Kieran Dolin, ‘”A Beautiful Fiction of Law”‘: Rhetorical Engagements with Terra Nullius in the British Periodical Press in the 1840s’, Journal of Victorian Culture 18, 4 (2013).

This paper analyses two critiques of the jurisprudential basis of settler colonialism in Australia published in the early Victorian periodical press. Review articles in the North British Review and Fraser’s Magazine in the 1840s deployed claims of legal sophistry to dispute the fiction that Australian colonies were settled, rather than conquered, and that the country was a terra nullius. By examining the politics and rhetoric of each article, the significance of legal ideology for both literature promoting colonization and humanitarian critiques of colonial policy is assessed. Through a combination of discourse analysis and intellectual history, the North British Review article is read as fusing Scottish Enlightenment concepts of social evolution with the rhetoric of sensibility to defend the existence of Indigenous rights to land and to argue for the degenerative implications of colonial social practices. Similarly, the Fraser’s Magazine article offers an epitome of the place of law in colonial policy-making by invoking utilitarian and pragmatic approaches to law to rationalize doctrines of sovereignty and jurisdiction, minimizing legal protections for Aborigines while maximizing the legal powers of colonists. By tracing the use of jurisprudential rhetoric in reviews published in two leading metropolitan journals, the paper offers evidence that the literary sphere contributed to the emergent culture of colonial legality.