The Journey

Loose connections is a leisurely ramble through the vellum and parchment pages of Tasmanian legislation, along with case law. It is always open to wandering off into the tangled undergrowth of all things Tasmanian.

There is an eventual destination: overseeing the transfer of the official copies of Tasmanian legislation from 1833 to 2013 to the Tasmanian Archives and Heritage Office. Along the way we will meet a motley crew from all walks of life – judges, legislators, officials, farmers, shopkeepers, mariners, free settlers, convicts and the first peoples of this island state. I hope you will enjoy the journey, even if you only pop in for brief catch-ups along the track

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Imperial legislation relating to the Charters of Justice in 1823 and 1831

An Act for the Administration of Justice in New South Wales and Van Diemen’s Land, 1823 (4 Geo IV c 96) repealed An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 (27 Geo III c 2). It was a temporary Act to provide, until the first day of July 1827 and until the next Session of Parliament, for the better administration of justice in New South Wales and Van Diemen’s Land, and for the more effectual government thereof; and for other purposes relating thereto. It continued in operation until the commencement of An Act to provide for the Administration of Justice in New South Wales and Van Diemen’s Land, 1828 (9 Geo IV c 83).

In 1819 Commissioner Thomas Bigge had been sent from London to investigate the state of the penal Colony of New South Wales and its dependency Van Diemen’s Land. His report was critical of the administration of the Colony and its island dependency, and it led to the UK Parliament making considerable legislative changes to the structure of governance and the administration of justice.

Notable events, provided for under the provisions of the 1823 Act and the Third Charter of Justice, included:

  • creation of a Legislative Council for the Colony of New South Wales which was a first step away from the Colony’s penal status, albeit its members were all appointed by the Secretary of State in London;
  • constitution of Van Diemen’s Land, by an Order in Council, issued on 14 June 1825, and proclaimed to commence on 3 December of that year, as a separate Colony, with its own Legislative Council (seven members), and the cessation of appeals from the Island to the Governor of New South Wales;
  • creation of two new supreme courts, with civil and criminal jurisdiction; one in New South Wales and one in Van Diemen’s Land;
  • the current Supreme Court of Tasmania owes it origin to the 1823 Act, which authorised by warrant a separate Charter of Justice – the first Charter of Justice for Van Diemen’s Land; and
  • the new VDL Supreme Court being able to enrol barristers and solicitors, decide the form and function of legal procedure relating to wills and letters of administration bonds, and appeals to the Privy Council and other functions which previously had to be settled in the NSW Supreme Court.

While the 1823 Act, and associated Charters, went quite some way towards providing a measure of local control of government and administration of justice, free settlers and emancipists remained dissatisfied with the amount of control retained by the UK Parliament.

The 1828 Act was also originally intended to be a temporary measure. It was, however, made permanent in the Colony of New South Wales by the Australian Constitutions Act, 1842. This Act established a 36-member Legislative Council in the Colony, 12 of whom were nominated by the Queen (on the advice of her Ministers), with the remaining 24 members to be elected by eligible voters who owned or occupied property above a specified value.

Many sections of the 1828 Act did little more than reiterate the sections of the 1823 Act that dealt with the powers and functions of the courts in New South Wales and Van Diemen’s Land. It did, however, also include further important changes to the administration of justice in the two colonies, with the main features summarised below:

  • the laws of England current on the precise date the Act came into operation would be applied in both colonies, with section 24 of the Act setting the date of this invisible transfer as 25 July 1828, commonly called Reception Day;
  • English Acts of Parliament passed after Reception Day did not apply unless they were specifically passed for the colonies;
  • appeals from Supreme Court decisions to the Governor were ended (the Governor’s Court was abolished) although appeals to the Privy Council still had to come from the Governor;
  • trial by jury to be available in civil cases, as well as the Governor being empowered to introduce a general trial by jury in criminal matters;
  • section 24 of the Act made it clear that Van Diemen’s Land was a civil colony despite the continuing penal functions and strong military presence in the administration of justice;
  • the Act contemplated the issuing of a new Charter of Justice for Van Diemen’s Land which eventuated and finally arrived in 1831 – court to consist of Chief Justice and Puisne Judge, and also appointment of a Registrar, Master and Keeper of Records and a Sheriff; and
  • the Legislative Council increased to 15 members.

With the proclamation of the Second Charter of Justice for Van Diemen’s Land, it became necessary for a colonial enactment, An Act for the effectual Administration of Justice in the Supreme Court of Van Diemen’s Land, 2 Will IV No 1, to save from invalidity court proceedings and other matters pending under the repealed First Charter of Justice for Van Diemen’s Land.

Copies of Imperial legislation relating to the First and Second Charters of Justice in Van Diemen’s Land can be found in Vol 6 of Tasmanian Statutes 1826-1956.

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Imperial legislation and the 1787 and 1814 Charters of Justice

An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 begins by reciting the provisions of An Act for the effectual transportation of felons and other offenders; and to authorise the removal of prisoners in certain cases, 1784 (24 Geo III c 56, referred to as The Transportation Act). The abridged text of this Act is available in: J M Bennett & A C Castles, A Source Book of Australian legal history : source materials from the eighteenth to the twentieth centuries, 1979:Law Book Co, Sydney, pp 3 – 5.

The Transportation Act authorised His Majesty “to appoint any place or places beyond the seas, either within or without His Majesty’s Dominions to which offenders so sentenced shall be conveyed”. The Colony of New South Wales, which in 1787 included all of the east coast of Australia as well as Van Diemen’s Land, was appointed to be such a place. When Van Diemen’s Land was settled in 1803, it was a dependency of the Colony of New South Wales, and subject to the provisions of the 1787 Act and the accompanying Charter of Justice.

The 1787 Charter (First Charter) contained recitals expressing it to have effect in pursuance of the 1784 Transportation Act and two 1786 Orders in Council, and with regard to the Court of Criminal Jurisdiction, in pursuance of the 1787 Act (27 Geo III c 2). The Court of Civil Jurisdiction, constituted by the Charter, had no statutory foundation but was a creature of the royal prerogative.

One of the major critics of the First Charter was Deputy Judge Advocate Bent. In a letter to Under Secretary Cooke on 7 May 1810 he complains that the Criminal Jurisdiction of the Colony is imperfect in every point of view. He points out that that the greatest defect is the variety of duties the Judge Advocate has to perform:

In the first instance, he is obliged to prepare and examine the evidence for the prosecution … he then has to draw up the indictment, of the legality of which he then has to judge, and it is by him to be exhibited to the court …

He goes on to say that the execution of all these duties “is apt to bias the mind” in carrying out his role as Judge Advocate. Simply put, the court “was very well calculated to answer the purposes for which it was created in the infant state of the colony” but increases in population and trade have made it “very deficient in many respects”.

In response to these and similar views and opinions the House of Commons appointed a Select Committee to inquire into the effectiveness of sentences of transportation and other matters. The 1812 Report of the Committee resulted in significant proposals for reforming the judicature in the colony.

As the changes proposed by the Committee only related to civil courts it was not considered necessary to create any legislation to carry them out. Rather they were the subject of letters patent, now known as the Second Charter of Justice.

While the provisions of the second Charter proved beneficial to the courts in Sydney, they did very little to improve the administration of justice in Van Diemen’s Land. Judge Advocate Bent, in a letter to Lord Bathurst in October 1814, pointed out that while the establishment of the Lieutenant Governor’s Court did provide some relief, the lack of a Court of Criminal Jurisdiction and a Court of Civil Jurisdiction, with sufficiently extensive powers, was deplorable.

Judge Advocate Wylde, in a letter to Under Secretary Goulbourn on 31 March 1817 felt it his duty to point out the Charter, in regard to the jurisdiction of the Supreme Court (based in Sydney) would soon be found to be altogether insufficient for the inhabitants of Van Diemen’s Land due to delays, heavy expenses, personal inconveniences and losses, and communication difficulties that were incurred when having to travel to Sydney to have their cases heard.

From 1819 to 1823 Chief Justice Barron Field and Judge Advocate Wylde both made two visits to Hobart to hear civil and criminal matters but this was never going to be a successful solution for the Island dependency.

In his 1823 Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, Commissioner Thomas Bigge clearly spelled out the problem, and proposed solution:

The evils, however, arising to the settlement from the unchecked commission of crime, and from the extensive schemes of plunder in which the remitted convicts and those whose terms of service had expired were thus tempted to engage, together with the temptation to personal redress of civil injuries that is held out to the free inhabitants, as well as strangers, from the distance and long absence of any controlling judicial authority, I consider to be very clearly established; and as these evils admit of very partial and insufficient correction from the occasional and annual circuit of the judges … I have no difficulty in recommending to your Lordship the early establishment of a separate civil and criminal judicature in Van Diemen’s Land, as a measure essential to its tranquillity and to the prosperity of its inhabitants.

It was time for a new Act and a new Charter.

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French Maritime Explorers

Marion de Fresne

With the Dutch losing interest in Van Diemen’s Land after Tasman’s departure in 1642, the natives were able resume their normal lives until 1772 when the first French explorer, Marion du Fresne, following the route taken by Abel Tasman, anchored in Frederick Hendrik Bay aboard the Mascarin, along with Julien Crozet in the Marquis de Castries.

With the end of the Seven Years’ War in Europe, Marion had found himself at a loose end. Needing employment and finance he persuaded Pierre Poivre, the Civil Administrator of Mauritius, to help fund an expedition to the South Pacific, as well as volunteering to return Aotourou, a Tahitian Chief who had had been visiting Paris, back to his island home. When Aotourou died of smallpox in Madagascar, Marion continued his voyage, reprovisioning at the Cape of Good Hope and then sailing east. After the Marquis de Castries was damaged in a collision at sea with the Mascarin, the expedition headed for Van Diemen’s Land to look for timber to replace the mast on the Mascarin, and to replenish their water supplies.

This expedition is notable because it was the first to make contact with the native inhabitants. Crozet, the historian of the expedition, describes the French landing on 4 March and seeing approximately 30 natives on the shore:

Officers, soldiers and sailors landed without any opposition. The natives came forward without reluctance. They collected some wood and made a kind of stack. They then gave some lighted dry boughs to the newcomers and appeared to invite them to set the pile alight … We tried to win them over by small presents, but they scornfully everything they offered to them, even iron, looking glasses, handkerchiefs and pieces of cloth …

There appears to have been some confusion on the part of the French about the significance of lighting the pile of wood because when Marion landed and was offered a burning stick he set fire to the wood, which signalled an angry reaction and attack on the French with spears and stones. The French responded with musket fire, killing one Aborigine and wounding others. After this incident the French decided to abandon any further explorations to find timber and fresh water, and set sail for New Zealand on 10 March.

If Marion though the natives of Van Diemen’s Land were unfriendly, he was to discover that the Maoris were even more so. After an initial hospitable welcome by the natives, the French were ambushed, resulting in Marion and about 24 of his crewmen being killed, mutilated and eaten. Julien Crozet, second in command, is reported to have killed over 200 natives in revenge.

The following publication provide quite a detailed account of both the Tasman and Marion expeditions.

The Discovery of Tasmania: journal extracts from the expeditions of Abel Janszoon Tasman and Marc-Joseph Marion Dufresne, 1642 & 1772 /edited by Edward Duyker; translated by Edward, Herman & Maryse Duyker

Two other expedition Journals also provide interesting reading.

Extracts from Journals Relating to the Visit to New Zealand in May-July 1772 of the French Ships ‘Mascarin’ and ‘Marquis de Castries’ Under the Command of M.-J. Marion du Fresne (Wellington, NZ, 1985)

Crozet’s Voyage to Tasmania, New Zealand the Ladrone Islands, and the Philippines in the Years 1771-1772, Translator: H. Ling Roth.

 

Bruni D’Entrecasteaux

In September 1791, the French Assembly decided to send an expedition in search of Jean-Francois de La Perouse, who had disappeared after leaving Botany Bay in March 1788. Bruni d’Entrecasteaux was chosen to command this expedition and was promoted to the rank of Rear Admiral when he left Brest on 28 September 1791, in command of Le Recherche and accompanied by Jean-Michel Huon de Kermadec in La Esperance. As well as searching for Perouse, they were tasked with furthering geographic and scientific knowledge in the regions Perouse had been planning to explore.

After sailing down and charting the west coast of New Holland, d’Entrecasteaux’s vessels reached the west coast of Van Diemen’s Land and then sailed south east, dropping anchor in Recherche Bay in April 1792 to look for a supply of fresh water and to rest their crews.

The French explorers carried out detailed explorations for five weeks, finding beautiful waterways and estuaries in the area, as well as identifying mistakes made by previous navigators. They established that Adventure Bay, discovered by Captain Tobias Furneaux, was part of an island and separated from the mainland by a channel (which they named d’Entrecatreaux Channel) as well as discovering Port Esperance and the Huon River.

The two ships left Van Diemen’s Land in May 1792, to continue the search for La Perouse, returning to Recherche Bay in early 1793. During this second visit the River Derwent was fully explored and mapped. d’Entrecastreaux then sailed up the east coast as far as Marion Bay before sailing away to resume the search for La Perouse. The discoveries made by d’Entrecastreaux during his time in Van Diemen’s Land led to the maps of the island’s coastline becoming much more accurate as shown by this French Chart of Van Diemen’s Land and Adventure Bay (insert)

Encounters between the French and the native inhabitants seem to have been peaceful and friendly on both sides. French scientists took careful notes about the appearance, health, dwellings, diet, tools, clothing and vocabulary of the natives, and Labillardiere, one of the naturalists, records an incident where:

If our path was interrupted by heaps of dry branches, some of them walked before, and removed them to either side. We could not walk on the dry grass without slipping every moment, particularly where the ground was sloping: but these good savages, to prevent our falling, took hold of us by the arm, and thus supported us.

While an officer from La Esperance recalled, “The kindness and gentleness which seemed to be the basis of their character, gave to our meetings rather an air of reunion of friends rather than a meeting of individuals who were quite different.

Labillardiere, provides excellent descriptions of the country and the natives in his journals, Voyage in search of La Perouse Vol 1 and Vol 2

Nicholas Baudin

In 1800 Nicholas Baudin proposed a scientific expedition to the south of New Holland and Van Diemen’s Land, gaining support from Napoleon Bonaparte and the Institute of France. In October of that year he set sail in the gunship Le Geographe and the storeship Le Naturaliste.

In November 1801, with many of crew suffering illness, Baudin decided to make for Van Diemen’s Land. Arriving in early 1802 his expedition made an extended stay in the D’Entrecasteaux Channel. They explored the Derwent for some miles above Herdsman’s Cove, and also the Bay du Nord, properly charting Frederick Henry Bay, and the stretch of shallow water now called Pittwater. Francois Peron, one of the scientists, has recorded their meetings with the natives and given many interesting facts and incidents. Leaving the south, Baudin made an extensive examination of the east coast. He found that Tasman’s Isle was really a double peninsula to which he gave the names of Tasman’s and Forestier’s Peninsula. Lieutenant Freycinet also examined Oyster Bay, Schouten Island and Freycinet’s Peninsula.

From their first encounter they were accepted well by the natives, who were fascinated by the pale white skin of the Frenchmen and their longboat. The Frenchmen ate with the natives, traded gifts as well as entertained them. Baudin then sailed for Port Jackson, where reports were circulating that the French intended to establish a settlement on the Derwent. Governor King was sufficiently concerned to send HMS Cumberland to watch over the progress of the French expedition. When Baudin’s ships were anchored in Sea Elephant Bay on King Island, a British party went ashore raising the British flag from a tree and claimed the island for King George. Baudin appears to have been somewhat amused by these antics and continued sailing west along the southern coast of the mainland, gathering plants and specimens to add to those his scientists had already collected. Their departure did not allay the fears of Governor King who decided to send Lieutenant John Bowen to establish a small settlement at Risdon Cove on the River Derwent to pre-empt any the French claims to Van Diemen’s Land.

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Dutch Maritime Explorers

While it is probable that Portuguese sailors in the 16th century came in sight of the west coast of what was imagined to be the Great South Land, the usual route taken by the Dutch and Portuguese spice traders on their way to Java and the Moluccas was to round the Cape and sail up the east coast of Africa as far as Madagascar and then turn away from the coast line and across the Indian Ocean. These voyages could be very lengthy, taking up to a year, as ships could become becalmed in the tropical regions and sailors suffered from the unhealthy climate and lack of fresh provisions.

In 1611 Dutch captain Hendrik Brouwer discovered a quicker trade route to Indonesia’s spice islands and halved the time it took to reach Indonesia. After rounding the Cape he used the ‘roaring forties’, a band of strong winds in the southern oceans, to speed the passage of ships in an easterly direction and did not turn north until he estimated he was in the vicinity of the longitude of Java.
Following Brouwer’s discovery, it became standard practice for the Dutch East India Company ships to sail in the roaring forties for one thousand Dutch miles (about 7,400km) before turning north to Indonesia.  While this halved the amount of time spent at sea there was at this time no accurate way to calculate distance travelled and it was inevitable that some ships would travel too far east, before turning north, and start to see glimpses of unmapped land.
In 1616 Captain Dirk Hartog in the Eendragh made landfall at an island in Shark Bay in what is now Western Australia. From this time on the “Land of the Eendragh” was used as a sailing direction for Dutch vessels travelling east. Then in 1642 Abel Tasman, under instructions from Anthony Van Diemen, Governor of the Dutch East Indies, set out to discover the extent of the Great South Land. Van Diemen’s instructions to Tasman were to sail to Mauritius, then go due south to Latitude 51 or 54 degrees, or until land was discovered and then to sail east to see if the Great South Land extended as far as Terra del Fuego.

The expedition consisted of two ships, the Heemskirk and the Zeehaen, and sailed from Batavia on 14 August 1642, with the first journal entry by Tasman reading:

Journal or description by me, Abel Janszoon Tasman, of a voyage made from the town of Batavia in the East Indies, for the discovery of the unknown South Land, in the year Anno 1642, the 14th August. May it please Almighty God to grant his blessing thereto! Amen.

They reached Mauritius on 5th September and spent a month refitting and provisioning for their long journey to the south and then to the east where they encountered strong gales and heavy fogs. Continuing their voyage into the unknown they first sighted land on 24 November. Tasman named the land Van Diemen’s Land in honour of the Governor, but as was common in those times, the exact location on the west coast of what is now called Tasmania is uncertain. His position is not marked on his chart but the descriptions and bearings of the mountains he saw make it likely he was in the region of Cape Sorell at the mouth of Macquarie Harbour.

Proceeding south he skirted the southern end of Tasmania and turned north-east until he was off Cape Frederick Hendrick on the Forestier Peninsula.

Tasman’s journal entries for 2 December describe an initial exploration of the land to the north west of where their ships were at anchor, describing vegetation, timber resources and a good quality shallow water course, as well as fowls, wild duck and geese. They observed notches in the trees, at intervals of around five feet, confirming the common belief of all explorers at this time that the inhabitants of the Great South Land were giants. The following morning they went ashore again, this time to the south east, looking for water but were unable to find an easily accessible supply. Tasman’s journal entry recounts that they returned in the afternoon, taking:

… a pole with the company’s mark carved on it, and a flag of the Prince to be set up there, that those that come after us may become aware that we have been here, and taken possession of the said land as our lawful property … [however] the surf ran so high that we could not get near the shore without running the risk of having our pinnace dashed to pieces. We then ordered the carpenter [Pieter Jacobsz] to swim to the shore with the pole and the flag: we made him plant the pole in the earth with the flag upon its top, about the centre of the bay near four tall trees … our carpenter, having performed his work, we pulled as near the shore as we dared, thereupon he swam back to the pinnace … we pulled back to the ships, leaving the above mentioned as a memorial for those who shall come after us and for the natives of this country who did not show themselves, though we suspect some of them were at no great distance and closely watching our proceedings.

The exact spot where the flag was planted remains a mystery as Tasman did not record bearings to, or angles between, the various headlands, islands or prominent features in the vicinity, in relation to the anchorage of his ships.

On 4 December Tasman resumed his voyage northwards but bad weather made it impossible to keep in sight of the coastline so it was decided to turn eastward the following day, and after nine days they made land fall on the west coast of the south island of New Zealand. From there he sailed north east to Tonga, then on to New Guinea, arriving back at Batavia on 15 June 1643. The concluding entry in his journal reads:

God be praised and thanked for a safe voyage! Amen.


Tasman’s 1642-43 Route showing contact with island he named Van Diemen’s Land

Though the Dutch were the first Europeans to discover Tasmania, and to claim it for the Netherlands, it appears they had no colonisation ambitions as it offered no prospect of profitable trade along the lines of the existing spice trade in Indonesia. Apart from the 1642 discovery leading to more lines being added to maritime charts, the island remained forgotten for well over a century. From 1772, however, the French and the British became frequent visitors.

Further Reading

W R Barrett, History of Tasmania to the Death of Lieutenant-Governor Collins in 1810. Hobart: H T Whiting Pty Ltd, 1936 (particularly for extracts from Tasman’s Journal)

R W Giblin, The Early History of Tasmania. London: Melbourne University Press, 1939

J B Walker, Early Tasmania. Hobart: Government Printer, 1950

 

 

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Magistrates – 1803-1824

The background to the operation of the justices of the peace in Van Diemen’s Land goes back to 1787 and the First Charter of Justice for the Colony of New South Wales. This document provided that Justices in New South Wales “shall have the same power to keep the peace, arrest, take Bail, bind to good behaviour, Suppress and punish Riots, and to do all other Matters and Things with respect to the Inhabitants residing or being in the place of Settlement aforesaid as Justices of the peace have within that part of the Kingdom called England within their respective Jurisdictions”.

The leading character in this judicial saga was David Collins. Before he left England with the First Fleet, he had received two commissions, one as judge advocate of the marine detachment which served as the garrison in the new colony and one as judge advocate in the settlement. Soon after the arrival of the First Fleet in 1788 he was also sworn in as a justice of the peace and for much of his time during these early days in the colony of New South Wales he sat as a magistrate, sometimes alone, but often with the colony’s surveyor, Augustus Alt, delivering summary justice for minor offences, and committing more serious offenders to appear before the criminal court (over which Collins also presided). He remained active in these roles until his return to England in 1797.

The scene now shifts to Van Diemen’s Land in 1803. The New South Wales Governor, Phillip Gidley King, was much concerned that the French scientific expeditions under the command of Nicholas Baudin, could be a cover for French aspirations to acquire new territories in the Pacific. When Baudin sailed into Sydney Harbour King was outwardly friendly and hospitable but after the French commander had re-provisioned his vessels and announced he was sailing south to resume his scientific explorations King despatched a small contingent to shadow the French ships and take any opportunity that arose to plant the British flag as a signal that it was British territory, and to present a letter to Baudin making claims of British sovereignty. These antics appear to have amused, rather than annoyed, Baudin who wrote his own letters pointing out the ridiculous behaviour of the British, turning up and planting a British flag whenever the French were camped on shore. He was even willing, before turning westward to sail along the southern coastline of the continent, to help the British repair their ship to enable them to return to Port Jackson.

The departure of the French ships did not allay King’s concerns, and he now proceeded to dispatch Lieutenant John Bowen south to assert a right “to the whole of Van Diemen’s Land should any Foreign Nations (specifically the French) try to settle on the Island”. Bowen’s small band of 49 people arrived at what is now Risdon Cove on the banks of the Derwent in September 1803. His legal authority consisted of his appointment as a justice of the peace by Governor King, along with a similar commission issued to Jacob Mountgarrett, official surgeon for the expedition.

From the beginning there was no real prospect that this would be the foundation of a permanent settlement. Governor King had taken the opportunity to send some of the most troublesome convicts on the expedition and as a result very little productive labour could be obtained from them. Eight of them stole the Commandant’s boat with the intention of sailing to New Zealand, eight more (all Irishmen) were banished to an island in Frederick Henry Bay. The soldiers were discontented, complaining that their duties were too arduous, and finally mutinied, which resulted in the ring leaders being put in irons and sent to Port Jackson to be court martialled. The Governor was not impressed by Bowen’s actions, promptly sending him back to Van Diemen’s Land.

Meanwhile the British Government, also concerned about French territorial ambitions in the Pacific, had commissioned David Collins as Lieutenant Governor to lead an expedition of 464 people, military, civil, settlers and convicts to create a settlement at Port Phillip Bay, in what is now the State of Victoria. His orders allowed him, if Port Phillip proved unsuitable, to consider other locations. After a few months Collins abandoned Port Phillip and sailed on to Van Diemen’s Land, arriving in February 1804. Unimpressed with the encampment at Risdon Cover, he decided on Sullivan’s Cove as a better site and pitched camp on what would become the present city of Hobart, leaving Bowen and his small group to carry on at Risdon until it was abandoned later in the year.

Collins was well equipped to lay the foundations for a permanent settlement, which included setting up a bench of magistrates similar to what he had developed in 1788 at Port Jackson. He had received a commission as a justice of the peace before he left England, and he brought with him three persons commissioned to act as justices of the peace: the Rev Robert Knopwood, Chaplain; Lieutenant William Sladen of the Marines (no entry in the Australian Dictionary of Biography) and George Harris, Deputy Surveyor. When Samuel Bate arrived in 1806, appointed as Judge Advocate for Van Diemen’s Land but with no authority to set up the Court, he also took his place on the Bench of Magistrates when Lieutenant Sladen went back to England.

Meanwhile in 1804 Governor King had taken steps to form another settlement in the north of Van Diemen’s Land at Port Dalrymple, along the lines of Collins’s settlement in the south, with William Paterson to be the Lieutenant Governor, along with a commission as a justice of the peace. When the flag was raised at the new settlement the government storekeeper was also officially sworn in as a justice of the peace. A total of 181 persons had sailed to Port Dalrymple. Governor King then divided the island into two counties; Cornwall in the north and Buckinghamshire in the south, with the two Lieutenant Governors independent of one another, and each relying on their own justices of the peace to maintain law and order in the settlements. When Governor Macquarie visited Van Diemen’s Land in 1812 he abolished this dual administration and ordered that Hobart would be the Capital of Van Diemen’s Land.

The system of appointing justices of the peace to maintain law and order was the only instrument available for the administration of justice in the new settlement of Van Diemen’s Land from its beginnings in 1803, until 1816 when a Judge Advocate’s Court finally opened its doors. Entries from the diaries of officials in Van Diemen’s Land give some idea of the operations of magistrates in the early years of the settlement but the first published report of the operation of the Bench of Magistrates in Van Diemen’s Land appeared in 1816 when the Hobart Town Gazette commenced publication, with a report on magistrates hearing criminal cases and licensing ferrymen. The paper continued to list details of the sittings of magistrates and regularly reported on the Assize of Bread, which set the price of bread.

The Bench generally met twice weekly, though small matters could be dealt with by a single magistrate. They decided in cases of civil disputes, and had authority to inflict corporal punishment on convicts for misdemeanours. Floggings were a regular punishment, though they could also make use of the stocks and the pillory, as well as whipping at the cart tail. A particular punishment, reserved for women convicts, was the use of a heavy iron collar rivetted around their necks.

The Lieutenant Governors also used the Bench of Magistrates to inquire into non-judicial matters that affected the welfare of the settlement, such as fixing the price of labour, conserving food supplies and setting the price of bread.

In the southern settlement Lieutenant Sladen was often too occupied with his military duties to spend much time on the Bench but Knopwood and Harris were generally competent and conscientious in performing their duties in Hobart though Bate was much less so. Collins expressed grave doubts about his legal knowledge and fitness for the position and Governor Macquarie went so far as to describe him as “much addicted to drunkenness and low company, totally ignorant of law, and a very troublesome, ill-tempered man”. Perhaps it was just as well he never got to preside as deputy Judge Advocate. Some magistrates, such as Lieutenant Edward Lord, allowed their personal interests to override proper procedures when punishing convicts more severely than was warranted. Floggings, in particular, seem to have been far more brutal in Van Diemen’s Land than on the mainland. Matters that would have been heard in the Court of Criminal Jurisdiction in Port Jackson were often dealt with by magistrates in Van Diemen’s Land, because of the great inconvenience of sending offenders for trial on the mainland.

Up till 1816 magistrates were not paid salaries, although they were entitled to receive stores from government warehouses. The first magistrate to be paid a salary was Adolarius Humphrey who presided over the administration of criminal justice and convict discipline in Hobart. Within a few years the workload of Humphrey and his assistants was such that they could not keep up with the volume of work and by the time of the arrival of Lieutenant Governor George Arthur in 1824 the Police Office, as it was called, was in complete chaos. Considerable reforms to the system were made by the new Lieutenant Governor in the years following his arrival.

Further Reading

Babington, Anthony, A house In Bow Street: Crime and the Magistracy in London, 1740-1881, London: Macdonald, 1969 (see National Library of Australia catalogue for list of libraries holding this item.

Castles, Alex, Lawless Harvests or God save the Judges, North Melbourne: Australian Scholarly Publishing, 2007

——- An Australian legal history, Sydney: Law Book Company, 1982 (particularly Chapter 5)

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Vice Admiralty Court 1787-1812

In 1787 the First Charter of Justice provided for the establishment of courts of justice in the Colony of New South Wales to deal with criminal and civil matters. In addition to the Letters Patent issued to set up these courts, a Commission was also issued under the Great Seal of the United Kingdom to also establish a Vice Admiralty Court in the Colony, which would represent the Lord Admiral of the United Kingdom who had authority over all matters relating to the sea. Unlike the two local colonial courts, the Vice Admiralty Court was an imperial court with a right of appeal to the British Admiralty Court.

Warrants for commissions were issued appointing Robert Ross as judge, Andrew Miller as register and Henry Brewer as marshal of the Court, followed by Letters Patent issued to Governor Phillip as Vice Admiral and to Robert Ross as Judge under the Great Seal of the High Court of Admiralty.

Their commissions gave them power to deal with all civil and maritime causes according to the maritime laws and customs which prevailed in what used to be called the High Court of Admiralty in the United Kingdom. Spelt out in the Letters Patent, Ross, as Judge of the Vice Admiralty Court was granted

full power to take cognizance of and proceed in all causes civil and maritime and in complaints contracts offences or suspected offences crimes pleas debts exchanges policies of assurances accounts charter-parties agreements bills of lading of ships and all matters and contracts which in any manner whatsoever relate to freight due for ships hired and let out transport money or maritime usury (otherwise bottomry) or which do any ways concern suits trespasses injuries extortions demands and affairs civil and maritime whatsoever … [and] to hear and determine [these causes] according to the civil and maritime laws and customs of our High Court of Admiralty of England in the said Territory called New South Wales and country and islands thereunto belonging.

In addition the Commission empowered Ross to deal with causes of a criminal nature

to search and enquire of and concerning all goods of traitors pirates manslayers felons fugitives … [and] all other trespasses misdemeanours offences enormities and maritime crimes whatsoever done and committed.

Other important provisions included the right of appeal to the High Court of Admiralty in England from decrees of the Vice Admiralty Court in New South Wales, and the right given to Ross as Judge of

deputing and surrogating in your place for and concerning the premises one or more deputy or deputies as often as you think fit.

Further Letters Patent were issued appointing the Governor and other commissioners to exercise jurisdiction in case of “piracies, felonies or robberies” within the jurisdiction of the Admiral appointed Commissioners.  The Court so constituted was given authority

for the examining, enquiring of, trying, hearing and determining and adjudging … all piracies, felonies, and robberies and all assessories thereunto committed or which shall be committed in or upon the sea or within any haven, river, creek or place where the Admiral or Admirals have power authority or jurisdiction.

In November 1791 Governor Phillip wrote to Under-Secretary Nepean about difficulties in assembling the Court

… the situation we are in with respect to the Vice-Admiralty Court will be obvious.  The Judge, now at Norfolk Island, and about to return to England, the Registrar dead; and not a second person will remain in this colony, after the departure of the Supply and Gorgon, by whom those who have already returned could be replaced.

Phillip resolved the problem by appointing Richard Atkins as registrar while Francis Grose, the Lieutenant Governor, became judge in place of Ross.

However when Governor Hunter arrived to take over from Phillip he found these arrangements not to his liking because if he elected to sit as a member of the Court, it would be under the presidency of his junior in rank. He was also extremely unimpressed when several of the appointed members of the Court failed to attend a sitting in 1798. He directed the President of the Court

to Signify the Governor’s entire Disapprobation of a Conduct which seems to border on Contumacy and that the said President do reprimand such Members as have thus subjected themselves to Censure.

It appears that the first sitting of the Court occurred in 1798 when Governor Hunter convened the Court to deal with charges of mutiny and attempted piracy, resulting in the defendant being acquitted through insufficient evidence. However, most of the work of the Court focused on administrative matters. Archive records from the Court describe the granting and revoking of letters of marque and the provision of sureties by masters or shipowners.

Despite the fact that no specific prize commission for the Vice Admiralty Court of New South Wales appears to have existed prior to 1812, the Court did, during periods of hostility, exercise such jurisdiction. The first Prize sittings occurred in May 1799.  Henry Waterhouse, as President, ordered that the Spanish vessel Nostra Senora de Bethlehem, captured off Cape Blanco on the coast of Peru by the Cornwall and Kingston, be condemned as “lawful prize”.

 

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Supreme Court 1814-1823

The Supreme Court of Civil Judicature was established by letters patent for Courts of Civil Judicature on 4 February 1814 (Second Charter of Justice), in response to growing agitation for reforms to the system for administering civil justice in New South Wales (which included the settlements in Van Diemen’s Land. The new Charter abolished the old Court of Civil Jurisdiction which has operated since the arrival of the First Fleet in 1788.

The new Supreme Court was a Court of record, and consisted of a judge appointed by the Crown and two magistrates appointed from time to time by the Governor. The Court was authorised to hold plea of and determine all pleas concerning lands, tenements, hereditaments, and all manner of interests.

 

The Court dealt with all pleas of debt, account or other contract, trespasses, and all other personal pleas, except where the cause of action was less than £50, in which case the matter would be heard in the new Governor’s Court, also established by the Second Charter of Justice. The jurisdiction of the Court covered common law, equity and probate, with judgements being given according to law and equity rather than the first Charter’s concept of according to justice and right.

There was provision for appeal to the Governor assisted by the Judge-Advocate. In all cases where the amount involved was less than £3,000, the Governor’s decision was final. For amounts exceeding £3,000, there was opportunity for a further appeal to the Privy Council, but only upon the appellant’s giving security for at least double the amount in question.

Although the new Court was established in February 1814, it did not open its doors for business until 1817. Jeffrey Hart Bent, an English barrister of almost ten years’ standing (as he thought fit to regularly remind the inhabitants of the Colony) was commissioned as the first Judge of the Supreme Court. As set out in the Second Charter of Justice, the Judge’s presence was always required when the Court convened, although the two lay magistrates who sat with the Judge on the Bench had the power to overrule the Judge.

When it became clear to Jeffrey Bent that the two magistrates were prepared to agree to the admission of three former convict lawyers to appear in the Court (in the absence of any free lawyers in the Colony) he refused to take participate in the Court’s proceedings which left the other two members of the Court powerless to act.

Until he was recalled by the Home Office in 1817, Bent spent his time feuding with Governor Macquarie who complained in correspondence with Lord Bathurst in 1816 that the ‘highest law officer in the colony is the root of every faction and cabal that takes place in the colony’.

A second judge, Barron Field, was commissioned to replace Bent, arriving in Sydney in February 1817. Jeffrey Bent had been too preoccupied with pursuing his vendetta against Governor Macquarie to find time to write any rules for the operation of the Court so Field’s first task was to draft a set of rules which, as far as possible, followed the practice of the courts of Westminster. Following approval of the rules by the Governor, the Supreme Court commenced sitting regularly in Sydney for the first time in 1817.

In January 1819 Barron Field went to Van Diemen’s Land to officiate at the first Circuit Court held in Australia. Before this any civil cause arising in Van Diemen’s Land, if beyond the jurisdiction of the Lieutenant Governor’s Court (which could only hear matters up to ₤50) had to be tried in the Supreme Court in Sydney. Field returned to Hobart in 1821 for the last sitting of the 1814 Supreme Court in Van Diemen’s Land.

The Supreme Court of Civil Judicature was abolished by the New South Wales Act ( 4 Geo. IV, Act No. 96) and two new Supreme Court Courts, one in New South Wales and one in Van Diemen’s Land, with both Civil and Criminal Jurisdictions, were established in its place.

Macquarie University provides access to some of the judgments of the Supreme Court of Civil Judicature at Decisions of the Superior Courts of New South Wales 1788-1899.

 

 

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