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
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.
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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
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.
To the other extreme,there is Bischoff adopting the more dour comment of Alexander Ross in the Tasmanian Almanack of 1831, describing the land of VDL as:‘hilly nature … [estimating that the] productive surface of the island is no more than one third’.14
Without doubt, the locale of VDL itself was a factor in non-payment of debts by the due date, particularly for those who depended on making a living from the land.Where settlers had their land determined whether or not they would be able to grow a crop.Without marketable produce there was no medium of paying a debt.
D Road and Track Difficulties
Even if a crop were successfully grown, getting it to market posed a serious problem.
Thomas Dutton of the VDL Agricultural Association15 referred to the road that serviced part of their land grant as ‘an ill-defined, crooked, swampy way…an apology for a road’.
Things did not improve rapidly,as shown by Dan Ballantyne’s explanation to Messrs Kerr Bogle and Co about his inability to meet his commitment to them:
Macquarie Plains, 24 September 1840: Gentlemen, Since I had the pleasure of addressing you our road has been so bad as to prevent my sending in wheat, but they are now mending it and I doubt not getting the grain down within a short time. I remain respectfully gentlemen.Your most obedient Dan Ballantyne.16
13 Stefan Petrow and Bruce Kercher,R v Tibbs:Decisions of the 19th Century Tasmanian Superior Court, Division of Law,Macquarie University and School of History and Classics
151 (2007) 9 UNDALR Even the 1850s VDL roads were primitive, as William Howitt, English pharmacist and documentary writer shows in his description of his visit to Campbell Town, 5 July 1854:
the frost was so strong here that the ice in many places would not break under the horse’s feet…a continued succession of stony ranges and swamps, …loose stones…once off these,you were treading in black boggy mud up to the mid-leg of the horse and at every step breaking ice. Out of the bog you were on the loose stones again,and then again into the bog,and then into a mixture of both,bog with stones at the bottom, some loose, some standing up in points and knobs which required all thecare that both you and your horse were possessed of to keep him on his legs.17
Little wonder that the roads were as they were, in the light of W C Wentworth’s18 description as to how they were made.
The traveller marks the trees in the direction he wishes to take …these marks are a guide to all.In a very short time the tracks of horses and carts become visible,grass is gradually trod down, finally disappears and a road is formed…when there’s a stream 2 or 3 trees are cut down on the banks…they reach to the other side…small boughs or other small trees are lopped off and laid close together for a bridge.
According to Bischoff19 convict chain gangs were brought in to make going through a tract of country easier for cattle.
Without doubt, then, the condition of roads and interior arterial tracks presented a major problem for those trying to bring produce to HobartTown to sell or pay accounts:ultimately,overdue-debts would have accrued interest.
E Taxes Imposed by Great Britain on VDL Produce
The British established VDL as a penal colony. The prisoners were subjected to harsh punishment,not only by being transported from their
17 William Howitt ‘Letter XLI’ in Land, Labour and Gold (Sydney Uni Facs 1972) 362. This letter reveals Howitt’s brilliant imagery of his travels through VDL terrain:‘We crawled forward like a couple of Job’s own snails…gigantic stringy-barks, …thick bushes of tea-scrub raking our sides…huge wildernesses of rocks and great stones thrown one upon another in melancholy disorder, and all overgrown with grey lichens…We came to places where millions of young trees, like poles, had grown up in close array, and had been killed by the wet and frost of winter.There they stood, a forest of death,or half dead,half alive,and burnt black with bush fires.The deep boggy mud, the huge prostrate trunks of trees rotting in it, the excessive sensation of cold and damp…and the silence of these unbroken forests,were all made the more gloomy by our slow progress.’ 18 W CWentworth,Statistical, Historical and Political Description of the Colony of New SouthWales and its Dependent Settlements inVan Diemen’s Land:with a Particular Enumeration of the Advantages Which These Colonies Offer For Emigration, and Their Superiority in Many Respects Over Those Possessed by the United States of America (London: G and W B Whittaker,1819) 129-130. 19 Bischoff, above n 14, 61.
152 153 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 home to a foreign land but also by being require to grow their own food and build their own shelter.As the prisoners completed their sentences or were granted remission,increasing numbers of free settlers joined them. Together,the colonists cleared and tilled the soil of VDL:they grew crops, produced meat and wool and garnished oil from the whale pods, which frequented the Derwent River.Their harvest of their crops eventually out- stripped the domestic requirements and export, first to NSW and then England,became a reality.However,a further punishment was inflicted on the penal colony by Britain in the form of harsh taxes imposed on VDL produce exported to Britain, essentially because VDL farmers were competing with English farmers.20 Bischoff21 lists some of the taxes. Dry hides were two shillings four pence per cwt.Wet hides were one shilling two pence per cwt.Cured beef now cost 12 shillings per cwt.Oil was one shilling per ton and wheat cost five shillings per quarter.
As a consequence,VDL farmers had to pay not only the costs of freighting their produce to England but also the English taxes imposed on their goods. Bischoff22 points out that ‘all these taxes are very injurious to an infant colony and raise very little revenue’for England.Nevertheless,they had to be paid and consequently,the taxes both depressed and retarded the prosperity of the colony.23 The profit margins of the colonists were narrowed as the export taxes became yet another financial burden to increase payment difficulties.
F Bushrangers
Bushrangers were an unfortunate consequence of VDL’s penal colony origin. Some of the convicts rebelled against their transportation and subsequent harsh treatment as prisoners by absconding.They treatment formed banditti and committed frequent robberies, clearly creating a major problem for settlers.
The bushrangers threatened the entire colony.The following item from the Hobart Town Gazette of 16August 181724 reveals the courage ofVDL women, Aboriginal and Non-Aboriginal,in dealing with the bushrangers.
The bushrangers committed a robbery at Clarence Plains on Sunday evening last…after which they became excessively intoxicated by spirits, a part of their plunder, as to quarrel amongst themselves.Rollands,who was taken and brought in by Mrs Maunder and other settlers on Monday morning had been dreadfully beaten and bruised by his
20 Bischoff, above n 14, 92. 21 Bischoff, above n 14, 92. 22 Bischoff, above n 14, 93. 23 Bischoff, above n 14, 91. 24 Hobart Town Gazette and Southern Reporter, 16 August 1817.
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companions.White was brought in on the following morning and Johnson onThursday evening…both taken by the party of the 46th Regiment under Lance Sergeant McCathy, who with Black Mary and another native girl pursued and tracked them.
Henry Melville recalls the horrors attributable to bushrangers in 1826 when ‘…the bushrangers set fire and burnt down the stockyard with all the wheat belonging to Mr Abraham Walker…the extent of the damage is not yet ascertained…’25.
The menace of bushrangers in 1826 was such that it resulted in an official reward being offered for information leading to the capture of a particular bushranging banditti.26 The reward was substantial; either one hundred guineas or 300 acres of land free of all restrictions or a free pardon and a passage to England to any prisoner who provided the information.
So much were bushrangers a part ofVDL colonial society that David Burn wrote a play on ‘The Bushrangers’, this being, according to E. Morris Miller27 the first known three-act drama, written and performed on an overseas stage on an Australian theme.28
Thus,the loss of property and crops from the actions of bushrangers can be seen as a factor which stripped settlers of the means of paying their debts.
G Tasmanian Aboriginals
There was disharmony between theTasmanianAboriginals and the white settlers.
There were attacks by Aboriginals on farmers, as shown by the killing of MrWilliam Hollyoak and Mr Radford’s aboriginal servant,Mammoa,on Mr Cylus Gatehouse’s property at Grindstone Bay.29 As well, there were attacks on the produce and crops of the farmers.For example,the Hobart Town Gazette of 29 October 182430 provides details of an attack on the
25 Melville, above n 6, 53. 26 Melville, above n 6, 54. 27 E Morris Miller, Pressmen and Governors:Australian Editors and Writers in Early Tasmania, a Contribution to the History of the Australian Press and Literature with Notes Biographical and Bibliographical (Sydney:Sydney University Press,1952) 119. 28 Miller, above n 27, 119. Miller states that The Bushrangers was performed at The Caledonian Theatre, Edinburgh, Sept 8th and 10th 1829. 29 Hobart Town Gazette, 29 October 1824 also found in the report of the case R v Mosquito and Black Jack,6August 1824 in Stefan Petrow and Bruce Kercher,Decisions of the 19th Century Tasmanian Superior Courts, School of History and Classics, University of Tasmania, and Division of Law, Macquarie University
154 155 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 property of Mr James Hobbs which included digging up two tons of his crop of potatoes, beating his stockmen, driving off his cattle and eventually killing his stockmen. No doubt the hapless Mr Hobbs would have found difficulty paying the piper!
According to Betts the method used by the Aboriginals to burn fences and the settlers’ detached thatched cottages involved discharging their spears into the latter with a light stuck on the end.31 Thus it was thorough and created costly setbacks to the settlers.
H Context of VDL
The context of colonial VDL, therefore, consisted of a combination of elements which were unfamiliar. Settlers were at the mercy of the elements in a climate whose vagaries were unknown. The regional geographical differences of the island were barely known, let alone understood.The primeval soil variations were not comparable with the much-farmed soils of Europe and Great Britain.The natural vegetation, native fauna and timber were unlike anything in their experience.
Early merchants were under pressure from the lack of currency and merchandise, their own finite capital often based in England, and customers who were without means of paying.
To be sure, this colonial melting pot would have given rise to many instances where the debtors would genuinely have been unable to meet obligations to pay.
III RAMIFICATIONS OF UNPAID DEBTS IN COLONIAL VDL
Having identified the context and acknowledged that it undoubtedly gave rise to instances of genuine inability to pay, it is appropriate to consider the consequences of not paying one’s debts in colonial VDL.They were serious: arrest for non-payment of a debt being the order of the day.
Then, as now, the implications of incarceration were enormous. For a colonial farmer,farm-work ceased,land and crops were neglected,animals strayed or were stolen.The risk of animals being stolen when absent from
31 T Betts,Account of the Colony ofVan Diemen’s Land:Principally Intended for the Use of Persons Residing in India, Pointing Out the Readiest Means of Going There and the Advantages it Holds Out to them for a Permanent Establishment (Calcutta:Baptist Missionary Society,1830) 98-99.
155 (2007) 9 UNDALR the property is mentioned by Stephen H. Roberts32 who reports sheep being stolen in flocks of up to 500 at a time and the difficulty of tracing sheep due to the wide-spread practice by thieves of ‘brand-blotting’.
For anyone, farmer or non-farmer, family suffered disarray. Without freedom to work for money there was no means of paying off a debt. Thus, the pool of social dislocation created by the original default widened, as well as the personal scaring of the individual.
The effect of debtors not meeting their commitments resulted in a domino effect, with creditors subsequently being unable to meet their commitments.Thus conflicts developed.
His Honour Kirby J33 identifies the common law as‘…the tales of ancient conflicts and the attempts, mostly by rational people, to come to principled and just solutions to conflicts…’where the consequences are revealed. Thus, creditors sought the assistance of the Lieutenant Governor’s Court and the Supreme Court of Van Diemen’s Land. It is the records of several of those cases which provide insight into the consequences of overdue debts in colonial VDL.
IV REMEDIES FOR DISAPPOINTED CREDITORS IN VDL
A Self help
Disappointed creditors probably tried informal measures such as sending accounts, writing letters and visiting their debtors, either personally or through an agent, to encourage their debtors to pay. If these informal measures failed, it seems that at least some creditors tried more public methods,such as inserting general notices of warning in the newspapers, such as the Notice inserted in the Gazette of 7 December 1817:34
Notice:The undersigned,having some time since given public notice of his intentions with regard to persons who stand indebted to him, either by notes of hand or book debts,and it not having been paid attention to,has again to inform all such people that unless they come forward and liquidate their respective debts on or before the 1st January next,he will be under the necessity of resorting to coercive measures at the ensuing term of the Lieutenant Governor’s court.Signed Robert Rennie.
32 S Roberts,History of Australian Land Settlement (1788-1920) (Melbourne:Macmillan & Co, 1924) 46. 33 His Honour Justice Kirby,‘Constitutional Interpretation and Original Intent – a Form of Ancestor’, Speech delivered at the Sir Anthony Mason Lecture, Melbourne University, 9 September 1999)
156 157 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 B The Lieutenant-Governor’s Court
Power to convene a court was granted to the Governor by 27 Geo III c2, with jurisdiction over all crimes and offences, consisting of the Judge Advocate and six officers of the land and sea forces.35
In VDL, this court, also known as the Judge Advocate’s Court, had jurisdiction to hear cases involving amounts and damages of up to 50 pounds,36 a jurisdictional limit which saw many large debts being divided into several 50 pound nominations in order to be brought to court.37 In VDL, Deputy-Judge Advocate Major Edward Abbott presided, a man who knew no law but acquired a reputation of being just and fair.38 Melville,39 writing while imprisoned, says of the Judge-Advocate’s court:
Were the reports of the trials of this court to be recorded they would no doubt entertain the reader…The Judge Advocate often observed that he was no lawyer himself and would not be bothered with the law.
Auchmuty40 shows that sitting as he did with two lay colleagues,the role of the Deputy Judge Advocate encompassed those of committing magistrate, public prosecutor and judge.
Thus, if self-help measures failed, creditors in VDL had resort to the Lieutenant-Governor’s court.The coercive measures used by this court are revealed in the following Notice inserted in the Gazette of 8 November 1817:
Sales by Auction By Virtue of Executions Issued Forth of the Lieutenant Governor’s Court:I will cause to be set up for public auction onThursday next,the 13th instant at 12 o’clock the goods and chattels of John Birchall of Pitt Water (Unless the debt, costs and all incidental expenses are previously liquidated). Signed: Martin Tims Provost Marshall, 8th Nov 1817.
Being publicly humiliated and sold up surely were sufficiently severe,but the Writs of Executions from the Lieutenant Governor’s Court reveal a worse penalty: that being imprisonment.
35 Law Reform Commission of NSW (1973) Imperial Acts and Documents Relating to NSW, (Sydney: Law Reform Commission, 1973) 57. 36 Melville,above n 6,18.Melville says it acted sometimes as a court of law and sometimes as a court of equity. 37 Melville, above n 6, 18. 38 J Auchmuty,‘1810 – 1830’in F.K.Rowley (ed) A New History of Australia (Melbourne: Heinemann, 1974) 72. 39 Melville, above n 6, 18. 40 Auchmuty,above n 38, 72.
157 (2007) 9 UNDALR C Writs of Executions from VDL LG’s Court
The Register ofWrits of Executions from Deputy-Judge Advocate Abbott, from 4 April 1823 to 10 May 182441 is arranged in columns across each double page,with the following headings:whom for,against whom,nature of writ, verdict, costs total, date of writ, when issued and remarks.
This paper considers the results of the Lieutenant-Governor’s court actions by calculating the total of each of the results. At the beginning of the Journal six remarks for results are used,these being:‘no effects to sell (nulla bona)42 ‘withdrawn’,‘D. is not in the country (non est inventus )’43 ‘defendant imprisoned’,‘sold goods’and‘superseded’.
However,from page 23 to the end at page 53,three additional remarks are used:‘Debt and costs paid, money paid into court,44 goods in hand’.
In the absence of evidence to the contrary,it is posited that this change most probably emanated from an improved administrative procedure,based upon the rationale that it is efficient to locate the full accounting records with theWrits.
The Execution’s Register from 4 April 1823 to 10 May 182445 reveals a total of 659Writs were issued for non-payment of debts under the amount of fifty pounds within a thirteen month period.The results of those Writs are shown in the table below: Result of Writ Number %
NULLA BONA 305 46.28% WITHDRAWN 222 33.69% NON EST INVERITUS 53 8.04% IMPRISONED 30 4.55% MONEY PAID INTO COURT 17 2.58% DEBT + COSTS PAID TO COURT 17 2.58% SOLD GOODS 14 2.12% SUPERSEDED 1 0.15% TOTAL 659 100%
41 Registrar Deputy Judge Advocate Edward Abbott, Lieutenant Governor’s Court,VDL, Executions Register Book No 4, LC6/1/1,AOT,1 – 14. 42 Her Majesty’s Courts Service, Glossary – Latin Terms
158 159 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 These figures at first blush support the inference that: • Most debtors were genuinely unable to pay • The Lieutenant-General’s court was effective in compelling recalcitrant debtors • It was easy to obtain goods on credit in VDL.
An attempt to align the Writ result figures with the VDL free white population figures of the same period provides more insight into the emerging VDL society.
While there was a laxity about keeping population statistics of the white settlers in VDL,46 Giblin nevertheless manages to provide estimates. For example, at the end of 1817, there were 3114 white souls,47 in 1820 the total white settlers were 546848 and following Bigge’s classification of the VDL population,714 arrived free and 185 were born in VDL,362 were free by servitude and expired sentence,24 had received pardons,208 had received conditional pardons,368 had tickets of leave,2588 were convicts and 1020 were children. Lloyd Robson49 states that at the 1821 muster the population had grown to 7185,with a total of 3538 free white citizens and 3647 convicts. By 1824 Robson’s50 figures for the VDL white population are in total 12,556, souls, 6,609 being convicts, 3,701 being free or born in VDL and 1,980 being free by servitude.
If each Writ had been issued for a separate individual,11% of the free white VDL souls would have received Writs in a period of 13 months. While multiple Writs would have been issued to some individuals, particularly as the ceiling amount in the LG’s court for each action was fixed at 50 pounds, nevertheless, the attempt to align Writ issues with population figures provides an insight into VDL as an island of debt. It provides a hint of the depression Roberts51 identifies as beginning in 1835, describing VDL as a depressed island, with a population of 40,000 as many bond as free and convicts being flooded in as fast as the transports could arrive.The Lieutenant-General’s court clearly reflected the lack of cash flow in VDL in 1823–1824.
46 R W Giblin,The Early History of Tasmania,vol II (London:Methuen & Co,1939) 256. 47 R W Giblin,above n 46,137. Giblin is relying on Fenton’s History of Tasmania (Hobart, Walch and Sons Publishers, 1884). 48 R W Giblin, above n 46, 256. Giblin is relying on Commissioner Bigge’s Third Commission of Enquiry Report (England, Secretary of State and Home Office: 1824) 80. 49 L Robson, A History of Tasmania, vol I (Melbourne, Oxford University Press: 1983) 117. 50 Robson, above n 49, 168. 51 S Roberts, The Squatting Age in Australia 1835 – 1847 (Melbourne, Melbourne University Press: 1935) 6-7.
159 (2007) 9 UNDALR D Supreme Court of Van Diemen’s Land
The Lieutenant-Governor’s Court closed in May 1824 when the Supreme Court of VDL began.As Richard Ely52 points out the Proclamation of the Supreme Court of VDL53 was made on 13 October 1823. Chief Justice Pedder arrived in Hobart Town on the Hibernia on the Ides of March 1824 and the first sitting occurred on 10 May 1824.54 Thus it is the oldest Australian Supreme Court.55
The early case law of this Court provides a valuable spotlight on the many aspects of the society in an embryonic British penal colony.Two specific cases illustrate the unfortunate plight of the indigent in such a society. The cases are In re Wells56 and Kennedy v Bent.57
1 In Re Wells (1829) Supreme Court of VDL
The case In reWells58 shows the plight of an imprisoned indigent.Thomas Wells was an accountant in England. He was convicted of embezzlement in 1816 and sentenced to 14 years transportation. He met and impressed Lieutenant-General Sorell during the voyage to Australia; Lieutenant- General Sorell subsequently employed Thomas as his secretary.
Thomas Wells acquired land in VDL and farmed. He had a wife and eight or ten dependent children. He ran into debt and paid off 10,000 pounds and had 2,000 pounds of debt remaining.His assets were valued as being between 1100 and 1600 pounds. He was imprisoned.Thomas Wells’ imprisonment might well be an example of whatAndrew Buck and Nancy Wright’s59 The Poor Man would see as being ‘…easy enough to get in…but getting out’s the thing!’
52 Richard Ely (ed),Carrel Inglis Clark:the Supreme Court of Tasmania, its First Century 1824-1924 (Hobart: University of Tasmania Law Press, 1995) xiii. 53 Subsequently known as the Supreme Court of Tasmania. 54 Ely,above n 52, xiii. 55 NSW Supreme Court first sitting on 15 May 1824. 56 In Re Wells, Supreme Court of VDL, March 1829, Stefan Petrow and Bruce Kercher, Decisions of the 19th Century Tasmanian Superior Courts, School of History and Classics, University of Tasmania, and Division of Law, Macquarie University
160 161 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831
During Thomas Wells ‘long imprisonment’60 when presumably his wife and children tried to run the farm,his problems snowballed.Sheep thieves frequently plundered his farm andThomas himself incurred costs in bringing the thieves and receivers of his stolen sheep to court and having them convicted.
In early August 1829,Thomas Wells’ property,‘Allendale’, at Macquarie Plains was sold at the suit of creditors. Under-Sheriff Kennedy began the sale before the appointed time and sold a horse for 13 pounds and 10 shillings; the same horse was re-sold the next day for 30 pounds. On 21 August 1829, the Colonial Times61 criticised Under-Sheriff Kennedy’s behaviour in the following words:
Colonial Times:We have good authority for saying upon the recent occasion in the Macquarie district where a disagreeable duty devolved upon Mr Kennedy. He exhibited a precipitancy and a disregard to the interests of one party by leaning towards the other in a manner perfectly new and altogether irreconcilable with the impartiality which ought ever to attend the proceedings of justice. It is not necessary to enter into particulars,as we understand they are in the course of being brought in another shape before the Supreme Court; but a slight hint, en passant, may be serviceable,and may prevent a recurrence of such indiscretion,as it cannot but be lamented as has been shewn.
As a consequence,Kennedy prosecuted Mr Andrew Bent,proprietor of the Colonial Times,for libel.The prosecution resulted in the following case.
2 Kennedy v Bent Supreme Court, VDL
The case of Kennedy v Bent was heard in the Supreme Court ofVDL before assessors on 15 and 16 January 1830. Andrew Bent’s counsel was J T Gellibrand, the former VDL Attorney General, a ‘feared cross-examiner who wore neither wig nor gown in court’62… JT Gellibrand arguing in defence of Andrew Bent,proprietor of the Colonial Times asserted that the newspaper had reported in the fair exercise of a public journal…commenting upon a public officer…did not touch his private character…only imputed indiscretion…and had not exceeded the fair line of public discussion.
Thus the defence used the elements of: • Fairness to the public • Public benefit • The right to comment upon the manner a public officer conducted his work.
60 Colonial Times of 6 March 1829 states the period of imprisonment to have been of at least 4 years’ duration. 61 Colonial Times, 21 August 1829. 62 Mr Cockatrice,‘R L Murray’s Reports of Proceedings in the Libel Case Butler v Bent’ Supreme Court VDL, 1830 in Oliver Kain (ed) (Adelaide, James Dally Publisher: 2003).
161 (2007) 9 UNDALR However, the Judge’s sympathy clearly lay with the public officer and Under-Sheriff Kennedy was awarded damages of 100 pounds.
Would a jury have decided differently? As His Honour C J Pedder pointed out, since Fox’s Libel Act, where either party sought to depart from trial by assessors,the Court could allow it,and in fact it was appropriate to do so with an action for libel between two private suitors.63
J T Gellibrand wanted the case heard without delay because his client, Andrew Bent, had another libel action pending. Hence, Kain’s publication64 of C J Pedder’s warning about the delay which would arise if the parties insisted upon a jury for this case provides insight into why the barrister decided to forego a jury.
Whether a jury would have accepted J T Gellibrand’s public benefit argument forAndrew Bent,rather than validating the improper behaviour of a public officer in the performance of his duty,particularly so when the improper behaviour seriously disadvantaged an imprisoned debtor65 is an unknown, however, what is known is the response of the legal practitioners of VDL to the plight of indigent debtors.They were, by and large, an altruistic and honourable group of men, alive to the realities of life in VDL, and their solution was Rule of Practice Number 11.
VTHE ALTRUISM OF VDL COLONIAL LAWYERS
A Practice of the Law
His Honour Justice Kirby66 emphasises the fundamental nature of law in a democratic society with the comment:
By basing advocacy and judgments on the rule of law,as opposed to the wealth or power of relevant interests or the transient popularity of the decision or of the interests affected, both lawyers and judges are indispensable instruments for the protection of minority and individual rights.
Certainly, the development of Rule of Practice Number 11 by legal practitioners can be seen as an instrument aimed at protecting minority and individual rights, while its immediate adoption by His Honour C J Pedder is an example of the impartiality of the law.
63 Kain, above n 62. 64 Kain, above n 62. 65 Kain,above n 62. Kain shows that it was His Honour’s understanding that before Fox’s Libel Act judges left to juries only the fact of printing or publishing, however, since Fox’s Libel Act juries would determine the fact and the law. 66 His Honour Justice Kirby,‘The Principle of Independence’ Broadbeach, Qld, 20 March 2005
162 163 THE SPECTRE OF DEBT IN VAN DIEMEN’S LAND 1817 – 1831 B Rule of Practice No 11, VDL Supreme Court
Rule 1167 states
except in case of such non-appearance, no writ of capias shall issue (without a special order of the Court or some Judge thereof) against any defendant, but upon oath (in addition to a full affidavit of the cause of action),that the deponent believes such defendant to be about shortly to depart from the Colony; nor shall a capias issue in any case, where, by law or practice, an arrest would not be allowed in England, by mesne process out of one of the King’s Courts at Westminster.
As Petrow and Kercher68 note,before Rule 11,the procedure of arrest and imprisonment was available merely on the plaintiff’s affidavit that the debtor had defaulted.69 However,under Rule 11 there could only be arrest if ordered by a Judge.The Judge would only consider a request for such an Order if a full affidavit were provided stating the circumstances on which the creditor believed the debtor was about to leave the colony. This alleviated hardship caused by malicious persons; henceforth, the Judge would have the facts in the affidavit to base a decision.
It was an advance on the then current English law70 in that it did not depend upon an arbitrary amount being owed.
His Honour, C J Pedder saw that it would alleviate hardship caused by malicious persons and those who acted upon gossip; henceforth, the judge would have facts in the affidavit to assist him to come to a just decision. Further, His Honour determined that Rule 11 would come into operation immediately71 to alleviate the suffering debtors from incarceration as soon as possible.72 From this it can be inferred that His Honour CJ Pedder was well aware of the problems being encountered by debtors and genuine in his determination to reduce those problems.
67 Stefan Petrow and Bruce Kercher, Opinion on Imprisonment for Debt: Decisions of the 19th Century Tasmanian Superior Courts, School of History and Classics,University of Tasmania,and Division of Law,Macquarie University of Arts
163 (2007) 9 UNDALR Whether or not English law applied in Van Diemen’s Land seems hardly to have been an issue in this instance, it having been resolved by His Honour C.J.Pedder’s pronouncement ofVDL as‘…a colony like this…not acquired by conquest or treaty, but originally planted by Englishmen’.73 Rule 11 can be seen as an example of the plant’s growth.
VI CONCLUSION
It seems reasonable to infer that the VDL legal practitioners saw the impracticality of imprisonment for debt at first instance in a developing colony.Their motivation may well have been fuelled by the inherent unfairness of s6 of the Courts of Requests Act 1830 (10 Geo lV No 3).The continuance of imprisonment for debt at first instance in England for amounts of 20 pounds was clearly repugnant to theVDL legal practitioners, who understood the context of the colonial settlement of VDL.
Thus,Rule 11 shows the accommodation of context in the colony’s legal modus operandus. Doubtless it had a profound impact on those in the colony who were down on their luck.
Interestingly,it was neither made nor passed by government:it was instigated by the legal profession,in its most honourable and altruistic mode.
73 Ely,above n 52, 58.
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