Reimagining the Feudal Skeleton: An Investigation into the Legacy of Arguments for Allodial Land in Colonial New South Wales

Abstract

Historians are frequently reminded that a lawyer’s law is a rational law, and the by-product of that rationality entails rejecting concepts that are too complex, confusing and unstable to fit into the legal hegemony.1 Sir Edward Coke (1552-1634), Chief Justice of King James I’s bench, wrote in his famous treatise, the Institutes on the Lawes of England (1628), that “certainty is the mother of quietness and repose, and uncertainty the cause of variance and contentions.”2 Despite this condition, two renegading colonial barristers in New South Wales, Richard Windeyer (1806-47) and Robert Lowe (1811-92), interrogated and brought before a court a term too uncertain for legal discourse; a term that one prominent seventeenth-century antiquarian described had “long and much perplexed many prime men’s fancy to discern and find out [its] true and proper derivation.”3 The term characterised the ancient concept of allodial land – the alod.