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.
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)