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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Financing Van Diemen’s Land

Following the American War of Independence in 1783, the UK government could no longer send convicts to America. It was now faced with the problem of finding another overseas destination for the ever-increasing numbers of prisoners in its overcrowded gaols and prison hulks. Two of the essential criteria were that it had to be far away (to make it difficult for ex-convicts to return to England) and it had to be as cheap as possible. The eventual choice owed much to the report of Captain James Cook about what he had observed in 1770 when sailing up the east coast of what was then called New Holland. He claimed the entire eastern coast of the continent for the British Crown, naming it New South Wales.

Claiming territory was one thing but until settlements were established it was theoretically possible for other nations to claim unoccupied territory. By establishing a penal colony in New South Wales the British would be able to consolidate their claim as well as getting rid a considerable number of the prison population. The rights of the natives were effectively ignored.

Captain Arthur Phillip sailed from Portsmouth in late 1787 with around 1,500 people aboard the eleven ships of the First Fleet. The bulk of the passengers were prisoners, along with a contingent of marines and officers (some with wives and children). Arriving on 18 January 1788 at Botany Bay, Phillip was not impressed with the location. After sailing around for just over a week he finally decided on Port Jackson as the best location for the convict settlement.

In late 1802 Nicholas Baudin, Commander of the French expedition, sailed into Port Jackson to resupply his two ships. He was on a voyage to observe and research the geography and natural history of the coasts of New Holland. Governor King was concerned that the French explorers, in addition to their scientific activities, may well have had a hidden territorial agenda: to claim Van Diemen’s Land as French territory. In early 1803 he despatched Lieutenant John Bowen, with a splendid new uniform and a proclamation to be read any to any Frenchman who might dare to set foot on the Island, that this was British territory and an extension to the penal settlement in New South Wales. But no French ships appeared in the Derwent River. When they left Port Jackson they took the first right turn into Bass Strait, continuing to carry out their scientific observations along the southern shores of the mainland.

Initially both penal settlements were paid from the British Treasury, but the expectation was that the colonies would, in time, become self-sufficient. After all this was no holiday camp, but a place of punishment that would serve as a warning to the criminal classes in England that petty crimes could be punishable by banishment to the other side of the world. As for free settlers, enticements such as land grants and free convict labour went hand in hand with the loss of some of the civil rights they had enjoyed in England.

Under the terms of the New South Wales Act 1823 Van Diemen’s Land was granted colony status and officially separated from New South Wales on 3 December 1825. It now had its own governing body, a Legislative Council, and was able to enact its own legislation. From 1826-1830 a total of  34 Acts were passed, with approximately a third dealing with raising revenue for local purposes. This power was provided for under the provisions of both the New South Wales Act 1823 and the Australian Courts Act 1828 and included licensing and sale of liquor, imposing duties on newspapers, registration of deeds, wills, judgements, property conveyances, postage of letters, impounding animals for trespass, and regulating the slaughter of sheep and cattle. These revenue raising activities were legislated by the Legislative Council and the money raised had to be used to fund the specific activities relative to each Act. The money raised could not go into the Consolidated Revenue Fund. Expenditure on Administration of the Colony, the Convict Establishment, the Military, the Judiciary and the Churches was paid out of the British Treasury.

It was not until 1833 that the first Appropriation Acts describing the annual expenditure for the administration of the Colony of Van Diemen’s Land were enacted (4 Will IV No 6 and 4 Will IV No 7. Act No 6 sets out expenditure for Civil, Judicial, Ecclesiastical (including Schools), and Military departments, followed by a group of Miscellaneous matters. It takes a lot of concentration to read as the amounts for each item are included in the text of the Act: eg Section 4 reads:

“IV.-AND BE IT FURTHER ENACTED that out of the produce of the said duties there shall and may be issued and applied any sum or sums of money not exceeding six hundred and twenty pounds eleven shillings and eight pence to defray the salaries and contingent expenses of the Military Establishment in Van Diemen’s Land”

Act No 7 uses the same format but does include marginal notes which makes it much easier to see the individual amounts of expenditure(three examples listed below – note use of “l s d” abbreviations for pounds, shillings, pence).

  • 43,310l. 6s. 2d. for the Civil Establishment viz.
  • 771l. 10s. for the Lieutenant Governor’s Establishment.
  • 638l. 5s. for the Department of the Councils.

Appropriation Act 6 Will IV No 9 for 1835 makes it even easier for anyone wanting to see the details of expenditure for that year. Headings are listed as marginal notes and items of expenditure are detailed in two columns: the item and the cost. Listed below are the seven headings and the total costs for each:

  • Civil Establishment – £34,724. 7s. 2d.
  • Departments of Public Works –  £19,896. 19s. 1d.
  • Judicial Establishments –  £12,345 17s. 6d.
  • Ecclesiastical and School  Establishments –  £14,445 16s. 10d.
  • Colonial Military Establishment –  £384 16s. 8d.
  • Pensions –  £845 0s. 0d.
  • Miscellaneous Services –  £13,150 0s. 0d.

By 1849 the breakdown of expenditure for the Colony had increased from seven sections listed above to 23, as detailed in 13 Vict No 4.The final Appropriation Act for the Colony of Van Diemen’s Land was 19 Vict No 19. This authorised the expenditure for the year 1855. The next Appropriation Act would be for the Colony of Tasmania with expenditure no longer approved by an appointed Legislative Council but a bi-cameral Parliament which included some elected members.

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Federal Council of Australasia

If searching for missing Acts is like finishing a jig saw puzzle and realising the picture is not complete, then finding ten Acts that appear to have duplicate numbers is akin to having bits left over after you have assembled a flat pack piece of furniture.

In 1886  the numbers 1 – 4 appeared to have been used twice. The label on the brown paper package for 1886 indicated there were 36 Acts for that year: in fact, there were 40. Comparing the Acts with duplicate numbers confirmed each had the same regnal citation (50 Vict), both were printed by the Tasmanian Government Printer and signed by the Tasmanian Governor and at first glance, only the text  showed they were different Acts, dealing with different subject matter.

You sometimes see what you expect to see. The different wording following the signatures at the end  of each Act was the first clue and finally after close inspection of the front pages it became clear that the first 36 Acts were Acts from the Colony of Tasmania and the heading on the front page above the crest was Tasmania.  The remaining four were the first four Acts of the Federal Council of Australasia.

Federal Council Act No 4 1886

Further investigation revealed six more Acts had been enacted by this body, making a total of ten Acts of the Federal Council, passed during the years 1886 to 1897. The first question was what was this Council, and secondly why was its legislation in the Records  of the Tasmanian Supreme Court?

Since 1883 the Australian Colonies and some of their Pacific neighbours had become increasingly concerned by the presence of French and German ships in the region, to the extent that Queensland was so alarmed by German activity in the Torres Strait that it annexed the Island of New Guinea without seeking approval from the Colonial Office. Once the Imperial Government became aware of this development, they refused to ratify it. The Australian Colonies reacted by convening an inter-colonial convention which met in Sydney in November and December 1883. It was attended by the six colonies, Fiji and New Zealand and resulted in a request for the UK Parliament to pass legislation creating a Federal Council of Australasia, which would allow colonies to unite to deal with matters of common interest. Samuel Griffiths, Premier of Queensland (whose behaviour had precipitated the UK rebuke to the colonies) drafted a bill to be sent to the Imperial authorities for their consideration and this request got the tick of approval with the UK Parliament  passing An Act to constitute a Federal Council of Australasia 14 August 1885

Membership was not compulsory, but there was a proviso that at least four colonies had to agree to be members. Queensland, Victoria, Tasmania, and Western Australia all passed the necessary Colonial Acts. South Australia joined for two years (1889-1890) but withdrew and New South Wales never joined. Speculation on why New South Wales refused to be a member ranges from a fundamental disagreement with Victoria about tariffs, to the vote in the NSW Parliament about joining the Council clashing with Melbourne Cup Day, leaving the government of the day in a minority due to the absence of a number of members who had travelled to Melbourne to attend the race (Source: Stuart B Kaye, “Forgotten Source: The Legislative Legacy of the Federal Council of Australasia”, [1996] Newcastle Law Review 5, 1(2) footnote 13, p 59).

As to how the official copies of the ten Acts passed by the Council ended up in Tasmania is a matter of logistics. The only convenient time the Council could sit was when colonial parliaments were in summer recess. A sea voyage to the cooler climate of Hobart during January/February every two years seems to have had a certain appeal to the three mainland colonies.

Representatives of first Federal Council Meeting Hobart 25 January 1886

Except for the final session of the Council in 1899, all the meetings were held in Hobart, with the Crown being represented by the Governor of Tasmania, or the Administrator, if there was no resident Governor when the Council was in session. When an Act was passed by the Council, it was printed by the Government Printer in Hobart, a wafer seal impressed on the top right-hand corner of the front page and the Act signed by the Governor of the day with a message: “In accordance with  Act 48 & 49 Vict Cap  60. Section 15, I reserve this Bill for the signification of Her Majesty’s Pleasure”. Colonial Acts were simply signed by the Governor or Administrator.

Copies of the Federal Council Acts were then sent to the Colonial Office for assent by the Queen and advice of this assent sent back to the Colony, with the Order then published in the Hobart Gazette. As was the practice with Tasmanian Acts the original copies were forwarded on to the Supreme Court, to be held in the Records of the Court. However, there was no notification on the annual packages that they were from a separate jurisdiction.

A strange twist to this saga occurred during the time of the Australian Joint Copying Project (1948-1997) when important historical documents from the Colonial Office were microfilmed to allow Australian historians and researchers access to this material through the National Library. The ten Acts of the Federal Council (now available online) were included in this project, seemingly with no one aware that the original copies were securely stored in the Records of the Supreme Court in Tasmania.

The 2013 Tasmanian legislation providing for the original copies of all VDL and Tasmanian Acts to be transferred from the Supreme Court of Tasmania to the Tasmanian Archives and Heritage Office does not make any provision for the Acts of the Federal Council of Australasia. They will remain in the Records of the Court until a decision is made about the future of these jurisdictional stowaways.

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VDL Governor’s Despatches to Colonial Office 1826 to 1832

One of the puzzles encountered when preparing to transfer the official copies of the legislation passed by the Legislative Council of Van Diemen’s Land was the whereabouts of some of the manuscript copies of Acts from 1826-1832. In theory all Acts from 1826 should have been held in the Records of the Supreme Court, until the responsibility was transferred to the Tasmanian Archives Heritage Office in mid-2013. However, the earliest Act in the Supreme Court collection is 4 Will IV Extending Existing Liquor Licences, No 1 of 1833. Of the 35 Acts made from 1826-1831 (no Acts passed in 1929 or 1832), 15 have been identified as already transferred to TAHO (reasons unknown but appears to have been mistakenly done under the Public Records Act 1943) leaving 20 original handwritten copies unaccounted for, though we know copies were sent to the Colonial Office as enclosures.

A search through the Register of the Governor’s Despatches to the Colonial Office provides the following details:

  • 13/12/1826 – enclosing copies of Acts of Council as per 4 Geo IV, Chap 96, section 30 (New South Wales Act 1823) – 3 Acts
  • 24/09/1827 – transmitting Acts of Legislative Council Nos 1, 2, 3 and 4, with observations on same
  • 03/10/1827 – transmitting Acts 1 – 5 of Legislative Council
  • 01/02/1830 – transmitting copies of all VDL Acts of Council
  • 16/04/1830 –  transmitting copies of 14 new Acts of Legislative Council

It appears that on 1 February 1830 copies of the 12 Acts previously transmitted were sent again. With 14 more Acts sent in April 1830, the total number of Acts passed at that time comes to 26. These Acts were ordered to be printed by the House of Commons and presented to Parliament as required by Act 9 Geo IV Chap 83, section 29, (now referred to as Australia Courts Act 1828) titled Copies of the Laws and Ordinances passed by the Governor and Council of the Colony of Van Diemen’s Land. The Tasmanian State Library holds a copy of this  item in the Elephant Stack at TL.E 348.946024 TAS.

No Acts were passed in 1829. In 1830 the Legislative Council passed a total of 20 Acts. Manuscript copies of 14 of these Acts have already been transferred to Archives, and the remaining six Acts can be viewed in manuscript form at Tasmania: Acts – Manuscript. Only one more Act was published (in 1831) before the Supreme Court of Tasmania collection begins.  2 Will IV No 1 – Administration of Justice in the Supreme Court of Van Diemen’s Land can also be viewed at the above link, although not in manuscript form. The copy transmitted to the Colonial Office was a printed version.

Acts identified as missing from the Supreme Court collection are listed below:

  • 5 Will IV No 10 and 6 Will IV No 9 are both Appropriation Acts which would have expired at the end of the financial year. Manuscript copies of both Acts can be viewed in the Australian Joint Copying Project Collection for the period 1 January 1834 to 31 December 1837.

  • 6 Will IV No 3 was an Act to correct two clerical errors in 6 Will IV No 2, Courts of General Sessions and punishment and control of Transported and Other Offenders which had been passed on 4 August 1835. The amending Act (No 3) was passed on 19 August and both Acts published in the Gazette on 20 August 1835. The principal Act, No 2, now included the amendments made by the amending Act, but was still  shown as being passed on 4 August. A check of the manuscript copy of  Act No 2 in the Supreme Court collection shows that the corrections were not made to this copy. There is no copy of Act No 3, in the Supreme Court Collection, although there is one (very poor quality) in manuscript form, created by the Australian Joint Copying Project. Strangely there is no copy of Act No 2 in the AJCP Collection. In summary an amendment has been incorporated into the principal Act No 2 in the Gazette, while the clerical errors identified in Act No 3 have not been made to the original manuscript version. In addition, there is no manuscript version of amending Act No 3 in the Supreme Court Collection.

  • Neither Act No 31/1962 (Amending the Guest House Registration Act) nor Act No 31/1963 (amending the Probation of Offenders Act) have been located.

  • After its receipt by the Registrar, Act No 55/2005 was listed in the Consignment List as:

2005 No 55 Taxation Legislation (Miscellaneous Amendments) Act 2005

The Act had received the Royal Assent on 9 December 2005, and was then forwarded to the Registrar, and duly signed as being received into the records of the Court. When all the entries in the Consignment List were checked against the Acts in the Archive Boxes, the physical copy of Act 55/2005 was missing. The reason was that the Legislative Council had requested the Registrar to return the Act as invalidly made and making revoked.

No other request for the return of an Act had ever been received by the Court. When Acts were disallowed either by the Queen, the Judges or the Tasmanian Parliament, the physical copy remained in the records of the  Supreme Court.

An enquiry to the Office of Parliamentary Counsel provided the following explanation:

There is no Act No 55 of 2005. The Governor cancelled his signature by which he purported to assent to Bill No 74 of 2005.

Contrary to the advice given to the Governor, the Bill had not passed both Houses of Parliament, so the assent given by the Governor on 9 December 2005 had no effect in law. Notice of cancellation was published in Gazette 18 January 2006, p 51.

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Manuscript copies of VDL Acts – 1830-1851

In 1945 the National Library of Australia and Archive repositories in the United Kingdom and Ireland began a collaborative project to copy historical records relating to Australia, New Zealand and the Pacific. Microfilming commenced in 1948, continuing until the Project was completed in 1993. The date range of records now available through the Australian Joint Copying Project (AJCP) is 1560 to 1984. The collection contains 7.5 million records held on 10,419 reels of 35mm microfilm and is divided into two main sections: PRO (Public Records Office and M (Miscellaneous) Series. These records are now available online.

See the AJCP website for a comprehensive account of how to use and access its content.

The AJCP is relevant to the Tasmanian Supreme Court Legislation Archiving Project because it provides access to copies of the original manuscript Acts of the Legislative Council in Van Diemen’s Land from 1830 to 1851. These copies were sent to the Colonial Office by the Lieutenant Governors of the Colony to ensure the legislation of the Colony was not repugnant to the laws of England. There is no indication that the AJCP knew that the original manuscripts were part of the records of the Supreme Court of Tasmania, under the terms of the Acts Custody Act 1858 (Tas). The importance of the original copies of all Tasmanian legislation (both manuscript and printed), that have received Royal Assent by being signed by the Governor, replicates the procedures of the UK parliament whereby members could request to see the original Act to check the accuracy of the wording in a particular law.

There are seven collection files of VDL legislation: 1830-1834 1834-1837 1838-1839 1840-1841 1842-1845 1846-1848 1849-1851. You can use the Browse this Collection button to bring up thumbnails of single pages and use the Next and Previous links to move either forward or backward through each collection. The quality of images varies but selecting Full Screen mode or the Zoom button allows you to increase the size of each image.

Links are also available to manuscript copies of the early legislation of New South Wales and Western Australian on Acts, Ordinances and Proclamations from the Colonies. There is also a link on this page to a Register of Acts for Australian colonies, New Zealand, Auckland Islands, Fiji and British New Guinea (Papua) and the printed copies of the ten Acts of the Federal Council of Australasia.

While examining the original manuscripts of Acts from 1830-1851 twelve Acts were identified as being very difficult to read. As the collection has had minimal exposure to light, which can cause fading, it is thought that the problem may be poor quality ink, particularly as there are instances in the correspondence from the Colonial Office to the administration in Van Diemen’s Land where complaints are made about the readability of ink in official dispatches. A random check to compare the readability of some of the twelve problem Acts, held in Tasmania, with the same Acts in the AJCP Collection indicates their digital images can, at times, be easier to read than the original Acts. This could be useful if, in the future, it is decided to digitise the original manuscript copies of the Acts.

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Bushrangers – 1815

While Lieutenant Governor George Arthur has the dubious reputation for engaging in the longest period of martial law in Australia, from late 1828 to the end of 1831, this was not the first instance of the Island being subjected to a period of direct military control and the suspension of many civil activities.

Arthur had proclaimed martial law to try to resolve the growing hostilities between the aboriginals and settlers about land use. Some 14 years earlier Lieutenant Governor Thomas Davey had issued a proclamation to treat the aborigines kindly. However, as the settlement expanded, the treatment of aborigines by settlers, convicts and bushrangers did result in some acts of retaliation. This did not concern Davey overmuch, his main concern being the escalation of bushranging.

As Van Diemen’s Land was still part of the Colony of New South Wales, Davey requested increased military protection from Lachlan Macquarie the Governor-in-Chief, but this appeal went unanswered. In 1814 Macquarie did act, promising to pardon bushrangers who surrendered within six months. Not surprisingly this was generally seen as an opportunity to continue their raiding activities for most of the amnesty period before ‘coming in’. Some of those who did surrender later returned to their old ways.

With no additional military forces, and no local criminal court, Davey resorted to declaring martial law in 1815, even though being advised by Edward Abbott that he lacked the authority to do so. With martial law in force the military were able to punish individuals as they saw fit, trying captured bushrangers by court martial. Several were executed before Governor Macquarie reacted by revoking martial law after six months.

The six months of martial law impacted the civilian population by:

  • The trade in kangaroo skins being banned
  • Curfews being imposed
  • Licensed houses closing early
  • The limitation of small boat movements

The end of martial law allowed Edward Abbott to finally take up his position as Deputy Judge Advocate in Van Diemen’s Land. He had opposed the imposition of martial law, arguing that it was incompatible with holding a court under civil law. He did, however, serve on several courts-martial during the six months of military rule.

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Printing and Numbering of Orders from Collins to Arthur

Prior to Van Diemen’s becoming an independent colony on 3 December 1825, a succession of Lieutenant Governors had administered the Island largely through the issue of General and Garrison Orders. As the names suggest Garrison Orders applied to the military and General Orders to civilians, including convicts. David Collins, first Lieutenant Governor, brought a small hand press with him which was used to print copies of the Orders which were headed by the Royal Coat of Arms and placed on an Order Board for the whole settlement to see.

The Mitchell Library in Sydney holds a copy of the General and Garrison orders issued by Collins for the years 1803-1808. The introduction asserts that the 355 pages of the volume “contains a very interesting and authentic account of the first settlement in Port Phillip … and Risdon and Hobart Town”. The following examples from the Subject Index of General Orders show the minute detail of the day-to-day concerns in governing the settlement:

Hogs – running loose to be sold to defray damages committed

Huts, persons occupying them are to keep the Road in front thereof clean

Kangooroo not to be received [in the stores] in a damagd or putrid state

Night Watch – not to interfere with Military

Swans – not to be destroyed witht. Permissn

The Subject Index is followed by the full text of each Order. The handwritten Orders do not appear to have been numbered, and are identified by the date issued and subject of each Order.

The first book printed in Van Diemen’s Land appears to be a 36-page compilation of Orders and Proclamations issued during the first year of Lieutenant Governor Thomas Davey’ tenure 1813-1814

It is not clear if this was an official government publication or a commercial venture by George Clark who appears to have been doing the work of a government printer, though there is no formal record of his appointment. By the time Lieutenant Governor Sorell arrives to take over from Davey, official Government Orders and Notices were being published in the Hobart Town Gazette.

In the main vice-regal General Orders were taken to be valid law-making acts, enforceable by magistrates but by 1820 it was becoming evident that some General Orders were open to challenge in the New South Wales Supreme Court because of doubts about the legality of certain colonial powers, particularly in the area of raising tax revenue.

Sorell was the last Lieutenant Governor of Van Diemen’s Land who had to rely solely on General Orders to govern the civilian and convict population.  When Colonel George Arthur arrived in 1824 to succeed Sorell as Lieutenant Governor, he too could only make General Orders but by the end of 1825 Van Diemen’s Land had become independent from New South Wales, with an Executive Council to advise and a Legislative Council to legislate.

Arthur now had almost unlimited power to make laws for the new Colony, with both councils prepared to rubber-stamp his policies and legislation. However, he did not go into a frenzy of law making, with just 26 Acts passed from 1826-1830, an average of five a year. In the ten years from 1826 to 1836, 88 statutes were passed compared with 136 in six years under his successor Sir John Franklin. 

Where possible Arthur still preferred to continue the practice of issuing General Orders to regulate colonial affairs.  All Acts passed by the Legislative Council could be disallowed by the Queen, whereas General Orders were not subjected to such scrutiny.

The numbering system for statutes enacted in by the Legislative Council in Van Diemen’s Land from 1826 to 1852 followed the convention used by the UK Parliament, by using regnal years.

The first Act to be passed was:

An Act for the Summary Punishment of Disorderly Conduct in Any Offender in the Service of Government or of Any Inhabitant of New South Wales or Van Diemen’s Land (7 Geo IV, No 1).

King George IV had become King on 29 January 1820, thus the first year of his reign started on 29 January 1820 and ended on 28 January 1821, which was expressed as 1 Geo IV. On 29 January 1821, the regnal year becomes 2 Geo IV, and so on until we get to 7 Geo IV which began on 29 January 1826 and ended on 28 January 1827. As the Act was passed in August 1826 its citation is 7 Geo IV, followed by the No 1 (since it was the first Act of this regnal year) – hence 7 Geo IV, No 1.

Some citations can be even more complicated – See Regnal Years of English Monarchs.

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Thomas Bigge’s view of education in Van Diemen’s Land

Thomas Bigge’s view of education in Van Diemen’s LandDraft

In 1785 Britain had to face the dilemma of what to do with the convicts it had been sending to the American colonies from 1718 to 1785. It is estimated that over 50,000 criminals were shipped to America during this period, in order to alleviate the overcrowding in British gaols. But the American War of Independence put an end to this convenient disposal of undesirables, and as a result the Colony of New South Wales was established as a place of penal punishment and exile for British criminals.

By 1812, when Lord Bathurst became Secretary of State for War and the Colonies, questions were beginning to be raised about the effectiveness of transportation being a sufficient deterrent to criminal activity. In fact, there was a growing suspicion by officials in the government that there was a widespread view that being a convict in New South Wales was better than being destitute in England.

Under pressure to make a decision on New South Wales’ future as a penal colony, Lord Bathurst appointed Thomas Bigge to head a Commission of Inquiry in 1819, The commission sets out the extent of Bigge’s task:

 We … do give you full power and Authority to examine into all the Laws Regulations and Usages of the Settlements … and every other Matter or Thing in any way connected with the Administration of the Civil Government, the Superintendence and the Reform of the Convicts, the State of the Judicial, Civil and Ecclesiastical Establishments, Revenues, Trade and internal Resources thereof and to report to Us the Information, which You shall collect together, with your opinion thereupon.

Notwithstanding the wide-ranging powers bestowed on Bigge, Bathurst followed this up in a letter reinforcing the point that transportation to New South Wales was intended as a severe punishment, applied to various crimes; and as such must be rendered an object of real terror to all classes of the community. The sub-text of this communication could be read as the British government having concerns about paying for criminals to have the opportunity for a better life overseas. During the early colonial years in Australian of the Home Office proved to be quite adept in identifying and shifting financial responsibility for the convict population from London to the colonies.

Bigge did undertake a very thorough Inquiry, which included the state of education in the Colony (including the dependency of Van Diemen’s Land). In the first half of 1820 the Commissioner and his Secretary travelled to the Island to gather evidence on the administration of the dependency, which included an examination on the state of education.

The chief witnesses to give evidence to the Inquiry were the Rev Robert Knopwood in the south and the Rev John Youl in the north. Robert Knopwood appeared before the Commissioner in Hobart Town on 3 April 1820 to answer questions about the school system:

Q.- Are the schools of the settlement under your superintendence?

A.- They are in great measure, and I give a monthly return to the Lieutenant Governor. During the interval I generally visit the schools.

Q.- How many schools are there in Hobart Town?

A.- There were four lately, but one has been reduced on account of the misconduct of one of the masters. There are likewise two girls’ schools.

Q.- How are the schoolmasters and mistresses paid?

A.- They are paid a salary from the Colonial Fund, and they likewise receive a certain sum from the parents of the children, some 1s. and some 1s.6d. per week. Fitzgerald is the principal schoolmaster in Hobart Town and has kept a school since the year 1807. He receives £25 per annum from the police fund and a government man on the store, and in consideration of that, he teaches the children of the poor persons gratis. Mrs Fitzgerald has £15 per annum and one government man on the store. The schoolmasters at Pittwater and Clarence Plains are paid £20 per annum each from the Colonial funds.

Q.- Do the other two schoolmasters receive pay from the government?

A.- Neither. Both are locally set up.

Q.- What was Mr Fitzgerald when he arrived in the Colony?

A.- He was a convict.

Q.- What was Mrs Fitzgerald?

A.- She was free, I believe. She came from Sydney.

Q.- What are the other schoolmasters?

A.- Stone was a free man and came so lately from England. Donnelly, who has been dismissed, was a convict.

Q.- What was Donnelly dismissed for?

A.- He was fined for receiving stolen goods.

Q.- Did not a Mrs Jones keep a girls’ school here?

A.- She did for about a twelvemonth. She does not keep a school now, but she instructs the children of the Deputy Judge Advocate and I believe of Mr Kemp.

Q.- Has Fitzgerald’s conduct been correct?

A.- Pretty good, though he is sometimes guilty of excess in liquer.

Q.- Do the in habitants and settlers in the country show a desire to send their children to school?

A. They do.

Q.- Do the convicts when they can afford it?

A.- They do, and when they cannot afford it, they apply to me and are admitted gratis.

Q.- Do Catholic parents show any reluctance to have their children taught at these schools?

A.- I have never seen any objection made by them.

Q. What are the children taught at these schools?

A.- Reading, Writing and Arithmetic, and the girls Sewing, Needlework and The RevReading.

Rev John Youl gave evidence in Launceston, on 27 April 1820.

Q.- What is the character of the two persons employed as schoolmasters in Launceston?

A.- Mr Macqueen, the public schoolmaster, is a very dissipated man.

Q.- Is he free and of the Protestant religion?

A.- He is free and I believe he is Protestant. The other school master is William Browne who acts as my clerk, and is a sober and attentive man and has a very good school. He was a prisoner and is now free.

Q.- How are these schoolmasters paid?

A.- Macqueen is paid £15 from the Orphan Fund, and £10 by the Rev Marsden from some institution in England. Browne is paid only by his scholars, and as a clerk he and his wife are on the stores.

Q.- Does Macqueen receive any payment from the scholars?

A.- About sixpence per week.

Q.- Are the schools well provided with books?

A.- They were not until I came (five months previously). They have a good supply now from a Sunday School Society in London.

Q.- Do you observe a disposition amongst the parents in this settlement to have their children educated?

A.- In general there is, but at a distance from this place they are very ignorant.

It is not surprising that the Inquiry’s report on education in Van Diemen’s Land deemed it to be unsatisfactory. The only supervision of schools was by district chaplains, drunkards taught both boys and girls, and none of the teachers had any training.

Suggestions by the Commissioner in his final report included bringing competent teachers to the colony, the establishment of training schools, the introduction of the English monitorial system of Doctor Bell and the establishment of a farm near the school in Hobart Town. His opinions would provide future lieutenant governors with a reference point from which to improve the standard of education in Van Diemen’s Land.

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Lieutenant Governor Sorell revives interest in Public Education

Within months of his arrival in Hobart Town in 1817, Lieutenant Governor William Sorell set about improving the overall status of education in the colony. At that time, no government educational institutions existed though there were a few private schools for the children of those who could afford to pay fees.

He was not the first Lieutenant Governor to express an interest in education in Van Diemen’s Land. Colonel David Collins, who held that office from late 1803 to 1810, had seen the need for orphan schools, particularly for poor and convict children but received no support from the Colonial Office for his plans, even though they were designed to be largely self-supporting by the incorporation of a school farm.

Following Collins’ premature death in1810 his successor, Thomas Davey, did not arrive in Van Diemen’s Land until 1813.  Prior to Davey’s arrival, the first official notice relating to education in Van Diemen’s Land was issued in 1812 by Governor Macquarie, who was obviously keeping an eye on the affairs of the Island whilst it was being administered by a succession of military officers. The notice declares that His Excellency the Governor was:

… pleased to confirm Mr T Fitzgerald as schoolmaster at the settlement in Hobart Town in Van Diemen’s Land. Mr Fitzgerald will be entitled to receive from the Rev Mr Marsden, Principal Chaplain of the territory, the usual salary of £10 sterling allowed by the Society for the propagation of the Gospel in Foreign Parts, which salary is to commence from June last [1811].

In return he was to teach the children of the poor for free.

Following confirmation of Davey’s appointment as the new Lieutenant Governor, the authorities in London had felt it necessary to warn Governor Macquarie about his character and behaviour, and indeed the Governor’s own was assessment of Davey was that he showed  “an extraordinary degree of frivolity and low buffoonery in his manners”. Davey was often referred to as Mad Tom and appears to have been too busy frequenting local taverns in the evenings, and illegally declaring martial law to deal with bushrangers, to give any thought to the lack of schools and teachers in the Colony. Reports of his administration over the period of 1813-1817 point to a steady decline in the moral and social character of the settlement on the banks of the Derwent River.

Sorell, in contrast, proved to be a sound administrator, and sympathetic to educational development. His early correspondence with Macquarie about education received prompt and favourable responses.

Requests for funding for the payment of teachers, and the provision of bibles, prayer books and spelling books met with favourable responses. Requests for government funds to be paid to certain teachers, however, reveal a less than vigorous assessment of what kind of character reference was needed to be a teacher. In the case of Thomas Fitzgerald, who had been dismissed from his position as clerk to the bench of magistrates because he was too much of drunkard, Sorell had no compunction in assuring Macquarie “an increase in salary for this schoolmaster would be well bestowed”. The increase was granted, with no objections raised by Macquarie.

When Sorrel expressed concern about the plight of the children of convicts and poor parents, who had limited access to schools and teachers, Macquarie readily agreed to help, though with the proviso that he would like it to be done without too much government expense. In relation to affording suitable education to this group of children Macquarie had sought advice from the Reverend Mr Cowper, assistant chaplain to the Reverend Marsden in New South Wales which he passed on to Sorell.

Mr Cowper qualified his response by saying firstly that he did not know the clientele of the Van Diemen’s Land charity schools and his response was based on his Sydney experience. He did, however, feel he could comment on the two schools (run by Mr and Mrs Fitzgerald) that Sorell claimed to be inadequate. The Reverend Mr Cowper set out the ideal qualities of a teacher as being to have learning, morality and piety and to be freed from all other duties. Teaching should be an all-consuming occupation with teachers necessarily “devoting their time and talents to the children committed to their trust.” More schools were not the answer, rather more attendance and diligent discipline. Fine words about the desired qualities of teachers, but as in other appointments to colonial positions, Thomas Davey being but one example, there was often a blind eye turned on character failings to achieve the goal of “good riddance”.

It is hard to provide accurate figures on the number of government schools, teachers and pupils during Sorell’s tenure in Van Diemen’s Land, as the compilation of statistics by different officials, using different resources, does not provide a reliable result. However, it is estimated that by 1819 approximately 160 children were receiving education at public schools. By the time Sorell left Van Diemen’s Land in 1824, his aim of making education more widely available had seen the establishment of eleven public schools and a Sunday School, with over 200 pupils in Hobart Town, Launceston and other major areas of settlement.  The position of Superintendent of Schools was created in 1820 and was the first attempt to organise Tasmanian education.

In 1819 Thomas Bigge was instructed by Lord Bathurst, Secretary of State for War and the Colonies, to carry out a wide-ranging commission of inquiry in the colony of New South Wales (including the dependency Van Diemen’s Land). He visited Van Diemen’s Land from 21 February 1820 to 28 May 1820. His report included a thorough examination of the state of education, laying bare the grim reality of government funded schools in Van Diemen’s Land which is discussed in separate post.

In fairness to previous Lieutenant Governors and Sorell, the point needs to be made that prior to 3 December 1825 Van Diemen’s Land was part of New South Wales and where decisions on a whole range of matters were required, they had to seek permission from the Governor of New South Wales. Acting on their own initiative was not open to them.

While an examination of Sorell’s achievements in furthering government funded education reveals only small victories, his efforts paved the way for his successor, Colonel George Arthur who, once Van Diemen’s became a separate colony, had the advantage of not being ham strum by oversight from a distance.

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Early Moves towards Government Support

From the mid-18th century, politicians and reformers were starting to look at ways of broadening access to education to include all levels of society. Derek Gillard’s Education in England: a History Chapter 5 provides a useful timeline, and list of resources, in relation to the evolution of government-funded education in England and the penal colonies of New South Wales and Van Diemen’s Land.

In 1776 Adam Smith, in his book Wealth of Nations, put forth the argument that education is an essential element of a flourishing society and the costs of education should be such that “even a common labourer may afford it”. He expands on this to say:

… for a very small expence the publick can facilitate, can encourage, and can even impose upon almost the whole body of the people, the necessity of acquiring those most essential parts of education …

However when it came to setting up a penal colony in New South Wales in 1788, the ideas of Adam Smith and others were not foremost in the minds of British parliamentarians. Overcrowded gaols and prison hulks were highly visible social problems, and the general view of the ruling classes was that criminals were inherently defective, and incapable of rehabilitation. Solutions were limited: resort to the death penalty, or separate the worst of the prison population from the law-abiding citizens by exiling them.

The victory of the Americans over the British forces in the revolutionary wars ruled out continuing the option of shipping criminals across the Atlantic.  An alternative destination was needed, and New South Wales was identified as being, among other considerations, sufficiently far away to daunt any thoughts of escape by prisoners.

So it should not come as any surprise that Lord Grenville, Secretary of State for the Colonies, included, almost as an afterthought, in his instructions to Captain Arthur Philip, first Governor of the new Colony, that:

a particular spot in or as near as each town as possible to be set apart for the building of a church of 400 acres adjacent thereto allotted for the maintenance of a minister and 200 for a school master.

Box ticked – no further action required on our part! Have a good trip.

Six years later William Wilberforce, writing to Henry Dundas, Principal Secretary of State for Home Affairs, still felt comfortable to say, when referring to education:

… In my last letter I mentioned to you that I had been informed a sufficient number of tolerably qualified instructors for the children, both of the convicts and the natives, that the settlers themselves, would be teachers of the colonial children …

It was left to the Society for the Promotion of the Gospel in Foreign Parts (SPGFP) to secure the appointment of the Rev Richard Johnson as Chaplain for the 1788 expedition, but no one appeared to be responsible for making provision for a school master, even though nearly 40 children made the journey to  New South Wales with their parents (both bond and free). However in the first few years Johnson was kept busy with his clerical and magisterial duties and it was not until 1792 that he found time to write to the SPGFP suggesting that educated convicts could act as teachers, and receive an annual grant of ₤10 from the Society.

However in 1796 Governor Hunter approached the Colonial Office about the need for a public school. The following year saw around 100 children being instructed in the basics of education by convict teachers. and in 1800 and 1802 Governor King took the first small step towards establishing state-sponsored education by opening Male and Female Orphan Schools in the Colony, which provided elementary education, training and residential care within a religious setting, for children who were neglected, abandoned or destitute. It was the beginning of official recognition that government should accept responsibility for the welfare and education of children.

In another development in 1803, Governor King had become alarmed about the presence of French scientific explorers in the region. In particular, he feared that they might have plans to claim the island of Van Diemen’s Land as French territory. He decided that a settlement should be established in Van Diemen’s Land and the island officially claimed as a British territory, which would operate as an extension of the existing penal colony in New South Wales.

In 1803 John Bowen was hastily despatched to plant the British flag in the newly claimed territory, with a smart new uniform to wear and a proclamation to read to any Frenchman who might appear at Risdon Cove on the River Derwent. As it turned out the scientists on board the French ships were too busy collecting specimens along the southern coast of the continent to make the detour further south to hear the words penned by Governor King.

There was no mention of education or schools in Bowen’s instructions, which was not surprising as the new settlement’s primary purpose was to be used as a convenient relocation of the worst convicts in Port Jackson. Neither David Collins (who took over Bowen’s Risdon settlement in the south and moved it to Sullivan’s Cove across the River Derwent) nor William Patterson who established a settlement in the north in 1804, received any specific instructions on providing similar educational opportunities that now existed in New South Wales. Schooling was essentially left to the Lieutenant Governor and the Lieutenant Governor initially left it to the church, which was the institution responsible for rehabilitation of offenders, and by extension, their children. Free settlers were expected to take on the responsibility of teaching their children.

Initially both Collins and Patterson had to focus all their efforts on surviving, with the new settlements often facing starvation as crops failed and additional supplies did not arrive. But by 1806 conditions had begun to improve and Lieutenant Governor Collins went so far as to buy a 100 acre property in Sandy Bay to be used for the education of the colony’s orphans and children of the poor. He proposed that it could be funded in a similar way to the Orphan Schools in Port Jackson by setting up a maintenance fund and farming some of the property. In September 1806 Collins wrote to Lord Castlereagh also requesting:

… that a respectable man and his wife might be sent out in the capacity of schoolmaster and mistress who might be supported from the produce of the farm. I trust, my Lord, that my conduct in this instance will not incur your Lordship’s disapprobation.

No support for this venture was forthcoming (probably reflecting the attitudes expressed in the Parochial Schools Bill debate in the UK Parliament the following year)

In 1807 a bill designed to provide for the education of the poor in England had failed to get parliamentary support, with one speaker going so far as to say:

Giving education to the labouring classes of the poor … would in effect be found to be prejudicial to their morals and happiness; it would teach them to despise their lot in life, instead of making them good servants in agriculture, and other laborious employments to which their ranks in society had destined them.

Debate on the Parochial Schools Bill covered a wide range of opinions about the desirability of state assistance for schools in England, and goes some way to understanding the lack of any specific government policy towards the education of “the lower classes” (including convicts) in Van Diemen’s Land.

So it was left to private enterprise to provide the first schools in Van Diemen’s Land, supporting themselves by charging fees, and in some instances receiving modest funds from philanthropic bodies. Jane Noel, a schoolmistress from Sydney, was probably the first to open a school in Hobart, but little is known about this enterprise except that it only operated for a short time. In 1807 Thomas Fitzgerald, an ex-convict, set up the first regular school in Hobart, combining this with acting as a clerk to the bench of magistrates. In 1810, Thomas Macqueen began teaching in the north of the Island, receiving a grant of ₤10 from the SPGFP. Two years later Thomas Fitzgerald received a similar grant.

Following the sudden death of Lieutenant Governor Collins in 1810 there was a period of three years before the arrival of Thomas Davey to replace Collins. During the period 1810-1817 there were no new educational initiatives in the Island. Schooling continued to be provided by private teachers, and churches ran Sunday schools. It was not until the recall of Davey and the arrival of William Sorrell as his replacement in 1817 that education began to be taken more seriously by the local administration as well as being included in British investigations into the operations of the penal colony of New South Wales and its dependencies. These two topics will be the subject of future posts.

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Sir John Franklin – Explorer

Sir John Franklin was the fifth lieutenant governor of Van Diemen’s Land, replacing Sir George Arthur who had administered the Colony for twelve years from 1824 to 1836. Arthur had no doubts about the nature of his responsibilities: first and foremost the colony was a penal establishment, and a convenient dumping ground for secondary convicted men (ie troublemakers) from the main settlement in Sydney. In 1818 arrivals were further boosted by a steady stream of convicts arriving directly from England and in later years by prisoners from other colonies.

Arthur’s attitude towards the free settlers who were arriving from the UK, lured by the prospect of land grants and convict labour, was that they could not expect to have all the rights of Englishmen “at home”. Not surprisingly he made many enemies who bombarded the UK government with complaints and requests for his removal. It is likely those in the Home Office and Colonial Office who were responsible for affairs in Van Diemen’s Land, thought the island population would be flattered to have the famous Arctic explorer take up duties in Government House, and hopefully his appointment would put an end to the voluminous correspondence of the anti-Arthurites pressing their case for the recall of the Arthur.

And indeed Sir John was welcomed throughout the Colony on his arrival in 1837 but political rivalries dogged him almost immediately, finally resulting in his recall in 1843. It is significant that the inscription (penned by Alfred, Lord Tennyson) on his statue in Franklin Square (the only Lieutenant Governor to be so honoured in the colony):

Not here! The white north hath thy bones;
And thou, Heroic sailor soul,
Art passing on thine happier voyage now
Toward no earthly pole

comes from the memorial in West Minster Abbey, and commemorates his life as an explorer.

Statue of Sir John Franklin, Franklin Square, Hobart

John Franklin was born in Spilsby in Lincolnshire in 1786 and from early childhood had a passion for the sea. This obsession was not viewed favourably by his father but his son was obviously persistent as he was allowed to join the Royal Navy when he was 14 and a year later saw his first active service in the battle of Copenhagen in 1801. Some three months after this action he was chosen to serve as a midshipman under Matthew Flinders, his uncle by marriage, on the Investigator, during its voyage of discovery in New Holland during the years 1801-04. This experience could be said to be life changing.

In his initial address to the Legislative Council in Hobart Sir John reflects on:

… my own early youth, to the period, when I was an eyewitness of the departure for Van Diemen’s land of the first expedition from the sister colony.

Gentlemen, I have much reason to remember that time. I was then a humble partaker in the labours of the lamented Flinders. It was whilst accompanying him in his surveys of the coasts of this and the sister island, that I imbibed that zeal for discovery, which afterwards conducted me into such different climes, which, in fact, determined the whole character of my future life, and which in its consequences has by the divine blessing led to my now addressing you as your President …

The “different climes” referred to, were the waters round the North Pole including the Bering Straits and land expeditions in northern Canada. Franklin commanded three polar expeditions. The first was in 1819 when the British Admiralty sent him to map the north coast of America, starting on the coast east from the mouth of Coppermine River and travelling overland as far as the North-West corner of Hudson Bay. While the voyage had not been well planned and was poorly executed, Franklin had shown extraordinary courage in the face of adversity, which led to his becoming a British hero. In the popular press at the time he became known as “the man who ate his shoes” after it was reported that when food supplies were running low, he survived on a diet of bits of lichen and shoe leather.

His second expedition was more successful and he and his fellow expeditioner, Sir John Richardson, charted over 1,000 miles of the North American coast, as well as collecting valuable information on geology, weather systems and plant species. His final voyages from 1845 to 1847, shortly after his recall as Lieutenant Governor of Van Diemen’s Land, in HMS Erebus and HMS Terror ended in tragedy for him and all his men, becoming the worst disaster in the history of British polar exploration. A full account of Franklin’s voyages can be found on the web page of the Royal Museums Greenwich.

Over the years since the disappearance of the ships and crew, three graves, two skeletons, personal effects, letters and notes, have been recovered and finally in 2014 and 2016 the discovery of the Erebus and Terror perhaps have written the final chapter of an intrepid explorer.

Upon his appointment as the new Lieutenant Governor of Van Diemen’s Land in April 1836, Sir John’s passion for exploration carried over into his civil responsibilities. A H Markham in his book, The Life of Sir John Franklin published in 1891, relates that one of his first acts was:

… to make a requisition of the Imperial Government for means to enable him to carry out a more perfect survey of the channels leading towards the anchorage of Hobart Town. Lieutenant Thomas Burnett was appointed by the Admiralty to carry out this service under the directions of Sir John Franklin …

Burnett travelled with Sir John aboard the Fairlie, arriving in Hobart Town on 6 January 1837. He was given the use of the colonial cutter Vansittart and surveyed the southern entrance to D’Entrecasteaux Channel and the approaches to the Derwent River before his untimely death by drowning on 21 May 1837. A monument in St David’s Park, Hobart, commemorates the Royal Navy surveyor.

Monument to Lieutenant Thomas Burnett, St David’s Park, Hobart

Sir John expands on this event and his plans for more exploration:

… Having been thus led to revert to my earliest professional recollections, let me add, that it was my hope to be enabled to superintend during the first year of my government, the completion of that survey which I had aided in commencing. But you are well aware of the fatal event which for the present has disappointed that anticipation, and which has deprived the Crown of a meritorious officer, and myself of a valued friend. The examination of the coasts, unhappily, must now be deferred, but it is still my wish to cause an exploration to be made at an early period, of those districts in the interior, which are as yet almost unknown. Knowledge of this description is in itself valuable. But the demand for land, and the limited extent and high value of that already discovered, are additional incentives – and powerful ones too – to such an inquiry.

 Throughout his tenure as Lieutenant Governor of Van Diemen’s Land Sir John supported the work of scientists like John Gould and Paweł Edmund Strzelecki. He founded the Tasmanian Natural History Society and subsidised the publication of the Tasmanian Journal of Natural History. He continued to be an advocate of exploration in the Island and, along with Lady Franklin, made an expedition through the wild country between Lake St Clair and the West Coast. Favourable reports on his continued interest in, and support for, exploration from the officers of several scientific and surveying expeditions that visited Van Diemen’s Land during his governorship, would have enhanced his standing with the Admiralty and contributed to his appointment, on his return to England, to lead his final voyage in the quest to discover the North West Passage.







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