Alex Castles on the Recognition of Australian Legal History - [2003] AJLH 10; 7(1) Australian Journal of Legal History 107

ALEX CASTLES ON THE RECOGNITION OF AUSTRALIAN

LEGAL HISTORY 1955-1963

ANNESLEY ATHAIDE[*]

I INTRODUCTION

Alex Castles is one of Australia’s leading legal historians. Educated at the universities of Melbourne and Chicago, Castles was an assistant lecturer at the University of Pennsylvania Law School in 1957 and 1958. On his return to Australia in 1958, Castles acted as a Senior Lecturer at the University of Adelaide from 1958 to 1967, when Castles was appointed Professor. In 1963, he published his first important article on the reception of English law in Australia.[1] Since then, he published his seminal books – An Introduction to Australian Legal History[2] in 1971, followed by the influential A Source Book of Australian Legal History; Source Materials from the Eighteenth to the Twentieth Centuries compiled with J M Bennett in 1979, and An Australian Legal History,[3] published in 1982.[4]

This paper aims to explore the context in which Castles’ pioneering work on the reception of English law in 1963 was conducted, by drawing on an interview with Alex Castles conducted in September 2000.[5] It will commence with an account of early attitude to the status of English law in Australia. It will then examine the nature of Australian legal history at the time Castles began studying law in 1955.

It will be shown that the lack of emphasis on Australian aspects of legal history can be in part attributed to social, professional and philosophical factors. Thirdly, the problems in making legal history accessible at 1963 will be examined. It will be concluded that the critical influence of American academic thought was a major factor in Castles’ study, and that the deliberate use of ‘positivist perspective’ in his work was, to a large degree, indicative of the problems faced by a legal pioneer in a formalist environment.

A Early Attitudes to the Reception of Australian Law

Before 1955, academic analysis of the nature of the reception of law into Australia had been scant. Most legal historians followed the traditional Blackstonian assumption that the Australia had been settled with little native resistance, and that the settlers consequently bought with them as much of the English law as was ‘applicable to their own situation and the condition of an infant colony’.[6] Focus then for Australian scholars subsequently concentrated on the Australian Courts Act,[7] which retrospectively validated the reception into Australia from the date of settlement.[8]

Few doubts had been cast on the validity of this reception. Although H V Evatt had questioned whether the practicalities of the colony would allow the full reception of civil as well as criminal law into the colony, he had concluded that the confusion had been resolved with the passing of the New South Wales Act 1823[9] and the Australian Courts Act 1828.[10]

This lack of interest in the reception is notable when the subject of independent Australian legal developments is considered. Castles noted that although more than a quarter of the three hundred cases reported in Legge’s Selection of Supreme Court Cases in New South Wales covering 1825-1862 dealt with the reception of English law into Australia, the consensus was that the general principles of unenacted English law applied to the Colonies.[11] It is to this lack of interest that we turn.

B The teaching of Australian Legal History circa 1955

According to Holdsworth, the importance of historical study for young law students was because:

it helps them (lawyers) to come to a right conclusion upon doubtful points of the law, which depend for their solution upon the correct application of old rules of law and old statutes.[12]

This statement drew on the positivist concept that law was a logical science, based on specified legal precepts.[13] According to Castles, this view was characteristic of the use of legal history in Australia at 1955, when he began his study of the law at the University of Melbourne, after graduating from Scotch College.

Legal history, to Australian Law students, then meant the history of the British Empire. Castles noted:

I did a full legal history course at the law school ... and essentially knew that the law school course covered the whole history of English Law, whether that was relevant to Australia or not. ... The only exception to that was that you had to do something on the reception of English Law in an introductory law course.

Of this exception, he commented that the sole textbook readily available at the time on legal history were the Lectures on Legal History[14] by W J V Windeyer, later to ascend to the bench of the High Court. This series of lectures covered the reception of English law into Australia in only one chapter. In this regard, Castles noted that the coverage of the reception of English Law into Australia:

was quite illuminating as far as this (Australian legal history) was concerned because what it shows you is the history of English law with one chapter at the end saying ‘English Law is received in Australia’ – full stop.

An examination of the syllabus requirements of Sydney, Melbourne and Adelaide at various stages through the first half of the twentieth century reveal that history was considered a core subject in legal education.[15] However, where the history of law was taught, the reception of English law into Australia was covered in only a nominal fashion, if at all. At the University of Sydney, students were informed that the passage of the Australian Courts Act[16] meant, ‘The Law of England had become unquestionably the law of New South Wales’.[17] At the University of Melbourne, Castles recalled ‘You ended up with English textbooks and followed the English cases’, with the result being that some of the English Law taught was anachronistic. At the University of Adelaide, Professor Blackburn noted that English aspects of the law, such as the date of the Norman Conquest, were thought to be essential for the young men studying law.[18] A penchant for classicism extended to the inclusion of subjects such as Latin and Roman law as a compulsory part of the legal syllabus at the universities of Melbourne and Sydney.[19] What is striking about the teaching of legal history at this stage is not what it included, but what it excluded. The applicability and adaptation of English law to Australian conditions was notably absent from courses in legal history.

Where Australian legal adaptations and innovations were covered, coverage could be said to be dispersed and introduced as technical adaptations, rather as representative of Australian legal developments. Castles noted that Torrens title was taught separately from property law, with practically important Australian innovations in liens not being taught at all. ‘You have this incredible teaching of English land law which in fact to a large degree had no relevance. Torrens title was treated separately from the law of property. It was run as a separate course.’

Castles recalled that it was purely fortuitous that he managed to learn something of the Australian use of liens and securitisation of personal property while at Melbourne. ‘No English book would ever mention of it. But there was a man at Melbourne who taught me, who had actually written a book on liens.’[20]

The paucity of information about Australia that interested Castles in the status of English Law in Australia. Castles stated that it:

was sufficient at least to get me, even as a student, a little riled by the fact that I knew we had our own history, we had our own developments with respect to law as I read about it and that began to get me interested in it.

The lack of focus on Australian legal developments in legal education can be ascribed to different but interlinked factors. Firstly, the cultural context in which the law was taught and utilised was predominantly British. Secondly, the extent of professional influence over the way in which the law was taught did not encourage academic inquiry into Australian aspects of the law. Thirdly, the way in which the law was viewed was heavily positivist, which was not conducive to critical analysis of legal history. The combination of these factors discouraged recognition of Australian aspects of the law.

(a) Adherence to British Legal Norms

Castles noted that socially and culturally, Australian lawyers in particular viewed themselves as ‘simply just another part of an English Court sitting in Australia’. The reason he gave for this intellectual colonialism was in part the self perception of lawyers who ‘never knew all the varied differences that had occurred in Australia and, to a considerable degree, they liked treating themselves like they were in an English Court’.

Adherence to British legal norms was reflected in the history of the bar in Australia. Between 1854 and 1873, almost sixty eight percent of barristers admitted to the Victorian bar were trained in England.[21] In South Australia, the ‘mere production of a(n English) certificate of practice’ was sufficient for a practitioner qualified from the empire to act as a lawyer.[22]

At the bar in Sydney, Chief Justice Stephen stated that lawyers not trained in the manner of England would result in ‘a bar sadly uneducated’.[23] After federation, imperial restraint was reinforced with the presence of Privy Council appeals, although Kercher notes that during this time, the restraints operating on legal innovation were more internal than external.[24]

The internal adherence to English standards by Australian lawyers could be in large part seen in the structure of legal education. All the early appointees to the law schools of Australia in the nineteenth century had English qualifications. Often, there were situations where a very few staff taught a very large number of students,[25] for practical as well as for financial reasons. The net effect of this approach was that academic appointments within Australia were very few, and that large numbers of Australian lawyers interested in teaching had to seek appointment overseas.[26] The course requirements for the law schools in Sydney and Melbourne meant all students had to study English Legal History as part of their first year course.[27]

In Lawmakers and Wayward Whigs, Castles and Harris noted that the orientation toward British coursework at law schools ‘tended to reinforce adherence to English legal values’.[28] To some extent, this form of deference persists even today. Michael Meehan deduces the Anglocentric nature of the Judges from the literature the quoted by members of the Judiciary. Unsurprisingly, almost no Australian literature is employed as a basis for judicial metaphor, with the bulk of the literature quoted could be considered to be classical in derivation, with only a smattering of the Romantics.[29]

Castles noted that the legal adherence to British norms reflected the broader social and cultural dominance of England. He further indicated that this dominance was not a fixed factor, but varied over time:

There has always been a struggle ... The radical legislation that was done by Deakin was not seen again until the Whitlam era. Deakin, (Andrew) Inglis Clark refused to take a knighthood. There were independent minded people who bought in (legislation) and things like that. Well in advance of out of almost every country in the world at the time ... (With) World War One you lose the flower of these people. Only the survivors are left. It is interesting that Evatt and Menzies, who became fierce rivals, both did not serve in World War One due to family reasons. They are the bright survivors. That, and the depression and World War Two deadens intellectualism.

Although Castles pointed out that the fixation of the bar on all things British militated against the recognition of legal innovation, what is meant by ‘recognition’ should be evaluated with care. A history of the appeals to the early Court of Civil Jurisdiction shows that even Colonial judges, trained in the law of England, were sometimes willing to adapt the law.[30] It seems that problems with recognition of Australian characteristics that Castles described were less a simple product of an anglocentric social climate than with the institutionalisation of the imperial system of legal practice.[31]

It could be argued that the standards set, inevitably by an already English-dominated bar, acted to internalise the problems faced by British Law in the Australian environment. This would have involved the standardisation of what would otherwise be a new concept to fit a recognised English form, which could then be argued in court. On these grounds, links between the decline in the use of convict attorneys and the increased adherence to Imperial orthodoxy that characterised the first half of the nineteenth century would not be mere coincidence.

Regardless of the implication on the practice of law, what this adherence did mean for the study of legal history was that its presence meant that lawyers and legal academics were steeped in the British normative framework, and subsequently less inclined to recognise Australian developments in the law as such.

(b) Professional Domination of Legal Education

In terms of the value attributed to legal history, another factor that should be considered is the level of professional domination of legal education. Before the advent of Law Schools, legal education was entirely in the hands of professionals. Linda Parsons noted that:

The history of legal education until 1848 gives modified support for the idea that formal legal training was as much concerned to achieve respectability for the colonial legal profession as it was to impart necessary practical skills.[32]

Even after the establishment of law schools, most teachers were part-time professionals, who gave their lectures in the early morning and again in the evening. Such a position extended well into the twentieth century – about 60 per cent of the law school lecturers at the University of Sydney between 1910 and 1941 were to become members of the judiciary.[33]

Erwin Griswold, visiting Dean of Harvard University observed potential implications for further study into new areas like Australian Legal History in a professionally dominated faculty. He stated that under a professional influence:

in some places, at least, a young law teacher who had some tendency to be unorthodox, or unconventional ... would find his path ... likely to be a difficult one.[34]

The professionalisation of law school training would divert resources away from the theoretical, experimental or innovative functions toward more pragmatic, practical alternatives.

Castles noted that historically there was professional pressure on Law Schools to be less academic and more professional. He pointed to the career of Jethro Brown, an early professor at the University of Tasmania and the University of Adelaide, whose interests were to make the curriculum at both more academically orientated by advocating a substantial period of study before practical instruction:[35]

He was frozen out and they (the University Board) would not invite him back as Professor at Adelaide ... they preferred an Englishman instead.

Other Law Schools faced similar problems. At the University of Melbourne, Professor William Hearn had argued for a broader education to be given to the lawyers of his day.[36] By 1955, the proportion of part time practitioners to full time legal academics at the University of Sydney had grown sufficiently for Latham CJ to comment unfavorably on the development.[37]

In essence, the substantial professional presence in major Australian law schools may have limited the motivation for inquiry into indigenous aspects of the law in Australia for two reasons. The first is pragmatic. Research required for developments in Australian legal history required going through local manuscripts and newspaper reports, essentially an academic exercise that would be hard to perform in light of the situation that most Australian legal scholars furthered their education in Britain. For those that were based in Australia, the restricted amount of time spent on uniquely theoretical pursuits had implications for the academic treatment of law not just in Australian Legal History, but also in other fields of theoretical inquiry such as Jurisprudence.

The second reason is more esoteric. The importance of precedence to practicing academics meant that when history was considered at all, it was for the sake of augmenting the understanding of the foundations of law, an attitude that derived in large part from the formalist atmosphere in which the law was taught, of the kind that was lauded by Holdsworth. Richard Arthur Blackburn, Dean of the Faculty of Law at Adelaide from 1951-1957, stated that: ‘Law is not history, but cannot be understood in a context from which history is absent’.[38]

For members of the bar and the academic lawyers, the law, and the relevant history, was English.

(c) The Problem with Positivism

A nineteenth century positivist understanding was often attached to the teaching of the law, the worst excess of which was articulated by Lord Kenyon in 1798 when he said:

I cannot legislate, but by my industry I can discover what our predecessors have done, and I will tread servilely in their footsteps.[39]

Castles stated that the mechanical legal categorisation implicit in positivism was still being taught at university when he was studying:

As far as jurisprudence is concerned, insofar as you were educated, (you were taught) Austin’s jurisprudence – positivism, learnt off by heart. You learned notions that politics did not intervene in the law.

In this respect, the implications of a positivist approach meant that the law was regarded as a science, flowing from logical constructs that eventually led to a predetermined conclusion. Blackshield attributed the attractiveness of Austin’s theories to lawyers in the later half of the nineteenth century to Austin’s attempt to locate the study of law in a systematic intellectual framework from which the ‘correct’ legal decisions could be arrived at.[40]

In terms of legal history, the subsequent disassociation of law from its social and cultural context meant that the validity of the reception of the law from England to Australia was not questioned. The lack of recognition given to the social context in which the law was made was compensated by the application of varying levels of strictness of adherence to legal rules and the occasional veiling of policy decisions behind a mask of impartiality.

In effect, this either led to the exclusion of a factor from the consideration of the Judges in formulating a legal rule, or the inclusion of the social context in the consideration of another aspect of the law.[41]

In Australia the issue of whether the social and historical background relating to precedents and laws passed should be used has been an area of historic interest to the High Court in matters of constitutional interpretation.

In 1904, the High Court declined the use of records from the constitutional convention,[42] and decided instead to opt for a literal approach toward reading the constitution. This attitude persisted till the case of Cole v Whitfield[43] in deciding whether to accept the use of constitutional conventions as an aid in determining the meaning of s 92 of the Constitution. At the time Castles was studying, the court had rejected such use of legal history as an interpretative method, preferring to look at a more literal construction of the words.[44]

Castles maintained that the positivist approach was not conducive to recognition of uniquely Australian legal developments:

You can pretend that the law is a set of logical mathematical formula – I don’t like that at all – history shows it isn’t and we know it’s not ... history demonstrates experience and it helps you to understand experience ... The life of the law has not been logic, it has been experience.[45]

Illustrating this point, he noted the importance of liens in Australian property law and the lack of attention paid to it by those teaching law. ‘In the early days of Australia, people like Winter ... talked about liens and tried to fit it in with the English system. It was never like that – it never could be.’

Referring to the teaching of property law at the University of Sydney at the time, Castles said ‘You needed to know fourteenth century English land law to understand the land law in Australia. – Incredible stuff.’[46]

Castles observed that ‘the real rejuvenation of the study of Australian law came in the 1950s with the beginning of the publication of the law reviews by the universities’. At the University of Melbourne, he noted the efforts of Sir Zelman Cowan in reforming the sometimes excessively legalistic syllabus in the 1950s. Whilst a Don at Oxford, Cowan spent some time in 1949 as a Visiting Professor at the University of Chicago, where he was said to be ‘impressed by the intellectual vitality of the place’.[47] After becoming a Dean at the University of Melbourne in 1951, he created links with many American universities, among them Harvard University, the University of Chicago and the University of Utah. Professor Cowan was additionally elected a foreign member of the American Academy of Arts and Sciences in the legal section, an honour bestowed on no other Australian lawyer except Sir Owen Dixon. This American enthusiasm trickled down to his university students – Castles notes that Cowan deliberately attempted to get students to study the law in a different way. ‘Not only are they teaching about American realism, they start re-developing the idea of postgraduate work overseas that isn’t English.’ For the first time, Australian Law students were encouraged to look over the Pacific to America, rather than to Oxbridge, for a different approach to the law.

At the same time, other universities in Australia were beginning to expand the horizons of Australian legal education by being prepared to look at sources of jurisprudence from places other than England. The appointment of Julius Stone to the academic faculty at the University of Sydney from 1942 to 1972, resulted in the exposure of Sydney law students to Stone’s critical appraisal of the sources from which judges derived their legitimacy.[48] At the University of Queensland, Ross Anderson also introduced a more critical appraisal of the accepted positivism into the curriculum.[49]

It can be seen that Castles placed the beginning of the intellectual changing of the guard with his generation of legal academics. However, it may be better to locate Castles within a general trend of critical academic thought. Criticism of formalist construction was not new. At the turn of the century, Andrew Inglis Clark, who had had a large role in the drafting of the Constitution wrote that the Constitution should be interpreted from the perspective of the moment.[50] The appointment of Julius Stone and others predated Castles’ work by about twenty years. We can see that change in academic opinion was not only in one direction, but rather that there was always dialogue, debate and opposition to the accepted legal norms. Nevertheless, Castles’ statements about the difficulties posed to the recognition of Australian legal history by the artifice of positivism were real and current concerns.

II THE EARLY WORK OF ALEX CASTLES

A Brushes with Antiformalism

As one of the first generation of Australian law students educated with a new emphasis on critical thinking Castles moved on to study for a JD at the University of Chicago upon graduation with honours from Melbourne in 1956. In doing so, he demonstrated his individuality – most law students who wished to study overseas headed off to Great Britain to complete their education.

At the University of Chicago, Castles listed among his chief mentors and teachers Phillip B Kurland and William Winslow Crosskey. In addition, Castles stated that his reading of the works of realists like Llewellyn and Frank were also influential on his approach to study of the law generally.

According to Castles, this critical approach he received in the United States was of great importance to his later studies. Referring to himself, and others who also went to study in the United States, Castles said:

We had been trained in the United States ... so we went our own way. Until we developed our own postgraduate training, the thing that happened – more like osmosis than anything else, was that you suddenly ended up with someone like Zines in Sydney who was writing about the Constitution, You had Lane from Yale, You had Cowan, who had taught in America and was offered the Deanship of an American Law School, Morris was Dean in Adelaide and went from there to Harvard to Chicago and became Dean of Chicago, so suddenly you had Australians who were prepared to open out and it had its effect on the curriculum, teaching methods and the sources that were used for law and so on.

While studying at Melbourne, Castles noted that he was fortunate to have been exposed to more than just positivism.

I did not just learn Austin, but was given the opportunity to learn more modern jurisprudence. We read Karl Llewellyn and Jerome Frank, whom I met while he was at the University of Chicago. We wrote about philosophical justifications.

Both the authors mentioned by Castles were anti-formalists who would later be called realists. Karl Llewellyn had taught at the University of Chicago Law School, writing the influential introduction to the study of law – The Bramble Bush. [51] Here, Llewellyn emphasised that traditional legal rules should not be regarded as the chief factor in the decision making of judges and that traditional legal rules were to be distrusted insofar as they purport to be descriptions of ‘what is actually going on’.[52]

Jerome Frank, who had graduated from the University of Chicago, emphasised the ‘constancy of the inconsistency in judicial fact-finding’[53] and rejected the rationale behind legal rules completely, stating that every judicial decision was at the discretion of the judge. Influences of these realist ideas about the law can certainly be seen in Castles’ later work.[54] Castles commented:

The law is living history ... I am sufficiently an American cum Australian author to take the view that not to understand the social values and so forth is missing the point.

In fact, he stated that one of the reasons he wrote An Introduction to Australian Legal History was that:

If you show the historical reasons for laws coming about, and reasons, you can somehow create reasons for judges or jurors in one way or another to come out with a decision that you think would be right.

Phillip B Kurland was a constitutional law academic who lectured at the University of Chicago in constitutional law in 1956. He was also a clerk for Mr Justice Felix Frankfurter, who was then on the United States Supreme Court. Castles described this connection as being important to him:

Kurland was a very able historian and lawyer and he always sort of fascinated me with stories about the way in which you could really understand the Supreme Court.

Castles noted that while at the University of Chicago that he had spent some time with Justice Frankfurter through Kurland.

Castles referred to his conversations with the late Supreme Court Justice as ‘illuminating’ and ‘interesting’, particularly regarding the contact Frankfurter had with Australia through his acquaintance with Sir Owen Dixon. He further noted that Frankfurter had ‘a very broad mind’. Felix Frankfurter, while influenced by the realist movement, was however not a realist, and articulated concerns about judicial activism while on the Warren Court.

Analysis of the writings of Phillip B Kurland on the Supreme Court shows not only a picture of a leading legal historian, but also a view of the role of the Supreme Court in American jurisprudence. Gary Achile described Kurland as ‘perhaps the most articulate contemporary spokesman for a traditional understanding of the traditional legal process,’ marking Kurland as one of the reactionaries against a realist interpretation of a purely political Supreme Court.[55]

Shortly after Castles moved back to Australia, Kurland made known his concern for the level of judicial activism that he perceived in the Warren court.[56] In doing so, he argued for a restriction of judicial policy making to those issues governed under the constitution, thereby avoiding casting the Supreme Court in the role of general policy maker, a task for which he thought the court was ill prepared to perform.[57]

On review of Castles’ later works, it is possible to discern the indirect influences of American realist and post-realist thought even in Castles’ early work on reception in the discussion of an alternative common law to that of Britain in the early American colonies.[58] It is more marked in his later works, particularly in An Australian Legal History and Lawmakers and Wayward Whigs, where Castles considered how appropriate the application of British law was to Australian circumstances.

It is also interesting to note that Castles’ own views of the matter of judicial activism are similar to those of Kurland and Frankfurter in some respects. Commenting on the role of the High Court in policy making, Castles stated:

I tend to be conservative like Frankfurter, that the courts shouldn’t go too far to fast because if they do then they get a reaction to them which causes problems.

Although the references to the extent of judicial policy making differ – Kurland reflects that the United States Supreme Court had gone too far, whilst Castles showed an inclination that the Australian High Court had not gone far enough – the allusions to the need for policy restraint are founded on the same principles. Both were aware of the potential for legislative backlash against an overly active bench, and the damage that a backlash would cause to the tenor of future legal decisions.

William Winslow Crosskey was also a member of the staff who lectured in constitutional law at the University of Chicago. The influence he had on Castles was also very important, but for different reasons to Kurland. Castles described Crosskey as:

a very interesting man. He did a course on the ratification of the United States Constitution and it was basically an analysis of the beginnings of judicial review in the United States.

Castles mentioned that the methodology adopted for research by Crosskey as being of special importance:

He took us back to the actual debates in the newspapers leading up to the Constitution and showed us quite dramatically that some of the so – called sources of the American Constitution were just not sources at all. ... So I developed a querulous thinking sort of approach to examining the workings of the law, particularly using historical sources and I must say that helped influence me in terms of where I have always approached dealing with legal history. He certainly taught me an important lesson I think – That important lesson was never to rely on secondary sources – English or otherwise. The important thing was to go back to the primary sources and start at the beginning. ... So often in the history of the law you can find, time and time again that people will repeat and repeat and repeat as though something is the law ... sometimes you read the original documents and even the original cases – and find that it is not like that at all.

This approach toward sources can be seen in Castles work, notably in the sourcebook composed with Bennett, A Source Book of Australian Legal History,[59] and, more recently An Annotated Bibliography of Printed Materials in Australian Legal History. Practically from scratch, Castles had to compile a list of source material for his future use and others. It is noteworthy that his sources, rely to a comparatively large extent on primary sources, some of which were considered to be unorthodox for an academic lawyer, such as newspaper clippings. Although the use of archival material to supplement academic research was not new – Bennett, Currey and Evatt all relied on archival material, the approach of Castles has been the most comprehensive.

It can be concluded that the period of time Castles spent at the University of Chicago had a large influence on the approach he took in his later work on Australian legal history. Castles had gained exposure to the concepts and workings of legal realism in action. At that stage, the controversial nature of the Warren court had bought the issues of realism and judicial restraint into sharp focus,[60] and Castles had some insight into the thinking one of the leading figures of the Warren court due to his studies with Kurland.

It is clear that Castles’ interest in Australian legal history was piqued by comparisons with his study of American legal history. In his comparison between Massachussetts and Sydney, he makes note that in the former, colonists had ‘found certain familiar doctrines of the common law distasteful to them and set about developing their own customary laws’, but observes generally that the NSW judiciary did not encourage this sort of behaviour.[61] It is now apparent that this statement may have been hasty. On many occasions Francis Forbes acted to adapt the English common law to colonial custom, as he did in R v Gardener in 1829.[62]

This appreciation of the context in which legal norms arise is also shown in his sources, which range across a large format of media. Castles Annotated Bibliography and Source book on Australian Legal History[63] were the first of their kind in Australia. It was this American legacy which Castles carried back over the Pacific to Australia. However, it is interesting to note that despite this, Castles’ early report on the reception of English law was as a whole, written in a positivist fashion.

There is little discussion of the differing social contexts in which the law of England was received, and whether that law was entirely applicable to Australia. Some reasons for this will be discussed in the next section.

B Return to Australia

Castles returned from the University of Pennsylvania to take up the position of Senior Lecturer at the University of Adelaide in 1957. He noted that he was interested discovering the Australian aspects of the law, and set out to accumulate information accordingly.

At that time, Castles was in the unique position of trying to analyse Australian aspects of the law without a fixed starting point and was operating without, for the most part, financial support in this endeavor. What he did know was that in researching for Australian aspects to the law, he had to take in social and contextual issues, and in so doing ‘reconstruct’ the accepted history. He did have an idea of the problems outlined above which worked against the recognition of Australian aspects of the law. He knew that the prevailing atmosphere of academic legal analysis was positivist, with few exceptions. He also knew that those who had attempted a previous analysis of local aspects of the law making had not met with much success in terms of general acceptance. He wanted Australian legal history to be taken seriously. This a theme that emerges throughout the interview.

Referring to the research needed for inquiry into Australian aspects of law, Castles emphasised the enormity of the historiographical fieldwork he had to cover:

I take the view that the first thing that you had to do first find out and become and expert on the English law. I spent something like three to four years of my life reading – studying the English law. ... The result was I taught it, I taught a bit of Australian material, but I couldn’t start making judgements about Australia and its differences from the United Kingdom until I began to understand the English Law. To that extent, I am a great expert on English Law.

In doing so, Castles started a ‘tour of Australia’:

I had written on constitutional history and then I started on Australian Law, and I decided that if we were going to make any sort of headway, I had to do something that John Bennett had been doing a bit of when he went to Sydney. ... I went to the Mitchell Library, and in those days the archiving material was there as well. ... I started at the start.

Embarking on a series of self funded trips, Castles traveled from Adelaide to the Mitchell library and the State Library in Sydney, then to the State Library and the archives of the library in the University of Melbourne, reading not just the law, but also about the social conditions in which the law was made. Reflecting on the interdisciplinary slant to his studies, Castles noted:

I don’t see any reason why a person working with law should be regarded as a lawyer or historian ... the idea that you are locked up in a living box, seems to misconceive the concept and the understanding that law itself is part of the social engineering of society and that the law itself has to interrelate and has always interacted with a whole set of societal processes.

C Choice

In 1963, he wrote his first important work on the reception of English Law in Australia, which he published in the Adelaide Law Review.[64] This work was noted to be written in a positivist tradition.[65] There Castles noted that ‘Up to the time of their settlement each of the Australian States had the same legal history as Britain’ and concluded with the idea that:

there was a general disinclination on the part of Australian courts to take into account special local conditions in deciding whether the general principles of unenacted law should apply.[66]

However, by 1971, he noted that:

At the first European Settlement of Australia ... the principles of British Constitutional Law for regulating colonial affairs could not be regarded as any closely defined, self operating code of legal behaviour to deal with the establishment and control of overseas possessions.[67]

Reading the work of Castles, we can see a shift in his approach from a positivist description of the reception of English Law in Australia, to a more inclusive approach that takes into account the social context in which the law is received.

In the interview, Castles stated that the early positivist manner with which he approached Reception was deliberate. To an extent, it represented a conscious effort to speak of the difference in Australian legal history in a manner that would be readily understood and widely accepted by academics and the judiciary. ‘You have to play your game quietly.’

From an academic point of view, he wanted his view to be accepted in mainstream academic thought, which at the time was still conducted in a formalist manner. Castles pointed to the efforts of previous legal historians whose work was ahead of their time and which went unnoticed:

As far as our own legal history is concerned – there were the people who did work towards trying to create some different thinking about it – for example there was a man called Dr Woinarski, whose thesis for an LLD in Melbourne was never published, which dealt with the reception of the English Law in the 1930s that was occasionally talked about in Melbourne legal circles.[68] You had a man called Hague in South Australia who wrote about the development of legal institutions in that state[69] – he was denied an LLD at the University of Adelaide on the basis that legal history was not law.

From the point of view of providing material for the use of the judiciary, it can be seen that the bench of the High Court in 1963 was unabashedly legalistic. Headed by Owen Dixon, the self proclaimed strict legalist,[70] it also comprised of Edward McTiernan, William Owen, Victor Windeyer, Frank Kitto and Douglas Menzies.

However, it had just begun to move away from rigid adherence to Privy Council precedents in Parker v The Queen,[71] an aspect acknowledged as necessary even to Sir Garfield Barwick, shortly to become Chief Justice.[72] Castles pointed out that initially, academic research on legal history had to be sufficiently positivist for judges to be able to use it.

In considering the formalism of judicial use of Australian legal history, Castles also noted that the Judicial use of legal history depended to a large extent on the state from which the judge was appointed.

Referring to previous members of the bench, Castles stated:

Insofar as they touched on the History in the High Court, it was mostly to do with the constitution and mostly there was an inbuilt bias against utilising the history that had emerged from outside the bastions of the working of law – fundamentally in Sydney and Melbourne.

In pointing this out, Castles made the telling point that out of all the appointments to the High Court of Australia, Tasmania and South Australia had not been represented at all. Indeed, the numbers of judicial appointments tell a tale of overrepresentation from the bars of New South Wales and Victoria, and the subsequent under-representation of the rest of Australia. The result, as Castles put it, has noticeable consequences for the relative value attributed to legal developments, with members of the bar in Sydney and Melbourne traditionally imposing a more formal notion of legality then their interstate counterparts.[73]

In weighing the value of these factors, it can be seen that part of the choice facing Castles in his approach to the analysis of the reception of English law in Australia was between a more academically palatable positivist approach and a more controversial recognition of the effects of the difference in social and cultural context between Britain and Australia. In the end, the choice made by Castles in Reception was only part of the story. He had not yet collected the large amount of information he would later compile in A Source Book of Australian Legal History and almost all of the available literature dealt with the reception of law in a formalistic fashion.[74] Nevertheless, the choice made is indicative of the unique situation in which Castles found himself as a legal pioneer.

III CASTLES IN RETROSPECT – THE BEGINNINGS OF MODERN STUDY IN AUSTRALIAN LEGAL HISTORY

Before writing about the reception, Castles had written other articles which touched on British statutes in Australia. In 1962, he wrote about paramount force in an article titled ‘Paramount force of Commonwealth Legislation’.[75] That year, he also published an article titled ‘Limitations on the Autonomy of the Australian States’,[76] which dealt with the implications of the acceptance of the statute of Westminster on the Australian States.

In 1971, Castles published his first major volume devoted to Australian legal history entitled An Introduction to Australian Legal History, drawing on previously unresearched materials ranging from court reports to newspaper articles. It was also the first book published on Australian legal history with a chapter devoted to law and Aboriginals. This book was hailed by Bennett, who reviewed the book as ‘welcome’ and ‘for the first time, a succinct account of Australia’s most important legal institutions’. It was however, not perfect. Bennett noted its brevity and wondered whether the ‘crowded, eye-shattering type face is intended to invoke in the reader a sense of antiquity’.[77]

From there, the rapid increase in interest of modern legal history has been well documented. Castles went on to publish his invaluable Sourcebook, to be followed by the influential An Australian Legal History, which was published in 1982. In 1994, he wrote Lawmakers and Wayward Whigs, and published his Annotated Bibliography of Legal Materials, which have been of great benefit to legal scholars since. In a foray into radio, Castles traveled about the Australian countryside recording ‘New Law in an Old Land’.[78] His groundbreaking research continues to this day.

IV CONCLUSION

In his article ‘The Legal Historian, Masochist or Missionary?’[79] John McLaren differentiates between traditional and modern approaches to legal history. He characterises the key aspects of modern scholarship into legal history as the ability to look at law in its social and intellectual context. In contrast, Stefan Petrow has described early legal research before the 1970s as mainly concerned with internal matters – legal doctrine, the legal profession and the development of case law, and characterised those that researched into this area as ‘lawyer antiquarians’.[80]

In this paper, I have attempted to focus on the period of very early attempts at modern legal scholarship, by drawing on the early educational experiences of Alex Castles, a pioneer in Australian legal history. The span of time focused on has been from 1955, when he began his studies at the University of Melbourne, to the publication of his first major article on the status of the reception of English law in Australia in 1963. The resulting image gained reveals a picture not of lawyer antiquarians ignoring the outside world, but rather of the institutional factors acting on legal education that implicitly discouraged the recognition of an Australian legal history in the first place. These factors can be categorised as social, professional and philosophical, although they are interlinked.

It is against this context that the seminal work of Alex Castles and other pioneers in the study of legal history should be viewed. This paper argues that that the formalist tone of his early work on the Reception of Australian Law was indicative of the pressures on Legal Academics operating in a formalist environment.

APPENDIX

INTERVIEW WITH ALEX CASTLES[*]

Interviewers note: The main aim for the author in conducting this interview was to gain Professor Castles’ insights on the start of his career and the beginnings of modern inquiry into Australian Legal History. The structure of the interview was deliberately kept loose to avoid unnecessary restriction of discussion.

FIRSTLY – WHAT PROMPTED THE INQUIRY INTO THE AUSTRALIAN LEGAL HISTORY?

Well, I suppose one of the reasons for getting interested in Australian legal history was fairly simple as far as I was concerned – I did a full legal history course at the law school at the University of Melbourne and essentially knew that law school course covered the whole history of English Law, whether it was relevant to Australia or not. It basically ended up with the adoption of the Judiciary Act reforms in England in the 1870s and that was the basis of your understanding of the history of law.

The only exception to that was that you had to do something on the reception of English law in an introductory law course, but that was fairly briefly done. And the only Australian book that was readily available at the time on legal history was the lectures in legal history as they were called W J V Windeyer who later became a High Court judge and his books quite illuminating as far as this is concerned, because what it shows you is the history of English Law with one sought of chapter at the end saying English Law is received in Australia.

It’s the English legal system which operates in Australia and that was sufficient at least to get me, even as a student, a little riled by the fact that I knew that we had had our own history, we had our own developments with respect of law as I read about it and that began to get me interested in it, and then I developed the interest even more when I became a postgraduate student at the Law School of the University of Chicago – because there I had a couple of teachers in constitutional law and history who taught me more and more how important it was to trace and track the history of the American Constitution and its law, before you could really understand or comprehend the American Legal system, and in that sense I think that it really began stirring me into trying to decide to do something as far as writing about Australian Legal History was concerned.

WERE THERE ANY PARTICULAR TEACHERS AT CHICAGO THAT INFLUENCED YOU?

Ah, there were a couple. There was a man called Phillip Kurland who later wrote on the history of the Supreme Court of United States – Kurland being a clerk of Frankfurter of the Supreme Court. Kurland was a very able historian and lawyer, and he always sort of fascinated me with the stories. I did a special series of classes with him where he fascinated me with stories about the way in which you couldn’t really understand the Supreme Court until you understand that the circuit judges in the 19th Century had to travel around the country in coaches and distance affected the way the law would operate and things like that.

And there was a man called William Winslow Crosskey – he was a very interesting man. He did a course on the ratification of the United States Constitution. It was basically an analysis of the beginnings of Judicial Review in the United States, and work which had covered many many years and he never really completed his writings before his death. His writings were very interesting because he went back and taught you how you couldn’t talk about words like commerce and you couldn’t talk about words like trade, without going back and tracing their history, and what they meant at the time when the constitution was being prepared. He took us back to the actual debates in the newspapers leading up to the constitution and showed us quite dramatically that some of the so called sources of the American Constitution were just not sources at all.

So I developed a querulous thinking sort of approach to examining the working of the law, particularly using historical sources, and I must say that helped to influence me in terms of where I have always approached dealing with Legal History. He certainly taught me an important lesson I think – that important lesson was never to rely on secondary sources, English or otherwise. That the important thing was to go back to primary sources and start at the beginning and deal with the primary sources. That may be newspapers, it may be documents and records or whatever. The primary sources must be preeminent, because so often in the history of the law you can find time and again people will repeat and repeat and repeat as though something is the truth – what’s being decided or what is the law, and sometimes you go back and you read the original documents, and even the original cases and find that it is not like that at all.

Now Blackstone. The only real reason that Blackstone was popular was that his was the first compendium, like a modern Halsbury.

He wrote the first compendium of English Law written since the middle ages. The trouble with that is that Blackstone was not too bad on the common law, but he was very poor as an Equity lawyer, and so people cited Blackstone because they usually carried two books around on circuit, or four books on circuit depending on how they bought them. So Blackstone becomes popular, not because he is really terribly good at English Law in certain of its areas, he’s carried around as easily as a compendium so when you get on a horse and have to go to the local Assizes, you’ve got a copy of Blackstone and it helps to explain why he is popular in America.

But he is popular in America for another reason as well. There are American editions of Blackstone which seem to be completely overlooked in Australia and elsewhere like where he dealt with the reception of English Law, and things like that. There are American versions of Blackstone that begin in the early 1800s which, really with their footnotes and the notes, sometimes demonstrates that the Blackstone is not regarded as being accurate or correct as far as America is concerned.

The first American edition in the early 1800s was written by someone I have done a lot of work on. A man call St George Tucker who fled from Bermuda to join the American Revolution. He was a believer in the enlightenment and he was a graduate of the College of William and Mary in Virginia, He knew Thomas Jefferson. He becomes the second professor of Law at the College of William and Mary and then later becomes a Judge. Tucker’s first edition of Blackstone begins to show that – not just with respect to the American colonies but otherwise as well – legal scholars at that time could and did understand that Blackstone wasn’t always giving an accurate summation of what was the law. Certainly in the case of Tucker – I found a lot of interesting writing.

The College of William and Mary introduced a curriculum which was basically on all English style Law as adopted in America, and one of the exciting things that I found were his lecture notes. I found his lecture notes in the Swan library at the College of William and Mary, and these become the basis of his later work on Blackstone. So Tucker is a very interesting person, and he helps to bridge the old and the new.

Interestingly enough how I first got interested in Tucker had nothing to do with that. It relates to Francis Forbes, who became the first Chief Justice of New South Wales. Forbes came from Bermuda and Forbes was related to Tucker. Forbes was a very independent minded person as far as applying law from Britain or England in Australia or Elsewhere, particularly Newfoundland where I had been to see what he did there. He is related to Tucker. Whether he ever knew St George Tucker or not, I have never really been able to track because the records in Bermuda – the humidity there has not helped records to be retained – but nevertheless Tucker and Forbes are all part of the leading group in Bermuda, and Forbes and Tucker in many ways showed attributes in terms of thinking which are not dissimilar.

I don’t know whether Forbes ever went to the College of William and Mary. My guess is he probably went at some stage to North America, before he went to Newfoundland, but the problem with that is the records of the law school at The College of William and Mary was basically lost at various periods. It must be understood that the war of the revolution was fought in part around Williamsburg and the final surrender to the British took place near Yorktown which is not far away. Interestingly enough Tucker by this time is a major in the militia. Tucker is greeted by George Washington, who throws his arms around him, because the militia and others had withstood the British at the battle of Yorktown and they were all then present for the great surrender which took place at Yorktown and so then later, the College of William and Mary was attacked, and many of its records lost in what you can call the American Civil War or the War between the states, or the ‘War of the Lost Cause’ as some of the descendents of Tucker would describe it, and so we don’t know whether what contacts Forbes may or may not have had. It is a pity because I found a relationship in thinking, I thought between Forbes and Tucker, which I found very interesting, which got me working on Tucker.

The fascinating thing about Forbes and there will be a very interesting biography coming up by the really estimable Australian Legal Historian, Dr. John Bennett, Bennett has been working on it for years – a remarkable work he has been doing in that area and the thing is – how I also got interested in Forbes – how I got onto this contact, is that Forbes more than once refers to very obscure decisions in the United States colonies. I can recall he referred one of his writings in 1820s to a very obscure decision in New York before the revolution. Another person who had an influence on me on writing Australian Legal History or group of people were the people who worked at Legal History at Columbia University at New York. There was a man called Joseph Smith, and I got to know Joseph Smith because I wanted to find out where had all these early records about New York – where had they been and who had them, because I wanted to track where Forbes might have got them, and my guess was that in some way or other that Forbes did have contacts with North America and one of the obvious ones he had would have been with his relation – St George Tucker.

YOU HAVE MENTIONED YOUR AMERICAN INFLUENCE – WERE THERE ANY AUSTRALIAN INFLUENCES, SUCH AS BENNETT?

The contacts between Australia and the United States are various and sometimes complex. I mean the use of the word Kangaroo Court is an Americanism, not an Australianism because of the Australians who were ex-convicts who played roles in San Francisco in the period of the gold rushes there – there are some doubts as to where the phrase comes from for what purpose but certainly people both on the upper class side and the wharfies – who were hated by other people around their own waterfront rackets – used ‘Kangaroo Court’ as a phrase. Kangaroo Court could have come from a variety of things.

Contacts between Australia and the United States. I have done some work on that I have spent more than four years of my life in the United States, and if I have any affinity with any other country outside of Australia, it’s the United States. The thing about Australian connections there is they arise in different ways. Certainly in the 19th Century, there are clear connections between what is done in Australia and their relationships also with people in the United States that may have affected law’s development in the United States in two ways.

Firstly, water law. It is common place to think of United States as some of their historians think of the original 13 colonies. The United States is not that. It is divided into many parts, and the history of the western part of America – beyond the Mississippi – has a different legal history and a very fascinating legal history both in terms of land law, and its affinities with its dealing with the problems that Australia did deal with.

And so, I think it was Alfred Deakin, who visited America in the latter part of the 19th Century to look at their water law, and how they were controlling Water Law. So to this day, there are people who probably rightly can point to the fact that elements of water law and the preservation of waterways, certainly in Victoria and in terms of irrigation programs and things like that – there is an interaction and inter-involvement between people in Australia and America who developed along those lines.

I had it brought home to me not so long ago, because I visited Salt Lake City, and one of my classmates from the law school of the University of Chicago – Donald Oaks – is one of the twelve Apostles of the Mormon Church. He was a very bright boy and was on the Supreme Court of Utah for a while. He taught at the Law School of the University of Chicago and he is a member of my class, and we chatted. He pointed out to the time when Brigham Young had arrived in Salt Lake City – he had introduced the water controls system – just like we had in Australia. Now I am not saying he is copying Australia, although its interesting there were in fact Australian Mormons – there were people, women and others who were in Salt Lake City in the early 1800s who had come from Australia to join the Mormon Church in Utah – and in fact I met some of their descendents in a museum there – A man said ‘I’m a descendent of so and so who came from Goulburn – New South Wales’.

There was this other type of influence which was very important with Australia, and that is Mining Law.

Australia had to come to terms of how to deal with mining – in the mid part of the century. I mean the great impact on Australia – the discovery of gold is of fundamental importance to the history of this country. It provided the rich background for Victoria, its buildings – which are so much better than those in Sydney. It provided a great amount of money. I mean Victoria – if my figures are right, more gold was taken out of Victoria in a decade after the early 1850s than in California in 50 years.

Now that gives you some idea as to how rich that place was, if you think about it. I mean here is one of the great centres of mining, and mining had been complicated under English law – I have been to Devon and have been to Cornwall. I have had a look at the way they dealt with it there and found some records. So what they had to do is parallel also with the United States and San Francisco, California with their gold rushes a little earlier in the year. They had to evolve their own law. They went through all sorts of processes – particularly in Victoria – sometimes the miners made their own law, ultimately ended up with wardens, but they developed a whole system of mining law, which was in many ways indigenous to their own gold fields and grew out of the needs and circumstances particularly after the Eureka event.

It became a model for people in other places. So much so that the United States Government, in the early part of the 20th Century actually sent a commissioner to Australia to examine Australian mining law. And there is little doubt that some of the mining law of the United States in some ways interacted with the mining law in Australia. If you read the Mining digest, which was a book published in the 19th Century in Australia, and you read some of the evolution of Mining Law in the Western United States, you can see the affinities that existed.

Affinities were created, not just because of lawyers and others perhaps writing to each other or reading about what they were doing, it arose because of the movement of people between the two places because of mining. It is often overlooked that President Hoover of the United States in the 20th Century spent some good part of his youth as a mining engineer in Kalgoorlie and that in fact his interest – so I have read and I do not know much of this work first hand – Hoover was very taken with some of the approaches to the working of the law in Australia.

There is another set of relationships between Australia and United States which is significant, and that relates to firstly the evolution of the Australian Constitution and also the way in which the Australian Constitution is being construed by the High Court of Australia.

Let’s go first to the American influence on the Australian constitution. About a third of the Australian constitution was not really debated in the convention debate. Its part of the contempt that people in NSW and Victoria traditionally hold both with respect to themselves, between themselves. The contempt that they hold for the rest of the nation, that they have mostly, until comparatively recent times, have refused to recognise that the Constitution was not just created by people like Barton and Deakin. Indeed Barton is not one of the more estimable characters of Australian Legal history anyway, for a lot of reasons, and not a lot bright either, or so many people thought at least at the time.

Now he was known as Toby Tosspot, and how he gets onto the High Court of Australia is very interesting. There is this fascinating letter by Deakin to Andrew Clark in Tasmania who should have been on the court initially but they had to cut numbers down to three and he writes a very apologetic letter to Clark saying ‘I am sorry you cant be on the court, because that fellow Barton – what is he doing in Government anyway – he is demanding to get on the High Courts and you got to let him on’.

There is one of the great Icons. But the point is that the original draft written by Clark is quite fascinating, because Clarke, sitting away there in Hobart town, with whalers coming in from America, and there were lots of them in those days – they came from Nantucket, they came from Boston. He is very pro American. He is also a Republican and he believes in the greatest thing that could happen in the English speaking world was the Anglo-American republic, which was a wake up call.

That is also part in which scholarship in Australia is something fairly myopic with respect to the particular contextual frames in particular parts of the country particularly in Victoria, or NSW. I made a remark once that the reason Kingston never got the praise he was due was because he knew how to rile the people on Macquarie Street or Spring Street because he was bright as any of them.

We come back to Clark. Clark writes on the constitution and he uses words like House of Representatives, Senate, all copied from America. He knows about the American Constitution. He has read most of the cases. The so called people who know about it like Isaacs and Deakin and that show effrontery on their part to think that they knew that they knew what it was about. We know from telegrams that they didn’t even know about Marbury v Madison properly and they didn’t know about why Marbury v Madison was cited, certainly some of them didn’t. They pretended to know about it but reality is we know one of the few who knew about the American Constitution was Clark. So that’s the American influence.

Clark also wrote about judicial review. Clark, instead of writing for the Law Quarterly Review or some English journal, actually wrote a very illuminating article in the Harvard Law Review, because he was a friend of Oliver Wendell Homes, the American jurist, and he corresponded with Oliver Wendell Holmes. He sent his kids to be educated – one of them at least to be educated, in the United States. Clark, although he wasn’t a good orator, was an excellent writer corresponded with Holmes. So the Holmes-Clark correspondence which shows discussions on things with respect of the Constitution – they are not to be found in the Canberra archives. They were found hidden away in the University of Tasmania.

Now we come to another stage where it’s very hard to know the influence. My own guess is that the American influence on the Constitution, perhaps not to the same extent, is also to be seen in a correspondence that took place over a period of many years between Chief Justice Dixon and Mr Justice Frankfurter, as he became, one of the leading lights in America with respect to Constitutional matters.

I spent some days with Frankfurter in Washington DC, and it was illuminating and interesting to talk to him about the way his contacts with Australia had gone back to his first meetings, when he was a Professor at Harvard Law School, with Harry Bourne Higgins, who became the founder of the Court of Arbitration in Australia and a member of the High Court of Australia, a very liberal member of the High Court of Australia. He and Higgins corresponded over a period years about constitutional matters in Australia. They wrote to each other about how you approached construing things, and things like that. Then when that ended, when Higgins died – one of my former students wrote a thesis on Higgins – it relates to some of this – when Higgins dies, he starts corresponding with Evatt. And so you have a correspondence with Evatt when he is member of the High Court with Frankfurter.

Ultimately Owen Dixon goes to America as representing Australia in the early part of the war, and he develops a friendship with Frankfurter, and they correspond with each other. My own view of this is what I wrote in a brief biographical sketch of Dixon. In the biographical dictionary of common law, which was published in England which when I was in Adelaide, where I would have selected Australians who were included in this dictionary and had to write on them. My own view is that Dixon moved from sort of being in the center, to showing more comprehension seemingly, and understanding about issues like intergovernmental immunities and matters like that.

Not so much because of his own self development at all that. In fact he developed this in terms of writing and interchanges with Frankfurter. My view in terms of government immunities which becomes important in several cases is that in many ways Dixon was not original at all. My own view as now speaking as an American style constitutionalist, my own view is that Dixon was simply using what was basically the decanting views of Frankfurter. I have never found that either in Dixon’s correspondence or in his judgments anything that I have regarded as original, or at least in that context.

Dixon was a pretty good common lawyer, he could do contract and things like that. When it comes to Constitutional matters, my own view that to some extent, at least I won’t over state it, Dixon’s ‘greatness’ as far as being constitutional lawyer is concerned, comes about more because he is more following and adopting views expressed by a person who I think had a very broadly stated mind which was I think broader than that of Dixon.

I must say in talking with Frankfurter, when I met him and spent some time with him, I was always wryly amused by one sort of remark, it wasn’t meant cruelly in respect to Dixon – He said ‘he (Dixon) was one of the greatest judges in the English speaking world, because he agrees with me!’ Frankfurter, you see, has a sense of humour. Nevertheless I also think that they had more to it than that. My own view is that in some areas, that Dixon was influenced by American thinking. I think it was American thinking, but I think it was American thinking which was expressed by him. That’s first hand knowledge – that’s real history. I mean, I talked with Frankfurter and I knew Dixon a bit, I didn’t know him well, but I met Dixon a few times, and my own view is that Dixon was influenced by a very broad mind.

I think there are American Influences there – you can trace it through Mining Law, Water Law interactions, I think there are parts of Californian law, I think you can also trace the Torrens systems or elements of it. The Torrens system of land registration was not widely original. It was probably based on an old German system dealing with ships in the Hanseatic ports.

The Torrens system was brought about to protect the titles of people like Torrens, who bought up a lot of land orders. It was a system which was to protect the rights to the land that he and others may not have otherwise had, if they had not registered it.

The system of land registration was interesting in the early days of Australia, (but) people like Winter and that talked about land holding in Australia being the same as England. They talked about Fee tails and things like that, and tried to fit it in with the English system. It was never like that, it never could be. Because they gave out the land in different ways! It was given out by landlords, it was like the American homestead – the questions were how you got boundaries set. In Tasmania for example, you had to have special tribunal, because boundaries were not always properly set between the land. There is still a procedure that goes back to the 1830s incorporated within the working law of Tasmania, which enables land to be given to people – crown grant – other than a Torrens grant, and can then be registered – a Crown grant which is to be granted on the grounds of good equity and in good conscience.

We have got a system. Land was so important; we developed our own land law. Now Sydney Law School, had lectures on legal history. A law school that you can well understand why some of its greats have been the way they have in the last 40 years. With a law school who is moderate to a considerable degree – its legal education is as though it was teaching English Law. There were some books published on land law – You needed to know 14th century English Land Law to understand the Land Law in Australia. Incredible stuff!

There was a man called Hargraves who wrote on Land Law in New South Wales in the 1890s, and he quite rightly and properly said ‘In nowhere does the law vary more in Australia from England, than with respect of land law’. And Hargraves was right. Melbourne was almost as bad. 50% of the law of property course – or something like it, in Melbourne was answering problem on the rule against perpetuity. Some curriculum in Australia simply copied English Text and gave you the notion that the Fee tails existed in Australia, and that primogeniture might have existed to this century. You have this incredible teaching of English land law which in fact to a large degree had no relevance. For example, one of the things I have done some work on and my students work on, is that, quite aside from getting land in the central areas of the country, under housing blocks in Towns and that, most of our land was not given out in full title, it was given out in leaseholds.

We had hundreds of forms of leaseholds! We even followed the French with Crown perpetual leasehold. Because we had so much land, and it was so dry and it could carry so few sheep or grow so little wheat, that people could not afford to buy it. We developed from the 1850s certainly, and perhaps earlier in some ways on forms of leaseholds of licensing that have no comparison in English Law and one of the tragic things about Law schools, is that Law schools just did not teach this. And so the lawyers didn’t get involved in this, the companies, the great pastoral companies because the great repositories of knowledge on it.

That was the other thing. You could go to a Law school in my time – you could go to Melbourne, but you certainly couldn’t go to Sydney. Melbourne had at least one saving grace, Melbourne Law School taught you about Liens. Most property courses thought you nothing about liens. And the personal law things taught you nothing about Liens. Liens were an Australian feature. They were reinvented by Wentworth, in the1840s because you did not own the land, you only knew about the leases. You could mortgage it. So you had to find a way of creating capital or getting money or borrowing money with protection to the lender. How did they do it?

They did it very simply, you get a mortgage on cattle, or you could get a mortgage or lien on the wool, and the moment the wool dropped off the sheep’s back it became the property of the lender, the bank for example. This is an incredible breakthrough, in terms of adapting law to suit the needs of capital and credit in NSW and the rest of Australia. So much so, that the estimates are that by 1860, more than 50% of the money lent in Australia, was lent on the basis of liens or capital mortgages. And yet, no English Law book would ever mention of it. But there was a man in Melbourne who taught me, who had actually written a book on Liens.

The thing is that Jurisprudence in Australia was basically about Austin. Certainly in Melbourne. Julius Stone’s appointment in Sydney brought about a welcome change. Apparently, he was offside with many professors. It is likely that the stories were correct.

Melbourne was like that, but a little bit more principled. I did not just learn Austin, but was also given opportunity to learn more modern jurisprudence. Also with Jerome Frank law and the modern mind – what the judge had for breakfast. I read Carl Llewellyn – The Bramble Bush. I met Jerome Frank when he was at the University of Chicago. This began to open up vistas – they saw law in the practical sense, which was not necessarily what Austin was talking about. We wrote things about philosophical justifications. We were being educated in a more broadly based way. It did not happen through the practitioners that taught us the law – which was through rote – we did it ourselves at that level Melbourne University and Stone had begun to bring up some vistas.

WHAT ABOUT THE OTHER LAW SCHOOLS?

Queensland had Ross Anderson, and another fellow, beginning by the 1950s in Western Australia, Ross Parsons. You had people beginning to make the beginnings. It was not that people had not written about these things before, but basically they had been frozen out. It is relevant to know why they had been frozen out. There is not a lot of writing on this. In South Australia, there was a boy called Jethro Brown, who was a cabin boy when he left South Australia by boat. He is very bright. He helps found the Commonwealth Law Journal or Comm LR which does not last very long. He writes a book on Anarchism, and says every law student in Adelaide ought to understand what the law is.

During World War One he helps out the government in inquiries and industrial arbitration. He is frozen out and they won’t invite him back as professor at Adelaide, they get an English person in, on a technicality as he was giving tuition. You have an incredible freezing out! The law schools were using English Textbooks, and not much else, although there was a fair bit of Australian legal writing in the 19th century, but it begins to drop off in the ‘20s and ‘30s, but there is a rejuvenation of it with the beginnings of law reviews in the ‘50s. The real rejuvenation comes from Victoria. In the University of Melbourne, when Zelman Cowan, and Professor Donovan take over Law School in 1950s. Not only are they teaching about American realism, they start developing the idea of Postgraduate work overseas that isn’t English. Most people got Rhodes Scholarships by learning things off by heart and suddenly there was a change. Melbourne University makes contacts with Harvard and Chicago, Columbia and other places and suddenly the best graduates of Melbourne Law school start going to the USA. This was very deliberate on Cowans part. While he has an English degree, and is a Rhodes Scholar, he decides that the law needs to be looked at in a different way. Within a short space of time Melbourne is sending people to Harvard, Yale and Chicago very regularly. Some people in Sydney start to do that – Lane and Zines go off to America – and you suddenly get a different group of people in law schools who are not English oriented, and do not accept the narrow-mindedness of people like Windeyer. I mean Windeyer dismissed my book when he reviewed it and said that there was no such thing as Australian law. He wrote me a personal letter saying ‘My dear Castles, this is not on, because the law of Australia is in effect, English law’.

We were not prepared to take that. We had been trained in the United States, where we met some of the people – Frankfurter and people like that, so we went our own way. Until we developed our own postgraduate training, the thing that happened – more by osmosis than anything else, was that you suddenly ended up with someone like Zines in Sydney who was writing about Constitution. You have Lane from Yale, Stone from America, Cowan had taught in America and was offered the Deanship of an American Law School, Morris was Dean in Adelaide and went from there to Harvard to Chicago and became the Dean of Chicago, so suddenly you had Australians who were prepared to open out and it had its effect on curriculum, teaching methods and the sources that were used for law and after a time, it had had it’s effects on the courts.

ABOUT OSMOSIS. – IT SEEMS LIKE YOU DESCRIBE A STRUGGLE, HARD FOUGHT BY SOME AND REACHING CRITICAL MASS WITH YOURSELVES?

There has always been a struggle. In the nineteenth century Australia was more nationalistic than today, but there is a reason for that, and that is essentially that a whole generation of males was lost after World War One. The radical legislation that was done by Deakin was not seen again till the Whitlam era, Deakin, (Andrew) Inglis Clark, refused to take a knighthood. There were independent minded people who bought in things on Antitrust and social welfare and things like that. Well in advance of out of almost every country in the world at that time.

Then you have World War One and you loose the flower of those people – very much so in Australia. Only the survivors are left. It is interesting that Evatt and Menzies, who became fierce rivals both did not serve in the war, as they are ineligible for family reasons. They are the bright survivors. Look at all the others who died as cannon fodder for imperialist reasons. So that, and the depression and World War Two deadens intellectualism. Of course, the second word war has a dramatic effect on Australia. For my generation and Zines’ it is more than that – It is the rejection of Britian. Even with Murdoch’s father – and Keating expressed this but generationally, the concept of what happened in the second wold war – the fact that the Australian army was fighting despite British ineptitude in Europe and Australia having to bring the troops back to fight the Japanese. Murdoch's dad helped form the view that Australia saw its future in the United States and not with Britain. People overlooked that Murdoch Senior, despite being the doyen of the establishment, sided with the USA. I might not agree with Murdoch, but I have an admiration for him, and I like the way he shows up the British monarchy, by taking over the papers – the Times etc. It is showing establishment what the monarchy is like.

MOVING ON TO THE HIGH COURT AND THEIR VIEW ON THIS SEA CHANGE. MICHAEL KIRBY ONCE SAID ALL JUDGES ARE HISTORIANS.

Definitely. The law is living History.

Due to system of precedent and even with the codification systems in France and Germany, in a sense the law is history – telling you about the law’s attitudes to contract, crime, attitudes of people to it. Our law is living history.

History is not studied for its own sake. I study history to illustrate and to show why you shouldn’t continue to use particular laws and I think Michael Kirby has shown that in his judgments. If you can expose the real reasons for a law, you can help to expose whether it is still relevant to the present or not. So that’s history’s importance. When you know that it is living history, you have to look at the social political and other implications of the law before you determine you are going to operate on that way.

I don’t know whether I would go the way of Michael Kirby if I were on the High Court. The Americans go too far with it sometimes. I tend to be conservative like Frankfurter, that the courts shouldn’t go too far too fast, ‘cause if they do then they get a reaction to them, which causes problems.

COULD YOU DESCRIBE THE HIGH COURT’S CHANGE IN REGARDING LEGAL HISTORY?

The beginnings were with people like Owen Dixon. You’ve got to start off with the assumption that there was always a prejudice against pointing to anybody who was not from those parts of Australia that did not have separate barristers and solicitors. There still is – if you have ever been to South Australia or to the High Court of Australia.

It would be important I think to understand that the High Court of Australia has never been – even till today – necessarily representative of the legal under-standings of the people of different parts of the country. Particularly its legal professions. Until this day, the High Court of Australia, despite its foundation in the first decade of the 20th century, has not had a person who is nominated from the legal professions of Tasmania and South Australia. There may have been some people from those places considered for appointment to it, but it must be understood that the legal profession was constituted in Tasmania and South Australia although with some slight variation in recent years are combined professions not dividing between barristers and solicitors, as in the Eastern States. It is not that they haven’t produced people with real ability. Traditionally there has been a bias exemplified by the powers of the Canberra or Melbourne or Sydney not to bring in people who could reflect elements of the history of different parts of the country, in terms of the way they would deal with the law. Western Australia has had representatives, people like Wilson. Nevertheless, there is an inbuilt bias in the terms of the way people are appointed to it.

So in so far as the law is living to represent history it’s often been the smaller states with the different organised forms of the legal profession, had not had their views put forward – essentially, insofar as history was utilised by the High Court, because history largely utilised in terms of the attitudes and thinking of those who produced the law and working in the law in Melbourne and Sydney.

The result over the years has been the use of history, particularly Australian history, was not largely utilised, insofar as they talked about Federation and the causes of coming into effect the Federation – they used a book like Quick and Garran, because that was produced by good New South Welshman – and there was no Victorian alternative – where did you see the usage of a book in South Australia published in the 1930s on the constitution, or the writings of Inglis Clark really being used in the High Court of Australia?

Insofar as they touched on the history in the High Court, it was mostly to do with the constitution and mostly there was an inbuilt bias against utilising the history that had emerged from outside of the bastions of the working of law – fundamentally in Sydney and in Melbourne.

Insofar as the high court used legal history more generally, there was a tendency to set the courts up – the High Court up – as a court that while accepting that English Law was pretty dominating – overly dominating in non-constitutional areas – there was a tendency for people like Owen Dixon, to actually go back into English legal history itself and utilise English legal history and disagree with perhaps the court of appeal in time or the House of Lords on the basis they did not understand their own history which provided the background to the working of the law.

In Britain, when you get the first movements towards varying the criminal law, for example in Australia, in the High Court, compared to Britain where you were still using the common law, not the codes, as in Queensland and Tasmania and Western Australia, you do find that the tendency of Dixon and Co to actually start arguing that the Brits don’t really know or are not as accurate as they might have been in terms of assuming what the law is. So in effect they are treating themselves as an English court and saying the lawyers of them are not as good as us in terms of understanding law. They are using it for political purposes also, the English legal system.

JUST EXPLORING THAT PART A LITTLE FURTHER – IS THAT SEPARATE TO AN AUSTRALIAN JURISPRUDENCE?

I think that people – my guess is – particularly in NSW lawyers – probably also people like Dixon was concerned, they really regarded themselves as simply just another part of an English court sitting in Australia.

A condition that they had been put through by going to law school, and the legal profession tended to operate that way too. They never really knew all the varied differences that had occurred in Australia and to a considerable degree, they liked treating themselves like they were in an English court.

As far as our own legal history was concerned, there were people who did work towards trying to create some different thinking about it, for example there was a man called Dr Woinarski, whose thesis was never published – his thesis for his LLB in Melbourne – which dealt with the reception of the English Law in the 1930s that was occasionally talked about in Melbourne legal circles. You had a man called Hague in South Australia, who wrote a little about the historical background of South Australia. He was denied an LLD at the University of Adelaide, on the basis that legal history was not law. On the other hand, someone can write a fairly limited thesis on an obscure question of English commercial law, and get an LLB at the same time, and that is really reflective of the state of mind at the time.

We have a situation where we begin to work in Australian legal history. It is a very difficult task, because whilst some writings were around, there was nothing coherent in the sense of trying to get a global picture, there were odd things like a book on liens, there were some books on practice – that dealt with such things as the Torrens system, because pragmatically they had to have their own books, but you didn’t have your own Australian books on Torts, you had to have your own books on the criminal code in Queensland, but in Victoria, for example, where you can use the common law in South Australia, you ended up with the English text books and you follow the English cases. New Zealand basically followed English cases, but there was a friend of mine and I was pouring Australian cases into him when I was tutoring Torts with him and he was a marvelous Irishman, he suddenly started putting the footnotes in to Australian cases. We used to use English books, then Morris and a few others in Melbourne produced an Australian full case book, Jeffrey Sawyer produced one on the constitution that had to be different, but we suddenly had a Torts case book, and we had Patrick Donovan, who had been in England, coming to Melbourne to starting producing materials on the Australian contract cases. What we began to do, was to get people from the east looking at our Law.

It was very hard in terms of history, because you know you had people like Windeyer. It is hard for the courts, because the courts never had the materials. How do you use Australian legal history in the High Court of Australia – which is your question, How do you use it? You have got nothing on it and you don’t have all the researchers to do all this and all the rest – as much as you might like it.

So what are you doing? It’s a very difficult question.

I take the view that the first thing that you had to do was to find out and become an expert on English Law – on the history of English Law. I spent something like three to four years of my life reading and studying English law. I studied development of equity, the history of English criminal law and its proceedings, I worked a bit on the Irish law but not so much Scots law, because it was not all that relevant except for Vikings and things like that in Australia. The result was I taught it, I taught a bit of Australian material, but I couldn’t start making judgments about Australia and its differences from the UK until I began to understand the English law, so I spent quite a lot of my time working hard on English law. To that extent, I am a great expert on English law, but in certain areas, I am fairly expert. On their criminal law, on their procedures, and so on.

I started off with the assumption I could work on my own programs. I worked on the English material and taught English material. I worked on the Australian material and slowly but surely, I became reasonably confident that I knew the English material fairly well. I packed Glanville and Blackstone and doing some work of my own. I started a tour of Australia. I had written on constitutional history, and then I started on Australian law. I decided that if we were going to have any sort of way, I had to do something that John Bennett had been doing bit of when he was in Sydney before he went into practice and that is, I went back to Mitchell Library – I caught a train up to Sydney – and when I came up to Sydney I went up to Mitchell Library. I found that historians – Australian historians – have been very neglectful of our Australian legal history.

Here are the main institutions of government in society in the early days and yet the great leading historians of this nation have ignored it, and they ignored the cases themselves which are history. Here you have all the costs of bread, the costs of living and all the rest of it in all these early cases but no, they had ignored it! So I went to the Mitchell Library and in those days the archiving material was there as well. I decided I would start in 1788. It has got me in trouble from time to time, I started in 1788 and a few documents had been opened and been republished in the century and finally I find myself with a whole series of papers tied up with pink ribbon and with pins on them. They had not really been opened since the days of David Collins. And that was an experience and a half. These are 1792 pins!

They should be kept because they are historical artifacts. So I started at the start and that’s what started me – I took a long time to start. I wrote an introductory book and it was mostly on the inception of the English law.

For the very first time we were able to set out teaching some beginnings. You needed to be able to actually set it out before getting it to the courts, you cannot really blame the courts – academics had failed to do this.

After doing a short introductory book, I did produce a readings book with Dr Bennett – John Bennett, called A Source Book of Australian Legal History. Now whilst it was envisaged to be quite large, but to get a market on anything else would be difficult, we thought we better do first not the history of Torts and Crime, what we did was to produce basic documents, the charters of justice, that somewhere along the they had to be a judge or anyone else collection. There was the Charter of Justice, The reception of English Law, the early cases – there was a case book and a source book.

Bennett and I decided that we had a lot of other material – the first land cases, the one on the swamp, where the brewery was there because it did not have a proper title. For the first time people could actually read some of the original cases, they could read documentation and beside that Bennett was writing and still is. I set to write about Australian History. To cover the whole of Australia. The courts were going to have an opportunity to have something that was reasonably portable, reasonably competitive and it should be written in a form for Judges and for Lawyers.

I took Blackstone as my model. Blackstone’s book was not all that good, but he had written it at a time when there was no compendium of the English law. He wrote 3-4 volumes – by getting it in a reasonable span, people could carry it around, pick it up and read and use it, and that is what I wanted to do.

I followed this up by another book. A few years ago I published an annotated bibliography of sources of Australian Law in 1788 to 1900. My legal history was the start of doing something to get people and sources, but the Annotated Bibliography was a detailed which left no excuse for the judges of the high court or any other judge not to use basic Australian sources – because it was very important that people had no excuse, and that sources were there, and that is why I did it. The major problem we had to provide the sources to the High court so that they can define legal history. Courts now have less excuse, they have to use these sources.

I must say that one of the risks of using history is that some historians – especially those historians who write about Aboriginals – some people in some parts really have no comprehension of the law and the High Court really relies on and perhaps uses those historical writings when in fact, when in fact they are only using it for political purposes. I am a bit more meticulous than that. I think I am a bit more conservative. I tend to think that judicial process can carry too far, too quickly, too often. Everything creates a reaction to it, and the working of the law and understanding to the level of appointment of the judges to the particular court.

You cannot expect or assume any usage of this until it is explained and so the courts have less excuse they now have to use some of this. I have always had that in mind. In the sense I think the most interesting thing in legal history is not my writing: I think it’s the six part series viewed on the ABC called New Law in an Old Land – in which I traveled around the country with a microphone as an agency broadcaster and described how the law came about for Aboriginals and all that sort of thing.

And that was interesting. I thought people in the community would know about the law. In a sense, legal history could appear in various guises. I saw a recent copy of my book cited recently called The Shark Arm Murders – it’s a story about a murder case in Sydney. I did a lot of historical work on that years ago. A book had actually been written in the 1920s most of the work had been published more than 30 to 50 years later. But that was the story about criminal procedure that people could be locked up for 24 hours and could be interrogated all night and there was no legal address. (The book) showed what the system had been like. You would not really blame the policemen for what had happened, you can blame the lawyers and the judges for turning the light out.

It is much the same way as the book I am writing about Ned Kelly at the moment, which is about the day he was captured through to the day he was hanged. It will tell you just how the right the system was or wasn’t carried. When you tell people that Shaun Edwards was allowed to sit down at the beach for his hearing – because he had a badly injured foot, otherwise he would have been forced to stand up for seven hours in the witness box in the dock while the evidence was given against him, in the preliminary hearing. People don’t understand that people were locking jurors up as late as the 1850s and 1860s – locking them up until they gave their verdict. And not allowing them to have a drink of water or go to the toilet. That’s very important to understand that here you have a legal system. People say Ned Kelly was unfairly dealt with. What I am trying to say is, yes may be, he was sometimes, but this is the system, this is the English system, this is the way it operated, this is why Ned was not treated any differently to lots of other people at the same time. It’s an institutional thing.

That’s what I am writing about. And how the Crown of Officers could fiddle it. One of the other very important things that’s happened in Australian Law, is that the law has placed more incumbent upon people – made it more incumbent upon people concerned in this area to do more work in the raw materials.

The early 1900s epitomised the attitude that Australia was really just another extension of England. A few counties of England by chance in the antipodes, you had a Judiciary Act that said that in the absence of statutory law etc, you had to apply the common law of England. The words ‘Common Law of England’ were taken out of that act some years ago, and it referred – I am not sure I like the phraseology all that much – it now requires the courts to apply the Common Law in Australia. Now what might we call the common law of Australia? Maybe they were right in deciding that the point is now that it is incumbent upon the High Court of Australia as a matter of its jurisdiction – because its got very limited original jurisdiction in chapter three in the constitution – most of its jurisdiction comes from the grants in the Judiciary Act.

Most of its powers can be taken away from it tomorrow – by a simple legislation – literally – whatever some of the judges might think The fact is that Frankfurter once pointed out to me and others in a conference I went to where he was at, there is a big risk about going too far, too quickly and too often. It is that if you really get a legislation that wants to chop you down, now it is largely copied in the High Court – it was copied from America, if you want to chop them down, you simply take the powers away and literally by any literal interpretation – you can just strip the High Court of Australia of much of its power, except for its original exclusive jurisdiction, which is very limited as in chapter three.

Now the thing is that it is section 80 in the Judiciary Act, that created the jurisdictional change. In other words the High Court has jurisdictions to deal with common law in Australia, certainly on the fields, but only insofar as given that power in the Judiciary Act – by amending the Judiciary Act and taking it by the simplest rule – to call it a legal interpretation – by taking the words English common law out, and putting in the words ‘common law in Australia’ in their place, what you did was to actually, not called to act this way initially, you are really saying you can’t use English common law – you have got to use Australian common law. Now that I think was a great victory for those who managed it.

Here we had the words English common law taken out and by any rules of statutory construction, not that the courts would follow it in this way, once we took the words English common law out, we were no longer – it’s a logical conclusion – not allowed to use English common law, because it’s got to be the common law in Australia, because you had no jurisdiction – over anything except the common law of Australia. You see the High Court’s powers come from the Judiciary Act, except for its original exclusive jurisdiction – so insofar as its got any power to apply any common law in its jurisdiction, only if it’s a jurisdictional thing, and therefore using that, building up a positive argument – they have got no jurisdiction, any more for saying. It was a great victory.

I think one of the interesting things is Mabo. You’ve got to note that Mabo came after the amendment to the Judiciary Act. And that generation of judges tend – some of them tend – to be quite positivist about this. They were now the repository of the common law of Australia and therefore as the repositories of common law they could reverse the past.

DO YOU THINK OF YOURSELF AS A LAWYER OR LEGAL HISTORIAN?

I do not see any difference between them. You see, the law is a product of history. I think that one of the terrible things about history is that historians in Australia and elsewhere too, think that law and History are different.

I think that is a misconception – I think that the historians – Manning Clark for example, doesn’t really examine early NSW and what the courts do and what David Collins does. Here are the main instruments of Government, here are the ones that tell us all about the social history, here is the courts request in Tasmania in the 1820s that tell us that women were appearing for men. Married women in court occasionally there were the records of the courts of requests of Richmond that tell us the price of bread the price of groceries, the price of everything else and here we have these so called Australian historians who simply have ignored these elements in working out the history of our country and I don’t see any reason why a person working with law should be regarded as a lawyer or a historian because he gets all the feeds, one of the other. In the same way I was brought up to believe that for those lawyers who wanted to work in the area of criminal law, their knowledge of psychiatry or their interactions with psychiatry were fundamentally important. And so when I went to the University of Pennsylvania and taught there in the late 1950s, one of the leading courses there and one of the leading teachers was a person who was both a lawyer and a psychiatrist. I see no reason why that shouldn’t be so. I went to the University of Chicago Law School – I studied with Edward Leady, one of the great legal minds in America in the 20th century, I studied anti trust law.

I studied with a Chicago style economist who was a joint teacher because law and economics were relevant to the interactional law of economics – it was crucially important to understand how law operates.

In fact, I went back to the University of Chicago for a class reunion a few years ago. There were two Nobel Prize winners that did economics with the law school that spoke at the law school annual alumni night dinner. Now I take as read the concept of that if you want to work in anti trust or anywhere else, you have got to work with economists or understand something about economics. My early writings on anti trust show this.

The idea that you are locked up in a living box and that you are a lawyer or an historian in a box or a psychiatrist in a box, seems to be the misconceive the concept and the understanding that you should have, that law itself is part of the social engineering of society, and that law itself has to interrelate and always has interrelated and interacted with a whole set of societal processes, both in the way it has developed and how it exists and how it will exist in the future, and the failure to interact is treated as something in its own is an aberration of the 19th century largely as a sort of thinking of Austin and others who were second rate nobodys!

The law is a weapon in the arsenal of government and they are interacting all the time. The law is most perfect example of living history because you know in a sense it’s the summing up. In some cases when someone wants to argue that the Magna Carta still applies in NSW, they are arguing that the history of 1215 is still relevant to the history of 1990 and that’s a very important issue. Then the law and the historian have to come together and one of the things about historians, nineteenth century historians, or people who write – politicians who wrote about history understood that the law was relevant to it. They understood that it was relevant. There was an interactive process here. And I am sufficiently an American cum Australian kind of lawyer to take the view that not to understand the social values and so forth is missing the point. I mean you have got to do it. Of course one of the other reasons for doing it is that the law has been so impinged upon by conservative values, that by exploding the reasons for coming into existence of laws they will often tell you or convince people that you shouldn’t use them any longer. I think if you show the historical reasons for laws coming about, and reasons, you can somehow create reasons for judges, or jurors in one way or another to come out with a decision that you think would be right.

You may have to play your game quietly, but you’ve got to play it. I must say that I find that one of the great things in law, is we manage things from groups of people to create what we might call law and history conferences and there has been a reasonable interaction between some historians and lawyers in developing these studies of Australia. The awful thing about this is that you go to things like the Oxford Dictionary and find that Bruce Kercher gets twenty lines on ‘law’ and so on.

This just shows that these people who have been – Australian history has been in my view – of course there are exceptions – handled by people who are so limited in the way they deal with law – they can study the history of minor private colleges and there are only a few Australian great historians. One of the great historians is Geoffrey Blainey. Geoffrey Blainey stands out as someone who at least had ideas. Whether he is completely right or not, he tells you about tyranny of distance.

Tyranny of distance tells you something fundamental about law in Australia, why is it that we don’t have grand juries, why do they have them in America, and Canada, and one of the good reasons is very simple. The taint of convictism helped keep them out of New South Wales. There was another reason. With the vast distance between towns, the fact it would take two or three to four or five days for people on a grand jury roll, meant that to have to go and camp out to have to go and sit for half a day on a grand jury was more than enough to lead to their downgrade and their abolition. The tyranny in distance was a fundamental thing that changed the various structures of our law. And so for example, we used stipendiary magistrates – why didn’t we have paid magistrates – probably 30 odd in NSW in the 1830s, when there were only 6 in the whole of England – why did we use paid magistrates or some other reasons and its got to do more with distance than most other things – or other factors, we had paid magistrates because they had them in Ireland and they could get the convicts down and control them, but there were other reasons.

In England to this day most of the magisterial cases that were heard were quite ordinary honorary Justices of the Peace. Those people are people who can have the time off, they have got the capacity to do it.

If you were running a farm out at Wagga Wagga, or a Cattle station as a squatter, you don’t want to be dragged away with perhaps having to camp perhaps one night on the way to or on the way back, to go and be an honorary magistrate in the Wagga Wagga police court. So you have a paid magistrate that comes and does that.

So the character of the law changes dramatically. We use full time magistrates at that lower level. Not the only reason, but one of the reasons was distance. So when you come to real historians who talk about things that matter, in the longer term in the broad, some one like Blainey – I used to take my law students to read Blainey, because it told you about law. It tells you just how the nature of Australian history changes with – you cant understand the law of Australia without understanding the distance and the nature of the land, and the fact that it will only hold one sheep for every acre. The British Government says you have got to buy every acre, same as in Canada, and that’s how we get our leasehold systems, basically, – that’s not the only reason but one of the reasons – there’s no point in paying one shilling an acre for something that will only run one sheep. Distance and geography are crucially important to understanding the law, and are crucially important to understanding it today, because those reasons may have disappeared. Distances have created law – in the same way the barbed wire has probably had more influence on the law than anything in America and Australia. Now if you think for a moment, the invention of the barbed wire was fundamental, because barbed wire becomes fundamental in the sense you can get cattle in and it also means that people who own sheep can keep cattle out and people who grow wheat can keep cattle out. So what you do is that you can then create different forms of regulatory mechanisms provided that you’ve got the Fences Act, and that changes all sorts of needs that are not served other the laws that you utilise.

IS THAT AKIN TO THE HAY'S CONCEPT AND THOMPSON'S CONCEPT OF THE ASSERTION OF LEGALITY?

I think it is practical necessity. I just read a long review in the New York review of books on the history of barbed wire. I recall I went to the cowboy museum in Oklahoma city in Oklahoma and I went there not to look at the picture of Ronald Reagan and other people dressed as cowboys in the front, but I went to look at the barbed wire and how it affected the earth, and I think the great thing about this is we tend to have images, but we fail to see that all sorts of societal things change the nature of law, it changes without seeming to change and it is one of the great values of English Law that it is able to change. When the jury system was originally a system of witnesses, and then transformed into judges in the last 500 years, and there were values, and societal values in that. Now you’ve seen the marshall in a Western movie, Now a marshall is really a person serving civil orders, and yet the marshall is transformed into something else. You see the Sheriff, it still operates in Chicago – he is not the sheriff of Nottingham, it’s turned into something entirely different and it’s understanding that also, that is important to courts that when they come to deal with it, they don’t think of the sheriff in the English sense if they are using it – in Australia even, the sheriff is usually no longer in charge of prisons, he is something else – and you have got to understand that and you have got to understand the law, and the law and history come together.

DO YOU THINK THAT WITHIN AUSTRALIA ITSELF AND WITHIN THE DIFFERENT COLONIES THAT THERE IS ANY NOTICEABLE DIFFERENCE IN LEGAL HISTORY?

Absolutely. The concepts – for example, if you appear before a magistrate in Victoria what do you call him – you call him ‘your worship’. If you appear before a magistrate in South Australia – you call him ‘your honour’.

Now here are people theoretically on the same level and so forth, but in South Australia they mad much more use of what they call specially trained magistrates who are legally trained, whereas the magistrates in Victoria were the ones called ‘your worship’, which is really the title you also use for the Mayor in your local town in Victoria, and probably in NSW, but not South Australia as far as I know. The original magistrates were usually the local dignitaries who were local counselors, or something like that, so you called them ‘your worship’. But in South Australia, for a whole set of exigent reasons in the nineteenth century, they appoint lawyers to be special magistrates, so they call them ‘your honour’, because they are lawyers and that marks them off from ‘your worship’ – and so as a result you get a different ethos entirely. You have got a professionalism of the lower level of the court system, which you really did not have in the other states, where you were getting it increasingly, but not as much as you would think.

There are differences in the uses of the jury trials. South Australia does not have a jury trial in simple defamation cases, for odd reasons, which go back to 1930s. The jury trial has changed, there has been discussions in recent years about the jury trial. Now the fascinating thing there is that the jury trial has been transformed by lawyers and they are trying to make it their servant, and so are the judges.

If you look at Australian jury trials, in the nineteenth century, a jury can always automatically ask questions at any stage, without a judge’s permission or anybody else, as to what was the nature of case. They can ask questions, they can cross examine witnesses, and all the rest. We have figuratively changed the working of the jury system in one way or another, because Lawyers in their self opinionated ways, and the judges have excluded the traditional use and the proper use of juries in the determination of criminal and other matters.

We have maintained in the use of juries the English system of not properly asking questions about a persons biases before we appoint them to the jury – even the Americans have changed. The Americans have gone too far the other way with too many private inquiries about the people going on jury panels, but the fact is there are very simple ways, as in New York, to be able to test out the bias of judges and jurors. Here what we have done is destroy it – largely the jury system – well not destroyed it, but come close to it by denying the juries the rights that they were given in the common law. Now if the common law meant anything it might not have protected human rights, but it did protect rights for a jury trial, because a jury trial without being questions could say a persons guilty or not guilty, so if they did not like what the prosecutors had done, they could say ‘not guilty’ even if the person was guilty as hell of murder, or anything else.

Now it seems to me, that what we have done – by the professionalisation of using lawyers and judges, we have in many ways destroyed the essence of the freedoms that were built up during the jury system. Sure it had its defects, sure it was not always ordinary people who sat on the juries, but if you read the history of juries, what is fascinating is, and when you see it working in America, asking people whether they are biased or not on certain issues, easily done – quite simple because we can get 12 people in – asking the same questions, by putting their hands up or not. If you got rid of three, you put another three – it was very simple.

If you ask the Judges and lawyers of this nation whether they do it, because they think they are setting themselves up – they are really trying to be the judges where in fact the real judges should be the people.

When you speak about assessors, I am in favour of assessors instead of juries in very complicated cases. We used assessors in Australian cases, we used assessors in a number of cases, there is no reason why we should not use assessors rather than jurors and the judges can be overruled by the two assessors. It was used for years by ordinary people of the same communities and the judge could be overruled.

When did this start to phase out? I don’t know whether it is – I have not check it out all through at the present, but most of it still exist, but it certainly existed in the forties and fifties until the British colonial system took over – so we come back to your basic question – I don’t see how law and history can be kept away from each other in the same way that I can’t see how law and psychiatry can be kept away from each other.

It seems to me that the law is part of social engineering and an element of social engineering. Now you can see it is pure and separate, but I think the simplest answer to all of this is very simple – you can pretend the law is a set of logical mathematical formula, and I don’t like that at all history shows that it ain’t, and we know its not. The greatest writer on the common law was, I suppose, was Oliver Wendell Holmes, and he starts his book on the common law very simply: the life of the law is not been logic – its been experience, and I mean history is experience – history demonstrates experience, it helps you to understand experience in the same way the psychiatry writer, the economics writer, so in that sense the life of the law is not been logic, its been experience.

And you should read his first chapter. This is the American tradition, the American legal tradition. Go and read the rubbish by most English writers, we know they talk about the pristine logical mathematical positiveness, we know in fact what they are doing is expressing, and allowing the law therefore to express the conservative view or views that suit them, pretending that they don’t exist. And that’s bad social engineering, and dangerous for the law, and dangerous for society.

WITH THE ADVENT OF THE PROFESSIONALISATION OF AUSTRALIAN LAW, DID IT HAVE A VERY BIG IMPACT ON AUSTRALIAN EXPRESSION OF LAW?

You could not have judges in some places. The interesting thing is that in New South Wales and in particular, Victoria, you had to be an English trained barrister to be a judge, or you were an English trained Barrister, but not Australian trained. Certainly that in the early 1860s and 70s, it was only in South Australia, Western Australia and Tasmania that you could get judges who were locally trained very early, and that helps to create your aversion to them going up to the High Court later, because they are native born, and locally trained.

You have this aversion to them. You have this indescribably well knit protective influence of the so called bars of New South Wales and Victoria, Victoria combining the legal profession, and then creating their own system for barristers, so that they keep their monopoly of going into court, not by law, because under the Victorian Legal Practitioners Act, you were admitted as a barrister or solicitor of the supreme court of Victoria, and you could be an amalgam from the very beginning. And the profession, from the very beginning very carefully maintained that separation – it meant a lot more money to them in the long run. New South Wales was the same, and Queensland followed suit. The other states did not have it, but they have a bit more of it now. So what you had was a legal profession that acted – they were never the same, because they didn’t have the Inns of Court. They were never the same – they pretended they were. Read the history of the Bar. Not Bennet’s, read the history of the Victorian bar: They never do anything wrong, they’re lovely people, they never get up to anything crooked. Did you know that Ned Kelly was unable to get legal representation? – Here was a bar that never gave.

In America, you have to do pro bono work, it doesn’t work everywhere, but I had friends who were lawyers in New Jersey – you have to spend a month or two weeks every year to do free cases. When I was doing legal aid in Victoria, when I was a law student, they looked down at their noses at us when we were at the Brotherhood of St. Lawrence and they looked down on us as competition in the sense of the legal profession, that it was beyond the pale that we should try to win cases to represent people who had no chance of winning in some of the poorer areas of Melbourne.

The Australian legal profession is very conservative in protecting itself, pretending it’s the same as the United Kingdom, reading English books, and pretending that we were more English than the English, and that was an influence. It wasn’t that it was always necessarily like that. I think for example that it is often overlooked that Robert Menzies, for example, was not really as British to the bootstraps as all that. He was very proud that he was a graduate of law of the University of Melbourne, and he said something along these lines, when he was doing an oration, he said that that Dixon and I are graduates of the University of Melbourne. We don’t regard ourselves as being any better than the graduates of Oxford but we don’t regard ourselves as being any worse. I think at that point, you have a bit of a clue about Menzies.

They were forced into this position. I mean that their tradition of the profession that was essentially English, their legal training was English, it was basically only at the lower level of the profession that people realised that the law wasn’t what they made it out to be and that society wasn’t necessarily like that.

AT THE LOWER COURTS, DOES IT NECESSARILY FOLLOW ON THAT THE OTHER STATES OTHER THAN NEW SOUTH WALES AND VICTORIA WERE NECESSARILY MORE JUDICIALLY CREATIVE?

It is hard to know how initially creative they were. I don’t know that they were any more creative. You see one of their troubles was that the law reports were appalling. What we have, was very few sources, that’s why I produced my book on Australian printed sources, because what it did do was point out that there were more reporting that met the eye, but that but some of it was inaccurate. The fact was in the 19th century we had some interesting law reports, and there were newspapers, and there were newspaper cuttings kept in most courts and they were kept as precedents, and they show some innovation. They show some innovation in Tasmania and certainly South Australia. Western Australia is more complex, Queensland was a bit, they tended to be innovative. NSW was very interesting, as it was a conservative society. Victoria was more innovative than NSW. Let me illustrate in contemporary terms how this affected the law, to show how parochial people were.

In the 1975 constitutional crises, let’s say Whitlam – and the dismissal by Sir John Kerr. You must remember the Prime Minister was from New South Wales – you must remember Sir John Kerr was also a Sydney lawyer and Sydney law school trained. You must remember Sir Garfield Barwick was also that.

Now we come to the constitutional crises and the Prime Minister is dismissed, and the Prime Minister accepts this! Sir Garfield Barwick produces a document which advises John Kerr, which refers the implication to the dismissal by Gay of Lang, Premier of NSW, in the early 1930s which was irrelevant to the rest of Australia, because it had no relevance and no precedence of the rest of Australia, because in fact NSW had a nominated Upper House, whereas the upper houses in the other states were elected. And they were in fact elected upper Houses of Victoria and Tasmania, Western Australia and South Australia. That was an entirely different ethos with respect to Upper Houses, and the concepts and frameworks of how Upper house should and should not operate. Kerr and Barwick, go along with and each other. There may be other reasons why he accepted this dismissal anyway, but I do not know. The fact is that the Gay thing mattered, though it’s not the law anywhere else in Australia.

We then come back to the narrowness, not only of New South Wales but Victoria also. Someone said to me once, quite rightly, (I do not know whether it was right or not) – it could never have happened that way, but this is a high Liberal, and he says to me ‘It could never have happened that way between Victorian Lawyers’. Nobody could have acted like Kerr or Barwick in those circumstances, it was incomprehensible – it would have to work itself out under the constitution. Sure there might have been a dismissal at some point, but the fact was you could never do it like that, and everybody knew you could not do it like that. Even Fraser, I was told, was worried about it.

Now the point is here there is narrowmindedness and the positivism and the influence of the NSW legal system.

Lets take the crowning law. The autobiography of Sir Garfield Barwick, epitome of all Australian good in the NSW legal system, educated from Fort Street High School, very bright – goes through, forgetting all the arguments of whether he was right or wrong, and all the rest of it. Here is the proof, the living proof of New South Wales and it’s myopic failure of its educational system and its courts to comprehend the effective nature of law and how it should operate because of a variety of reasons. Barwick in his autobiography, says:

Ah, this 1975 crisis, everything I said was right ... it has been drawn to my attention that there was in fact a decision of the Supreme court of Victoria on a similar case in a similar constitutional crises in the 1860s or 1870s in Victoria and maybe it even went to the Privy Counsel, but that was frontier law, and that was nothing to do with Law.

Now the point here is – and this is outrageous because of what it tells you is here a man in a position of giving advice, sure it was justifiable – it shows that it was justifiable. Barwick in his autobiography – it led me to make some comments in my book review that this man did not know areas of the law. If ever there was a decision that was purely political in Barwick's case, here it was.

I put it to Kerr. I had an argument with Kerr! I said ‘What about the Victorian case?’ He said ‘aaw’. It was the same problem. What I am saying is that that tells you something about law, and the operation of Australia, this is ‘Frontier Law’ he said – ‘I did not know about these cases’. When I gave the advice, I had written it up in Public Law, someone else had written – a 19th century Canadian and written it up in a book on this stuff. For a Chief Justice of this Country to show an abysmal ignorance of the law, its incredible, but he admits it, that’s what I found marvelous. He was still alive when I wrote this. He may be a nice man.

I found it appalling commentary on that previous generation of lawyers in this country. I mean you have got a system in NSW that really kept the Chief Justice in Equity until after 1972, one hundred years after Victoria. South Australia virtually got rid of it before then, so did Western Australia. An incredible story of protecting their own interests. Now I don’t know if the story is true, but one of the stories told us was that there were big fights when, after a hundred years of trying, they were trying to get the Judiciary Acts through and they had big problems. The boys all want their jobs and Chief Justices, and when they finally get it through, then there is this jockeying of who should be in the front of the session. Where else in the world can you read people arguing that the Magna Carta still operates, when there is no vestige of it in Great Britain, or other English law. I mean, it is remote from the society. You just got to tell these people the history of what has happened here.

1975 is the crowning glory. Barwick himself admits that he did not know the Victorian cases, including one on the Privy case.

COULD YOU TELL ME A BIT MORE ABOUT YOUR VIEWS ON THIS CONNECTION BETWEEN LAW AND POLITICS IN AUSTRALIAN HISTORY?

We have not been connected, we have often been very isolated. Tasmania is an odd place. It really is divided by ancient law into three parts. It has one set of constitutions in the south, another one around Launceston, and another in the west. And Tasmania in fact had two law societies, 30 years ago.

The high court in a way, by travelling between the states as itinerant court, helped to bring things together. I think the creation of the industrial courts of arbitration helped to do that as well, but there was no doubt that the isolation had an effect.

Take for example the curriculums in the law school. I learnt the law of defamation originally, as a student in the University of Melbourne, I never learnt that the law of defamation in NSW was different. There was no defence of truth absolute in NSW. That there had to be defence in the public interest or public benefit as in New South Wales, Queensland, Tasmania and WA. I never learnt that. I learnt the criminal law, of murder, manslaughter, from Tenney’s outline of English law. I never knew there was a criminal code in Queensland. Sheer ignorance!

The parochialism was not just one sided. There are independent states, with independent law and it’s a state of mind that is seen much more in America. We come back to distance. Because the distance between the places was so large.

It shows you just how limited and parochial we were while I mentioned Barwick and there was an English notion – for example when I was a law student, I was not allowed to do family law, because I was being trained to be an honour student for the bar. So articled clerks who were very bright were not allowed to do domestic relations. We did not do domestic relations, because domestic relations were not what lawyers were all about, and the other thing was I did industrial law, a great reaction to that. I had to fight to add Administrative law to the curriculum at the University of Adelaide over the head of the Supreme Court, who said no administrative law existed, because Dicey said that there was no administrative law way back in the 1890s. I had to introduce a course that was Administrative Local Government and Industrial Law. I had to bring in the practical local government and industrial law, but was told I could not introduce administrative law, so I had to sneak it in through the back way!

[*] BCom LLB, Macquarie University.

[1] A C Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1.

[2] A C Castles, An Introduction to Australian Legal History (1971).

[3] A C Castles, An Australian Legal History (1982).

[4] Information sourced from C Barnier (ed), Notable Australians: The Pictorial Who’s Who (1st ed 1978).

[5] Based on an interview with Alex C Castles conducted on 7 September, 2000 at Macquarie University, attached as Appendix A. All quotations from this interview will be put without footnote. Where there is no footnote and Castles is quoted, the reader should assume that the oral interview is the source.

[6] W Blackstone, Commentaries on the Laws of England (5th ed, 1773) vol 1.

[7] (1828) 9 Geo IV c 83.

[8] V Windeyer, ‘“A Birthright and Inheritance” - The Establishment of the Rule of Law in Australia’ (1961) 1 Tasmanian University Law Review 635.

[9] (Imp) (4 Geo IV c 96).

[10] (Imp) (9 Geo IV c 83). H V Evatt, ‘The Legal Foundations of New South Wales’ (1938) 11 Australian Law Journal 409.

[11] Castles, above n 1, 6.

[12] W S Holdsworth, Some Lessons From Our Legal History (1928) 3.

[13] Modern appraisals of Holdsworths’ appraisal of the relationship between legal history and precedent are discussed in Thomas, ‘The Tyranny of Doctrine’ in M Forkosch (ed), Essays in Legal History in Honor of Justice Felix Frankfurter (1966) 451.

[14] W J V Windeyer, Lectures on Legal History (2nd ed, 1957).

[15] See J and J Mackintoly (eds), A Century Down Town: Sydney University Law School’s First Hundred Years (1991) 45, also R Campbell, A History of the Melbourne Law School 1857 to 1973 (1968) 92-93 and V A Edgeloe, ‘The Adelaide Law School 1883-1983’ (1983) 9 Adelaide Law Review 1, 31.

[16] 1828-9 Geo IV, c 83.

[17] Windeyer, above n 14, 313.

[18] R A Blackburn, ‘Law School Curricula in Retrospect’ (1983) 9 Adelaide Law Review 43, 46.

[19] The decline of the teaching of Roman Law interestingly parallels the rise of the study of Australian legal history. In 1960, it stopped being a compulsory subject at the Universities of Adelaide and Melbourne. This is lamented by J J Bray, ‘A Plea for Roman Law’ (1983) 9 Adelaide Law Review 50, 55.

[20] Castles may have been referring to Roger Atkins, who wrote a book entitled Bills of Sale, liens and stock mortgages in New South Wales (1939).

[21] P Phillips, ‘Legal Education and Admission to Practice’ in A Dean (ed), A Multitude of Counselors: A History of the Bar of Victoria (1968) 276.

[22] A C Castles and M C Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia 1836-1986 (1987) 78.

[23] L Martin, ‘From Apprenticeship to Law School: A Social History of Legal Education in Nineteenth Century New South Wales’ 9 UNSWLJ 111, 119.

[24] B Kercher, An Unruly Child: A History of Law in Australia (1995) 153.

[25] Complaints about overcrowding at Sydney University law school are recorded in Mackintoly, above n 15, 96.

[26] E N Griswold, ‘Observations on Legal Education in Australia’ (1950) 1 Annual Law Review of Western Australia 197, 200.

[27] See Macintoly, above n 15, 97 and Campbell, above n 15, 94.

[28] Castles and Harris, above n 22, 340.

[29] M Meehan, ‘The Good, The Bad and The Ugly: Judicial Literacy and Australian Cultural Cringe’ (1990) 12 Adelaide Law Review 431.

[30] See Kercher, above n 24, Ch 3 and p 65.

[31] An interesting account of the similarities and differences between colonial attorneys and their English counterparts is found in D Duman, The English and Colonial Bars in the Nineteenth Century (1983) 120-130.

[32] L Parsons, ‘From Apprenticeship to Law School: A Social History of Legal Education in Nineteenth Century New South Wales’ (1986) 9 UNSWLJ 111, 141.

[33] Mackintoly, above n 15, 72.

[34] Griswold, above n 26, 207.

[35] See C M A Brown, William Jethro Brown: A Personal Biography and Bibliography (1983). Also Edgeloe, above n 15, 21-251and Mackintoly, above n 15, 48-50.

[36] Campbell, above n 15, 54.

[37] Macintoly, above n 15, 117.

[38] Blackburn, above n 18, 46.

[39] Bauerman v Radenius (1798) 7 TR 663, 688.

[40] A R Blackshield and G Williams, Australian Constitutional Law and Theory (2nd ed, 1996) 258.

[41] This issue is considered in A R Blackshield, ‘The Legitimacy and Authority of Judges’ (1987) 10 UNSWLJ 155.

[42] Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208, 213.

[43] (1988) 165 CLR 360, 385.

[44] See Barwick’s address to the court upon retirement (1981) 148 CLR v, where he stated ‘(T)he function of the court is to give the words their full and fair meaning and leave the Constitution which places the residue of the states to work itself out’.

[45] Castles’ comment that the life of the law is experience echoes the famous statement of Oliver Wendell Holmes Jr, ‘The life of the law has not been logic; it has been experience’ 14 (1880) American Law Review 233, 234.

[46] Castles’ statement may be taken at face value – Sydney University’s 1955 legal history exam tested students on Copyhold tenure and Fee tail. See Annual Examination Papers – Book 1, Sydney University, 1955.

[47] Campbell, above n 15, 146-151.

[48] A R Blackshield, above n 41, 155.

[49] See R Johnston, History of the Queensland Bar (1978) 140-142.

[50] A I Clark, Studies in Australian Constitutional Law (1st ed, 1901, 1997 reprint) 21.

[51] K N Llewellyn, The Bramble Bush: On Our Law and Its Study (1951).

[52] I have relied on G J Aichele, Legal Realism and Twentieth Century American Jurisprudence, (1990) 86-97; P B Kurland, Mr Justice Frankfurter and the Constitution (1971) generally; H B Levy, Anglo - American Philosophy of Law: an introduction to its development and outcome (1991) 87-93.

[53] J Frank, Courts on Trial: Myth and Reality in American Justice (1949) 372.

[54] For example, refer to Lawmakers & Wayward Whigs, where Castles discusses the impact of the introduction of European law on the Aboriginal Population at Ch 1.

[55] G J Aichele, Legal Realism and Twentieth – Century American Jurisprudence: The Changing Consensus (1990) 92.

[56] P B Kurland, ‘The Supreme Court 1963 Term – Forward: Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government’ (1964) 78 Harvard Law Review 143.

[57] P B Kurland, ‘Toward a Political Supreme Court’ (1969) 37 University of Chicago Law Review 19.

[58] Castles, above n 1, 6.

[59] J M Bennett and A C Castles, A Source Book of Australian Legal History; Source Materials from the Eighteenth to the Twentieth Centuries (1979).

[60] A discussion of the judicial activism and judicial restraint in the Supreme Court can be found in C H Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values 1937-1947 (1948) 277-87.

[61] Castles, above n 1, 6.

[62] See Kercher, above n 24, Chs 1-3.

[63] Bennett and Castles, above n 59; also A C Castles, An Annotated Bibliography of printed materials on Australian Law 1788 – 1900 (1994).

[64] Castles, above n 1, 1.

[65] See Kercher’s paper in this issue.

[66] Castles, above n 1, 9.

[67] Castles, above n 2, 2.

[68] Woinarski, Sine Historia Caeca Jurisprudentia (LLD Thesis, unpublished, Melbourne, 1930).

[69] R M Hague, History of the Law in South Australia 1837-1867 (1936 unpublished).

[70] ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’ Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 CLR xi.

[71] (1963) 111 CLR 610.

[72] G Barwick, ‘The State of the Australian Judicature’ (1977) 51 ALJ 480, 488.

[73] See A C Castles, ‘Now and Then: Law Schools Old and New and their Impact on Australian Law’ (1990) 64 ALJ 147.

[74] The notable exception was the work of H V Evatt, whose article ‘The Legal Foundations of New South Wales’ (1938) 11 ALJ 409 which illustrated the problems associated with importation of English law.

[75] A C Castles, ‘Paramount Force of Commonwealth Legislation’ (1962) 35 ALJ 402.

[76] A C Castles, ‘Limitations on the Autonomy of the Australian States’ (1962) Journal of Public Law 175.

[77] J M Bennett, ‘Book Review - Alex C Castle -An Introduction to Australian Legal History’ (1971) 45 ALJ 701.

[78] A C Castles, ‘New Law in an Old Land’, ABC Radio Tapes, 1991.

[79] J McLaren, ‘The Legal Historian, Masochist or Missionary? A Canadian’s reflections’ (1994) 5 Legal Education Review 67, 67-104.

[80] S Petrow, ‘The Future of the Past - the Development of Australian Legal History’ (2000) 8 (1) Australian Law Librarian 4-16.

[*] Interview conducted on 11 September 2000. Any misinterpretation is the fault of the author. [Editor’s note: we have retained Alex’s idiosyncratic conversational style in the transcript of this interview.]