Category Archives: Judge Willis

Judge Willis’ Sydney

Most of my attention has been directed toward Judge Willis’ time in Melbourne, where he was appointed as the first resident judge of the Supreme Court of New South Wales for the Port Phillip district.  But he was in Sydney for much longer than he was in Melbourne- from November 1837 to March 1841- compared with his stay of two years and three months in Melbourne.

In Sydney, he was one of three judges who formed the Supreme Court bench, and so he was not as prominent as he was in Melbourne, where he was the only Supreme Court judge.  In fact, I’ve found it hard to form a clear view of him in Sydney: he doesn’t seem to have socialized much with any of the people whose writings I’ve been able to access from Sydney at the time.  From my point of view, he seems to become much more defined once he was given virtually free rein (and reign!) in Melbourne.

But he WAS there in Sydney and so, tramping the streets of Sydney this last week, I tried to see it through Willis’ eyes.

His Court

Supreme Court Sydney

Stairwell in the rotunda, Supreme Court Sydney

Stairwell in the rotunda, Supreme Court Sydney

By the time Willis arrived in Sydney in 1837, the court had abandoned its temporary premises and moved permanently into the Supreme Court buildings in King Street.  Although the appearance of the courts has been altered by later additions, inside under the rotunda it is largely unchanged.  The courts were designed by Francis Greenway, the “convict architect” who was responsible for the design of several buildings during Macquarie’s time.

His Church – maybe.

St James' Church, Sydney

St James’ Church, Sydney

Next to the court house is St James’ Church.  Actually, the building that houses the church today was originally intended to be the law courts with a larger cathedral built elsewhere, but after Commissioner Bigge criticized Macquarie’s extravagant expenditure, the planned law courts were turned into St James’ instead, and the law courts were built next door in what had been a schoolhouse (and they are still there- as you saw, further up the page!)

I don’t actually know that Willis attended this church- he may have attended St Philips instead- but I strongly suspect that he did as he aligned himself publicly with Bishop William Broughton who frequently officiated at St James.  (By the way, feeling rather downcast at some recent sad news, I attended the choral evensong there on Wednesday evening.  The choir was absolutely beautiful.) I know from his time in Upper Canada and Melbourne, and back home in England that Willis attended Anglican Churches regularly, often morning and evening on Sundays.

His library

Then there’s the Australian Subscription Library. Unfortunately it survives as only a plaque in the footpath.

IMG_0126

ST JAMES’ PARSONAGE. The first residence on this street, built in stone by Surgeon D’Arcy Wentworth in 1820, housed the Australian Subscription Library 1840-3.  It then housed the parson from nearby St James’ Church until demolition in 1888.

I know that Willis belonged to this library because in early 1841 there was a brouhaha concerning a confidential cabinet document that had somehow found its way into the collection.  Heads needed to roll (figuratively) and they did: the Assistant Colonial Secretary Harrington lost his job over it.

The Parliament- maybe???

State Parliament, Sydney

State Parliament, Sydney

While Willis was in Sydney, there was only one body that gave advice to the Governor, the Legislative Council.  It was appointed by the governor, and by 1829 had been enlarged to between ten and fifteen members.  It met in the ground floor rooms of what were at that time the Chief Surgeon’s rooms in the Sydney hospital.  Like the church and the court buildings, the hospital was also designed by Francis Greenway, and funded by an early form of public/private partnership, based on the monopoly of spirits imports- hence the name ‘Rum Hospital’ that has been attached to the building ever since.  I have no evidence that he ever attended Parliament,  but it was open to the public from 1838 onwards.

Government House- certainly

Model of the original Government House, Museum of Sydney

Model of the original Government House, Museum of Sydney

As puisne Judge, Willis most certainly did attend levees and functions at Government House.  The building that is now Government House was commenced but not completed during his time in Sydney, so he would have attended  the old Government House. In 1809 it looked like this:

Government House Sydney 1809

Government House Sydney 1809

It fell into disrepair- in fact, it sounds a rather shoddy building from the outset, and was demolished in 1846.  There is a ghost of the original house in the stencilled outline in  the forecourt of the Museum of Sydney, where it originally stood.  If you go up to the corner, you can catch a glimpse of Circular Quay down below, and imagine the early Port Jackson shoreline.

So….

Actually, despite the heavy building activity in Sydney over recent decades, and a cavalier attitude towards heritage buildings during the 1960s (thank you Jack Mundey!) there’s more to find of Willis in Sydney than there is in Melbourne.

Census

2016 Update: I have rather cheekily linked to this post as part of the National Family History Month Blogging Challenge which, during Week 1, asked for a post about things people had learned about their ancestors through the Census.  Well, as you’ll see, this posting isn’t really about a family at all, but rather it looks at the controversy over one of the questions in the 1841 census. So, here’s my posting from 2011:

15 August 2011.

My census paper is all filled in, waiting to be collected.  I quite enjoy filling in surveys and doing interviews.  I note that several of my Facebook friends with young babies were amused at the inappropriateness of many of the questions to their babies (“How well does the person speak English?” “Does the person ever need someone to help with self care activities?”).  At the other end of the parenting spectrum, I found myself feeling rather furtively curious at the replies given by adult children (Hmmm- so that’s how much they earn?! How did they answer the unpaid domestic work for the household question?)

My son was rather keen that I answer ‘No religion’ in the optional religious question.  It’s obviously a touchy subject because it, alone among the questions, is optional.  Thinking back to the rigid, unyielding sectarian prejudices of my 1950s-60s childhood, this would have always been a hot question but for different reasons.  What’s a Good Unitarian Girl to do?  Yes- I know that identifying as Unitarian will be collapsed into a bald statistic showing the increasing religiosity/atheism of modern society.  Do I want my creedless religion collapsed into a category along with fundamentalists of all shades? How religious is a creed-less religion?  Such deep questions, all for a census.

Then there’s the marriage question.  It’s when there’s such a stark choice- married/divorced/widowed/never married – that I feel uncomfortable about the many shades of grey that are blurred by such harsh distinctions.  The long term same-sex relationship that would dearly love to be a marriage but is forbidden?

And the either/or nature of language spoken at home.

Radio National’s Rear Vision program had an excellent feature recently called Who Counts? A History of the Census (podcast and transcript available).  The program highlighted that censuses (censi?) differ in their questions, format and intent in different countries at different times.  The British census of the mid-19th century, for instance,  reflected the public health concerns over ‘the household’ as an economic unit, particularly in the wake of the widespread mobility of the Industrial Revolution.  The American census was framed by a mindset of growth, particularly on the frontier.

The Australian census, first conducted in 1828, emerged out of an earlier tradition of the convict muster.   As shown on the Historical Census and Colonial Data Archive site, there were censuses in New South Wales in 1833, 1836 and 1841.  The Census Act of 1840 spelled out the process for collecting the information, and the magistrates were at the heart of it:

[Australasian Chronicle 5 December 1840]

During the 1840 debate over the Census Bill, the process was not controversial, but one of the questions in particular was:

whether he was born in the colony, arrived free, or obtained freedom by pardon or servitude?

The original census of 1828 provided several “class” categories: CF meant ‘came free’; BC meant ‘born in colony’; CP denoted ‘conditional pardon’;  FS meant’ free by servitude’ and TL stood for ‘ticket of leave’.  But by 1840 New South Wales was distancing itself ever further from its convict origins – a process which John Hirst in Convict Society and its Enemies argues began right from the start of settlement.  This question was now highly sensitive.  As the Australian Chronicle argued:

[Australian Chronicle 20 October 1840]

And into the fray steps- yes, you guessed it!- Judge Willis.  Justices Dowling and Stephen, the two other judges of the Supreme Court of NSW declared the bill to be repugnant to British Justice on the grounds that, as a witness under oath in court did not have to degrade his character by identifying himself as an ex-convict, he should not be required to do so before a census collector.  Justice Willis, as was his right, issued a dissenting opinion, arguing that the benefit of the question for the government outweighed this consideration (although he did not specify what these benefits were to be).   As was often the case with Willis’ interventions into political questions, at issue was not his dissent per se but the way in which he expressed it (although in this case, it highlighted tensions between the ‘exclusives’ and the ’emancipists’). In court he observed:

With this subtle, but nonetheless public put-down of his fellow judges, he then went on to discuss the laws of evidence in the courts and concluded:

This public jousting on a question of law was one of several issues between Willis and his brother judges, most especially Chief Justice Dowling, at the time. Along with other similar considerations,  it led to Gipps’ decision to place Willis as the resident judge of the Supreme Court of New South Wales in the district of Port Phillip, well away from his colleagues.

So, I can hand over my completed census form- minus any questions about my convict status or lack thereof- safe in the knowledge that yet again, I have operated on the principle of six degrees of separation between Judge Willis and any topic you may choose to name, and managed to bring Judge Willis into 2011, no matter how tenuous the link.

Hanging around with the naturalists

I see that more than 600,000 plant species have disappeared.  No, not by logging, global warming, pesticides etc. etc., but because botanists have been combing through the listing of plant species, weeding out the duplicates.  I was interested to read that

One of the databases was established using 250 pounds left in the will of naturalist Charles Darwin

I’m sure that Charles would have approved wholeheartedly.  Although, looking at his will, most of his goodies seem to be divided up amongst family. Perhaps it was established later.

Speaking of Charles Darwin, he certainly has a prodigious online presence, spurred on no doubt by the anniversary recently.  There’s Darwin Online – huge! And have you seen the repository of all the letters that Darwin wrote and received up to 1867 at the Darwin Correspondence Project?

Apparently Darwin had over 2000 correspondents from across the globe, and he was not the only one.  Naturalism and collecting was a favoured gentlemanly past-time and for colonial civil servants scattered across the globe, providing information and samples for their highly-placed naturalist patrons was a way of keeping connections open with men in positions that might prove useful in the future.

And so we see our  Resident Judge of Port Phillip- Judge Willis- sitting down and packaging up samples for his patrons at home.  Like other men of his time, Judge Willis  was not averse, as Rolf Boldrewood reminds us, to a bit of the old huntin’ and shootin’  on the Yarra Flats-

This not undistinguished legal celebrity we had known in Sydney, and he presented himself to my youthful intelligence as a good-natured, mild-mannered old gentleman, with whom I used to go quail and duck shooting in the flats and bends of the Yarra over Mr Hawdon’s and the neighbourhood estates.  On these occasions the late Mr Archibald Thom, who rented part of Banyule from Mr Hawdon, often accompanied us.  And a very deadly shot he was.
The judge shot fairly well, and after a decent morning’s sport was genial and generous in a marked degree. But when he doffed the russet tweeds and donned the ermine, he became utterly transformed. It was averred, too, altogether for the worse. ( Rolf Boldrewood, Old Melbourne Memories, p. 159-60)

But he also indulged in- or at least arranged for someone else to indulge in- a bit of naturalistic hunting as well.  Here he is, in April 1843, writing to Derby, the father of the Secretary of State (how convenient!)- sending a- ye Gods, what on earth IS he sending him?

I have the pleasure of sending by the “Arab” an animal, temporarily stuffed, which is not common even here; I think is seems a commixture of Monkey, Opossum and Sloth, more like the Sloth perhaps than any other.  It has a pouch.  I do not forget the Musk Duck & hope my efforts to obtain them may yet prove successful.

And then, on board ship on the way home

The hurry in which I left Australia prevents me collecting such Natural curiosities as might possibly have been acceptable to your Lordship.  I enclose however a good specimen of the Flying Mouse, possibly as curious an animal as inhabits those regions, & a fair illustration of many larger animals of the same Genus.  It can only fly in an angle of 45 degrees- It has a Pouch & the featherlike tail is not a little remarkable. On our voyage we put in at Bahia and I have a few Brazillian Seeds & Roots, which the English Chaplain gave me very much at your Lordship’s Service, if they be worth acceptance.  I have also some of the Wattle Tree, or Mimosa of Australia Felix, which I have no doubt will grow in the Open Air in England with a little care & be a great ornament in a Garden or Shrubbery.  The Bark of it is become a profitable article of Export for Tanning being stronger and preferable to English OakBark.  The flower of the Wattle is fragrant and pretty.

I wonder if the Mimosa of Australia Felix was one of the expunged varieties?  And the flying mouse- probably a pygmy glider of some sort.  Though I prefer this one-

Election Day

I’ve just returned from doing my democratic duty up at the local school.  It’s election day here in Australia, and one that I feel rather pessimistic about.  Elections are always held on a Saturday and voting is compulsory- something that I have absolutely no problem with.  I think of the bravery of people in other parts of the world who carry around their ink-dipped fingers (how dangerous could that be in some situations!) and I am grateful that I can vote in a country that expects and requires me to do so as a citizen in a well-organized and fully-financed electoral system.   My gratitude and trust in the system stands, no matter what the outcome tonight, tomorrow or maybe weeks down the track.

Yes, the sausages are sizzling as the good people of Macleod line up to vote

So what about elections in Judge Willis’ time? Of course, the whole concept of a Federal Election in Melbourne had to wait until 30 March 1901 but the first colony-wide election for NSW was held in 1843.  Until the passing of the 1842 New South Wales Act, the Legislative Council had been nominated by the governor, but the 1842 Act allowed for 36 members, twelve appointed and the rest elected.  The relative lateness of elected representation reflects the penal origins of the colony: Upper Canada had been awarded representative government nearly fifty years early with the Constitutional Act of 1791.

Port Phillip was still part of New South Wales at this stage.  Six members in total would be elected from the Port Phillip district, five from the district as a whole, with one from Melbourne.  There was not exactly a rush: the Council sat in Sydney, six hundred miles away, and few Port Phillip citizens were prepared to travel and stay in Sydney for council sessions.  As a result, of the five district members who were elected, only two – Charles Ebden and Dr Thomson from Geelong- were from Port Phillip.  The rest were Sydney-siders: Dr Charles Nicholson; the merchant Thomas Walker (who did have extensive holdings in Port Phillip and particularly in Heidelberg but was based in Sydney); and Rev John Dunmore Lang.  Two other Sydney residents- Thomas Mitchell, the Surveyor General, and James Macarthur Jnr, the son of Hannibal Macarthur also stood, but Mitchell was not successful and Macarthur withdrew his nomination before election day.  There had been talk earlier that Joseph Hawdon, the wealthy cattler overseer and  builder of Banyule homestead in Heidelberg, would stand but this did not eventuate and he, too, was  Sydney-based.

Certainly the election did not have the immediacy of the Town Council elections which had been conducted some six months earlier. Edward Curr, who had previously been a member of the Van Diemens Land Legislative Council, accepted candidacy for the Melbourne seat.  He was a prickly, forthright character who clashed strongly with Willis, along with many others in Port Phillip, it must be said.  It was his strong Catholicism that prompted the equally prickly and forthright Presbyterian candidate Rev J.D. Lang to cast about for a contending candidate for the Melbourne seat, lest Curr the Catholic be elected unopposed.  Lang and Kerr, the editor of Fawkner’s Port Phillip Patriot (with whom Lang was staying while campaigning in Port Phillip) decided to approach Henry Condell, the Mayor, asking him to stand.  They promised to organize a petition of 200 Melbourne electors by 4.00 pm the next day and Lang offered to write all of Condell’s speeches for him.

Once Condell had been persuaded to stand,  an element of sectarianism was introduced  into the campaign in a town which had, until that point, seen the denominations generally co-operating with each other, although this was being affected also by the changing demographic makeup of immigrants into the colony.  Curr and his letter-writing supporter Alexander McKillop certainly saw the contest in these terms, as did Lang himself. And it is into this contest between Condell and Curr that we see Willis intervening in a way that even today raises eyebrows, just as it did at the time:

Alston's corner, cnr. Elizabeth St and Collins St today, the site of Willis' shop-bench encounter over the Curr/Condell contest

As a climax to these indecencies, the Resident Judge (Willis) dishonoured the ermine of his high office by requesting the retailers, with whom he did business, to vote for Condell; and one day, whilst on a vote-touting expedition Willis and Curr met face to face in the shop of Mr Charles Williamson, a Collins Street draper (lately Alston and Brown’s) where the Judge waxed so personally offensive that Curr’s forbearance only prevented the public scandal of a pugilistic encounter between the judicial canvasser and the candidate.” p. 333

The election was conducted in four locations. Voting for the district seats took place in Portland, Geelong and Melbourne, while the voting for the Melbourne seat took place in the Gipps ward of Melbourne.  In many regards they were typical English-style elections:  the votes themselves were announced (no secret voting here!), there were placards and ribbons, and the alcohol flowed freely.

The voting went off well enough until the polls closed at about 4.00 pm.  Once it was clear that Curr had been defeated, his Irish Catholic supporters moved to the Golden Fleece Hotel where they hoped to find Condell, then to the main polling site at the Mechanics Institute in Collins Street where the results were to be announced.  The Chief Magistrate Major St John and Dana, Chief of the Native Police arrived on horseback , and in the midst of brawling, the Riot Act was read.  Forming groups of 50-100, the crowds broke up and raged through Little Collins, Collins and Elizabeth Streets with stones and brickbats.  The military arrived, charged the mob with bayonets; hotels were closed and the mounted police patrolled the town.   However, unlike Sydney where similar riots occurred resulting in the death of one man, there was no loss of life. A couple of days later, once the results had been collected from Portland and Geelong, the successful candidates were announced. The Port Phillip Herald 27/06/43 reported:

At the close of the ceremony, Mr Ebden’s horses were taken from his carriage, which containing Mr Ebden, his brother Mr Alfred Ebden, Mr Curr and Mr Foster, was dragged through the town.  The town band paraded the streets from an early hour in the morning til late in the afternoon, but little interest was manifested in the proceedings, the dismissal of the judge having evidently taken possession of the public mind.

And here two of the anxieties that La Trobe dreaded coincided: the unruliness of the election, and the excitement over Willis’ dismissal.  But that’s a post for another day (maybe).

It’s hard to tell how many people were eligible to vote.  The franchise was for males over 21 who owned freehold property worth 200 pound or rented a property worth 20 pounds per annum,  a natural born (British) subject or naturalized.  Those who had committed “treason, felony or infamous offence” could not vote unless they had been pardoned or undergone their sentence- an issue of controversy in regard to the applicability of English law in a former penal colony.  As far as the ‘district’ elections were concerned, the Port Phillip Herald a few days later published full details of the results. The names of the voters were given, the booth they voted at, the time that they attended, and the candidates to whom they gave their votes – no privacy here! The final results were: Ebden 228, Walker 217, Nicholson 205, Thomson 1843, Lang 165 and Mitchell 157 .  In Melbourne, Condell received 205 votes to Curr’s 174 but the names of the voters were not given.  I’m not sure how many votes people had, given that many men owned multiple properties,  and how the practice of ‘plumping’ (i.e. giving all your votes to one candidate)  applied here.  Either way- we’re not looking at a huge electorate.

For myself, I would gladly drag a carriage with my first female prime minister through the town with the town band playing but I don’t know if that’s going to happen…

References:

M. M. H. Thompson The Seeds of Democracy, NSW, The Federation Press, 2006

A. G. L. Shaw  A History of the Port Phillip District: Victoria before Separation Carlton Vic., Melbourne University Press, 2003

Jennifer Gerrand  ‘The Multicultural Values of the Melbourne 1843 Rioting Irish Catholic AustraliansJournal of Historical and European Studies, Vol 1 Dec 2007

Latin

Readers of this blog will know that I am an assiduous reader of death notices.  I must be getting older because I used to read the birth notices too but I rarely do now.  I guess that I’m looking for people that I know (knew).  However, it’s not necessary that I’ve ever met them: I’ve often found myself in tears reading tributes to people who are complete strangers to me.  I used to reassure myself that only old people die because the majority of death notices in The Age (my paper of choice) are for  elderly people, although I must admit that I am disconcerted by the number of deaths occurring among people born around 1945- that’s getting a little too close for comfort. My gut-feeling is that there is a spike around sixty-five year olds then another one around eighty year olds, but I have no evidence for this and can’t be bothered monitoring it enough to prove it.

Anyhoo, there was a death notice in today’s Age (21 April) written entirely in Latin.  I  sat looking at it for some time.  I don’t read Latin but I suppose that a certain generation (probably those born around 1945 or earlier), a certain educational class (i.e. privately-school educated) and certain professions (especially the law) still do.  Generation after generation of Catholic congregations heard, and continue to hear, the Mass in Latin.  Nonetheless,  it still seems an  odd thing to do: to pay to place a public notice that only selected people could read.  Perhaps the quotation had a particular resonance in their relationship? Perhaps it was a form of  in-knowledge amongst a group of peers who share a cultural, religious or professional heritage that includes Latin?

I can only wonder how the poor call-centre operator on the end of the phone coped with it.  I’ve been exposed to more Latin than I’d like over the last few years  because Judge Willis was particularly fond of breaking into Latin in his court-room, and so I have had to resort to good old Google to work out what he was quoting. Don’t you wonder now how we ever got on without the internet?  Sometimes as I’m typing something into Google I wonder where I would have tried to find this information in a pre-Google world.  But I must say that even Google fails me in translating this death notice.  Perhaps it’s not a quote: it might be original.

As I say, Judge Willis was fond of Latin.  His  flights of Latin fancy occurred usually in an address to the jury, or in a speech that he knew would be reported in the newspapers- in fact, he used to pass on his addresses to the newspapers directly so that they would be quoted correctly, including, I assume the Latin.  His lengthy letters to politicians often included a hefty dose as well. As Garryowen (Edmund Finn) tells us in his Chronicles of Early Melbourne:

It was Willis’s custom to open each monthly Criminal Session of the Supreme Court with an address or charge to the jury panel; but, in reality, more of an ultra-official oration to the general public.  These fulminations had, however, the merit of careful preparation, and though more abusive than pungent, were on the whole clever specimens of tolerably readable, though overdone phraseology, highly spiced with well-fitting pedantry.  They were crammed with quotations, ancient and modern, from languages living and dead.  Never did one of them appear without Latin excerpta.  (p. 943)

An article by David Lemmings called ‘Blackstone and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in Eighteenth-Century England’ discusses the use of Latin in the courts.   During the English Civil War the use of Latin was proscribed, but it was reinstated in the Restoration.   Public resentment at the mystification of the law through use of Latin re-emerged, and in 1731 an Act was passed that, from 25 March 1733, all proceedings in English law courts (excluding the Admiralty Court) and in Scottish Exchequer courts would be in English.  A number of clarifying acts permitted the continuation of  Latin in the Exchequer and the retention of technical terms in Latin.  As Lemmings writes:

Although the language of law had been ‘Englished’, it retained its own esoteric style and often archaic vocabulary that continued to bond lawyers together, while bemusing the public. (p. 74)

Nonetheless, Judge Willis was certainly fond of quoting lengthy slabs,  generally for rhetorical effect.  He seems to have done so far more than his brother judges in Sydney did.  Latin was an essential part of a boy’s education, and even in Port Phillip he could be assured that fellow gentlemen, or even aspiring gentlemen, who had been exposed to formal schooling would understand him.  As a shared marker of education and formality, Latin would have been much more common than it is today.  Michael Cannon, for example, notes that after the Separation of what was to become Victoria from New South Wales was announced, an Elizabeth Street wheelwright constructed several “variegated inflatable balloons”, 10 ft in diameter, decorated with the word “Separation” carrying circulars printed in English and Latin to carry the news into the bush (Cannon p. 461.)

But perhaps Willis’ Latin was not all that I suppose it to be.  Garryowen goes on to tell  of Daniel O’Donovan, a young Irishman employed by Judge Willis as a horse-groom who was, perhaps, the best Latin and Greek scholar in the province. In the absence of Willis’ Tipstaff in court on one occasion, O’Donovan was engaged in a casual capacity and rigged up in a “cast-off white choker and swallow-tail” to act as Crier.

…after the disposal of one or two formalities, the Judge began his address.  A quotation cropped up, but of this the Judge did not care, for, as hitherto, he would take it as a hunter does an ordinary jump, in tip-top style.  It was a hackneyed passage from one of the Satires of Horace, and the orator stepped in amongst the hexameters with a graceful lisp, as if assured that what he was saying would be duly appreciated.  In this manner he travelled safely over the fourth line, but in the fifth uttered a slight misquotation, when the new Crier was down upon his great superior, and figuratively shook him as a terrier would a rat.  “I beg your Honor’s pardon” said the irate O’Donovan, “you are murdering my most favourite author, and this I cannot permit to be done by either Judge or Jury.  If your Honor will kindly allow me I shall set you right; if fact, permit it or not I’ll do it.  So now your Honor and gentleman of the Jury, listen to the only true and correct version”. Here followed some dozen lines of Horace, including the corrected reading of where the Judge had floundered.  It is no exaggeration to say that all in Court except the Judge and his “Tip” were convulsed with laughter.  As for Willis, he was flabbergasted at O’Donovan’s gross but unconscious contempt of Court, and at length screamed to the Sheriff to place the transgressing scoundrel under lock and key until he could command time and patience to consider how to best summarily deal with him…Mr Raymond, the Deputy-Sheriff, kept him under durance until the time for adjournment.  He was then told to call next day for the wages due to him…” (p. 944).

I suppose that, as long as you can pronounce it correctly, a sprinkling of Latin confers a solemnity and authority onto one’s pronouncements.  I’d do it myself, if I could.  But I’m afraid that, with my 1960-70s Australian state-school education, all this Latin is Greek to me.

References:

Michael Cannon Old Melbourne Town: Before the Gold Rush, Loch Haven, Main Ridge, 1991.

David Lemmings ‘Blackstone and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in Eighteenth-Century England. Law and History Review, Vol 16, No 2 (Summer 1998) pp. 211-255

Garryowen (Edmund Finn) The Chronicles of Early Melbourne 1835-1851 Melbourne, Fergusson and Mitchell, 1888.

‘Convicts of the Port Phillip District’ by Keith M Clarke

One of Port Phillip’s claims was that, unlike Van Diemen’s Land and New South Wales,  it was not a penal colony.  It was opened up during the 1830s when emigration schemes were hitting their strides and there was much to be gained by distancing Port Phillip  from the degradation and corruption that was perceived to flow from contact with convicts.

But it was not as clear cut as this.  Right from the start, there were convicts in Port Phillip.  The earlier abandoned attempts at settlement at Sorrento and Western Port involved convicts, and had they been more successful, there would have been a permanent convict presence in the area.  As it turned out, Melbourne was established by, or at the behest of,  private pastoral and agricultural interests.  When these pastoralists, their sons and their agents moved in, especially from the Middle District around Sydney, they were able to bring their assigned servants with them.  John Hirst, in his book Convict Society and its Enemies notes the slippage in terminology that avoided the use of the term “convict” and instead used “assigned servant”.  He suggests that all sides were comfortable with this linguistic subterfuge:  emancipists and expirees were keen to expunge the moral connotations of ‘convict’, and for those who availed themselves of labour from the assignment system, the use of the term “servant” framed the contract as the more acceptable master-and-servant relationship that underpinned all labour exchange at the time.

Once they were here as assigned servants, there was no formal supervision at the local level.  In theory, assigned servants could only be transferred between owners with the permission of Governor Gipps, but this does not seem to have been strictly enforced. An advertisement for land of the Plenty River in May 1841 included “five government men” in the purchase, and according to Judge Willis,  at the height of the economic depression in 1842 there were two hundred assigned servants wandering at large because their masters could no longer afford to keep them.

Then there were convicts sent down from Sydney.  Some of these were highly qualified “specials”, who were sent to fulfill particular roles.  For example Phillip Harvey, who had been transported after pleading guilty to a charge of forging and altering two Bills of Exchange, was sent down from Sydney after being instructed by Mr Dunlop the Astronomer on the keeping of meteorological journals.  Another convict worked as a writing clerk at the Police Office and Judge Willis strenuously protested him being left in charge of prisoners on remand because he was  “not fit to have charge of free persons, who coming out to this colony were entitled to all the privileges of British subjects.”   The distinction between government and domestic employment was not clearcut: a letter to the Port Phillip Herald complained that Dr Shaw of Geelong had been using men assigned to the customs service to fetch wood and move furniture.

Then there were the public works gangs sent down to work on roads and other constructions.  They were a highly visible presence, although they do not seem to have worked in irons.  Just as one could imagine today, the “shockjocks” of the press at the time became highly exercised at the sight of convict gangs fiddling around on their spades in fine weather, and when unemployment rose in 1842, it was felt that government work should be provided to emigrants rather than convict work-gangs.

Added to this were convicts who had gained tickets-of-leave (for example, the Port Phillip Herald of 12 April 1842 has an advertisement of a ticket-of-leave belonging to Martin Brennan that had been found), and those whose sentences had expired.  A large number of people coming across from Van Diemens Land fell into this category.

So, we should perhaps raise a sceptical eyebrow at all the “free” rhetoric coming from the Port Phillip boosters.

A book that deals with the convict presence in Port Phillip in more detail is Keith M Clarke’s Convicts of the Port Phillip District.  Self-published in 1999, it is a large, illustrated paperback book of 370 pages, much of which is made up of appendices giving names, shipping details, and sentencing data and comments for the different waves of convict settlement (Sorrento, Western Port, Port Phillip and later the exiles sent between 1844-1849).

It is from this book (p.100)  that we learn that, of the population of 12, 994 in Port Phillip during the 1841 Census, there were 2,762 who had been transported to the colonies- i.e. 21% of the Port Phillip population at the time.   Although the numbers are rubbery, there were 338 holding tickets-of-leave, 185 on Government Service, 637 on private assignment and 1455 “other free” men and 147 “other free” women.  “Other free” was a catch-all category that included emancipists, those free by servitude, and those holding conditional pardons.

We can also see from his compilation of Supreme Court data that many of these assigned servants were under the control of prominent Port Phillip personalities that we have met before: William Verner (Judge Willis’ good friend), Porter, Carrington, Thomas Wills, Dr Thomson, Ebden, Lonsdale,  Peter Snodgrass.  It is significant that Judge Willis himself did not have assigned servants, and in this he was true to his word in 1839:

For my own part, I have ever  considered the provisions of His Majesty’s order in Council, in 1831, for reconstructing the Supreme Courts of Judicature in certain crown colonies, when negro slavery unhappily existed, to be most wise in prohibiting the Judges from being owners of, or in any wise interested in slaves, or their labour. Believing the same principle to be as applicable to the bondsmen of Australia, as to the negroes of Guiana, Trinidad, and St Lucia, I have abstained, and ever will abstain, so long as I remain on this bench, from being the assignee of convict service. I will never permit the possibility of insinuation that my private interest can in anywise interfere with the honest discharge of my judicial duties.  I will always endeavour to keep myself beyond all reach of vulgar suspicion.

A large part of this book involves a retelling of the different settlements in Port Phillip, albeit with particular attention to convicts.  It is a largely narrative approach, and while the bibliography cites the body of academic work on this era, it does not engage with the literature in an academic sense.   It starts with a description of the parish system in England and the changes to Poor Law legislation during the Industrial Revolution.  The second chapter describes changes to the penal code in England during these years and the global nature of transportation to penal settlements worldwide.  The third chapter involves the establishment of the Botany Bay scheme and explorations of the Port Phillip Area.  Chapter 4 involves Sorrento (Sullivans Bay); Chapter 5 Westernport, and in Chapter 6 the coming of sealers, the Hentys, Batman and Fawkner.  Chapter 7 describes the appointment of William Lonsdale and the convict workforce under his supervision.  Chapter 8 covers the La Trobe years, including the pressure to accept exiles under the revamped transportation-that-dare-not-speak-its-name system.

The heart of the book is the 200 pages of appendices with names and details.  These are set out in spreadsheet format and give you the little jolt of recognition that these are real individuals, who each have their own life story.  In this regard, the book would be a useful addition to a family history resource centre, where family historians would no doubt fill in the gaps between the statistics.

References

Keith M Clarke Convicts of the Port Phillip District, Waramanga, KM & G Clarke, 1999.

J. B. Hirst Convict Society and its enemies


Magistrates in Port Phillip

When Governor Gipps was running through the long list of people who had complained about Judge Willis, he mentioned that eighteen magistrates had come forward with complaints about Willis’ behaviour.   How did people get to be magistrates in Port Phillip in the early 1840s?

A bit of back-tracking first.  The role of ‘magistrate’ has a long history. In England they have been a feature, in one guise or another, of the justice system for the past six centuries.  Traditionally the gentry families of the countryside, almost as a matter of course,  appropriated the role as their right within the village system of deference and moral responsibility that underpinned English rural life.  The magistrate, who usually held unreported hearings in his own house, had wide latitude over many areas of life; magistrates knew the villagers  (their families, their entitlements and their histories)  and were known themselves (their families, their entitlements and their histories)  by the village inhabitants.

In the early years of penal settlement in New South Wales and Van Diemens Land, there were very few free settlers and at first nearly all magistrates held other positions.  As more free settlers arrived and took up large land grants, they were called upon to police the work and leisure of the convicts who worked on their properties.  Have no illusions about this: the colony depended on the forced labour of convicts, and the efficiency of this dispersed, in effect privatized, system depended on the surveillance, assiduousness and authority of the magistrates.

The Colonial Office back in London appointed the main office-bearers for Colonial positions,  shifting, juggling and negotiating individual careers as part of a huge chess-game, with influential spectators on the side making their ‘suggestions’, pulling their strings and calling on and bestowing favours in the swirl of patronage and reciprocity.   The appointment of magistrates was, however, one of the positions in the gift of the local Governor in the colony- and he used it.  And eager aspirants knew that and approached him too, with their letters of introduction and recommendation from patrons both at home and those who had preceded them to the colony.

The early magistrates in Port Phillip were appointed from Sydney, both paid and unpaid.  There was a sniffiness about paid (or stipendiary) magistrates, and certainly the London-based Colonial Office preferred honorary magistrates who did not need to be paid.  But from about 1822-42 the courts had increasing oversight over magistrates’ activities and the issue of conflict-of-interest became more pressing.  Unlike in England, the landed proprietors of New South Wales were not a leisured class: they were entrepreneurial men on the make themselves, who were anxious for quick returns on their capital, which in turn depended on convict productivity.   The rapid extension of settlement necessitated the appointment of paid magistrates in charge of an organized, generally ex-convict, police force.   On the anxious fringe of frontier settlement, there was increasing demand for police magistrates which was on  one level resisted by the local government on grounds of cost, but acceded to as a ‘temporary’ measure because it meant that personnel could be shifted to meet population movements and changing needs, unlike honorary magistrates who were appointed because they were already established in a particular locality.

Patronage power tended to be diluted the further one travelled from the metropole.  The Colonial Office could, and did, ask that particular men be appointed magistrates-  F. B. St John, the Police Magistrate in Port Phillip was one such Colonial Office request.  But generally, the magistracy was one area of patronage, interwoven as it was with local status and visibility, that the Colonial Office was prepared to devolve to the Governors.  Once La Trobe arrived in Port Phillip, Gipps shared aspects of this patronage with La Trobe.  He always consulted La Trobe before ratifying appointments and he entertained suggestions from La Trobe’s end.  But the actual gift of  the magistracy rested with him.

Gipps’ practice was to avoid making magistrates from among practising doctors and from the clergy (unlike earlier times- the Rev Samuel Marsden was commonly known as a whipping parson). He insisted that magistrates must have been in the colony for one year, and must be at least 24 years of age.  Gipps relied on La Trobe’s opinion and asked him to vet the appointments amongst others in the locality- for instance, before appointing Stephen and Edward Henty to the position of magistrate in Portland, La Trobe consciously sought out people who thought they should not be appointed- to no avail.  Gipps advised La Trobe to broach the topic with nominees beforehand: “I hope you always obtain a man’s consent to act before you recommend him as it is very necessary to do so.”  Gipps suggested that La Trobe make the recommendation directly to him (Gipps) or to his Private Secretary as “a man might not want his qualifications for the Magistracy discussed in public office” (Gipps to La Trobe 1 March 1840, Shaw Gipps-La Trobe Correspondence p.17)

By the early 1840s the magistracy was no longer seen primarily as a penal surveillance mechanism, but had been overlaid with other municipal, moral, licensing and public order issues.  The honorary and police magistrates were responsible for the “regulation and control of a community” including the administration of regulations over buildings, fire prevention, roads, cleanliness etc.   as well as petty crime and public safety.  When the Melbourne Town Corporation was created in 1842, a separate division of magistrates was created from among the town councillors.

One thing that you did not need was legal training.  In the 1830’s Plunkett published his book which came to be known as “Plunkett’s Australian Magistrate” and the mainstay of legal advice for magistrates and the first Australian practice book of its kind.  As the 1840s went on, there were increased bureaucratic demands made of magistrates in terms of documentation and official oversight.

Paul de Serville  in Port Phillip Gentlemen lists the magistrates appointed in 1841.  Several held other government positions e.g. Edwards,, Le Souef, Parker, Robinson  and Sievwright were all magistrates by virtue of their positions as Aboriginal Protectors;  Airey, Fyans and Powlett were also Commissioners of Crown Lands.  Lieutenant Russell as Commander of the Mounted Police was a magistrate; as was  James Simpson as Police Magistrate until replaced by the Colonial Office’s suggestion of F. B. St John.  Alongside these were the honorary magistrates recognized for their importance in the community.  As part of the gentlemanly identity that they all projected and drew upon, all magistrates were involved in myriad civic and business activities.

As might be expected given Willis’ temperament, he clashed with several of the magistrates under his purview.  He strongly embraced the educational aspects of his role as Supreme Court judge, insisting that the magistrates attend court to familiarize themselves more fully with the law.  He was critical of magistrates who were involved in speculation – or at least, those who got caught out in the financial distress of the early ‘4os, and clashed with Simpson, Farquhar Mc Crae, Lonsdale and Brewster.  He was often critical of the Aboriginal Protectors, especially Sievwright who was by this time under a cloud over other improprieties as well.  In one of the frequently-retold vignettes from Judge Willis’ courtroom, he clashed on several occasions with J. B. Were, most famously when he without warning ordered Were, attending court as a magistrate,  to take the witness stand to testify.  When Were protested that he could not remember certain details, Willis awarded him one-two-three-six months in jail for contempt of court.  Needless to say, J. B. Were was one of the 18 who protested Willis’ behaviour.  But not all magistrates opposed him.  Willis looked favourably on Robert Martin, William Verner and J. D. Lyon Campbell- all of whom happened to live nearby to Willis in Heidelberg- and they gave him their unstinting support.   The split in support or opposition to the Judge amongst the magistrates mirrored the division in public opinion more generally.