LESSONS FROM THE WEB

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Web Publication of Early Case Law:
Decisions from the Courts of New South Wales, Australia

Bruce Kercher, Macquarie University School of Law, Sydney, AUSTRALIA

The Web is the best place to publish the surviving records of early courts. These are public documents, but are usually buried in government record offices or in old newspapers. The Web is open to anyone, anywhere in the world, who has access to a computer and modem, or to a public library with Web facilities. Web publication encourages comparative work in a way that is not otherwise possible: imagine the advantages to legal historians of dozens of case-law sites across the common law world. How did judges react to seditious libel cases in Upper Canada, Massachusetts and New South Wales, for instance? Without Web publishing, it would be necessary to spend weeks in Toronto, Boston and Sydney. Attractive as that might be, depending on the season, it is not always possible. Web publishing can take each of us beyond our sometimes provincial concerns. It also allows full text searching: indexes are still necessary, but they cannot anticipate the needs of every reader. These are the lessons learned from experience in publishing the case-law of early New South Wales.

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.

The amateur justice that was so common in the frontier courts of new colonies had a military tone in early New South Wales. Its first judges bore the title Judge Advocate, and military officers in full uniform sat as jurors in major criminal cases. A permanent Supreme Court was established in 1823, along with a legislature and familiar officials such as an Attorney General and a Solicitor General. The new court was constituted by professional judges, some with experience in other colonies in the Americas or Africa. It was still a penal colony however, with military officers playing the role of governor.

The courts faced unusual legal questions, such as whether the law of felony attaint would apply, and whether the Aboriginal inhabitants were subject to British jurisprudence. Unfortunately, most of us know little about what they decided.

This is because New South Wales is unusually badly served by law reporting. There was no consistent, professional reporting until the late 1870s. Before then, the newspapers carried out public law reporting. In the 1890s, a barrister reprinted two volumes of early decisions, which had been reported in the newspapers from 1830 onwards. There is no reporting, even of this retrospective kind, for the foundation years between 1788 and 1830.

I became concerned about the state of law reporting when I became interested in the decisions of Francis Forbes, the founding Chief Justice of New South Wales (on the bench in Sydney between 1824-1836). He had formerly been Chief Justice in Newfoundland, and the reports of the decisions he made there are readily available. I found that the same did not apply to thousands of decisions he made in Sydney. Only seven of them are in the law reports. Forbes was one of the great adapters of the inherited legal traditions of England, a liberal in a penal colony who clashed with the last of the autocratic military governors, Ralph Darling. Without thinking deeply about the implications, I applied to the Australian government for money to uncover and publish important decisions made by the superior courts of New South Wales before 1900. The project has since ruled my professional life.

Research assistants and typists work on the project for about 35 hours a week. Together, we read newspaper and archival accounts of decisions commencing with the Forbes Chief Justiceship. About 1000 cases a year were recorded in one form or another, many of them in four or five different places. I select what I think are the most important of them, about 100 a year after 1825. In most cases, I arrange to have one version of each of these selected cases typed, keeping as close as we can to a full, accurate reproduction of the original. (None of the materials can be scanned, even those in the newspapers.) Other versions of the published cases are mentioned in the footnotes. Much of my time is spent writing footnote commentary, giving the context of the case and linking it to other cases. The most useful sources for these comments are the letters of the participants, particularly the judges. Forbes had a long correspondence with a patron in England, in which he often told him what he really thought about his decisions (and about Governor Darling).

No publisher would take on a project of this size for traditional publishing on paper. The project is ideally suited to Web publishing, and that is how we decided to present the material. At present we have the years 1824 to 1829 online, about 500 cases. They are progressively being published at my Law School (at Macquarie University in Sydney) and on Austlii, the innovative net publisher of legal materials. I am also considering the possibility of consolidating publication at the end of each Chief Justiceship; we may decide to publish the cases on CD-ROM, divided into the decisions made during the office of each Chief Justice.

Most of these reports are not reports of judgments but of the evidence given in court. About 10% of the selected cases are judgments on a great variety of subjects, and I plan to publish some of these as law reports on paper, again organised around successive Chief Justiceships.

One problem we face is that the project seems to be without precedent. The Avalon Project at Yale University is a great resource, but does not have the same aims. In this project, we are closer to the publications of the Selden Society, that great British institution which has been publishing archival legal material for the past century. Our project is unusual in being on the Net, and in having such detailed supporting footnotes. We have to find our own solutions to problems such as how much detail to present, and just how to do it. There have been few technical problems: we use NetObjects Fusion to convert our text into HTML code and have had no serious problems. The main expense comes from the time spent in typing, converting word processor footnotes to HTML and proofreading, and, in my case, reading thousands of cases and letters. We have to be very disciplined about keeping control of every group of cases: a dozen people have worked on the project so far, on as many computers, and we need to keep close track of who has the latest version of any case.

My aim is to make this material available to historians as well as lawyers and legal historians. Court proceedings offer extraordinary details for historians of politics, the economy and daily life. In these cases, we read details about bushrangers who burst into a house and stayed so long that they baked themselves a cake. And about convicts who seized the ship which was taking them to the hellish Norfolk Island; they sailed the ship to New Zealand, where they were captured by 200 Maori warriors in war canoes, returned to Sydney and convicted of piracy. Other stories concerned Aborigines who were tried for the murder of British settlers or of one another, and even a military officer who was tried for the murder of an Aborigine who had been in his custody. There was also a series of cases concerning the capture of a vessel in Sydney harbour, which had been chartered by the local government to travel to Asia to buy food. The naval officers claimed that they were entitled to seize the ship because it had been used to import tea in contravention of the East India Company's monopoly. When the Attorney General of New South Wales was rowed out to the captured ship, he came under gunfire from its naval defenders. These gripping stories keep me at my desk or in the archives, but I am not aware, yet, that general historians are using the material.

Lawyers and legal historians have shown the greatest initial interest in this project. Some use the cases in their law school courses, and others in their own research. Soon after delivering a speech about the project to the local branch of the Selden Society, I had a call from the New South Wales Solicitor General, who asked about cases on the powers of the local legislature. He is preparing a case for the High Court of Australia.

This is an exhilarating project. I most enjoy the discovery phase of legal history, and this project largely consists of discovery: for instance, I have found the earliest known local cases on the powers of the visitor, an ancient British institution which is still relevant to university and church government. We have also discovered that the most important early case concerning the legal status of Aborigines (R v Murrell, not yet on line) was misreported. In my grandiose moments, I imagine similar projects being established across the former British empire and the United States, a vast interconnected Web of case-law. Only then could comparative legal history be done without immense effort: imagine a body of materials, which could be searched using the powerful techniques of the Internet. The expense of such a project would require wealth of Gatesean proportions: it is taking three years and about $A140,000 to select, edit and publish the cases decided in the 12 years during which Francis Forbes was in office. I will need at least three more grants of that size to complete the project for New South Wales, and then there are the other Australian colonies, though most have many fewer cases than those of New South Wales. Americans and Canadians can do their own sums, but the project offers immense potential. New South Wales is not the only place in the common law world in which the earliest cases wait, resting in the archives and newspapers.

Previous columns in this series:

• The Creation of the E-Book on International Finance and Development: A Journey into Cyberspace
  Enrique Carrasco, University of Iowa College of Law
• The Virtual Teacher
  Patrick Wiseman, Georgia State University College of Law
• Build It, and They Will Come: Using a Web Page as an Effective Extension of Your Classroom and Faculty Office
  Pedro Malavet, University of Florida School of Law
• The Rewards and Risks of Authoring a Web Site
  Barbara Glesner-Fines, University of Missouri-Kansas City School of Law
• Teaching With the Web
  Jerry Kang, UCLA School of Law
• Re-thinking Electronic Casebooks
  Gary Neustadter, Santa Clara University School of Law
• Planning a Law School Web Site
  Mark Gould, Faculty of Law, University of Bristol, UK
• Takeovers that Overtake the Traditional Classroom: Web-based Simulations as a Law School Learning Environment
  Robert Lawless, University of Missouri-Columbia School of Law
• Copyright, Academia and the New Scholarship
  Kim Dayton, University of Kansas School of Law
• The Four Corners of the Academic Website World
  William Slomanson, Thomas Jefferson School of Law