‘Lawless Harvests’ by Alex Castles


2003, 209 p.

As a primary school child in the 1960s, there were certain stationery items that your parents had to buy for you each year.  They always had to buy two HB pencils and a red-lead pencil that would kill you if you sucked the end of it (surely not?).  There was the 12-pack of Cumberland pencils that always looked insipid and cheap against the 24-pack Derwent pencils that the luckier kids had, with that brilliant aqua and lush bright green that even now gives me pleasure.   There was the pack of Greyhound Dry Pastels that went unopened all year until they crumbled to dust in your desk.  And then there was the plastic stencil map of Australia, with the states marked out with a thin line except for Victoria, where the boundary with NSW seemed to inexplicably dribble out into a series of dots on the right hand side.

It must have been a source of much chagrin for school children on the Apple Isle (Tasmania) to realize that their own state was left off the map.  No doubt having the little island dangling below Victoria added a level of complexity and expense to the manufacturing task that was not worth the effort.  And so, if you remembered Tasmania at all, you had to hand-draw it, down below Victoria somewhere.

Yet when looking at Port Phillip in the 1840s, one is struck by the dominance of Van Diemens Land on the new settlement.  George Town at the mouth of the Tamar River was much closer to Port Phillip than Sydney, 600 miles away.  Trade was frequent between Hobart, George Town and Port Phillip, and it was largely the scarcity of  available land after a heavy bout of land-grant activity in the late 1820s/early 1830s that drew men’s eyes northwards across Bass Strait.  Just as men and stock meandered down from the settled districts of New South Wales, so too did ship after ship from Van Diemens Land disgorge sheep that moved into farms throughout the Port Phillip district.

New South Wales dominates our awareness of early colonial Australia, but Van Diemens Land runs alongside it as a parallel but separate colonial entity.  Although the NSW Governor was officially Governor-in-Chief,  from 1825 onwards he played no active role in the administration of Van Diemens Land. The Van Diemens Land Lieutenant-Governor styled himself “His Excellency” (suggesting that there was no immediate superior) rather than the “His Honor” title that he had used up until this date, and the Tasmanian Supreme Court, officially proclaimed on 31 March 1824 was a separate entity in its own right rather than an arm of the Supreme Court of New South Wales as Judge Willis’ Port Phillip court was.

Alex Castle’s book, published posthumously in 2003 tells the story of the Van Diemens Land legal system.   The book had its genesis in a plan by the Law Society of Tasmania in 1985 to commission a history of the legal profession in Tasmania.  Professor Alex Castles from Adelaide University offered to write it, with a view to publication during the Law Society’s centenary year in 1988.  But only 3 chapters were written at that stage, and focus shifted to the 28th Australian Legal Convention to be held in September 1993.  By May of that year, twelve chapters had been completed and the final chapter was in draft form.  However it was never editted sufficiently for publication and the manuscript remained unpublished in a filing cabinet.  In 2003, after the death of Professor Alex Castles, the Law Society remembered the part-completed manuscript, and engaged its librarian to retrieve the text, and Dr Stefan Petrow to edit it, write an introduction and epilogue and compile a bibliography, as the text itself does not have footnotes.

In his introduction, Stefan Petrow discusses this book in relation to Castles’ other work, particularly his pioneering textbook 1971  ‘Introduction to Legal History’.  In this textbook, Castles concentrated on the English influences on the Australian legal System but Petrow detects  a movement in Castles’ work in later years that acknowledged local variation, particularly in frontier legal environments.  I wonder if Castles had written the introduction himself,  how he would have addressed himself to this question.

This book traces through the earliest legal steps in Van Diemens Land, which are hard to recover because the papers were burnt on the evening of  Lieutenant Governor Collins’ death- possibly to obscure legal decisions made during his time of office.   Collins’ successor Davey was completely out of his depth, and it was William Sorell, the next Lieutenant- Governor who reordered local affairs.  But the main focus of the book is on Lieutenant George Arthur and his devolution of power to himself, with the acquiescence of his fellow-Tory Supreme Court judge Pedder.   Castles credits Sir John Franklin (yes,  the villain of Richard Flanagan’s Wanting) with introducing the legal changes resisted for so many years by Arthur.  He traces through the amoval of the puisne judge Algernon Montagu and the attempted amoval of Pedder by Franklin’s successor Denison over the taxation-like nature of the Dog Act-  the same process of amoval (but for different reasons) which finished off Judge Willis’ career.

One thing that I very much appreciated in this book was the way that each chapter started anew with a little vignette or anecdote that piqued the reader’s interest anew.  He finished each chapter a similar way too, often returning to the episode with which he opened the chapter.  In between things got a little turgid, with a very ‘top-down’ perspective running throughout, but the openings and closings of each chapter remedied this.  I’m not sure that Castles himself would have finished the book with the what-happened-next epilogue that Petrow wrote-  the book suffers from the lack of a strong, argumentative final chapter.  However, it would have been beyond the ethical and editorial demands on Petrow to have written anything beyond what he has done.

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