Where the Future meets the Past:
Lawyers in the late twentieth century are increasingly inflicted with far too much material. As litigation grows, so do the reported cases of the superior courts. Whether they are preparing advice, writing academic articles, preparing to teach a class, or preparing for litigation, they are faced with the problem of finding and sifting relevant case law. The internet has been extremely helpful in finding new material: new cases are online almost instantly, and sophisticated search engines allow lawyers to chase down even esoteric points of law. It does not decide which cases are more important than others however. Indeed by making increasing numbers of cases available, many of which might not have been reported in traditional ways, it adds to the problem of excessive material. Internet sites such as AustLII are a response to the gathering pace of new legal materials, but I also think that they are part of the problem.
Australian legal historians have the opposite problem. A postgraduate student recently asked me for advice on a thesis he is preparing for Macquarie University's LLM in environmental law. He wants to write on pollution law in New South Wales before 1850. There is probably plenty of material, I told him, but the problem is finding it. New South Wales, like most other Australian colonies, was very poorly served by law reporting prior to 1900. His paper is required to be about 20,000 words, and it is too much to expect him to spend the next couple of years poring through the newspapers and archives looking for unindexed materials.
The earliest formal law reports for New South Wales begin in 1830: they were compiled by a barrister, Gordon Legge, but he only compiled them in the 1890s. They were taken from case reports in the by then yellowing newspapers, supplemented by some reference to the notebooks of the judges concerned. These reports are particularly poor for the period of the first Chief Justice, Francis Forbes. Forbes sat on the bench in Sydney for 12 years, from 1824 until 1836, but Legge thought that only seven cases from these years were of sufficient interest by the 1890s to be worth reporting. We had no contemporaneous law reports until the 13 volume series called Reports of Cases Argued and Determined in the Supreme Court of New South Wales, covering cases decided between 1863 and 1879. They, too, were based on newspaper accounts, but they also included a few cases before 1863. Apart from a volume published in 1846, contemporary formal law reporting as we now know it did not begin until the New South Wales Law Reports commenced in 1879.
So our environmental law student has very little to work with in the formal law reports. If he wants to find the relevant case law, he will have to scan through many thousands of pages of the Australian, Sydney Gazette, and the Sydney Herald, to find their law reports, and then sift them for pollution cases. To be thorough, he will also have to go to the State Records office of New South Wales, and read hundreds of volumes of judges' notebooks. Justice Dowling, for instance, left about 250 handwritten volumes, often in poor handwriting and sometimes in shorthand.
This case law material is very important: from 1824 onwards, these were the reports of the present Supreme Court of New South Wales. In a strict sense, these precedents are still binding. This was recognised, for instance, in R v Wedge  1 New South Wales Law Reports 581. Rath J held that as a single judge of the Supreme Court of New South Wales, he was bound by the decision of three judges of his own court in R v Murrell (1836) 1 Legge 72. What he did not know, was that Legge had taken only one of the available accounts of the decision in Murrell. The case is even more important than the Rath J realised: the newspaper on which Legge based his report failed to include the sentences which make clear that this was the founding document of the terra nullius doctrine in this country.[ 3] The legal problem is, then, that our judges are relying on only a tiny fraction of the case law of their predecessors, and a sometimes inaccurate fraction at that.
These unreported cases are important for historical reasons as well. First, accounts of legal proceedings are often the only source we have of the words of our frequently illiterate ancestors. Secondly, HV Evatt emphasised in his Rum Rebellion (1938), the courts often were the only public space in which the political battles of the foundation years of the colony could be fought: they played the role presently played by parliament. Thirdly, law was also central to the development of colonial society: to understand Australian history, it is necessary to have some grasp of the ambivalent relationship between Australian and English law. Law constitutes society as much as it is constituted by it.
We should also be very wary of assuming that the law of England was automatically the same as that applied in the colony of New South Wales. This is an issue to explore, not one to be answered by a priori positivism or by reference to the formal constitutional position. Those who are interested in colonial legal history very soon learn to question this assumption. New social and geographical conditions very often led to new law.
How, then, do we make this material more readily accessible? We cannot expect lawyers preparing cases, academics preparing classes or articles, and students preparing short theses to go to the newspapers and archives whenever they research new material.
English law has long faced a similar problem. In one of the greatest works of scholarship in any discipline, the Selden Society has published over 100 volumes of edited legal materials, mainly from the thirteenth to the seventeenth centuries. The Society was founded in 1887, and has regularly published volumes since then. There is also an Ames Society at Harvard University, with a similar aim of publishing early English law reports and records.
The nearest to these in Australian law is a volume published in 1979 by John Bennett and Alex Castles, called A Source Book of Australian Legal History. It includes a few cases as well as statutory materials. The greatest project of Australian historical publishing, the Historical Records of Australia , has one volume (Series 4, Volume 1) devoted to law, though it, too, includes little case law.
On paper, then, there is little in this country to compare with the Selden society's volumes. Nor is the economics of publishing in this country at all encouraging: there is a much greater number of people interested in seeing the primary sources of English law in print than there is for each of the former colonies of Australia. If this material is ever to be made accessible, it has to be done by electronic publication.
In 1996, the Australian Research Council awarded me a Large Grant to dig out, edit, publish and comment on the case law of New South Wales prior to 1900. The project has ruled my professional life ever since. I decided to begin with the decisions of 1824, the first year of operation of the permanent Supreme Court of New South Wales, and to publish the material, initially at least, on the internet. We give the full text of selected cases, not extracts. We also type the material out rather than scanning it as a digital image of the pages or attempting to convert scanned pages with OCR software. The latter simply does not work with material of this age. At the time of writing this paper, we have published cases from 1824 to 1832, and should complete the cases of the Forbes court (1824-1836) before the money runs out in December this year. We have published over 600 cases so far, most of them with footnote commentary. This is over a million words of material, something that no print publisher, even the admirable Federation Press, would dare take on.
Our site is rather like a combination of AustLII and the Selden Society publications. It seems that there is no other web site exactly like it, though the internet is increasingly being used for legal history. Some internet sites, such as that of the Avalon Project of Yale Law School, are also devoted to the publication of primary source documents, but not case law. The Avalon Project publishes mainly treaties, statutes and legal treatises, but little case law. There is also an excellent British site with a similar emphasis on treatises and statutory material. An American academic, Robert Palmer, conducts a site with a similar collection of American materials, which includes a few cases. Some law teachers also have collections of primary source documents, including selected cases, for their legal history students. None of these, however, aims to place the records of a court online.
Ours is a very expensive project. The budget for 1999 alone is about $60,000. The cost is explained by the vast size of the primary sources of New South Wales law. In any historical year of the 1820s or 1830s, there are records of about 1000 cases in the newspapers and judges' notebooks, many of them recorded several times. The project begins for any historical year when a research assistant photocopies all references to the Supreme Court from the newspapers (and even then some selection is necessary: not all newspapers were worth reading for their law reports). I also read the archival accounts and make photocopies of the most important cases recorded there.
As project director, I read all of these records and select the most important of them for publication online. We have settled into a pattern of publishing between 80 and 100 cases each historical year. At the beginning of the project, I established the following criteria for selection:
1. All decisions involving more than trivial or frequently repeated points of law are included. In particular, all cases concerning the adoption or otherwise of English law are included.
2. All cases of significant political or social interest are included. These include all but trivial or frequently repeated references to the rights of women, convicts and Aborigines. Cases on the Aborigines are particularly useful at a time when native rights are receiving such attention as they are at the end of the twentieth century. The newspapers and manuscript records include many cases concerning Aborigines which have not yet been examined by historians or lawyers.
3. All cases concerning prominent people are included, such as the 1824 prosecution of Hovell, the explorer, and the trial for murder of the men who killed the barrister, Wardell.
I also choose which version of the case to publish. There is no such thing as an objectively true account of any case. Even the judges' notebooks record only what the judges thought were the important points of the case. However notebooks are a good guide as to what they intended to say in their judgments, especially when a short hand reporter used the same words in a newspaper account. We can sometimes gauge the reliability of judgments by the judges' responses to inaccurate reporting: the newspapers sometimes published corrections. For important cases, such as R v Murrell, we usually include more than one account, but most cases are reported only once on our site, with references to other sources.
These are most often records of proceedings rather than judgments as we now think of them. The newspapers published accounts of bushranging or other violent cases in order to entertain their readers, or to persuade them towards the editors' preferred political and social positions. On the whole, the newspapers did manage to avoid editorialising in their law reports. They usually commented on cases in editorials and news columns, not in the law reports. There were some amusing lapses of this practice, which are often included in the collection. Contested versions of law reports are always interesting.
After selection, the material is typed and proofread. Much of my time is then spent in cross-referencing between the various sources of a case, and to related cases. I also write footnote commentary using the newspapers' editorials and other archival accounts such as letters. As the project has proceeded, I have spent less time on writing these commentaries. It is necessary to strike a balance between very thorough commentary and reasonable progress through the years. It would not be very helpful to have extremely heavily annotated cases at the expense of covering only a few historical years over the life of the project. At the other extreme, nor would it be much use to include only one version of any case, with no reference to other sources of it. Even with a large dollop of federal money, compromise is necessary. The funding is spent roughly equally between teaching relief for me, typing and research assistance.
I think that there are very great advantages in publishing this material on the internet. It is accessible to anyone in the world with an internet connection. To my surprise, I had an email message from an American who is researching the reception of English law in the Australian colonies. I have one PhD student working on these materials, and have had preliminary inquiries from others. Several academics have also used the site as a source, sometimes the sole source, of articles and books. The point is, that we have uncovered vastly more material than I will ever be able to use myself: one real problem is that the project is so time-consuming that I seem to be the person who has least time to use it on projects that interest me. I have written papers on Aboriginal rights and remedies, but there are dozens of other issues for others to look at.
Being on the internet, especially on the AustLII site, makes these cases unusually searchable. I index the cases through a system of key words, but they are my words, my versions of what words are important. It is quite certain that other users will find that I have not used their preferred terms, and they can find them on AustLII's search engine.
We have had few technical problems: we use NetObjects Fusion, which we find is easy to use. We did find a bug in version 2: when importing foreign HTML it randomly left words out. We worked our way around that problem, and are now transferring to version 3. Version 2 also left us too remote from the raw code: version 3 allows easier access to it, though apparently at the expense of speed. Other technical problems we happily blame on Microsoft: crashing Windows are an ever-present danger. We often work on 50 or 100 files a day, and even Pentium 2 and lots of RAM don't help a great deal. Mac users may scoff at this point.
Other problems come from the newness of internet publishing. As we are self-publishers, we have to do our own publicity. We aren't very good at it. I gave a speech to the New South Wales branch of the Selden Society, which was subsequently published in the Australian Law Journal. Bernie Hibbitts kindly asked me to write a piece for his JURIST site. I am also writing a short piece for the Australian Bar Review, and have presented a couple of papers at the annual conference of the Australian and New Zealand Law and History Society. In October this year, I will do the same at the annual meeting of the American Society of Legal History. As an academic lawyer, it is more difficult for me to get to historians, than lawyers and legal academics, though I recently returned from presenting a paper at the World History Association's conference.
One seriously irritating issue is that internet and electronic publication is given no recognition by DETYA as a research activity. Even though my site is funded by a federal grant, another arm of the same department does not see it as having any value. I get DETYA points (and thus funds) for publicity pieces (such as in the Bar Review) but not for the project itself.
Another instance of the slowness to come to terms with this kind of publication is that lawyers and judges expect law reports to be in prestigious looking books. Among our 100 cases each historical year, are about 10 important judgments. They include, for instance, the first Australian discussion of the visitor's jurisdiction: this point of law has received very little attention in Australian courts, and is still important to universities and the Anglican church. I need to find a way to highlight these cases, and I suspect that means that I must publish them on paper. As I said earlier, the Legge reports are inaccurate in places, and grossly incomplete. Their authority can only be challenged by a formal publication following the traditions of law reporting. I have published three cases in the Australian Indigenous Law Reports, and I now plan to edit a volume of law reports from the Forbes Chief Justiceship. This will certainly require sponsorship from the profession.
The project requires a lot of patience and a lot of time. In financial terms, this project has cost over $150,000 to publish the more important records of just one Australian superior court over only 12 years. It has cost me three of my finite years of research time: that is three years away from the normal research activities of academics. This is money and time well spent when we occasionally find new, important material. We discovered, for instance, that the Supreme Court decided another case like Murrell in 1829, but in exactly the opposite way. Two of the judges who only seven years later endorsed terra nullius in Murrell's case held to the opposite view in R v Ballard in 1829: they found that Aborigines have recognisable laws of their own, and enforceable property interests.
The discovery of important law like this is important to me, but so are the stories of daily life. New South Wales was an astonishingly violent place at this time: that was not just propaganda by conservatives such as the proprietors of the Sydney Herald. We have published 60 murder cases in the 9 years from 1824 to 1832, and they are only a fraction of the murder cases we could have included. There were dozens of bushranging cases as well: some bushrangers held up the Macquarie lighthouse in eastern Sydney, and others stayed so long at a house in Glebe that they baked themselves a cake. More importantly, the cases allow us to make a close investigation of the relationship between the judiciary, the executive and the legislature. It is in the latter cases that we need to be particularly careful about the accuracy of the newspapers' law reporting.
I have applied for a new grant to carry on this work for another 15 or so years, but even if we do that, we will still be about a decade short of 1863 when something like adequate law reporting began in New South Wales. We will not have touched the period before 1824, when the social and political questions were just as compelling even if the legal authority was much weaker. Nor will we have touched other jurisdictions. In my most ambitious fantasies, I imagine similar projects in other jurisdictions. Only when we can gain easy access to the case law of New Zealand, Canada, Australia, South Africa, Ireland, Scotland, England and the United States, can we really engage in a comparative study of the case law of the old empire. This would require immense resources, of course, but it would have immense benefits. The postgrad environmental law student would then be able to complete his project with some ease.
1. Reserved and Equity Judgments of the Supreme Court of New South Wales, Delivered during the Year 1845. See AC Castles, Annotated Bibliography of Printed Materials on Australian Law 1788-1900, Law Book Co., Sydney, 1994, p. 4.
2. See J Bennett and AC Castles, A Source Book of Australian Legal History, Law Book Co., 1979, pp 261-263; AC Castles, An Australian Legal History, Law Book Co., Sydney, 1982, pp 516-517; H Reynolds, Aboriginal Sovereignty , Allen and Unwin, 1996, pp 7f.
3. A fuller version of the case is reported, together with two other cases on the same point of law, in (1998) 3 (3) Australian Indigenous Law Reporter 410-425. These were the first formal law reports from this project.
4. The most accessible reference to these volumes for a computer literate audience is the Society's web page: < http://www.law.harvard.edu/Programs/selden_society/main.html>.
6. The cases are at <http://www.law.mq.edu.au/scnsw/> and on AustLII at < http://www.austlii.edu.au/au/special/nswsc/pre1900/>. They are also published on the Butterworths site (<http://online.butterworths.com.au/> [subscription needed]).
10. Another interesting site publishes the Banks papers held by the Mitchell Library: <http://www.slnsw.gov.au/Banks/>. It includes 10,000 pages, reproduced in photographic form rather than in searchable text.
11. 'Publication of Forgotten Case Law of the New South Wales Supreme Court' (1998) 72 Australian Law Journal 876-888.
13. Walker v. Scott (Nos. 1 and 2) (1825 and 1826).
14. 'R v Ballard, R v Murrell, and R v Bonjon' (edited law reports, with introduction) (1998) 3 (3) Australian Indigenous Law Reporter 410-425.
15. Lighthouse: R v Ireland, 23 May 1836 (not yet online); cake: R. v. Mackay and Dickenson, 1826.
This is a Commentary published on 29 February 2000.
Citation: Kercher B, 'Where the Future meets the Past: Pre-1900 NSW case law on the Web', Commentary, 2000 (1) The Journal of Information, Law and Technology (JILT) . <http://elj.warwick.ac.uk/jilt/00-1/kercher.html> .New Citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/kercher/>