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On This Day: An Independent Van Diemen’s Land

Relics of convict discipline (guns, chains and ball, whip and sword), Hobart, Tasmania, Australia (1900).  Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/cph.3b29597.

Relics of convict discipline (guns, chains and ball, whip and sword), Hobart, Tasmania, Australia (Beattie, ca. 1900). Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/cph.3b29597.

The history of the British penal colonies in Australia is fascinating, and something that I have become increasingly interested in while researching my own family history.  As a New Zealander, I have long been aware that many Australians are now quite proud of having convict ancestry.  There are a number of resources available online and in Australian libraries and archives to help people conduct research about individuals who came to Australia from the U.K. on the various convict ships.  These include records of convictions and sentences, ships’ registers, “convict musters,” prison records, and pardons, as well as Australian registers of births, deaths, and marriages.

I recently discovered that I have a handful of ancestors who were sentenced to “transportation” for crimes committed in different parts of the U.K. in the 18th and 19th centuries.  These people were sent to the British colony of New South Wales, and a couple went on to be moved to Norfolk Island.  Somewhere along the way, some of my ancestors ended up in Tasmania, which until the mid-1850s was officially called “Van Diemen’s Land.”  This island off the south coast of mainland Australia was home to some of Australia’s major penal settlements, with more than 70,000 convicts sent there between 1803 and 1853; about 40% of the approximately 165,000 convicts transported to Australia between 1788 and 1868.

So, in looking at December anniversaries for ideas for potential blog posts, I was interested to note that, on December 3, 1825, Van Diemen’s Land was proclaimed to be independent from New South Wales.  I thought I’d do a little more digging and also highlight our collection of Tasmanian law materials.

Original Governance Arrangements

The Colony of New South Wales, established in 1788 as a penal colony, originally included the areas that became Queensland, Victoria, and South Australia, as well as Tasmania (it also later officially included New Zealand between 1839 and 1841).  The first British settlement on the island then-called Van Diemen’s Land was established in 1803.  Apparently, there were two main motivations for establishing a permanent presence there: “to deter the French exploratory expeditions from laying claim to any part of New Holland [Australia] and to act as a supplementary gaol for excess contingents of convicts shipped to New South Wales.”

The settlements at Hobart and Launceston were originally separate dependencies of New South Wales, subject to the rule of the Governor, who exercised powers under British law.  The two counties on Van Diemen’s land were combined into a single unit in 1813.  It is interesting to note how powerful the governors were:

Until 1824, the military governors of New South Wales were absolute rulers, the only power superior to them being the British Parliament at Westminster in England, nearly 20,000 kilometres and 8 months away by sea. The governors’ rights were granted to them under an Act of the British Parliament of 1787, which gave them their commissions and instructions, but the distance and the infrequency of communication with the rest of the world meant that governors often exercised far wider powers than they had been given.

Statutes of Tasmania from 7th George 4th (1826) to 64th Victoria (1901), //lccn.loc.gov/07008909.

Statutes of Tasmania from 7th George 4th (1826) to 64th Victoria (1901), //lccn.loc.gov/07008909.

1823 Act and Charters of Justice

In 1823, the British Parliament passed legislation (4 Geo. IV, c.96) “for the better administration of justice in New South Wales and Van Diemen’s Land, and for the effectual government thereof; …”  This legislation, commonly called the New South Wales Act 1823, authorized the establishment of a legislative council in New South Wales and of Supreme Courts in both New South Wales and Van Diemen’s Land.  The New South Wales Legislative Council first met in August 1824, becoming Australia’s first legislature.

Letters Patent (the Third Charter of Justice) establishing the Supreme Court of New South Wales, and a separate Charter establishing the Supreme Court of Van Diemen’s Land, were sealed in England on October 13, 1823.  The Van Diemen’s Land Charter was proclaimed in Hobart on May 7, 1824, and the Court began sitting on May 10, making it the oldest continually functioning superior court in Australia (the New South Wales Supreme Court was officially established on May 14, 1824).

The judicial foundations of Van Diemen’s land had actually been laid ten years earlier in 1814, under the Second Charter of Justice, with the establishment of the Lieutenant-Governor’s Court, which “was the first Court created specifically for Van Diemen’s Land.”  The original Charter of Justice for New South Wales, establishing the first criminal and civil courts in the colony, was in the form of Letters Patent issued in 1787 under the New South Wales Court Act 1787.  This Act “ensured that British law landed with the First Fleet [of convict ships] in 1788 and that the convict colony had the basis for law enforcement.”

Establishment of a Separate Colony by Order in Council

The New South Wales Act 1823 was also significant in that it provided for Van Diemen’s Land to become a separate colony, pursuant to an Order in Council.  This Imperial Order in Council was later issued on June 14, 1825, following a petition sent to the King by colonists in Van Diemen’s Land seeking independence from New South Wales.  The Order in Council established Van Diemen’s Land as a separate colony and authorized the establishment of a new Legislative Council for Van Diemen’s Land.  Unfortunately, the original Order is currently mysteriously missing from Australia’s collection of founding documents, although a transcript is available.

Statutes of Tasmania vol. IIThe 1825 Order in Council was proclaimed in Hobart by New South Wales Governor Ralph Darling on December 3, 1825, and simultaneously the first Legislative Council was created.  The Legislative Council, consisting of the Lieutenant Governor George Arthur and six nominees, first met on April 12, 1826, and the first legislation for the new colony was passed on August 1 of that year.

Library of Congress Collections

Here at the Law Library of Congress we hold the laws passed by that first parliament of Tasmania and those enacted by subsequent parliaments, as well as subordinate legislation, including the following materials:

We also hold law reports for the Supreme Court of Tasmania:

Tasmanian Law Reports (1905-1941), //lccn.loc.gov/2005217095.

Tasmanian Law Reports (1905-1941), //lccn.loc.gov/2005217095

Tasmanian case law dating back to 1824 is also freely available in the AustLII database, as is the sessional legislation of Tasmania dating back to 1826.  Current, consolidated legislation is published on the Tasmanian Legislation website.

Copies of official Tasmanian government gazettes can also be found at the Law Library:

Prior to these official gazettes, various government-related notices and information were published in newspapers such as the Hobart Town Gazette and Southern Reporter (1816-1821), copies of which are held by the Library of Congress.  A guide to Tasmanian gazettes can be found on the website of the National Library of Australia, which also provides links to digitized historical gazettes that are available through the Trove databases, covering the years 1816 to 1827.  The Tasmanian government has also made available digitized copies of the government gazette published since 2008.

In addition, elsewhere in the Library of Congress, there are many interesting items related to the history of Van Diemen’s Land/Tasmania, including maps, papers and correspondence, historical analyses, and various books and reports.  For example:

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