Lieutenant Governor’s Court Van Diemen’s Land 1815-1823

In July 1812 the House of Commons published the Report of the Select Committee on Transportation; The Committee had been set up to inquire into the effectiveness of sentences of transportation and other matters in the Colony of New South Wales and its Report made significant proposals for reforming the judicial arrangements in the Colony, including the settlements in Van Diemen’s Land, recognising the ‘great inconveniences that are felt … from the want of a Court of Justice’, pointing out:

… the jurisdiction of the Magistrates is all that the inhabitants have to look for their protection against offenders; and for the settlement of civil differences, they have no power within the Colony, of appealing to the law; all causes and great offences are removed for trial at Port Jackson, to an inconvenience and expense too manifest to need any remark; a Judge Advocate is already appointed, and the additional expense to be incurred by the complete formation of a Court, adapted to the male population of that colony would not be great …

It is true that a Judge Advocate has been included on the staff of Lieutenant Governor David Collins when he left England in 1803 to form a settlement ‘on the southern coast of New South Wales to the northward of Basses Streights and on King’s Island, or any other island within the said Streights’ – see transcript of Commission. Collins’s eventual choice for a settlement was on the banks of the Derwent River in Van Diemen’s Land, but the original appointee, Benjamin Barbaud, did not sail with the expedition after being granted permission to delay his departure on account of urgent private business.

In January 1804 Samuel Bate was appointed to replace Barbaud, who had shown no enthusiasm to take up his appointment. When Bate finally arrived in Van Diemen’s Land in May 1806, he did not bring with him any authority to establish a new criminal court similar to the one operating on the mainland. As a result he only ever sat as a magistrate, though continuing to draw a Deputy Judge Advocate’s salary until his dismissal in February 1814, when the Second Charter of Justice established a Lieutenant Governor’s Court under letters patent dated 4 February 1814. The Court was established in the Colony of Van Diemen’s Land with full power and authority to hold plea of and to hear and determine in a summary way all pleas concerning lands, tenements, hereditaments and all manner of interests therein. It considered all pleas of debt, account or other contracts, trespasses and all manner of personal pleas whatsoever, where the sum in dispute or property value did not exceed £50 Sterling.

Edward Abbott was appointed Deputy Judge Advocate of Van Diemen’s Land, but did not assume office until December 1815. In early 1815 Lieutenant Governor Davey had proclaimed martial law to try to deal with the bushranging problem, even though he had no legal power to do so. The new Deputy Judge Advocate had strongly advised Davey not to take this step and when the Lieutenant Governor ignored his advice Abbott felt he could not open a civil court while martial law prevailed, which it did until November 1815.

Abbott regarded his Court as a place of justice and right rather than a court of law or equity. The Court was a court of requests as no appeal mechanism existed to dispute the judgments. 1400 complaints were entered in the first session of the Court, which included disputes from all regions of Van Diemen’s Land. Abbott insisted that northern residents make the journey to Hobart Town so that he might not have the inconvenience of moving the Court to Launceston. He presided as Deputy Judge Advocate of Van Diemen’s Land, until the office was abolished in 1823 with New South Wales and Van Diemen’s Land becoming separate colonies under the New South Wales Act, 1823. The Lieutenant Governor’s Court was replaced by the new Supreme Court of Van Diemen’s Land.

 

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Court of Criminal Jurisdiction 1788-1823

From 1788 to 1823 criminal cases in the Colony of New South Wales were heard in the Court of Criminal Jurisdiction. Established through the First Charter of Justice as a court of record, its powers and functions were regulated by the New South Wales Act 1787. Its members consisted of a Judge Advocate and at least six officers of the armed services, and its judgments were carried out by a Provost Marshall. The composition and procedures of the Court were like those of a Court Martial and there only two sentencing options, death for capital offences and corporal punishment (flogging or close confinement) for all others.

However, despite its military appearance, the Criminal Court was a civil court, applying English criminal law and procedures, as set out in the 1787 Act, but with variations from English methods of trial and indictment to allow for the fact that the Colony was a place where ‘convicts shall be transported’.

The Act laid down that the Court would proceed ‘in a more summary way’ than in England: there would be no trial by jury, the Judge Advocate and the military officers were the sole triers of fact and law, verdicts did not have to be unanimous and there could be no appeal against conviction. However, Governor Phillip and his successors were granted authority to pardon and reprieve prisoners who had received the death penalty.

Apart from a short-lived tribunal on Norfolk Island the Court of Criminal Jurisdiction was the only court in the Colony of New South Wales that could hear serious criminal offences. As the Colony expanded, particularly in the settlements in Van Diemen’ Land from 1803 onwards, the ability of the Criminal Court to provide adequate access for the inhabitants of Van Diemen’s Land to the criminal justice system declined. Witnesses were generally unwilling to undertake the hazardous sea journey to Sydney and as Commissioner Bigge pointed out in his 1823 Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, they also feared the ‘expense, trouble and delay involved in the trip’ and as a result ‘compromises of the worst crimes have taken place for the purpose of avoiding that expense as well as certain ruin that would have followed the absence of the owner from his property’.

In Van Diemen’s Land convicts appeared before Justices of the Peace for all offences except murder, and at times local officials took the law into their own hands: a free woman had a spiked collar fitted to her neck for an alleged infringement, another woman was flogged through Hobart Town for using abusive language, and a magistrate ordered that a blacksmith should be flogged for daring to present his bill.

Examples of corruption, favouritism, excessive punishments and unfair bias can be found throughout the 36 years of the Court’s history. However, while the criminal law, as it was applied in the Colony of New South Wales from 1788 to 1823, appears at times to be particularly brutal, it needs to be acknowledged that it was generally just an extension of the operation of the criminal law in England. Also up to 1816 none of the officials responsible for enforcing the laws were lawyers.

The Court of Criminal Jurisdiction was abolished in 1824, under the provisions of the Third Charter of Justice and the 1823 New South Wales Act

 

Further resourses

Alex Castles, An Australian Legal History, 1982 Sydney Law Book Co

______ Lawless Harvests, 2007 North Melbourne, Australian Scholarly Publishing

Bruce Kercher and Brent Salter Resurrecting our first Superior Courts: reporting the law of Colonial New South Wales

 

A series of links to information about records of the Court of Criminal Jurisdiction 1788-1823, held by the State Archives and Records Authority of New South Wales, points the way towards the location of primary resource material relevant to the Court

Decisions of the superior courts of New South Wales 1788 – 1899 (includes some decisions for Van Diemen’s Land) Search years 1788-1823

Superior Courts of New South Wales (AustLII) Database) Search years 1788-1823

 

 

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Court of Civil Jurisdiction 1788-1814

When the British flag was unfurled at Port Jackson on 26 January 1788, Captain Arthur Phillip proposed toasts to the King, the royal family and the success of the Colony of New South Wales, a penal settlement primarily created to relieve the pressure on overcrowded English gaols. As it was acknowledged that free settlers would be encouraged to migrate at a later date, the authorities in London made provision for a civil judicial system, as well as a criminal court.

The Court of Civil Jurisdiction was created by the First Charter of Justice by Letters Patent dated 2 April 1787. The presiding officer was the Deputy Judge Advocate and he was assisted by two persons appointed by the Governor. It had jurisdiction to hear matters relating to land, houses, debt, contract, trespass as well as common law and equitable cases. It operated from 1788 until it was abolished by the Second Charter of Justice, issued on 14 February 1814.

With the establishment of a settlement in Van Diemen’s Land in 1803, followed by the arrival of Lieutenant Governor David Collins in February 1804 there was an expectation that a similar court would soon be operating in the new dependency of Van Diemen’s Land, along the lines of the court that Collins himself had presided over in New South Wales from 1788 to 1796. A Judge Advocate, Benjamin Barbauld, had been appointed to accompany Collins but did not sail with Collins in the Calcutta when it left Portsmouth in company with the supply ship Ocean on 27 April 1803, bound firstly for Port Phillip (deemed unsuitable for settlement) and then sailing on to the River Derwent in Van Diemen’s Land.

Barbauld had obtained permission to delay his departure on account of urgent, private business. When he showed no inclination in the following months to find passage to Van Diemen’s Land to take up his commission it was eventually cancelled and Samuel Bate was appointed in his stead. When Bate finally arrived in Van Diemen’s Land in 1806 Collins discovered that Bate not been given the necessary authority for presiding in a court in Van Diemen’s Land and could only be used as a magistrate. Despite this, every year from 1803 to 1814 the UK Parliament included a vote for the salary of a Deputy Judge Advocate despite Baubauld never appearing in Van Diemen’s Land and Bate only ever sitting as a magistrate. J M Bennett’s article on ‘The Status and Authority of the Deputy Judge Advocates of New South Wales’ provides a useful summary of the role and responsibilities of this office.

When Governor Macquarie arrived in Port Jackson in 1810 to assume control of the Colony of New South Wales, he initially thought that there were law courts operating in the Van Diemen’s Land. When he found this not to be the case, he made strong representations to London that separate courts of civil and criminal jurisdiction should be set up in the island dependency.

The 1812 Report from the Select Committee on Transportation acknowledged that:

‘… great inconveniences are felt in the Colonies in Van Diemen’s Land, from the want of a Court of Justice. The jurisdiction of the Magistrates is all that the inhabitants have to look to for their protection against offenders; and for the settlement of civil differences, they have no power within the colony of appealing to the law; all causes and great offences are removed for trial at Port Jackson, to an inconvenience and expense too manifest to need any further remark; a Judge Advocate is already appointed, and the additional expense to be incurred, by the completion of a Court, adapted to the male population of the Colony, would not be great’. It was not until 1816 that a civil court opened its doors in Hobart, and eight more years before a criminal court came into being.

In 1814, the Second Charter of Justice did make provision for a Deputy Judge Advocate’s Court in Van Diemen’s Land, but it was two more years before it finally began hearing cases.

The failure of the UK Government to make adequate provisions for a functioning legal system in van Diemen’s Land is hard to understand. As a dependency of New South Wales, the population of the colony supposedly had access to the courts that operated in New South Wales, but both the civil and criminal courts refused to make the journey across Bass Strait, so the only recourse was to make the long and expensive trip to Sydney with the necessary witnesses to prosecute a case in the Sydney courts.

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New South Wales Marine Corps 1788-1791

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

Further information on the Marine Corps can be found in the Australian Dictionary of Biography entries for Arthur Phillip, David Collins and Robert Ross.

Currey, John.  2000,  David Collins : a colonial life, Melbourne University Press Carlton South, Vic, 2000.

Collins, David. 1798, An Account of the English Colony in New South Wales, Volume 1 & Volume 2.

The State Library of Victoria’s Australian colonial forces and family history page provides some useful links to records relating to the Marines.

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Law of Outlawry

In English law an outlaw was someone who had literally been put outside the protection of the law. Outlawry normally occurred because of a criminal or civil action, although the process could occasionally begin with a petition in parliament. Criminal outlawries arose from indictments for treason, rebellion, conspiracy or other serious felonies.

In Van Diemen’s Land Lieutenant Governor Collins mostly relied on General and Garrison Orders to maintain law and order in Hobart Town and outlying areas, but the years 1805-1807 were very difficult for all the inhabitants of both the Derwent and Port Dalrymple settlements, which were on the verge of famine several times during this period. Such was the shortage of food that convicts with dogs and guns were sent into the country to hunt for kangaroos to augment the dwindling supplies of meat.

A life of hunting and living off the land proved to be much more attractive to some of the convicts than returning to the discipline, and often harsh treatment, of their former masters. As a result they took to the woods and set about committing dreadful outrages on the aboriginal population, carrying off women and forcing the men to hunt for them, and terrorising the settlers.

As the depredations of the bands of bushrangers increased, Collins made the decision to invoke the ancient law of outlawry to try to curb this outbreak of lawlessness. On 8 January 1806 he issued an order stating that if seven men, mentioned by name, who had absented themselves from public labour, and were at large in the woods, had not been taken or surrendered themselves by 18 January they would be considered outlaws, and dealt with accordingly. In May 1807 the names of eight more men were notified as having absconded. These measures proved unsuccessful as the bushrangers knew the countryside far better than their pursuers and had friends in the settlements who would supply them with provisions and ammunition, as well as warning them of the proximity of pursuing parties.

In November 1807 Collins made a further attempt to frighten the bushrangers into submission by publishing an order offering the bushrangers the alternatives of amnesty or outlawry:

“Whereas it is become absolutely necessary that some measures should be adopted to guard the well disposed inhabitants of this settlement against the evils which may accrue to them from their existing in the woods of this settlement a set of dangerous miscreants who have for a considerable time been at large therein, the Lt-Governor is hereby pleased to declare that if they will surrender themselves At Hobart Town on or before the 10th day of next month, bringing with them their dogs, arms, ammunition, iron pots, tools and whatever else they may have with them in the woods, he will not proceed against them for the several offences they may have committed from the date of their absconding from the settlement to that of their surrender. But if they are blind enough to their own safety not to listen to this offer of pardon, and are resolved to continue in their nefarious mode of living, he hereby declares that everyone who shall not have surrendered himself as above directed shall be considered as an outlaw and dealt with accordingly.”

This policy initially met with some success with eight prisoners surrendering themselves and being pardoned. However within a few weeks, four of those who surrendered had decamped back into the woods, along with several new absconders. Recognising that leniency was not going to produce any significant result, in March 1808 Collins issued a further proclamation offering rewards of up to ₤50 for the apprehension of some sixteen convicts. While several of the bushrangers were brought in, there was no noticeable abatement in the number of marauders at large in the Colony for many years to come.

Lieutenant Governor Collins died in 1810. When his successor, Lieutenant Governor Thomas Davey arrived in 1813, bushranging was flourishing. Initially Davey requested that Governor Macquarie provide him with more soldiers to help round up the gangs, but Macquarie decided to issue another proclamation offering pardons to those who surrendered voluntarily. If they did not, then they would be treated as outlaws and dealt with accordingly. As was the case with Collins’s similar proclamation in 1808, many of the bushrangers surrendered, obtained immunity, and promptly removed themselves back into the woods to continue their criminal activities.

The law of outlawry had failed to make any significant contribution towards solving the bushranging problem in Van Diemen’s Land.

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Draught Instructions for Governor Phillip 1787

 

The Draught Instructions for Governor Phillip, 25 April 1787 set out the constitutional foundation of the Colony of New South Wales that would apply when Captain Arthur Phillip arrived at Botany Bay in 1878.

The original Instructions that were given to Phillip when he received his Commission as Governor of NSW are missing, and the Draught Instructions are the only known physical record of the original document. It is an extremely rare item held in the Public Records Office in London.

The Draught Instructions designated the territory of New South Wales as including ‘all the islands adjacent in the Pacific Ocean’ and running westward to the 135th meridian, that is, about mid-way through the continent, as illustrated by the map below (though it was not until 1798 that Van Diemen’s Land was shown to be an island, following its circumnavigation by George Bass and Matthew Flinders).

The document is significant in that it established the system of government and political culture upon which the new colony would be founded, and which would be passed on to all the other colonies as they were set up. For further information on the creation of the Australian Colonies see Year Book Australia (page 52).

It provided for the reception of English Law, including common law, equity and statute law, as well as instructions on managing convicts, making land grants and exploring the countryside. Whilst the establishment of friendly relations with Aboriginal peoples, as well as protection of their lives and livelihoods, was also set out in the Instructions, there was no mention of protecting or recognising any form of existing land rights. This assumption, that Australia was ‘terra nullius’ (land belong to no one), was to remain in place for the next 200 years.

When the first white settlement was established in Van Diemen’s Land in 1803, it was part of the Colony of New South Wales and as such subject to the provisions of the Draught Instructions.

 

 

 

 

 

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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.

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