Gold Rush & Self-Government (1851 - 1900)
In May 1840, after decades of debate and a British parliamentary inquiry headed by Sir William Molesworth, an Order-in-Council ended convict transportation to New South Wales.
On 12 February 1851 Edward Hargraves discovered gold at Ophir, near Bathurst. It was an event that changed the course of Australian history. Wool was soon displaced as the colony’s main export. The population of New South Wales went from 187,243 in 1851 to 350,860 in 1861. The influx of immigrants included many skilled tradesmen and professionals, and Sydney’s affluent middle class grew rapidly.
Amid such far-reaching economic and social change, the Supreme Court consolidated the rule of law in a free colony and an evolving democratic polity.
1844-1873
Henry Samuel Sadd, The Hon. Sir Alfred Stephen C.B, G.C.M.G., Lieutenant-Governor, engraving, 1893.
Sir Alfred Stephen
Alfred Stephen was appointed Chief Justice of New South Wales in 1844 following the death of Chief Justice Dowling. He remained in the role until 1873, making him the longest-serving holder of the position.
Stephen wrote the Supreme Court Practice and Rules of Court. His judgments are regarded as sound, albeit occasionally severe. He protested about the squalid working conditions in King Street and Darlinghurst Courthouses. Like his predecessors, Stephen was grossly overworked, causing him to implore "men of humanity… to kill no more Chief Justices".
Stephen was an active member of the Legislative Council. He drafted many of the colony’s statutes affecting divorce, insolvency, court procedure, crime, admiralty, and constitutional law. He was known for his sympathy to women as victims of domestic violence. He campaigned successfully for extending the grounds of divorce to include desertion, habitual drunkenness, and habitual cruelty. He died aged 92.
1850
Papers relating to Justice E. Wise and manuscript in Chinese characters and negatives manuscript, 1863.
An Amoy Shepherd’s Evidence
The first contracted workers from southern China arrived in New South Wales in 1848. The colony’s growing rural economy needed a source of cheap labour to replace assigned convicts and by 1853 around 3,000 Chinese workers had arrived. While inevitably, some tried their luck on the goldfields, many found work in other industries.
Ang, a Chinese shepherd working on a station in rural New South Wales, was charged with manslaughter. Ang had no spoken or written English and was barely literate in his native Fujianese. The evidence presented in his defence was a mixture of written words and depictions of an accidental death. The victim can be seen yanking Ang’s long hair, causing the accused to inadvertently discharge his rifle.
Ang was convicted of manslaughter and received a five-year sentence.
1859
Attributed to Charles Pickering, Registrar General's Office [Sydney], 1870.
The Old Registry
By the 1850s New South Wales was growing rapidly and so were the registrations of births, deaths, marriages, land titles, and businesses. Consequently, a bigger, more fireproof space was needed for deeds and records. A dedicated building, designed by Alexander Dawson, was constructed on the site of the old watchhouse in Hyde Park. According to one account, Chief Justice Stephen was unaware that construction was due to commence and one morning in May he arrived at the Court to find its back wall had been knocked down.
The newly built registry included fireproof records storage featuring glass brick flooring and cast-iron doors and structures.
1868
Samuel Calvert, Attempted assassination of HRH The Duke of Edinburgh at Clontarf, NSW, 1868.
Assassination! Trial & execution of O’Farrell
The first assassination attempt in Australia occurred on 12 March 1868. Prince Alfred, Duke of Edinburgh and fourth child of Queen Vitoria, was shot and wounded at Clontarf while attending a fundraising picnic for the Sydney Sailors’ Home. He was shot at close range by Irish Catholic Henry O’Farrell, who was immediately arrested. The Prince suffered only a minor injury, but O’Farrell’s action sparked a wave of anti-Irish, anti-Catholic sentiment. O’Farrell denied any connection with the Irish republican movement and was known to suffer from mental illness. Despite doubts about his fitness to stand trial, he was sentenced to death by Justice Alfred Cheeke and hanged at Darlinghurst Gaol on 21 April 1868.
1873-1886
E. Bell, Chief Justice James Martin, c. 1870s
Sir James Martin
James Martin began his career as a journalist. He wrote for The Australian and sympathised with a growing sense of Australian national identity. Martin was admitted as a solicitor in 1845. He entered politics and became Attorney General in 1856 and Premier in 1863, when he collaborated with Sir Henry Parkes to legislate for many important measures of social reform. he was sworn in as Chief Justice of New South Wales on 19 November 1873. He remains the only person to hold all three positions of Chief Justice, Premier and Attorney General. As Chief Justice, he was a model of independence, scrupulousness and impartiality and fought strongly to preserve the Court’s independence.
1886
Sir Julian Emanuel Salomons, 188-, photographer Freeman & Co., 346 George Street.
Sir Julian Salomons
Sir Julian Salomons was appointed as Chief Justice in November 1886 but resigned before he could be sworn in. His unconventional style of charging set fees and aggressive advocacy drew criticism, yet he gained celebrity status for his wit, determination and handling of notorious criminal cases. After his appointment, Salomons perceived a strong resistance from his new judicial colleagues, in particular Justice Windeyer, and he resigned before sitting. Salomons resumed a leadership role at the Bar, excelling as counsel before the High Court, and later held positions as Solicitor-General and in the Legislative Council.
1888
George Frederick Gregory Snr , SS Burrumbeet, watercolour by, c.1886.
Habeas Corpus and the case of the SS Afghan
In 1880-81, New South Wales and other Australian colonies enacted discriminatory laws to restrict Chinese immigration by levying a £10 poll tax prior to disembarkation. Chinese nationals who had been living in New South Wales, and who obtained a Treasury certificate before departure, were exempt.
Mr Lo Pak had migrated to NSW and was returning to Sydney from Hong Kong aboard the SS Afghan in May 1888. When police boarded the vessel and prevented Chinese passengers from disembarking, he sought a writ of habeas corpus from the Supreme Court. On 17 May counsel for the Inspector-General of Police argued before the Full Court that the New South Wales Government had the executive power to expel aliens. The Court’s decision was prompt and scathing. Justice Foster said ’nothing is more inconsistent with freedom than that a people should be arbitrarily subjected to the will of the executive’. Lo Pak and other holders of Treasury certificates were allowed to disembark the following day.
1891
Fighting Jack, Melbourne Punch, 16 April 1891 p.7.
Women, Contracts and a Boxing Kangaroo
Mrs Olivia Mayne was the owner of Fighting Jack, a boxing kangaroo. Unfortunately, Jack’s career began to wane when he refused to fight on cue. When two theatrical entrepreneurs, the MacMahon brothers, failed to pay Fighting Jack’s hiring fee of £25 per week Mrs Mayne sued them in the Supreme Court. Their barrister argued that while the Married Women’s Property Act 1879 allowed women to take action to recover, protect or secure their separate property, they were non-entities at common law and thus could not make or enforce a contract. The jury found in favour of Mrs Mayne and awarded her £139. The verdict was set aside on appeal, but the dissenting judgment of Justice Windeyer was later used to support reforms to contractual rights for women, which were eventually legislated in 1893.