted that Hale looked ‘upon Equity as a part of the Common Law, and one of the Grounds of it’.92 Because Lord Mansfield ordered this equitable procedure, it meant the defendant no longer had to visit the Court of Chancery to obtain discovery. The Court of King’s Bench heard some civil actions previously only heard in the Court of Common Pleas. Development of Commercial Law Throughout the Middle Ages, merchants had their own courts. Later on, common law judges consulted merchants to determine commercial practice. Lord Mansfield’s innova- tion was to establish special juries comprising merchants to establish the commercial position. He considered that certainty and convenience were the two aims of commercial law because, as he expressed in Metcalf v Hall, ‘nothing is more mischievous than uncertainty in mercantile law’.93 Lord Mansfield put the law on bills of exchange, promissory notes and banknotes in order. He also helped to establish the law of insurance. For example, in Carter v Boehm,94 Lord Mansfield examined principles underlying the legal doctrine of uberrimae fidei (or ‘of utmost good faith’), observing in this case about insurance that: Insurance is a contract based on speculation. The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the under- writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the underwriter into a belief that the circum- stance does not exist, and to induce him to estimate the risque, as if it did not exist.95 The insured person’s duty of disclosure is still of fundamental importance in insurance contracts. The duty of utmost good faith that Lord Mansfield brought to the English common law is still recognised as applying to all insurance contracts under Australia’s Insurance Contracts Act 1984 (Cth). Somerset’s Case In 1772, Lord Mansfield heard his most famous case, Somerset v Stewart.96 Somerset’s Case was a test case brought by prominent abolitionists, one of whom was Granville Sharpe, to settle the question of slavery’s legality in England. Before the case, signifi- cant weight attached to the Yorke-Talbot opinion that slavery was legal in England. The opinion, which was not a judgment delivered by a court, had great weight attached to it because of the eminence of the two lawyers who had delivered it. Charles Stewart, a 91 Ibid 131. 92 Gilbert Burnet, The Life and Death of Sir Matthew Hale (London, 1700) sig G3. 93 Reports of Cases Argued and Determined in the Court of King’s Bench: In the Nineteenth, Twentieth, and Twenty-first [twenty-second, Twenty-third, Twenty-fourth, and Twenty-fifth] Years of the Reign of George III. [1778–1785], vol 3 (Reed and Hunter, 1831) 115. 94 (1766) 3 Burr 1905; 97 ER 1162. 95 Reports of Cases Argued and Adjudged in the Court of King’s Bench: During the Time Lord Mansfield Presided in that Court; from Michaelmas Term, 30 Geo II 1756, to Easter Term, 12 Geo III 1772 (A Strahan and W Woodfall, 1790) 1909. 96 (1772) Lofft 1, 98 ER 499. The Reception of English Law Abroad 117 customs official, bought James Somerset in Boston, Massachusetts. In 1769, Stewart took Somerset to England as his personal servant. Two years later, Somerset escaped, but was recaptured and detained by Captain Knowles on the ship, the Ann and Mary, bound for Jamaica. Once there, Somerset would be sold. Lord Mansfield issued a writ of habeas corpus,97 ordering the Captain produce Somerset for examination before the Court. The case was heard over six hearings between January and May 1772. Lawyers paid for by a consortium of slave-owners represented Stewart. The lawyers of Somerset, chosen by anti-slavery campaigners, represented Somerset without charge. On 22 June 1772, after multiple failed attempts to have the parties settle, Lord Mansfield handed down judgment. At one of these six hearings, Lord Mansfield suggested that Stewart free Somerset. Lord Mansfield’s delays were a result of understanding that freeing slaves en masse would have enormous financial consequences: The setting 14,000 or 15,000 men at once free loose by a solemn opinion, is much disagree- able in the effects it threatens. … £50 a head may not be a high price; then a loss follows to the proprietors of above £700,000 sterling.98 Thus, Lord Mansfield framed the legal issue for decision narrowly: ‘the only question before us is, whether the cause on the return is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged.’99 He then said: So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and there- fore the black must be discharged.100 The decision did not declare slavery illegal and it did not free all slaves or even resolve the question of property in slaves. So, what was its legal effect? A master could not forcibly remove a slave from England. The campaign to abolish the slave trade was a hard fight over the decades following Somerset’s Case. In 1787, abolitionists formed the Society for Effecting the Abolition of the Slave Trade. In 1807, 20 years later, the Abolition of the Slave Trade Act made it illegal to participate in the slave trade in the British Empire. The Zong Massacre Remarkably for the time, Lord Mansfield and his wife, Elizabeth, raised and educated two of their great nieces, Elizabeth Murray (the daughter of Murray’s nephew, David Murray) and Dido Elizabeth Belle (the illegitimate child of another nephew, 97 See chapter three. 98 Thomas Bayly Howell, Cobbett’s Complete Collection of State Trials and Proceedings for High Treason: And Other Crimes and Misdemeanor from the Earliest Period to the Present Time … from the Ninth Year of the Reign of King Henry, the Second, A.D.1163, to [George IV, AD 1820], vol 20 (R Bagshaw, 1814) 79. 99 Ibid 82. 100 Ibid 81. 118 Government, Law, Justice: 18th Century England Sir John Lindsay, and an African slave). The film Belle (2014) explores the relationship between Dido and her great uncle, Lord Mansfield. The film also considers the Zong Massacre in which Captain Collingwood threw 133 Africans on the ship Zong overboard. The Zong Case is the popular case name for Gregson v Gilbert.101 In September 1781, the Zong left the west coast of Africa bound for Jamaica. On board this ship were approximately 440 Africans destined for a life of slavery. The ship was designed to hold only 200 souls. The captain, Luke Collingwood, hoped to retire on the profits made from the trip. Collingwood squeezed in and manacled as many Africans as he could on board. He was, however, inexperienced as a captain. This was to be his first and only trip. The Zong found itself stranded in the mid-Atlantic in an area colloquially referred to as ‘the Doldrums’ where there are few to no winds. Then, the crew mistook Jamaica for Haiti. In November, crew members and slaves began to die from scurvy, dysentery and other ailments. By the end of November, seven crew members and 60 slaves were dead. At this stage, Collingwood hatched a callous plan. The Zong’s human cargo had been insured for £30 per head. Collingwood reasoned that it would be better to throw sickly and dying slaves overboard and claim insurance on them than to arrive in Jamaica with dead slaves and no money. In England, the owner filed an insurance claim of £4000 for the value of the lost ‘human cargo’. The case was first heard as a trial before a jury with Lord Mansfield as Chief Justice of the Court of the King’s Bench presiding. The owners argued that a lack of water on board compelled the Captain to act as he did as a necessity. The First Mate contradicted Collingwood. The Zong may have had about 430 gallons of available drinking water on arrival in Jamaica. The insurer argued that ‘a sufficient necessity did not exist for throwing the negroes overboard’.102 In the first case, the jury found for the shipown- ers; however, the insurers applied for their verdict to be set aside and tried again. Lord Mansfield ordered a retrial. He had heard evidence of heavy rainfall over the three days the ‘human cargo’ went overboard. Two prominent abolitionists, Granville Sharp and Oloudah Equiano (the subject of another British film, Amazing Grace (2006)), tried to have charges laid against the Captain, the crew and the shipowners. The Solicitor-General refused to do this, stating: What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder. They acted out of necessity and in the most appropriate manner for the cause. … The case is the same as if wood had been thrown overboard.103 British commercial interests remained preeminent in law; however, Lord Mansfield’s ordering of a retrial made the Zong Case famous and made it a cause célèbre for the anti-slavery movement. Parliament subsequently prohibited payment by insurance companies for slaves thrown overboard. 101 Gregson v Gilbert (n 89). 102 Reports of Cases Argued and Determined in the English Courts of Common Law (T & JW Johnson, 1853) vol 26, 159. 103 Ibid 159 (emphasis added). Abolition of the Slave Trade 119 Abolition of the Slave Trade In concluding the treatment of the slave trade, this section considers three pieces of early nineteenth-century legislation that achieved this end: the Slave Trade Act 1807,104 the Slave Trade Felony Act 1811,105 and the Slavery Abolition Act 1833.106 The Slave Trade Act 1807 outlawed trading in slaves in most British colonies. Vessels fitted out to engage in the slave trade were forfeit. However, fines imposed by the 1807 Act did little to deter human traf- ficking. Indeed, when Parliament introduced the Slave Trade Felony Bill 1811 to make the Slave Trade Act 1807 more effective, the Member for Stockbridge Joseph Barham remarked that he was ‘sorry to understand, that the illicit trade in slaves had so greatly increased, that if not effectually checked, it seemed as if it would shortly exceed that slave trade which had been abolished’.107 The Slave Trade Felony Act 1811 made slave trading a felony,108 punish- able by penalties of imprisonment and hard labour of between three to five years or 14 years’ transportation. On 28 August 1833, the Slavery Abolition Act 1833 received royal assent and came into force on 1 August 1834. The aims of the Act were threefold. The first aim was to abolish slavery throughout the British colonies. Slaves in most British colonies includ- ing the British Caribbean, Mauritius and the Cape of Good Hope were emancipated.109 The Act’s operation excluded territories in possession of the East India Company, Ceylon (now Sri Lanka) and Saint Helena.110 The Act also freed children under the age of six.111 The second aim was ‘for promoting the Industry and securing the good Conduct of the Persons so to be manumitted’. Many formerly enslaved people continued to work for their former owners for four to six years as unpaid apprentices. They finally gained their freedom at midnight on 31 July 1838. The third aim was to pay ‘a reason- able Compensation … to the Persons hitherto entitled to the Services of such Slaves for the Loss that they incur by being deprived of their Right to such Services’. The British Government borrowed £20 million, approximately 40 per cent of its total annual expenditure, to fund this compensation scheme.112 The loan was finally repaid in 2015 following a loan restructure. 104 47 Geo 3 sess 1, c 36. 105 51 Geo 3, c 23. 106 3 & 4 Will IV, c 73. 107 United Kingdom, Parliamentary Debates, House of Commons, 8 March 1811, vol 19, col 239 (Joseph Barham). 108 Slave Trade Felony Act 1811 (n 105) s 1. 109 Slavery Abolition Act 1833 (n 106) s 45 110 Ibid s 64. 111 But see s 13. 112 Information Rights Unit, ‘Freedom of Information Act 2000: Slavery Abolition Act 1833’ (HM Treasury, 31 January 2018), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/680456/FOI2018-00186_-_Slavery_Abolition_Act_1833_-_pdf_for_disclosure_log__003_. pdf. 120 Government, Law, Justice: 18th Century England Pause for Thought Modern Slavery Slavery, though legally abolished, is very much alive. Questions to Consider 1. What are the modern circumstances that have given rise to slavery? 2. What modern safeguards exist to attempt to protect people from slavery? Historical Cameo Sir William Blackstone Sir William Blackstone (1723–80) was a jurist, judge, poet, architectural enthusiast, politician and professor of law at the University of Oxford. He is widely known as the author of the Commentaries of the Laws of England (1765–70). Published in four volumes, the Commentaries comprehensively and systematically set out the common law of England, which Sir Edward Coke’s Institutes had attempted about a century and half earlier. In the author’s lifetime alone, the Commentaries received five separate republica- tions. They were highly influential and popular in England and the colonies, especially in the United States, where judges still cite Blackstone regularly in judgments. A copy of Blackstone’s Commentaries came to Australia with the First Fleet in 1788. In 1758, Blackstone became the first Vinerian Professor of English Law, a chair that had just been established. He set about teaching English law in a series of lectures. This is significant because universities did not teach the common law until the nineteenth century. Cambridge and Oxford taught civil and Roman law. In 1770, Blackstone became a Justice of the Court of King’s Bench before being elevated to Justice of the Court of Common Pleas the same year (1770–80). See more about him in the Selden Society lecture. Conclusion If the seventeenth century was the ‘Iron Century’, the eighteenth century is known as the era of the ‘Bloody Code’. Many of the experiences of justice recounted in this chapter from the public executions to the commodification of human beings are not inspiring. This chapter has addressed a range of touch points for the legal history of the century, which in turn have intersected with different social layers. The notions of responsible government and the developments in contract law take attention to high-minded and intellectually adventur- ous developments in government and law. However, the brutality of trials and the human misery of slavery are critical elements of the legal history, and the history of slavery contin- ues to resonate today.

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