Alternative Law Journal
by J.M. Bennett; Federation Press 2002; 111 pp; $49.50 hardcover.
This book is one in the series of books written on Australia's chief justices by John Michael Bennett the eminent lawyer, editor and author.
So who is Charles Cooper and why write a book about him are two questions that immediately spring to mind. Many readers may have heard of Coopers Creek in the far north of South Australia; it floods occasionally and helps fill Lake Eyre. Well, it was named after this judge by the explorer Charles Sturt. Sadly, perhaps the dry creek bed is better known than the first Chief Justice of South Australia.
In the book, Bennett makes a case for rewriting a small part of judicial history in Australia. He has consulted the biographical notes of earlier times that describe Cooper CJ as 'lax' and 'timid', and then developed a thesis of 'misjudged judge'. Bennett has written a book that serves to set the record straight. His depth of research and fine argument suggests his version of Coo per CJ will now go forward as the correct analysis of the judge's life.
Bennett's research has shown that Cooper CJ was given a 'hard time' by the newspapers of the day. 'Tricks' employed by the newspapers, like hiding behind the guise of 'letters to the editors', were used to lay criticism upon the judge. The book shows that it was unjustified, and details the unpleasantness this caused in the small town of Adelaide in the 1840-SOs. For the (legal) historian, the book demonstrates how hazardous it is to rely too much on newspapers. In this story, Cooper CJ had some running battles with the proprietors involved in litigation, mainly to do with libel, and this saw him accused by them of 'idleness and incompetence'. Bennett proves that such accusations of the judge were a 'monstrous untruth'.
Charles Cooper was the only judge in South Australia for many years and then when a second judge was appointed the term 'Chief Justice' was slow in being formally recognised. Bennett paints an unhappy picture of being the sole justice and then the chief justice in a small colony like SA. Coo per was on less pay than most others of similar standing in other colonies and his repeated requests for increases and assistance went unheeded for a number of years. When recognised as Chief Justice in 1856 Bennett says that Coo per CJ 'found the summit barren and swept by gales of dissent that drove him from lengthy enjoyment of his life's greatest achievement'. The second judge, when appointed, was a difficult personality who caused great upset to Cooper CJ (and in the view of another historian 'one of the most unsuitable appointments ever made to the bench of an Australian court' (Castles & Harris Lawmakers and Wayward Whigs 1987)).
Bennett sums up that what Cooper CJ 'lacked in legal genius he compensated for by slavish and diligent devotion to duty and the public interest'.
The book is just 111 pages and additionally provides much detail in endnotes and a good index. Also there are illustrations of the judge on the frontispiece and dust jacket and on two pages in the centre pages of the book. Bennett provides a 'dramatis personae' to explain other characters in the history of South Australia, which is essential to readers unfamiliar with early South Australian history.
So to return to the questions who is Charles Cooper and why write (or in our case why read) about him, I feel I know who he was from reading the book. He was a figure of early judicial importance in Australia's white history. He was this softly spoken, English educated solicitor and barrister who immigrated to the colonies. He was religious, conservative and frugal. He married in late middle age, had periods away from the bench to recuperate from ill health and eventually retired back to England where he lived to a ripe old age of 92. During his time on the South Australian bench he helped keep the legal fraternity together, drafted some legislation for the parliament and 'protested' his cause to such a degree that he was seen as a whinger. All of this is makes for interesting legal history. However, for Alternative Law Journal readers I suggest the most interesting part of the book is Chapter 5 entitled 'The Trial of the Aborigines - A source of considerable Anxiety'. Amongst other stories the chapter retells the incident of an 1840 ship-wreck on the South Australian coast adjacent to the Coorong. Survivors came ashore and were allegedly murdered by local Aborigines. The Governor of the day wrote to Cooper asking for advice on how the law might be 'brought to take effect'. Cooper CJ wrote back suggesting that 'it was impossible to try according to the forms of English law'. Such early insight into problems of Aboriginal people and the criminal law must be rare. Unfortunately, the Governor rejected Cooper's advice and invoked 'the law of the musket'. The chapter certainly provides insight into the important issues facing the colonial community merely a handful of years after white settlement. It also hints at Cooper CJ having felt concerned for the Aboriginal population.
While I concede colonial judicial history is not everyone's cup of tea (and I chose to review the book after having written a paper on the secondary schooling of all SA Supreme court judges, so I had already been reading in the area), I found this book easy to read and convincing in its thesis. I also felt glad I had taken the time to be better informed about the early bench in my city. For many readers it may be that other books in the same series, but set in their home city, will invoke similar feelings.
Teaches Corporate Law at Flinders University.