When Captain Arthur Phillip arrived in Botany Bay in January 1788 with the First Fleet, he brought with him the first long-term British military presence to set foot in Australia, the New South Wales Marine Corps (later to be re-named the British Royal Navy Marine Corps). The Corps was responsible for guarding the convicts on the six transports on the outward voyage, and on arrival their instructions were ‘to preserve subordination and regularity in the penal colony of New South Wales’, as well as defending the colony from external attack. They had their own commanding officer, Major Robert Ross, (also Lieutenant Governor of the Colony) but the overriding authority rested with the Governor.
Phillip’s original Commission as Governor of New South Wales was dated 12 October 1887, appointing him as Captain General and Governor in Chief of the new penal colony. This was followed by a further Commission on 2 April 1787, expanding on the nature of his role and responsibilities.
Phillip had been keen for the new settlement to be opened to free settlers once it was established, with the proviso that they would be insulated from the contamination of convicts. He had a vision of a new outpost of empire, possibly along the lines of the Dutch trading posts in south east Asia. But the authorities in Britain were firmly focused on emptying the hulks and prisons of as many offenders as they could. With this in mind, they afforded Phillip, within the limits of his First Instructions (25 April 1787 – no known copy available) and Second Instructions (20 August 1789), absolute power over the convicts, and civil and military officials. He was responsible only to his supervisors in London.
His subordinate officials, both military and civil, were a mixed bag, most of whom did not share his vision and enthusiasm. A notable exception was Captain David Collins, who was commissioned as Deputy Judge Advocate for the new colony on 24 October 1877, and by Admiralty Warrant, Judge Advocate for the New South Wales Marine Corps. Major Ross, in command of the Marine Corps, was quite the opposite, giving Phillip and Collins considerable grief until his return to London in 1792.
The New South Wales Marine Corps was a volunteer unit created by the Royal Navy in 1786, with members to serve a three-year term once they arrived in the penal colony of New South Wales. Once the ships arrived in the colony in January 1788, the Corps was also to be part of the legal system as six naval or military officers were required to sit with the Deputy Judge Advocate in the Criminal Court.
The First Charter of Justice 1786 had made provision for a Court of Judicature for hear criminal cases. The resulting 1787 New South Wales Courts Act specified that ‘a court of criminal jurisdiction … (should have) authority to proceed in a more summary way than is used within this realm according to the known and established laws thereof’. It was essentially a Military Court with the Deputy Judge Advocate serving as both judge and prosecutor and assisted by six military officers. Verdicts did not have to be unanimous, as was required in English criminal courts. A majority of four (out of seven) was enough to establish guilt for most offences, or five in the case of capital offences.
The first sitting of the Criminal Court was in the officers’ mess tent on 11 February 1788, just over two weeks from when convicts and officials had disembarked after a voyage of over eight months. With Collins presiding as president, along with three naval officers and three officers of the marines in full uniform and armed, the court heard its first three cases against convicts. One received 150 lashes, one was confined in irons for a week and one had his punishment quashed by the Governor. Apparently, these sentences were considered to be quite lenient by the convicts and they were encouraged to commit more serious offences. This in turn led to the more severe verdicts at the next sitting of the court on 27 February, with three convicts sentenced to be hanged. One was hanged following the trial and two others were to be hanged the following day, but received pardons at the last minute.
Collins acknowledged that the Criminal Court did resemble a military tribunal in many ways and that it was authorised ‘to proceed in a more summary way than is used within the realms of Great Britain’. With hardly any free men in the Colony there was no possibility of trial by jury, but Collins felt that the punishments handed out by the Court were according to the laws of England ‘as nearly as may be, considering and allowing for the situation and circumstances of the settlement and its inhabitants’.
It had become apparent from the very beginning that Collins’s two commissions placed him in a most unenviable position. There were two judicial codes operating side by side and he presided over both. The magistrates’ court, the civil court and the criminal court dealt with civilians while members of the military were tried by court martial. In addition his civil commission required him to ‘observe and follow’ the orders of the governor or any superior officer ‘according to the rules and discipline of war’.
Then there was the reluctance of the officers of the Marine Corps to sit in the criminal court. It had not been made clear to them, before sailing from Portsmouth, that this would be part of their duties and many were not happy at being required to sit in judgment on civilians. Phillip was able to get their agreement to volunteer when required, but it remained a point of contention, particularly for Major Ross who felt it undermined his authority in the Corps.
In addition to guarding the convicts and being part of the court system the Corps contributed to helping build the fledging colony by their explorations of the land around Sydney for settlement, as well as providing a talent pool of trade skills to supplement convict labour. They are described as being well disciplined and well behaved.
The Admiralty disbanded the Corps in 1791 and most of the Marines returned to England. A few took up the options of either remaining as settlers or joining the new regular Army Unit, the New South Wales Corps, which replaced the Marines.
Resources and further reading
Currey, John. 2000, David Collins : a colonial life, Melbourne University Press Carlton South, Vic, 2000.
The State Library of Victoria’s Australian colonial forces and family history page provides some useful links to records relating to the Marines.