The second in our series on the Irish and Australian Law by Peter Moore
This contribution is adapted from Peter Moore’s chapter on Irish judges and lawyers in Irish South Australia (2018), edited by Susan Arthure, Fidelma Breen, Stephanie James and Dymphna Lonergan.
Irish judges and politicians in colonial Australia have been credited with ‘undermining British Australia’ and ‘transforming English law’ in Australia and contributing to ‘Irish Supremacy’ down under. Strong words!
Consider the case of South Australia, ‘the least Irish destination’, as Patrick O’Farrell put it. Two Irishmen were appointed to South Australia’s Supreme Court by the Colonial Office between the foundation of the colony in 1837 and 1859 when local practitioners started to be appointed by the colonial government. At forty percent, they formed the highest proportion of Irish judges in any colony. But did they make a difference either as Irishmen or as judges?
They did, but against the odds. South Australia’s legal system was always going to prevent Irishmen on the bench from standing out as Irish or doing anything that was essentially Irish. British colonies were places of English law. Legislation passed for England up to the date of settlement applied almost automatically if it suited the circumstances of the colony. No statute for Ireland applied in a colony unless it was incorporated into a local statute. The only known attempt in South Australia, a Bill of 1852 modelled on ‘a recent Irish statute’, failed to pass. Case-law precedents decided at Westminster were all binding on the colonial courts. No judgment of the Four Courts in Dublin bound a colonial Supreme Court; none is known to have been argued in the South Australian Supreme Court until the 1890s when one was politely ignored.
On the other hand, the transition of Irish judges to an English jurisdiction proved relatively easy. Ireland’s common law, judicial system and legal profession had for centuries been kept similar to England’s. So would South Australia’s be. Ireland’s four superior courts had the same names and functions as Westminster’s – Common Pleas, King’s Bench, Exchequer and Chancery. South Australia’s Supreme Court was given the powers of the same four Westminster courts. Thus the Supreme Court in Adelaide shared with Dublin’s Four Courts the experience of administering law at one remove from Westminster’s – even if Dublin was four days’ ride from London, and Adelaide four months’ sail. Moreover, the colony’s legal system was watered down to suit a frontier settlement. Even English judges had to learn the reduced version that applied in any given colony. For these reasons, Irish judges could hit the legal ground running when they reached their benches in the colonies.
Westminster models for law, courts and judges carried over to their formations. Judges were usually appointed from among the barristers, and most Irish barristers trained at King’s Inns. They also spent time at the Inns of Court in London on which King’s Inns was modelled in the 1540s. The intended result was that Irish lawyers worked and thought like English ones.
As a result, South Australia’s Irish judges did everything to reinforce the Englishness of their court and the law. They presided early in the life of the colony and the court, for short periods, and a dozen years apart so that their appointments offered no chance of reaching critical Irish mass. Moreover, though Irish and judges, their career trajectories differed, they brought dissimilar experiences of bar and bench to the colony, and their impacts were small and their memorials smaller.
Both Jeffcott and Crawford were products of the lower rungs of the Protestant Ascendancy. Jeffcott’s father was a Tralee merchant, Crawford’s a pluralist parson. Both graduated from Trinity College Dublin. Professionally, however, they differed significantly. Jeffcott was called to the English bar by the Inner Temple in London. Crawford obtained his call to the Irish bar at the King’s Inns. He also studied in London, as Irish barristers had been obliged to do since 1541.
Their judicial contributions in the colony were essentially English in character. Like every colony’s earliest rules, Jeffcott’s rudimentary Rules invoked all of Westminster’s Rules. By that means he instituted the English offices of barrister and solicitor and also invoked all the English rules about how they conducted themselves. His address to the Grand Jury in May 1837 was an eloquent testimony to the English character of his court and its processes.
Crawford joined a well-established court. He set about revising its equity procedures, based on his own specialisation at the Irish bar, although few of his Irish ideas survived for long. He also drove the abolition of the antiquated Grand Jury, in pursuit of an English initiative to that end, rather than an Irish aspiration.
Apart from these minor legal matters, nether man enjoys a strong posterity. Dying at sea, Jeffcott’s body was never recovered and no funeral service was conducted. He has no monument apart from getting a street in North Adelaide named after him. He managed to have ‘O’Connell’ given to another to honour his patron’s family. Crawford died in office and enjoyed a quasi-state funeral and a simple grave at Adelaide’s West Terrace Cemetery.
There is an imperial side to their stories. Both judges had it in common that they came from a long line of imperial judges appointed from London. Legal positions in colonies had offered career choices for both English and Irish barristers and they competed fiercely for the limited openings. In 1860 the Belfast News Letter reported that ‘the Irish bar has not received anything like its fair share of the loaves and fishes within the gift of the Colonial Office’.
Crawford’s appointment emerged from that competition and a notion emerged at the time of his death that colonial judges must be selected from the Irish and English bars, turn-about. The South Australian sequence looks right: Irish Jeffcott, English Cooper, Irish Crawford, English Boothby. But there was no ‘rule’. The appointments had not alternated. Jeffcott came from the English bar and Boothby had not been appointed when Crawford died, leaving Crawford’s appointment a bare coincidence. The misconception derived from a misreading of Crawford’s obituary. It explained how Crawford got the South Australian job after an Irish barrister was offered it, but declined it. Crawford and he lobbied the Colonial Office, arguing that the offer should go to another Irishman. They succeeded and Crawford went out to fill it.
Jeffcott and Crawford may adhered to English legal traditions and rules, yet their innovations survive in that spirit to the present day.