Application of the Second Charter of Justice to Van Diemen’s Land

The Second Charter of Justice maps the first part of the journey of Van Diemen’s Land from being a dependency of the Colony of New South Wales to having its own legislative and judicial systems. The Lieutenant Governor’s Court, presided over by a Deputy Judge Advocate, was the first Court created specifically for Van Diemen’s Land. Prior to this Court opening its doors in 1815, the only judicial officers who heard cases on the Island were magistrates and justices of the peace. Their powers were wide-ranging: ordering corporal punishment or transportation for non-capital offences as well as a range of administrative powers to ensure civilian society operated in an orderly way. An example of this was the Assize of Bread which regulated the price, weight and quality of bread.  

With the growth of the Colony of New South Wales it was inevitable that the original judicial provisions in the First Charter of Justice would be insufficient to provide access to justice for all: free citizens, military personnel, convicts and aboriginals. In 1810 Deputy Judge Advocate Ellis Bent, in a letter to Under-Secretary Cooke, declared that the Criminal Jurisdiction of the Colony was “imperfect in every point of view”. In response to such opinions by Bent and others, the House of Commons set up a Select Committee to inquire into the effectiveness of sentences of transportation and other matters. The resulting Report in 1812 put forward proposals for reforming the Colony’s judicature.

The proposed changes related only to the civil courts and were the subject of Letters Patent, referred to as the Second Charter of Justicein 1814. Gone was the old Court of Civil Jurisdiction and in its place a Supreme Court whose jurisdiction would extend to Van Diemen’s Land. In a development, reminiscent of the Samuel Bate farce, the first Chief Justice, Jeffrey Bent, never presided over any cases, refusing to sit when three ex-convict lawyers, George Crossley, Edward Eagar and George Chartres were the only lawyers available in Sydney to provide legal representation for litigants. It was not until 1817, when Bent was recalled and replaced by Barron Field, that the Supreme Court was at last able to open for business in Sydney. Late in the following year the new Judge sailed to Hobart and held the first sittings of the Supreme Court in Van Diemen’s Land in January and February of 1819.

The establishment of a Lieutenant Governor’s Court in Van Diemen’s Land in December 1815 had also been delayed. The official documentation appointing Edward Abbott as Deputy Judge Advocate arrived after the imposition of martial law by Lieutenant Governor Thomas Davey in April 1815. Davey had taken this step, despite being told by Governor Macquarie that it was illegal, as he attempted to deal with the bushranging problem in areas around Hobart. With military law remaining in place for six months, Abbott was unable to be sworn in until November 1815. The Court finally opened in December 1815, providing the inhabitants of Hobart with a new avenue of legal recourse for those involved in trade and commercial dealings. Even the ₤50 limit was able to be manipulated with litigants splitting larger debts into multiple actions of ₤50 each.

Under the provisions of the Second Charter of Justice the Supreme Court also sat in Hobart in 1819 and 1821 to hear civil matters beyond the scope of the Lieutenant Governor’s Court, and Judge Advocate Wylde conducted criminal hearings in 1821 and 1823. In the criminal sittings in Hobart during February 1821, 116 persons were committed for trial, and 25 were sentenced to death, though only 10 were eventually executed.

Even though Sydney-based judges were now making the effort to hold sittings for civil and criminal matters in Hobart, albeit at two yearly intervals, the citizens of Van Diemen’s Land wanted more independence in conducting the affairs of the Island and were making representations to the Colonial Office to achieve this. In addition both Judge Field and Judge Advocate Wylde were expressing concerns about their ability to provide adequate judicial services to the people of Van   Diemen’s Land, citing distance, cost, and inconvenience as factors contributing to the problem.

The UK government also felt it was time to review again how effective transportation to New South Wales was as a deterrent to crime. In 1819 Lord Bathurst, Secretary of State for the Colonies, appointed John Thomas Bigge as a special commissioner to investigate all aspects of the colonial government: finances, church, judiciary and the convict system. Many of the recommendations in the Bigge Reports would be incorporated into the New South Wales Act 1823 along with the accompanying Third Charter of Justice. In the case of Van Diemen’s Land it provided for legal separation from New South Wales, and the establishment of its own Executive Council and Supreme Court.

About dashea2014

A Law Librarian with extensive experience in general legal and court libraries. Editor of the Australian Law Librarian for 4.5 years (2008-2012) and active member of Law Libraries Tasmania. Special topics - Tasmanian legislation and case law. A passion for maintaining access to print resources.
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