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Sir Alfred Stephen and the Reform of the Court System in Van Diemen’s Land

ALEX LOW[*]

I INTRODUCTION

In nineteenth century England, a groundswell had developed calling for reform in many areas of the law.[1] The English legal system at the turn of the 19th century was one inflicted with vast complexity and characterised by ‘decentralised and overlapping laws and courts’.[2] In the area of administration of justice, the workings of the Court of Chancery were under critical examination.[3] By the 1860’s there was an attempt to introduce a system of county courts to make justice more readily available to outlying areas and to make it function more effectively.[4]

Legal reform came at the same time as interests in social reforms were stimulated by economic, humanitarian and utilitarian factors. These reforms were just part of the reform movement which swept England and to which Bentham’s ideas formed the basis of a movement which was to transform not only the law but permeated economics, religion and politics. In singling out the ‘parasitic’ aristocracy as the class which profited most from the perpetuation of the political system and established church, which were both ‘riddled with abuses’, the reforms suggested by Bentham had powerful forces resisting their implementation.[5]

In examining the roots of the 19th century English reform movements, the role and trajectory set by the popular radicalism of the 1790s and the democratic agitation caused by the French revolution, to some extent, moulded the shape of what was to come. Whilst the radicals of the 1790s aroused ‘anti-jacobin alarmism’[6] and never established a broad base of support, it was nevertheless these initial flickers of change that were to grow into flames of reform.

Having developed over hundreds of years essentially unimpeded, the English court system underwent drastic reforms during the nineteenth century in order to overcome many of the ‘illogicalities and defects’[7] which had arisen. The case for change was perhaps most forcefully articulated by Lord Brougham in a six-hour lecture delivered to the House of Commons in 1828. The speech was met by a flurry of official inquiries and eventually legislative action which was to have a broad and lasting impact.[8]

This push for reform was mirrored in the colonies; but in addition there was now a sea-change from having English laws adopted almost verbatim in the colonies, to a view that laws needed to suit local requirements and so would better guarantee free Englishmen abroad their rights.[9] The Australian colonies were no different and with their changing population composition from a predominantly convict demographic to free settler colonies[10] there was increasing dissatisfaction with the carte blanche adoptive approach. As noted by Currey:

In the result not only did the Council[11] ignore certain legal amendments arising out of principles and practices peculiar to England, and adopt only so much of the different British statutes as were of value to the Colony but ... they enacted measures embodying principles new to England.[12]

In Van Diemen’s Land, this manifested itself in concern for the plight of convicts and the need to re-examine penalties in the light of changing economic and social conditions caused by the increasing pressure from now freed convicts who demanded the same rights as free British citizens.[13] The percentage of convicts in Van Diemen’s Land to free settlers in 1820 was 54%; however this figure fell dramatically to 29% by 1851 as the colony expanded and numbers of convicts were emancipated.[14]

As noted by Kercher, ‘[s]imple societies, the authorities felt, needed only simple courts’.[15] Upon this premise, it was to the authority[16] of the Governor of New South Wales to establish ‘from time to time, a court of judicature for trial and punishment’.[17] The court was to consist of a judge advocate presiding over all legal matters in the colony and continued as such for nearly three decades. In being neglected by both Sydney and London between the years of its association with the colony of New South Wales (1803-1825), Van Diemen’s Land was essentially a realm of legal amateurism.[18] It was not until 1814 that a separation of criminal and civil jurisdictions was effected in the colonies and a Lieutenant-Governors Court was established in Van Diemen’s Land to deal with purely civil matters where the sum in dispute did not exceed 50 pounds. Matters over 50 pounds were to be dealt with in the Supreme Court which was similarly established in the colony of New South Wales through the 1814 letters patent (commonly known as the ‘Second Charter of Justice’[19]) but did not open until 1815. Criminal matters in Van Diemen’s Land were removed to the Court of Criminal Judicature at Port Jackson[20]; however, it was not until 1821 that this Court of Criminal jurisdiction actually convened when ‘the colonial administration in Sydney was virtually shamed into sending it on circuit to the southern dependency by Commissioner Bigge’.[21]

Prior to the establishment of the Lieutenant-Governors Court, the Bigge Report points out that ‘there had existed [in Van Diemens’s Land] no authority for the trial and determination of civil causes’ and criminal matters were generally dealt with through the modalities of the New South Wales judicial framework.[22] Up until the machinery of the criminal law was operating in Van Diemen’s Land in 1821, serious criminal offences (of a capital nature) were dealt with locally and severely by magistrates who often had ‘no legal authority to impose capital punishment or further transportation’.[23] The development of the criminal jurisdiction in Van Diemen’s Land prior to 1821 reflected ‘deeply entrenched customary practices’ which ‘deeply affected attitudes in Van Diemen’s Land towards authority’.[24] In reaction to such sentiments, and in an effort to make somewhat of a statement to the British authorities on the need for a court in Van Diemen’s Land to trial serious offences, a large number of criminals were put to trial and nineteen executed on the first visit by the Criminal Court in 1821 to the Island. Such unprecedented official slaughter in the colony even moved the ‘normally conservative’ Bigge to cast such actions as an over reaction.[25]

In terms of the civil jurisdiction in Van Diemens’s Land, the first four terms of the Lieutenant-Governors Court, from 1816 to 1819, saw one thousand five hundred and sixty causes entered.[26] The composition of the court consisted of a deputy judge advocate and two inhabitants of the colony appointed by the Lieutenant Governor. On the whole, the Lieutenant-Governors Court operated in a ‘more summary and less complicated manner than the other tribunals of New South Wales’.[27] Whilst drawing no explicit connections with the observation of judicial expediency, the Bigge Report also noted that as late as November 1821 no lawyers had arrived in Hobart Town to practice.[28]

The Supreme Court’s first visit to Van Diemen’s Land was in 1819. As Van Diemen’s Land grew as a settlement and commerce began to take an increasing role in the life of the colony, the difficulty in having the limited jurisdiction of the Lieutenant-Governors Court (with its 50 pound limit) and the sheer distance of the Supreme Court in Sydney became an ‘embarrassment’ to local merchants and consignees of cargo.[29] Upon this basis and the fact that criminal activity had increased in Van Diemen’s Land owing to the ‘distance and long absence of any controlling judicial authority’, the Bigge Report recommended the establishment of a separate civil and criminal judicature for Van Diemen’s Land distinct from the colony of New South Wales.[30]

The power to officially establish a Legislative Council and Supreme Courts in each Colony was derived first from the Imperial Act of 1823,[31] and then subsequently from the new Charter of Justice, 1828[32] which had been designed to solve problems which had emerged since 1823. Furthermore, the 1823 Act authorised the creation of the Courts of Quarter Sessions and the Courts of Requests in what Kercher maintains was a reflection of the transplantation of the diversity of the bodies of English Law and Court structures to Australia.[33]

The main problem, however, had been the inadequacy of the judicial system in New South Wales, and so the new Act (1828) was particularly directed at the administration of justice. Apart from making certain provisions as to the Supreme Court in New South Wales,[34] the finer details of the judicial system were left to the Colonial governments. This meant the government of Van Diemen’s Land was given power to control the machinery of the Courts of Quarter Sessions and Courts of Requests. As a result of this power, a local Act[35] was passed in 1830, outlining the power of the Quarter Sessions. These powers were significantly greater and stricter than those which had applied before 1828 in the colony, a reflection of Arthur’s strict philosophy upon penal administration philosophy. Arthur’s views were moulded by the British government. The British view was dependant upon whether one accepts a long-term or a short-term interpretation. In the short-run, British authorities had the idea that Van Diemen’s Land would be a repository for its criminals, yet it did have a longer view that eventually Van Diemen’s Land would be a free colony with the entire infrastructure that would be expected by a free citizen. Arthur, being the bureaucrat that he was, accepted to the letter that Van Diemen’s Land was a penal colony, first and foremost, even if some of the inhabitants were free citizens. As Arthur put it: ‘... (he) was the Governor of a wretched sequestered lot, peopled by the refuse of Newgate’.[36] The radical anti-government newspaper the Cornwall Chronicle expressed reluctance in accepting Arthur’s outlook as late as 1835, when in a discussion upon prison discipline in the context of transportation being ended in Van Diemen’s Land, the Editor related:

We differed with our contemporary, the Colonial Times, when it expressed the late meeting at Hobart Town ... (which) ... argued discontinuing this Colony as a Penal settlement ... it would not be productive of good to the general interests of the free inhabitants to put into effect the prayer advocated at that meeting.

Specifically the Act increased the powers of the court:

1.The three magistrates of the Quarter Sessions were given the power of summary jurisdiction in all non-capital cases.
2.The Court was also given jurisdiction over all felons in cases of drunkenness, disobedience, neglect of work or duty, indecent language and indecent exposure[37].
3.Powers in relation to punishment were extraordinary. They extended the earlier Acts[38] so that, for example, sentences of transportation could be extended for three years.

Simultaneously, a local Act set up the Courts of Requests.[39] The function of this Court was to adjudicate in small debts cases. The courts were given power to deal summarily with all matters involving not more than 10 pounds. In cases involving more than 10 pounds the Courts’ decision was final except in cases involving future rights. Whilst the new court structure adopted was expressly based on that of England, it was not burdened by much of the complexities and overlapping jurisdictions of the English system.[40]

On the 4 May 1831, a Royal Charter was granted, pursuant to the English Legislature[41] which empowered the Van Diemen’s Land Legislature to set up the Supreme Court of Van Diemen’s Land.[42]

It was within this climate that Alfred Stephen was appointed Solicitor-General in 1825 and as Attorney-General in 1832.[43] In the course of carrying out these duties he developed an intimate knowledge of the framework of the Courts of Van Diemen’s Land. Apart from this official connection, Stephen was concerned to make the Courts function efficiently. Between 1830 and 1839, he was to be the main force behind the reforms which significantly improved the functioning of the Supreme Court, the Quarter Sessions and the Courts of Request.

II STEPHEN: A REFORMING VISION

Stephen did not openly display dissatisfaction with the functioning of the Courts until 1831 and until his departure in 1839, Stephen almost single-handedly investigated, changed and reformed the entire administration of the Courts.

This was foreshadowed in 1831, when Stephen wrote an article, published in the Tasmanian, outlining his plans for improving the administration of justice and evidencing his concern at the inefficiency of the present Court system. Stephen explained the need for a new Court system by highlighting that such reforms would confer upon the colonialists ‘the benefits of expedition, certainty and regularity of justice in all the Courts of the island to the great relief of suitors and prevention of crime by a speedy and equal system of punishment’.[44]

He then proposed ways of standardising decisions and generally increasing the efficiency of the legal system:

Stephen suggested that the Supreme Court should have three Judges instead of two, the second and third Judges combining their Supreme Court functions with the Chairmanship of the Courts of Quarter Sessions and the Courts of Requests.
Stephen also proposed the setting up of a circuit system which the Judges would attend alternately, ensuring the sittings of minor Courts.[45]
Another innovation that Stephen suggested was the keeping of official record books in one place in the hope that this would enable ‘a uniform system of decisions and course of practice’.[46]

Stephen’s plan elicited considerable praise in unofficial circles. The Tasmanian, for example, referred to it as a ‘highly judicious and expedient plan for the reorganisation of our judicial establishment’.[47] The same paper felt that the suggestion for a circuit system was the most important of Stephen’s ideas but in no small part to the rapidly expanding population of the island. The Tasmanian also referred to ‘[t]he obvious necessity of not confining the administration of justice to this Town only but expanding it to the ... northern division of the island’.[48]

The changes that Stephen envisaged could only be implemented, however, with the approval of British officials and Parliament as the changes went well beyond the powers granted in the Charter and would thus have been repugnant to British Legislation.

This certainly was a source of frustration for Stephen, knowing that someone with competence and understanding was needed to lobby the British Officials, and it was soon transparently clear to Stephen he was the only person who had the ability and knowledge to do so.[49]

At the same time, he appeared to be reassessing his personal achievements and future ambitions. Of course it is impossible to understand Stephen’s frame of mind at the time. However if we look at the facts, we find that whilst he was only 29 years of age in 1831, he had been Solicitor-General for 6 years and perhaps it was the lack of challenge in the position that made him restless. He had ambitions to become Attorney-General or for elevation to the Bench. These ambitions were perhaps most poignantly revealed in Stephen’s own words when he wrote in a letter to Arthur:

I assume the necessity of appointing a judge ... I bear in mind the Necessity of my quitting this Colony in January next or thereabouts ... there appear to be two courses open to me

1.If Hone[50] were appointed I would depart and there would be no harm to the public interest for it would be easy to find a locus tenens to the Solicitor-Generalship.

2. If Hone were undesirable Mr. Montaque would be appointed ....the state of the Bench would be infinitely advanced, but on the other hand the public interest would suffer ... since it would not be so easy to find a locus tenens for the Attorney-Generalship ... For my part I have made up my mind I will not be a judge if I can be Attorney-General and I will be neither one nor the other if it should prevent my leaving Van Diemen’s Land in January-February next.[51]

Stephen revealed his thoughts to Arthur when he wrote to him about his possible trip to England. He informed the Lieutenant-Governor that he would rather be a judge than stay in his present position, that he wanted the Attorney-Generalship ‘most of all’ but with the admission that ‘of Mr Montaque vacating his office I utterly despair’.[52] Finally in September Stephen had made up his mind and he wrote to Arthur saying he would not accept any office which prevented him departing Van Diemen’s Land.

Stephen’s disappointment was common knowledge and in the community it was rumoured he would not return. Even his most trenchant critic, the Colonial Times opined that his permanent departure would be unfortunate and praised his talents:

In whatever point of view we regard his loss whether as a public or private character, as a lawyer or a gentlemen ... we know not in what his final departure is to be most deplored ... he reminds us of the late Sir Samuel Romilly, we equally trust in the elevation to which his great talents and reputation cannot fail to raise him at the English bar.[53]

It can be seen that even at this early stage of his career, Stephen was being seen as a man with a strong sense of public duty and as a potential force in law reformation. This showed remarkable insight, for up until his departure, Stephen had done very little in this area; yet the rest of his life was almost entirely devoted to law reform in both Van Diemen’s Land and New South Wales.

Most of all, Arthur must have felt the impact of Stephen’s departure. Stephen was the only legal advisor in whom he had confidence, and this was probably instrumental in Arthur nominating him for Attorney-General after he left the Colony.[54] In any case, it was agreed that Stephen would discuss official business whilst in England.

He reached London in November and went, almost immediately, to Downing Street to get ‘news of official topics’[55] and at the same time to discuss the Colony’s judicial system.[56]

Whilst Alfred Stephen was not acting under strict orders from Arthur in this matter he had the courtesy to correspond with him to explain that he would not implement any measures without Arthur’s approval.

Alfred obviously felt no hesitation indicating to James Stephen, his first cousin, his views and aspirations for Van Diemen’s Land and, in particular, upon the administration of justice.

As Alfred wrote to Arthur

I have satisfied James of the inconvenience likely to arise from the want of any plan in our present Charter for deciding points where the two Judges may differ. I deem the only plan for this purpose is the creation of a third Judge.[57]

It may be said that considering the broad scope of Alfred Stephen’s original suggestion, it is not surprising that he tried ‘to get some points attended to, of still greater moment in relation to the Courts’.[58] It can be seen he was not attempting to override Arthur but rather to grasp the opportunity to introduce a vitally important reform. As he made clear to Arthur,

[n]o plan would be acted on without your and Mr Pedder’s report on it. All that I want is now whilst one Colony and its Courts are on the legislative carpet that a door should be opened for improvements also in Van Diemen’s Land at a future period.[59]

James Stephen was obviously impressed with Alfred’s ability as he left to him the tasks of preparing the Charter along the lines Alfred wanted and of drawing up the Act of Parliament.[60] Alfred’s suggestions were revealed in a long official letter to Under-Secretary Hay, and were obviously based on his Tasmanian article of August 1831. The letter pointed out the need for constitutional reform to set up for resolving differences of opinions between the currently two Judges in the Supreme Court, since the cases in which conflict was likely were ‘those of the most interest to the Colony and on which it is most important ... that there should be decision’.[61]

Stephen then discussed the wider topic of the inadequacy of the existing Court system. His main criticism was the lack of established rules for the practice of the Court and he pointed out that such defects could only be remedied by an Act of the Imperial Parliament.

Stephen was also critical of the inconsistencies between the Act[62] and local legislation as well as some technical faults in it. For example, the local Act made provision for trial of issues at different places simultaneously, whilst the Act stipulated trials at only one place.[63]

Stephen also pointed out that the local Acts established circuits whilst the Charter only allowed the Imperial Parliament to do this.

Finally, the Charter allowed trials before one Judge yet there was an ambiguity, for a Judge sitting alone could not give judgments or sentence.

A fundamental criticism that Stephen advanced was the lack of centralised control of the Courts. This, he said, led to inconsistencies and consequently injustices. He pointed out that there were seven district Commissioners of Requests and five district Chairmen of Quarter Sessions, each having the administrative powers of fixing the time of trial, of transportation, hearing, and determining appeals. Stephen’s solution was, as he had done in 1831, to coordinate the various positions into two Chairmanships, held by the second and third Judges.

Stephen was convinced of the advantages of this scheme, and expressed his confidence in recording that ‘[e]very friend of the Colony must wish for the adoption of this plan which is of all others best celebrated to remedy the manifold and serious defects in the existing judicial system’.[64]

Stephen also made suggestions in relation to practitioner’s viz. altering the standing of Article Clerks. Stephen recognized the dire shortage of the legally trained in the colony and, to make it easier for an articled clerk to become qualified, he effectively deemed that any period served under an attorney in any English or Australian court was accepted and counted toward the 5 year clerkship period.[65] More over, Stephen also made suggestions with respect to separating Attorneys and Barristers and restricting the rights of law officers in private practice. In 1825 Stephen had a rather bitter experience when he had reason to lay a complaint against his superior, Joseph Tice Gillebrand, the first Attorney-General of Van Diemen’s Land, for overcharging and for accepting payment from both parties when conducting his private practice.[66] His overall aim was to reform the judicial system so as to provide, in his own words: ‘a uniform system of decisions and the correct course of justice’.[67]

A testament to Stephen’s search for efficiency, was the method he suggested to introduce his reforms. Originally Stephen had wanted a new Charter for the Colony but soon realised that this would be too sweeping as it meant in reality, abolishing all the Courts, Judges, law officers, and proceeding anew.[68] Instead he asked James to introduce a short Bill entitled ‘An Act for the more effective administration of practice in New South Wales and Van Diemen’s Land’.

Alfred Stephen’s hope was that such a Bill would be considered when the Australian Courts Act 1828 had expired in 1836. The Act, however, was kept in operation by successive enactments and it was not until 1839 that an Act was passed[69] which contained a provision giving the local legislature the power to regulate entirely the judicial structure of the Colony.[70]

III REFORM OF THE EXISTING COURT SYSTEM

Despite his failure to convince the Colonial Office to support his overall reform of the Court system, Stephen was still able to improve the nature and functions of the various individual Courts.

A The Courts of Quarter Sessions

The inadequacy of the Quarter Sessions Act[71] which completely regulated the procedure and defined the powers of the Courts had become obvious to Arthur by late 1834. He wrote to Stephen asking him to correct an administrative defect in the Act relating to the taking of fees at the Police office.[72] Stephen was too busy to do this for about six months but when he finally replied to Arthur informing him that he had finished drafting the law, Stephen had both complied with Arthur’s specific request, dealt with in sections 12 to 15 of his draft, and at the same time completely transformed the Act. Stephen, apologising for the delay, wrote ‘I had very much mistaken the extent of my task, as it approached completion I found a hundred things to improve on or alter’.[73]

Stephen’s draft Act was published in the Tasmanian shortly afterwards and the paper commented ‘From what appears there is much to approve’.[74]

The published plan had nine major points but most were technical and the only provisions which received any public attention were three relating to punishment and to aiding criminals. The question of punishment had been an issue in the Colony from early in 1835, when editorials appeared in several newspapers complaining about the severity of sentences imposed in the Quarter Sessions. The Tasmanian’s opinion had been typical in its position that ‘The severity of the sentences passed by the Magistrate in the Quarter Sessions has been from the very institution of the Court a subject of general regret’.[75]

The promise of modification of this severity as well as the changing of laws relating to assisting criminals met with approval in the press. The Tasmanian for example, wrote ‘[w]e rejoice to be able to state that Mr. Attorney-General Stephen has prepared an Act of Council consolidating the extremely obnoxious Turkey and Persia Act – the Police Harbouring Act’.[76]

Some months later, whilst reviewing Stephen’s proposals again, the same newspaper raised the punishment question again:

Among the modifications is the wide distinction to be drawn between the punishment to be adopted in the case of free felons and convicts ... the great mistake in legislating for PRISON DISCIPLINE hitherto has been the mixing together of the free and the bond.[77]

Stephen’s new Act was obviously designed to accommodate the growing class of free citizens in the Colony. The statistics show that in 1820 convicts were 54% of the population. By 1851 the number had dropped to 29%.[78] When the original Act had been passed in 1829 its main object had been to regulate the efficiency of a large prison. By 1835, however, the free Colonists had become a far more powerful force and were demanding the same rights that all free British subjects received. The Quarter Sessions Act was to give to these free citizens many of these rights by reducing some of the arbitrary powers under the Act, and by making a deliberate distinction between free and non-free in relation to punishment.

The completed Act[79] was passed by the Council on 4 August 1835. Its emphasis was on consolidation. The act incorporated six separate Acts into one, cutting down areas of over lapping or conflict and including areas which and been neglected. The Tasmanian had written of the Bills that ‘[i]t consolidates in substance most of the provisions of several acts and as to the remaining provisions substitutes enactments more or less modified’.[80]

The new Act was divided into three Divisions:

1 Division One

The first division of the Act dealt with the functioning of the Court and with the punishment of offenders; Division Two dealt with the jurisdiction of the Court and with matters relating to the harbouring of criminals; and Division Three dealt with transported offenders and bushrangers.

The most important innovation in the first category was the regulation of the Courts in cases of summary jurisdiction. Such cases were to be heard regularly and in each district. Stephen also clarified the application of summary jurisdiction ‘to all transported offenders under original or extended sentence’.[81]

The Act also defined the type of punishment for summary matters and the defendants to whom this would apply. The same punishment could now be given to both imprisoned and transported offenders – a consolidation of the old Gaol Act. Stephen’s Act also reduced the powers of magistrates, sitting alone in summary jurisdiction, from being able to give sentences of three years, to one year.

In addition, the Act greatly simplified procedure in the Court. In relation to summary matters, the long process of initiating convictions in the Supreme Court was replaced by a far simpler procedure where the Clerk of Peace was nominally made the Prosecutor.[82] In addition, convicts accused of capital crimes could be sent to the Quarter Sessions, rather than to the Supreme Court, if it was obvious that the convict would not be put to death.[83]

2 Division Two

The second Division of the Act dealt with matters that Arthur had asked Stephen to investigate. In addition, Stephen wrote ‘[t]he draft contains certain provisions upon subjects as to which I have received no specific instructions but to which my attention ... has been directed’.[84]

Arthur’s main concern related to the punishment of prisoners,[85] but Stephen went far beyond this. His Act removed the magistrates’ rights to punish summarily free men. Thus these provisions did two things. They simplified procedure and, by radically reducing summary powers in relation to free citizens, they brought the Act more into line with the changing nature of the Colony.

A main concern in this Division of the Act was to prevent assistance being given to runaways.[86] This was a continuing problem in the 1830’s and to this end he included Section 40, which provided that if there was reasonable cause to believe that a person was a runaway, then this was to be taken as actual knowledge.[87]

Whilst Stephen considered the punishment of prisoners in the 1835 Act, he did not immediately address the internal management of the imprisoned. However, he did address this area in his 1839 reform of the Act after raising the matter with Arthur.[88]

In summary, the Second Division of the Act provided absolute certainty as to the laws relating to absconding criminals and to persons assisting them, including certainty as to a magistrates’ power in such cases.

3 Division Three

The third division of Stephen’s Act[89] achieved two main objects. It modernised some of the provisions of the Transportation Act by abolishing the death penalty for convicts illegally at large and allowing the offence to be dealt with as a misdemeanour,[90] provided that two magistrates were in agreement. In addition, the Act introduced sections to allow for severe punishment for all persons supporting or receiving from bushrangers.[91]

Stephen’s provisions were much more extensive than similar provisions in the New South Wales Act and included the provision that publication of a reward was prima facie evidence of guilty knowledge that a person was a bushranger.

Taken as a whole, the Act transformed the functioning and powers of the Court. It was far more procedurally simple due to the selective extension of its summary power. Yet on the one hand it was more positive and straightforward, in that for the first time the Court could deal expediently and effectively with all types of criminals and persons’ assisting and harbouring them as all powers were now under the umbrella of one Act. On the other hand the Division also contained special limiting powers in relation to free colonists.

The reform of the Quarter Sessions Act was thus the result of a number of factors:

Arthur’s desire to increase the efficiency of his administration;
The free community’s desire to establish their rights; and
Stephen’s desire to ensure that the law provided society with the maximum possible benefit.
Stephen saw that the social changes in the Colony made the existing laws inadequate, and convinced Arthur that to preserve social harmony many of the restrictions appropriate to a purely penal Colony would have to be lifted.

At first blush, one could not see how the Attorney-General could convince a disciplinarian such as the Lieutenant Governor of the advantages of introducing such enlightened legislation.

Consider the facts: Arthur was a person who believed strongly in the rule of law as narrowly interpreted by him; he believed in exercising personal control over the system he had established under the auspices of the brief he had been given to run a convict colony; Arthur was a devoutly religious man who subscribed to the utilitarian approach of pleasure and pain as a basis for rule.[92] As such, Arthur’s approach to the punishment of convicts, although strict, could not be called sadistic. Given this personal moral foundation, Arthur’s actions were generally fair according to his own standards as he took ‘considerable trouble to ascertain the facts in a dubious case’ in the dispensation of punishment.[93]

Arthur’s philosophy on the ideal on the common good generally encompassed the social dominance of a landed, god-fearing gentry ‘unsympathetic to radical fantasies, whose behaviour would provide a good example to the lower classes, and whose industry would stimulate the economic development of Van Diemen’s Land’.[94] This subscription to the virtue of authority on the part of Arthur’s professional (if not personal) beliefs can be used to translate the attitude held by Arthur in respect of the rule of law. The rule of law was the strict adherence to established authority with little, if any, room for deviation or discourse.

Consequently, the newspapers of the day, at every opportunity, attacked Arthur not only for the way he ruled with an iron hand but also for the alleged favours he gave to relatives and supporters. He favoured the appointment of men with a military background because of their disciplined background, even though these men may not have been the best qualified for a position: for example he made them magistrates and lacking a legal background they often overlooked material facts. However, at least they were honest, unlike their predecessors.[95] He also appointed relatives to important colonial positions, but then again, it was an age of patronage and they all proved to be honest and capable.[96]

Stefan Petrow[97] looks at this rigid and almost cruel disciplinarian streak in Arthur when he examines the case of convicts who conspired to murder ‘even though it might end in their death’ but would provide a respite for fellow conspirators, such was the harshness and rigors of convict life at Port Arthur.

In the end it was the Attorney-General who prevailed, probably due to the unquestioning respect Arthur had for him as a lawyer; Stephen’s technical skill and tireless energy, together with Stephen’s undoubted influence upon Arthur which enabled him to have a statute enacted which satisfied both Arthur and the free community. A third factor which probably weighed heavily upon Arthur’s mind was that he was at the time under siege for disregarding the rights and liberties of the colonists and he simply had had enough.[98]

The late Professor Alex Castles argues that in Van Diemen’s Land, there was developing what he describes as a Vandemonian Spirit, which was characterised by a strongly independent frame of mind, a deep suspicion for authority, healthy cynicism about it and a refusal to take things at face value.[99] The anti-Arthur newspaper, the Cornwall Chronicle, seems to echo this spirit when it stated that even convicts should receive fair and democratic treatment according to British law which applied to every Englishman.[100]

The Act as it stood was still too complicated and, although it worked fairly effectively for a number of years, the changing population composition and social mores of the Colony necessitated a further change towards the end of the decade.

By this time Stephen was no longer working for the Crown,[101] yet he was by far the most experienced lawyer in the Colony and was persuaded by Arthur to prepare a new Act for the Colony.

The resultant Act[102] did not break new ground as the 1835 Act had done, but it considerably refined some of Stephen’s earlier work. The following points can be made:

The new Act reflected, as the old Act had done, the changing social composition of the Colony. [103]
The powers of the magistrates were again reduced specifically in the following areas:
The right of imposing transportation for life was abandoned and all crimes which were liable to penalties of ten years or more had to be tried before a jury.
There were fewer opportunities for use of the punishment of solitary confinement and powers of flogging were drastically reduced.
Fines replaced prison sentences as the penalty for assisting or harbouring absconding convicts.

The punishment handed out to bushrangers illustrates that Stephen’s reforms may not have had the effect of granting the fair treatment that is presupposed by the reforms.

Fate of Van Diemen’s Land Bushrangers: 1807-1846[104]


1807-23
1824-34
1835-46
1807-46
(Total)
Executed
18 (20.0)
89 (69.0)
13 (11.9)
120 (36.6)
Shot and killed whilst at large
8 (8.8)
7 (5.4)
6 (5.5)
21 (6.4)
Re-transported to a penal settlement
27 (30.0)
19 (14.7)
71 (65.1)
117 (35.7)
Lesser punishment (flogging, confinement, etc)
5 (5.5)
2 (1.6)
1 (0.9)
8 (2.4)
Pardoned or surrendered under amnesty
20 (22.2)
6 (4.7)
1 (0.9)
27 (8.2)
Never Caught, run, absconded
1 (1.1)
2 (1.6)
5 (4.6)
8 (2.4)
Fate not known
11 (1.1)
4 (3.1)
12 (11.0)
27 (8.2)
Total (percentages in brackets)
90 (99.8)
129 (100)
109 (99.9)
328 (99.9)

Source: Hamish Maxwell-Stewart, ‘I Could Not Blame the Bushrangers ....’ (Tasmanian Historical Research Association, papers and proceedings, Volume 42, No 3, September 1995, 117).

On the surface it appears the above statistics would support such a contention; if we look beyond these, there is perhaps another side to the story. Statistics show during Arthur’s period of governorship there were 129 active bushrangers, of which 74% were executed. As stated by Hay: ‘the discretion embodied in the law allowed authorities to use terror with greater flexibility’.[105] Indeed the gallows ‘played a frighteningly large part in Arthur’s system’.[106]

Another commentator[107] points out that from 1835 onwards, ‘the rate of judicial carriage of justice subsided’ and this coincided with the setting up of Port Arthur as a repository for felons and the reopening of Norfolk Island. This meant that institutionalised punishment now existed and so pressure was eased on other forms of punishment and death by hanging. Furthermore, between 1835 and 1846 only 12% of bushrangers were executed compared to 69% in the previous decade. So effectively the bushranging population had declined dramatically.

Overall of course, an argument can be made that the philosophy behind these proposals were aimed at distributing the type of punishment available instead of making examples of individual felons, introducing into Van Diemen’s Land for the first time, an almost paternalistic prerogative instead of relying on terror as a deterrent; this created at least on the surface the impression that the Colony was normal and stable.

Such changes reflected the increasing sophistication of the Colony. Along with the Administration’s acceptance that Van Diemen’s Land was no longer only a prison, there arose a humanitarian spirit of which the new Quarter Sessions Act was an obvious manifestation. Commenting on the Act, the Courier wrote

[i]t will be seen from the above that considerable improvements have been made upon the repealed Act as respects the limiting of summary power ... as also by the introduction of a highly salutary and mitigatory spirit into the laws relative to convicts.[108]

Stephen’s new Act remained in force until the introduction of the new Act in 1847.[109]

In summary, Stephen greatly improved the efficiency of the Quarter Session. He helped keep the Court a popular tribunal by consolidating various Acts, amending others, and introducing others, and introducing new Acts which greatly improved the practice.

B The Courts of Request

Stephen was also involved in the reform of the powers of the Courts of Request although, as with much of his career in Van Diemen’s Land, his contribution was equivocal.

The Courts of Request were designed to deal with small debts and had been introduced to Van Diemen’s Land in 1826.[110] Under the powers granted by the 1828 Act, to give the local legislature control of the Court a local act to establish the Courts of Request was passed in 1830.[111] This Act defined the power and functions of the Court.

Even the anti-government Launceston Advertiser newspaper was approving, for it meant cheaper and more expedient dispensation of justice to all. The paper commented that ‘[l]aw expenses being now the cry – and who is to wonder! – Give us Courts of Requests’ economy is a natural demand. The economy given, the justice will be unobjected to...’. [112]

The reason for the newspaper’s support was that it stopped ‘... the wealthy wrong-doer to trample upon his humble victim with a settled, understood, and even acknowledged impunity’.[113]

Originally, the Act gave the Court power to deal with all matters involving 10 pounds[114] or less by summary proceedings. Procedure was very simple, for example, no proceedings could be quashed through a bad plea[115] and costs were kept to a minimum. This was in contrast to the Supreme Court where costs were often quite large, the procedure complicated and time-consuming. As an example, often cases involving an amount as small as ten guineas had to be heard in the Supreme Court and such a case could easily result in costs of 50 pounds or more. A contemporary historian, Henry Melville, thus observed that ‘[i]t is beyond dispute that numbers of Colonists have been ruined by the enormous charges the Supreme Court has allowed its legal practitioners’.[116]

Besides expense, jurisdiction also was a problem. Often it was necessary to seek an order to prevent a defendant leaving the jurisdiction of the court and this could only be done in Hobart before the Supreme Court. One example of the problem was reported where a creditor was owed 700 pounds and the debtor was about to board a ship bound for England. The creditor sought to stop the debtor from leaving, but failed:

The answer of course was negative – the applicant’s only recourse being a journey to Hobart Town. The result we have not heard; but the probability is that the creditor to the amount of 700 pounds, will have to add the expense of a tedious journey to his other losses! [117]

However, Stephen’s reform was not carried through until early 1836. The main reason for the delay was the opposition it met in the Council, and was indeed supported by Stephen, the architect of the reform. He gave his support, not because of any personal motive, rather he took the pragmatic view that to support one piece of legislation ie, reform the Court of Requests without at the same time, the Supreme Court was inefficient. It was better to reform both courts simultaneously.

Opponents, however, did not see it his way, leading to a series of bitter attacks on the Council, accusing it of submitting to the pressure of the lawyers in the Council. These lawyers were alleged to fear the reform because it would reduce their costs in the Supreme Court. Melville reflected the views of a large proportion of the free inhabitants when he wrote ‘Composed as the Legislative Council is, relief from such monstrous charges is scarcely to be hoped for. The Legal profession is well supported – well represented – in this Council of which his Honour the Chief Justice and the Attorney-General are members’.[118]

The same view was held by the moderate Tasmanian which also attacked the Council and, especially, the Attorney-General, for their short-sightedness. The paper was adamant about the necessity for this reform: ‘We are convinced’, they wrote, ‘that giving the people cheap law would also benefit the profession’.[119]

The pressure of such criticism ultimately convinced the Council and an amendment was passed increasing the Court’s jurisdiction to cases involving a maximum of 50 pounds.

The intense criticism of Stephen for opposing this measure appears, at least on the surface, to be justified. Stephen appeared to oppose the reform on the grounds that it would reduce lawyers’ incomes and for no other reason.

A closer analysis reveals, however, that his accusers were mistaken. Stephen felt that an amendment of the type which was ultimately passed was merely incidental to the main problem. The real issue was the inefficiency of the Supreme Court and the inconsistencies between certain sections of the Court of Requests Act and the Supreme Court Administration Act. Thus rather than attempt temporary repairs to the Courts of Request Act, Stephen aimed to reform both Acts simultaneously. He felt that only with such a fundamental reform could justice truly be served.

With this aim in mind, Stephen wrote to the Colonial Secretary in late 1835[120] proposing an almost total reform of the functioning of the Courts of Request.

His main suggestions were:

That the Supreme Court should recognise cases which could also be heard in the Courts of Request and adjust costs accordingly;

That expenses be granted to witnesses; and that some cases should be decided by a jury as well as the Commissioners of the Court;

He also included the proposal that the Court should extend its jurisdiction in all cases of debt of 30 pounds. Stephen’s view of this extension was that it would decrease legal efficiency and its’ inclusion in his original letter was obviously a result of public pressure and pressure inside the Council.

After the bill had been drawn up and when it was debated in the Council, Stephen argued against the extension and moved that the second reading of the Act be postponed.[121] His argument was a practical one: that the extension of the Court’s jurisdiction would encourage too much litigation. This motion was defeated, as was Stephen’s further attempt to amend the fourth section, reducing the 30 pounds to the original 10 pounds.

It was obvious that Stephen’s arguments carried considerable weight in the Council, for on both issues the vote was five each and only the Lieutenant-Governor’s vote decided the issue.[122]

It can be seen that of the four who supported Stephen, the only lawyer was the Chief Justice, so all the allegations of selfish financial motives was unfounded. Undoubtedly they felt, as Stephen did, that the reform of the Courts of Request without parallel reform to the Supreme Court was inadequate. The Tasmanian in fact took this argument a step further and fancifully argued that but for the passage of the ‘Court of Requests Cheap Law Act’, there would not be legislation setting up the Supreme Court![123]

The newspaper with its catch-cry, ‘open to all – influenced by none’ was generally supportive of the government, and also of Arthur who they thought of as a righteous and principled person. This is firmly illustrated after Arthur voted in favour of the Court of Requests Bill:[124]

His Excellency, the Lieutenant-General is entitled to the warmest gratitude of the whole colony for the DECISIVE support His Excellency thus afforded to its best interests. But for his casting vote the People’s Cheap Law Bill would have been BURKED!

Finally, ‘an Act to provide further for the institution of Courts of Requests and to extend their Jurisdiction’[125] became law in late May 1836 and was based on Stephen’s proposals which had been outlined earlier to the Lieutenant-Governor in November 1835.

The Act made the following changes:

The number of Courts was extended[126] and the jurisdiction of the Court was raised to 30 pounds.[127]
In all claims for an amount exceeding 10 pounds the amount of damages was to be determined by a Commissioner of the Court and two assessors and if there was disagreement a majority was to decide.[128]

The most important reform was the section which was designed to remove the inconsistencies between the Court of Requests and the Supreme Court. This meant that if an action was brought in the Supreme Court which should have been brought in the Court of Requests, the Judge could award the decision to the defendant with costs, notwithstanding the verdict for the plaintiff.[129]

V REFORM OF THE SUPREME COURT

The reform of the Court of Requests was only one side of Stephen’s plan to improve the whole of the administration of Justice. The reform of the Supreme Court also held his attention.

At the Supreme Court level the years between 1823 and 1850 in the Eastern Colonies were primarily years of consolidation.[130] In Van Diemen’s Land the Royal Charter of 1831[131] set up the Supreme Court, declaring; there shall be in this Colony a Court to be called the Supreme Court of Van Diemen’s Land to be consistent of and beholden before two Judges.[132]

Pursuant to this power, the local Act called The Supreme Court Administration of Justice Act,[133] was drafted by Chief Justice Pedder and Attorney-General Montague and enacted in September 1831. At the time of its enactment, there was considerable controversy as to whether the Act was repugnant to British Legislation. Despite this controversy it was finally passed in 1835.

Attacks continued after its passage, concentrating on the obvious inconsistencies between what the Charter allowed and what was enacted in the local legislation. As an example, the local legislation had given the Lieutenant-Governor power to appoint a second Judge and at the same time allowed the Judges to sit separately. The Charter was silent on these matters.[134]

These inconsistencies were obvious to all the Colonists. Their attitude was summed up by the Tasmanian when it declared that ‘our objections (to the Act) remain unchanged’.[135]

It is to be remembered that Stephen himself had attempted to persuade the Colonial Office to introduce a new Charter whilst he had been in England in 1823-24. This plea was ignored, and so reforms were left to local initiative and in the main to Alfred Stephen. Stephen did not begin to reform the Supreme Court until the beginning of 1836. The initial motivation to do so was provided by the public protest over the Courts of Request.

These protests opened his eyes to the possibility of reforming a number of Courts in a coordinated manner in order to transform the whole of the administration of Justice. Stephen’s particularly wanted to simplify its proceedings in the Supreme Court, to make litigation before it cheaper and to lessen delays.[136]

His plan, which was published in the Tasmanian at the end of March, again emphasised consolidation rather than innovation.[137]

As Stephen had put it when describing his draft of the Act:

... (it) comprises most of the leading provisions of no less than five Acts of Parliament passed of late years for the amendment of the law and of above forty sections of rules passed by the courts of Westminster exclusive of ... three of four original provisions on subjects requiring mere local arrangements.[138]

The Act[139] was enacted on the 9 July 1836 and, in structure and scope, was a great improvement on all previous Acts relating to the Supreme Court.

It reduced delays and costs by increasing the Judges’ powers to allow a judge to alter methods of pleading.
It regulated and settled fees;[140] by providing for speedy execution after the handing down of the verdict.[141]
It allowed civil actions which involved less than 50 pounds to be tried before a Commissioner[142]; and
It allowed documents to be used in evidence without having to prove their contents, unless objections were raised.[143]

As well as these specific sections, the Act introduced ‘Sundry miscellaneous provisions as to practice ... for the more effective prevention of expenses and delays in action’,[144] which related to costs, leave to plead, rules in relation to pleading, taxing of costs and so on. In summary, the result was that actions would be heard more quickly, forms of pleading were simplified, meaning hearings were more expedient and less time-consuming and much cheaper.

VI CONCLUSION

By the middle of 1836, Stephen had greatly improved the administration of justice in the Colony. His combined reform of the Courts of Requests and the Supreme Court coordinated their functions and provided cheaper, quicker justice. By providing for juries[145] in some cases where they had previously been excluded, decisions were also potentially more just, certainly more popularly acceptable. When the reforms of the Quarter Sessions are also considered, the breadth of Stephen’s work becomes even more impressive. None of the reforms were spectacular but this was understandable since only the Colonial Office and the Imperial Parliament could initiate large scale changes. Rather, Stephen realised that dedicated work directed to piecemeal reforms would increase the efficiency and justness of the Courts and would lessen their costs, making them more accessible.

Stephen’s desire to reform the Courts in Van Diemen’s Land was the result of a number of factors. On one side of the coin he can be viewed as an ambitious public official who wished to please his superiors and advance his career. On the other side of the coin, Stephen can be seen as one motivated sincerely by the Benethamite philosophy of utility,[146] with a desire to make the law a better instrument to serve the needs of society. The reforms of the Courts are a good example, for whilst Stephen did not radically alter the legal machinery of the Colony, he did improve its functioning and broaden its ambit.

Appendix

Population of Van Diemen’s Land

Year
Total Population
Convict Population
1820
5,468
2,369 54%
1825
14,992
6,848 46%
1830
24,279
10,195 42%
1835
14,172
16,968 42%
1840
45,999
17,703 35%
1842
58,851
23,332 35%
1847
67,918
24,188 36%
1851
69,187
20,069 29%

Source: R M Hartwell, The Economic Development of Van Diemen’s Land, 1820-1850 (1954) 68.


[*] BEc (Syd), MEc (Syd), LLB (Hons) (UTS), DipLabRel & the Law (Syd), SJD (Deakin), Senior Lecturer, Division of Law, Macquarie University. My sincere thanks to Professor Bruce Kercher for his assistance and guidance in the writing of this paper. Any errors or omissions are mine alone. I also thank the blind referee for the very helpful and positive comments which have contributed to the finalization of this article.

[1] Juries in 1825, criminal procedure in 1826, specific offences such as offences against the person in 1828 and coinage offences in 1832 and the law of bankruptcy in the 1830’s.

[2] Bruce Kercher, An Unruly Child, A History of Law in Australia (1995) 43.

[3] Cases took a long time before they were heard and the number of appeals actually dealt with was under scrutiny, resulting in the appointment of a Vice Lord Chancellor to assist with the case-load.

[4] See Sir William Holdsworth, English Law Vol 8 (1937) 263-4.

[5] J R Dinwiddy, From Luddism to the First Reform Bill (1986) 16-17.

[6] Ibid 20.

[7] Brian Abel Smith and Robert Stevens, Lawyers and the Courts (1967) 29.

[8] Ibid 29-52.

[9] See especially Kercher, above n 2. Kercher’s thesis highlights the tension between the received wisdom of the English legal system and its application to the colonial context of Australia. Van Diemen’s Land became officially a free British colony with access to all English laws existing at that time, but retained its penal functions. This allowed future legislation to develop according to the colonies own conditions and unique requirements; See also Bruce Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law In Convict New South Wales (1996) and Alex Castles, An Australian History (1982).

[10] See W D (Mick) Borrie, ‘Australia’s First Demographic Transition, 1788-1830: From Convictism to Free Settlement in New South Wales’ (paper presented at the Australian Population Association, 3rd National Conference, 1989, kept at Australian Bureau of Census and Statistics, Canberra). As can be expected, the first half century of settlement saw convicts being the major component of population growth. The first official census was in 1828 and these statistics showed in the New South Wales (including Van Diemen’s Land) colonies, there was a population of 36 602 persons of which 4121 arrived free and 3503 were born free. The remaining 23 198 adults consisted of 15 668 convicts and 7530 emancipists. There were 5780 local born Australians. By 1853 this composition had changed dramatically. There were now a total of 68 609 persons in Van Diemen’s Land of which 30 488 arrived free, 16 531 were convicts or emancipists and 21 590 were local born. In summary, the population became largely free, though the majority were migrants. See also Wray Vamplew (ed), Australians: Historical Statistics (1987) 10.

[11] Referring to the NSW Legislative Council.

[12] Charles Herbert Currey, Sir Frances Forbes: the First Chief Justice of New South Wales (1968) 296.

[13] See V Markham Lester, Victorian Insolvency: Bankruptcy, Imprisonment for Debt, and Company Winding-up in Nineteenth-Century England (1995) 23-25.

[14] See Appendix.

[15] Kercher, above n 2, 43.

[16] 27 Geo 3, c 2.

[17] Report of the Commissioner of Inquiry on the Judicial Establishments of New South Wales and Van Diemen’s Land (The Bigge Report Volume 2) (1823) 1.

[18] Kercher, above n 2, 59.

[19] J M Bennett, Sir John Pedder (2003) 3.

[20] W C Wentworth, A Statistical History and Political Description of the Colony of New South Wales and its Dependent Settlements in Van Diemen’s Land (2nd ed, 1820) 165-6.

[21] Alex Castles, ‘1991 Eldershaw Memorial Lecture The Vandemonian Spirit and the Law’ (1991) 38 Tasmanian Historical Research Association 105, 108.

[22] The Bigge Report Volume 2, above n 17, 41.

[23] Castles, above n 21, 109.

[24] Ibid.

[25] Ibid 10.

[26] The Bigge Report Volume 2, above n 17, 42. Of these causes, 477 were withdrawn, 1083 were tried and a total of 18 848 pounds was obtained by the various litigants. In 1816 the total amount of causes tried was 309 with a total of 2580 pounds obtained as contrasted to 497 causes in 1819 with an amount totalling 7089 pounds obtained.

[27] Ibid 43.

[28] Ibid.

[29] Ibid 44; see also Bennett, above n 19, 4-5.

[30] The Bigge Report Volume 2, above n 17, 46.

[31] 4 Geo 4, c 96; this Act was originally known as the New South Wales Act 1823 and was superseded and became the Charter of Justice in the same year and proclaimed on 17 May, 1824 to allow the establishment of a Supreme Court.

[32] 9 Geo 4, c 83; entitled: ‘An Act to provide for the 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, 1828’; more commonly known as the Australian Courts Act 1828.

[33] Kercher, above n 2, 73.

[34] These will not be dealt with in this article. To explore this further, see Alexander Clifford Vernon Melbourne, Early Constitutional Development in Australia: New South Wales 1788-1856 (1934) 160 onwards.

[35] 10 Geo 4, No 2; a copy annotated by Stephen’s in his own hand-writing is in the Mitchell Library.

[36] See Michael Charles Ivan Levy, Governor George Arthur: A Colonial Benevolent Despot (1953) 127-128.

[37] Sections III, IV, V.

[38] 4 Geo 4, c 96, this Act later became 6 Geo 4, c 69, a local Act which applied only to Van Diemen’s Land. Specifically it found its way into the earlier Act as Article XIX and not only did it apply to extending the period of transportation, the extension also applied to complaints against convicts for drunkenness, disobedience of orders, neglect of duty, absconding, bad language to overseers and employers. It also allowed the convict to be whipped and any punishment that ‘did not extend to the privation of life’.

[39] 10 Geo 4, No 3, which was entitled An Act to Institute the Court of Requests.

[40] Kercher, above n 2, 73.

[41] 9 Geo 4, c 83; hereinafter, The Australian Courts Act 1828.

[42] W A Townsley, Tasmania from Colony to Statehood 1803-1945 (1991) 53.

[43] Official positions he held in a distinguished public career were: 1839, Judge, Supreme Court of New South Wales; 1844, Chief Justice, Supreme Court New South Wales; 1856-91, President, Legislative Council of New South Wales; 1891-92, Member, Legislative Council of New South Wales; 1875, Lieutenant-Governor of New South Wales; 1890, Member, Privy Council.

[44] Tasmanian, 13 August 1831; the Tasmanian was first published in 1827 and merged with Murray’s Austral-Asiatic Review in 1830. From 1831-1833 the publication was continued as the Tasmanian and Southern Liberary and Political Journal. In 1834 it merged with the Austral-Asiatic Review and this publication split in 1839 into three entities: Tasmanian, Austral-Asiatic Review and the Tasmanian and Australian Advertiser.

[45] Four times per year for the minor Courts; twice a year for the Supreme Court.

[46] Tasmanian, 13 August 1831.

[47] Ibid 20 August 1831.

[48] Ibid.

[49] The Courts of Requests and Quarter Sessions were headed by Major E Abbott who was not a lawyer was considered ‘somewhat of an old woman’, see Historical Records of Australia, Series 3, Volume iv, 136-8, 296; and also see Arthur Papers A4, J Stephen to Arthur, 16 September 1825.

[50] Joseph Hone was made acting Attorney General following the dismissal of J T Gellibrand. Although legally trained, it was said he ‘was out of his place and quite unfit for the office’ ... and ... he appeared to know little about law ... and with his peculiar bodily and facial contortions, turned his Court into a Punch and Judy show’ see Arthur Papers, A4, Arthur to J Stephen, 21 April 1827; see also Levy, above n 36, 47. Just a little more about him: He arrived in Hobart in 1824 to become Master of the Supreme Court and then after being replaced as Acting Attorney General in 1826, he became Commissioner of the Court of Requests and Chairman of Quarter Sessions. When the office of Master was abolished he became Chairman of the Caveat Board for investigating titles to land. He was reappointed Master when the position was revived. He was reputed to be a hard worker but not a brilliant lawyer and had a health problem which hampered him throughout his life; see Douglas Pike (ed), Australian Dictionary of Biography Volume 1 A-H 1788-1850 (1966).

[51] Stephen to Arthur, 19 June 1831; Arthur Papers (A2214 – Mitchell Library). Clearly Arthur had a problem because of the quality of the lawyers he had access to and so he was continually worried about any legal advice he was given, except of course from Stephen whom he regarded as an excellent lawyer, but who sometimes was consumed by his own ambition.

[52] Stephen to Arthur, 25 August 1831; Arthur Papers (A2214 – Mitchell Library).

[53] Colonial Times, 11 January 1832.

[54] See Gipp’s Despatches, 1844; (1235, Mitchell Library). Stephen was not officially appointed until January 1833, when he was in England. His appointment was gazetted in April, 1832, whilst he was in England, so whilst in London he acted in his capacity as the colony’s Attorney-General. See Alfred Stephen to James Stephen, 15 March, 1833; Arthur Papers (A2214 Mitchell Library); and also see Colonial Times, 4 December, 1832. Stephen arrived in England in June, 1832 and spent the next 6 months catching up on the English countryside and visiting old friends; for a short account of places he visited, see Alfred Stephen’s Diary. Stephen Family papers (777/3-Mitchell Library).

[55] Stephen to Arthur, 17 November 1832; Arthur Papers (A2214 – Mitchell Library).

[56] His cousin James Fitzjames Stephen was Legal Advisor to the Colonial Office at the time, and it was with James that these discussions were held.

[57] Stephen to Lieutenant-Governor, 9 February 1833; Arthur Papers (A2214-Mitchell Library).

[58] Ibid. In relation to laws passed to improve the administration of justice, such laws were generally unspectacular, technical and did not arouse public interest; yet were essential to protect public interest. It was here that Stephen played a singularly important role, for he drafted and introduced legislation that resulted in a total transformation of the court system viz: the Supreme Court Act, the Quarter Sessions Act, the Court of Requests Act and the Expenses of Witnesses Act.

[59] Ibid. These are Alfred Stephen’s words.

[60] Ibid.

[61] Stephen to Hay, 14 March 1833; Arthur Papers (AA2214-Mitchell Library). This letter is a long one and its contents constitute the basis of the following discussion in this article.

[62] 9 Geo 4, c 83.

[63] Obviously if trials could only be held in one venue it would mean additional expense for litigants who may have to travel long distances to get to a trial court venue.

[64] Stephen to Hay, above n 61. This comment is written in pencil and is in Stephen’s hand-writing.

[65] See John Michael Bennett and Alex Castles, A Sourcebook of Australian Legal History (1979) 172.

[66] For a detailed analysis of this case see Enid Campbell ‘Trial by Commission: the Case of Joseph Tice Gellibrand’ (1987) 34(3) Tasmanian Historical Research Association 69-83.

[67] Ibid.

[68] Alfred Stephen to James Stephen, 15 March 1833; Arthur Papers (A2214-Mithcell Library).

[69] 2 Vic, No 31 & 32; entitled ‘An Act to set up the Courts of General Quarter Sessions and Punishment of Transported and other officers’.

[70] Edward Sweetman, Australian Constitutional Developments (1925) 73. See also Alex Castles, An Introduction to Australian Legal History (1971) 70 and John Michael Bennett and Alex Castles, above n 65, 77.

[71] 10 Geo 4, No 2; This was the original piece of legislation covering the Courts of Quarter Sessions.

[72] There is no record of Arthur’s letter to Stephen but Stephen’s letter of 30 October 1834 makes it obvious that Arthur had written to him. Stephen to Colonial Secretary, 30 October 1834, Letter Book II (A670-Mitchell Library).

[73] Stephen to Colonial Secretary, 20 May 1835. Letter Book III (A671-Mitchell Library).

[74] Tasmanian, 29 May 185.

[75] Tasmanian, 16 January 1835.

[76] Tasmanian, 29 May 1835. ‘Turkey and Persia Act’ refers to a comment made by Stephen some years before denouncing the Act, as fit only for Turkey and Persia.

[77] Tasmanian, 10 July 1835.

[78] See Ronald Maxwell Hartwell, The Economic Development of Van Diemen’s Land, 1820-1850 (1954) 68 reproduced in Appendix.

[79] 6 Will 4, No 2 and was entitled ‘Courts of General Quarter Sessions and Punishment and Control of Transported and Other Offenders’ and this act repealed the earlier statute, 2 Vic, No 31 and 32. The Harbouring Act, Hard Labour Act, Apprehension of Felons Act, Quarter Sessions Act, Quarter Sessions Amendment Act and the Gaol Act. See A Stephen, Letter Book III 20 May 1835 (A671-Mitchell Library).

[80] Tasmanian, 10 July 1835.

[81] Draft of Act in A Stephen’s Letter Book III, 20 May 1835 (A671-Mitchell Library).

[82] See Schedule A & B to the Act. Ibid.

[83] Section 32.

[84] A Stephen to Colonial Secretary, 22 May 1835. Letter Book III (A671-Mitchell Library).

[85] Ibid.

[86] A runaway was a convict who re-offended in the colony. When caught they were harshly treated, so many escaped and took their chances with the harsh winter climate, the local aboriginals and the ever impending threat of recapture. Some settlers took advantage of them by absorbing them into their assigned work-force. Other runaways simply became bushrangers, being hunted, and coming to a violent end. Very few died of natural causes. A notable exception was Martin Cash who eventually returned to society and died of old age; his life is a story of romance and intrigue; See generally Frank Clune, Martin Cash: The Last of the Australian Bushrangers (1955).

[87] This was enacted in 4 Geo 4, c 96, section 39 which stated that any person assisting in the escape of a felon was guilty of a misdemeanour and subject to a fine of up to 500 pounds and/or imprisonment up to 5 years.

[88] Sections LX to LXVI of the 1839 Act were devoted to this purpose. Here the Lieutenant-Governor’s powers in relation to gaols were defined, how gaols should be set up the power of gaol governors was also clearly defined.

[89] Sections 53-62.

[90] Sections 53 and 54.

[91] Under the non de plume ‘De Fox’, A writer delivered a sermon on the evils of bush-ranging following the death of an unnamed bushranger: ‘To all those misguided characters among the prison population who have mediated on a bush-ranging life as one of careless independence, this is one more instance of the certainty of a fatal termination ... the life of these men has been one of intolerable hardship and privation ... there is held out to them the certainty of punishment for renewed delinquency, the equal certainty of freedom for good conduct – of freedom in a young and flourishing country ... where there is the highest reward to the industrious and sober freeman’. See Launceston Advertiser, 5 February 1835.

[92] Richard Davis, The Tasmanian Gallows (1974) 13.

[93] Ibid 25.

[94] A G L Shaw, Sir George Arthur (1980) 94.

[95] John West, The History of Tasmania (1971) 138, 595.

[96] Ibid 138-139.

[97] Stefan Petrow, ‘Drawing Lots: Murder at the Port Arthur Penal Settlement in 1835’ (1998) 45(3) Tasmanian Historical Research Association 186-188.

[98] Stefan Petrow, ‘A Case of Mistaken Identity: the Vandiemonian Spirit and the Laws’ (1998) 6(1) Tasmanian Historical Studies 28-32.

[99] Castles, above n 21, 113-14.

[100] Cornwall Chronicle, 9 January 1836; the same sentiments were expressed in the Hobart Town Courier, 6 November 1835.

[101] He retired officially in September 1838 to have a short break before taking up a judgeship in New South Wales.

[102] 2 Vic.No.32. This was in essence the same as 2 Vic No14, but corrected ‘Sundry errors and omissions chiefly of a clerical nature’ – see preamble to 2 Vic 32.

[103] See page 1 of this paper and Appendix B.

[104] Hamish Maxwell-Stewart, ‘“I Could Not Blame the Rangers...” Tasmanian Bush-Ranging, Convicts and Convict Management’ (1995) 4(3) Tasmanian Historical Society Research Association 109.

[105] Douglas Hay, ‘Property, Authority and the Criminal Law’ in Douglas Hay, et al (eds), Albion’s Fatal Tree: Crime and Society in Eighteenth-century England (1975) 14, 17-63.

[106] Davis, above n 93, 13; During Arthur’s tenure, 230 executions were carried out which represents nearly half the total number of executions in Tasmanian History.

[107] Hamish Maxwell-Stewart, above n 104, 109-118.

[108] Hobart Town Courier, 9 November 1838.

[109] The new Act used Stephen’s Act as a framework.

[110] Under 4 Geo 4, c 96.

[111] 10 Geo 4, No 3.

[112] 17 September 1835.

[113] Ibid.

[114] This amount was increased to 30 pounds in 1835 and at the same time allowed sittings of the court at Waterloo Point; see Launceston Advertiser, 17 September 1835.

[115] Section VI.

[116] Henry Melville, The History of Van Diemen's Land: From the Year 1824 to 1835, Inclusive During the Administration of Lieutenant-Governor George Arthur (first published 1835, 1965) 174.

[117] Launceston Advertiser, above n 116.

[118] Melville, above n 116, 175.

[119] Tasmanian, 11 September 1835.

[120] Stephen to Colonial Secretary, 13 November 1835. Letter Book III (A671-Mitchell Library).

[121] Tasmanian, 6 May 1836; where there is a report of the Legislative Council Debate.

[122] The voting was tied as follows: For the people: Captain Foster, Captain Swanton, Mr Archer, Mr Wallis, and Mr McLachlan. For the lawyers: Pedder CJ, Colonial Secretary Montaque, Attorney-General Stephen, Colonial Treasurer Mr Gregory, Mr Barnes, a businessman and land-owner. The deciding vote in favour of the people was cast by Arthur.

[123] Tasmanian, above n 124.

[124] Tasmanian, 13 May 1836.

[125] 7 Will, No 1.

[126] Section I.

[127] Section IV.

[128] Section V.

[129] Section XII.

[130] See Alex Castles, An Australian Legal History (1982) 77 for a short account, especially in New South Wales.

[131] 2 Will 4, No 1, entitled Administration of Justice in the Supreme Court of Van Diemen’s Land; its name was altered by an amendment, 26 Geo 5, No 16 [Supreme Court Act,1831]. Prior to the Act there existed a Van Diemen’s Land Supreme Court with appeal to the New South Wales Supreme Court and then appeal to the Privy Council.

[132] 4 March 1831.

[133] 2 Will 4, No 8.

[134] In such inconsistencies the Charter prevailed since under the 1828 Act any matters which were repugnant to the British Legislature were invalid; See Melbourne, above n 34, 159.

[135] Tasmanian, 3 September 1835. See also Tasmanian, 10 September 1835, for an article attacking the inconsistencies between the Charter and the local Act.

[136] Stephen to Colonial Secretary, 25 February 1836. Letter Book IV (A672-Mitchell Library).

[137] Tasmanian, 25 March 1836.

[138] Stephen to Colonial Secretary, 25 February 1836. Letter Book. (Mitchell Library).

[139] 7 Will 4, No.2; entitled ‘Practice and Proceedings in the Supreme Court of Van Diemen’s Land’.

[140] Section I.

[141] Section III.

[142] Section XV states inter alia, ‘if a judge should be of opinion that Justice may by that course be attained at less expense and with greater convenience’. It was also reported that a further Bill would be introduced providing for the appointment of such Commissioners, and set out their powers viz. to draft affidavits and to oversee the execution of them, issue writs and to hear applications for recognisance. Commissioners were to be situated in the towns and suburbs outside of Hobart so that members of the public, wherever they lived, would have easy access at minimum cost; see Launceston Advertiser, 2 April 1835.

[143] Section XXX.

[144] Section XXXVIII.

[145] Beyond the scope of this article, but discussed in Alex Low, ‘Sir Alfred Stephen and the Jury Question in Van Diemen’s Land’ (2002) 21(1) University of Tasmanian Law Review 79-119.

[146] See: Commentaries on the Laws of England, J H Burns, Jeremy Bentham: an Iliad of Argument: Bentham Project (are these two separate references? Year of publication?), There are a number of critiques and commentaries upon the Benthamite approach to law. Just some are: J H Burns, ‘Bentham and Blackstone: A Lifetime’s Dialectic’ (1989) 1 Utilitas (starting page?), 22-40 (are these pages pinpoint or article in entirety?); on Bentham’s critique of law and his recommendations, see Ross Harrison, Bentham (1983); L J Hume, Bentham and Bureaucracy (1981); David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (1989); Douglas G Long, Bentham on Liberty: Jeremy Bentham’s Idea of Liberty in Relation to His Utilitarianism (1977); David Lyons, In the Interest of the Governed: A Study in Bentham's Philosophy of Utility and Law (1973); Gerald J Postema, Bentham and the Common Law Tradition (1986); Michael Lobban, ‘Blackstone and the Science of Law’ (1987) 30 Historical Journal 311-35; Allen Watson, ‘The Structure of Blackstone’s Commentaries’ (1988) 47 Yale Law Journal 795-821; and Fredrick Rosen, Jeremy Bentham and Representative Democracy (1983). Also see generally Jeremy Bentham, ‘A Fragment on Government and an Introduction to the Principles of Morals and Legislation’ in Wilfred Harrison (ed), Fragment on Government (1948); see also C J W Allen, ‘Bentham and the Abolition of Incompetency from Defect of Religious Principle’ (1995) 16(2) Legal History 172-188; Bentham’s legal and political ideas have been the subject of general scrutiny in a number of writings and for a fuller appreciation of his views; see as a starting point, the Bentham Project at website: http://www.ucl.ac.uk/Bentham.


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