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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Imperial legislation and the 1787 and 1814 Charters of Justice

An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 begins by reciting the provisions of An Act for the effectual transportation of felons and other offenders; and to authorise the removal of prisoners in certain cases, 1784 (24 Geo III c 56, referred to as The Transportation Act). The abridged text of this Act is available in: J M Bennett & A C Castles, A Source Book of Australian legal history : source materials from the eighteenth to the twentieth centuries, 1979:Law Book Co, Sydney, pp 3 – 5.

The Transportation Act authorised His Majesty “to appoint any place or places beyond the seas, either within or without His Majesty’s Dominions to which offenders so sentenced shall be conveyed”. The Colony of New South Wales, which in 1787 included all of the east coast of Australia as well as Van Diemen’s Land, was appointed to be such a place. When Van Diemen’s Land was settled in 1803, it was a dependency of the Colony of New South Wales, and subject to the provisions of the 1787 Act and the accompanying Charter of Justice.

The 1787 Charter (First Charter) contained recitals expressing it to have effect in pursuance of the 1784 Transportation Act and two 1786 Orders in Council, and with regard to the Court of Criminal Jurisdiction, in pursuance of the 1787 Act (27 Geo III c 2). The Court of Civil Jurisdiction, constituted by the Charter, had no statutory foundation but was a creature of the royal prerogative.

One of the major critics of the First Charter was Deputy Judge Advocate Bent. In a letter to Under Secretary Cooke on 7 May 1810 he complains that the Criminal Jurisdiction of the Colony is imperfect in every point of view. He points out that that the greatest defect is the variety of duties the Judge Advocate has to perform:

In the first instance, he is obliged to prepare and examine the evidence for the prosecution … he then has to draw up the indictment, of the legality of which he then has to judge, and it is by him to be exhibited to the court …

He goes on to say that the execution of all these duties “is apt to bias the mind” in carrying out his role as Judge Advocate. Simply put, the court “was very well calculated to answer the purposes for which it was created in the infant state of the colony” but increases in population and trade have made it “very deficient in many respects”.

In response to these and similar views and opinions the House of Commons appointed a Select Committee to inquire into the effectiveness of sentences of transportation and other matters. The 1812 Report of the Committee resulted in significant proposals for reforming the judicature in the colony.

As the changes proposed by the Committee only related to civil courts it was not considered necessary to create any legislation to carry them out. Rather they were the subject of letters patent, now known as the Second Charter of Justice.

While the provisions of the second Charter proved beneficial to the courts in Sydney, they did very little to improve the administration of justice in Van Diemen’s Land. Judge Advocate Bent, in a letter to Lord Bathurst in October 1814, pointed out that while the establishment of the Lieutenant Governor’s Court did provide some relief, the lack of a Court of Criminal Jurisdiction and a Court of Civil Jurisdiction, with sufficiently extensive powers, was deplorable.

Judge Advocate Wylde, in a letter to Under Secretary Goulbourn on 31 March 1817 felt it his duty to point out the Charter, in regard to the jurisdiction of the Supreme Court (based in Sydney) would soon be found to be altogether insufficient for the inhabitants of Van Diemen’s Land due to delays, heavy expenses, personal inconveniences and losses, and communication difficulties that were incurred when having to travel to Sydney to have their cases heard.

From 1819 to 1823 Chief Justice Barron Field and Judge Advocate Wylde both made two visits to Hobart to hear civil and criminal matters but this was never going to be a successful solution for the Island dependency.

In his 1823 Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, Commissioner Thomas Bigge clearly spelled out the problem, and proposed solution:

The evils, however, arising to the settlement from the unchecked commission of crime, and from the extensive schemes of plunder in which the remitted convicts and those whose terms of service had expired were thus tempted to engage, together with the temptation to personal redress of civil injuries that is held out to the free inhabitants, as well as strangers, from the distance and long absence of any controlling judicial authority, I consider to be very clearly established; and as these evils admit of very partial and insufficient correction from the occasional and annual circuit of the judges … I have no difficulty in recommending to your Lordship the early establishment of a separate civil and criminal judicature in Van Diemen’s Land, as a measure essential to its tranquillity and to the prosperity of its inhabitants.

It was time for a new Act and a new Charter.

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French Maritime Explorers

Marion de Fresne

With the Dutch losing interest in Van Diemen’s Land after Tasman’s departure in 1642, the natives were able resume their normal lives until 1772 when the first French explorer, Marion du Fresne, following the route taken by Abel Tasman, anchored in Frederick Hendrik Bay aboard the Mascarin, along with Julien Crozet in the Marquis de Castries.

With the end of the Seven Years’ War in Europe, Marion had found himself at a loose end. Needing employment and finance he persuaded Pierre Poivre, the Civil Administrator of Mauritius, to help fund an expedition to the South Pacific, as well as volunteering to return Aotourou, a Tahitian Chief who had had been visiting Paris, back to his island home. When Aotourou died of smallpox in Madagascar, Marion continued his voyage, reprovisioning at the Cape of Good Hope and then sailing east. After the Marquis de Castries was damaged in a collision at sea with the Mascarin, the expedition headed for Van Diemen’s Land to look for timber to replace the mast on the Mascarin, and to replenish their water supplies.

This expedition is notable because it was the first to make contact with the native inhabitants. Crozet, the historian of the expedition, describes the French landing on 4 March and seeing approximately 30 natives on the shore:

Officers, soldiers and sailors landed without any opposition. The natives came forward without reluctance. They collected some wood and made a kind of stack. They then gave some lighted dry boughs to the newcomers and appeared to invite them to set the pile alight … We tried to win them over by small presents, but they scornfully everything they offered to them, even iron, looking glasses, handkerchiefs and pieces of cloth …

There appears to have been some confusion on the part of the French about the significance of lighting the pile of wood because when Marion landed and was offered a burning stick he set fire to the wood, which signalled an angry reaction and attack on the French with spears and stones. The French responded with musket fire, killing one Aborigine and wounding others. After this incident the French decided to abandon any further explorations to find timber and fresh water, and set sail for New Zealand on 10 March.

If Marion though the natives of Van Diemen’s Land were unfriendly, he was to discover that the Maoris were even more so. After an initial hospitable welcome by the natives, the French were ambushed, resulting in Marion and about 24 of his crewmen being killed, mutilated and eaten. Julien Crozet, second in command, is reported to have killed over 200 natives in revenge.

The following publication provide quite a detailed account of both the Tasman and Marion expeditions.

The Discovery of Tasmania: journal extracts from the expeditions of Abel Janszoon Tasman and Marc-Joseph Marion Dufresne, 1642 & 1772 /edited by Edward Duyker; translated by Edward, Herman & Maryse Duyker

Two other expedition Journals also provide interesting reading.

Extracts from Journals Relating to the Visit to New Zealand in May-July 1772 of the French Ships ‘Mascarin’ and ‘Marquis de Castries’ Under the Command of M.-J. Marion du Fresne (Wellington, NZ, 1985)

Crozet’s Voyage to Tasmania, New Zealand the Ladrone Islands, and the Philippines in the Years 1771-1772, Translator: H. Ling Roth.

 

Bruni D’Entrecasteaux

In September 1791, the French Assembly decided to send an expedition in search of Jean-Francois de La Perouse, who had disappeared after leaving Botany Bay in March 1788. Bruni d’Entrecasteaux was chosen to command this expedition and was promoted to the rank of Rear Admiral when he left Brest on 28 September 1791, in command of Le Recherche and accompanied by Jean-Michel Huon de Kermadec in La Esperance. As well as searching for Perouse, they were tasked with furthering geographic and scientific knowledge in the regions Perouse had been planning to explore.

After sailing down and charting the west coast of New Holland, d’Entrecasteaux’s vessels reached the west coast of Van Diemen’s Land and then sailed south east, dropping anchor in Recherche Bay in April 1792 to look for a supply of fresh water and to rest their crews.

The French explorers carried out detailed explorations for five weeks, finding beautiful waterways and estuaries in the area, as well as identifying mistakes made by previous navigators. They established that Adventure Bay, discovered by Captain Tobias Furneaux, was part of an island and separated from the mainland by a channel (which they named d’Entrecatreaux Channel) as well as discovering Port Esperance and the Huon River.

The two ships left Van Diemen’s Land in May 1792, to continue the search for La Perouse, returning to Recherche Bay in early 1793. During this second visit the River Derwent was fully explored and mapped. d’Entrecastreaux then sailed up the east coast as far as Marion Bay before sailing away to resume the search for La Perouse. The discoveries made by d’Entrecastreaux during his time in Van Diemen’s Land led to the maps of the island’s coastline becoming much more accurate as shown by this French Chart of Van Diemen’s Land and Adventure Bay (insert)

Encounters between the French and the native inhabitants seem to have been peaceful and friendly on both sides. French scientists took careful notes about the appearance, health, dwellings, diet, tools, clothing and vocabulary of the natives, and Labillardiere, one of the naturalists, records an incident where:

If our path was interrupted by heaps of dry branches, some of them walked before, and removed them to either side. We could not walk on the dry grass without slipping every moment, particularly where the ground was sloping: but these good savages, to prevent our falling, took hold of us by the arm, and thus supported us.

While an officer from La Esperance recalled, “The kindness and gentleness which seemed to be the basis of their character, gave to our meetings rather an air of reunion of friends rather than a meeting of individuals who were quite different.

Labillardiere, provides excellent descriptions of the country and the natives in his journals, Voyage in search of La Perouse Vol 1 and Vol 2

Nicholas Baudin

In 1800 Nicholas Baudin proposed a scientific expedition to the south of New Holland and Van Diemen’s Land, gaining support from Napoleon Bonaparte and the Institute of France. In October of that year he set sail in the gunship Le Geographe and the storeship Le Naturaliste.

In November 1801, with many of crew suffering illness, Baudin decided to make for Van Diemen’s Land. Arriving in early 1802 his expedition made an extended stay in the D’Entrecasteaux Channel. They explored the Derwent for some miles above Herdsman’s Cove, and also the Bay du Nord, properly charting Frederick Henry Bay, and the stretch of shallow water now called Pittwater. Francois Peron, one of the scientists, has recorded their meetings with the natives and given many interesting facts and incidents. Leaving the south, Baudin made an extensive examination of the east coast. He found that Tasman’s Isle was really a double peninsula to which he gave the names of Tasman’s and Forestier’s Peninsula. Lieutenant Freycinet also examined Oyster Bay, Schouten Island and Freycinet’s Peninsula.

From their first encounter they were accepted well by the natives, who were fascinated by the pale white skin of the Frenchmen and their longboat. The Frenchmen ate with the natives, traded gifts as well as entertained them. Baudin then sailed for Port Jackson, where reports were circulating that the French intended to establish a settlement on the Derwent. Governor King was sufficiently concerned to send HMS Cumberland to watch over the progress of the French expedition. When Baudin’s ships were anchored in Sea Elephant Bay on King Island, a British party went ashore raising the British flag from a tree and claimed the island for King George. Baudin appears to have been somewhat amused by these antics and continued sailing west along the southern coast of the mainland, gathering plants and specimens to add to those his scientists had already collected. Their departure did not allay the fears of Governor King who decided to send Lieutenant John Bowen to establish a small settlement at Risdon Cove on the River Derwent to pre-empt any the French claims to Van Diemen’s Land.

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Dutch Maritime Explorers

While it is probable that Portuguese sailors in the 16th century came in sight of the west coast of what was imagined to be the Great South Land, the usual route taken by the Dutch and Portuguese spice traders on their way to Java and the Moluccas was to round the Cape and sail up the east coast of Africa as far as Madagascar and then turn away from the coast line and across the Indian Ocean. These voyages could be very lengthy, taking up to a year, as ships could become becalmed in the tropical regions and sailors suffered from the unhealthy climate and lack of fresh provisions.

In 1611 Dutch captain Hendrik Brouwer discovered a quicker trade route to Indonesia’s spice islands and halved the time it took to reach Indonesia. After rounding the Cape he used the ‘roaring forties’, a band of strong winds in the southern oceans, to speed the passage of ships in an easterly direction and did not turn north until he estimated he was in the vicinity of the longitude of Java.
Following Brouwer’s discovery, it became standard practice for the Dutch East India Company ships to sail in the roaring forties for one thousand Dutch miles (about 7,400km) before turning north to Indonesia.  While this halved the amount of time spent at sea there was at this time no accurate way to calculate distance travelled and it was inevitable that some ships would travel too far east, before turning north, and start to see glimpses of unmapped land.
In 1616 Captain Dirk Hartog in the Eendragh made landfall at an island in Shark Bay in what is now Western Australia. From this time on the “Land of the Eendragh” was used as a sailing direction for Dutch vessels travelling east. Then in 1642 Abel Tasman, under instructions from Anthony Van Diemen, Governor of the Dutch East Indies, set out to discover the extent of the Great South Land. Van Diemen’s instructions to Tasman were to sail to Mauritius, then go due south to Latitude 51 or 54 degrees, or until land was discovered and then to sail east to see if the Great South Land extended as far as Terra del Fuego.

The expedition consisted of two ships, the Heemskirk and the Zeehaen, and sailed from Batavia on 14 August 1642, with the first journal entry by Tasman reading:

Journal or description by me, Abel Janszoon Tasman, of a voyage made from the town of Batavia in the East Indies, for the discovery of the unknown South Land, in the year Anno 1642, the 14th August. May it please Almighty God to grant his blessing thereto! Amen.

They reached Mauritius on 5th September and spent a month refitting and provisioning for their long journey to the south and then to the east where they encountered strong gales and heavy fogs. Continuing their voyage into the unknown they first sighted land on 24 November. Tasman named the land Van Diemen’s Land in honour of the Governor, but as was common in those times, the exact location on the west coast of what is now called Tasmania is uncertain. His position is not marked on his chart but the descriptions and bearings of the mountains he saw make it likely he was in the region of Cape Sorell at the mouth of Macquarie Harbour.

Proceeding south he skirted the southern end of Tasmania and turned north-east until he was off Cape Frederick Hendrick on the Forestier Peninsula.

Tasman’s journal entries for 2 December describe an initial exploration of the land to the north west of where their ships were at anchor, describing vegetation, timber resources and a good quality shallow water course, as well as fowls, wild duck and geese. They observed notches in the trees, at intervals of around five feet, confirming the common belief of all explorers at this time that the inhabitants of the Great South Land were giants. The following morning they went ashore again, this time to the south east, looking for water but were unable to find an easily accessible supply. Tasman’s journal entry recounts that they returned in the afternoon, taking:

… a pole with the company’s mark carved on it, and a flag of the Prince to be set up there, that those that come after us may become aware that we have been here, and taken possession of the said land as our lawful property … [however] the surf ran so high that we could not get near the shore without running the risk of having our pinnace dashed to pieces. We then ordered the carpenter [Pieter Jacobsz] to swim to the shore with the pole and the flag: we made him plant the pole in the earth with the flag upon its top, about the centre of the bay near four tall trees … our carpenter, having performed his work, we pulled as near the shore as we dared, thereupon he swam back to the pinnace … we pulled back to the ships, leaving the above mentioned as a memorial for those who shall come after us and for the natives of this country who did not show themselves, though we suspect some of them were at no great distance and closely watching our proceedings.

The exact spot where the flag was planted remains a mystery as Tasman did not record bearings to, or angles between, the various headlands, islands or prominent features in the vicinity, in relation to the anchorage of his ships.

On 4 December Tasman resumed his voyage northwards but bad weather made it impossible to keep in sight of the coastline so it was decided to turn eastward the following day, and after nine days they made land fall on the west coast of the south island of New Zealand. From there he sailed north east to Tonga, then on to New Guinea, arriving back at Batavia on 15 June 1643. The concluding entry in his journal reads:

God be praised and thanked for a safe voyage! Amen.


Tasman’s 1642-43 Route showing contact with island he named Van Diemen’s Land

Though the Dutch were the first Europeans to discover Tasmania, and to claim it for the Netherlands, it appears they had no colonisation ambitions as it offered no prospect of profitable trade along the lines of the existing spice trade in Indonesia. Apart from the 1642 discovery leading to more lines being added to maritime charts, the island remained forgotten for well over a century. From 1772, however, the French and the British became frequent visitors.

Further Reading

W R Barrett, History of Tasmania to the Death of Lieutenant-Governor Collins in 1810. Hobart: H T Whiting Pty Ltd, 1936 (particularly for extracts from Tasman’s Journal)

R W Giblin, The Early History of Tasmania. London: Melbourne University Press, 1939

J B Walker, Early Tasmania. Hobart: Government Printer, 1950

 

 

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