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.

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May 1824 – December 1825

Prior to Arthur being appointed as Lieutenant Governor of Van Diemen’s Land in 1823, he had been Superintendent and Commandant in British Honduras for around eight years. Throughout his time in Honduras the territory was under the vice-regency of the Governor of Jamaica, and Arthur found his dependency status quite irksome.

When he arrived in Hobart in May 1824, as the new Lieutenant Governor, Van Diemen’s Land was still a dependency of the Colony of New South Wales despite the New South Wales Act 1823 leaving the way open for it to become a separate colony. Given his experience in Honduras Arthur wanted Van Diemen’s Land to be granted colony status immediately but while the Under Secretary for the Colonies, Wilmot Horton, was sympathetic he thought there were “conclusive reasons” against separation straight away.

Arthur’s powers had been defined in a letter from the Secretary of State, Earl Bathurst, to Governor Brisbane on 28 August 1823. Bathurst did not feel that Van Diemen’s Land was ready for separation because of its status as a penal colony. Consequentially the Lieutenant Governor was to remain subject to the control of the Governor of New South Wales, and answerable to him if he acted in a manner “plainly and unequivocally repugnant to sound policy and calculated to endanger the peace and safety of the settlement.”

So it was that for the first eighteen months of his tenure Arthur remained subject to Sir Thomas Brisbane in Sydney, and had no choice but to implement decisions by Brisbane such as the devaluation of the currency and the abolition of the fixed price for wheat, both actions that Arthur felt would be extremely harmful to the economy of Van Diemen’s Land. He had no appointed body to help him with the administration of his island dependency and no legislative making powers.

However he did have more authority than his predecessor, Lieutenant Governor William Sorell, being able to:

  • Grant land;
  • Administer the Surveyor-General’s Department;
  • Pardon prisoners;
  • Make appointments;
  • Control finances; and
  • Manage public works.

He could not:

  • Suspend officials; or
  • Begin any new undertakings without approval.

Finally, in November 1825, Lieutenant General Ralph Darling arrived in Hobart, with the Order in Council authorising the separation of Van Diemen’s Land from New South Wales, which was read out at an official ceremony on 3 December 1825. Darling had sailed from London with two commissions, one as Governor of New South Wales, and one as Governor of Van Diemen’s Land, though the latter was to be administered by the Lieutenant Governor in Darling’s absence. Darling left Hobart three days later, never to return. Arthur was now in control of the new Colony along with a Legislative Council that could enact laws specific to the needs of the new Colony.

He was still answerable to the Colonial Office but became quite adept at taking advantage of the time it took for correspondence from Van Diemen’s Land to reach England, then to be considered by the appropriate department, for a reply to be drafted and then sent back to the Colony. By the time the reply arrived Arthur had often achieved what he wanted and questionable legislation could even have expired.

 

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June-October 1837

From 1826 to 1948 regnal years were used as part of the numbering system for Van Diemen’s Land/Tasmanian Statutes. A regnal year is a year of the reign of an English sovereign, with the first day of the first year being the date the King or Queen ascended to the throne.

King William IV came to the throne on 26 June 1830, following the death of King George IV on the same date. The King is dead, long live the King. The first year of William’s reign started on 26 June 1830 and ended on 25 June 1831. The citation for this regnal year was 1 Will IV. Thus on 26 June 1831 William begins the second year of his reign and the citation for the regnal year is 2 Will IV. Citations for William’s reign are listed below:

  • 26 June 1830 to 25 June 1831 – 1 Will IV
  • 26 June 1831 to 25 June 1832 – 2 Will IV
  • 26 June 1832 to 25 June 1833 – 3 Will IV
  • 26 June 1833 to 25 June 1834 – 4 Will IV
  • 26 June 1834 to 25 June 1835 – 5 Will IV
  • 26 June 1835 to 25 June 1836 – 6 Will IV
  • 26 June 1836 to 20 June 1837 – 7 Will IV (William died on 20 June 1837)

If William had lived another six days, he would have been into his eighth year as King of England. As he didn’t, there was no regnal year 8 Will IV – except that there was. Three of the Australian colonies, unaware of the death of William and the beginning of Victoria’s reign, continued to pass legislation in the King’s name.

A voyage of up to four months from London to the Australian colonies was not uncommon in the 1830s so it is not surprising that the first news of the death of the King did not reach New South Wales until October 1837.

Prior to this the Legislative Council in Van Diemen’s Land had had quite a busy schedule. In July 1837 they enacted a total of 13 Statutes, with the citations ranging from 8 Will IV No 1 to 8 Will IV No 13. The Council next met in November 1837, switching the monarch in the citation to 1 Vict but keeping the numerical sequence, so the citation for the first Act passed in November was 1 Vict No 14. This can be confusing for researchers, wondering what happened to Statutes Nos 1-13 for the first year of Victoria’s reign.

Both Western Australia and New South Wales also have Acts with 8 Will IV citations.

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Transportation

Two notable features in the 17th and 18th centuries in England were the severity of the criminal justice system (resulting in overcrowded prisons) and the development of overseas colonies (with a consequent demand for labourers). Transportation to “distant lands” was introduced as an alternative punishment to the death penalty as well as being seen to discourage crime by creating fear of being “exiled”. An additional benefit was that it provided a cheap labour force for colonists as well as potentially leading to the rehabilitation and reform of convicts by removing them from their criminal environment in England.

Until 1717 transportation was part of the penal process and not a direct sentencing option. The Transportation Act (long title: An Act for the further preventing Robbery, Burglary, and other Felonies, and for the more effectual Transportation of Felons, and unlawful Exporters of Wool; and for declaring the Law upon some Points relating to Pirates; also referred to as the Felons Act), was introduced into the House of Commons in 1717. It legitimised transportation as a direct sentencing option for judges to transport criminals to the American colonies.

This arrangement was to last for nearly six decades until the outbreak of the American War of Independence led to its suspension in 1776. Transportation of criminals ceased to be a sentencing option in English courts until the Parliament issued Orders in Council on 6 December 1785 (as authorised by the Transportation Act (24 Geo. III c. 56 in 1784), mandating the establishment of a penal colony in New South Wales. Transportation of English criminals resumed in 1787 with the departure of the First Fleet for the Colony of New South Wales, under the command of Governor Arthur Phillip. Nearly 700 of the 1,044 of new arrivals were convicts.

Prior to his departure Phillip had drawn up a detailed memorandum of his plans for the proposed new colony. In one paragraph he wrote: “The laws of this country [England] will of course, be introduced in [New] South Wales, and there is one that I would wish to take place from the moment his Majesty’s forces take possession of the country: That there can be no slavery in a free land, and consequently no slaves.” He was making a clear distinction between slavery where people were “property” to be bought and sold and transportation of convicts who would be “free” at the end of their sentences.

Governor Phillip also received Instructions from King George III “with the advice of his Privy Council” for managing the convicts, granting and cultivating the land and exploring the country. The Aborigines’ lives and livelihoods were to be protected and friendly relations with them encouraged, but the Instructions make no mention of protecting or even recognising their lands. To date, no official copy of these instructions has been located and the information about the contents relies on a manuscript draft in the Public Records Office in London dated 20 April 1787 (CO 201/1ff 29-45v).

Other relevant Imperial legislation setting out the conditions for transportation of convicts to the Australian colonies and defining the powers of governors in dealing with convicts include:

  • The New South Wales Act 1787 (27 Geo III, c 2) is the foundation Act of the legal system of the Australian colonies. It established the first criminal court, the Court of Criminal Jurisdiction, which operated in New South Wales between 1788 and 1823 (including the dependency of Van Diemen’s Land from 1803 to 1823). It ensured that British law landed with the First Fleet in 1788 and that the convict colony had the basis for law enforcement. The Court of Criminal Jurisdiction was established by the first Charter of Justice by way of Letters Patent on 2 April 1787 and was to “proceed in a more summary way than is used in this realm”, by adapting court procedures to the conditions of the new convict colony.
  • The Transportation Act 1790 (30 Geo III c 47), in addition to declaring felons and other offenders should be transported to New South Wales authorised the Governor of a penal colony to remit, absolutely or conditionally, a part or the whole of the sentences of convicts.
  • With the 1784 Transportation Act due to expire in 1824, a new Transportation Act (5 Geo IV c 84) was passed to authorise His Majesty “to appoint any place or places beyond the seas, either within or without Her Majesty’s dominions”, to which offenders so sentenced shall be conveyed; The order for their removal must be given by one of the principal Secretaries of State. The places so appointed are the two Australian colonies of New South Wales, Van Diemen’s Land, and … Norfolk Island. The 1824 Transportation Act gave to the Governor of a penal colony a property in the services of a transported offender for the period of his sentence, and authorised the Governor to assign over such offender to any other person. Debate on the Transportation of Offenders Bill in the UK Parliament on 4 June 1824 gives an insight into the attitudes of English politicians on transportation of convicts at this time.
  • The Australia Courts Act 1828 (9 Geo IV c 83) empowered the Governor to grant a temporary remission of sentence.
  • The Forgery, Abolition of Punishment of Death etc Act 1832 (2 & 3 Will IV c 62) abolished the death penalty for all offences of forgery, except for forging wills and certain powers of attorney. The exception was abolished in 1837.

While the English courts were responsible for sentencing offenders to be transported to the Australian colonies, once convicts arrived in New South Wales and Van Diemen’s Land they were subject to a variety of colonial laws, framed by the local legislatures that had been established by the New South Wales Act 1823 (4 Geo IV c 96).

However the reach of the Colonial Office in London could extend into regulations governing convict treatment and discipline in the colonies. While Lieutenant Governor Arthur agreed that it was necessary to maintain and even increase the “dread” of transportation as a deterrent to crime in England, he felt it necessary to protest in 1833 when the Secretary of State, Edward Stanley, ordered him to send nominated bad offenders to work in irons on their arrival, thus bypassing the normal debarkation procedures for convicts in Hobart. Arthur was able to stall implementation of these orders, raising issues of cost and lack of incentives for reformation, until the orders were cancelled because they were deemed illegal.

In another dispute with the Secretary of State (this time Lord Goderich) Arthur was appalled at the suggestion that all prisoners doing road works should be “ironed”, the rationale of the Colonial Office being that if they weren’t, it reduced the dread of transportation. While such a move was seen as beneficial to English society, for Arthur, the man on the ground, it would seriously interfere with a convict’s incentive to reform. He also had to justify using convict labour for public works, since the Colonial Office thought this another “soft option”. In the end Arthur prevailed.

During Arthur’s time as Lieutenant Governor convicts were a source of labour to build roads, bridges, courthouses, hospitals and other public buildings, to work on government farms, or if educated, to undertake tasks such as record-keeping for the government administration. They were also assigned to be servants for eligible free settlers.

However it was inevitable that, with the steady increase in the numbers of free settlers and labourers arriving in all Australian colonies, agitation would grow for the abolition of transportation and a corresponding move towards representative government. Attitudes were also changing in England.

In 1838 the House of Commons Select Committee on Transportation (Molesworth Report) concluded that transportation had not succeeded in deterring crime; in fact it contributed to moral corruption and was akin to slavery. The Report, along with a barrage of protests from groups such as the Australasian Anti-Transportation League saw the abolition of transportation to New South Wales in 1840 (Order in Council 22 May 1840). Agitation from the citizens of Van Diemen’s continued as they demanded cessation of transportation for their Colony and on 20 May 1851 Sir William Molesworth presented their petitions to the English Parliament.

However transportation to Van Diemen’s Land continued until 1853, when the St Vincent arrived in Hobart with the final cargo of convicts, following a promise by the Colonial Office in February 1853 to cease transportation. From the arrival of the first transport ship in Hobart in 1812, the Indefatigable, to 1853 it is estimated more than 70,000 convicts had been sent to the Colony.

In Van Diemen’s Land a Cessation of Transportation medal was struck in 1853 to celebrate the end of “the hated stain”.

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VDL Statutes 1830 already in TAHO collection

A search in Enrolments of Acts of Council (Series SC202) at the Tasmanian Archives and Heritage Office has identified 14 original copies of VDL Statutes for the year 1830 that have already been transferred to TAHO:

SC202/1/1 – 10 Geo IV No 1 An Act to remove Doubts as to the Validity of Acts or Ordinances in force on the Twenty-eighth day of February One thousand eight hundred and twenty-nine;

SC202/1/5 – 10 Geo IV No 2 An Act to institute Courts or General and Quarter Sessions, and to extend the Authority thereof and of Justices of the Peace in certain Cases;

SC202/1/6 – 10 Geo IV No 3 An Act to institute Courts of Requests;

SC202/1/7 – 10 Geo IV No 4 An Act to regulate the Slaughtering of Sheep and Cattle;

SC202/1/8 – 10 Geo IV No 6 An Act to extend to this Colony certain Acts of Parliament, whereby pecuniary Penalties are inflicted, which are made applicable to some local Purpose, and to facilitate Proceedings of Justices of the Peace in such cases;

SC202/1/9 – 10 Geo IV No 7 An Act for the Institution of Houses of Correction, and for other Purposes relating thereto;

SC202/1/10 – 10 Geo IV No 8 An Act for amending the Laws to prevent the harbouring of Felons or other Offenders, and to restrain their tippling and gambling;

SC202/1/11 – 10 Geo IV No 9 An Act to simplify Proceedings at Law or in Equity, by or against the Directors and Company of the Bank of Van Diemen’s Land;

SC202/1/12 – 10 Geo IV No 11 An Act for establishing Regulations to restrain the Increase of Dogs;

SC202/1/13 – 11 Geo IV No 1 An Act to simplify Proceedings at Law or in Equity, by or against the Directors and Company of the Cornish Bank;

SC202/1/14 – 11 Geo IV No 2 An Act to facilitate the apprehension of felons and other offenders illegally at large;

SC202/1 11 Geo IV No 3 An Act to Regulate then Impounding of Animals for Trespass and for other purposes relating thereto;

SC202/1/15 – 11 Geo IV No 6 An Act to prevent doubts as to the application of the Statutes of Usury;

SC202/1/16 – 11 Geo IV No 7 An Act to provide for the summary discharge in certain cases of persons under committal for Felony and Misdemeanour;

SC202/1/17 – 11 Geo IV No 9 An Act to facilitate the prosecution of Servants for larceny and embezzlement and of persons aiding the escape of felons or offenders under sentence of transportation.

The Description Fields in the records for all these Acts simply say: “No Description Available” which makes searching for specific Acts a time-consuming, and on-going, exercise. The coverage for Enrolments of Acts of Council Series SC202/1 is from 1 January 1830 to 31 December 1851.

Original copies of the following 1830 Acts have not, as yet, been found:

10 Geo IV No 5 An Act extending “An Act for the Relief of His Majesty’s Roman Catholic Subjects” to Van Diemen’s Land;

10 Geo IV No 10 An Act to simplify Proceedings at Law or in Equity, by or against the Directors an Company of the Derwent Bank (Private Act);

11 Geo IV No 4 An Act for the Relief of Certain Insolvent Debtors;

11 Geo IV No 5 An Act to Regulate the Constitution of Juries;

11 Geo IV No 8 An Act for the Regulation of Courts of General Quarter Sessions.

 

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Statutes for the years 1832-1836

In 1832 Lieutenant Governor Arthur was finally able to begin sorting out problems relating to land grants in the Colony. Alfred Stephen had first questioned the validity of land titles in 1828 pointing out that all grants in New South Wales and Van Diemen’s Land had not been made in proper form (being in the name of the governors rather than in the name of the sovereign) and further research showed extensive land jobbery and wilful violations of conditions of grants. In January 1832 Arthur finally received a Royal Warrant from London giving him authority to begin the process of investigating all contested land grants, and on 31 January 1832 he published an Executive Act in the Gazette setting out the proposed arrangements for fixing grants or instruments of title, which provided that:

A new grant or lease will, upon application through the Surveyor General be immediately issued in the proper form without charge of any kind except for five shillings being the sum fixed by the King’s instructions for enrolment. (A copy of this Proclamation is available at the Tasmanian Archives at CS055/1/22 in the 1832 volume of Proclamations, Government Orders and Notices, issued by His Excellency, Colonel George Arthur, Lieutenant Governor of Van Diemen’s Land).

Arthur announced the establishment of a Land Board whose function was to examine claims to Crown grants, including claims by persons who titles were defective. The Board, consisting of the Surveyor-General, George Frankland, and the Superintendent of Government Stock at Ross, James Simpson, was kept busy hearing claims until it was superseded by the Commission of Claims (soon to be referred to as the Caveat Board), established by an Act passed by the Legislative Council on 16 October 1835 (6 Will IV No 11). Arthur appears to have been persuaded that the Land Board did not have enough powers to sort out all the disputed claims. While the new Commission was authorised to take over the Board’s unfinished business, previous decisions of the Board remained valid.

Although the prevailing opinion at this time was that government activities in the public arena should be kept to a minimum Arthur recognised that the postal service was a recognised sphere of public business and in 1832, he set about taking over the existing privately-operated enterprise. By 1834 he had completed the reorganisation of the business, culminating in the Legislative Council passing An Act To Amend And Consolidate The Laws Providing For The Conveyance And Postage Of Letters (4 Will IV, No 18). An article by K A Green “Lieutenant Governor Arthur and the Establishment of the Post Office THRA provides more details on this.

The extent of other public works in the colony was largely confined to what could be achieved with convict labour: wharves, causeways, churches, gaols, hospitals, roads and bridges. Arthur also believed in the importance of clean and impressive buildings. In 1833 he was able to get the Legislative Council to pass a comprehensive Police Act (4 Will IV No 11), based on the provisions of English local statutes, which allowed prosecution of an extensive range of offences designed to make life more comfortable for the citizens of Hobart. It took another two years for the Legislative Council to pass the Water Act (5 Will IV No 14) which aimed to overcome the hygiene problems of contaminated water supplies. The importance of well-run markets was dealt with in 1834 (5 Will IV No 9), and in the same year an Act (5 Will IV No 6) dealing with fencing, and sheep, cattle and horse stealing was passed to assist graziers and large landowners.

During his 12 years as Lieutenant Governor in Van Diemen, Arthur and the Legislative Council passed a wide range of legislation required to effectively govern a colony gradually moving from a largely penal institution with a focus on convict discipline towards a more representative governing body addressing the needs and concerns of free settlers. In addition to the laws referred to above, legislation relating to the press, juries, debtors, commercial and maritime matters, courts and revenue collection all became part of the legal framework of the Colony. Following his recall to the UK Arthur embarked from Hobart on 30 August 1836, leaving the colony in the hands of Lieutenant Colonel Keith Snodgrass until the arrival of Sir John Franklin, the newly appointed Lieutenant Governor, in early January 1837.

For a detailed account of Arthur’s time in Van Diemen’s Land Sir George Arthur, Bart 1794-1854 by A G L Shaw provides a comprehensive account of his time in Van Diemen’s Land from 1824 to 1836. It paints a picture of life in a remote colony on the other side of the world, in another hemisphere, with communications taking up to four months each way (all handwritten on vellum or first class foolscap paper).

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Missing Acts

The Acts Custody Act 1858, passed some three years after the name change for the Colony of Van Diemen’s Land to Tasmania, made provision for the custody of all the Acts of the Legislature of Tasmania. Section 1 of the Act provided that persons having custody of Acts from 1826 to the commencement of the 1858 Act should transmit the same to the Supreme Court where they were to be kept in the records of the Court. The Acts Custody Act went on, in section 2, to stipulate that the Act itself, and all subsequent Acts, were required, within seven days of receiving Royal Assent, or of promulgation of reserved assent, to be transmitted by the Clerk of the Legislative Council to the Supreme Court to be kept within the records of the Court. This legislation made the Supreme Court the custodian of all the official copies of the old Legislative Council Acts as well as those of the new bi-cameral Parliament.

By 2008 It became clear that the Court had neither the space nor the staff to continue to care for these unique documents. Chief Justice Ewan Crawford began discussions with the Department of Premier and Cabinet about legislating to make the Tasmanian Archives and Heritage Office the custodian of all the official copies of Tasmania’s legislation and in mid-2013 the Legislation Publication Act 1996, section 6 was amended to allow the Clerk of the Legislative Council to send all future official copies of the Acts directly to Archives, and for the Court to begin the task of preparing its collection for transfer. A small team of volunteers has been working on this task since 2014, with the end in sight in the first half of 2020.

The Supreme Court of Tasmania currently holds the official copies of the Van Diemen’s Land Legislative Council Acts from 1833-1851, the Colony of Tasmania Acts from 1852-1901, and the State of Tasmania Acts from 1901 to mid-2013. This raises the question: where are the original copies of the Acts from 1826-1832?

From 1 August 1826 to 20 January 1830 (7 Geo IV No 1 – 10 Geo IV No 11) a total of 26 Acts were passed by the Legislative Council. These 26 Acts were gathered together under the heading Copies of the Laws and Ordinances passed by the Governor and Council of the Colony of Van Diemen’s Land 1826-1830 and after being presented to the UK Parliament (as required by UK Act 9 Geo IV, c 83, section 29) they were ordered, by the House of Commons, to be printed on 11 March 1931.

A copy of this publication is available in both the National Library of Australia and the State Library of Tasmania. However this publication is part of the UK parliamentary papers series, not the records of the Supreme Court of Tasmania.

An ongoing search of the Tasmanian Archives series Enrolments of Acts of Council has so far located nine handwritten official copies of the 26 Acts identified in the above paragraph. Seventeen more to go!

From 20 March 1830 to 24 April 1830 (11 Geo IV No 1 – 11 Geo IV No 11) nine more Acts were passed by the Legislative Council. These do not appear to have been presented to the UK Parliament, but six more handwritten official copies for this period have been found in the Enrolment of Acts of Council series at Tasmanian Archives, bringing the number of Acts to be found up to 15.

There was only one Act passed in 1831, An Act for the Effectual Administration of Justice in the Supreme Court of Van Diemen’s Land (2 Will IV No 1) and no official handwritten copy has yet been located. No Acts were made by the Legislative Council in either 1829 or 1832.

Final score: 21 missing out of 11,190 Acts, but the search continues.

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Original copies 1826-1851

The first step towards an independent law-making governing body for Van Diemen’s Land was the separation of the Island dependency from the Colony of New South Wales. On 17 July 1825 King George IV had signed a warrant (issued under the power of the Order-in-Council dated 14 June 1825) constituting a single chamber parliament, a Legislative Council, for Van Diemen’s Land. The Order-in-Council was proclaimed at Hobart Town on 3 December 1825 by Governor Darling on a short stop over on his way to take up his position as Governor of New South Wales. Darling also proclaimed the Island’s administrative independence from New South Wales, as outlined in the New South Wales Act, 1823, section 44. The original copy of the Order-in-Council separating Van Diemen’s Land from New South Wales is listed as an “unfound document” on the Documenting a Democracy website.

The Council, consisting of the Lieutenant Governor and six members chosen by him, met for the first time on 12 April 1826 and the first Act of the new Colony which was passed on 1 August 1826 dealt with the summary punishment of disorderly conduct in female offenders. Vive la égalité!

The original copies of the legislation produced by the first independent governing body of Van Diemen’s Land – the Executive Council – were handwritten on vellum sheets of varying sizes, except for Acts dealing with the finances of the Colony.

For the most part the vellum sheets appear to have been hand cut and have been folded for storage purposes. The dimensions of the sheets vary slightly but an average measurement would be around 57cm x 63cm. The thickness of the vellum sheets varies from being quite thin (easily unfolded) to thick (requiring weights to hold the pages down).

Example of thin vellum used for single page Act, showing fold marks.

Example of thick vellum sheets folded for storage.

Acts for the appropriation of revenue for the Colony are written on paper sheets measuring 23cm x 28cm. I have been unable to find an official reason for this but, looking at the layout of these financial Acts, I suspect it was quite likely that using large sized vellum sheets to record long lists of financial information would have been more difficult to set out clearly that they would be on the smaller paper sheets.

The Supreme Court of Tasmania currently holds the original handwritten copies of the Van Diemen’s Land Legislative Council Acts from 1833 to 1851 (which are part of the collection to be transferred to the Tasmanian Archives and Heritage Office, under the terms of the Legislation Publication Amendment Act, 2013, section 6). Investigations into the whereabouts of the official copies of VDL legislation for the years 1826-1832 will be published in a separate Post.

Details of the Acts currently held by the Supreme Court have been recorded on a spreadsheet to accompany the Acts when they are transferred to Archives. An additional document has also been prepared listing the condition of each Act for:

  • Any damage to wax seals;
  • Type of fasteners used to keep multi page documents together;
  • Mottling on vellum sheets;
  • Crumpling, creasing and tears on folds on vellum sheets;
  • Mould; and
  • Durability of ink.

Conservators from The Tasmanian Archives and Heritage Office have provided valuable assistance to the volunteers working on the Project in the Supreme Court about suitable folders and boxes for individual Acts, as well as advice on the handling of damaged items.

They have visited the Court to check firsthand on possible mould and insect damage to the handwritten copies of the Acts. No evidence of insect activity was identified and much of the mould is slight to moderate, dry and therefore dormant.

Open four flap folder with Act in position for flaps to completely enclose the document.

It was decided that these Acts would remain in their current finished storage folders and boxes as they are well-protected in four flap folders inside archival clamshell boxes in a cool and dry storage room.

All archive boxes containing any Acts for the period 1833-1851 that have been identified as being mould-affected have been clearly marked to ensure Archives staff are aware of the existence of even minimal traces of mould when the boxes are transferred.

The Conservators also checked twelve handwritten Acts where the ink appeared to be fading. It was suggested that the “fading” was probably due to some inherent chemical instability in the iron gall ink used by the scribes responsible for copying the text of the Acts on to the vellum sheets, possibly combined with poor storage at some earlier stage. As there is some doubt about the effectiveness and long-term safety of current conservation treatments it was recommended that limited handling of the documents and storage in a stable environment would be a sufficient solution for the time being.

However it was also recommended that, when the Acts are transferred to Archives, the documents should be digitised in their current state just in case there is further deterioration causing the ink to continue to lighten. As the folded velum sheets present particular problems for handling and flattening in preparation for digitisation, it was felt that this task be undertaken in house in the Government Archives and Preservation section. A list of the twelve Acts has been created and boxes containing Acts with ink problems have been marked so Archives staff can easily identify where the documents are located.

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Statutes for the years 1826-1831

From 1803 to 1825 Van Diemen’s Land was a dependency of the Colony of New South Wales. A succession of Lieutenant Governors and Commandants used General and Garrison Orders to maintain law and order at a local level. Local Justices of the Peace dealt with petty crimes as required, with the usual punishment being a specified number of lashes for offenders. Serious criminal matters were supposed to be dealt with in the courts in Sydney but the expense and inconvenience of often hazardous sea voyages meant that local magistrates also dealt with matters not officially in their jurisdiction. Governors in New South Wales generally turned a blind eye to this behaviour. It was a similar case with civil cases with free settlers often deciding it was not worth seeking justice for their complaints.

The Report on the Judicial Establishments of New South Wales and Van Diemen’s Land by Thomas Bigge in 1823 was severely critical of the administration of justice in both New South Wales and Van Diemen’s Land. Its recommendations contributed to the UK Parliament passing an Act for the Administration of Justice in New South Wales and Van Diemen’s Land in October 1823. Under this Act (short title: The New South Wales 1823) a Supreme Court was to be set up in Van Diemen’s Land and in addition, by an Order-in-Council, Van Diemen’s Land was to become a separate Colony.

The paperwork for the creation of the first Supreme Court in Van Diemen’s Land was put in place relatively quickly, considering the inevitable time lag caused by the lengthy sea voyage from London to Hobart. In March 1824, the newly appointed Chief Justice, John Lewes Pedder, arrived with the Charter of Justice establishing the new Supreme Court, which was opened for business in Hobart on 10 May 1824.

Separation from New South Wales would not happen for another 19 months. Despite a Memorial to the Secretary of State, Lord Bathurst, from a number of prominent VDL citizens in August 1823, advocating separation from New South Wales, as well as Lieutenant Governor Arthur, soon after his arrival in May 1824, arguing for separation commercially, legally, executively, legislatively and administratively, there was no rush by the UK Parliament to carry out the provisions of section 44 of the 1823 Act, which provided that the King could constitute and erect:

The Island of Van Diemen’s Land and any islands, territories, or places adjacent, into a separate colony, independent of the Government of New South Wales.

It was not until 17 July 1825 that George IV signed the Warrant drawn up on 14 June 1825, that created a single chamber parliament, the Legislative Council, with not more than seven and no less than five members. It was then more than four months before Governor Darling on his way to take up the position of Governor of the Colony of New South Wales, arrived in Hobart to proclaim the official separation on 3 December 1825. The first meeting of the Council was on 12 April 1826.

The first three years of the operations of the Legislative Council are notable for the power that was able to be exerted by the Lieutenant Governor. Meetings of the Council were held in camera, its members sworn to secrecy, and the only publicity of its operations was the promulgation of its final measures in the Gazette. Under section 24 of the 1823 Act, Arthur alone had the right to initiate bills and he only needed the support of one member of the Council to pass the law. Any dissenting members could, however, have their reasons recorded in the Council’s minutes, and Arthur had to record his reasons for passing a law despite the disagreement of a majority of the Council. The only checks on Arthur at this time were the UK Parliament or the Chief Justice of Van Diemen’s Land declaring that an Act was repugnant to the laws of England.

The first official Act of the Council was passed on 1 August 1826 and by 1831 it had enacted a total of 36 Acts – an average of only six Acts per year. In practice Arthur preferred to use General Orders or Executive Acts, where he could, to regulate colonial affairs. This enabled him to avoid the final scrutiny of the Chief Justice or the Colonial Office.

The 1823 Act was not meant to a permanent solution for the better administration of justice in New South Wales and Van Diemen’s Land. The 1828 Imperial Act 9 Geo IV c.83 (in its original form known as the Huskisson Act after the UK Secretary for the Colonies, and later given the short title of Australian Courts Act 1828) re-enacted the principle provisions of the earlier temporary Act and re-modelled and improved the structure of the Supreme Court of Van Diemen’s Land. It increased the membership of the Legislative Council to not more than 15 and no less 10. The former oath of secrecy was abolished, and drafts of proposed legislation had to be published in the Hobart Town Gazette. Members were appointed by the Crown, and any vacancies were to be filled by persons nominated by the Lieutenant Governor. For an Act to be passed it had to have the support of a majority of Council members. The Council was also empowered to appoint civil juries, but this did not happen for several years.

Prior to 1828 the finances of Van Diemen’s Land were quite simple: the Lieutenant Governor could levy taxes which he considered necessary, and essentially the UK Government paid all the Colony’s expenditure. The 1828 Act created three separate departments: civil, military and convict. The latter two were paid for by the UK, and civil was now to be paid out of the Colony’s Treasury. The new Act which came into effect on 25 July 1828 provided that no taxes could be imposed, except for local purposes which were defined in the Act. Between 12 September 1828 and 24 December 1828, out of a total of six Acts passed, five dealt with local taxes: three concerned the sale of liquor, one for the conveyance and postage of letters, and one with licensing newspapers. The Council had lost no time in enacting its own revenue raising legislation.

Section 24 of the 1828 Act (reception section) established that Van Diemen’s Land was a civil colony, despite its continuing function as a penal institution and a strong military presence. A broad body of English law was now accessible to the British subjects in the Colony who saw the Act as strengthening the legal and civil standing of the legislative and judicial institutions, but they continued to agitate for greater participation in governing the Colony.

However Lieutenant Governor Arthur believed it to be his duty to rule Van Diemen’s Land as a convict settlement with an emphasis on prison discipline to control, coerce and, if possible, reform offenders. He had no sympathy with the free settlers who wanted more participation in the political institutions governing the Colony. The UK Government was largely responsible for this friction, since it had encouraged emigration to a settlement ruled by convict law which Arthur was commissioned to administer.

It is not surprising that during the first six years of Arthur’s term as Lieutenant Governor of the Colony and member of the Legislative Council that the primary legislative focus was on convict discipline, local duties to raise revenue and controlling the local press (often hostile to the Governor and his Council). The Legislative Council also had to supervise the Van Diemen’s Land Company land grant on the North-West Coast as well as appointing a commission of three to conduct a general survey of the Colony to sort out a multitude of problems with existing land grants.

From the earliest years of settlement in Van Diemen’s Land Lieutenant Governors made land grants to free settlers, convicts whose sentences were completed, and military personnel. However there was considerable confusion in the loose way the grants were applied, with the Secretary of State and Governors conferring grants in a haphazard fashion, without any defined principle or legal authority.

Prior to 1827 there are few official records of property transactions but in September of that year a Deeds Registry was established “to provide means whereby the title of real property may be more certainly known” (8 Geo IV No 5). The first sales of land by the administration in Van Diemen’s Land began in 1828, and from 1831 there were no more free grants of land.

The Legislative Council also had to cope with the less than vigorous attention to detail displayed at times by the UK government. The 1831 Charter of Justice for the Supreme Court of Van Diemen’s Land omitted to make provision for matters already commenced in the old Court to be continued in the new Court. On 5 September 1831 the Legislative Council remedied this defect by passing An Act for the Effectual Administration of Justice in Van Diemen’s Land (2 Will IV, No 1). This Act has been described as “very necessary but doubtful and dangerous” by A G L Shaw in his biography of Arthur.

The Charter had provided for the appointment of an additional Judge in the Supreme Court. Arthur had been appalled with the character of the proposed new judge, Alexander Macduff Baxter, so the new colonial Act now provided for the Governor to appoint a judge in place of Baxter as well as allowing, in the absence or death of one judge, for the remaining judge to continue the court until a successor could be appointed.

 

 

 

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Imperial legislation relating to the Charters of Justice in 1823 and 1831

An Act for the Administration of Justice in New South Wales and Van Diemen’s Land, 1823 (4 Geo IV c 96) repealed An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 (27 Geo III c 2). It was a temporary Act to provide, until the first day of July 1827 and until the next Session of Parliament, for the better administration of justice in New South Wales and Van Diemen’s Land, and for the more effectual government thereof; and for other purposes relating thereto. It continued in operation until the commencement of An Act to provide for the Administration of Justice in New South Wales and Van Diemen’s Land, 1828 (9 Geo IV c 83).

In 1819 Commissioner Thomas Bigge had been sent from London to investigate the state of the penal Colony of New South Wales and its dependency Van Diemen’s Land. His report was critical of the administration of the Colony and its island dependency, and it led to the UK Parliament making considerable legislative changes to the structure of governance and the administration of justice.

Notable events, provided for under the provisions of the 1823 Act and the Third Charter of Justice, included:

  • creation of a Legislative Council for the Colony of New South Wales which was a first step away from the Colony’s penal status, albeit its members were all appointed by the Secretary of State in London;
  • constitution of Van Diemen’s Land, by an Order in Council, issued on 14 June 1825, and proclaimed to commence on 3 December of that year, as a separate Colony, with its own Legislative Council (seven members), and the cessation of appeals from the Island to the Governor of New South Wales;
  • creation of two new supreme courts, with civil and criminal jurisdiction; one in New South Wales and one in Van Diemen’s Land;
  • the current Supreme Court of Tasmania owes it origin to the 1823 Act, which authorised by warrant a separate Charter of Justice – the first Charter of Justice for Van Diemen’s Land; and
  • the new VDL Supreme Court being able to enrol barristers and solicitors, decide the form and function of legal procedure relating to wills and letters of administration bonds, and appeals to the Privy Council and other functions which previously had to be settled in the NSW Supreme Court.

While the 1823 Act, and associated Charters, went quite some way towards providing a measure of local control of government and administration of justice, free settlers and emancipists remained dissatisfied with the amount of control retained by the UK Parliament.

The 1828 Act was also originally intended to be a temporary measure. It was, however, made permanent in the Colony of New South Wales by the Australian Constitutions Act, 1842. This Act established a 36-member Legislative Council in the Colony, 12 of whom were nominated by the Queen (on the advice of her Ministers), with the remaining 24 members to be elected by eligible voters who owned or occupied property above a specified value.

Many sections of the 1828 Act did little more than reiterate the sections of the 1823 Act that dealt with the powers and functions of the courts in New South Wales and Van Diemen’s Land. It did, however, also include further important changes to the administration of justice in the two colonies, with the main features summarised below:

  • the laws of England current on the precise date the Act came into operation would be applied in both colonies, with section 24 of the Act setting the date of this invisible transfer as 25 July 1828, commonly called Reception Day;
  • English Acts of Parliament passed after Reception Day did not apply unless they were specifically passed for the colonies;
  • appeals from Supreme Court decisions to the Governor were ended (the Governor’s Court was abolished) although appeals to the Privy Council still had to come from the Governor;
  • trial by jury to be available in civil cases, as well as the Governor being empowered to introduce a general trial by jury in criminal matters;
  • section 24 of the Act made it clear that Van Diemen’s Land was a civil colony despite the continuing penal functions and strong military presence in the administration of justice;
  • the Act contemplated the issuing of a new Charter of Justice for Van Diemen’s Land which eventuated and finally arrived in 1831 – court to consist of Chief Justice and Puisne Judge, and also appointment of a Registrar, Master and Keeper of Records and a Sheriff; and
  • the Legislative Council increased to 15 members.

With the proclamation of the Second Charter of Justice for Van Diemen’s Land, it became necessary for a colonial enactment, An Act for the effectual Administration of Justice in the Supreme Court of Van Diemen’s Land, 2 Will IV No 1, to save from invalidity court proceedings and other matters pending under the repealed First Charter of Justice for Van Diemen’s Land.

Copies of Imperial legislation relating to the First and Second Charters of Justice in Van Diemen’s Land can be found in Vol 6 of Tasmanian Statutes 1826-1956.

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