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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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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Governor’s Court 1814-1823

The Second Charter of Justice abolished the Civil Court of Judicature in the Colony of New South Wales and, by Letters Patent 4 February 1814, established three new civil courts, two in New South Wales and a third in Van Diemen’s Land. The Governor’s Court in New South Wales was comprised of a judge advocate and two other persons, appointed by the Governor; it could, if necessary, also sit with just the judge advocate and one of the Governor’s appointees.

The Court exercised full power and authority to hold plea of and to hear and determine in a summary way all pleas concerning lands, tenements, hereditaments and all interests. It considered all pleas of debt, account or other contracts, trespasses and all personal pleas whatsoever, where the sum in dispute or property value did not exceed £50. Although established in 1814, the Court did not convene until January 1816 owing to the illness and subsequent death of Judge Advocate Bent in November 1815.

Frederick Garling was one of two free solicitors sent to New South Wales to conduct cases before the Criminal Court, and the two new civil courts: the Supreme Court and the Governor’s Court. On 11 December 1815 Governor Macquarie appointed him as a magistrate and the following day commissioned him as Acting Judge Advocate, paving the way for the Governor’s Court to open in January 1816. Garling’s judicial appointment meant that there was now only one free solicitor, William Moore, who could conduct cases before the New South Wales courts, so the Acting Judge Advocate allowed emancipists solicitors to appear on behalf of clients in the Governor’s Court (also in the Criminal Court).

According to Governor Macquarie, Garling carried out his duties as deputy judge advocate ‘with zeal, impartiality and integrity’ until the arrival of Sir John Wylde on 5 October 1816 to assume the office of Judge Advocate in the Governor’s Court. Garling had used rules of court prepared by Ellis Bent, but Commissioner Thomas Bigge described these as ‘more complex than befitted the limited jurisdiction or the nature of the functions of the Governor’s Court’ which, in the main, consisted of the collection of debts. The new Judge Advocate simplified the rules as best he could to take local conditions into account. He also lowered the fees.

Wylde presided over the Governor’s Court until 1823 when it was abolished by Letters Patent pursuant to the New South Wales Act ( 4 Geo. IV, Act No. 96).

Macquarie University provides access to some of the judgments of the Governor’s Court at Decisions of the Superior Courts of New South Wales 1788-1899.

 

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Lieutenant Governor’s Court Van Diemen’s Land 1815-1823

In July 1812 the House of Commons published the Report of the Select Committee on Transportation; The Committee had been set up to inquire into the effectiveness of sentences of transportation and other matters in the Colony of New South Wales and its Report made significant proposals for reforming the judicial arrangements in the Colony, including the settlements in Van Diemen’s Land, recognising the ‘great inconveniences that are felt … from the want of a Court of Justice’, pointing out:

… the jurisdiction of the Magistrates is all that the inhabitants have to look for their protection against offenders; and for the settlement of civil differences, they have no power within the Colony, of appealing to the law; all causes and great offences are removed for trial at Port Jackson, to an inconvenience and expense too manifest to need any remark; a Judge Advocate is already appointed, and the additional expense to be incurred by the complete formation of a Court, adapted to the male population of that colony would not be great …

It is true that a Judge Advocate has been included on the staff of Lieutenant Governor David Collins when he left England in 1803 to form a settlement ‘on the southern coast of New South Wales to the northward of Basses Streights and on King’s Island, or any other island within the said Streights’ – see transcript of Commission. Collins’s eventual choice for a settlement was on the banks of the Derwent River in Van Diemen’s Land, but the original appointee, Benjamin Barbaud, did not sail with the expedition after being granted permission to delay his departure on account of urgent private business.

In January 1804 Samuel Bate was appointed to replace Barbaud, who had shown no enthusiasm to take up his appointment. When Bate finally arrived in Van Diemen’s Land in May 1806, he did not bring with him any authority to establish a new criminal court similar to the one operating on the mainland. As a result he only ever sat as a magistrate, though continuing to draw a Deputy Judge Advocate’s salary until his dismissal in February 1814, when the Second Charter of Justice established a Lieutenant Governor’s Court under letters patent dated 4 February 1814. The Court was established in the Colony of Van Diemen’s Land with full power and authority to hold plea of and to hear and determine in a summary way all pleas concerning lands, tenements, hereditaments and all manner of interests therein. It considered all pleas of debt, account or other contracts, trespasses and all manner of personal pleas whatsoever, where the sum in dispute or property value did not exceed £50 Sterling.

Edward Abbott was appointed Deputy Judge Advocate of Van Diemen’s Land, but did not assume office until December 1815. In early 1815 Lieutenant Governor Davey had proclaimed martial law to try to deal with the bushranging problem, even though he had no legal power to do so. The new Deputy Judge Advocate had strongly advised Davey not to take this step and when the Lieutenant Governor ignored his advice Abbott felt he could not open a civil court while martial law prevailed, which it did until November 1815.

Abbott regarded his Court as a place of justice and right rather than a court of law or equity. The Court was a court of requests as no appeal mechanism existed to dispute the judgments. 1400 complaints were entered in the first session of the Court, which included disputes from all regions of Van Diemen’s Land. Abbott insisted that northern residents make the journey to Hobart Town so that he might not have the inconvenience of moving the Court to Launceston. He presided as Deputy Judge Advocate of Van Diemen’s Land, until the office was abolished in 1823 with New South Wales and Van Diemen’s Land becoming separate colonies under the New South Wales Act, 1823. The Lieutenant Governor’s Court was replaced by the new Supreme Court of Van Diemen’s Land.

 

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Court of Criminal Jurisdiction 1788-1823

From 1788 to 1823 criminal cases in the Colony of New South Wales were heard in the Court of Criminal Jurisdiction. Established through the First Charter of Justice as a court of record, its powers and functions were regulated by the New South Wales Act 1787. Its members consisted of a Judge Advocate and at least six officers of the armed services, and its judgments were carried out by a Provost Marshall. The composition and procedures of the Court were like those of a Court Martial and there only two sentencing options, death for capital offences and corporal punishment (flogging or close confinement) for all others.

However, despite its military appearance, the Criminal Court was a civil court, applying English criminal law and procedures, as set out in the 1787 Act, but with variations from English methods of trial and indictment to allow for the fact that the Colony was a place where ‘convicts shall be transported’.

The Act laid down that the Court would proceed ‘in a more summary way’ than in England: there would be no trial by jury, the Judge Advocate and the military officers were the sole triers of fact and law, verdicts did not have to be unanimous and there could be no appeal against conviction. However, Governor Phillip and his successors were granted authority to pardon and reprieve prisoners who had received the death penalty.

Apart from a short-lived tribunal on Norfolk Island the Court of Criminal Jurisdiction was the only court in the Colony of New South Wales that could hear serious criminal offences. As the Colony expanded, particularly in the settlements in Van Diemen’ Land from 1803 onwards, the ability of the Criminal Court to provide adequate access for the inhabitants of Van Diemen’s Land to the criminal justice system declined. Witnesses were generally unwilling to undertake the hazardous sea journey to Sydney and as Commissioner Bigge pointed out in his 1823 Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, they also feared the ‘expense, trouble and delay involved in the trip’ and as a result ‘compromises of the worst crimes have taken place for the purpose of avoiding that expense as well as certain ruin that would have followed the absence of the owner from his property’.

In Van Diemen’s Land convicts appeared before Justices of the Peace for all offences except murder, and at times local officials took the law into their own hands: a free woman had a spiked collar fitted to her neck for an alleged infringement, another woman was flogged through Hobart Town for using abusive language, and a magistrate ordered that a blacksmith should be flogged for daring to present his bill.

Examples of corruption, favouritism, excessive punishments and unfair bias can be found throughout the 36 years of the Court’s history. However, while the criminal law, as it was applied in the Colony of New South Wales from 1788 to 1823, appears at times to be particularly brutal, it needs to be acknowledged that it was generally just an extension of the operation of the criminal law in England. Also up to 1816 none of the officials responsible for enforcing the laws were lawyers.

The Court of Criminal Jurisdiction was abolished in 1824, under the provisions of the Third Charter of Justice and the 1823 New South Wales Act

 

Further resourses

Alex Castles, An Australian Legal History, 1982 Sydney Law Book Co

______ Lawless Harvests, 2007 North Melbourne, Australian Scholarly Publishing

Bruce Kercher and Brent Salter Resurrecting our first Superior Courts: reporting the law of Colonial New South Wales

 

A series of links to information about records of the Court of Criminal Jurisdiction 1788-1823, held by the State Archives and Records Authority of New South Wales, points the way towards the location of primary resource material relevant to the Court

Decisions of the superior courts of New South Wales 1788 – 1899 (includes some decisions for Van Diemen’s Land) Search years 1788-1823

Superior Courts of New South Wales (AustLII) Database) Search years 1788-1823

 

 

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Court of Civil Jurisdiction 1788-1814

When the British flag was unfurled at Port Jackson on 26 January 1788, Captain Arthur Phillip proposed toasts to the King, the royal family and the success of the Colony of New South Wales, a penal settlement primarily created to relieve the pressure on overcrowded English gaols. As it was acknowledged that free settlers would be encouraged to migrate at a later date, the authorities in London made provision for a civil judicial system, as well as a criminal court.

The Court of Civil Jurisdiction was created by the First Charter of Justice by Letters Patent dated 2 April 1787. The presiding officer was the Deputy Judge Advocate and he was assisted by two persons appointed by the Governor. It had jurisdiction to hear matters relating to land, houses, debt, contract, trespass as well as common law and equitable cases. It operated from 1788 until it was abolished by the Second Charter of Justice, issued on 14 February 1814.

With the establishment of a settlement in Van Diemen’s Land in 1803, followed by the arrival of Lieutenant Governor David Collins in February 1804 there was an expectation that a similar court would soon be operating in the new dependency of Van Diemen’s Land, along the lines of the court that Collins himself had presided over in New South Wales from 1788 to 1796. A Judge Advocate, Benjamin Barbauld, had been appointed to accompany Collins but did not sail with Collins in the Calcutta when it left Portsmouth in company with the supply ship Ocean on 27 April 1803, bound firstly for Port Phillip (deemed unsuitable for settlement) and then sailing on to the River Derwent in Van Diemen’s Land.

Barbauld had obtained permission to delay his departure on account of urgent, private business. When he showed no inclination in the following months to find passage to Van Diemen’s Land to take up his commission it was eventually cancelled and Samuel Bate was appointed in his stead. When Bate finally arrived in Van Diemen’s Land in 1806 Collins discovered that Bate not been given the necessary authority for presiding in a court in Van Diemen’s Land and could only be used as a magistrate. Despite this, every year from 1803 to 1814 the UK Parliament included a vote for the salary of a Deputy Judge Advocate despite Baubauld never appearing in Van Diemen’s Land and Bate only ever sitting as a magistrate. J M Bennett’s article on ‘The Status and Authority of the Deputy Judge Advocates of New South Wales’ provides a useful summary of the role and responsibilities of this office.

When Governor Macquarie arrived in Port Jackson in 1810 to assume control of the Colony of New South Wales, he initially thought that there were law courts operating in the Van Diemen’s Land. When he found this not to be the case, he made strong representations to London that separate courts of civil and criminal jurisdiction should be set up in the island dependency.

The 1812 Report from the Select Committee on Transportation acknowledged that:

‘… great inconveniences are felt in the Colonies in Van Diemen’s Land, from the want of a Court of Justice. The jurisdiction of the Magistrates is all that the inhabitants have to look to for their protection against offenders; and for the settlement of civil differences, they have no power within the colony of appealing to the law; all causes and great offences are removed for trial at Port Jackson, to an inconvenience and expense too manifest to need any further remark; a Judge Advocate is already appointed, and the additional expense to be incurred, by the completion of a Court, adapted to the male population of the Colony, would not be great’. It was not until 1816 that a civil court opened its doors in Hobart, and eight more years before a criminal court came into being.

In 1814, the Second Charter of Justice did make provision for a Deputy Judge Advocate’s Court in Van Diemen’s Land, but it was two more years before it finally began hearing cases.

The failure of the UK Government to make adequate provisions for a functioning legal system in van Diemen’s Land is hard to understand. As a dependency of New South Wales, the population of the colony supposedly had access to the courts that operated in New South Wales, but both the civil and criminal courts refused to make the journey across Bass Strait, so the only recourse was to make the long and expensive trip to Sydney with the necessary witnesses to prosecute a case in the Sydney courts.

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