Category Archives: Judge Willis

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.

Bushrangers!

One of the most high-profile criminal cases of 1842 was that of the Plenty Valley bushrangers who were hanged on Judge Willis’ instructions in 1842.

The four Plenty Valley bushrangers embarked on a five-day spree on 26th April 1842 that entailed eighteen robberies and eventuated in a shootout where one of bushrangers was killed and the leader of the captors, Henry Fowler, was injured through a gunshot wound.[1] After robberies on 26th-28th April around the Oakleigh/Mulgrave area, they turned northwards towards the Plenty Valley.

Click here to see a map of their exploits in the Plenty Valley

In her study of convict bushrangers, Jennifer McKinnon draws a distinction between “footpads” the often- unarmed bandits in small groups staying close to the main centres of population, and “banditti” in large armed and mounted gangs who operated in the interior.[2] She cautions, however, that the distinction between “footpads” and “banditti” is not a hard and fast one. Certainly the Plenty Valley bushrangers combine elements of both: they ranged around familiar, relatively settled territory in what are now fringe suburbs within riding distance of central Melbourne, where they had been employed previously. But they operated on horseback, at first in pairs, but later in a larger group of four, and possibly five, armed men.

To a certain extent they fit the archetype of social bandits and draw on a time-worn trope of

…the bold Robin Hood of their morning songs, and … the unfortunate victim of legal oppression, the captured of the chase….His reckless daring would be the noblest chivalry; and the jovial freedom of his manners, the frankest generosity.  His immoral jests would be treasured for posterity, and the éclat of his life and death would stimulate the worthy ambition of sympathizing souls.[3]

Graham Seal, likewise, identifies Robin Hood as the beginning of a coherent and continuous tradition of British outlaw heroes portrayed as

“friends of the poor, usually driven to outlawry by some injustice.  They are however, brave, courteous to women, and use violence only when it is unavoidable or in justified revenge.  Generally, they die bravely and usually through treachery.”[4]

Thus, we see the Plenty Valley bushrangers avidly pocketing the £63 they stole from Capt Gwatkin from the trading vessel Scout in a hold-up on the road to Dandenong, while giving 5 shillings of the Captain’s money to fellow-victim Frederick Pitman so that he can pay for his bed at the Travellers Rest Inn at nearby No-Good-Damper.[5] Paula Byrne’s study notes the extravagant dress often adopted by bushrangers, and here we see one of the Plenty Valley bushrangers resplendent in the scarlet-lined Austrian Hussars costume stolen from an earlier victim, complete with dangling sword, in a subversive and swaggering challenge to uniformed authority.[6] Food, too, was important: Byrne comments that settlers often recalled the exact food taken or consumed by bushrangers.[7] Hence we have the goose killed and thrown to Capt. Harrison’s cook with instructions to have it ready for their dinner the next day, and the roast ducks and herrings appropriated for their own breakfast when the bushrangers burst in on five men at Campbell Hunter’s station, the site of the final shoot-out.  We have the bravado of bushranger Jepps, nonchalantly standing outside the door of the hut, lighting his pipe with bank notes and, as Constable Vinge recalled later, challenging his captors:

After considering for a time he opened his arms and walked towards us, and then stood still for a while and said, ‘Gentlemen, I have robbed most of you that I see, but I want to get away!’  I answered ‘No; you will not get away’.  He then said ‘Gentlemen, rather than be taken to Melbourne and made a public show of on the gallows, shoot me’. I walked up and handcuffed him.[8]

Although there may not have been outright support from settler sympathizers, there does seem to be a degree of ambivalence amongst some of their victims.  An early victim, James Bruce Donaldson, may have been robbed by them one or two days previously, but did not report the crime.[9] The bushrangers took another settler, George Rider, hostage and ordered him to guide them to the next victim’s house where he interceded with the two women present, shared a champagne with the bushrangers, and was released with his watch.  Rider returned home with no attempt to alert the authorities, and returned the next day to act as intermediary between the besieged bushrangers and their captors.[10] He later handed in a sum of money for the prisoners’ defence, but Willis disallowed the use of the proceeds of crime for this purpose.[11]

However, the Plenty Valley bushrangers differ from the convict bushrangers in several important ways. Chronologically they fell between the convict bolter period of the 1820s and 1830s and the “golden age” of bushrangers in the 1860s.  During this hiatus, there was a marked decline in social prestige for bushrangers. With the abolition of assignment in the early 1840s, they lost their raison d’etre as social bandits, and they had not yet taken on the mantle of exemplars of the social struggle over land of the 1860s.[12]

Moreover, and importantly, the Plenty Valley bushrangers were not perceived to be convict bushrangers at the time. Their leader, 27-year old John Williams was a Catholic bounty migrant, thought to be Irish but actually born in England.  Martin Fogarty was also described as an Irish bounty migrant.  Charles Ellis, aged 18 was English and appeared to have arrived as a free immigrant, and Daniel Jepps was a 27 year old American whaler, said to have “had the air of having once moved in a different sphere”.[13] Although Ellis was later described as “an old lag from Van Diemen’s Land” and Fogarty was said to have been forced to leave Ireland after turning Queens Evidence in a number of murder cases, the public perception, at least prior to the trial, was that they were not ex-convicts.[14] Hence Willis’ address to the jury focused on the need for attention to be paid during the selection process to the character of incoming immigrants- a variation on his more common warnings about the degradation of society occasioned by convict gangs employed on public works and expirees from Van Diemens Land.[15] In the mirror that Willis held up to the community in his courtroom addresses, Port Phillip was not a penal colony.  Indeed Willis prefaced his Latin-laden address to the jury hearing the Plenty Valley bushrangers’ trial by noting that it seems

“as if the contamina [sic] of similar enormities in the penal colonies had extended its baneful pestilence to this district- a district colonized by free emigrants, not peopled by convicts, and therefore reasonably expected to be the less polluted.”[16]

In a settlement that distinguished itself from the older penal colonies, this first incidence of bushranger activity elicited a strong public response.  No fewer than three police groups, headed by ex-Chief Constable ‘Tulip’ Wright; Crown Land Commissioner Powlett and Constable Vinge, and two groups of civilians converged on Lowland Flats for the final confrontation.  One of these volunteer groups was a contingent of five men from the Melbourne Club who were feted as “the gay and gallant ‘Five’, the heroes of the time, whose bravery was theme on every tongue” [17] Their earlier indiscretions of dueling, insolvency and altercations at the horse races were forgiven as the gentlemen of Melbourne drank their health at a public dinner and the Masonic Lodges awarded three of them with gold medallions.  The formation of a Yeomanry Corps amongst the “gentleman residents” of the District for the protection of the community was proposed by Police Magistrate F. B. St John, and the Plenty Valley settlers offered to form a volunteer corps among themselves- an offer endorsed by the “resident ladies” of Plenty Valley in a rare petition with only female signatures.[18] In the immediate aftermath of the capture, rumours circulated that other fugitives from the Goulburn River had conspired to meet with the Plenty Valley bushrangers on the Maribyrnong River where they would wait in hiding until an opportunity arose to steal a vessel to make their escape.[19] There was heightened agitation for surveillance of the sawyers and timber cutters along the rivers as anxiety rose about the need for social control of “skulkers of various descriptions” and expired convicts from the penal colonies, especially Van Diemens Land, flooding into the Port Phillip district.[20]

So, what happened when the captured bushrangers encountered Judge Willis in the courtroom?? Ah- for that you’ll have to wait for the completed thesis (from which this was cut- as if you can’t tell!) and the supporting documentary and soap opera.  Suffice to say, the three surviving bushrangers were hanged on 28th June 1842- three of the six executions carried out during 1842 under Willis’ sentencing.


[1] Mann, The Plenty Bushrangers of 1842: the first Europeans hanged in Victoria, pp. 1-33.;Finn, The chronicles of early Melbourne, 1835 to 1852 : historical, anecdotal and personal / by “Garryowen”, pp. 352-356.

 

[2] Jennifer A McKinnon, Convict Bushrangers in NSW 1824-1834, La Trobe University, 1979,  61-62.

[3] James Bonwick, The Bushrangers: illustrating the early days of Van Diemen’s Land (1856), Hobart, Fullers Bookshop, 1967, p. 89.

[4] Graham Seal, Ned Kelly in Popular Tradition, Melbourne, Hyland House, 1980, p. 31.

[5] Mann, The Plenty Bushrangers of 1842: the first Europeans hanged in Victoria, p. 5.

[6] Paula J Byrne, Criminal Law and Colonial Subject: New South Wales 1810-1830, Cambridge (Eng), Melbourne, Cambridge University Press, 1993, p. 134.; Mann, The Plenty Bushrangers of 1842: the first Europeans hanged in Victoria, p. 15.

[7] Byrne, Criminal Law and Colonial Subject: New South Wales 1810-1830, p. 135.

[8] Constable George Vinge ‘Bushrangers in the Olden Times’ The Argus, Friday 6th August 1880.

[9] Mann, The Plenty Bushrangers of 1842: the first Europeans hanged in Victoria, p. 12.

[10] Ibid., p. 25.

[11] Port Phillip Patriot 12 May 1842.

[12] Michael Sturma, Vice in a Vicious Society: Crime and Convicts St Lucia Qld, University of Queensland Press, 1983, p. 101.

[13] Mann, The Plenty Bushrangers of 1842: the first Europeans hanged in Victoria, pp. 2-3.; Port Phillip Herald 20 May 1842.

[14] On Ellis as expired convict see Macfarlane, 1842 The Public Executions at Melbourne, p. 28. and Fogarty as exile Port Phillip Herald 20 May 1842.

[15] Port Phillip Herald 13 May 1842.  For his more-frequent commentary on the dangers of convicts and ex-convicts see Port Phillip Herald 28 May 1841; 17 August 1841; 14 January 1842.

[16] Port Phillip Herald 13 May 1842

[17] Finn, The chronicles of early Melbourne, 1835 to 1852 : historical, anecdotal and personal / by “Garryowen”, p. 408.

[18] St.John to La Trobe 30 April 1842, PROV 19, Unit 33, 42/1366; Campbell Hunter and men of the Plenty to La Trobe, 5 May 1842 PROV 16 Unit 3 42/592;  Ann Bear and ladies of the Plenty to La Trobe 5 May 1842 PROV 16 Unit 3 42/593.

[19] Mann, The Plenty Bushrangers of 1842: the first Europeans hanged in Victoria, pp. 29-30.

[20] La Trobe to E. D. Thomson 4 May 1842 PROV 16 Unit 12 42/571   This was not an unjustified fear.  Sturma notes that of 5000 convicts freed by servitude or holding conditional pardons recorded leaving Van Diemens Land between 1847 and 1849, over 3,800 departed for Port Phillip compared with less than 250 for Sydney.  Cited in Sturma, Vice in a Vicious Society: Crime and Convicts p. 54.

The boys go to Port Phillip

As part of examining Judge Willis’ interaction with Port Phillip society, I’ve read folder after folder of official correspondence, column after column of newspapers, memoirs  and several diaries.  But one thing that I have barely dipped into is personal correspondence.  So it was armed with a few names that I headed into the State Library yesterday- off to read the correspondence of the Burchett brothers who arrived from 1839 onwards to their family ‘back home’, and a thesis based on the correspondence of  Alexander F. Mollison who visited Melbourne in its earliest days, then settled in the Port Phillip district from about 1837.

The survival of any cache of correspondence is  a mixture of luck, diligence, intent and circumstance.  There are those rare individuals who keep copies of all correspondence both sent and received, but it’s more likely that an archive of correspondence is likely to be largely one-sided, usually consisting of  letters received, with the letters sent reflected only obliquely.  The preservation of letters within a family depends largely on the importance placed on them by the recipient, and the custodians to whom they pass when the recipient dies.  Then there is another  step between private ownership and their availability to a wider public through a museum (where they can linger undiscovered and uncatalogued for years) or publication.

Moreover, the practice of mail correspondence between New South Wales and the metropole,  particularly during the 1840s, reflected the realities of a 4-6 month time lag with a swag of letters arriving in one dispatch, or likewise, no mail appearing at all.  No doubt the receipt of letters would trigger off a frenzy of response, with the minutae of day-to-day life telescoped into a potted narrative that would reassure loved ones who were totally unfamiliar with the sights, smells and local personalities on the other side of the world.  On both sides, the pictured recipients would be kept in a mental time-warp that kept them as they were when last seen, with shared acquaintances and memories given more prominence than perhaps they merited. I tend to think of this correspondence as similar to the word-processed  Christmas updates we all started to include in our Christmas cards a few years ago,  up until they fell out of favour for being homogenized, impersonalized and too cheery and cheesy.  (Mind you, I enjoy receiving them and still do send them- cheesy and impersonalized though they may be).

So, with these constraints in mind, how likely is it that any of this correspondence would mention Judge Willis?  I guess that it depends on how personally involved the writer was with the agitation to either remove or support him, which in turn might reflect the political engagement and interests of the intended recipient of the letter.  How much of any politics would filter through, say, into the Christmas Update we might send today?  I suspect that 2001 Christmas Updates reflected the shock of September 11;  we may have written to overseas correspondents about a change in government.  But, unless personally involved, it’s not likely that day-to-day politics is likely to find its way into correspondence intended for an overseas readership, even in our connected, globalized world, and probably even less so from 1843 New South Wales.

The Burchett Brothers

And so to the Burchett letters.  The copy of the letters I saw had been typewritten and photographed.  Now, there’s nothing quite like the pleasure of the looped, cursive script, the browning ink and the texture of the paper of the original.  But I’ve been there, and done that, and there’s also nothing quite like the regularity and ease of a typewritten transcript!!  They were catalogued under “Burchett family”, and the collection includes letters written by Charles Gowland Burchett (1817-1856), Henry Burchett (1820-1872), Frederick Burchett (1824-1861) and Alfred Burchett (1831-1888).   The boys arrived out here over a period of time, with the 22 year old Charles and 19 year old Henry arriving first in 1839, followed by their younger brother Frederick, aged 16, the following year.   I’m not sure when Alfred arrived.   There were obviously other children still left at home- Henry’s letters in particular are full of high-spirited and affection  in-jokes with his younger siblings.   All the same, it must have been hard to have your three eldest boys heading off across the globe at such young ages.

Charles, in particular, seems to have been of a slightly more political bent than his brothers.  In his letter to his father on 12 June 1841 he writes about a meeting to petition the Home Government for separation from New SouthWales, and mentions the Resident Judge obliquely in reference to Sydney’s neglect of Port Phillip- a comment by then obsolete given that Judge Willis had by that time arrived in Melbourne.

Even in Sydney they know little of us.  Fancy the wilful blindness of a tardy determination to allow us the services of a Supreme Judge three times in two years.

This was to be his only mention of Judge Willis.  He goes on:

The principal evidence of the moral advance of this place may be enumerated as follows- a Society lately formed on the plan of the “Highland Agricultural Society” for the promotion of Agriculture, Horticulture and Breeding, William Mackenzie Esq, the son of a Scottish Baronet is the Chairman.  Two or three hundred chapels; the church, however, on account of its ambitious pretensions, is at a standstill for want of funds, a considerable part of the edifice completed evidently exhibits the intention of the Trustees to make it a handsome structure- it is of stone.  And last, but not least, the Mechanics Institution.  Among the lectures at this last has been one “On the Influence of the Press in disseminating knowledge” by George Arden, the Editor of the Port Phillip Gazette.  This said G. A. (the Boy Editor, as he is called) I have known since my arrival here; he gave a splendid speech at the meeting.

The boys established a run called ‘The Gums’  near Mt Rouse in the Western District.  In a letter dated 1 Oct  1841,  Frederick was not pleased by the news that Charles Sievewright was to establish the Western District  Aboriginal Protectorate nearby:

There is a rumour that a Black protector is coming to take up his station at Mt Rouse, with his tail of 4 or 500 blacks, if he does we shall have to keep a sharp lookout, as the gentleman of his suits have been playing up a hurricane (colonial phrase) down below, and they are not very remarkable for their honesty

Five days later his brother Henry added:

How little do the good people at home, who are instigators of benevolent systems of civilization understand the character of these barbarous cannibals.

The financial depression of the early 1840s hit the Burchett boys badly, and Frederick returned home, followed by Charles who arrived back in England  on the Glenbervie on November 24 1843.  They obviously did not stay: Frederick returned to Van Diemens Land in March 1844 and the others must have returned at some stage too.  Charles died in 1856 at their property St Germain’s (near Echuca); Henry died in 1872 at “Albert Road, Regent Park” (not sure where); Frederick died in 1861 in Melbourne, and Alfred in 1888 at St Kilda.

Alexander Mollison

And so on to the second batch of letters from Alexander Mollison, this time as part of a thesis written by Marie Hyde who transcribed and annotated the letters as part of a Bachelor of Letters degree in 1988.  Alexander Fullerton Mollison (1805-55) has a higher profile that the Burchett brothers with a shared entry in the Australian Dictionary of Biography with his brother William Thomas.

Alexander arrived in Sydney in 1834 at the older age of 29, and did not ever marry.  After an exploratory trip to Port Phillip in 1836, he overlanded down from his property at Uriani (near present day Canberra) with his flock of 5000 sheep, 634 cattle, 28 bullocks and 22 horses, to establish Colliban Station, near Malmsbury.  He was joined by his brothers Patrick, who was based in Sydney, another brother Crawford, and William aged 22, who arrived in 1838 who joined Alexander at Colliban.   A fifth brother, James, aspired to be an artist and several of Alexander’s letters warn him specifically not to come to the colonies, as there were few prospects for artists here.   Two sisters were left at home: Jane, to whom many of the letters are addressed and for whom Alexander obviously had a great affection, and Elizabeth.  Again, I find myself thinking about the parents left back in England with their daughters, with the ‘boys’ of the family so far away.

The early letters reflect Alexander’s interest in the  zoological and botanical sciences- and I assume that sister Jane shared this interest too.  Although he didn’t send her actual specimens- as Judge Willis was wont to do with patrons he wanted particularly to impress- he did write long descriptions of rainbows he noticed at sea and his first sighting of a platypus.  Zoe Laidlaw, in her book Colonial Connections 1815-45:  Patronage, the Information Revolution and Colonial Government, highlights the importance of scientific networks, and the overlap between amateur colonial naturalists and visiting scientific professionals.  It also evokes for me the burgeoning interest in science more generally reflected in another book I’m reading at the moment- Richard Holmes’ The Age of Wonder: How the Romantic Generation Discovered the Beauty and Terror of Science.  It seems that Alexander was very much a man of his times.

As Hyde points out, the shipboard voyage

had positive benefits as an interlude between the old world and the new in helping to establish that network of connections with the well off and influential that would serve him well in years to come.(p. 5)

He travelled with the Rusden family, little realizing that the 12 year old son George would later become Clerk of the Executive Council and a member of the National Board of Education.   He became friends with Charles Nicholson, who was later become Sir Charles Nicholson,  statesman, landowner and businessman.

In an odd conjunction, he wrote to his father that Henry Burchett (of the letters above) had arrived at the station to learn sheep farming before striking out on his own.  The Burchett letters also resonate when the Aboriginal Protector Parker took up land on the Loddon to establish a Protectorate.  Unlike the Burchetts, Mollison willingly gave up land for the Aboriginal station, and assisted Parker in running it.

Alexander obviously spent some time in Melbourne where he mixed with the other ‘respectable’ pastoralists.  On 26 December 1839, he wrote to his sister Jane about the Melbourne Club:

I do not remember having told you about the Club House in Melbourne. The Inns were found to be so dirty and disordered that several respectable settlers and townsmen formed a club about 18 months ago.  William and I are members.  There are now eighty permanent members.  The house affords twelve bedrooms, a dining room, drawing room, library and smoking room or [?].  The bedrooms are rather small but exceedingly comfortable and well-kept.  Each member is allowed to occupy a bedroom one week and then must make way for another if required…The yearly subscription is five pounds and the charges are the same as at the inns.

His respectability gave him access to the political sphere.  Soon after La Trobe’s arrival in Melbourne,  Alexander and his brother Crawford called on him.  To his father, Alexander wrote:

Mr La Trobe arrived at Melbourne some weeks ago.  He told me that he had been introduced to you.  I called once at his offices with Crawford but came away as soon as our business was finished, as Mr La Trobe seemed to be very much occupied.  He is so far in public favor here and seems to be candid, sincere and unostentatious.

He also met with Governor Gipps when he visited Melbourne, and was one of the five men deputized to make a welcoming address to him.  In October 1841 Alexander wrote to his father:

We have had great doings this past week in honour of Governor Sir George Gipps’ first visit to this district, but I have not time to relate them.  I may however say that I was one of a deputation to draw up and present an address and also the president of a public dinner of one hundred and fifty people.  Sir George is frank, clever, and a ready and pleasing speaker.  I was introduced to him during my late short visit to Sydney.

When his friend Charles Nicholson put himself up for election as the Port Phillip member for the first District Council, Mollison seconded his nomination.   Nicholson was elected the representative for Port Phillip on the part-elected Legislative Council in 1843, served as Speaker in 1846 and twice more before the granting of responsible government.  Mollison was one of the inaugural members of the Melbourne branch of the Australian Immigration Society in 1840 (Garryowen p. 492); he addressed a meeting against the resumption of transportation (Garryowen p. 524); he presided over a Squatters Meeting in June 1844 and a committee member of the Separation Association (Garryowen p 907).  He was made a Justice of the Peace.

It’s not surprising, then, that Mollison does mention Judge Willis’ suspension, albeit briefly, with the terse comment that “he certainly deserved it”.  Mollison does not seem to have been particularly heavily involved in the movement against him, however, declining to sign the anti-Willis petitions.  Both Alexander and his brother William did , however, sign a letter in support of Lonsdale who was under attack by Judge Willis, and another letter on 14th June 1843 directly before Judge Willis’ amoval complaining about aspersions raised in the court in relation to the magistracy generally.

The sheer distance between the colonies and the family at home was reinforced for me by the report of Patrick’s illness in Sydney.  Charles Nicholson notified Alexander that Patrick was gravely ill, and within days Alexander was writing a second letter to say that he had died.  In his will, Patrick left his colonial assets to his sister Jane and Alexander, although they did not cover his debts.  Jane had obviously advanced money to Patrick, and Alexander later made an investment of Jane’s money in land on the portion bounded by Highett, Lennox and Erin Streets, Richmond.   Davidoff and Hall’s book Family Fortunes notes that the daughters of a family often made their inheritance available to their brothers for investment, in return for a roof over their head and keep.

Although he suffered financially during the Depression, he did not go under, which is a testimony to his good management and frugality.  By 1845 he was writing “I now begin to feel that my home is here.”  He did return to London in 1850, where he stayed for 8 1/2 years.  A photograph held by the State Library of Victoria taken in London during this time, describes him as

Seated, wearing three-piece suit with fringed black and white paisley patterned tie (probably a scarf). He has a full brown and gingerish beard speckled with grey, and wears a light coloured top hat with a very high crown.

He returned briefly to Victoria, then went again to England where he lived for another 13 years.  After the death of his beloved sister Jane, he and his remaining sister Elizabeth returned to Victoria in 1873.  They settled together, unmarried brother and sister, until he died after years of ill-health in 1885.

References:

Leonore Davidoff and Catherine Hall Family Fortunes: Men and Women of the English Middle Class 1780-1850

Edmund Finn (Garryowen) The Chronicles of Early Melbourne

Richard Holmes The Age of Wonder: How the Romantic Generation Discovered the Beauty and Terror of Science

Marie Hyde Letters from Port Phillip:  the letters of Alexander Mollison 1833-1859 (thesis)

Zoe Laidlaw Colonial Connections 1815-1845: Patronage, the Information Revolution and Colonial Government

A. G. L. Shaw A History of the Port Phillip District

In the news 14 April 1843

The Port Phillip Herald of 14th April 166 years ago has its usual lengthy report of the Town Council proceedings of that week.   The newly-minted Council must have been a god-send to newspapers looking for material to fill their columns.  In tedious detail are written the motions put forward, the speeches given while presenting and seconding the motions, speeches against, objections etc. etc.  Not that there was much action from the council, though.  Judge Willis had protested against the legality of its incorporation, rendering it unable to collect rates and hence hobbled in actually doing much.

As part of their ineffectual bluster, on 14th April 1843 Councillor Stephen (long time opponent of Judge Willis) rose to put forward a motion.  The Council, he said, acted something like a Grand Jury (something that Judge Willis might not have agreed with), and it was within its rights to offer  suggestions to the Government.  In this spirit, he noted that Judge Willis had often commented on the dearth of spiritual education in the gaols.  There were 840 prisoners per annum incarcerated in the gaol,  but only 213 visits by the clergy.  He gave a breakdown of these visits by denomination:  77 visits by the Roman Catholic clergy; 65 by the Episcopalians;  48 by the Presbyterians and 25 visits by the Wesleyans.   He proposed that a sum be put aside for chaplains’ visits, which should be divided amongst the clergy according to the frequency of their visits.

His fellow councillors did not agree.  Cr. Smith (who was himself an Episcopalian) argued that one chaplain should be appointed by the government to the position.  Cr. Fawkner (Congregationalist) was appalled at the idea that an Episcopalian chaplain might minister to a Presbyterian or a Catholic, and bridled at the idea of a government church.  Cr Kerr said that in Sydney,  Gov Bourke’s Church Act notwithstanding,  Episcopalian chaplains only were appointed to preach to convicts and those on the chain gangs.  However, he thought it was none of the Council’s business.   And in the end, the motion was put but defeated.

Let’s unpack this a bit.  Cr Stephen was right in saying that Judge Willis had been agitating for better religious education in the jails for some time.  The Port Phillip Herald of 29 November 1842 reports Willis stating from the bench that he did not know how, in his conscience, he was justified in sending a prisoner to a place beyond the reach of all religious instruction, and bemoaning  that despite his utmost exertions to get the services of a chaplain at the gaol in Melbourne, he had not been successful.  Certainly he had been lobbying privately to Governor Gipps, although his requests at first had been for a paid position for Rev Thom(p)son, his own Episcopal minister (and incidentally, a steadfast supporter of the Judge) who had been providing these services previously without charge.   He changed tack some six months later, decrying the neglect of religious education in jail and noting that under English law, prisoners were entitled to the benefit of a resident chaplain.  He pointed out that the Sydney gaol had recently  allocated funding of 30 pounds per annum for one chaplain, with two additional chaplains receiving 25 pounds.

The issue of whether there was to be an ‘established’ Church in Australia was a fraught one.  As Michael Roe argues in The Quest for Authority in  Eastern Australia 1835-51, the Church of England was one of the bastions of  conservatism in early New South Wales.   Governor Bourke’s Church Act gave subsidies to the main religious denominations, thus granting legal equality between the churches.  Nonetheless, the battle over Anglican establishment continued, albeit in smaller arenas- like prison chaplains. Judge Willis, who was not backward in his vehement criticism of the Roman Catholic church,  seemed to be lending his support- at least at first.

The prominence of the chaplains in execution rituals is striking, but not unexpected.  After all, the law drew its legitimacy for capital punishment not only from the State, but also from religious justifications involving eyes and teeth.  The first executions in Port Phillip, of the aborigines Bob and Jack, were conducted with the oversight of Rev Thompson, while the bushranger executions later in 1842 involved all three chaplains:  the Episcopalian Rev Thompson; the Presbyterian Rev Forbes and the Roman Catholic Fr. Fogarty.  The chaplains visited the condemned men, prayed with them, accompanied the coffins and accused men in the parade to the execution spot;  even physically escorted them and helped them up to the scaffolds.  Their reports of their charges’ penitence and contrition fed into the script of the ritual, published in minute detail for the newspaper public.

So, if Judge Willis was unsuccessful in lobbying for paid chaplains, and if the Council motion lapsed, what happened next?  Garryowen tells us that on 1 January 1847, funding was finally allocated for paid chaplain positions.  Rev. A. C. Thom(p)son and the Roman Catholic priest Rev. J. J. Therry both shared 25 pounds per annum for chaplaincy services to the gaol.

References

Michael Roe The Quest for Authority in Eastern Australia 1835-1851

Garryowen

‘Crime in the Port Phillip District 1835-51’ by Paul R Mullaly

You can get all excited about the latest, contentious, revisionist contribution to those ‘big’ historical questions (those questions that somehow fail to capture the public interest!).  My wordy, I know I do!  But there’s something quite humbling about the labour-of-love, extended type of research that provides the building block foundations for this other more controversial, more debated but somehow more ephemeral work.  I’m thinking about the edited series of documents, the painstaking deciphering of a diaries, the compilation of administrivia into a logical process after it has been distributed across multiple bureaucracies.  There’s a danger, of course, that it can descend into mere list-making, and the hunt become more seductive than the actual capture.  But thank you to those historians who share the nuts and bolts of their research with others.

In relation to my own research, I’m thinking of A.G.L. Shaw’s Gipps-La Trobe Correspondence with its wide-ranging footnotes that make me realize I’m following a well-trodden path.  I’m thinking of Ian D Clark’s persistence in deciphering George Augustus Robinson’s diaries- ye gods: that handwriting! I’m thinking of Paul de Serville’s typography of Port Phillip ‘gentlemen’ before and after the gold rushes. And now, too, I’m thinking of Judge Paul R Mullaly’s book Crime in the Port Phillip District 1835-51.

This is a big book- 763 pages- so big in fact that the subject and names index has to be downloaded from the publisher’s website separately-  a costly compromise when dealing with such an exhaustive work.  The author, a judge and Q. C. with a long history of involvement in the Supreme Court of Victoria, undertook this huge endeavour in his retirement, drawing on material at the Public Records Office of Victoria, newspapers, and both Redmond Barry’s and Judge Willis’ own case books.  Here is where his experience comes into its own.  For the non-lawyer, many of these documents are fragmentary and utilitarian, and all too often opaque.  But  Mullaly can cast his legal eye over them, piece them together into a narrative and contextualize them into a standardized legal process.

The book is divided into three themes, although the table of contents doesn’t reflect this.  He starts with a snapshot of Port Phillip itself and its legal system, with an emphasis particularly on the status of Aborigines under colonial law.  He then moves to a step-by-step description of the legal process, from arrest through to sentence, highlighting along the way where practices differ from those today. Finally- and this is the largest section of the book- he analyses different types of offences e.g. those against the person, against property, against justice, miscellaneous and sectarian offences,  with a selection of chronologically-presented vignettes of particular cases.  The regularity of his structure was helpful.  I was concentrating on judgments between 1841-3, and the chronological presentation made it easy to locate the material I wanted.

There is not an argument as such in this book,  beyond his long-held belief expressed in his introduction that “the elite in society tended to be far too ignorant of the realities of much criminal activity and were much too judgmental in attributing a high degree of moral culpability to many offenders” (p. vii).  This is, instead,  a descriptive work, focussing on the administration of the criminal law, which he hoped would “help the present community understand many aspects of our present culture and give many citizens an insight into the community in which their ancestors lived.” (p.viii).  Perhaps because of its descriptive intent, the ending of the book felt a little abrupt.  I found myself wishing that he’d made an overall assessment of crime at that particular time- was it any more or less violent then? did the nature of crime change? was society well served by its criminal justice system?  I really enjoyed the parts where he tried to explain some anomaly that he had detected, or fill in the gaps that had been left in the documentary record.

There’s just so much that can be done with the material he has assembled here.  I’ve been frustrated by the elusiveness of women in my study of Port Phillip but here they are- not just as victims but also as witnesses, neighbours, people just going about their lives.  There’s a fascinating study of childhood glimpsed in these cases; there’s a geography of the streets and pasttimes.   There’s another economy here- not that of the Blue Books or Select Committees into Monetary Confusion, but the economy of buying and selling and just getting by.

This book provides well-dug, solid foundations. Thank you.


‘Redmond Barry: An Anglo-Irish Australian’ by Ann Galbally

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1995, 228 p.

As a Melburnian, it’s difficult to get past the image of Redmond Barry as a strong, imperious philanthropist.  He is still very much a visible presence:  a large statue of him rears up in front of the State Library (one of his projects); his name adorns prominent buildings at the University of Melbourne (another of his projects), and of course his reputation has been forever intertwined with that of Ned Kelly, whom he sentenced to death.  This is the stuff of myth-making: the pompous Supreme Court judge cursed by the fearless bushranger “I will see you there when I go” (or words to that effect), only to die 12 days later of “congestion of the lungs and a carbuncle in the neck”.  [ Can you die of carbuncle? Dear Lord, if I should die, please let it NOT be of a carbuncle!]

Ann Galbally’s biography covers, of course, his whole life but my interest is mainly on his early years in Port Phillip and his relationship with Judge Willis.  Barry was born into the Anglo-Irish ascendancy.  The peace that followed the Napoleonic Wars cruelled his chances for a military career, so he entered the law instead only to find the Bar crowded with other young men who had made the same vocational choice.   When his father died in 1838, he emigrated to Sydney where there was less competition.

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On the journey out, he embarked on a relationship with a Mrs Scott- and worse still, continued it when he reached Sydney.  News of the affair reached the ears of Governor Gipps, and he was awarded few government briefs as a result.  He continued to suffer from disapprobation even after leaving Sydney for the small town of Melbourne because, although he socialized and got on well with Superintendent La Trobe, the more prominent legal positions were in the gift of Gipps rather than La Trobe.   His unorthodox relationships with married women seem to be an ongoing theme: in 1846 he took up with a Mrs Louisa Barrow, with whom he had four children, in a  public, lifelong relationship that was never regularized by marriage.

Barry was only 26 when he arrived in Melbourne, and Galbally paints an engaging picture of Barry socializing with the other predominantly-Irish members of the Bar:  his good friends Sewell, Foster and Stawell and fellow Trinity-college and King’s Inn  graduates Brewster and Croke.  Although a member of the Melbourne Club and welcomed to all the vice-regal social occasions, he had little capital behind him and thus was not caught up in the land speculation of the early 1840s and  “perhaps for this reason his managed to maintain civilized relations with Willis for longer than most of the legal fraternity” (Galbally p. 49).

Not that Barry found Willis easy.  His diary records a succession of entries where he “argued with Willis“, “fought with Willis” or had a “blow-up with Willis who threatened to suspend me“.  He greeted the news of Willis’ suspension with relief  “Supreme Court Willis suspended + removed, Te Deum Laudamus” (24 June 1843).

In spite of this, Barry did not seem to have been exposed to the same personal insults or attacks that other barristers and officers of the court suffered.  Willis seemed to greet his appointment as the Commissioner for the Court of Requests in January 1843 with genuine approval, and at times their sparring in court (complete with historical allusions and Latin jests)  seemed to be equally relished by them both.   Although Barry had a reputation as a bit of a dandy who wore an old-fashioned Beau Brummel style suit, obviously Judge Willis did not take exception to this as much as he did the trimmed moustaches of Edward Sewell, Barry’s friend and erstwhile housemate.

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Unlike Judge Willis, Barry was noted for his “dignified deportment and invincible politeness” (Garryowen p. 867). Galbally captures this quality well.   Against such a man, Willis’ own failings of temper and demeanour would have been even more marked.

References

Ann Galbally  Redmond Barry: An Anglo-Irish Australian

Barry, Sir Redmond, Australian Dictionary of Biography (online)

The Aboriginal Executions on 20 January 1842

Joseph Toscano, well known anarchist and correspondent to The Age yesterday convened a commemoration ceremony of the 167th anniversary of the execution of two “indigenous resistance fighters”  who were  found guilty of murder by Judge Willis, the Resident Judge of Port Phillip.

It is striking that there were six executions in Port Phillip during 1842, and then none for several years.   This does not necessarily denote, though, that Judge Willis was a particularly vicious ” hanging judge”.  Until his arrival in Port Phillip in March 1841, all Supreme Court trials were conducted in Sydney. After Judge Willis’ removal in mid 1843, his replacement Justice Jeffcott refused to order the death sentence in his own right until the legality of Willis’s dismissal had been confirmed.  However, during 1842 there were six executions in total- two Aborigines in January 1842, three bushrangers in June 1842 and another Aborigine (Roger) in September 1842.  For that year, it must have seemed that the execution parade through the streets of Melbourne to the gallows outside the new gaol was becoming a regular feature.

It’s significant that both aborigines and bushrangers were the real hot-button issues for white settlers.  Judge Willis did pass another death sentence for murder on Thomas Leahy for murder of his wife, but the the sentence was commuted to transportation.  However, there was no mercy for aborigines or bushrangers found guilty of murder: their crimes challenged power and authority more generally.

The passage of 167 years certainly changes the language that we use to conceptualize this event.  Toscano speaks today of their execution as “a great Melbourne story of love, resistance, passion and violence”.   Judge Willis wrote to La Trobe describing the case as “one of great atrocity”.  Toscano today identifies them as Tunnerminnerwait and Maulboyheenner; at the time their names were recorded by the Aboriginal Protector as “Tuninerparevay: Jack, Napoleon” and “Small Boy: Robert, Timmy, Jimmy”  (Mullaly, p. 255)

“Bob” and “Jack”, as they were popularly known at the time,  were part of a group of Aborigines brought across from Van Diemen’s Land by the Aboriginal Protector G. A. Robinson when he was appointed to his post in Port Phillip, with the intent of using them as intermediaries when conciliating the local tribes. This seems a rather ill-informed intention on Robinson’s part,  given the language and territory differences.  After a time they were no longer staying with Robinson. When two white whalers were murdered, this group of five aborigines, two men and three women (including Truganini) were reported to have been seen in the location of the murder scene , and said to have committed other depredations in the area.

This complicates the picture somewhat.  Coming from Van Diemen’s  Land, it was not a simple matter of protecting traditionally-owned territory from invading settlers.  On the other hand, their transplantation from Van Diemen’s Land across the sea was an absolute dispossession, and resistance moved from the particular to the generalized- not a particular settler on a particular river, but white men in general.

The Port Phillip Herald of 21 January 1842 reported that there was no doubt about the justness of the sentence, and that their execution was the imperative duty of the authorities to vindicate the impartiality of British law.   It is interesting to note the objections raised by Redmond Barry in their defence.  At first he argued that half the jury should consist of people able to speak the language of the defendants which, not unsurprisingly, Justice Willis overruled.   In  his address to the jury, Barry referred to the ‘peculiar situation’ of ‘circumstantial evidence of dubious character’.    Likewise, it is interesting to note the issues that did not arise.  The amenability of these particular Aborigines to European law was not questioned.  It was ascertained from Robinson that the men had knowledge of the existence of a Superior Being and knew right from wrong, and that they could speak English.  These grounds were later used by Judge Willis in other cases to acquit Aboriginals in his court who were not deemed to understand English or have an understanding of a Supreme Being.

In his address to the jury, Judge Willis is reported to have commented on the criminal activities of the armed men prior to the attack on the unarmed whalers, and he distinguished between the role of the men as murderers and the women as accomplices.  He emphasized the necessity to prevent the ‘recurrence of similar acts of aggression’.  After a recess of half an hour, the jury returned with a conviction for the men with a recommendation of mercy ‘on account of general good character and the peculiar circumstances under which they are placed’ (Mullaly p 257). The more than I think about it, this recommendation of mercy arising from a community truly anxious about ‘depredations’ and its consequent dismissal by the authorities is perhaps the most surprising aspect of the trial.

This recommendation, however, was not strongly supported by Justice Willis, and the sentence was confirmed by Governor Gipps. Their executions were the first in Port Phillip.  Public executions at the time were understood by the white participants and specatators  (as distinct from the Aboriginal prisoners)  to represent authority, religion and humanity (Castle 2007).    It was a highly ritualized degradation ceremony, with specific clothing and practices and designated roles for the clergy, the judge, the governor and the prisoners to play.  The newspaper descriptions of the time reflected the traditional  narratives of repentance, scaffold confessions and fear,  well-known from similar practices in England.

However, this was mixed with a degree of sympathy and uneasiness among some- but certainly not all- spectators.   This was a ‘first’ for everyone, and it was generally agreed that the execution itself was botched and unpleasant.  Although this first execution attracted large crowds, by the time another Aborigine, Roger, was executed in September 1842 there was newspaper disapproval of the character of the spectators who attended- particularly women- and calls for the scaffold to be removed as quickly as possible and executions to be carried out within the gaol walls rather than in public view.  However, this  squeamishness needs to be balanced against the fear of  Aboriginal depredations  voiced by small settlers and more influential squatters and landowners in the outlying frontier areas.   In such an environment, and given the legal restrictions on Aboriginal testimony, it is perhaps not surprising that there were so very, very few executions of white settlers when it was Aborigines who were murdered.

Update: An interesting article by Marie Fels with David Clark and Rene White called ‘Mistaken Identity, Not Aboriginal Heroes’ in Quadrant October 2014 looks closely at the coal-mine manager William Watson. The only words uttered by Tunnerminnerwait and Maulboyheener in their own defence pertained to William Watson-  “We thought it was Watson”. This article looks carefully and critically at William Watson and carefully reconstructs the movements of the Van Diemens Land aborigines immediately before the murder.  Well worth reading.

References:

Paul R. Mullaly  Crime in the Port Phillip District 1835-51,

Ian Macfarlane  The Public Executions at Melbourne 1842

Tim Castle ‘ Constructing Death: Newspaper reports of executions in colonial NSW 1826-1837’ Journal of Colonial History, vol 9, 2007 p. 51-68.