Australian Dictionary of Biography

Barron Field (1786-1846), by Richard Read, c1820

State Library of New South Wales, Original : ML 133

Barron Field (1786-1846), judge, was born on 23 October 1786, second son of Henry Field, surgeon and apothecary, a direct descendant of Oliver Cromwell, and Esther, née Barron. He was called to the Bar on 23 June 1814. He wrote An Analysis of Blackstone's Commentaries … (London, 1811), which was frequently reprinted. In May 1816 he was appointed to replace Jeffery Hart Bent as judge of the Supreme Court of Civil Judicature in New South Wales, on the nomination of John Wylde, the judge-advocate, and with his newly-wedded wife Jane, née Cairncross, reached Sydney next February in the female convict ship Lord Melville. Governor Lachlan Macquarie was at first 'very much prejudiced in his favour by his mild, modest, and conciliating manners', and was 'persuaded that he [would] prove a great acquisition and blessing to this Colony'. He had cause, however, to revise his first impressions.

Being a principal officer of government, Field, as was then customary, received a big grant of land, 2000 acres (809 ha) at Cabramatta. His salary was £800. Court fees, which he prescribed with the governor's approval, increased his annual income to about £2000, a sum which Commissioner John Thomas Bigge thought too much, considering 'the nature and extent of his judicial duties'. The cause list of the Supreme Court during his term was light. Between April 1817 and January 1821 he dealt with 165 actions at law and 13 suits in equity. In 1819 he presided at the first sitting of a Supreme Court in Van Diemen's Land.

Field had a firm grip of legal principles. In several instances he clarified important issues and gave wise counsel. When advising Macquarie on a contemplated taxing measure, his opinion, which the governor accepted, proved to be as sound as it was timely, and led to the Act of Indemnity, 59 Geo. III, c. 114. In the case of Jones v. Knopwood, he ruled, correctly, that 'in the case of a conditional grant, tho' the condition be unperformed, the King cannot regrant without office found … that is without the inquest of a jury to ascertain whether the condition be performed or not'. His most constructive legal work was embodied, however, in the proposals for the improvement of the administration of justice in New South Wales and Van Diemen's Land which, at Bigge's request, Field submitted to him. The commissioner gratefully acknowledged his help, and incorporated the substance of these suggestions in his report on the judicial establishment. But Field was in error when, with Wylde, he advised Macquarie that the governor had power, under his commission, to grant a charter to the Bank of New South Wales; when he construed the governor's commission as authorizing Lieutenant-Governor James Erskine to issue Orders whilst Macquarie was in Van Diemen's Land; and when he held, in opposition to Wylde, that certain officers of the Chapman should be committed for trial forthwith following the shooting of twelve convicts on board. The proclamation which he drafted, giving jurisdiction to magistrates in disputes between masters and servants with respect to wages and related matters, was held illegal by Wylde in the case Burn v. Howe. This decision led to a major difference between the judge-advocate and Governor Sir Thomas Brisbane, but the English law officers held that Wylde was right and Field was wrong.

Soon after he arrived, Field instructed T. S. Amos, an English attorney practising in New South Wales, to take action to recover £424 owed by Joseph Underwood to a London merchant who had given the judge power of attorney for the purpose. Amos was successful, but was so dilatory in transferring the money that, in July 1819, the judge instructed William Henry Moore to sue him for it. He thus established that he was prepared to hear and determine a case in which he was the initiating party and the real plaintiff. He also intimated that he intended to strike Amos's name off the roll. Warned of this intention, Amos borrowed the amount payable and received a receipt for the same from Moore for 'Barron Field Esq., Agent for Mr Thomson', but two days later the court ordered the removal of his name without having even called upon him to show cause why he should not be so treated. 'I am of opinion', wrote Bigge, 'that [Barron Field] ought not to have pursued the course he did'.

The judge's next move was to support an application from George Crossley, the emancipist attorney, who had been barred from practising, and had made a secret partnership with Amos to be admitted himself. At this point, the two justices of the peace, who, with Field, constituted the bench, declined to follow him. 'But for this fortunate difference of opinion with Mr Justice Field', commented Bigge, 'Crossley, with all his disqualifications of perjury and subsequent bad character, would have been admitted in violation of your Lordship's [Bathurst's] recommendation'. In a later judgment Field severely attacked Edward Eagar, who had adversely criticized his conduct in Amos's case. Eagar sued him for defamation, but Field, citing the ruling of the Court of King's Bench in Bullock v. Dodds, submitted that since Governor Arthur Phillip and his successors had not followed the prescribed procedure when exercising the royal clemency, all who had been pardoned in the colony were still convicts attaint. By relying on this decision, and by expounding its ratio decidendi six months later in Eagar v. de Mestre, Field incurred the bitter hostility of the emancipists, who were thus declared incapable 'of taking by grant or purchase, holding or conveying any property, real or personal, of suing in a Court of Justice, or of giving evidence therein'.

Field opposed trial by jury and a legislative assembly for New South Wales. He shared the views of the root and branch exclusives, despite his attitude to Crossley, and for this and other reasons receded in the regard of Macquarie, who in 1821 included him in his list of 'the factious and dissatisfied in New South Wales'. Field shared the animus of the 'Parramatta Party' against Dr Henry Grattan Douglass, and cordially endorsed what (Sir) Francis Forbes later described as the 'extra-judicial and unwarrantable proceedings unsanctioned by any law and unsupported by any intelligible good feeling', of Samuel Marsden and four other justices of the peace in the case of Ann Rumsby.

The friendly relations which had for a time subsisted between the Fields and the Macarthurs ended abruptly when the 'Perturbator' learned that the judge and Wylde had advised Brisbane against his elevation to the magistracy because of 'the rebellion which he almost alone caused in the year 1808'. In a letter to Field, heavy with abuse, Macarthur ascribed to him 'a propensity to insult' which, he was convinced, was 'inherent' in the judge's nature. Bigge had discerned and commented upon the same defect. 'The convict part of the population of New South Wales', he wrote, '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'.

Bigge's report on the judicial establishment in New South Wales became the basis of the material changes in the machinery for the administration of justice made by the New South Wales Act, 4 Geo. IV, c. 96 and the Charter of Justice thereby authorized. Such changes involved the termination of the appointments of Wylde and Field. Field sailed for England in the Competitor in February 1824 without waiting for the arrival of his successor or for the reconstitution of the Supreme Court, and so, in effect, deserted his post; but Brisbane was not sorry to see him go. 'Mr Field has embraced every opportunity of falsely and foully slandering me and my Government as contemptible to various individuals', he told Bathurst.

Outside his legal work Field had many interests. Before leaving England he had become known as a literary and theatrical critic, contributed to Leigh Hunt's Reflector, and was a close friend of Charles Lamb. In 1819 he published in Sydney his First Fruits of Australian Poetry; though Michael Robinson had written before him, these were the first verse compositions to appear in Australia in book form. Several critics have dismissed them as doggerel, others have enlarged on their merits. Lamb claimed that Wordsworth and Coleridge were 'hugely taken' with 'Kangaroo'. Field edited and arranged for Murray to publish in 1819 the Memoirs of James Hardy Vaux. He was an active member of the Philosophical Society of Australasia, the forerunner of the Royal Society of New South Wales. Its most tangible and enduring memorial is the plaque, still in situ at Inscription Point, Kurnell, commemorating James Cook and Sir Joseph Banks. Field, who was very closely associated with this matter, marked the fixation of the tablet in March 1822 by writing an appropriate sonnet. In 1825 he edited Geographical Memoirs on New South Wales, a collection of informative papers including some which he had written.

He was one of the founders of the Society for Promoting Christian Knowledge among the Aborigines. He was also a generous supporter of the Benevolent Society, a member of the committee for the establishment of public schools, the founder and first president of the New South Wales Savings Bank, and one of the few who formed the Sydney Institution in whose reading room newspapers and periodicals were made available for general perusal. His genuine and practical interest in such good works, his devotion to the Church of England, and, more especially, his attitude to convicts and emancipists, had impelled him to the side of Samuel Marsden for whom he developed such a regard that he offered to be his biographer. The cleric-cum-farmer reciprocated Field's feeling and commended him to William Wilberforce and other correspondents in England.

During the next four years Field corresponded regularly with Marsden and did everything he could to further what he described as 'the cause' of Marsden and Hannibal Macarthur at 14 Downing Street. To this end, he sedulously cultivated the friendship of Thomas Scott, then persona gratissima there. In Wilberforce's home, Field read Marsden's letter to Wilberforce in re Henry Baynes, and his reference thereto becomes pivotal in any adequate assessment of the resulting Forbes-Marsden controversy.

Field's own reception at the Colonial Office was much better than might have been expected, having regard to Bigge's report and the dispatches of Macquarie and Brisbane. He assured Marsden that Bathurst was 'perfectly satisfied' with his explanation of events, and had promised to appoint him to an English county court judgeship when certain necessary legislation then pending was enacted. Meanwhile he busied himself with a long review for the Quarterly Review of Bigge's reports. When the said legislation was not passed, Bathurst secured for Field a pension of £400, payable out of the revenue of New South Wales, and in 1827 he resumed his practice at the Bar in Liverpool. In 1828 he published a pamphlet A Vindication of the Practice of Not Allowing Counsel for Prisoners Accused of Felony to Make Speeches for Them. His objections to this reform were shared by the majority of the judges in England, but did not prevail with the criminal law commissioners whose report resulted in the enactment in 1836 of the Prisoners' Counsel Act, 6 & 7 Wm IV, c. 114, which was adopted in New South Wales in 1840.

In December 1828 Field was offered the position of advocate-fiscal in Ceylon. He thought the salary of £1200 'pretty mean' in view of his emoluments in New South Wales, but he accepted the appointment. He surrendered it, however, almost immediately for the judgeship of the Court of Civil Pleas at Gibraltar, where he assumed his office in March 1829. In 1830 when Gibraltar was granted a new Charter of Justice, Field became its first chief justice. He drafted rules for his court, but James Stephen at the Colonial Office tore his handiwork to pieces, and sent him a copy of the rules of the Supreme Court at the Cape of Good Hope as a guide in the remodelling of his own. This was a blow to his tender self-esteem, for the chief justice there was John Wylde whom Field had treated in Sydney 'with an hauteur and tone of dictatorial Superiority'.

Relations between the chief justice and Sir William Houston, the governor of Gibraltar, became even more strained than those between Field and the governors of New South Wales. In February 1833 the chief justice ordered the imprisonment of the crew of the Guerrera, a Spanish coastal guardship which had been conniving at smuggling and had been captured by a British naval vessel. At this moment the British government was handling that of Spain with kid gloves, but Field insisted that he could not 'shut the doors of justice' against those bringing cases against the smugglers; the governor complained that Field had acted precipitately and had been most disrespectful to him. In February 1833 he recommended the removal of the chief justice from 'a situation where, with his disposition to thwart and throw difficulties in the way of measures of the Government, he has the power to cause much embarrassment'. Nine months later, when Field went home on leave, Houston reiterated his recommendation with the addendum that neither he nor the attorney-general were on speaking terms with the chief justice. These representations notwithstanding, Field resumed his judgment seat in April 1834, but he was excluded from Government House until Houston's departure a year later. In July 1839 the latter's successor, Sir Alexander Woodford, told the secretary of state that he had invariably received from the chief justice 'the fullest support and co-operation, and it was his duty to bear testimony to the assiduity and talent with which he had discharged the duties of his high office'. In 1841 Field was permitted to retire because of ill health and was granted a pension of £500.

One of the last cases disposed of by the retiring chief justice had resulted in the arrest of Dr Henry Hughes, vicar-apostolic of the Cathedral Church of St Mary the Crowned, at Gibraltar, and his committal to the criminal prison of the garrison there until he purged his contempt of the Supreme Court in refusing to comply with its decree as pronounced on 30 January 1841. The matter in issue arose out of a dispute between the vicar-apostolic and the 'Assembly of Elders' of the cathedral as to the determination, receipt and disposition of fees paid in connexion with the offices of the church. The contention of the elders was upheld by Field and the injunction they sought restraining Dr Hughes was issued accordingly. As he found that he could not conscientiously obey the decree, he was attached for contempt and committed. In his stand, he was vigorously supported by the Congregation for the Propagation of the Faith. He appealed to the Privy Council. It varied the decree in certain particulars and thus a modus vivendi was reached.

Barron Field spent his remaining years in the cultivation of his literary interests. In 1836 he had published 'a short but excellent memoir on Charles Lamb', which was followed by a small volume of verse entitled Spanish Sketches (Gibraltar, 1841); but his favourite field was Elizabethan drama and, more particularly, the plays of Thomas Heywood, of which he edited two. He died at Torquay on 11 April 1846. His widow died without issue in 1878, aged 86.