Trade policy: Evan Nepean at the Home Office: Transportable convicts and sovereignty over a place: The problem of terra nullius: On Phillip's Commissions: Hulks business: The African Plan, Stage One:

 

The Blackheath Connection

Chapter 22

 

Trade policy:

 

     During the American War, Shelburne's only disputes with the Americans were the treatment of loyalists and the honouring of debts due from Americans to the British merchants. ([1]) Frost writes, Shelburne's vision regarding the treaty with the Americans presupposed increasing revenues from the existing empire and opening new markets in the Americas and the East. ([2]) He wanted general terms of peace with the US made so liberal as to reduce resentment and to provide for future reunion, expanding English-speaking settlements in North America and extra growth for British markets, with no duties payable, and one of the French or Spanish sugar islands in exchange for Gibraltar. He advocated separating West Africa into spheres of influence, with Gambia to the British and Senegal to the French, France being returned some of her possessions in India, opening of entrepots such as Cape Town, opened free to ships of all trading nations. He also wanted a capacity to trade with regions around the Gulf of Mexico, and the East Indian islands, and more treaties with Europe's powers allowing trade on a freer basis. Frost feels that with all this, matters in India were central. John Call, ([3]) as adviser to the prime minister, thought this was the case, as North American had been first in the British Imperial world, India the second. Britain remained anxious about controlling Trincomalee as part of a trade triangle. On 5 December, 1782, George III announced the formal break with the American colonies.

 

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Evan Nepean at the Home Office:

 

     The year 1782 was so busy for Duncan Campbell, and administratively speaking, so novel, that it is necessary to present information in an unfamiliar sequence. Firstly will be presented information on his hulks administration, then information on private aspects of his life. Campbell in 1782 wrote probably more letters than in any other single year of his life. ([4])

 

       After the bloody Gordon riots of 1780, from 1782-83 began a "crime wave" that did great damage to Britain, along with an economic depression, widespread unemployment, the demobilisation of thousands of hardened veterans. Bindley wrote to Townshend, "Almost all Peoples minds are more occupied about the Depredatory Cruelties and Robberies that are continually carrying on, than they are about ... the Event of Our Arms..." ([5])

 

     Presiding over this unpleasant mess from May 1782 was a new under-secretary at the Home Office, Evan Nepean. A Cornishman, son of a Plymouth shipwright, Nepean (1752-1822) was notable since he owed his position more to recognition of his merit than to powerful and/or aristocratic patronage. In this, he was a civil servant born of an embryonic meritocracy. Nepean was surprisingly successful in getting his way. He walked into a situation where, as Atkinson, has remarked, "In short, there was no obvious centre of action in matters of crime and punishment, let alone larger issues of social order." ([6]) Nepean found much to do - for a time he became the necessary centre of things. He placed order on chaos. Nepean at the Home Office shortly began to supervise the secret service, which he inherited from William Eden. ([7])

 

     Arthur Phillip, the first governor of New South Wales, had not been regarded as a spy until 1987, when Frost produced evidence on Phillip's secret activities. Another of the Home Office's spies was Thomas Shelton, who from 1786 was the only legal official able to make a contract for convict transportation to Australia. Shelton was not named as a Home Office spy until 1975-1979. In 1979 when he identified Shelton as a spy, the British historian Emsley was apparently unaware of Shelton's role in relation to convict transportation to Australia. This unawareness is yet another example of British historians remaining ignorant of the full range of events pertaining to the settlement of Australia. It also attests to the success of Nepean's spy ring of talented men in remaining hidden in their own day, and later. Duncan Campbell meanwhile was a discreet adviser on matters relating to convict transportation, a subject Nepean took seriously.

 

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     Nepean represented Queensborough and Bridport in Parliament. The family was said to have come long ago from St. Just, near Land's End, Cornwall. The family estate, named Saltash, was on the River Tamar. Nicholas Nepean was the traditional paternal name, and Evan was the second son of a Nicholas. Nepean during the American War was purser on ships about the American coast, probably a fleet purser, and on one vessel he had sailed with a later governor of New South Wales, John Hunter. Nepean was created Baronet in 1802, having lately been secretary to the Admiralty and secretary of state for Ireland. Later he was secretary of the Admiralty and then governor of Bombay (1812-1819). ([8]) Nepean was the only one of his brothers to enter politics. His brother Nicholas was an unexceptional soldier who spent some years at Sydney as an officer with the New South Wales Corps; Nicholas can be regarded as yet another of his brother's "spies". ([9])

 

      An oddity about Nepean is lack of a biography. From 1782 he helped modernise the Home Office ([10]) during a period of stress and strain as America won its revolutionary war. Nepean was almost the fascist, as mean, determined and quick-striking as a mongoose. He investigated a variety of threats to members of the royal family, and harassed men striving to organise the British working class. He worried considerably about the French Revolution, and about the cross-channel effect that the Revolution might have on British politics and civil order. Given the demands made on British officialdom from 1782, Nepean was the perfect man to be appointed under-secretary at the Home Office. ([11]) Modern Britain may owe Nepean far more than it knows.

 

     It is partly due to Nepean's efficiency and influence that the paper trail on convicts sent to Australia is so extensive. Under his administration, the hulks and the attendant legislation became more widely an instrument of social control and a harder bit for the lower orders. Nepean's work in this regard alone - more so from a British "official" point of view - is well worth a substantial biography, since Nepean presided during an administrative shake-up. Act 22 Geo III c.82, known as Burke's Act, had abolished the secretaryship of state for the American department and its council. The principal secretaryships of state were then divided into Home and Foreign, the former administering Ireland and the colonies. ([12]) Thus it is merely a superficial paradox that when Britain's social scum, the convicts, were sent to Australia in 1787, Britain deliberately risked a conflict with Spain which arose at Nootka Sound after 1789. That was a conflict that Nepean and his spy ring had foreseen, to be fixed with little more than sabre-rattling, which sufficed to cool down Spain in the Pacific - the "Spanish Lake" - and to keep Britain installed at Sydney. Thus, by the 1790s, a policy on law and order at home could have an unexpected influence on foreign policy. None of his work has sufficient to provide Nepean a biography. ([13])

 

     From early 1782, after his stint in the navy as a purser on ships on the American coast, Nepean had been secretary to Lord Molyneaux Shuldham, port-admiral at Plymouth. Nepean's political career began after Lord North had resigned his long prime ministership; he began under the umbrella of the Whig ministry proposed by Rockingham. ([14]) Rockingham was no man of great energy or talent, but he was honest, well-connected, full of common sense. ([15])

 

     Oldham by 1933 described relations between Nepean and Duncan Campbell as of "some intimacy". (It now seems probable that both men were ardent Freemasons, Nepean having met Freemasonry in the navy?). Throughout his career, Nepean maintained a strong interest in what would today be described as intelligence and security systems useful for keeping civil order. Nelson has disclosed Nepean's operation of a "secret service" which should be followed up. Thomas Tayler, ([16]) was master of Lloyd's Coffee House for many years. Tayler made himself useful to Nepean at the Navy by passing on information about maritime events on the high seas, information as useful to naval officials as it was to the wealthier merchants. This information channel was later  dug deeper at increasingly official levels by "the father of Lloyd's", John J. Angerstein. By 1805-1815, naval officials and men influential at Lloyd's routinely shared the same information, a situation Lloyd's historians could take for granted by the 1820s. Nepean did much to pioneer this specialised form of information sharing. (Two of Nepean's legacies to Australia are the Nepean River in NSW, the Nepean Highway in Melbourne, Victoria. The Victorian nameplace arose out of respect paid to Nepean by David Collins in 1803, when an abortive attempt was made to colonise Port Phillip Bay (Melbourne, Victoria).)

 

      Nepean employed the later governor of NSW, Arthur Phillip, as a spy in France. ([17]) Nepean was probably what today would be regarded as a workaholic, and it is not impossible that he was partly responsible for the extent to which Freemasonry (allegedly?) gained a grip on the law, policing, and attendant institutions in Britain. ([18]) Given Nepean's views and his energy in administering the hulks system, it is not surprising that he and Campbell developed a workable relationship. Campbell had every motive to retain overseership of the hulks, every motive to serve Nepean well. Nepean made Campbell work much harder at supervising the convicts. In the overseer's letterbooks is a strong whiff of Campbell's surprise that Nepean, so new to the saddle at the Home Office, was taking the hulks system so very seriously, so quickly.

 

    Campbell very quickly had to improve his performance in Nepean's eyes as hulks manager, and he soon realised that Nepean frowned severely on hulks administration matters receiving newspaper coverage. Thereafter, Campbell strove mightily so that his hulks and convicts received little press attention. His hulks staff were severely impressed with the necessity to keep the hulks out of the news. Temperamentally never one to seek newspaper attention anyway, Campbell soon became acutely publicity shy. Which is to say that Nepean wanted a lid kept very tightly on matters connected with the handling of transportable convicts. Earlier, Campbell had accepted newspaper coverage of the hulks as more-or-less a natural if unpalatable part of life. With Nepean's preference was that such coverage should never occur, he had the outlook of British civil servants who have ever cherished secrecy and clutched the Official Secrets Act nightly to their breast in rituals of adoration of the causes of the State.

 

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Transportable convicts and sovereignty over a place:

 

     The history of the resumption of transportation between 1782 and 1789 is the history of Britain mostly failing to find a place to dump convicts. It is not that some efforts were farcical, almost humorously unsuccessful, or that the American colonies had been tragically lost. There was also an important question of sovereignty. Britain conducted no conflict with any established rival, conducted no protracted negotiation with any power, concerning the establishment of an Australian convict dumping ground. Rather, Britain gave in easily to its frustrations, simply because finding a territory for any such motives was not worth a fight. It became convenient that a territory was found which was thought to be uninhabited. And Australia was as little populated as Raleigh had predicted  many years before in his Discourse of War! ([19])

 

     The notion in international law that Australia was uninhabited has become known as terra nullius, a doctrine that since the 1960s, Australian Aboriginals have mightily resisted. Significantly, as we shall see, no such notion, doctrine, assumption or convenience - terra nullius - was applied when plans were afoot to send convicts to Africa.

 

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The problem of terra nullius:

 

     First a perspective...

 

                It is known that some western African tribes subjected offenders to "transportation" simply by delivering them to slavers. Between 1785-1786 was published A Voyage to the River Sierra-Leone on the Coast of Africa, by Lt John Matthews, RN, 1785-1787 residing there; and also a letter on the African slave trade. ([20]) Matthews favoured the slave trade and noted close parallels - between an African condemned person sent into slavery, and the law of England regarding an English felon sent to Botany Bay with little hope of returning. ([21])

 

      Also, IF one European power (Britain) had not taken over the Australian continent, other possibilities were: (a) no European power would have, and the continent's Aboriginal people would have been left much to themselves; (b) Several European powers may have carved up Australia; (c) If not European powers, a North American power - the US? - may have settled part of Australia?

 

         What begat "Australia"? Gender-based metaphors of earlier ages do no good. The American whaling writer, Herman Melville, thought that: - "the whale ship is the true mother of that now mighty colony". Of course, the Aboriginals regard Australian land as their "great mother". Sir Joseph Banks has been regarded by many as "the father of Australia". Except that one of Banks' competitors as "father of Australia", some say, is James Mario Matra, American loyalist. ([22])

 

          Who dreamed up terra nullius? They included the men who wrote Governor Arthur Phillip's two commissions. The 1992 Mabo decision of the Australian High Court seems to suggest that the nature of the British annexation of New South Wales was feudal in character, under both British and international law of 1788. ([23]) But as this Australian legal decision indicates, that one need hardly annex half of a continent and its adjacent eastern islands for purposes of making a colony for several thousand convicts and their keepers?! And even if any annexation after convict transportation was feudal, the creation of a convict colony at Botany Bay was regressive in terms of British law of the day, in terms of the customs ranged around convict transportation to 1776; "the general frame of our criminal law", as was put after 1776. As an historical event, the "founding" of Australia was also stunningly original. The Frenchman Peron thought the move a marvellous stroke of political creativity. But there was no single author. The situation is jampacked with unusual elements: adherence to the custom of transportation, obsessional attitudes about criminality, fear of creating an efficient police force, fondness for getting rid of inconvenient people, but also a major experiment for theories of how unprepossessing humanity behaves in a new and untried environment. There was rhetoric of Imperial jealousy over new territory, scientific curiosity as on the part of Banks, an exertion of impressive maritime superiority, a chance to open an intriguing new ocean to a single power, a search for whaling products. There was little wonderment about a strange new race of human beings? If Australia was as fertile and productive as the American mid-west was suspected to be, perhaps Britain could create a new America? The mystique of the Pacific remained exotic... but was it all a case of romantic endlessness, disappointing as it all turned out to be for the Mercantilist?

 

      Only in the past thirty years have historians begun to treat the actualities of the  experience of Australia's Aboriginal people since 1788. It has now become the fashion to precede any history of the convict colony with a treatment of the Aboriginals' traditional way of life, as Robert Hughes did in The Fatal Shore. In recent years, some Australian historians have apologised in public for including insufficient material on the long occupation of Aboriginals in Australia in their works.

 

      Meanwhile, the measure of settling a convict colony entailed old British needs to expand fisheries, to obtain naval stores as cheaply as possible. It was larded with fantasies about harassing the Spanish. All that was new about sending convicts to Australia was that it was very distant, and that the sea lane was quite undeveloped. Old British formulas were fitted out with an entirely new ocean. The British psyche would rewrite its old preoccupations on virgin waters, on Australian land viewed as terra incognita. British humanity would form a royal convict colony! As long as it is taken that Britain had a perfect right to settle Australia as any kind of colony, there is no need to discuss international law about colonisation circa 1786. If it is not taken that Britain had a perfect right to settle a colony in Australia, then international law must be discussed. ([24])

 

     The convict colony scheme in fact was so protean, almost anything could have happened, more so if the entire Australian continent was fertile, though disappointingly it proved to have large tracts of desert. With the arrival of the First Fleet, British Imperialism put down very stark roots. Meanwhile, Australia's traditional Aboriginals remain a mystery. They were certainly not referred to in the Book of Genesis, nor in any other of world mythology's explanations of human origin. Their regional, racial or genetic origins are still not explained by modern science. Many of their views are not understandable in terms of European view of the bases of civilization. After brief inspection, Cook's final conclusion was that the Aboriginals of "New South Wales" were happy since they did not suffer the discontents of civilization. Their contentment was blasted because Britain had an obsessive contempt for certain classes of prisoners for whom it would not build prisons.

 

          The doctrine terra nullius was implicitly referred to when cabinet by 18 August, 1786 decided to send convicts to New South Wales. Shortly, Governor Phillip received a supplementary commission enabling him to remit sentences imposed by either a civil or a criminal court. Act 27 Geo III c.2 was the final Act depositing convicts at NSW and not Africa. ([25]) A proviso to the Act read: "It may be found necessary that a colony and a civil government should be established at that place." The Act referred to the statutory legislation of 1784 (Act 24 Geo III c.56) and quoted also from orders-in-council of December 1786. And here, some of the men developing the assumption of terra nullius which dispossessed Australia's Aboriginals can be identified... Sir James Mariott, judge of the high court of the admiralty, regarding Robert Ross' commission of 18 April, 1787; the registrar was Godfrey Lee Farrant, regarding Letters Patent constituting a Vice-Admiralty Court for NSW, of 5 May, 1787. ([26]) Who devised the concept of terra nullius as applied to Australia? They included the men who wrote Governor Arthur Phillip's two Commissions.

 

      The British government had not been tempted to embrace New South Wales in any  assumption about terra nullius until African plans for transportation had been abandoned. Chronology in history narrows the gap here. Plans to transport convicts to Africa after obtaining suitable sovereignty over a place were abandoned from mid-July, 1786. Terra nullius made its appearance implicitly in the government decision made on 18 August, 1786. By tradition, Sir Joseph Banks had something to do with it all, since he was one of the few people available with knowledge of area. The doctrine of terra nullius first appeared  about July and August 1786, and one must look at those from whom Governor Phillip took his orders, not Cook. ([27]). A powerful legal brew was manufactured, involving questions of sovereignty and new laws on transportation.

 

         Lord Beauchamp's 1785 committee of inquiry into the operation of the laws on transportable convicts had stressed the question of Britain having sovereignty over any  destinations for such convicts, and it seems likely that this emphasis also helped prompt the formulation of what has become known as the doctrine of terra nullius. ([28]) The few weeks here, before 18 August, 1786, need close examination - which is one reason why this book bears down heavily on those months. Views on the sovereignty of Australia are at stake.

 

On Phillip's Commissions:

 

      The transportation of convicts to Australia was conducted under the rubric of the 1784 Act, Act 24 Geo III c.56. Somehow, this Act became lost in legal wilderness. In 1837, D. D. Heath ([29]) wrote a paper on Secondary Punishment. Oddly, he made no reference to the crucial legislation, Act 24 Geo III c.56. After 1829, when Thomas Shelton died, the official who made out contracts to transport felons, government officials made a review of the legislation for transportation in order to understand what authority Shelton had used to make contracts for transportation. These officials seem unaware that on at least some occasions, Shelton had used the authority of His Majesty's sign manual! Mysteriously, this survey after Shelton's death also ignored Act 24 Geo III c.56. But naturally, that Act was implicit in the writing in 1786 and 1787 of the Commissions given to Governor Arthur Phillip. Those Commissions also referred to ways of dealing with the natives of NSW.

 

      There has been an historically-based legal view of 1988, prior to the 1992 Mabo decision, ([30]), that a ratification of Cook's claims to the sovereignty of Australia on behalf of George III became implicit in Governor Phillip's commission and other documents. That ratification was linked with new laws on transportation. That is, in respect of the international law on sovereignty in 1786 and later, British officials linked questions of Cook's claims, sovereignty, international law and new laws on transportation, plus variations made for the purpose of codifying the usual standing orders for officers in control of a naval station, plus some concessions to ordinary British civil law. Mixed with all this was terra nullius, the assumption that that Australia was not settled (as international law at the time understood the term "settled").

 

    In a case, Williams v. Attorney-General NSW in 1913, Isaacs J. said it was unquestionable that "when Governor Phillip received his first commission from King George III on 12 October 1786, the whole of the lands of Australia were already in law the property of the King of England". ([31]) However, the judges considering the 1992 Mabo case disagreed and found it rather incredible, (without even mentioning Britain's later annexation of Western Australia!). They thought, "It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty." ([32]) In such ways, "the concept of terra nullius stands condemned"... ([33]) "...it is scarcely arguable that the establishment by Phillip in 1788 of the penal camp at Sydney Cove constituted occupation of the vast areas of the hinterland of eastern Australia designated by his [Phillip's] Commissions." ([34]) ... This act was not in any municipal area, but lay in international politics or law. A question was: ([35]) must judges accept that the whole of the territory designated in Phillip's Commissions was by February 7, 1788, validly established as a "settled" British colony, i.e., when Phillip's commissions were read in public in NSW?

 

    Phillip's instructions carried a qualification regarding land use, "as shall be in our [Geo III's] power to dispose"... ([36]) and also some instructions about dealing with the local inhabitants. ...  "Cook's activities of discovery and pronouncements of taking possession were in no way directed to depriving the native inhabitants of the ownership of any land in which they had an interest under their law or custom. They were concerned with the assertion of British sovereignty." .. It follows that..... the most that can be said about the act of State establishing the Colony is that it envisaged (i) that some lands within the colony would become Crown lands and be available both for the establishment of the penal settlement and for future grants of Crown land to emancipated convicts and new settlers, and (ii) that the native inhabitants of the Colony would be protected and not subjected to `any unnecessary interruption in the exercise of their several occupations'." ([37]) An opinion is quoted, that of James Stephen as head of the Imperial Colonial Office ([38]), noted on a despatch received from South Australia in March 1841... "It is an important and unexpected fact that these tribes had proprietary rights in the Soil - that is, in particular sections of it which were clearly defined or well understood before the occupation of their country." And in 1843, Stephen wrote of the "dispossession of the original inhabitants". ([39])

 

       A great deal suggests that the dispossession of Australian Aboriginals was simply an act of British willpower. On the international stage, the annexation of New Holland was a pre-emptive strike never seriously challenged by another European power. Since that annexation, methodologically, Australian historians have lacked ways to treat the entire history of events. It now seems, the complicated Mabo decision of 1992 opens doors which can now be entered, allowing new methodologies to be explored which will enable historians to treat the entire history of events more appropriately. Which would also mean that the writing of far too much Australian history has been as much a victim of assumptions about terra nullius as Aboriginal people have been.

 

     Had the entire extinguishment of Aboriginal land rights been intended from the start, from August 1786? In practical terms, it was not necessary to use large tracts of land to establish a convict colony and/or a naval base. However, military establishments obviously need land which is secure, however small a territory is held. Much the same applies to the kind of security needed for a convict colony. Perhaps, officials in London felt there were few options to the annexation of a great territory from 1788, since to annex only a small area might have implied that other European powers were welcome to occupy areas of NSW not desired by Britain? But in taking eastern Australia as well as the eastern "adjacent islands", Britain in fact made an extraordinary ambit claim with hopes far beyond finding a solution for a "convict problem", a solution which in theory would also involve the Maoris of New Zealand and many Pacific Islanders.

 

      In brief, legal adherence to terra nullius would suggest that native land rights in Australia had been completely extinguished by the annexation of eastern Australia in 1786-1788. The 1992 Mabo decision indicated such rights had not been fully extinguished - and there is no reason why the Mabo decision cannot also be regarded as simply an act of Australian willpower. ([40]) Terra nullius was overturned - and so Australian history itself entered a new phase. As to a sense of history, the Mabo decision is strikingly different to the pro-terra nullius decision given in the Queensland Supreme Court of 1988 (McPherson et al, The Queen vs. Walker). Regarding contemporary notions of "property" versus human and other rights, Australia's 1992 Mabo decision in the range of its implications resembles Mansfield's decision of the early 1770s on chattel slavery in the confines of the British Isles, as distinct from in the colonies of the day. On the basis of views of humanity, and their implications, one decides what to do, or not.

 

     Is the view correct, that the "real" Imperial policy from 1786 was that "whilst the original inhabitants were not to be ill-treated, settlement was not to be impeded by any claim which those inhabitants might seek to exert over the land"... "Settlement expanded rapidly and the selection and occupation of the land by the settlers were regulated by the Governors in a way that was intended to be comprehensive and complete and was simply inconsistent with the existence of any native interests in the land." ([41])

 

     The Mabo decision entailed research on English feudal law, ([42]) but not on Phillip's formal associated role in governing a naval station. The Mabo decision also cites Blackstone, who had wondered about natural justice where the Indians of the American colonies had been driven out, but Blackstone had not inquired further there. ([43]) In 1786 the view was taken ([44]) that terra nullius of old provided room for an occupation of terra nullius land,  if the indigenous inhabitants were not organized in a society that was united permanently for political action. One justification for annexing land was the later conferral of "the benefits of Christian civilization". Before 1800, European nations extended territory by cession, conquest or settlement, often taking advantage of native peoples not settled by another European power (For example, Timor, settled by Portugal in Indonesia). In Phillip's two Commissions, ([45]) reference was made to "our territory called NSW""(i.e., George III's territory).

 

       In 1788 in eastern Australia, the British Crown was taking absolute title of "waste lands", meaning land which was not occupied. "The Imperial Crown was the new sovereign.... [but] It did not make any relevant grant of power to enable steps to be taken to extinguish the native title". ([46]) No treaties existed in Australia, and over time, it ceased to be asked if the Australian natives had any rights which pre-dated the arrival of the sovereign's representatives? Traditional Aboriginals' views of land do not permit use of the word "owners". In terms of English laws, their outlook more resembles a community or clan-based sacred trusteeship or stewardship of land. There is no hint of, or permission for, individual ownership, and allegedly there exist stringent religious social, cultural and therefore emotional overtones so profound that they escape Europeans entirely, historically, and to the present day. It might also be said in observation of present-day Australia that traditional Aboriginal attitudes to the land would permit them only very limited contact with other peoples, especially where control of land use is concerned. This outlook allows the development of a kind of racism in its own right, and also unique - a point too-seldom mentioned in Australia.

 

    Apart from the obvious fact of Australia's long geographic isolation, the traditional Aboriginal way of life, if observed, would have anyway denied them a way of dealing with other peoples that those peoples would have found acceptable - or that Aboriginals would have found entertaining. There is perhaps a tragic price that Aboriginals since 1788 have paid for something entirely out of their control - Australia's long geographic isolation. Many significant aspects of the Australian Aboriginals' traditional way of life, especially their mythology - the Dreamtime - are unique in recorded human history. It was not until Australian historians were prodded by anthropologists, that the Aboriginal plight began to be properly recognised, and later their existence recognised in history books.

 

    Aboriginals had not existed "officially", were not even counted in the Australian census, until 1967 and after... because they were not citizens, as indicated in the Australian Constitution. The idea that Aboriginals might actually have officially existed in Australia as part of the population is due to a 1967 referendum conducted on the views of the Australian population. Behind that 1967 referendum is one of the sorriest tales ever told anywhere in the world about the blindness of officialdom to obvious facts of life, to the simple fact of the existence of people of a particular race, who had suffered the theft of their land - an entire continent. In Australia before 1967, Aboriginals simply did not exist for census bean counters due tot he wording of the 1901 federating Constitution. After the 1967 referendum, Aboriginals were  counted in the census. This referendum led to a remarkable upsurge in article and books on matters Aboriginal, and some redress of the problems of Aboriginals. But underlying all treatments was the legal notion, terra nullius, which Aboriginals regarded as one of the main obstacles in their search for justice on land rights. Some debate about terra nullius by 1981 was prompted by the Australian historian, Alan Frost, due to his article, The British denial of Aboriginal Land Rights, which discussed British views to 1800. ([47]) The whole debate has been an indication of lack of consistency in views of law, tradition, history writing, and common sense.

 

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        The powers of the early governors of NSW extended from Cape York in the north, in the latitude of 10 degrees 37 minutes south, to South Cape in the South, in the latitude of 43 degrees 49 minutes south, and to all country inland to the west as far as the 135th degree of east longitude. ([48]) NSW was termed in the statute 54 Geo III c15, and in 59 Geo III c122, "His Majesty's Colony", not a colony of the people, not even a colony of the empire. But was this supposed property in, and with, a crown, a convenient fiction? ([49])

            One matter absent in the Mabo decision is notice that in Historical Records of Australia, ([50]) the editor, Watson, only part way through his work, interrupted himself to write a lengthy essay to the effect, the entire exercise in penal colonisation had initially been unconstitutional "in large part". ([51]) Echoing the 1803 views of Jeremy Bentham, Watson felt, this situation had existed till 1823, when improvements of the situation probably became most effective with the issue of a mandamus for the legislative council of NSW of 1 December, 1823, in which was implicit earlier Acts of 1823, especially 4 Geo IV c.xcvi, passed on 19 July, 1823. Can it be entirely an accident of coincidence, that within a year of these improvements to the situation, the Australian Agricultural Company came into existence, promoted by John Macarthur Jnr, a lawyer then active in England? The Australian Agricultural Company was the most significant private investment made in NSW or Tasmania to 1830 - many shareholders were British parliamentarians. It is hardly credible that parliamentarians would feel comfortable investing not so much in a colony that was "unconstitutional", but a colony in which the law did not permit normal civil redress in matters of commercial life.

 

*     *    *

 

     In the 1988 case, a lone Aboriginal versus a state of Australia, the Queensland Supreme Court had to consider Walker's allegations as matters of historical fact. Walker had questioned the sovereignty of the State of Queensland over an offshore island. Walker claimed that when Cook claimed possession for George III and his heirs and successors as sovereign of Great Britain, he exceeded the authority conferred upon him. Cook had exceeded his orders in respect that where he took possession, it should be for "convenient situations", and only "with the consent of the native" peoples. ([52]) Judge McPherson formed the view that whether Cook had exceeded his orders or not, His Majesty, etc., had "unequivocally ratified" Cook's claims, citing Phillip's first and second commissions and his instructions of 1986-1987, ([53]) including islands adjacent in the Pacific Ocean, etc., in given latitudes and longitudes.

 

      In brief, McPherson surveyed much relevant Australian legislation concerning matters such as the separation of Queensland and NSW; he then referred in the context of international law over sovereignty , to sovereignty in the sense defined by J. Jacobs in NSW vs. The Commonwealth (1975) 123 CLR 337 at 479 in respect of Imperial, Colonial and State regimes; and any changes to sovereignty would have to be accomplished by altering section 123 of the (Australian) Commonwealth Constitution, itself enacted as a schedule to an Imperial Act. McPherson "suspected" that the questions raised by Walker were not a matter for international law; but he did concede that the Nunukel people of Walker's Island, Stradbroke, had "in times long past once exercised sovereignty over Stradbroke Island"; but McPherson also said that whatever, the question raised by Walker was "one which the law does not attempt to answer", it being a political fact that courts give obedience to enacted laws out of recognition of the law-making authority of the legislature that enacts it. (In that case, McPherson harked back implicitly then to the 1784 British legislation on transportation) and the legislation of 1786 and subsequently respecting transportation of convicts to Australia.

 

     McPherson conceded that if the original Nunukel legal system had after 1788 been overthrown by some kind of revolution, which introduced a new legal order for Stradbroke Island, nevertheless, the new regime displacing it is not now (in 1988, the year of the Australian Bicentennial) open to question. McPherson acknowledged only the legal system for which he himself spoke, not being at liberty to do otherwise. Walker vs. Queensland 1998 was an Aboriginal test case designed to place stress on the legality of sovereignty over Australian mainland and islands. It failed in its bid, and a more radical legal decision had to wait until 1992, in the Australian (federal) high court: the Mabo decision.

 

     And so, here, we await the development of Britain's 1784 legislation on convict transportation, so crucial to the above arguments and propositions. 

 

*     *     *

 

Hulks business:

 

Early in 1782, hulks business was subdued.

 

Campbell Letter 74:

London 14 Feb 1782

Sir Gray Cooper Bart

                    By the return of the Convicts herewith sent you will observe that, from the Discharges & the Number on board it is considerably reduced below that contracted for; Should it appear upon an Average of the returns at the end of my contract to be in any considerable degree short of the complement agreed for I shall be ready to make such Deduction of the sum as the Board of Treasury may think reasonable. With the greatest respect

                                          I am ([54])

 

Campbell Letter 75:

London 18th March  1782

Solomon Wisdom

   Gaoler Oxford

                Mr Campbell received your letter this day & desires me to inform you, that you may bring up the Convicts in your Custody ordered for hard labour in the River Thames any time within the month of March that may be most convenient

              I am

PS. You will take care to bring with you the proper Certificates ([55])

 

      On 31 March, 1782, John Bell at the behest of Lord Shelburne had inquired of Campbell about the bounty money allowed to convicts when they were pardoned. Campbell replied on 2 April, that this bounty was granted only to those convicts pardoned by the Court of Kings Bench, by one of HM Principal Secretaries of State. The said bounty was exclusive of anything alluded to [in] the contract between Campbell and the Lords of the Treasury.

 

     Meantime, the situation of his son John began to concern Campbell. Aged 18,  John was placed aboard HM Goliath, to be listed as a mere captain's servant. His training would be given insufficient attention. William Bligh successfully had John taken off that ship and placed on one of Campbell's own ships to learn seamanship under Bligh himself. ([56]) And on 8 April, 1782, Campbell replied to letter from John Higgins, gaoler at Lancaster, about two convicts for hard labour and one man escaped from the hulks.

 

*     *     *

 

The African Plan: Stage One:

 

         1782: An African location for transportable convicts had been mentioned by April, 1782, the prompt having been the manning of Cape Coast Castle. ([57]) One of the first references to an African plan for convicts was in a letter from Campbell to Isaac Wood, Gaoler at Lincoln, on 18 April, 1782, ([58]) quite soon after Nepean took the reins at the Home Office. How the news had travelled so quickly as far north as Lincoln is not easily explained, but the news was travelling. During April 1782, Campbell's clerk James Boyick had informed Isaac Wood, keeper of the gaol at Lincoln:

 

Campbell Letter 76:

 

"Mr Campbell received your letter of the 11 inst:- and desires me to inform you that he can give you no information touching the Transportation of Convicts to the Coast of Africa." ([59])

 

      How a minor personage such as the keeper of Lincoln gaol got wind of any African scheme is unknown. But in London, Justice Buller had also been alerted. Buller asked to borrow Campbell's copy of a report of the 1779 Committee of the House of Commons. ([60]) Campbell in a letter to Buller ([61]), enclosed a copy of a letter Campbell had received about the African plan Buller had mentioned. So the African plan may have been first stimulated by perusal of material from the 1779 Bunbury inquiry, to which had been mentioned the idea of sending convicts to Cape Coast Castle with the African Company? Involving 212 convicts, the 1782 transportation affair was a debacle, but it alerted a director of the African Company, Anthony Calvert, to possibilities. ([62]) ([63]) ([64]) On 13 August, 1782, Campbell wrote enclosing to Mr. Justice Buller ([65]) a copy of a letter he [Campbell] had received about the African plan Buller had earlier mentioned. Campbell also requested the return of a report of the Committee of the House of Commons from Buller. ([66])

 

     Mr. Sturt MP in 1785, when giving evidence to Lord Beauchamp's committee of inquiry, said that in 1782 he had visited Africa with three men-o'-war and the convict transport Mackrel  with 350 convicts aboard, bound for Cape Coast Castle. The delivery of convicts there was a debacle, not repeated, for the climate was ferocious and administration there was badly adapted to keeping charge of convicts. ([67]) The Campbell Letterbooks carry no reference to that delivery to Africa, nor any reference to the movement of such a number of convicts into the military for Cape Coast Castle. ([68])

 

     Oddly enough, James Matra, writing later in August 1783, conveyed that between 1775-1776, some 746 convicts were sent to Africa: 334 died, 272 deserted, the rest could not be accounted for. It is rather astonishing Campbell did not even refer indirectly to such embarkations as he worked to retain the hulks contracts after late 1776. One wonders in which ships those convicts were sent? Sturt meantime (in 1785) said that with the 1782 venture, the convicts had behaved well under military discipline when the men o' war were about, but when the navy left the military officers had begun to fear for their lives, the convicts becoming grim. The African Company in 1782 had an unhappy experience in handling convicts, but did reluctantly allow 20 convicts to be taken to Cape Coast Castle. These were sent in Recovery, 250 tons, by arrangement between Lord Sydney and a contractor, Anthony Calvert, whose firm, Camden, Calvert and King, owned Recovery. ([69]) In all, the Africa Company had no desire to repeat the experience, although Calvert, and more so his partner King, remained enthusiastic.

 

Campbell Letter 77:

London 16th April 1782

Thomas Watson,

Maidstone

         Annexed is an order to the Commanding Officer of the Hulks to receive the Ten Convicts in your Custody ordered to hard labour on the River Thames. Mr Campbell desires they may be conveyed to Woolwich on Friday or Saturday next. ([70])

 

    Nepean made an inquiry of Campbell quite soon after taking up his duties at the Home Office.

 

Campbell Letter 78:

 [this perhaps was written on May 17th?]

                          Mincing Lane 7 May 1782

Evan Nepean Esq.

               In obedience to the Command in your Letter of the 15th Inst received last night, I went this morning to Woolwich to make the desired Enquiry touching ?iel Baruch alias Berrew, he is a Jew, was convicted at Maidstone of Grand Larceny in Lent Assizes 1781 and ordered to four years Labour on the Thames has been on board the Hulks about Eleven months, my Officers say his behaviour during that time has, as indeed, has that of all the other Convicts, been very orderly, but I do not find from their report that he is entitled to any preference, on the score of reformation, to many who have undergone a much longer confinement. With very great respect I have the honor to be

      Sir ([71])

 

     Campbell seldom if ever admitted that the convicts were disorderly on the hulks, and more so in cases of individual convicts, he praised what amounted to their tractability. That is to say, he habitually avoided comment which might have prompted criticism for himself or his officers). ([72]) Soon, Campbell's contracts were to be renewed.

 

Campbell Letter 79:

Mincing Lane, 10th June 1782

Evan Nepean Esq

               I beg leave to hand you herewith four Orders of the Court of Kings Bench recommending Convicts to one of His Majesty's principal Secretary's of State with which you will be pleased to do what is needfull. I have the honour to be with the greatest respect

                    Sir ([73])

 

     Rockingham died on 1 July, 1782, to be replaced by Shelburne ([74]) (who was suspected of shady stock exchange manipulations).

 

Campbell Letter 80:

Treasury Chambers

                      2 July 1782

Sir,

    Upon reading to my Lords Commissioners of his Majesty's Treasury your letter of the 25 June Last acquainting their Lordships that your contract for executing the office of Superintendant of the Convicts will expire on 12 Instant, I am directed by their Lordships to desire you will attend this Board thereon tomorrow at 12 oclock

                            I am Sir

                            Your Most Humble Servant

                            [sgd] Rich Burke ([75])

 

Campbell Letter 81:

18 July 1782

Ard Esq

Treasury.

         I take the liberty of handing you herewith a letter I received from Mr Burk late Secretary to the Treasury, to which I beg leave to refer. I attended agreeable to the Commands therein specified, but was told by Mr Burk the Lords could not then take that matter under consideration. Nothing further having been done on that Business, and the Period of my Contract being some days since expired, I have presumed to submit this Circumstance to you for the Information of their Lordships. Should my Lords or you, Sir, have any Commands for me in this event, I shall be ready to attend upon a days notice. With very great Respect I have the honor to be ([76])

 

     The hulks convicts were probably in an uproar since they knew of the state of the contract under which they were held. In July 1782, Shelburne, handing over to Townshend, pointed out the problems of public concern over prison overcrowding. ..."the Judges have repeatedly remonstrated, and the Hulks are in such a State, which will excite a Publick Clamor," he said. ([77])

 

The date of Campbell's letter to Buller is an estimate - August? 1782 ([78])

Campbell Letter 82:

Mincing Lane 1782

Mr Justice Buller

                 Mr Campbell presents his most respectfull Compts to Mr Justice Buller & sends him inclosed a Copy of a letter he has received in the course of his enquiries touching the African plan which Mr Buller was pleased to mention; if this or any means in Mr C's power can convey any information he will be glad & at all times willing to shew his readiness to obey the commands of Mr Justice Buller.

Mr Campbell will be much obliged for the Report of the Committee of the House of Commons ([79])

 

Campbell Letter 83:

20 Aug 1782

J White Esq.

           Upon my coming to Town Yesterday I found your letter with its several Inclosures which had been left the day before. As I for some years past made it a rule to differ paying the fees at the Secretary of State's office till I receive the same from the board of Treasury I could not take the oath of Expenditure, as you have formed it, till I had actually paid the money, in doing of which you will see an error was connected in the casting. All the charges in my Account I have Vouchers to produce for, a few trifling fees excepted; but as Mr Chamberlayne has mentioned in his Report my making oath to the whole I can have no objection. You will therefore receive herewith that Account with my Affadavit & you will add to your many Civilities by forwarding the same to the Board of Treasury

                              I am ([80])

 

Letters about convicts rolled on...

Campbell Letter 84

 

                                  Lond 13th Dec 1782

The Rev Mr T. Allen Lincoln Castle

                                  I was a post or two since favoured with your letter of 30th Nov touching William Boulton a Convict for hard labour from Lincoln. In answer to which I beg leave to acquaint you that upon enquiry I find he died in February last...   I am

 

Campbell Letter 85:

Mincing Lane 23 Aug 1782

Mr Justice Heath

                Upon my coming to town this morning I had the honour of receiving your letter of the 21st inst: in answer to which I beg leave to inform you that Don: Campbell the convict you are pleased to mention was discharged the 28th July his term of hard labour being expired. With very great respect I have the honour to be --- ([81])

 

Campbell Letter 86:

London 14 Sept 1782

Colin Campbell Jnr

      Glasgow

             I received a day or two since your letter without a date & the inclosures which I have perused and am sorry to see you so dissappointed in your expectations of money matters; I thank you nevertheless for your kind intentions. I have no directions from Saltspring touching the Interest you mention but if your occasions require it, I will take upon me to pay your Bill for the same

Mrs Campbell and Dugd joins me in Love to Henny and self & I remain --- ([82])

 

*   *   *

 

[Finis Chapter 22]

Words 8296 words with footnotes 12068 pages 22 footnotes 86 BC23