Prelude to the creation of the VDL Supreme Court

From the early 1600s to 1782 Britain was able to send criminals to its colonies in America. However, the War of Independence put an end to that arrangement and the Government found itself in need of an alternative destination to relieve overcrowding  in its prisons. After considering locations in Africa (not far enough away) it turned its attention to New South Wales in the southern hemisphere, where it would be almost impossible for convicts to escape and return home.

It was necessary for any penal colony to have a basic legal system, able to administer British laws. January 1788 saw the first permanent European settlement in New South Wales. When Captain Arthur Phillip, Commander of the First Fleet, landed at Botany Bay, and then sailed up the coast to Port Jackson (considered to be much better site) his authority to claim the whole of the east coast of the continent was set out in an Imperial Act of Parliament (27 Geo III, c2). This included the power of the Governor or Lieutenant Governor of the Colony to convene a Court of Judicature for the trial of offenders. In addition, the King also issued his warrant for a Charter of Justice which allowed for the appointment of Governors and Lieutenant Governors as justices of the peace within all settlements.

The second permanent European settlement, under the command of Lieutenant John Bowen, was in Van Diemen’s Land at Risdon Cove. Governor King had decided there needed to be a permanent British presence in Van Diemen’s Land to deter any aspirations the French expeditions, currently in the area, might have to claiming the Island. While not openly acknowledged, it would also be a convenient destination to which some of the most troublesome convicts in New South Wales could be sent.

It should be noted that this was not the first time Van Diemen’s Land had been claimed by a European country. In 1642 Able Tasman had claimed it for the Netherlands, but no effort had ever been made to follow up the claim by establishing a settlement. See Operation of the First Charter of Justice in Van Diemen’s Land for a more detailed account of the history of the Island prior to 1803.

Bowen arrived in September 1803 with a total of 49 settlers, including convicts, members of the New South Wales Corps and free settlers. There was no way this could be a separate colony; it would remain a dependency of New South Wales for over twenty years, with the administration of the law subject to the jurisdiction of the courts set up in Sydney.

John Bowen’s sketch map of Hobart and the Derwent 1803

The choice of Risdon Cove as the site for Hobart was based on the advice of the explorer George Bass. From a defensive point of view the site had merit but the poor soil and scarce water supply made it unsuitable for a permanent settlement

This arrangement was quickly overtaken in 1804, following the arrival of Colonel David Collins aboard HMS Calcutta. Collins had been commissioned by the British government to be Lieutenant Governor of a new settlement at Port Phillip Bay (in what is now the state of Victoria). Unimpressed by the lack of timber and water Collins sought and received permission from Governor King in New South Wales to relocate to Van Diemen’s land.

Governor King’s approval for Collins to proceed to Van Diemen’s also included a letter of instruction to Bowen to give up the settlement to Collins as the newly appointed Lieutenant Governor of the Island.

After landing at Risdon Cove on 16 February 1804 Collins was told that Bowen was absent, having left his post to take a soldier, charged with aiding convicts to steal stores, to be tried in Port Jackson. This meant that there could be no official handover to Collins until Bowen’s return to the Island. Even when Bowen returned on 10 March the official handover of documents did not happen until 8 May.

Governor King had not been impressed with Bowen’s action, considering it to be too trivial a matter to warrant the Commandant personally accompanying a prisoner to be tried in New South Wales. Collins was also extremely disappointed with the condition of Bowen’s settlement, writing a very unfavourable report on it to Governor King. He quickly decided the settlement should be abandoned and another more suitable site found found. He relocated to Sullivan’s Cove, across the River Derwent, which had a better harbour and was more suitable for a permanent settlement to be called Hobart. These early events were just the beginning of what has been described as a “chaotic legal system” in Van Diemen’s Land.

Sullivan’s Cove, Hobart Town,1804 – UTas ePrints

An additional settlement was set up by Colonel Patterson in the north of the Island at  Port Dalrymple. Both Collins and Patterson reported on all civil and military matters to the Governor in Chief in Sydney. They issued Garrison and General Orders to maintain law and order at the local level and relied on a handful of justices of the peace, sitting as single magistrates or a bench of three, who had the same power as their counterparts in England “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 in Van Diemen’s Land. Serious criminal and civil matters required all parties to travel to new South Wales for their cases to be heard: often a dangerous and expensive undertaking that the authorities and settlers preferred to avoid if possible. This led to VDL Magistrates often dealing with matters that should have been heard in the Court of Criminal Jurisdiction in Port Jackson. For more detail on VDL Magistrates see: Magistrates 1803-1824

From 1804-1812 Van Diemen’s Land was administered as two counties (Buckinghamshire and Cornwall) until the two divisions merged in July 1812. This was largely the result of a visit to the Island by Governor Macquarie in 1811. Not impressed by the irregular streets and temporary buildings in Hobart Town, the new Governor of New South Wales designed a rectangular street grid and ordered all buildings to be constructed of more permanent materials such as brick or stone. His street grid – mapped by surveyor James Meehan – included a large public square which included the land between Elizabeth, Murray and Macquarie Streets and towards Morrison Street. The space was named George’s Square and the intention was it would be the site for a future Church, Court House or Town Hall, a Main Guard and a Saturday Market.

While Macquarie recognised the need for a Court House, the administration of the settlement was floundering, following the death of Lieutenant Governor Collins in 1810, then three years of temporary Commandants more interested in their own affairs than those of the settlement. Depredations by bushrangers were increasing, putting the safety of free settlers at risk, and tensions between the aboriginal inhabitants and farmers were developing. When Lieutenant Governor Thomas Davey finally arrived in 1813, he proved totally incapable of restoring any semblance of law and order in the settlement, and eventually resorted to imposing Martial Law in 1814, against all the legal advice that he did not have the power to so, and even if he did, the bush ranging activities did not warrant such action.

While all this was going on the British Parliament was in the process of revising the legal system in New South Wales. In 1814 the second Charter of Justice of New South Wales created three new courts: the Lieutenant Governor’s Court (to be presided over by a Deputy Judge Advocate) was created specifically for Van Diemen’s Land and the civil and criminal jurisdiction of the New South Wales Supreme Court was extended to the dependency Van Diemen’s Land. However, it was to be another five years before the Supreme Court extended its circuit to include Hobart, with Chief Justice Barron Field presiding over civil cases in early 1819 in a temporary Court House recently fitted up for the occasion. He returned in 1821, when he was accompanied by the Judge Advocate, John Wylde, who opened the first criminal court in a vacant ward in the Colonial Hospital. Wylde would return in 1823 for a further and final sitting of the Supreme Court of New South Wales in Van Diemen’s Land.

Edward Abbott had been commissioned as the second Deputy Judge Advocate of Van Diemen’s Land. He was however the first to be able to constitute the newly established Lieutenant Governor’s Court when the Court opened in December 1815. The original appointee to this position was Samuel Bate, who arrived in Hobart in 1806, but without the official documentation required to set up the Court. He was able to sit as a magistrate, but this did not go well, with Governor Macquarie later describing him as “much addicted to low Company, totally Ignorant of Law, and a Very troublesome, ill-tempered Man”. This new court was the first superior civil court to sit permanently in the settlement and it was an important step in bringing normality to the commercial life of the settlement, even though it could only deal with matters valued up to £50. If the amount exceeded this figure then the parties involved were generally able to agree to split the action in to separate parts, all valued below the legal limit.

In September 1819 John Thomas Bigge arrived in New South Wales with instructions from Lord Bathurst, Secretary of State for War and the Colonies to carry out a wide-ranging commission of inquiry into the state of the colony. In Britain, rising unemployment had caused crime rates to rise, and increasing prisoner numbers had become a burden on the convict transport system.

Bigge toured New South Wales and Van Diemen’s Land between 1819 and 1821. He found that in Van Diemen’s Land there was no surplus convict labour, and those in government employment worked harder and were more strictly disciplined than in New South Wales. The legal dependence on New South Wales was severely felt, and Bigge recommended that Van Diemen’s Land be established as a separate colony; criminal jurisdictions be separated; a criminal court be created; and the powers of the lieutenant-governor in Hobart Town be strengthened. Bigge’s recommendations for Van Diemen’s Land were were reflected in the Imperial Act, 4 Geo IV, c96 which empowered His Majesty, as a temporary measure, to institute a court of judicature in Van Diemen’s Land. The Court would have the same powers as the common law courts (King’s Bench, Common Pleas and Exchequer) in England as well as the Equity Court of Chancery. It was also given ecclesiastical jurisdiction so it could deal with probate and letters of administration. It would be presided over by a single judge.

An Imperial Warrant was issued on 18 August 1823, followed by Royal Letters Patent on 13 October 1823. John Pedder was appointed to be the first Chief Justice and arrived in Hobart in March 1824 bringing with him the third Charter of Justice which provided for the creation of the Supreme Court of Van Diemen’s Land.

In 1823 Lieutenant Governor Sorell had ordered a court to be build but construction did not start until 1824 and was not completed when the new Supreme Court of Van Diemen’s Land sat for the first time on 10 May. The building, however, was temporarily fitted up for the first sitting though it would be another 16 months for the Court House to be completed during which time the Supreme Court sat in temporary accommodation in a house the authorities had purchased and fitted out for the Lieutenant Governor’s Court from 1822 to May 1824. This building was available because once the Supreme Court opened for business, the Lieutenant Governor’s Court ceased operations.

Upcoming posts will provide more details of the careers of individual chief justices and puisne judges in Van Diemen’s Land, the buildings which they occupied, their interpretation of legislation passed by the Legislative Council and the challenges to the independence of the judiciary.

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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