Charles Cooper, a timid, retiring, weak-voiced, sickly and barely successful English barrister, accepted appointment as Judge in South Australia in 1839.
A sound rather than a brilliant lawyer, duty was his watchword, evangelical churchmanship his consolation. For 17 years, he trudged on through illness and the meanness of the Colonial Office which saw him one of the worst paid judges on colonial service. In 1856 he was recognized at last with appointment as the Province’s first Chief Justice.
Dr Bennett shows that the appointment was well merited. In a strong re-evaluation, Cooper is shown to have been a good and effective judge, whose puny modern reputation has been shaped too much by the distorted, politically based, views of critics of his day.
His early years on the Bench required him to grapple with the problem of trying to apply English law to the indigenous people. He brought peace to a querulous legal profession and did much to reverse entrenched community contempt for authority existing in Adelaide on his arrival.
His workload was enormous. He remained the only judge until 1850 and thereafter he found himself often in collision with the eccentric and irrepressible Benjamin Boothby (appointed puisne judge in 1853). Sick and exhausted, Sir Charles Cooper retired to England on a pension in 1861. There he regained his health and survived to the age of 92, a further 26 years. He had supported the explorations of Charles Sturt who named the legendary Cooper’s Creek in his honour.
Foreword, by Emeritus Professor Alex C. Castles
Acknowledgements
List of Illustrations
“Dramatis Personae”
1. The Making of a Judge
2. A Testing Initiation
3. “Inadequate to Give Me a Decent Subsistence”
4. A Misjudged Judge
5. “The Trial of the Aborigines – a Source of
Considerable Anxiety”
6. A Second Judge Gained – and Lost
7. “It Was Impossible to Please Everybody”
Abbreviations
Notes
Index
Sir Charles Cooper certainly did not engage early commentators. He was thought by some to be sickly, lacking in drive, dignity and authority and was described as “timid”, “conservative” and “casual and lax”. However, Dr Bennett has managed to tease out many admirable qualities in this anti-hero. From a legal perspective, his strongest qualities were his impartiality and independence … I found the most admirable and engaging quality to be his deep empathy for Australia, its land and its people, both native and settler. …
Cooper arrived in 1839 to a tense atmosphere in the colony. … [He] was called to respond in the winter of 1840 to the murder by Aborigines of more than 20 shipwrecked survivors of the Maria. The shipwreck occurred in an unsettled area of the colony. … Cooper wrote to Governor George Gawler: “I feel it is impossible to try according to the forms of English law people of a wild and savage tribe whose country although within the limits of South Australia, has never been occupied by settlers, who have never submitted to our dominion and between whom and the colonists there has been no social intercourse.” The Governor was not pleased with this advice and dispatched an expedition … resulting in the hanging of two Aboriginal men in front of their tribe.
The Colonial Office .. disagreed with Cooper’s jurisdictional views [but] offered no practical assistance as to how the murderers were to be brought to trial in the circumstances. Governor Gawler was strongly rebuked … Cooper, however, maintained and developed his views on the applicability of English law to the indigenous people. …
I was pleased that Cooper … developed an appreciation of the Australian bush. He mourned the loss of the native shrubs and flowers that resulted from the urban development of Adelaide … This affinity for the Australian environment extended to a keen interest in man’s interaction with it.
Bennett effectively uses excerpts from letters and newspaper articles to enliven the events in Cooper’s life for the reader. As a result the various glimpses that this biography provides into aspects of colonial life during this period often left me feeling uncomfortable. They were difficult teething times for South Australia.
Lauren Coman, Queensland Bar News No 16, August 2005, 34
An interesting story of a ‘misjudged judge’.
Australian Historical Studies, Vol 35 Issue 124 October 2004, 425
Dr Bennett has an interesting style, which combines a recounting of historical and biographical detail in a straight-forward narrative style with legal analysis of significant cases. Altogether, a surprisingly fascinating and accessible work.
Mary Sevdalis, Law Institute (Vic) Journal, April 2004, 75
Bennett’s has written a book that serves to set the record straight. His depth of research and fine argument suggests his version of Cooper CJ will now go forward as the correct analysis of the judge’s life. …
[Cooper] 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 makes for interesting legal history.
However, 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 shipwreck on the South Australian coast adjacent to the Coorong. Survivors came ashore and were allegedly murdered by local Aborigines. … Cooper [suggested] 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. …
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.
Christoper Sykes, Alternative Law Journal, Vol 28 No 2, April 2003, 101
