A History of Criminal Law in New South Wales: The Colonial Period, 1788-1900

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Federation Press, 2002 - Law - 460 pages
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New South Wales is that rare political creation, a state founded for and upon the criminal law. The history of its criminal law from settlement to Federation is uniquely fascinating. Drawing on his range of experience as a university scholar, a criminal law QC and a judge, the author explains how Britain's criminal laws were established and developed in its (arguably) most successful colony. There are three themes:the horror and savagery of the criminal law transported to Australia and imposed there; the constitutional importance of basic criminal law rules requiring certainty of proof; the corrupt but necessary role of mercy in the administration of the law. There are several genuinely remarkable features of this book. One is that the author draws upon a vast body of material recently brought to light by Bruce Kercher in his massive disinterment of early colonial case law, to explain in detail the actual working of the New South Wales criminal courts.Another is that the core of the book is an analysis of New South Wales parliamentary debates between 1871 and 1883 on criminal law, illuminating the history of the law (and its future). Yet the most remarkable thing of all about this book is its rarity. In the many places where the British Empire imposed its laws, there are hundreds of universities and centres of legal study.Histories of the criminal law, or studies which can be so described, are rare or invisible. This admirable study will become a classic in its field, required reading by legal scholars, historians of colony and empire, and by astute legal practitioners making arguments for contemporary submissions or judgments.
  

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Contents

Savagery Principle and Mercy in the Criminal Law
1
The Transportation of English Criminal Law to New South Wales
7
Criminal Law in a Penal Settlement
21
Right and Wrong Cheek by Jowl
38
Crimes of the Pen and an Experiment
48
Juries the Lash and Natives
62
The Other William Blackstone
98
Retreat of the Death Penalty
112
Criminal Process under Pressure
229
The First Law Reform Commission and its 1871 Report
245
Untoward Circumstances
262
A Second Failure
274
Yet Another Failure
292
The Larrikin Residuum 1881
316
Serving Their Term
327
1883
341

The Colony Legislates on Crime
137
McNaghten and Knatchbull
154
The End of Transportation 1849
164
Lower Court Reforms of 1850
169
Temporary Problems for Criminal Law
180
Outlaws and Urchins
191
Slaving Cases in New South Wales Courts
210
Mandatory Sentencing Repealed
357
The Comment Issue
373
Doctor Malthus and the Baby Farmers
387
George Dean and Friends
408
Tidying Up in 1900
422
Table of Cases
440
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