Law and Order 1803-1826

There were two main tools used to enforce law and order in Van Diemen’s Land when the first white settlers and convicts arrived in 1803: justices of the peace who swore an oath to enforce “the Laws and Customs of the Realm and the Statutes made thereof” and the Lieutenant Governor’s power to issue General and Garrison Orders.

Justices were able to deal with a wide range of matters, including:

  • Trying minor criminal offences;
  • Appointing and supervising constables;
  • Dealing with riots and other disturbances;
  • Controlling the use of weights and measures;
  • Determining the price of bread;
  • Regulating the sale of alcohol;
  • Overseeing the conveyance of passengers and goods; and
  • Determining wages and conditions of employment.

The first Lieutenant Governor, David Collins, had the power to issue General and Garrison Orders, the former directed at the general community and the latter at the military. Many of the General Orders were of an administrative nature; advising of official appointments, announcing Church services and holidays and setting out rules for the issue of supplies. Others, however, could be said to have ventured into a form of law-making without the authorisation of the British authorities. Successive Lieutenant Governors certainly viewed the General Orders made by their predecessors as precedents to follow. The above link to the Orders issued by Collins paints a picture of how the fledgling settlement of Hobart Town operated from day to day.

Whilst the principles of British Law applied in Van Diemen’s Land there was no provision for courts or judges in the Island. Matters that were too serious to be dealt with by justices of the peace should have been heard in the courts operating in New South Wales. However, the inhabitants of Van Diemen’s Land made considerable effort not to resort to court action on the mainland; distance was the primary factor but added to this were the hazards of a sea voyage, and the expense involved in arranging for the attendance of offenders and witnesses in the case.

Many crimes that should have resulted in the offenders being sent to Sydney for trial were dealt with locally and often resulted in offenders receiving much harsher punishments than they would have on the mainland. While magistrates were able to order offenders to be put in the stocks or pillories, the main punishment was the lash, even when it was only a minor breach of the rules. Twenty-five to 50 lashes were the norm but in serious cases it could be 500 or more.

When criminal cases were heard in the Sydney courts, and offenders sentenced to be hanged, the Lieutenant Governors in Van Diemen’s Land always wanted the prisoners returned to the Island if possible, for the sentence to be carried out, and the body left on public display.

One criminal activity that beset the settlements early on was the increasing number of escaped convicts who had turned to bushranging. Collins on at least two occasions invoked the ancient British law of outlawry, and in April 1815 Lieutenant Governor Thomas Davey resorted to declaring martial law even though he had no power to do so. Neither of these actions produced any significant reduction in the predations of the bushrangers even though several were executed under the provisions of martial law.

It was not until 1818 that Lieutenant Governor Sorell began to gain some control. The notorious bushranger, Michael Howe, had been clubbed to death, his head cut off and put in a kangaroo skin bag which was then taken to Hobart Town to be put on public display. This, according to Thomas Wells, Secretary to Sorell, “afforded an inconceivable degree of satisfaction”. See Michael Howe: The Last and Worst of the Bushrangers of Van Diemen’s Land for a contemporary account.

The opening of a Lieutenant Governor’s Court in Van Diemen’s Land in 1815 did provide some relief for those involved in commercial disputes, but serious criminal matters remained a problem, even though the NSW Supreme Court made two trips to the Island to hear civil cases locally in 1819 and 1821 and Deputy Judge Advocate Wylde two trips in 1821 and 1823 to hear criminal cases.

The establishment of the Supreme Court in 1824 and the Legislative Council in 1825 saw Van Diemen’s Land become a self-governing colony, not only able to apply appropriate English Law and General Orders, but to create legislation directly relevant to the affairs of the Island.

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Third Charter of Justice establishes a Supreme Court in Van Diemen’s Land

One of the major recommendations of the Bigge Reports  was the need for Van Diemen’s Land to have its own court system. The 1823 Act for the Administration of Justice in New South Wales and Van Diemen’s Land established Supreme Courts in both jurisdictions. It was a temporary Act, set to operate until 1827 and thereafter it was extended, as well as being amended, by both imperial and colonial legislatures, to ensure continuity in the administration of justice by both courts.

Following the arrival of John Lewes Pedder in Hobart in March 1824, a proclamation was issued by the Lieutenant Governor, William Sorell, announcing Pedder’s appointment as Chief Justice and that on the 10th May the new Supreme Court of Van Diemen’s Land would “enter upon the Exercise of its Jurisdiction according to the full Powers granted by the Royal Charter”. The Provost Marshall then read out the text of the Charter of Justice to the assembled dignitaries, and a 21-gun salute was fired from Mulgrave Battery.

The first sitting on 10 May of the Supreme Court in Van Diemen’s Land preceded that of the New South Wales Supreme Court by seven days, making the Court in Hobart Australia’s oldest continually functioning superior court. The two Charters had been sent on different ships, but both arrived in March1824, the Guildford in Sydney and the Hibernia in Hobart. Officials in Hobart seem to have been a little quicker off the mark, perhaps because, after 20 years of frustration with inadequate access to justice, they were excited to finally have their own judicial system.

Once the two Supreme Courts created by the third Charter of Justice had been set up in 1824, the first Supreme Court, established under the terms of the Second Charter of Justice, ceased to be.

The new judicial system in Van Diemen’s Land was modelled on the three tiers of the English system: Supreme Court at the top, a Court of Quarter Sessions at the intermediate level, and a Court of Petty Sessions at the base.  The Supreme Court had wide jurisdiction, with authority not only over criminal matters, but also in civil and equity matters.

The final and equally important event resulting from the provisions of the Third Charter was a separate Legislative Council for Van Diemen’s Land directly responsible to the Secretary of State in London and no longer a dependency of the Colony of New South Wales. The steps to achieve this were:

  • 14 June 1825 – Order in Council pursuant to s44 of Imperial Act 4 Geo IV, c96 separating Van Diemen’s Land from New South Wales;
  • 16 July 1825 – Commission of Lieutenant General Ralph Darling as Captain General and Governor in Chief of Van Diemen’s Land, with instructions to create an Executive Council and the necessary powers required to govern the Island; in his absence from the Island, administration devolved on Lieutenant Governor Arthur;
  • 17 July 1825 – Warrant by His Majesty King George IV making Van Diemen’s Land a separate colony with its own governing body consisting of a six member body (Chief Justice, Colonial Secretary and four non-official members) with the Lieutenant Governor as President. An Executive Council (Lieutenant Governor, Chief Justice, Colonial Secretary and two other members, Superintendent of Police and Colonial Treasurer) was also appointed;
  • 3 December 1825 – Proclamation by the Governor of the Colony, Sir Ralph Darling, in Hobart Town confirming separation of Van Diemen’s Land from New South Wales;
  • 5 December 1825 – Governor Darling departs;
  • 17 December – Proclamation in the Hobart Town Gazette by Lieutenant Governor Arthur notifying his powers to Act in the absence of Darling who left his Commission with Arthur;
  • 12 April – first meeting of Legislative Council; and
  • 1 August 1826 – first Act passed by the Council.

Van Diemen’s Land was now a Colony in its own right, with its own courts and government, enacting its own legislation, as well having the capacity to interpret this legislation in its courts. The Chief Justice, however, retained the right to declare legislation repugnant to the Laws of England, as did the Colonial Office.

For additional information see Tasmanian Statutes 1826-1959 volume 6 and Founding Documents.

 

 

 

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Application of the Second Charter of Justice to Van Diemen’s Land

The Second Charter of Justice maps the first part of the journey of Van Diemen’s Land from being a dependency of the Colony of New South Wales to having its own legislative and judicial systems. The Lieutenant Governor’s Court, presided over by a Deputy Judge Advocate, was the first Court created specifically for Van Diemen’s Land. Prior to this Court opening its doors in 1815, the only judicial officers who heard cases on the Island were magistrates and justices of the peace. Their powers were wide-ranging: ordering corporal punishment or transportation for non-capital offences as well as a range of administrative powers to ensure civilian society operated in an orderly way. An example of this was the Assize of Bread which regulated the price, weight and quality of bread.  

With the growth of the Colony of New South Wales it was inevitable that the original judicial provisions in the First Charter of Justice would be insufficient to provide access to justice for all: free citizens, military personnel, convicts and aboriginals. In 1810 Deputy Judge Advocate Ellis Bent, in a letter to Under-Secretary Cooke, declared that the Criminal Jurisdiction of the Colony was “imperfect in every point of view”. In response to such opinions by Bent and others, the House of Commons set up a Select Committee to inquire into the effectiveness of sentences of transportation and other matters. The resulting Report in 1812 put forward proposals for reforming the Colony’s judicature.

The proposed changes related only to the civil courts and were the subject of Letters Patent, referred to as the Second Charter of Justicein 1814. Gone was the old Court of Civil Jurisdiction and in its place a Supreme Court whose jurisdiction would extend to Van Diemen’s Land. In a development, reminiscent of the Samuel Bate farce, the first Chief Justice, Jeffrey Bent, never presided over any cases, refusing to sit when three ex-convict lawyers, George Crossley, Edward Eagar and George Chartres were the only lawyers available in Sydney to provide legal representation for litigants. It was not until 1817, when Bent was recalled and replaced by Barron Field, that the Supreme Court was at last able to open for business in Sydney. Late in the following year the new Judge sailed to Hobart and held the first sittings of the Supreme Court in Van Diemen’s Land in January and February of 1819.

The establishment of a Lieutenant Governor’s Court in Van Diemen’s Land in December 1815 had also been delayed. The official documentation appointing Edward Abbott as Deputy Judge Advocate arrived after the imposition of martial law by Lieutenant Governor Thomas Davey in April 1815. Davey had taken this step, despite being told by Governor Macquarie that it was illegal, as he attempted to deal with the bushranging problem in areas around Hobart. With military law remaining in place for six months, Abbott was unable to be sworn in until November 1815. The Court finally opened in December 1815, providing the inhabitants of Hobart with a new avenue of legal recourse for those involved in trade and commercial dealings. Even the ₤50 limit was able to be manipulated with litigants splitting larger debts into multiple actions of ₤50 each.

Under the provisions of the Second Charter of Justice the Supreme Court also sat in Hobart in 1819 and 1821 to hear civil matters beyond the scope of the Lieutenant Governor’s Court, and Judge Advocate Wylde conducted criminal hearings in 1821 and 1823. In the criminal sittings in Hobart during February 1821, 116 persons were committed for trial, and 25 were sentenced to death, though only 10 were eventually executed.

Even though Sydney-based judges were now making the effort to hold sittings for civil and criminal matters in Hobart, albeit at two yearly intervals, the citizens of Van Diemen’s Land wanted more independence in conducting the affairs of the Island and were making representations to the Colonial Office to achieve this. In addition both Judge Field and Judge Advocate Wylde were expressing concerns about their ability to provide adequate judicial services to the people of Van   Diemen’s Land, citing distance, cost, and inconvenience as factors contributing to the problem.

The UK government also felt it was time to review again how effective transportation to New South Wales was as a deterrent to crime. In 1819 Lord Bathurst, Secretary of State for the Colonies, appointed John Thomas Bigge as a special commissioner to investigate all aspects of the colonial government: finances, church, judiciary and the convict system. Many of the recommendations in the Bigge Reports would be incorporated into the New South Wales Act 1823 along with the accompanying Third Charter of Justice. In the case of Van Diemen’s Land it provided for legal separation from New South Wales, and the establishment of its own Executive Council and Supreme Court.

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The operation of the First Charter of Justice in Van Diemen’s Land

When Governor Arthur Phillip arrived at Sydney Cove in January 1788 with 850 convicts, guards and officials, he had absolute authority over everyone in the colony, including the Aboriginal inhabitants. The legal basis for Phillip’s authority was the First Charter of Justice for New South Wales, Letters Patent, 2 April, 1787 along with The New South Wales Courts Act 1878 (UK).

Under the Law of Nations (the equivalent of international law) at that time, the Australian continent was regarded as terra nullius. When Phillip arrived, he was able to plant the British flag, read the proclamations issued by the British Government and proceed to set up the Penal Colony of New South Wales along with establishing the necessary Civil Government. The concept of terra nullius remained in the Australian legal system until it was overturned by the High Court Mabo judgment in 1992.

In the case of Van Diemen’s Land, it had already been claimed for the Stradtholder of the Netherlands in 1642 by the Dutch navigator, Abel Tasman. Part of the deal in claiming such land was that you then had to establish a settlement. However, having made the claim, Tasman then sailed away and there was never any Dutch follow-up.

It was a different story in 1803, when Van Diemen’s Land was officially claimed as British territory and part of the Colony of New South Wales. As such it was now subject to the provisions of the 1st Charter of Justice with access to justice available in the courts established in Sydney.

Lieutenant John Bowen had been despatched by Governor King in Sydney to start a settlement in Van Diemen’s Land and to raise the flag in the name of His Majesty. Earlier in 1803 King had become concerned that the French had designs on claiming parts the continent, even though the explorer Nicholas Baudin, when he sailed into Sydney Harbour, insisted his voyage was a purely scientific one. King was taking no chances and had hastily packed the young Bowen off to the island, providing him with the appropriate proclamation, a flag and a suitably magnificent uniform to wear should any French explorers decide to sail up through Storm Bay and into the Derwent River. Sadly, for Bowen and his uniform, they never did.

His command was short-lived as Lieutenant David Collins had been despatched by the British government to establish a colony in the southern parts of the continent or in Van Diemen’s Land (again in order to thwart any possible French attempts to claim territory). Collins original choice was Port Phillip Bay in what is now part of the State of Victoria, but he abandoned that as unsuitable and sailed on to Van Diemen’s Land. Not impressed with the site chosen by Bowen, he moved the settlement to the current site of Hobart and assumed control as Lieutenant-Governor. A second settlement was also set up at Port Dalrymple by Colonel Paterson.

In 1804 Royal Letters had been issued appointing Samuel Bate as Deputy Judge Advocate for a colony to be established by David Collins, but when Bate eventually arrived in Van Diemen’s Land in 1806 he did not bring the necessary Charter of Justice which would allow courts of civil and criminal jurisdiction to be set up in the colony. Collins was not happy, writing to the Colonial Office after the arrival of Bate –

“The arrival of this Officer had long been anxiously expected by me, as I had hoped the administration of Public Justice and the infliction of Capital punishment would follow his appearance and that the Commission of Crimes, which the peculiar Circumstances of the Settlement have rendered frequent, would thereby have received an effectual check; but to my extreme regret, I learned from himself that he was wholly unprovided with the Authority from Parliament necessary to constitute  a Court of Criminal and Civil Judicature.”

So Collins was left with a Deputy Judge Advocate who continued to be paid until 1814, but with no ability to set up a court over which he could preside. The Judge Advocate in Sydney could have gone on circuit to Van Diemen’s Land, but was unwilling to make the arduous sea journey. This left the judicial administration of the Island in the hands of the courts operating in Sydney, but the distance, inconvenience and cost of travelling by sea to resolve legal matters meant that magistrates and justices of the peace in Van Diemen’s Land ended up dealing with all but the most serious cases such as murder and complex civil matters.

It was not until 1816 that Edward Abbott, appointed as Deputy Judge Advocate under the terms of the 2nd Charter of Justice, would begin hearing civil matters in Hobart up to the value of ₤50 and a further five years for Judge Advocate Wylde to make the trip from Sydney to Hobart to hear criminal charges against 116 prisoners.

 

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How it began

Back in the mid-1990s, when searching for old transcripts, I stumbled across a treasure trove of brown paper parcels tied up with string (well pink legal tape to be accurate) in a storeroom in the Tasmanian Supreme Court.

All the parcels had labels attached that were inscribed, intriguingly, with regnal years and numbers up to 1947 when the practice of using regnal numbers was replaced by calendar years.

When I carefully started to unwrap some of the parcels I discovered each parcel contained the Acts of Van Diemen’s Land (later Tasmania) for the regnal or calendar year written on the label, starting from 1833. The first Act in the collection I had uncovered, 4 William 4, No 1, dealt with the licensing of public houses, the subject of much legislation in the years to come. Exciting as it was to see the original copy of the 1833 Act, it immediately posed the question as to where the Acts from 1826-1832 were – a mystery to ponder on another day.
Then another question presented itself – why handwritten on vellum, when copies of the Acts had been printed in the Hobart Town Gazettes since 1826. Up until 1852 all the official copies of Acts held by the Supreme Court had been handwritten on vellum sheets of various sizes (up to 63cm x 77cm). Often the scribe had added many artistic flourishes and embellishments to the letters. Large sheets had been folded for storage purposes and opening them up is a tricky process because the vellum, made from the skins of young mammals, has a muscle memory and once folded for a period of time, will resist being laid flat. The sheets are also of varying thickness, some quite thin and others much thicker. From 1852 page sizes became slightly more standardised, with smaller dimensions that meant no folding was required.

The Acts are signed by the relevant Lieutenant Governors, including Colonel George Arthur, (see below) Sir John Franklin, Sir John Eardley-Wilmot and Sir William Dennison for the period 1833-1852.

Continue reading

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The Journey

Loose connections is a leisurely ramble through the vellum and parchment pages of Tasmanian legislation, along with case law. It is always open to wandering off into the tangled undergrowth of all things Tasmanian.

There is an eventual destination: overseeing the transfer of the official copies of Tasmanian legislation from 1833 to 2013 to the Tasmanian Archives and Heritage Office. Along the way we will meet a motley crew from all walks of life – judges, legislators, officials, farmers, shopkeepers, mariners, free settlers, convicts and the first peoples of this island state. I hope you will enjoy the journey, even if you only pop in for brief catch-ups along the track

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