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30877 Notre Dame THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 AND SOME AMELIORATIONS John Bourke and Rosemary Lucadou-Wells* IABSTRACT The paper firstly considers the complex of reasons why people could not pay debts in Van Diemen’s Land (‘VDL’) between 1817 and 1830. Secondly, it considers the consequences of debts in VDL, in the light of selected cases before the Lieutenant-Governor’s court between 1817 and 1823 and the VDL Supreme court between 1824 and 1830. Finally, the paper looks at Rule of Practice Number 11, a remedy introduced by VDL legal practitioners on 3 May 1831. His Honour Chief Justice Pedder was pleased to accept Rule 11,commenting it would relieve the Colony from ‘much and serious inconvenience’ in that it addressed the scenario of arrest at first instance for non-payment of debt.1 The main sources for the paper consist of surviving original documents from the Lieutenant-Governor’s court, colonial newspapers2 and the on-line website of Stefan Petrow3 and Bruce Kercher,4‘Colonial Case Law Online’. * Rosemary Lucadou-Wells, B.ed (Tas), MA (Murdoch), LLB (Qld), Ph.D (Deakin), a Barrister and Solicitor of the Supreme Courts of South Australia,Victoria and Tasmania and of the High Court of Australia and John Bourke LLM (Monash), a Barrister and Solicitor of the Supreme Courts of Victoria and Tasmania and of the High Court of Australia. Both are lecturers in the Division of Law,Macquarie University,NSW. 1 ‘Opinion on abolition of imprisonment for debt,’Tasmanian,6 May 1831.Rule 11 was one of a series of new Rules of Practice, which the lawyers of Hobart Town had prepared and presented to His Honour Chief Justice Pedder on the First day of the Second Term of Sitting of the Supreme Court of Van Diemen’s Land, 3 May 1831. 2 Colonial newspaper reports must be read in the light of such‘… periodical writings resulted partly from the paucity of topics and… the limited field of (the island’s) discussion (which) huddled all disputes into a squabble’. Comment by John West, History of Tasmania (Launceston: Henry Dowling, 1852) 175. 3 Stefan Petrow, Decisions of the 19th Century Tasmanian Superior Courts, School of History and Classics, University of Tasmania, in a project with Bruce Kercher, Division of Law,Macquarie University <http://www.law.mq.edu.au/sctas/html> at 23 November 2006.This is a particularly valuable source, having been compiled from newspaper reports written at the time of the hearings. 4 Bruce Kercher, Decisions of the 19th Century Tasmanian Superior Courts, Division of Law,Macquarie University,in a project with Stefan Petrow,School of History and Classics, University ofTasmania,<http://www.law.mq.edu.au/sctas/html> at 23 November 2006. 147 (2007) 9 UNDALR The paper posits that the development of Rules of Practice by lawyers is important in itself because it: • Illustrates the emergence of a legal system in response to the specific requirements of VDL as distinct from the adoption of precedents from England • Highlights the helping, altruistic role of the legal profession • Emphasises the ‘freedom’ of the colonists to make rules for themselves, rather than having a Parliament legislate. ‘All men are ready to invest their money, but most expect dividends …I say: take no thought of the harvest, but only of proper sowing.’5 II REASONS FOR NON-PAYMENT OF DEBTS IN COLONIAL VDL Historical sources suggest the following reasons for non-payment of debts in colonial VDL: • shortage of currency • debtor – creditor misunderstandings • locale of VDL • road-track problems • taxes imposed by Great Britain on VDL produce • bushrangers • Tasmanian Aboriginals A Shortage of Currency In VDL money was in short supply and what money there was revealed a hotchpotch of currency. The sea-port of Hobart Town was visited by sealers, whalers, merchant and convict vessels. Consequently, coins from all over the world were used.The Commissariat,apparently focussed uponVDL as a penal colony, had not thought about bringing British coin into the colony.6 This currency shortage could well have had the impact of causing non- payment of debts; some debtors may simply not have had coinage to pay their creditors.A barter system developed in the absence of currency, 5 T S Eliot (c 1935) from The Rock: Chorus I. 6 Henry Melville, History of Van Diemen’s Land from theYear 1824 to 1835 Inclusive to Which is Added a Few Words on Prison Discipline (Adelaide: Libraries Board of South Australia, 1965) 19. 148 149 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 whereby payment was made in goods.Wheat became a useful bartering commodity,as revealed in the advertisement of the Hobart Town Gazette of 28 June 1817:7 For Sale:Fruit trees for private sale:English gooseberry,white and red currants,plum and apple trees,grape vines.Purchased in small or large quantities,for ready money or wheat only.Charles Brown,Mr Birch’s Nurseryman,at his residence at the upper end of Liverpool Street. However, conceivably not all creditors would have been satisfied with a commodity in payment of a debt. This could well have been the situation withAndrew Geils,who in theWrit of 22 October 1822,sought payment in British sterling from James Gordon:8 In the L-G’s Court: James Gordon of Pittwater to appear before the L-G’s court at HobartTown on the 28th day of October 1822 to answer the complaint of Andrew Geils late of HobartTown byWilliamAdams Brodribb his agent for debt the amount of 50/0/0 of lawful money of Great Britain being the value of a pair of working bullocks which the said James refuses to pay to the damage of the said Andrew Geils. Signed 22/10/1822 by Edward Abbott Deputy Judge Advocate. Bullocks were essential for the farmer,in this case James Gordon,to till the soil to grow the crops to develop a cash flow to pay for the bullocks. Presumably he was unable to pay for the bullocks until his crop had grown: surely this was an impossible merry-go-round for the debtor. In the absence of currency,Promissory Notes were introduced and developed into what Melville described as ‘a system [that] spread like a contagious fever…at first 4 dollars,then 3 dollars then down to 3 pence notes’.9 If an analogy is drawn between a Promissory Note and a contemporary Tatts Lotto entry, both based upon the hope that at a future time, funds will have materialised,it is clear that some commitments to pay had little chance of being met. In the event of Promissory Notes not being honoured,Writs such as the following were issued.10 You are hereby commanded to summonThomas Florence of Kangaroo Point inVDL to appear before the L-G’s court at HobartTown on the 4th day of April next to answer the complaint ofAnthony Fenn Kemp and Co.of HobartTown merchant,for 7 Hobart Town Gazette, 28 June 1817. 8 Original of Andrew Geils, 22 October 1822,LC6/1/1,StateArchives Office ofTasmania. 9 Melville above n 6, 19-20. 10 Folder,March 1822,LC6/1/1,Shelf LocationA,129/1,StateArchives Office ofTasmania. 149 (2007) 9 UNDALR debt to the amount of 10/0/0 of lawful money of Great Britain by a note of hand which the saidThomas refuses to pay to the damage of the saidAnthony Fenn Kemp and Co. B Debtor-Creditor Misunderstandings ColonialVDL was a time and place when arrangements between debtors and creditors were informal and this informality resulted in misunderstandings. The case of Barker v Blinkworth11 reveals a misunderstanding between an employer and employee.Mr Barker was employed to perform multi-tasks on Mr Blinkworth’s farm for a period of about four years:he tutored and made shoes for the people on the farm,took care of the sheep and tanned skins. In return, for four years, Mr Blinkworth provided Mr Barker with food, clothing,tobacco and lodging.Apparently Mr Blinkworth considered this adequate set-off for Mr Barker’s work on the farm. However, Mr Barker was under the impression that he would receive 20 pounds per annum as well as board and lodging. Evidence was adduced that showed at times Mr Blinkworth had given an order to others in favour of Mr Barker.This established there had been a collateral agreement to pay an annual salary so the Court awarded damages of 45 pounds to Mr Barker. This case was heard on 21 December 1831; no doubt, then that the 45 pounds would have done much to provide Christmas cheer for Mr Barker. C The Locale of VDL There are as many perspectives of the locale of VDL as there are viewers. It was a primeval land and people saw it differently. Captain Andrew Barclay,12 recounting his arrival in 1816 to Thomas Scott, was ‘determined to fix my future residence for the remainder of my life in the more temperate and English-like climate of VDL’ having been granted 500 acres of land there by the kindly Governor Macquarie in Sydney. 11 Stefan Petrow and Bruce Kercher,Barker v Blinkworth:Decisions of the 19th Century Tasmanian Superior Court, Division of Law, Macquarie University and School of History and Classics <www.law.mq.edu.au/sctas/html/barkervblinkworth_1831> at 23 November 2006. 12 Thomas Scott, The Life of Captain Andrew Barclay, (Launceston, 1936) 7. Published privately by Thomas Scott. 150 151 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 Attorney-General Gellibrand in R v Tibbs13 also sawVDL in glowing terms. When I consider that 20 years have scarcely elapsed since this Island was a barren and desolate country, so far as regards civilization, and view what it now is, its population, its agriculture, and its riches, I consider that this is one of the most favoured spots in the world.
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