Resistance to Law under Autocracy
| DOI | http://doi.org/10.1111/1468-2230.00116 |
| Author | Bruce Kercher |
| Published date | 01 November 1997 |
| Date | 01 November 1997 |
Resistance to Law under Autocracy
Bruce Kercher*
We all know that Fletcher Christian and his mutinous mates threw Captain Bligh
off the Bounty in 1789. As Bligh said, in his water-stained log book which was
recently on display in the State Library of New South Wales:
I am now unhappily to relate one of the most atrocious acts of Piracy ever committed. Just
before sunrise Mr Christian & the Master in Arms & several others came into my Cabbin
while I was fast asleep, and seizing me tyed my hands with a Cord & threatened instant
death if I made the least noise . .. ‘Hold your tongue Sir or you are dead this instant’ was
constantly repeated to me.
1
It is less well known by those who live outside Australia that Bligh suffered a
similarly humiliating episode in 1808, when he lost control of an entire colony.
Bligh arrived in Sydney in 1806, as the fourth governor of New South Wales. His
temper was not the sole cause of his loss of control of the penal colony two years
later. For the previous decade the colony had been embroiled in a conflict between
the governors and the officers of the notorious New South Wales Corps. Bligh’s
two immediate predecessors, Governors Hunter and King, had favoured small ex-
convict farmers over their creditors, the traders, whom the military officers
supported. This was as much a tussle over the nature of the colony, whether one of
free trade or of yeomen farmers, as it was for political and financial control. The
coup against Bligh, which took place on 26 January 1808, the twentieth
anniversary of the foundation of the colony, was the culmination of years of
squabbling in and out of the courts. It was the ultimate expression of rejection of
law in the Australian colonies, but it was not a popular rebellion. This was a revolt
by one part of the ruling class, the military officers, against another.
2
A naval officer with an infamous temper was hardly likely to apply all the laws
of England, especially in a colony full of Irish and British convicts and one subject
to such dangerous politics. When reminded of the law by Judge Advocate Richard
Atkins on one occasion, Bligh replied ‘[t]he law sir! damn the Law; my will is the
law, and woe unto the man that dares to disobey it!’.
3
He expressed the same
notion more forcefully in 1807 when responding to a leaseholder who was pressing
what he argued were his rights under English law: ‘Damn your laws of England!
Don’t talk to me of your laws of England: I will make the laws for this colony, and
The Modern Law Review Limited 1997 (MLR 60:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 779
* Macquarie University, Sydney.
I thank my colleagues, Iain Stewart and John Gava, for their help. This article is based on a paper delivered
at the 1996 Annual Meeting of the American Society for Legal History, Richmond, Virginia.
1 W. Bligh, Log of Proceedings of H.M.S. Bounty, 28 April 1789 (in Mitchell Library (ML), Cy Safe 1/
47).
2 For further development of some of the themes in this article, see B. Kercher, Debt, Seduction and
Other Disasters: the Birth of Civil Law in Convict New South Wales (Sydney: Federation Press,
Sydney, 1996). The following paragraphs on the colony’s constitution are based on this source.
3 Atkins’ evidence, in J. Ritchie, (ed), A Charge of Mutiny: the Court Martial of Lieutenant George
Johnston for Deposing Governor Bligh in the Rebellion of 26 January 1808 (Canberra: National
Library of Australia, 1988) 161.
every wretch of you, son of a bitch, shall be governed by them; or there (pointing
over to the gaol) is your habitation!’
4
Bligh was the only person in New South Wales to take this line however, the
only one to reject English civil law so explicitly. Even the rebels justified their
actions against Bligh by reference to what they thought were the illegal acts of
Bligh himself. All other governors and all judges made at least some attempt to
apply the civil law of England that they knew was the core of the colony’s law.
According to the common law, in supposedly settled colonies such as New South
Wales, the law was fundamentally that of England. Blackstone said that settled
colonies received so much of the law of England as was ‘applicable to their own
situation and . . . condition’.
5
Most people in the colony assumed that this was so,
but when provoked at least, Bligh did not show much concern with this
fundamental point.
Like all the New South Wales governors in its foundation years, Bligh enjoyed a
legal position that was as close to autocracy as English law allowed in the
nineteenth century. The governors were appointed under commissions issued by
the crown, and also received royal instructions as to how they were to act.
6
Expressly or by implication, these orders gave them personal control over the
colony’s judiciary, administration and law making. The governors shared judicial
power with a judge, also appointed by the crown. The judge bore the military title
of Deputy Judge Advocate, and when he sat in the colony’s main civil court, the
Court of Civil Jurisdiction, he did so with two lay assessors rather than a jury. The
governor chose the assessors, and decided when this court was to sit. For most of
the first 25 years, these Judge Advocates (as they were usually known) were legal
amateurs. For law, they were reliant on their copies of Blackstone and the rather
dubious legal advice of a few attorneys who had been transported for forgery or
perjury. Aggrieved litigants were entitled to appeal, but at first this was to the
legally untrained governor himself, who sat alone in the Court of Appeal.
7
From
him, there was an appeal to the Privy Council in larger cases, but only one case
ever went to London for final decision in the first 25 years.
The British government decided that a penal colony had no need or right to a
legislature, so the governors quickly developed a practice of making Orders or
Proclamations in place of local legislation. Most legal historians have concluded
that this was lawful by imperial standards, so long as the Orders did not contradict
the laws of England.
8
The governors also had complete legal control over the
colony’s administration and they made appointments to the magistracy. All of this
was subject to theoretical review in England, but the British government was
thousands of miles away and it was preoccupied with France for much of this
period in any event. While the colony remained a quietly functioning place to send
4 Mann’s evidence, in ibid 365.
5 W. Blackstone, Commentaries on the Laws of England (9th ed, 1783, New York: Garland Publishing,
reprint 1978) Vol 1 108.
6 See A. Castles, An Australian Legal History (Sydney: Law Book Co, 1982) 34–35.
7 The colony’s courts were established by Letters Patent (the First Charter of Justice, 2 April 1787) and
by legislation ((1787) 27 Geo III c 2).
8 E. Campbell, ‘Prerogative Rule in New South Wales, 1788–1823’ (1964) 50 Journal of the Royal
Australian Historical Society 161, 180; R. Else-Mitchell, ‘The Foundation of New South Wales and
the Inheritance of the Common Law’ (1963) 49 Journal of the Royal Australian Historical Society 1,
5; V. Windeyer, Lectures on Legal History (Sydney: Law Book Co, 2nd ed, 1957) 306. For a broader
view of their powers, see H.V. Evatt, ‘The Legal Foundations of New South Wales’ (1938) 11
Australian Law Journal 409, 421; H.V. Evatt, Rum Rebellion A Study of the Overthrow of Governor
Bligh by John Macarthur and the New South Wales Corps (1938, Sydney: Angus and Robertson,
reprint, 1976) 82–83.
The Modern Law Review [Vol. 60
780 The Modern Law Review Limited 1997
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