Recovering and Reporting Australia's Early Colonial Case Law: The Macquarie Project

Abstract

When it was established in 1788, New South Wales became the most remote, and most peculiar, of the British empire's overseas colonies. The founding colony of what would eventually become Australia, it was established as a penal colony, a place to send the unwanted criminals of Britain and Ireland. Britain lost more than the majority of its North American possessions in the late eighteenth century. It also lost its principal repository for unwanted felons. New South Wales filled the gap.

Review of Legal History

“…The same can be said about administrative bodies and tribunals which have also largely, but not entirely (Benidickson, 1990; Hibbitts, 1991; Stebbings, 2006), escaped the attention of legal historians (Valverde, 1998: 147). Even when it comes to the common law courts, as Kercher’s work on colonial-era Australia shows, not all of the decisions were published (Kercher, 2000). Kercher set out to change this with the aim of the resulting publications being useful to both historians and practicing lawyers.…”

“…Although, again, one might ask whether Kercher’s recovery is really legal history scholarship (Brand, 2012: 24–29). The project as originally envisioned was and is more than just publishing the ‘lost’ cases, it also sought to provide commentaries on what the judges were doing (Kercher, 2000: 661; Petrow, 2000: 15).…”