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.

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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