Tuesday, December 3, 2019

Pitt Cobbett's "Constitution and Government of Australia"

We’ve recently learned of the publication of William Pitt Cobbett's The Constitution and Government of Australia, 1788-1919 (Federation Press, 2019), edited by Anne Twomey, Professor of Constitutional Law, University of Sydney.
Between 1910 and 1919, William Pitt Cobbett, former Professor of Law and Dean of the Sydney Law School, wrote what would become his great opus on the Constitution and Government of Australia but the manuscript was never published. Its publication had been frustrated in the period following his death by the High Court’s judgment in the Engineers Case in 1920 and the new constitutional order it created. A century later, Professor Anne Twomey, has edited Cobbett’s original manuscript, taking care to preserve the integrity of his work.

The Federation Press, with the support of the Francis Forbes Society for Australian Legal History, published this important historical work which provides a detailed perspective of how the Constitution operated in the first two decades after federation.
The editor writes us:
[The book] has a bit of history of its own.  Pitt Cobbett became the first full-time Dean of Sydney Law School in 1890.  He was Dean throughout the period of the drafting of the Australian Constitution, campaigned against its approval by the people in referendums, and studied its interpretation by the first High Court, which was comprised of judges who had participated in framing the Constitution.  Cobbett retired in 1910 and spent the last nine years of his life writing his grand opus on the Constitution and Government of Australia.  It was the culmination of his life's work and he desperately wanted it published, but died just as he was completing the full draft.  He passed away on the last day of the Griffith High Court.  The following year, the Court, under Chief Justice Knox, fundamentally changed the way the Constitution was interpreted, treating it as a legal document, rather than a political compact.  The executors of Cobbett's will decided his manuscript could no longer be published without major alterations, and donated it to the University of Sydney.  There it sat, neglected, for a century.

Today it is an important historical record of how the Australian Constitution was viewed by those who wrote it and interpreted it during its first two decades.  It has now been edited and published for the first time, upon the centenary of Pitt Cobbett's death.  There is some irony in this.  Cobbett was also renowned for having no time for women and excluding them from studying law while Dean of the Law School.  So he would have been shocked and possibly horrified to know that it was two women who cared enough about his manuscript to edit it, complete all his footnotes, place it in its context and publish it upon the centenary of is death.  But hopefully, he would also have been grateful.
An endorsement:
William Pitt Cobbett largely completed the original manuscript of his opus on the Constitution shortly before his death in 1919. While it was intended to be posthumously published, in 1920 the High Court’s constitutional jurisprudence radically shifted in the Engineers case ((1920) 28 CLR 129). At the time, this would have required a substantial revision for the work to remain current, and so the manuscript was given to the University of Sydney Law School – of which he had been a Professor and Dean – as a memorial. Now a century on, the manuscript has been carefully and ably transcribed, edited and published for the first time.

Those involved are to be greatly thanked. In addition to the text, there is a fascinating biographical note by Professor Anne Twomey and a comprehensive introduction to Cobbett’s work outlining what has changed since it was written, what remains the same and his unique insights relevant to today. While the importance of the work is that it paints a portrait of the history and early interpretation of the Constitution up to 1919 before the High Court’s decision in Engineers, its value is not merely one of historical interest. As Twomey perhaps understates, “it occasionally also shocks with the modernity and prescience of its contents”. This is a most important, if not necessary, text for any scholar of Australian legal history and constitutional law.

                         Queensland Law Reporter – 18 October 2019 – [2019] 41 QLR 7
Table of contents after the jump

–Dan Ernst
Editorial Note
William Pitt Cobbett – Biographical Note
Pitt Cobbett – A Portrait of Australia’s Constitution at 1919
Part I: The Colonial History of Australia
1. The British Occupation and Subdivision of Australia
2. The Government of the Australian Colonies
3. The Foundations of the Commonwealth
4. The Constitution of the Commonwealth
5. The Commonwealth as a United Society
Part II: Imperial Factors in Australian Government
6. The Nature and Sources of Imperial Control
7. The Status and Powers of the Colonial Legislatures
8. Subjects of Imperial Control, and the Question of Imperial Consolidation
Part III: The Federal Government
9. The Office of the Governor-General
10. The Federal Parliament
11. The Federal Electoral System
12. The Powers of the Federal Parliament
13. Legislative Methods and Procedure
14. The Executive Government of the Commonwealth
15. The Federal Judicature
Part IV: The States and the Federal Territories
16. The Constitutional Position and Powers of the States
17. The Relation of the States and the Commonwealth
18. The Relations of the States Inter Se
19. The Federal Territories

Secondary and Other Sources
Table of Cases
Table of Legislation