2008 speaker: The Hon. James Jacob Spigelman AC

The Honourable James Jacob Spigelman AC delivered the Australia Day Address at the Conservatorium of Music on Sydney 22 January 2008.

Biography

The Honourable James Jacob Spigelman AC is the Lieutenant Governor of NSW and Chief Justice of the Supreme Court of New South Wales.  In 1986 he was appointed as Queen’s Counsel and Acting Solicitor General of New South Wales in 1997. He was then appointed as Chief Justice of New South Wales and Lieutenant Governor in 1998. In 2000 he became a Companion of the Order of Australia (AC) for services to law and to the community.

Transcript

Australia Day this year marks the bicentenary of the only military coup in Australian history. Popularly, but inaccurately, known as the “Rum Rebellion”, the Coup of 1808 played a crucial role in establishing a firm foundation for the rule of law in this nation. On an anniversary such as this, it is appropriate to pause and consider how and why it was that

our ancestors created the institutions which we take for granted and which explain the long- term stability and prosperity that so few nations have been able to achieve.

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Just before sunset on 26 January 1808, the twentieth anniversary of the arrival of the First Fleet, over 300 soldiers of the New South Wales Corps, the 102nd regiment of the British army expressly created to protect the new colony, gathered on the parade ground in front of their barracks, of which the last remnant is now Wynyard Square. The officers of the Corps had reinforced their regimental esprit de corps at a rare full dress dinner at the barracks two nights before the coup. The next day they decided to arrest and depose Governor William Bligh, fourth Governor of New South Wales, who already had one mutiny on his record.

The soldiers were led in formation from the parade ground by their commander, Major George Johnston, with drawn sword in one hand and the other arm in a sling, an injury caused when he fell out of his carriage on the way home after the regimental dinner. It was one of Sydney’s first drink driving accidents.

Guns loaded, bayonets fixed, sweltering in their scarlet woollen coats, with banners flying and the regimental band playing The British Grenadiers, the column marched down High Street, since renamed George Street, across the new stone bridge spanning the Tank Stream

and up Bridge Street to Government House where the Museum of Sydney is now, at the base of Governor Phillip Tower.

This was all for show, no doubt designed to impress and perhaps to intimidate the general populace. Bligh’s personal guard had already been suborned and the two naval vessels under his command were out of port. There was no possibility of resistance nor, as Bligh was taken by surprise, of escape. He was kept under house arrest for a year and it was another year before Governor Lachlan Macquarie arrived with his own 73rd regiment to enforce the removal of the NSW Corps.

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One of the oldest and most debated questions of political philosophy is the identification of the circumstances when resistance to established authority is permissible. Whether or not that was so in Sydney two hundred years ago has divided contemporaries and

historians. Personal values and beliefs often influence the interpretation of the past and the role of the NSW Corps has not been immune to such influences.

At the risk of over simplification, the history of the Coup of 1808 has been written in two distinct ways. Each emphasises one or other of two sets of facts, selected from the limited pile of contemporary records as if they were iron filings into which a magnet had been dipped, so that some facts gather at one pole and different facts at the other pole, with little in between. The differences in interpretation are as divergent as the north and south poles of a magnet.

At the north pole the emphasis is on the fact that the rebels had become a kleptocracy, motivated by crass avarice. Bligh’s policies threatened their wealth. At this pole, John Macarthur, a former officer of the Corps who had become one of the wealthiest men in the colony, is cast as a conniving puppet master and Bligh’s personal defects are played

down. This interpretation seems to appeal to those who have faith in Government enterprise and an egalitarian inclination to support, as Bligh did, the small farmers of the hapless settlement on the Hawkesbury flood plain.

However, one person’s idea of greed is another’s commercial incentive. At the south pole the primary focus is on the fact that the officers of the NSW Corps provided much of the entrepreneurial drive in trade and agriculture that was necessary to enable the colony to succeed. Bligh’s policies threatened that success. His was a static vision of a government- dominated society serviced by yeoman farmers, in contrast with the dynamism of Sydney based commerce reaching across the South pacific to trade in sandalwood, seal skins, whaling and wool. Adherents to this approach emphasise Bligh’s character and policy

defects and play down the cupidity and cunning of the rebels. This pole appears to appeal to those who have faith in private enterprise and are unsympathetic to government control. The analysis at the south pole appears to have been the judgement of the only systematic contemporary investigation of the events, the court martial which let Johnson, the commanding officer, off with a mere discharge, expressed to be, and universally regarded as, exceptionally lenient.

Both perspectives are open. This is one of those historical controversies that is not capable of final resolution. The historical record – that pile of factual iron filings – largely consists of assertions by those with a vested interest in the outcome, as is inevitable with an event that polarised a small community. In such circumstances, it is understandable why a particular historian can find a reason not to accept something said by anybody.

Three matters must be borne in mind when assessing the body of writing on this topic. First, any explanation of why the coup occurred can look like justification or condemnation. The distinction between explanation and judgment has proven difficult to maintain.

Secondly, when assessing the venality and corruption of the officers it is necessary to avoid that imperialism of the present by which today’s values are projected back on a different era. What we would regard today as corruption, such as officers exploiting access to regimental finances for personal gain and preference dependent on personal patronage, was then regarded as normal conduct. Eighteenth Century British politics and public administration was, by our standards, profoundly corrupt. There was no reason to expect the early Sydney colony to differ.

Finally, it is necessary to allow for a fundamental cultural difference between that time and our own. That was an age of status and anyone aspiring to the rank of a gentleman behaved in ways quite incomprehensible to those who have become more accustomed to venality as the principal motive for action. Much conduct was then prescribed, as powerfully as by religious rule, by the code of honour, to which all gentlemen had to subscribe. The significance of this code is manifest in the long tradition of duelling where, for centuries, perfectly rational men risked, and often enough lost, their lives over the most trivial of aspersions on their character. Part of the explanation for the Coup of 1808 lies in the operation of this code.

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The first thing that needs to be said about the so-called “Rum Rebellion” is that it had nothing to do with rum. The appellation was conferred some fifty years after the event by an activist for a teetotal society. It was popularised by H V Evatt as the title of the series of lectures he delivered at the University of Queensland for the 150thanniversary of the Coup.[i]

In the early years of the settlement – particularly during the two years between Governor Phillip’s retirement on health grounds in December 1792 and the arrival of his successor, when the commanding officer of the Corps acted as Governor – alcohol, generically referred to as rum, was a readily tradeable item in the barter-based, rudimentary economy operating beyond he bureaucratic, requisition system at the government store. Rum became a substitute for currency. The shortage of currency in the colony was aggravated by the fact that the agent appointed by the British Government to operate the colony’s accounts from London was in the process of embezzling some 80,000 pounds.[ii] The officers’ early trading success was based on the fact that were paid in London and could draw bills which would be honoured there. They alone, in the early years, had access to sterling for purposes of trade. In those years the trading cabal, which operated as an extension of the officers’ mess, was able to profitably exploit a monopoly position in rum and other goods. That was no longer the case in 1808. By then, competition ensured that monopoly profits were substantially reduced, although high prices were retained by the penumbra of illegality that surrounded the trade.

Some officers had built up capital during the period of exploitation when mark-ups were high and by preferential access to governmental largesse such as land grants, cheap labour by assignment of convicts and supply of provisions, livestock and equipment delivered for government purposes at the cost of the British taxpayer. In 1808, many officers retained an interest in trade, which had become more diverse and much more competitive, but their principal economic interests now lay in the land, both acres of land for agriculture, granted at no cost and without compensation to the traditional owners, and urban leaseholds in Sydney, where one subdivisible block had changed hands for the extraordinary amount of 900 pounds just before Bligh’s arrival.

As I wish to highlight one aspect of the coup – its implications for the rule of law – it is appropriate to focus on the urban leases.

Governor Phillip intended to reserve the land between, roughly, Hunter Street and the water for public purposes. It was the first attempt at town planning in Sydney. Cutting into this reserved area, during Phillip’s time, was a track formed by the passage of traffic behind the row of tents that the officers of the First Fleet had pitched on arrival, soon replaced by rudimentary huts, on the western bank of the Tank Stream that flowed into Sydney Cove, now Circular Quay.[iii] That accidental track became George Street and this fortuitous origin, rather than Phillip’s conception, proved to be the model for the grand Sydney tradition of urban planning. The only remnant of Phillip’s plan around the original Government House is Macquarie Place.

Phillip’s successors gradually abandoned his plan. Leases were granted, at first only for short periods. However, the third Governor, Phillip King, attempted to regularise the haphazard system and to establish clearly defined property rights: creating a register of dealings, quadrupling the rent and granting a large number of leases, many for periods of 14 years.[iv] His successor, William Bligh, wanted to return to critical aspects of Phillip’s original plan – clearing grand spaces around Government House and the church – but King’s leases stood in the way.

Bligh set out to use all the wide discretionary powers at his disposal as Governor of a penal colony to achieve his objective. He refused to issue any more leases, announced that he would not approve building on existing leases, ordered residents to surrender possession of homes, ordered the demolition of structures built without approval and threatened to demolish others. Intending to revoke the leases, but unsure of his power to do so, he sought instructions from London.[v]

The wife of a commercially successful emancipist wrote complaining:

“From some he took good houses and gave them bad ones. From others he took their houses and turned them into the street and made them no recompense whatever. Some he stopped building. Others he made make improvements against their inclinations and on the whole endeavoured to crush every person as much as possible.”[vi]

When one occupant of a leasehold residence in the environs of Government House objected to Bligh’s order to remove it, asserting that he could not be forced to do so by the laws of England, Bligh allegedly exploded:

“Damn your laws of England! Don’t talk to me of your laws of England. I will make laws for this colony, and every wretch of you, son of a bitch, shall be governed by them. Or there (pointing over to the gaol) is your habitation!”[vii]

The lease of land next to the gaol was held by Major Johnston, the commanding officer of the Corps. It was one of those Bligh wanted to revoke.

The Coup of 1808 was the result of a range of factors including various aspects of commercial self-interest. The traffic in rum was of little if any significance, except to some of the non-commissioned officers. Much more important, amongst multiple causes, was the conflict between real estate developers and the public interest over the exploitation of prime urban land near the water. Nothing could be more “Sydney” than this.

The tension over urban leases was one of a number of conflicts in which Bligh sought to reverse practices permitted by his less resolute predecessors. He made only three land grants in 18 months and issued no leases; he pardoned only 2 convicts in 18 months; he cracked down on profiteering and enforced import restrictions. His policies undermined the wealth and the prospects of that part of the local elite with access to capital. On a number

of occasions he deployed his authority over the rudimentary judicial system to attack those he opposed and intervened directly in court cases to achieve his ends.

To any self-respecting Englishman, the kind of untrammelled executive power that Bligh exercised was an abomination. At the very core of the national polity was the bundle of procedural and substantive principles known as the rule of law, which required executive authority to be based on, and subject to, pre-existing rules. Government by whim or caprice in the exercise of an absolute discretion, was tyranny, typical of Continental nations and an anathema to the English.

The broad discretionary powers of the Governors of NSW may have been necessary vis a vis the convicts. However when applied to free settlers and emancipists, they were reminiscent of the prerogatives claimed by the Stuart kings. The historical inheritance of the civil war and of the Glorious Revolution of 1688 was the dominant ideology of 18th Century Britain and, beyond the penal regime, provided the civic discourse of early Sydney. [viii]

Bligh’s conduct may have been accepted from the chief warden of an open-air prison or the captain of a ship – the culture of authority in both created an expectation of unquestioning and immediate execution of orders. Bligh, as an accomplished naval commander and a brilliant navigator, brought this expectation to his role as Governor. However, such conduct was unacceptable when applied to free subjects, who constituted the majority of the 7000 persons in the colony. Indeed there were serious doubts, privately expressed by Jeremy Bentham but known to some settlers, about whether, in the absence of express Parliamentary authority, the Governor could lawfully exercise such authority over free men and women at all.[ix]

Whatever his formal powers may have been, Bligh undermined what the local elite regarded as property rights, perhaps most clearly with respect to the urban leases. This was fundamentally inconsistent with the universal understanding of the rights of free Englishmen.

Bligh, of course, relied on his formal authority and had the personal strength to exercise powers that his two predecessors, Hunter and King, had compromised. They, Bligh believed, had permitted private men to grow wealthy at the expense of the Crown. He was determined to reassert the public interest as he saw it and to act strictly in accordance with his instructions. In most respects his approach to governing was disciplined and purposeful.

However, even in a small settlement like Sydney of the day, where the petty rivalries, gossip, bickering, slights and vendettas of village life were all manifest, effective government required an understanding of communal expectations. Bligh proved as oblivious to the fears

and aspirations of the Sydney elite as he had earlier been to the delights that the crew of The Bounty had experienced in Tahiti.

The scene was set for a conflict of institutional cultures between that of the navy, where authority was typically exercised in the confined autocracy of a ship, and that of the army, where the exercise of authority often required interaction with a broader community.

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Those adversely affected by Bligh’s policies included many with no association with the NSW Corps. However, no coup could have occurred without the united resolve of the current officers. Their commercial interests, which were engaged to varying degrees, cannot fully explain the Coup. The risk of retributive action from London for such gross insubordination must have been regarded as high and any commercial advantage would, at best, be short term.

Bligh had also stirred the acute status anxieties of the officers by challenging their individual and collective reputation. This was a serious affront under the code of honour which they, as members of the caste of gentlemen, regarded as the most important social bond of their lives.[x] Bligh offended members of this caste by his conduct, by his bearing and, perhaps most of all, by his language.

The officers of the NSW Corps, as well as most free settlers, were attracted to the colony precisely because their family background did not enable them to live as a gentleman should at home. Commissions in the army were then bought and those who signed up for the NSW Corps could not afford to buy a commission in one of the more fashionable regiments. Nor were there opportunities for advancement in the peace-time army during the interlude between the American Revolution and the Napoleonic Wars. The economic and, therefore, the social status of the officers was never secure.

In one of the books published in 2005 to mark the bicentenary of the Battle of Trafalgar, the perceptive author describes the social group from which the NSW Corp’s officers came: “Social and financial security, which are deeply connected to the question of honour, had a shaping effect on the officer corps of the British fleet at Trafalgar. They were men on edge, not certain of the place they held in the hierarchy for which they were fighting, with enormous rewards in terms of money and status dangling before their eyes, but the equal and opposite possibility of failure, ignominy and poverty if chance did not favour them or their connections did not steer them into the path of great rewards. The quartet of honour, money, aggression and success formed a tight little knot at the centre of their lives, the source at times of an almost overwhelming anxiety.”[xi]

The author goes on to indicate the vulnerability of such men, in words directly applicable to the officers of the NSW Corps, most of whom had a precarious hold on the status of gentleman:

“A body of officers coming from an uncertain and ill-defined social position needs to rely on the idea of their honour to establish their place in the social hierarchy … [W]hen, if you defined yourself as a gentleman, you had nothing else, as so many did not, honour was what you had. It was membership of a moral community, which is why the language used is so critical. Your membership was defined by the respect with which other people treated you.” [xii]

Bligh proved viscerally incapable of treating other gentlemen in the language, or with the respect, that the code of honour required. Devoid of tact, quick tempered, infuriated by insubordination or incompetence, incapable of compromise, prone to indulge in mockery and abuse, Bligh failed to respect the boundary between criticism and derision.[xiii] Manning Clark described him thus:

“If anyone dared to object or remonstrate with him, he lost his senses and his speech, his features became distorted, he foamed at the mouth, stamped on the ground, shook his fist in the face of the person so presuming, and uttered a torrent of abuse in language disgraceful to him as a governor, an officer and a man”.[xiv]

Bligh did not only attack the commercial interests of the officers of the NSW Corps. He challenged the core of their personal identity.

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John Macarthur – often referred to as the creator of the Australian wool industry, although his wife Elizabeth deserves the title more than he – precipitated the crisis. He challenged Bligh to what was, in effect, a political duel in defence of both his honour and his

money. Macarthur’s wealth was regarded by Bligh as the most egregious example of private profit at public expense. He was determined to confine and reduce it.

Bligh refused to make a major land grant that Macarthur thought he had negotiated in London. His tone was dismissive: ”Are you to have such flocks of sheep and such herds of cattle as no man ever heard before. No sir!”[xv] Bligh refused to intervene when Macarthur’s commercial expectations over a promissory note were rejected in favour of a wealthy emancipist, who happened to be Bligh’s manager on the property granted to Bligh on his arrival by Governor King. On Bligh’s express orders, his officers dismantled a fence that Macarthur erected on one of his urban leases, part of which he had, defiantly and ostentatiously, personally erected in their presence. Two stills that Macarthur sought to import, contrary to the policy of permitting alcohol to be supplied only with the Governor’s permission, were declared forfeit and Bligh refused him permission to recycle the copper boilers for other use.

Macarthur was as vituperative, domineering, short-fused and arrogant as Bligh, but had an unscrupulous shrewdness, indeed subtlety, which Bligh both lacked and could not discern in others. He chose the venue for the final confrontation with care.

The criminal court of that era was constituted by six military officers, chaired by the Judge Advocate, Richard Atkins, an educated but legally illiterate drunk, who had, no doubt to the consternation of the bewildered litigant, pronounced a death penalty when

intoxicated. The civil disputes in which Macarthur had become involved could come before the criminal, rather than the civil, court if he challenged the Governor’s authority. He did so over an attempt to enforce a 900 pound bond upon ship, in which Macarthur had an interest, which was forfeit when it became known that a convict had stowed away on board. Rather than challenge the legality of the fine in the civil court, Macarthur refused to comply with the subsequent process. This precipitated a warrant for his arrest to which he responded, to use his words, “with scorn and contempt”[xvi]. His defiance required proceedings in the criminal court, where the officers would decide his fate.

When the court convened on 25 January, in a room packed with soldiers, Macarthur challenged the right of Atkins to preside on the ground of bias, based in part on the fact that he owed Macarthur money – on a promissory note that Macarthur had bought long before and kept for such an occasion. Bligh and Atkins correctly concluded that the court could not sit without him. When the six officers, no doubt by prearrangement, purported to do so,[xvii]Bligh ordered that they be charged with criminal conduct. He even suggested that it amounted to treason.

There could be no greater slur on their honour. There had been tension between the Governor and the regiment, but this was an attack on its institutional integrity, not least if six of the nine officers of the Corps were put out of action. Nothing was more calculated to ensure that the loyalty of the officers’ mess, which had been confirmed the previous night at dinner, would lead the officers to arrest Bligh before he could arrest them.

The commanding officer of the Corps Major George Johnston, although highly critical of Bligh’s conduct, had little by way of commercial interest at stake and may not have been part of the coup planning. He was finally convinced that the Corps had no choice but to depose the Governor. And it did.

This is an explanation of the coup but, of course, not a justification. The officers’ reaction was, at best, self-indulgent. Their conduct was fundamentally inconsistent with the maintenance of the social order that it was their very purpose to preserve. Even acknowledging the inappropriateness of Bligh’s conduct, other means of resolution should,

at least, have been attempted, difficult as that may have been when communications to and from England took a year.

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The code of honour, with duelling as the principal form of alternative dispute resolution, was incompatible with the rule of law. Rebellion against legitimate authority, whatever the reasons, was the most fundamental challenge to it. As I have said, the rule of law provided the central legitimising discourse of eighteenth century England. It was firmly established in Australia by the experience of the coup itself and, perhaps more significantly, by the experience of government under a military regime.

Bligh had united a number of disparate interests. His removal took away that unity. The absence of a clearly legitimate authority, as could easily have been predicted, enabled anyone with a grievance to seek vengeance and anyone with access to power to abuse it. The rule of law was compromised and, on many occasions, set aside.

The sense of personal security of citizens, indeed the existence of social order, is determined in large measure by the extent to which people can arrange their personal affairs and their relationships with associates, friends, family and neighbors on the assumption that basic standards of propriety are met and reasonable expectations are satisfied. In all spheres of conduct it is essential that persons know that they can pursue their lives with a reasonable degree of security, both of their person and of their

property. All forms of social interaction, including economic interaction, are impeded by the degree to which personal and property rights are subject to unpredictable and arbitrary incursion, so that people live in fear, or act on the basis of suspicion, rather than on the basis that others will act in a predictable way.

After the Coup of 1808 the sense of personal security was lost to a substantial degree. Those who could exercise power were not confined by the effective operation of the rule of law, save insofar as ultimate retribution from London was anticipated.

Until a superior officer to Johnston arrived six months after the coup, John Macarthur was clearly in control. During that period the rudimentary legal system was abused, where not suspended. Atkins was replaced and Macarthur was quickly acquitted of the charges that precipitated the coup at a joke of a trial. Magistrates loyal to Bligh were dismissed. Other loyalists were subject to a parody of justice that was no more than malevolent

revenge. They were convicted on bogus charges and sent to work in the coal mines at Newcastle. The civil court processes were abused.[xviii] Commerce was adversely affected as it was uncertain whether the negotiable bills payable in sterling, that had traditionally been used for transactions with the government, would be honoured in London.[xix] No one who lived through this period could have had any doubt that the rule of law was severely compromised.

Later, the courts appeared to operate more normally and fairly. However, throughout the two years between the deposition of Bligh and the arrival of Macquarie, the colony was controlled by an illegal government. Every appointment, including to judicial office, was invalid. So was every governmental decision, including every exercise of judicial power. Uncertainty was ubiquitous. Personal and property rights were institutionally insecure.

The English political nation welcomed the restoration of the Stuarts after the depredations of Cromwell, which experience left an abiding mistrust of a standing army that was forbidden, without express Parliamentary approval, by the Bill of Rights of 1689. For much the same reasons, the residents of New South Wales welcomed the restoration of legitimate authority under our greatest Governor, Lachlan Macquarie.

In accordance with his instructions, he invalidated the appointments and the decisions of the rebel administration, including appointments to and decisions by the courts. Perfected court orders were not reopened on the basis of necessity, perhaps most poignantly applied in the case of the invalid death sentences that had been carried into effect. Nevertheless, some redress was available for the past illegal exercise of governmental power. One of those banished to the coal mines sued successfully for false imprisonment.[xx]

The rule of law was emphatically restored. The bicentenary of Macquarie’s installation as Governor on 1 January 1810, is an event worthy of substantive commemoration.

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Much of Australian history is written as if it consisted primarily of the achievement of independence from England: constitutional, political, economic, military, cultural, social and legal independence – “a march towards the light” as one historian has put it.[xxi] However many of our most fundamental institutions were created quickly and, whilst drawing on the intellectual toolkit of contemporary Britain, emerged, or were entrenched, in response to local events and conditions and proceeded to change and develop in a distinctive way. The rule of law, the independence of the judiciary, freedom of the press, representative and democratic government are such institutions.

The bicentenary of this most significant event in the establishment of the rule of law, like last year’s commemoration of the sesquicentenary of responsible government in this State, emphasises the longevity that underpins the robust strength of those institutions. We do well to understand the source of that strength.

[i] H.V.Evatt Rum Rebellion: A Study of the Overthrow of Governor Bligh by John Macarthur and the New South Wales Corps Llyod O’Neill, Sydney, 1971. (First published in 1938).

[ii] See Michel E. Scorgie, David J. Wilkinson and Julie D. Rowe “The Rise and Fall of a Treasury Clerk: William Bassett Chinnery” Paper presented to the Conference of the British Accounting Association April 1998; c/f Scorgie in (2007) 43 Abacus 76. See also Anne- Maree Whitaker Joseph Foveaux: Power and Patronage in Early New South Wales UNSW P., Sydney, 2000 pp155-156.

[iii] Alan Atkinson The Europeans in Australia; A History – Volume I, The Beginning Oxford Uni. P., Melbourne,1997 p 273.

[iv] See generally Alan Atkinson “Taking Possession: Sydney’s First Householders” in Graeme Aplin A Difficult Infant: Sydney Before Macquarie NSW Uni. P., Sydney, 1988 esp. at pp 76, 79-82, 83-84.

[v] Ibid at pp 84-87; HRA Vol. 6 pp 155-156,714-715

[vi] Atkinson supra n iii p 273.

[vii] John Ritchie A Charge of Mutiny: The Court Martial of Lieutenant Colonel George Johnston for Deposing Governor William Bligh in the Rebellion of 26 January 1808 National Library of Australia, Canberra, 1988 p 365.

[viii] See David Neal The Rule of Law in a Penal Colony Cambridge Uni. P., Cambridge, 1991; John Braithwaite “Crime in a Convict Republic” 2001 64 Modern Law Review 11; John Gascoigne The Enlightenment and the Origins of European Australia Cambridge Uni. P., Cambridge, 2002 pp 39-44; Martin Krygier “Subjects, Objects and the Colonial Rule of Law” in Martin Krygier Civil Passions: Selected Writings Melbourne, Black Inc,

2005; E.P.ThompsonWhigs and Hunters: The Origin of the Black Act Pantheon, New York, 1975 esp. at pp 265-266; Douglas Hay “Property, Authority and the Criminal Law” in Hay et al Albion’s Fatal Tree: Crime and Society in Eighteenth Century England Pantheon, New York, 1975; John Brewer and John Styles (eds) Introduction An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries” Hutchinson, London, 1980; D.H.Cole “ ‘An Unqualified Human Good’: E.P.Thompson and the Rule of Law” 2001 28 Law and Society Review 117, accessible atwww.ingentaconnect.com .

[ix] Alan Atkinson “Jeremy Bentham and the Rum Rebellion” 1978 64 JRAHS 1.

[x] The emphasis on the code of honour as a critical factor in the coup was first put forward by George Parsons in “The Commercialisation of Honour: Early Australian Capitalism 1788-1809” in Graeme Aplin (ed) supra. The theme was developed by Michael Duffy in his biography Man of Honour: John Macarthur-Duellist, Rebel, Founding

Father Macmillan, Sydney, 2003.

[xi] Adam Nicholson Men of Honour: Trafalgar and the Making of the English Hero Harper Perennial, London, 2005 pp 102-103.

[xii] Ibid p 114.

[xiii] There is even a book dvoted to Bligh’s foul mouth: Greg Denning Mr Bligh’s Bad Language: Passion, Power and Theatre on the Bounty Cambridge Uni. P., Sydney, 1992.

[xiv] C.M.H.Clark A History of Australia Volume I Melbourne Uni.P., Melbourne, 1962 p 216.

[xv] Duffy op cit n 10 p 255. [xvi] Atkinson op cit note 3 p284.

[xvii] This tactic had worked before when Governor King backed down after Major Johnston had objected to the presiding officer on behalf of one of the officers on Macarthur’s court. See Evatt supra 77-81;John McMahon “Not a Rum Rebellion but a Military Insurrection” (2006) 92 JRAHS125 at 132-133. .

[xviii] Bruce Kercher Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South WalesFederation Press, Sydney, 1996 pp41-2.

[xix] J.E.B. Curry Reflections on the Colony of New South Wales: George Caley Lansdowne, Melbourne, 1966 p157.

[xx] Kercher op cit n 17 p 40. [xxi] Atkinson op cit n 3 p xii.

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