October 2018

Arts & Letters

Barron Field and the myth of terra nullius

By Justin Clemens
How a minor poet made a major historical error

2019 will see another Australian bicentenary, the 200th anniversary of the first book of poetry published in this country. You could be forgiven for knowing neither the book nor its author; you could probably also be forgiven for not finding the event all that worthy of memorialisation, let alone celebration. Aside from a few specialists in colonial literature and a handful of historically inclined local poets, who in contemporary Australia could possibly be interested in the (exceedingly) minor poetaster Barron Field – yes, his real name – and his First Fruits of Australian Poetry? Would Field’s work be of more interest if it were crucial evidence in the establishment of terra nullius in this country?

Field’s own contemporaries tended to irritation and disinterest, when they weren’t downright contemptuous. The wits had a field day, so to speak, with his poems – the man’s name, unsurprisingly, providing rich soil for the punsters. As one anonymous squib from the 1820s, now preserved in the Mitchell Library, declares:

Thy poems, Barron Field, I’ve read
And thus adjudge their meed —
So poor a crop proclaims thy head
A barren field indeed!

Yet it wasn’t only his enemies who mocked. Many of Field’s friends weren’t so keen on his verses, either. In his 1847 obituary for Field in The New Monthly Magazine and Humorist, Horace Smith remarked of Field’s poems that “as truth is my friend, even more than Plato, I must confess my regret that he did not suppress them, for the gods had not made him poetical, his ear appearing to have been absolutely insensible to the requisite rhythm of verse”. Such judgements have recurrently been made of Field’s poetry over the subsequent centuries: even when his poems are (irregularly) anthologised, it seems to be more for their quaintness and historical import than for their inherent power or interest. No wonder Field has never really proven to be a key reference for Australian poets or their critics.

Then again, poetry may well have been Field’s passion but it wasn’t his day job. He was a lawyer, and, more to the point in this context, at the time of producing the book in question he was Judge of the Supreme Court of Civil Judicature in New South Wales. Appointed in May 1816, Field arrived in Sydney from England with his wife, Jane, in February 1817, and was immediately catapulted into the highest echelons of colonial society. His salary, supplemented by court fees, was very substantial; he also received a large grant of land in Cabramatta. According to C.H. Currey’s entry in the Australian Dictionary of Biography, Field dealt with 165 actions at law and 13 equity suits between April 1817 and January 1821; he also presided at the first sitting of a Supreme Court in Van Diemen’s Land in 1819. In other words, Field was an exceedingly important personage at a moment in the fledgling colony of New South Wales when the vagaries of individuals could prove to have disproportionate consequences.

That said, Field doesn’t seem to have been a terribly successful law man either. As John Byrnes rather understatedly remarks in Southerly, “Field was not personally popular.” It would probably be more accurate to state that he was outright loathed both by many of his colonial brethren and by the imperial governmental types with whom he had professional dealings. He fought bitterly with Governor Lachlan Macquarie, as well as with John Macarthur, whose appointment to the magistracy Field had attempted to scotch. Macarthur’s enmity was such that he sent a threatening letter to Field before the latter’s departure to England in 1824. “You will therefore, Sir,” Macarthur wrote, “be pleased to understand that I accuse you of having knowingly and deliberately committed an act which the manners of a gentleman forbid me to name even under the sanction of your example.” This is, as Byrnes notes, an invitation to a duel. Given Macarthur’s notorious irritability, it was clearly lucky for Field that he was on his way out at the time.

There were also those at home who entertained doubts about Field’s reliability. John Thomas Bigge, who had been dispatched to New South Wales to investigate the functioning of the penal colony, and who ended up tabling three critical reports in the House of Commons, wrote of Field:

The convict part of the population of New South Wales view Mr Justice Field’s administration of the law with sentiments of dissatisfaction. The free classes of the population … equally apprehend the effects of his violent and unforgiving temper, as well as of his personal prejudices, upon his future decisions … In my opinion, Mr Justice Field does not possess that degree of temper and deliberation necessary to conduct the judicial business of such a Colony.

The negative reviews don’t stop there.

Perhaps the most eminent hater was none other than Benjamin Disraeli, who in 1830 pronounced Field to be “a bore and vulgar … a noisy, obtrusive, jargonic judge … ever illustrating the obvious, explaining the evident, and expatiating on the commonplace”. A rebarbative and inveterate mansplainer, then, avant la lettre. It was no doubt in part due to his less-than-winning personality that Field spent the remainder of his career as an ineffectual judge in Gibraltar, retiring to England only a few years before his death. In a summation of Field’s contributions in Dewigged, Bothered, & Bewildered: British Colonial Judges on Trial, 1800–1990, John McLaren concludes that

Field’s record as a judge could best be described as mercurial, a reflection of his conservative belief system, a commitment to the culture of English law, and an opportunistic streak in his character … Field’s counsel was not invariably sound or in keeping with the Colonial Office’s understanding of the legal proprieties.

And yet, and yet … despite such continued bad press, Field was clearly not without certain impressive endowments. He was a direct descendant of Oliver Cromwell, a fact of which he was exceedingly proud. He had published the self-confessed first analysis of Blackstone’s Commentaries, aimed at law students, and it went into many editions through the 19th century. He was theatre critic for The Times. He was friends with the great English Romantic critics Charles Lamb and Leigh Hunt, as well as an aficionado of the Romantic poets, especially William Wordsworth, of whom Field attempted a biography. The publication of the latter was, sadly for Field, vetoed by Wordsworth himself in 1840. Despite this setback, Field, who was a lifelong enthusiast for Elizabethan and Jacobean literature, prepared editions of Thomas Heywood and Thomas Legge for the Shakespeare Society. Lamb in particular seems to have had a real admiration for and friendship with Field. He reviewed First Fruits for the radical intellectual journal The Examiner in 1820, before dedicating one of his most celebrated essays, “Distant Correspondents”, to the lawyer-poet in The London Magazine in 1822. He also informed Field of the esteem that Wordsworth and Coleridge had apparently shown for Field’s poem “The Kangaroo”.

Field clearly felt his verses were worthy of attention. The first edition of First Fruits in 1819, printed by George Howe in Sydney, and with the legend “Printed for Private Distribution” on the title page, contained two poems, “Botany-Bay Flowers” and “The Kangaroo”. In 1823, Field published a second, revised and expanded, edition, which added further apparatus, as well as four further poems. Finally, in 1825, Field reprinted the poems as an “Appendix” to Geographical Memoirs on New South Wales; By Various Hands, a collection he edited, where they sit rather oddly with the journal entries and meteorological charts, the botanical descriptions and the imperialist opinionating.

It has to be admitted that the poems are pretty weird. Wreathed about with an ever-accreting and often-mystifying apparatus of epigraphs and erudition, their subjects are strange, their rhythms erratic, and much of their matter is flagrantly plagiarised. “Botany-Bay Flowers”, for example, is an extraordinary pastiche of Shakespeare, Milton and Wordsworth (and many more) in which Field tells a tale of antipodean botanical adultery: he marries one flower, only to be seduced by another. As for “The Kangaroo”, let me quote the first stanza:

KANGAROO! Kangaroo!
Thou spirit of Australia,
That redeems from utter failure,
From perfect desolation,
And warrants the creation
Of this fifth part of the Earth,
Which should seem an after-birth,
Not conceiv’d in the Beginning
(For God bless’d His work at first,
And saw that it was good),
But emerg’d at the first sinning,
When the ground was therefore curst; —
And hence this barren wood!

Whatever your feelings about their value, it’s difficult to miss the strong satirical streak of these jaunty lines, along with Field’s evident preparedness to pun on his own name and person. But it’s also significant that Field is using words that, however straightforward they seem today, weren’t so at the time. In 1819, there was as yet – perhaps most notably – no country called “Australia”. There was the colony of New South Wales and Van Diemen’s Land, yes, and the name of Terra Australis was an ancient one in Europe. Governor Macquarie had started to use the name in official correspondence in 1817, following the publication of Matthew Flinders’ journals a few years previously, but most people were still referring to the landmass as “New Holland”. As David Brooks remarks in The Kenyon Review, “Field’s use of the term ‘Australia’ … is arguably the first in poetry anywhere.” In fact, Field uses the name throughout First Fruits, strewing his text with nominal and adjectival variations, even preposterously rhyming it with “failure” and “regalia”.

With all this plagiary and playfulness about, coupled with the explicit colonial attitudinising, it’s no wonder that the last few decades have seen a strong revivification of interest in Field’s work, particularly among postmodern and postcolonial critics. Many eminent Australian writers and academics – including A.D. Cousins, Michael Farrell and David Higgins – have contributed important pieces on Field. As Jaya Savige notes in his introduction to a special Australian edition of the prestigious journal Poetry, “To twenty-first-century eyes, Field’s ‘thefts’ betray a poetics of appropriation and citation that wouldn’t look entirely out of place in a Kenneth Goldsmith class.” Yet none of the critics so far has asked the question: why is First Fruits called First Fruits? This might seem so obvious it’s not worth asking: Field knew that he was publishing the first book of poetry on Australian soil, and was pompously belabouring this fact in the title, a fact supported by a number of features in the book.

Furthermore, the invocation of fruits is alerting us to the satirical nature of the poems: one of the (disputed) etymologies for the word “satire” is linked precisely to fruit. As the Oxford English Dictionary informs us: “According to the [Latin] grammarians satura is short for lanx satura … which is alleged to have been used for a dish containing various kinds of fruit.” Moreover, if “first fruits” is an idiomatic expression denominating the earliest returns on labour, it is also, more pointedly, a technical term from ecclesiastical and feudal law. “First fruits”, as Justice Field knew very well from his professional role, is a form of income tax to the governor of a territory.

Although his Australian sojourn was brief, residues of Field subsist all over the place. Mount Field in Tasmania is named after him, while Cairncross Island in the Great Barrier Reef takes the maiden name of Field’s wife. Soon after arriving in New South Wales, Field had edited Memoirs of James Hardy Vaux, famous, among other things, for its influential dictionary of thieves’ cant: “A Vocabulary of the Flash Language”. As a keen amateur scientist, Field observed, described and collected a wide range of important scientific and exploratory materials, much of which was published in Geographical Memoirs on New South Wales; By Various Hands. Due to such labours, Field has, according to Helen Hewson in the scientific plant journal Telopea, “two genera and one species … named in his honour” (Fieldia australis, Fieldia lissochiloides, and Cassia barronfieldii). As if that wasn’t enough, Field was integral to the establishment of the colony’s first bank, when, according to C.H. Currey, he mistakenly advised Governor Macquarie that “the governor had power, under his commission, to grant a charter to the Bank of New South Wales”. Established in 1817, this bank is still with us: it was renamed Westpac in 1982. At least one other legal judgement Field proffered in the course of his antipodean duties would have quite extraordinary effects upon the subsequent history of Australia.

In an important 2005 comparative study of the relation between colonialism and law, Stuart Banner has demonstrated that Field was decisive in the development of the specifically Australian application of terra nullius. One of the abiding puzzles regarding the centrality of this extreme doctrine in Australia is how it came to be established in the first place. After all, Europeans acknowledged that Indigenous peoples inhabited the land. If the doctrine had indeed been previously applied in certain colonial circumstances, by the 18th century the general policy was acquisition by forms of treaty and contract. Even if the latter were evidently iniquitous, they did not extinguish the facts of inhabitation. For Banner, then, at least four factors contributed to the doctrine in Australia: the land was sparsely inhabited, of another order than other places; the British saw no evidence of Indigenous cultivation of land; the Indigenous peoples were not a military risk of the same order as American or New Zealand peoples; and the Indigenous peoples showed no interest in European goods or trade. (Needless to say, each statement now appears highly contentious.) Hence, although Captain James Cook had expressly been ordered not to seize land from any inhabitants, by the 1780s Arthur Phillip was. In such fashion, terra nullius was already enacted before it was formally declared as doctrine.

How then did terra nullius ever come to be declared as doctrine at all? “The first such statement,” Banner writes, “appears to have been made in 1819, when a dispute arose between Lachlan Macquarie, the governor of New South Wales, and Barron Field, judge of the New South Wales Supreme Court, over whether the Crown, acting through Macquarie, had the power to impose taxes on the residents of New South Wales, or whether that power was reserved to Parliament, as was the case with taxes imposed on residents of Britain.” Field, in a self-conscious replay of Sir Edward Coke’s objections to the use of the Kingly Prerogative by James I – that is, to the very disputes that ultimately led to Cromwell’s victory in the English Revolution – came down on the side of Parliament. If Australia had indeed been invaded, then Macquarie, as the representative of the sovereign, would have had that power, but, for Field, Australia was freely settled, and this was therefore a parliamentary matter. Earl Bathurst, secretary to the colonies, referred the matter to the attorney and solicitor generals of Great Britain, who accorded with Field.

So as far as we know the first formal statement of terra nullius in this country derives from a tax dispute between the colonial governor of the penal colony and the bumptious supreme justice of that colony.

In common European colonial thinking, it was agriculture that established “a more permanent property in the soil” (to quote Blackstone). Field in Geographical Memoirs notes the ongoing displacement of Australian flora and fauna through the extension of European-style agriculture in the colony, not to mention the distress of the original inhabitants. Yet it was the agricultural civilisation and its fruits – taxes – that had primacy in European law, and Field could hardly have been more attentive to this fact. Banner’s own comparative studies have induced him to suggest that “where indigenous people lacked agriculture before European contact … the colonial acknowledgement of indigenous property rights was weaker or nonexistent”. Let us add, following the work of Bill Gammage and Bruce Pascoe, among others: agriculture recognisable to Europeans, that is.

At precisely the same moment that Field is struggling over the legitimate grounds of taxation with Governor Macquarie, he produces these poems and this book. They barely resemble the poetry that he had previously published in the early 1810s, for example in The Examiner, nor his only other collection, Spanish Sketches, published in 1841. I propose that they can be understood in the context of this dispute, as if Field wrote them to say, “Fuck you, Macquarie, this satire is all the taxes you’re getting from me.” After all, the name “Australia” in Field’s poetry doesn’t designate a stable financial or tax entity, but functions as an expressly fantastic name drawn from an old European tradition of satirical takes on the Great Unknown Southern Land. In making his point, Field had to offer what has proven to be a most iniquitous legal fiction.

So why return to Field today? In an epoch of decolonisation struggles globally, where memorials to such figures as Cecil Rhodes, American Civil War soldiers and, in Australia, Captain Cook have quite rightly become the objects of strenuous contestation, Field is at best a highly ambivalent figure. However, the politics of memory and memorialisation are paramount even in the most recondite academic research. Every memorialisation is also invariably a form of motivated forgetting; every memorialisation reopens the question of whether there can be some restitution or reparation without the repetition of misdeed.

Field himself took the question of memorials very seriously. In the second edition of First Fruits, the newly added poems directly pick up a European history of memorialisation dating back to the ancient Greeks, in order to project a potential future of glory for the colony. As a member of the Philosophical Society of Australasia, Field was instrumental in sponsoring the first memorial erected in Botany Bay to Cook and Joseph Banks. Yet at least one of his sonnets, as Chris Healy points out in From the Ruins of Colonialism, “is rare in making explicit the violence of the initial British encounters with Aboriginal people and in remembering that the most material European remnant of the Endeavour’s brief stay in Botany Bay was a grave”. What the Europeans brought to a locale that they had named precisely for its wild profusion of flora was the mark of human death.

In his Defence of Poetry, the great Romantic poet Percy Bysshe Shelley resoundingly declared that “poets are the unacknowledged legislators of the world”. This proposition has perhaps never been so directly true as in Australia. “Barren field” is a possible, if lateral, translation of one sense of terra nullius. It is as such that – unacknowledged yet omnipresent – the lawyer-poet Barron Field literally imposed his name on this land.

Justin Clemens

Justin Clemens writes about contemporary Australian art and poetry. He teaches at the University of Melbourne.

Detail of painting by Richard Read of Barron Field, c.1820. Courtesy Mitchell Library, State Library of New South Wales

October 2018

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