Law and Order 1803-1826

There were two main tools used to enforce law and order in Van Diemen’s Land when the first white settlers and convicts arrived in 1803: justices of the peace who swore an oath to enforce “the Laws and Customs of the Realm and the Statutes made thereof” and the Lieutenant Governor’s power to issue General and Garrison Orders.

Justices were able to deal with a wide range of matters, including:

  • Trying minor criminal offences;
  • Appointing and supervising constables;
  • Dealing with riots and other disturbances;
  • Controlling the use of weights and measures;
  • Determining the price of bread;
  • Regulating the sale of alcohol;
  • Overseeing the conveyance of passengers and goods; and
  • Determining wages and conditions of employment.

The first Lieutenant Governor, David Collins, had the power to issue General and Garrison Orders, the former directed at the general community and the latter at the military. Many of the General Orders were of an administrative nature; advising of official appointments, announcing Church services and holidays and setting out rules for the issue of supplies. Others, however, could be said to have ventured into a form of law-making without the authorisation of the British authorities. Successive Lieutenant Governors certainly viewed the General Orders made by their predecessors as precedents to follow. The above link to the Orders issued by Collins paints a picture of how the fledgling settlement of Hobart Town operated from day to day.

Whilst the principles of British Law applied in Van Diemen’s Land there was no provision for courts or judges in the Island. Matters that were too serious to be dealt with by justices of the peace should have been heard in the courts operating in New South Wales. However, the inhabitants of Van Diemen’s Land made considerable effort not to resort to court action on the mainland; distance was the primary factor but added to this were the hazards of a sea voyage, and the expense involved in arranging for the attendance of offenders and witnesses in the case.

Many crimes that should have resulted in the offenders being sent to Sydney for trial were dealt with locally and often resulted in offenders receiving much harsher punishments than they would have on the mainland. While magistrates were able to order offenders to be put in the stocks or pillories, the main punishment was the lash, even when it was only a minor breach of the rules. Twenty-five to 50 lashes were the norm but in serious cases it could be 500 or more.

When criminal cases were heard in the Sydney courts, and offenders sentenced to be hanged, the Lieutenant Governors in Van Diemen’s Land always wanted the prisoners returned to the Island if possible, for the sentence to be carried out, and the body left on public display.

One criminal activity that beset the settlements early on was the increasing number of escaped convicts who had turned to bushranging. Collins on at least two occasions invoked the ancient British law of outlawry, and in April 1815 Lieutenant Governor Thomas Davey resorted to declaring martial law even though he had no power to do so. Neither of these actions produced any significant reduction in the predations of the bushrangers even though several were executed under the provisions of martial law.

It was not until 1818 that Lieutenant Governor Sorell began to gain some control. The notorious bushranger, Michael Howe, had been clubbed to death, his head cut off and put in a kangaroo skin bag which was then taken to Hobart Town to be put on public display. This, according to Thomas Wells, Secretary to Sorell, “afforded an inconceivable degree of satisfaction”. See Michael Howe: The Last and Worst of the Bushrangers of Van Diemen’s Land for a contemporary account.

The opening of a Lieutenant Governor’s Court in Van Diemen’s Land in 1815 did provide some relief for those involved in commercial disputes, but serious criminal matters remained a problem, even though the NSW Supreme Court made two trips to the Island to hear civil cases locally in 1819 and 1821 and Deputy Judge Advocate Wylde two trips in 1821 and 1823 to hear criminal cases.

The establishment of the Supreme Court in 1824 and the Legislative Council in 1825 saw Van Diemen’s Land become a self-governing colony, not only able to apply appropriate English Law and General Orders, but to create legislation directly relevant to the affairs of the Island.

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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