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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Proclamation 5 January 1837

Three days before the departure of Lieutenant Governor Arthur from Hobart on 31 October 1836, Lieutenant-Colonel Kenneth Snodgrass arrived from Sydney to take up the position of interim acting lieutenant governor until the arrival of Sir John Franklin. He was sworn in on the same day as Arthur’s departure and administered the colony for two months and six days. According to the historian John West he was well received by the colonists, but his tenure was too brief to leave any impression on colonial affairs.

However his cameo appearance in the pages of the history of Van Diemen’s Land did lead to a day of drama, with undertones of farce, some three months later. Members of the Presbyterian community in Hobart, knowing of the Colonel’s connections to, and sympathies with the Church of Scotland, were able to convince Snodgrass to issue a Proclamation convening a synod of ministers and elders on 5 April 1837, with the aim of establishing a firm foundation for their church in Van Diemen’s Land. The Proclamation was issued on 5 January 1837, and Sir John Franklin arrived on the barque Fairlie the following day to begin his term as Lieutenant Governor.

Fast forward to Wednesday 5 April when the Ministers, Elders and a considerable number of the Presbyterian congregation meet in St Andrew’s Church in compliance with the January Proclamation calling on them to:

Form a Synod and adopt the necessary steps for the future regular government and discipline of the Presbyterian Church in this Colony, in conformity with the rules and discipline of the General Assembly of the Church of Scotland.

Following a sermon, delivered by Dr Anderson of Launceston, the meeting was about to commence when Captain Maconochie, Private Secretary to Lieutenant Governor Franklin, advised those present that he had been sent by his Excellency to inform the meeting that there was a technical objection to the constituting of a Synod under the Proclamation issued by Colonel Snodgrass. It was the opinion of the Crown lawyers that the Acting Lieutenant Governor did not have the power to convene a Synod in the Colony without the sanction of the Legislative Council. Therefore it was the request of his Excellency that the meeting should not be constituted as a Synod, under the authority of the January Proclamation.

He then went on to say because of circumstances not under his control (the severe indisposition of the Attorney General) he could not positively declare the meeting was illegal, and disannul it. He asked for one hour’s postponement of their proceedings as he was expecting to receive a document enabling him to speak more decidedly. This request was accompanied by the strongest reassurances of Sir John Franklin’s desire to do everything in his power to favour the interests of the Presbyterian body in the Island, and stated it was more a technical difficulty than any other which required to be overcome.

The favour requested, after an exchange of sentiments between both parties, was positively refused. Scarcely was this done, and a moderator chosen and the meeting about to proceed when a messenger made his appearance with a Proclamation from his Excellency the Lieutenant Governor, which dissolved the meeting.

Captain Maconochie again most politely assured the meeting of the desire of Sir John to promote the interests of their church and of his readiness to receive every suggestion which the members of the Synod could offer in furtherance of this end, even saying that were they to frame an Act themselves in reference to the Presbyterian Church, it would be received, and if on consideration approved by his Excellency and the Legislative Council, passed.

It was, however, argued that promises on paper, were preferable to oral ones, and Captain Maconochie readily agreed to providing a written confirmation of the promises he had made on the part of his Excellency. The reference to “promises on paper” probably arose from the Presbyterians’ less than satisfactory dealings with Lieutenant Governor Arthur.

A Statement by the Provisional Meeting of Presbyterians, published in the True Colonist on 2 June 1837 sets out their reasons for believing the Proclamation issued on 5 January 1837 to be legal and that they were bound to carry out the instructions in that document. They believed that their church and ministers took direction from the General Assembly in Britain and  there was no need for approval by the Legislative Council in the Colony. The advice of the Crown law officers, however, was that the Proclamation of Colonel Snodgrass was illegal because it was not ratified by the Legislative Council.

This incident is little more than a side show to the wider discussion on the development of the relationship between Church and State in Van Diemen’s Land as well as the legislation that laid the foundations for State assistance to religious bodies in the Colony. A future post is planned to explore this topic further.

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English Maritime Explorers

Captain James Cook

Captain James Cook undertook three Pacific voyages during his service with the Royal Navy. The first voyage was a joint venture between the Royal Society and the Admiralty, and its stated aim was to expand the scientific knowledge of the world – an altruistic and worthy cause, reinforced by the name of his ship: the Endeavour. However the Admiralty had also given Cook Secret Instructions, (for his eyes only) which laid out certain tasks he was to perform in order to identify the potential for expanding Britain’s power and prestige in the Pacific.

Cook left Plymouth in August 1768 on the Endeavour, sailing via Madeira, Rio de Janeiro and Tierra del Fuego, to reach Tahiti in April 1769, where he set up a fortified camp in preparation for observing the transit of Venus across the Sun on 3-4 June.

Once this was accomplished, and he had mapped the islands around Tahiti, he set out in August to see if he could find any evidence of Terra Australis Incognita (undiscovered southern land). By October he had headed west, circumnavigating and mapping New Zealand and then sailing up the east coast of New Holland, again charting the coastline. While he would have been aware of Van Diemen’s Land, given the publication of Abel Tasman’s discoveries in the 17th century, he did not go far enough south to include it on his charts.

A year after his return in 1771, the Admiralty sent Cook on his second voyage to resume the search for the Great South Land. He left Plymouth on 13 July 1772 in the Resolution, accompanied by Tobias Furneaux in the Adventure. During 1773 and 1774 both ships criss-crossed the Pacific Ocean in their quest, with the Resolution sailing below the Antarctic Circle three times. At one stage, after becoming separated from the Adventure, Cook did consider sailing north to see whether Van Diemen’s Land was the southernmost tip of New Holland, but the winds were not kind and he sailed east in the hope of reuniting with Furneaux. However, Cook was convinced that the Royal Society’s predictions about possible locations for a great southern land mass to balance the land round the North Pole were baseless, though he did think that there was probably an Antarctic land beyond the ice barriers that prevented his sailing any further south.

Cook’s final and last voyage aboard the Resolution along with Charles Clerke in the Discovery was a further cloak and dagger exercise. The Admiralty was keen to find a passage from the North Pacific to the North Atlantic to provide a shorter sea route for trade between Britain and the Pacific. However they did not want this to become public knowledge, so they announced that the expedition was to return Omai, the first Polynesian to visit Britain, to his homeland in the Pacific.

On his voyage to the Pacific Cook stopped off at Adventure Bay, in Van Diemen’s Land, on 26-29 January 1777, establishing friendly contact with the natives. He left a plaque nailed to a tree, inscribed “Cook 26 Jan” 1777”. For a timeline of Cook’s three voyages see the British Library’s The Voyages of Captain Cook.

Tobias Furneaux

Furneaux, who accompanied Cook on his second voyage in the Adventure became separated from the Resolution in Antarctic waters and set sail for Van Diemen’s Land on his way to a pre-determined rendezvous in New Zealand should the two ships lose contact with one another. He explored much of the south and south east coast of Van Diemen’s Land. His charts are the earliest by an English mariner  but unfortunately contain some errors, some of which were later correct by Cook on his third voyage.

On 9 March 1773 he sighted what was probably South West Cape, and eventually found a good anchorage in Adventure Bay where he stayed for five days, gathering wood, replenishing water and overhauling the ship’s rigging, but made no contact with the natives. Like Cook he sailed north with the intention of proving if Van Diemen’s Land was an island. However, as the winds were unfavourable, he changed course and set sail for New Zealand.

Sketch of Van Diemen’s Land explored by Captain Furneaux

 

William Bligh

William Bligh, who had accompanied Cook on his final voyage, returned to Adventure Bay as Captain of the Bounty in 1788. He saw the trunk of a dead tree, inscribed AD 1773, (a relic of Furneaux’s visit); and planted fruit and plantain trees, vines and a variety of fruit and vegetable seeds in what appeared to be fertile country. Again there was friendly contact with the local natives and he even recognised one whom he had met in 1777. After leaving Adventure Bay and setting course for Tahiti, the crew mutinied in April and put Bligh into an open boat, along with 19 sailors. After a remarkable 3,600-mile voyage to Timor and thence home to England, he was given command of a second expedition with two ships, the Providence and the Assistant; again this was to transplant bread-fruit trees at suitable locations.

Bligh visited Adventure Bay for a third time, anchoring on 9 February 1792 and remaining till the 24 February. They found one apple tree from his previous trip and planted more trees. He almost discovered the Derwent River but Furneaux’s misleading charts sent him to a series of wrongly names places and though his men caught glimpses of the entrance to the Derwent, they thought it was Frederick Henry Bay.

He did eventually sail up the Derwent some 17 years later, after being removed as Governor of New South Wales by the officers of the notorious Rum Corps. He managed to sail to Hobart, where he was out of the reach of the mutineers, and still be able to interfere in the affairs of the Government, as well as becoming a thorn in the side of Lieutenant Governor David Collins.

John Henry Cox

The Wikipedia article paints a picture of a colourful character, an adventurer, a merchant, an opportunist. He flits briefly across the pages of maritime history in Van Diemen’s Land before his death in 1791. On the lookout for possible trade areas, Captain John Henry Fox in his armed brig Mercury, struck land around South West Cape on 3 July 1789. Blown north by a storm he found himself in a sheltered bay on Maria Island which he called Oyster Bay. He and his crew also established friendly relations with the natives and made similar observations on their way of life, as had previous explorers.

John Hayes

Lieutenant John Hayes was an adventurer and trader in the service of the East India Company. After failing to find a cargo of nutmegs in New Guinea he sailed south with two small ships, the Duke of Clarence and the Duchess of Bengal. He arrived in Van Diemen’s Land on 24 April 1793 and stayed to 9 June. While many of his explorations covered areas already charted, he did make his own map of the Southern Extremity of New Holland (see left). He sailed up the river that Admiral Bruni d’Entrecasteaux had named River du Nord as far as New Norfolk. He renamed it the Derwent River as it reminded him of the geographical features of Derwentwater and the Derwent River in the Lakes District of his native Cumberland.

Impressed by an area in the lower reaches of the Derwent, he named it Risdon Cove after William Bellamy Risdon, second officer of the Duke of Clarence. It is likely his favourable account may have influenced Lieutenant John Bowen to choose it for the first European settlement in 1803.

George Bass and Matthew Flinders

It is an interesting fact that all the explorers mentioned so far who visited Van Diemen’s Land, had sailed along the south and south eastern coastlines. None had sailed far enough north or north west to see it was possibly an island and not the southern extremity of New Holland,

However Governor Hunter, of New South Wales, was of the opinion that Van Diemen’s Land was an island and in December 1797 provided George Bass, surgeon and explorer, with a six-oared whaleboat to test his theory. By 18 January 1798, having reached as far as Western Port but being short on provisions, Bass was forced to turn back. While he had failed to pass through the Strait, he was certain that Van Diemen’s Land was an island.

Governor Hunter, eager to follow up the discovery, provided Bass and Lieutenant Matthew Flinders with the sloop Norfolk instructing them to sail through the Strait. Once this was accomplished the pair proceeded to circumnavigate the island. Flinders named two mountains on the west coast after two of Tasman’s ships, the Heemskirk and Zeehan.

 

Flinders and Bass corrected many of the remaining inaccuracies in previous charts for the south and south east, and arrived back in Sydney on 12 January 1799 – a journey of just over three months.

Route taken by Bass and Flinders

English maritime exploration was now complete in the Island. The next phase would be the arrival of Lieutenant John Bowen and Lieutenant Governor David Collins to establish settlements, both free and convict.

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The legal system 1803-1832

Colonial Office Instructions on treatment of natives

From 1788, when the First Fleet arrived in Port Jackson to set up a penal colony for convicts sentenced to transportation, governors and lieutenant governors had quite specific instructions on how they were to interact with the native population.

The draft Instructions issued to Governor Phillip on 25 April 1787 specified that he was:

… to endeavour by every possible means to open an intercourse with the natives and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them; and if any of our subjects shall wantonly destroy them, or give them an unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.

Similar instructions were given to Lieutenant Governor Collins on 7 February 1803 when he sailed for Port Phillip, and then on to Hobart to take over the administration of the newly claimed territory of Van Diemen’s Land from Lieutenant John Bowen.

Lieutenant Governors from Collins to Sorell

The first serious confrontation with the local aborigines was at Risdon Cove on 3 May 1804, when a number of aboriginals were killed by a group soldiers under the command of Lieutenant Moore. The incident was recorded by the Rev Knopwood in his diary and Lieutenant Moore gave a report to Collins who then reported to Governor King about the incident stating “Not having been present myself, I must take it for granted that the measures which were pursued were unavoidable.” It was later established that the aboriginals were simply engaging in a kangaroo hunt to provide themselves with food. It would seem no action was taken against the solders.

Following this early confrontation, both Collins, in the south, and Paterson, in the north, issued general orders urging the settlers to establish friendly relations with the natives and warning them that the aboriginal inhabitants were under the protection of the British law, and that acts of violence against them would be punished.

Following the death of Collins in 1810, the three subsequent lieutenant governors of Van Diemen’s Land continued to exhort the settlers to behave humanely towards the aborigines. These requests largely fell on deaf ears with Thomas Davey writing:

… he could not have believed that British subjects would have so ignominiously stained the honour of their country and themselves as to have acted in the manner they did towards the aborigines.

and William Sorell frequently found it necessary to issue proclamations because of “cruelties [that] have been perpetrated upon the aborigines repugnant to humanity, and disgraceful to the British character”, declaring:

The Lieutenant-Governor thus publicly declares his determination that if, after the promulgation of this publication, any person or persons shall be charged with killing, firing at, or committing any act of outrage or aggression on the native people, the offender or offenders shall be sent to Port Jackson to take their trial before the Criminal Court.

Such proclamations were, however, of no avail while convict stockmen, shepherds, and bushrangers, themselves the product of a brutal punishment regime, continued in the words of historian James Bonwick, to:

… indulge a demoniacal propensity to torture the defenceless, and an insatiable lust, that heeded not the most pitiable appeals, nor halted in the execution of the most diabolical acts of cruelty to obtain its brutal gratification.

Lieutenant Governor Arthur’s dilemma

Arthur was shocked at the treatment of the aboriginal population by the settlers and his correspondence with the Colonial Office displays a genuine, albeit misguided, zeal to save the souls of the natives. He appears troubled when writing to his superiors on the condition of aboriginal people, declaring it “a fatal error in the first settlement of Van Diemen’s Land that a treaty was not entered into with the Natives” going on to say the Natives should have received compensation for territory surrendered. He claimed it would have been preferable if “adequate laws” had been introduced to protect them “from the very first” and “enforced for their protection”. Hampered as he was by a lack of legal authority to change the legal status of aborigines Arthur did, however, demonstrate more empathy for their suffering than did his mainland counterparts in their dealings with local aboriginal tribes.

Shortly after Arthur’s arrival in Hobart in 1824 a tribe of natives had appealed to him for protection, which was granted. They were able to establish a camp at Kangaroo Point on the Derwent River, living there untroubled for a couple of years, until one of their white neighbours committed a savage murder on a tribe member, which saw the whole tribe to disappear into the wilderness.

Throughout his 12-year administration Arthur was literally between a rock and a hard place. He was sympathetic to the plight of the natives, deploring the violence inflicted upon them, but was also dependent on retaining the good will of the Colonial Office for future career appointments. The Colonial Office, in contrast, reacted like a weather vane shifting position whichever way the wind was blowing: it had no problem with decreeing that aboriginals should be treated equally with white settlers, while at the same time encouraging free grants and then sales of land in the colony, resulting in the reduction of traditional hunting areas for the native population, which in turn put pressure on their food supply, causing an increase in raids on livestock owned by farmers.

Driven by the demands of white settlers, many of whom had the ear of influential officials in England, Arthur devised a scheme that would create two zones in the Island: the settled districts for whites and wilderness areas for natives. Little thought was given to the seasonal tribal journeys that were undertaken by the aboriginals and which in many cases now impinged on the artificial boundaries created by settlers fencing the land that had either been granted or sold to them. In theory aboriginal leaders could apply to landholders for permission to travel through farmland but, as with all of Arthur’s instructions on the humane treatment of the native population, the edict was ignored.

From the mid-1820s hostilities between settlers and aboriginals steadily escalated, until ordinary law was superseded by the declaration of martial law in 1828: this legal environment remained in place until 1832. In the initial proclamation Arthur decreed that, wherever possible, peaceful means had to be used and the use of firearms would only be justified when this failed; Europeans who failed to obey this dictate could be subject to trial and punishment. However despite Arthur’s repeated orders throughout the conflict about the circumstances in which deadly violence could be justified, no colonist was ever charged, or committed for trial, for assaulting or killing an aboriginal person.

In 1829 Arthur agreed with a proposal by George Frankland to use illustrated story boards to help explain that British laws applied equally to black and white.Nailed to trees and given to aboriginal groups they were yet another example of the mindset of colonial authorities: that the authority of British law was universal, and the use of this pictorial material would make that clear to the native inhabitants.

Other efforts by Arthur to resolve the conflict included offering bounties for the capture of aboriginals, the employment of George Augustus Robinson to carry out conciliarity missions and creating an Aborigines Committee to inquire into the origins of the hostility and make recommendations on how to stop the violence and destruction of property.

By the time martial law ceased in January 1832 the aboriginal population was in serious decline in Van Diemen’s Land (probably less than 1,000). Lyndall Ryan, Tasmanian Aborigines (2012), estimates that from November 1823 to August 1834 some 878 aboriginal people were killed and 201 settlers.

Their treatment exposed the hypocrisy of a legal system that could stipulate that the native population were to be regarded as British subjects, entitled to the rights of “freeborn” Englishmen and, at the same time, condone their being hunted down, arbitrarily exiled from their tribal lands, and dispossessed of their traditional way of life. There has been considerable discussion by historians as to whether these events fall within the definition of genocide. Historians like Robert Hughes, and James Boyce believe it was, while Henry Reynolds is of the opinion that Arthur’s focus was on using the land for profitable purposes that would benefit the colony and the British government and not the destruction of the aboriginal people.

Sir George Murray, in a letter to Arthur in 1830, warned that the extinction of the aboriginal race would leave “an indelible stain upon the character of the British Government”. Writing on the treatment of the aborigines in 1832, Arthur also acknowledged that their treatment in the colony was a “stain on the Colonisation of Van Diemen’s Land”.

What seems undeniable is that there were two irreconcilable sets of beliefs about the land. The Australian Museum’s The Land web pages describe the aboriginal relationship with the land as:

Changing it and changing with it. The land was not just soil or rocks or minerals, but a whole environment that sustains and is sustained, by people and culture.

To European eyes the land was terra nullius, belonging to no one, and the soil, the rocks and minerals were commodities to be used, bought and sold. That belief was to prevail until 3 June 1992, when the High Court of Australia decided that terra nullius should not have been applied to Australia. The judgment  recognised that Aboriginal and Torres Strait Islander peoples have rights to the land – rights that existed before the British arrived and can still exist today.

 

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Martial Law – Van Diemen’s Land 1828-1832

Background

Colonial correspondence from the Colonial Office to the first four Lieutenant Governors in Van Diemen’s Land (Collins, Davey, Sorell and Arthur) stressed the need to conciliate with the native population of Van Diemen’s Land. A letter to Collins stated he should

… endeavour by every means in your power to open an intercourse with the Natives, and to conciliate their good will, enjoining all persons under your government to live in amity and kindness with them; and if any person shall exercise any act of violence against them, or shall wantonly give them any interruption in the exercise of their several occupations, you are to cause such offender to be brought to punishment to the degree of their offence.

Sorell is reminded that the “Natives should be considered as under the British government and protection” … “[that he should] punish any ill-treatment of the native people” … “and to support and encourage all measures which may tend to conciliate and civilise them”. The key word is “civilise” which assumes that the English class system is the natural order for society.

Arrival of Governor Arthur

When Lieutenant Governor Arthur arrived in Van Diemen’s Land in 1824, the native population  was considered to be subject to, and protected by, the laws of England. A General Order issued on 4 November 1824 exhorted the citizens of Hobart to manifest the utmost the utmost kindness to a group of visiting natives “until some arrangements can be made by the government for providing for their accommodation, and removing them to some proper establishment”. There is an ominous undertone here pointing to an attitude on the part of the Colonial Office and the Van Diemen’s Land administration that the aboriginals should be taught to take their “proper” place in society and live in equality with its “lower orders”. No account was taken of their deep relationship to the land; indeed it was probably beyond the comprehension of local government officials and settlers because since the 13th century in England arable farming in open fields had been steadily eroded by enclosures that benefited the rich and powerful and created a “working class” that was deprived of a direct relationship with the land. The situation in Van Diemen’s Land (as in most other colonised or settled areas of the time) was that all land was now deemed to belong to the Crown and only available as land grants for military personnel and settlers (both free and emancipist). It was a situation that was not going to end well.

For his first few years in Van Diemen’s Land there is minimal reference by Arthur in his Dispatches to the Secretary of State about problems between settlers and Aboriginals. However tensions were rising and conflict steadily increasing until on 10 January 1828, Arthur felt it necessary to report that he was going to initiate stronger measures.

He explained that on his arrival in 1824 he had found it necessary to issue a Proclamation that any individual found to have committed any criminal act of aggression upon the aboriginals should be prosecuted before the Supreme Court, and that he had instructed magistrates and respectable settlers to use every means to conciliate and protect the native population. While he believed that the Proclamation initially had a positive effect, by 1827 he is reporting that “repeated outrages by aboriginals in the settled districts have led to several petitions by the settlers to free them of these troublesome assailants”. At the same time he acknowledges that the aggravation had originated with the brutal and callous behaviour of settlers and their servants (in particular those employed by the Van Diemen’s Land Company).

While Arthur considered negotiating with the aboriginals, he did not question British sovereignty either in practice or theory. He issued a Proclamation on 19 April 1828 in the Hobart Gazette which stated on the one hand “humanity and natural equity, equally enforce the duty of protecting and civilising the Aboriginal inhabitants”, and on the other, that “The Aborigines wander over extensive tracts of Country, without cultivating, or permanently occupying any portion of it”. On several occasions he laments the lack of any treaty or deed with the aborigines which might have lessened “the injurious consequences which have followed our occupation”.

The April 1828 Proclamation sets out a dual policy of legislating “to restrict the intercourse between the White and Coloured inhabitants” and negotiating “with certain Chiefs of Aboriginal Tribes”. The rationale for this is based on the doctrine of terra nullius” (”no man’s land”), a concept derived from 17th century sources of international law that would remain as part of Australian law until the High Court handed down the Mabo decision 1992, recognising Aboriginal and Torres Strait Islander peoples’ rights, and their unique connection with the land.

Declaration of Martial Law

When there was no decrease in hostilities over the following six months, on 1 November 1828 Arthur issued a further Proclamation declaring:

… I the said Lieutenant Governor, do by these presents declare and proclaim, that and after the date of this my proclamation, and until the cessation of hostilities shall be my me hereafter proclaimed and directed, martial law is and shall continue to be in force against the several black or aboriginal Natives, within the several districts of this island, excepting always … the country extending southward of Mount Wellington, the Tasman Peninsula; the whole of the western and southern parts of this island bounded by a line drawn from Piper’s River to St Patrick’s Head; and the whole of the western and south western part of this island …

The declaration of martial law against the aborigines effectively deprived them of any protections they had under English law. Civilian ‘roving parties’ were employed to aid the military and police, later to be supplemented by volunteers, in rounding up aboriginal people and relocating them to specially designated areas.

Two years on, neither the settlers nor the press were satisfied with the progress of the campaign and agitated for even more drastic measures, finally leading Arthur to issue a direction that all able-bodied male settlers were to join forces with the military and police and create a human cordon to drive all the aboriginal tribes out of the settled districts, with the intention of relocating them on a reserve on the Tasman Peninsula.

This operation, commencing on 7 October 1830 and notable for its cost (₤30,000 paid for by the British Government), resulted in the capture of only two aboriginal males, and the death of two aboriginals over a period of less than two months; it became known as the Black Line. A second line of 50 soldiers and stock keepers quickly followed, killing two natives and a third and final line of 200 soldiers and settlers in the Freycinet District in September 1831 failed to capture anyone.

The prolonged operation, where the aboriginal people had no legal protections and were literally on the run, effectively ended on 31 December 1831 when a group of 26 aboriginals surrendered to George Robinson a government agent, near Lake Echo, Two weeks later in January 1832 Arthur declared that martial law was over. It had been in operation for over three years, the longest period of martial law in Australian history and resulted in further depleting the aboriginal population.

The following extract from a Dispatch from Secretary Sir George Murray to Lieutenant Governor Arthur on 20 February 1830 can be read as a rebuke to the government and settlers of Van Diemen’s Land, as well as an acknowledgement of a policy failure by the British government :

… it is impossible not to contemplate such a result [extinction of the Aboriginal population] of our occupation of the island as one very difficult to be reconciled with feelings of humanity, or even with principles of justice, and sound policy; and the adoption of any line of conduct, having for its avowed, or for its secret object, the extinction of the Native race, could not fail to leave an indelible stain upon the character of the British Government.

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May 1824 – December 1825

Prior to Arthur being appointed as Lieutenant Governor of Van Diemen’s Land in 1823, he had been Superintendent and Commandant in British Honduras for around eight years. Throughout his time in Honduras the territory was under the vice-regency of the Governor of Jamaica, and Arthur found his dependency status quite irksome.

When he arrived in Hobart in May 1824, as the new Lieutenant Governor, Van Diemen’s Land was still a dependency of the Colony of New South Wales despite the New South Wales Act 1823 leaving the way open for it to become a separate colony. Given his experience in Honduras Arthur wanted Van Diemen’s Land to be granted colony status immediately but while the Under Secretary for the Colonies, Wilmot Horton, was sympathetic he thought there were “conclusive reasons” against separation straight away.

Arthur’s powers had been defined in a letter from the Secretary of State, Earl Bathurst, to Governor Brisbane on 28 August 1823. Bathurst did not feel that Van Diemen’s Land was ready for separation because of its status as a penal colony. Consequentially the Lieutenant Governor was to remain subject to the control of the Governor of New South Wales, and answerable to him if he acted in a manner “plainly and unequivocally repugnant to sound policy and calculated to endanger the peace and safety of the settlement.”

So it was that for the first eighteen months of his tenure Arthur remained subject to Sir Thomas Brisbane in Sydney, and had no choice but to implement decisions by Brisbane such as the devaluation of the currency and the abolition of the fixed price for wheat, both actions that Arthur felt would be extremely harmful to the economy of Van Diemen’s Land. He had no appointed body to help him with the administration of his island dependency and no legislative making powers.

However he did have more authority than his predecessor, Lieutenant Governor William Sorell, being able to:

  • Grant land;
  • Administer the Surveyor-General’s Department;
  • Pardon prisoners;
  • Make appointments;
  • Control finances; and
  • Manage public works.

He could not:

  • Suspend officials; or
  • Begin any new undertakings without approval.

Finally, in November 1825, Lieutenant General Ralph Darling arrived in Hobart, with the Order in Council authorising the separation of Van Diemen’s Land from New South Wales, which was read out at an official ceremony on 3 December 1825. Darling had sailed from London with two commissions, one as Governor of New South Wales, and one as Governor of Van Diemen’s Land, though the latter was to be administered by the Lieutenant Governor in Darling’s absence. Darling left Hobart three days later, never to return. Arthur was now in control of the new Colony along with a Legislative Council that could enact laws specific to the needs of the new Colony.

He was still answerable to the Colonial Office but became quite adept at taking advantage of the time it took for correspondence from Van Diemen’s Land to reach England, then to be considered by the appropriate department, for a reply to be drafted and then sent back to the Colony. By the time the reply arrived Arthur had often achieved what he wanted and questionable legislation could even have expired.

 

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June-October 1837

From 1826 to 1948 regnal years were used as part of the numbering system for Van Diemen’s Land/Tasmanian Statutes. A regnal year is a year of the reign of an English sovereign, with the first day of the first year being the date the King or Queen ascended to the throne.

King William IV came to the throne on 26 June 1830, following the death of King George IV on the same date. The King is dead, long live the King. The first year of William’s reign started on 26 June 1830 and ended on 25 June 1831. The citation for this regnal year was 1 Will IV. Thus on 26 June 1831 William begins the second year of his reign and the citation for the regnal year is 2 Will IV. Citations for William’s reign are listed below:

  • 26 June 1830 to 25 June 1831 – 1 Will IV
  • 26 June 1831 to 25 June 1832 – 2 Will IV
  • 26 June 1832 to 25 June 1833 – 3 Will IV
  • 26 June 1833 to 25 June 1834 – 4 Will IV
  • 26 June 1834 to 25 June 1835 – 5 Will IV
  • 26 June 1835 to 25 June 1836 – 6 Will IV
  • 26 June 1836 to 20 June 1837 – 7 Will IV (William died on 20 June 1837)

If William had lived another six days, he would have been into his eighth year as King of England. As he didn’t, there was no regnal year 8 Will IV – except that there was. Three of the Australian colonies, unaware of the death of William and the beginning of Victoria’s reign, continued to pass legislation in the King’s name.

A voyage of up to four months from London to the Australian colonies was not uncommon in the 1830s so it is not surprising that the first news of the death of the King did not reach New South Wales until October 1837.

Prior to this the Legislative Council in Van Diemen’s Land had had quite a busy schedule. In July 1837 they enacted a total of 13 Statutes, with the citations ranging from 8 Will IV No 1 to 8 Will IV No 13. The Council next met in November 1837, switching the monarch in the citation to 1 Vict but keeping the numerical sequence, so the citation for the first Act passed in November was 1 Vict No 14. This can be confusing for researchers, wondering what happened to Statutes Nos 1-13 for the first year of Victoria’s reign.

Both Western Australia and New South Wales also have Acts with 8 Will IV citations.

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Transportation

Two notable features in the 17th and 18th centuries in England were the severity of the criminal justice system (resulting in overcrowded prisons) and the development of overseas colonies (with a consequent demand for labourers). Transportation to “distant lands” was introduced as an alternative punishment to the death penalty as well as being seen to discourage crime by creating fear of being “exiled”. An additional benefit was that it provided a cheap labour force for colonists as well as potentially leading to the rehabilitation and reform of convicts by removing them from their criminal environment in England.

Until 1717 transportation was part of the penal process and not a direct sentencing option. The Transportation Act (long title: An Act for the further preventing Robbery, Burglary, and other Felonies, and for the more effectual Transportation of Felons, and unlawful Exporters of Wool; and for declaring the Law upon some Points relating to Pirates; also referred to as the Felons Act), was introduced into the House of Commons in 1717. It legitimised transportation as a direct sentencing option for judges to transport criminals to the American colonies.

This arrangement was to last for nearly six decades until the outbreak of the American War of Independence led to its suspension in 1776. Transportation of criminals ceased to be a sentencing option in English courts until the Parliament issued Orders in Council on 6 December 1785 (as authorised by the Transportation Act (24 Geo. III c. 56 in 1784), mandating the establishment of a penal colony in New South Wales. Transportation of English criminals resumed in 1787 with the departure of the First Fleet for the Colony of New South Wales, under the command of Governor Arthur Phillip. Nearly 700 of the 1,044 of new arrivals were convicts.

Prior to his departure Phillip had drawn up a detailed memorandum of his plans for the proposed new colony. In one paragraph he wrote: “The laws of this country [England] will of course, be introduced in [New] South Wales, and there is one that I would wish to take place from the moment his Majesty’s forces take possession of the country: That there can be no slavery in a free land, and consequently no slaves.” He was making a clear distinction between slavery where people were “property” to be bought and sold and transportation of convicts who would be “free” at the end of their sentences.

Governor Phillip also received Instructions from King George III “with the advice of his Privy Council” for managing the convicts, granting and cultivating the land and exploring the country. The Aborigines’ lives and livelihoods were to be protected and friendly relations with them encouraged, but the Instructions make no mention of protecting or even recognising their lands. To date, no official copy of these instructions has been located and the information about the contents relies on a manuscript draft in the Public Records Office in London dated 20 April 1787 (CO 201/1ff 29-45v).

Other relevant Imperial legislation setting out the conditions for transportation of convicts to the Australian colonies and defining the powers of governors in dealing with convicts include:

  • The New South Wales Act 1787 (27 Geo III, c 2) is the foundation Act of the legal system of the Australian colonies. It established the first criminal court, the Court of Criminal Jurisdiction, which operated in New South Wales between 1788 and 1823 (including the dependency of Van Diemen’s Land from 1803 to 1823). It ensured that British law landed with the First Fleet in 1788 and that the convict colony had the basis for law enforcement. The Court of Criminal Jurisdiction was established by the first Charter of Justice by way of Letters Patent on 2 April 1787 and was to “proceed in a more summary way than is used in this realm”, by adapting court procedures to the conditions of the new convict colony.
  • The Transportation Act 1790 (30 Geo III c 47), in addition to declaring felons and other offenders should be transported to New South Wales authorised the Governor of a penal colony to remit, absolutely or conditionally, a part or the whole of the sentences of convicts.
  • With the 1784 Transportation Act due to expire in 1824, a new Transportation Act (5 Geo IV c 84) was passed to authorise His Majesty “to appoint any place or places beyond the seas, either within or without Her Majesty’s dominions”, to which offenders so sentenced shall be conveyed; The order for their removal must be given by one of the principal Secretaries of State. The places so appointed are the two Australian colonies of New South Wales, Van Diemen’s Land, and … Norfolk Island. The 1824 Transportation Act gave to the Governor of a penal colony a property in the services of a transported offender for the period of his sentence, and authorised the Governor to assign over such offender to any other person. Debate on the Transportation of Offenders Bill in the UK Parliament on 4 June 1824 gives an insight into the attitudes of English politicians on transportation of convicts at this time.
  • The Australia Courts Act 1828 (9 Geo IV c 83) empowered the Governor to grant a temporary remission of sentence.
  • The Forgery, Abolition of Punishment of Death etc Act 1832 (2 & 3 Will IV c 62) abolished the death penalty for all offences of forgery, except for forging wills and certain powers of attorney. The exception was abolished in 1837.

While the English courts were responsible for sentencing offenders to be transported to the Australian colonies, once convicts arrived in New South Wales and Van Diemen’s Land they were subject to a variety of colonial laws, framed by the local legislatures that had been established by the New South Wales Act 1823 (4 Geo IV c 96).

However the reach of the Colonial Office in London could extend into regulations governing convict treatment and discipline in the colonies. While Lieutenant Governor Arthur agreed that it was necessary to maintain and even increase the “dread” of transportation as a deterrent to crime in England, he felt it necessary to protest in 1833 when the Secretary of State, Edward Stanley, ordered him to send nominated bad offenders to work in irons on their arrival, thus bypassing the normal debarkation procedures for convicts in Hobart. Arthur was able to stall implementation of these orders, raising issues of cost and lack of incentives for reformation, until the orders were cancelled because they were deemed illegal.

In another dispute with the Secretary of State (this time Lord Goderich) Arthur was appalled at the suggestion that all prisoners doing road works should be “ironed”, the rationale of the Colonial Office being that if they weren’t, it reduced the dread of transportation. While such a move was seen as beneficial to English society, for Arthur, the man on the ground, it would seriously interfere with a convict’s incentive to reform. He also had to justify using convict labour for public works, since the Colonial Office thought this another “soft option”. In the end Arthur prevailed.

During Arthur’s time as Lieutenant Governor convicts were a source of labour to build roads, bridges, courthouses, hospitals and other public buildings, to work on government farms, or if educated, to undertake tasks such as record-keeping for the government administration. They were also assigned to be servants for eligible free settlers.

However it was inevitable that, with the steady increase in the numbers of free settlers and labourers arriving in all Australian colonies, agitation would grow for the abolition of transportation and a corresponding move towards representative government. Attitudes were also changing in England.

In 1838 the House of Commons Select Committee on Transportation (Molesworth Report) concluded that transportation had not succeeded in deterring crime; in fact it contributed to moral corruption and was akin to slavery. The Report, along with a barrage of protests from groups such as the Australasian Anti-Transportation League saw the abolition of transportation to New South Wales in 1840 (Order in Council 22 May 1840). Agitation from the citizens of Van Diemen’s continued as they demanded cessation of transportation for their Colony and on 20 May 1851 Sir William Molesworth presented their petitions to the English Parliament.

However transportation to Van Diemen’s Land continued until 1853, when the St Vincent arrived in Hobart with the final cargo of convicts, following a promise by the Colonial Office in February 1853 to cease transportation. From the arrival of the first transport ship in Hobart in 1812, the Indefatigable, to 1853 it is estimated more than 70,000 convicts had been sent to the Colony.

In Van Diemen’s Land a Cessation of Transportation medal was struck in 1853 to celebrate the end of “the hated stain”.

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VDL Statutes 1830 already in TAHO collection

A search in Enrolments of Acts of Council (Series SC202) at the Tasmanian Archives and Heritage Office has identified 14 original copies of VDL Statutes for the year 1830 that have already been transferred to TAHO:

SC202/1/1 – 10 Geo IV No 1 An Act to remove Doubts as to the Validity of Acts or Ordinances in force on the Twenty-eighth day of February One thousand eight hundred and twenty-nine;

SC202/1/5 – 10 Geo IV No 2 An Act to institute Courts or General and Quarter Sessions, and to extend the Authority thereof and of Justices of the Peace in certain Cases;

SC202/1/6 – 10 Geo IV No 3 An Act to institute Courts of Requests;

SC202/1/7 – 10 Geo IV No 4 An Act to regulate the Slaughtering of Sheep and Cattle;

SC202/1/8 – 10 Geo IV No 6 An Act to extend to this Colony certain Acts of Parliament, whereby pecuniary Penalties are inflicted, which are made applicable to some local Purpose, and to facilitate Proceedings of Justices of the Peace in such cases;

SC202/1/9 – 10 Geo IV No 7 An Act for the Institution of Houses of Correction, and for other Purposes relating thereto;

SC202/1/10 – 10 Geo IV No 8 An Act for amending the Laws to prevent the harbouring of Felons or other Offenders, and to restrain their tippling and gambling;

SC202/1/11 – 10 Geo IV No 9 An Act to simplify Proceedings at Law or in Equity, by or against the Directors and Company of the Bank of Van Diemen’s Land;

SC202/1/12 – 10 Geo IV No 11 An Act for establishing Regulations to restrain the Increase of Dogs;

SC202/1/13 – 11 Geo IV No 1 An Act to simplify Proceedings at Law or in Equity, by or against the Directors and Company of the Cornish Bank;

SC202/1/14 – 11 Geo IV No 2 An Act to facilitate the apprehension of felons and other offenders illegally at large;

SC202/1 11 Geo IV No 3 An Act to Regulate then Impounding of Animals for Trespass and for other purposes relating thereto;

SC202/1/15 – 11 Geo IV No 6 An Act to prevent doubts as to the application of the Statutes of Usury;

SC202/1/16 – 11 Geo IV No 7 An Act to provide for the summary discharge in certain cases of persons under committal for Felony and Misdemeanour;

SC202/1/17 – 11 Geo IV No 9 An Act to facilitate the prosecution of Servants for larceny and embezzlement and of persons aiding the escape of felons or offenders under sentence of transportation.

The Description Fields in the records for all these Acts simply say: “No Description Available” which makes searching for specific Acts a time-consuming, and on-going, exercise. The coverage for Enrolments of Acts of Council Series SC202/1 is from 1 January 1830 to 31 December 1851.

Original copies of the following 1830 Acts have not, as yet, been found:

10 Geo IV No 5 An Act extending “An Act for the Relief of His Majesty’s Roman Catholic Subjects” to Van Diemen’s Land;

10 Geo IV No 10 An Act to simplify Proceedings at Law or in Equity, by or against the Directors an Company of the Derwent Bank (Private Act);

11 Geo IV No 4 An Act for the Relief of Certain Insolvent Debtors;

11 Geo IV No 5 An Act to Regulate the Constitution of Juries;

11 Geo IV No 8 An Act for the Regulation of Courts of General Quarter Sessions.

 

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Statutes for the years 1832-1836

In 1832 Lieutenant Governor Arthur was finally able to begin sorting out problems relating to land grants in the Colony. Alfred Stephen had first questioned the validity of land titles in 1828 pointing out that all grants in New South Wales and Van Diemen’s Land had not been made in proper form (being in the name of the governors rather than in the name of the sovereign) and further research showed extensive land jobbery and wilful violations of conditions of grants. In January 1832 Arthur finally received a Royal Warrant from London giving him authority to begin the process of investigating all contested land grants, and on 31 January 1832 he published an Executive Act in the Gazette setting out the proposed arrangements for fixing grants or instruments of title, which provided that:

A new grant or lease will, upon application through the Surveyor General be immediately issued in the proper form without charge of any kind except for five shillings being the sum fixed by the King’s instructions for enrolment. (A copy of this Proclamation is available at the Tasmanian Archives at CS055/1/22 in the 1832 volume of Proclamations, Government Orders and Notices, issued by His Excellency, Colonel George Arthur, Lieutenant Governor of Van Diemen’s Land).

Arthur announced the establishment of a Land Board whose function was to examine claims to Crown grants, including claims by persons who titles were defective. The Board, consisting of the Surveyor-General, George Frankland, and the Superintendent of Government Stock at Ross, James Simpson, was kept busy hearing claims until it was superseded by the Commission of Claims (soon to be referred to as the Caveat Board), established by an Act passed by the Legislative Council on 16 October 1835 (6 Will IV No 11). Arthur appears to have been persuaded that the Land Board did not have enough powers to sort out all the disputed claims. While the new Commission was authorised to take over the Board’s unfinished business, previous decisions of the Board remained valid.

Although the prevailing opinion at this time was that government activities in the public arena should be kept to a minimum Arthur recognised that the postal service was a recognised sphere of public business and in 1832, he set about taking over the existing privately-operated enterprise. By 1834 he had completed the reorganisation of the business, culminating in the Legislative Council passing An Act To Amend And Consolidate The Laws Providing For The Conveyance And Postage Of Letters (4 Will IV, No 18). An article by K A Green “Lieutenant Governor Arthur and the Establishment of the Post Office THRA provides more details on this.

The extent of other public works in the colony was largely confined to what could be achieved with convict labour: wharves, causeways, churches, gaols, hospitals, roads and bridges. Arthur also believed in the importance of clean and impressive buildings. In 1833 he was able to get the Legislative Council to pass a comprehensive Police Act (4 Will IV No 11), based on the provisions of English local statutes, which allowed prosecution of an extensive range of offences designed to make life more comfortable for the citizens of Hobart. It took another two years for the Legislative Council to pass the Water Act (5 Will IV No 14) which aimed to overcome the hygiene problems of contaminated water supplies. The importance of well-run markets was dealt with in 1834 (5 Will IV No 9), and in the same year an Act (5 Will IV No 6) dealing with fencing, and sheep, cattle and horse stealing was passed to assist graziers and large landowners.

During his 12 years as Lieutenant Governor in Van Diemen, Arthur and the Legislative Council passed a wide range of legislation required to effectively govern a colony gradually moving from a largely penal institution with a focus on convict discipline towards a more representative governing body addressing the needs and concerns of free settlers. In addition to the laws referred to above, legislation relating to the press, juries, debtors, commercial and maritime matters, courts and revenue collection all became part of the legal framework of the Colony. Following his recall to the UK Arthur embarked from Hobart on 30 August 1836, leaving the colony in the hands of Lieutenant Colonel Keith Snodgrass until the arrival of Sir John Franklin, the newly appointed Lieutenant Governor, in early January 1837.

For a detailed account of Arthur’s time in Van Diemen’s Land Sir George Arthur, Bart 1794-1854 by A G L Shaw provides a comprehensive account of his time in Van Diemen’s Land from 1824 to 1836. It paints a picture of life in a remote colony on the other side of the world, in another hemisphere, with communications taking up to four months each way (all handwritten on vellum or first class foolscap paper).

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Missing Acts

The Acts Custody Act 1858, passed some three years after the name change for the Colony of Van Diemen’s Land to Tasmania, made provision for the custody of all the Acts of the Legislature of Tasmania. Section 1 of the Act provided that persons having custody of Acts from 1826 to the commencement of the 1858 Act should transmit the same to the Supreme Court where they were to be kept in the records of the Court. The Acts Custody Act went on, in section 2, to stipulate that the Act itself, and all subsequent Acts, were required, within seven days of receiving Royal Assent, or of promulgation of reserved assent, to be transmitted by the Clerk of the Legislative Council to the Supreme Court to be kept within the records of the Court. This legislation made the Supreme Court the custodian of all the official copies of the old Legislative Council Acts as well as those of the new bi-cameral Parliament.

By 2008 It became clear that the Court had neither the space nor the staff to continue to care for these unique documents. Chief Justice Ewan Crawford began discussions with the Department of Premier and Cabinet about legislating to make the Tasmanian Archives and Heritage Office the custodian of all the official copies of Tasmania’s legislation and in mid-2013 the Legislation Publication Act 1996, section 6 was amended to allow the Clerk of the Legislative Council to send all future official copies of the Acts directly to Archives, and for the Court to begin the task of preparing its collection for transfer. A small team of volunteers has been working on this task since 2014, with the end in sight in the first half of 2020.

The Supreme Court of Tasmania currently holds the official copies of the Van Diemen’s Land Legislative Council Acts from 1833-1851, the Colony of Tasmania Acts from 1852-1901, and the State of Tasmania Acts from 1901 to mid-2013. This raises the question: where are the original copies of the Acts from 1826-1832?

From 1 August 1826 to 20 January 1830 (7 Geo IV No 1 – 10 Geo IV No 11) a total of 26 Acts were passed by the Legislative Council. These 26 Acts were gathered together under the heading Copies of the Laws and Ordinances passed by the Governor and Council of the Colony of Van Diemen’s Land 1826-1830 and after being presented to the UK Parliament (as required by UK Act 9 Geo IV, c 83, section 29) they were ordered, by the House of Commons, to be printed on 11 March 1931.

A copy of this publication is available in both the National Library of Australia and the State Library of Tasmania. However this publication is part of the UK parliamentary papers series, not the records of the Supreme Court of Tasmania.

An ongoing search of the Tasmanian Archives series Enrolments of Acts of Council has so far located nine handwritten official copies of the 26 Acts identified in the above paragraph. Seventeen more to go!

From 20 March 1830 to 24 April 1830 (11 Geo IV No 1 – 11 Geo IV No 11) nine more Acts were passed by the Legislative Council. These do not appear to have been presented to the UK Parliament, but six more handwritten official copies for this period have been found in the Enrolment of Acts of Council series at Tasmanian Archives, bringing the number of Acts to be found up to 15.

There was only one Act passed in 1831, An Act for the Effectual Administration of Justice in the Supreme Court of Van Diemen’s Land (2 Will IV No 1) and no official handwritten copy has yet been located. No Acts were made by the Legislative Council in either 1829 or 1832.

Final score: 21 missing out of 11,190 Acts, but the search continues.

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