The key to understanding Australian attitudes to the law lies deep in our history, as Lisa Ford – a lecturer in History at the University of Sydney – shows with great forensic flair in her book Settler Sovereignty. It is a study of the application of the law of the settlers to the Native American nations of Georgia and the Aboriginal bands of New South Wales, between 1788 and 1836. It is comparative history at its best. Ford moves confidently between the two societies and appears equally at home in both. Both the similarities and the differences are revealing. Each study enlightens the other. This is so because the supporting scholarship is so impressive, the fruit, Ford tells us, of ten years’ research and reflection. There are eighty-five pages of references, and more than nine hundred endnotes, some of them half a page long. Harvard University Press is to be applauded for allowing this vast structure of scholarship to escape the editorial axe, notwithstanding the fact that the index does not measure up to the same standard of excellence.

Ford does not confine her investigation to these two fledgling societies. She ranges far and wide to other American states, to Canada, New Zealand and imperial Britain, although her ecumenical gaze appears to falter in Australia, with scarcely a side glance at Tasmania or South Australia. But at the centre of the book is the question of sovereignty, which leads to even wider, universal, horizons. As Ford observes: ‘This is a global and a local story.’

This might suggest that what we have here is a heavy work of scholarship destined for a place on the seldom-visited shelves of law libraries, to be referred to rather than read, admired and enjoyed. But in addition to the intellectual force, the book is well written and cleverly constructed. Ford clearly appreciates the need to guide the reader through her text with lucid explanation, strategic summation and helpful, heuristic repetition. Her writing is sharp, her words carefully chosen. The sense of rhythm helps ease the reader through pages of dense argument. Ford gives the impression of enjoying words as much as she does ideas.

The central theme of Settler Sovereignty is straightforward. It deals with the application of the common law in the new world and with the way in which the settler societies dealt with the indigenous people. The principal doctrine was unambiguous. British colonists carried their law with them and were expected to apply it to the extent that their particular circumstances allowed. In New South Wales, as is well known, the British assumed the Aborigines became subjects at the moment of annexation, while at the same time assuming the land was a ‘terra nullius’, a place without tenure. The great value of Ford’s scholarship is that she explains in telling detail the complexity and confusion at play when the early governors attempted to apply the law to the Aborigines. Problems proliferated. Were Aboriginal attacks on the settlers and their property to be regarded as crimes or acts of war? Was settler violence in the other direction to be punished or accepted as legitimate retaliation? Could the government engage in war with the indigenous bands? And what of the violence within the Aboriginal community, much of it played out in the streets and open spaces in the townships. Was it random violence or the enforcement of a fierce but shadowy legal code?

In both colonies there was a good deal of uncertainty about how to deal with these issues, but they were so insistent that they did more to shape the development of local legal practice than did any other question. Even more important was the way in which settler sovereignty came to be defined. As Ford convincingly argues, ‘the legal obliteration of customary law became the litmus test of settler statehood’. And that is why, ‘since the 1830’s, indigenous subordination has been a founding tenet of settler sovereignty in North America and Australia’.

In New South Wales, the legal climax came in the trial of Jack Congo Murrell in the Supreme Court, in 1836. In his judgment, William Burton declared that the Aborigines ‘had not attained at the first settlement of the British people amongst them to such a position in point of numbers and civilisation, and to such a form of government and laws, as to be entitled to be recognised as so many sovereign states governed by laws of their own’. Such was the moment of settler sovereignty, Ford declares. And it was a profoundly portentous moment, one that still reverberates through Australian jurisprudence.

And yet, for all the cogency of the argument, there is something missing. We only have to consider the actual situation of the colonists in New South Wales in 1836. With the colony on the eve of the squatting rush, the settlers were only in control of a small portion of the claimed territory: perhaps no more than ten per cent of the land surface. The early explorers had travelled through parts of the country, but most of New South Wales was in the effective control of the indigenous bands. Their law was still paramount. They greatly outnumbered the settler population of 70,000.

It is for this reason that Georgia is, in many ways, better compared with Tasmania than with New South Wales. They were of a roughly comparable size, and both were able to remove the indigenous population in the 1830s to make absolute settler sovereignty reality rather than ambition. New South Wales, including, as it did at the time, both Victoria and Queensland, was a vast territory. Many Queensland Aborigines did not encounter Europeans for many years after 1836. Pastoral settlement was so expansive that pioneer squatters and those who worked for them were usually outnumbered by the Aborigines they had chosen to live among. Even at the end of the nineteenth century, parts of the country were unknown, unvisited and unmapped. There were still Aborigines out of contact with White Australia until the 1930s and 1940s. Even in those places where the settlers predominated, there were many Aborigines who did not accept the priority of European law, even when they knew of its power over them. Submission is not the same as acquiescence.

Burton may have pronounced the death of Aboriginal law in 1836, but it was a premature declaration. It lived on for many years, and still lives on in the more remote parts of Australia, where people simply don’t accept the assertions of white governments and courts. And that is where our problem lies. Legal pluralism did not die in 1836. It is not dead yet. Some years ago, an old Aboriginal man from the Kimberley wrote to me about the question of law and sovereignty. It was time, he declared, that urban Aborigines

came to the East and West Kimberley, so that we the Elders of the Independent Nations can teach them of our system of governance, sovereignty. Even today we still respect each nation’s Sovereignty over their specific country, we are all independent of outside authority. It has been our system of Governance since time immemorial.