Vol 33, No 1 (2015): Legal History Turns

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This article locates ‘legal history turns’ in the wider intellectual landscape of the proliferation of turns in the 20th and 21st centuries, and examines the tension between turns’ diverse topics and optics. These ‘optics’ represent diverse historiographical and interdisciplinary perceptions that illuminate topics in law, legal scholarship and legal history. The article first ‘defines’ legal history turns, and then moves to consider how the increasing production of turns generates tensions not only between topics and optics, but between brighter views and darker visions of ‘turn talk’. The potential of exploring legal history turns is endorsed by identifying how optics are generated from the topics of the ‘Legal History Turns’ Special Issue.

This article compares the imposition, application and evolution of the Rule of Law in colonial territories and their populations within the British Empire as evidence of a ‘Comparative Turn’ in exploring metropolitan and colonial legal cultures and their interrelationships. The purpose of the study is not primarily to either justify or criticise that concept, but to suggest that its complexity, contingency and controversy provides fertile soil for research relating to law and justice, and their ideologies across the British Empire.

This article analyses the legal concept of wickedness through the 16th century case of Saunders and its representations by treatise writers. Saunders had tried to kill his wife by giving her a poisoned apple. Not knowing it was poisoned, his wife gave the apple to their daughter, who died. Saunders was charged with murder but argued that he did not have malice against his daughter, and therefore should not be found guilty. Treatise writers drew upon different sources to construct a persuasive model of legal wickedness including evil intention, harmful consequences, manifest criminality, and the religious imagery of the apple. Saunders is a reminder of alternative models of legal wickedness that have been neglected.

In 1901 one of the pioneering Durack family was killed on the verandah of his cattle station homestead in the East Kimberley region of Western Australia. In a subsequent trial two young Aboriginal men were tried for his murder. Three years earlier the murdered man had himself been charged, though never tried, with the murder of an Aboriginal man. Connecting these two homicides was work best avoided when writing the pioneer legend of Australian history, but is inescapable when seeking to appreciate the ambition and limits of criminal law in a colonial society, the task of this article. At the same time, the evidentiary demands of historical reconstruction prove as challenging as those of legal proof when faced with the task of understanding what was in the minds of those actors, settlers and Indigenous, more than a century ago.

This article considers the Australian Constitution and the end of empire – it is an examination of, and a reflection on, effectively a century of legal history. It canvasses five particular topics: the assumption by Australia of international legal personality; the sovereign’s position and authority; the Governor-General’s office; the scope of various legislative powers; and the Australian judicial structure. This examination illustrates how, with the diminishing impact of the British Empire and its institutions in the past century, the Australian Constitution’s operation has been modified, and the High Court’s position in the judicial structure has changed significantly.

This article recalls Sir Heneage Finch (1621-1682) – better known as Lord Chancellor Nottingham – and in addition his contemporary, Sir Matthew Hale (1609-1676). Its focus is on their bearing of a ‘persona’ appropriate to the duties of judicial ‘office’ in the Restoration context of the Anglican settlement. The aim here is to demonstrate a biographical turn that is personal and historical but not anachronistic. The article proposes two descriptive protocols concerning ‘office’ and ‘persona’, and four revisions that impel this biographical turn to a more historical account of Lord Nottingham.

This article argues that there will not be an ‘end of turns’, but that the turn to contextual legal history in the 1960s remains the most potent, enduring turn the discipline has undergone. The varying meaning of judicial independence in nineteenth-century British North America illustrates this. It represented and was influenced by grand constitutional principle, the struggle for colonial autonomy, local control over public finances, and judicial fear of popular involvement in the removal process. Contextualism and complexity is examined here through the lens of judicial independence in three British North American colonies – the colonists worked within the essential paradigm of the inherited British Constitution.

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