An Analysis of Pitt Cobbett's Portrait of Australia's Constitution from 1788 to 1919

A. Twomey, 'Pitt Cobbett - A Portrait of Australia's Consitution at 1919' in A. Twomey (ed.), "William Pitt Cobbett, The Constitution and Government of Australia, 1788 to 1919", The Federation Press, Sydney, 2019

Sydney Law School Research Paper No. 19/72

33 Pages Posted: 6 Dec 2019

See all articles by Anne Twomey

Anne Twomey

The University of Sydney Law School

Date Written: December 3, 2019

Abstract

William Pitt Cobbett was Dean of the Sydney Law School from 1890 to 1910, throughout the period when the Australian Constitution was drafted and first interpreted by the Griffith High Court. Upon retirement he devoted the rest of his life to writing a grand opus on the Constitution and government of Australia. It analysed the development of Australia's constitutional system from British settlement to the enactment of the federal Constitution and its early operation, viewing it as a social compact based upon constitutional implications. The manuscript was left unpublished because shortly after Cobbett's death the High Court took a significantly different approach to constitutional interpretation in the Engineers case. A century later Cobbett's "The Constitution and Government of Australia, 1788-1919" has now been published by The Federation Press. It is an historic work of great importance to those looking to discern how constitutional provisions were originally believed to operate. This paper identifies and analyses the most important aspects of Cobbett's work, pointing out where he was prescient, what is surprising, what is dated and how Cobbett's voice still resonates today. It addresses a range of issues including: federalism, the separation of powers, executive government, defence, external affairs, race issues, the Senate's powers, vice-regal powers, elections and the Court of Disputed Returns.

Keywords: legal history, constitutional interpretation, original intent, federalism, separation of powers, executive power, legislative power, judicial power, vice-regal power, elections, territories, Imperialism, colonialism, Crown, constitutional history

JEL Classification: K10, K30

Suggested Citation

Twomey, Anne, An Analysis of Pitt Cobbett's Portrait of Australia's Constitution from 1788 to 1919 (December 3, 2019). A. Twomey, 'Pitt Cobbett - A Portrait of Australia's Consitution at 1919' in A. Twomey (ed.), "William Pitt Cobbett, The Constitution and Government of Australia, 1788 to 1919", The Federation Press, Sydney, 2019 , Sydney Law School Research Paper No. 19/72, Available at SSRN: https://ssrn.com/abstract=3497260

Anne Twomey (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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