Australians: Origins to Eureka: 1

by Thomas Keneally

  Colonel Arthur, the lieutenant-governor in Van Diemen’s Land, had just passed strict laws against the press and his right to do so had been approved by a certificate issued by Chief Justice Pedder of that territory’s Supreme Court. These laws included a licensing fee for all newspapers.

  In Sydney, Chief Justice Forbes was a well-liked and respected man. He refused to permit the adoption of the practice, then still current in England, by which judges kept court filing fees for themselves. As a result Australian judgeships would never develop into commercial posts or ‘valuable rights of property’. Forbes also liked to run proceedings with a minimum of formality. It was after his departure for England that the bar had his successor insist that the full paraphernalia of technical pleading based on the English model be used in New South Wales courts. Forbes had even been against the wearing of wigs. ‘On many occasions I’ve been compelled to take off even the little band from my neck—you have never sat in a crowded court with the thermometer at 100 [38°C].’ There was an outcry at this, of course. ‘I have given the best possible refutation to one part of the charge against me, by putting on a wig—and it will be a great consolation, when I find my brains boiling under it in summer, to know that I’m performing my duty and silencing a great scandal.’

  In the end Forbes refused to certify the stamp duty of fourpence Darling wanted to impose on each newspaper in New South Wales. ‘By the laws of England,’ Forbes decided, ‘the right of printing and publishing belongs of common right to all His Majesty’s subjects, and may be freely exercised like any other lawful trade and occupation . . .To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution [of 1688], is to subject all freedom of sentiment to the prejudices of one man.’

  Darling’s Stamp Act had already been enforced by the government awaiting Forbes’s certification. The day the provisions were first enforced, the Monitor was printed with a black border. Edward Smith Hall planned to evade the tax by turning his newspaper into the Monitor Magazine, a stitched book adorned with a border of mitres ‘out of unfeigned regard for our venerable Archdeacon, one of the Septem viri [seven men]’, that is, for Archdeacon Scott, one of the Legislative Council. Robert Howe published a ‘humble remonstrance’ against the proposed laws. He estimated that the duty would cut his weekly circulation from 2000 to 600 and cost him £1200 a year.

  Only Wardell refused to pay the stamp duty. Darling suspected that was because Wardell was a friend of Judges Stephen and Forbes. Certainly, Forbes would visit the home of Stephen, and their table talk would come to the ears of the judge’s son Francis, an associate of Wentworth, Wardell, Mackaness and others whom Darling detested.

  When Forbes ruled against the duty, Hall was delighted to greet at his door one of the colonial bureaucrats who had come to return his stamp money. But Darling now set himself to curb the press by prosecutions for criminal libel. He had especial rancour for the ‘republican’ outpourings of an agitator such as Hall, whom he called ‘Thersites’, after the rancorous soldier in the Iliad, or ‘the Australian Cobbett’, after the English journalist who recorded the plight of the British underclass. Hall would receive a jail term and fine for libel in 1829. So too did EA Hayes, the journalist Wentworth and Wardell sold the Australian to.

  For Hall was the one who most firmly believed that it was up to the press to protect citizens from tyranny: ‘We are the Wilberforces of Australia who advocate the cause of the Negroes [convicts] . . . Packed juries, and magisterial juries on magisterial questions, and taxation without representation, cannot long exist in the burning radiance of a free and virtuous press.’

  Darling, meanwhile, had worked out yet another tactic to defeat ‘the republicans’. In August 1827 a convict printer not formally assigned to Hall was suddenly withdrawn from the Monitor office, and when Hall tried to retain him he was fined by the Police Court. Then, early in March 1829, the assignment to Hall of two convict printers and one convict journalist was revoked by the governor. When one, Tyler, came to work anyhow instead of reporting to the barracks, he was gazetted as a prisoner illegally at large, arrested and sent to Wellington Valley in the west of New South Wales. Hall not only failed to obtain his release by habeas corpus, but was fined for harbouring a runaway convict. All these judgments came from lower court magistrates despite the fact that the Supreme Court had recently ruled the governor could cancel an assignment of a convict only if he intended to remit the rest of his sentence. So both sentences were quashed in the Supreme Court in June 1829. Tyler was returned to his master who, however, was himself in Parramatta gaol. Darling was outraged by the Supreme Court decision and it was not until July 1830 that the Crown law officers in London upheld the right of the governor to revoke assignments as he saw fit. When that decision came through to Sydney, Darling again arrested Tyler, but was later rebuked by the Colonial Secretary in Whitehall for acting from political motives in doing so.

  To silence Hall, still writing ‘libels’ in prison, Darling talked the Legislative Council into passing unanimously a new law based on one of Britain’s repressive Six Acts of 1819, which were enacted after the savage suppression of dissent in regional British towns, and in particular after the army’s massacre of rioters in Peterloo. This made it mandatory for the court to impose banishment to a place of secondary punishment on any person convicted of seditious libel for a second time, and was designed to stop the gaol in Parramatta becoming an editorial base for attacks on His Excellency’s administration. The governor must have enjoyed fantasies of Hall being ‘sorted out’, at the best, in the intellectuals’ work camp at Wellington Valley. The Australian bitterly condemned the Act and gave up publishing editorials. Where the editorial would have appeared, there appeared instead a picture of a printing press chained up by a military officer, the printer hanged on his own press, and all taking place within the confines of a large ‘D’. Hall, too, left a blank place where his leader should have gone. He put in its place the figure of a coffin with a black epitaph.

  As for Hayes, editor of the Australian, he was liberated from prison in January 1831 when two young Sydney radicals, Francis Stephen, the son of the judge, and CD Moore, brother of the Crown’s solicitor, paid his £100 fine. Stephen, a barrister, was suspected of having being the true author of the seditious libel for which Hayes had suffered.

  Hall resumed his editorials and wrote one savaging the baroque cruelty of Captain Logan’s settlement at Moreton Bay. And news of Darling’s new Act reached London in July 1830 at the time parliament was in the process of repealing the sections of the English statute of 1819 that related to banishment. The colonial Act thereby became inconsistent with English law and in January 1831, Earl Goderich, the Whig Secretary of State for the Colonies, disallowed it. Darling was discouraged from bringing any further prosecution against Hall. Hall continued to publish the Monitor even though he did not pay sureties or licence fees, for he said he could find no one to stand pledge for him.

  On 29 January 1829 Robert Howe of the Gazette was killed in a boating accident in Sydney Harbour, leaving his estate in the hands of trustees. The Reverend Ralph Mansfield, a Wesleyan missionary who had joined the staff of the Gazette as joint editor, was appointed editor at £300 a year and with a one-quarter share of the profits. Ann Howe, Robert’s widow, colonial-born, had not been the easiest of wives, but seems to have been a woman of considerable acumen. She resented the arrangement and organised Mansfield’s dismissal in June 1832. The Gazette under Mansfield had faithfully reported Darling’s reply to an address from leading exclusives in July 1831, when the governor had denounced the claim to freedom of the press as a specious pretence of newspaper editors, describing them as ‘the infatuated incendiaries who have attempted to assail my character as they have the character of many others, and to disturb the colony’. Darling also attacked Wentworth’s criticism of him as a ‘gross and absurd compound of base and incredible calumnies’.

  With the institution of civilian ju
ries in 1830 the time was right for a counterattack. Hall, represented by Wentworth, brought three civil actions for libel against Mansfield of the Gazette and won two of them, getting £52 in damages. Wentworth also laid a criminal information against the Reverend Mansfield for criminal libel against himself in the reporting of Darling’s words, the governor himself being immune from prosecution, and Mr Mansfield was fined £10. Wentworth did not mind the contradiction of principle involved in using the law to curb Mansfield’s liberty of the press.

  In March 1831, Goderich notified Darling that he was to be relieved. Darling felt he had been treated shabbily by the Colonial Office. But there were noisy celebrations of the governor’s departure in October that year.

  The office of the Australian was illuminated with a transparency—a series of lights—depicting the triumph of the press over the tyrant. ‘Rejoice Australia! Darling’s reign has passed!’ it told its readers. ‘And Hope, once more, reanimates our Land.’ The Monitor gave two hogsheads of liquor to the crowd who had turned up to look at its coloured transparencies which declaimed, ‘Liberty to the press unfettered by the Darling Necklace’ and ‘He’s off!’ They set off fireworks and made toasts.

  But it was on the lawns of Williams Charles Wentworth’s newly acquired house at Vaucluse, and in the hearts of his fellow campaigners that the most frenzied joy was found. From the deck of the governor’s departing ship, Hooghly, the lights of Vaucluse and the celebrations there were visible. By invitation, Hall gave a speech, and the band cheerfully played ‘Over the Hills and Far Away’ while four thousand ordinary people, refreshed by copious potations of Wright’s strong beer and ‘elated by the fumes of Cooper’s gin, did justice to their kind host’s tables loaded with beef and mutton’.

  The new governor, the Irish liberal Sir Richard Bourke, who arrived in Sydney on 3 December 1831, favoured trial by jury, representative government and full civil rights for emancipists. And he told the gangling young Undersecretary at the Colonial Office, Lord Howick, the future Earl Grey, that ‘without free institutions where the press is wholly unrestricted no government can go on’.

  In this new era, Robert Wardell, Wentworth’s friend, still in his prime, was riding around his Petersham farm when he saw a suspect and makeshift camp. It belonged to three absconded convicts with whom he exchanged angry words. One of the three, Jenkins, shot him through the heart, not knowing that he was killing a champion of the convict class.

  THE PRESS OF THE 1830S

  In June 1833, the Sydney Gazette’s editorship was given to a charming, poetic but alcoholic emancipist named Edward O’Shaughnessy, transported from Ireland in 1824 for the crime of collecting taxes under false pretences. O’Shaughnessy initiated theatre criticism in Australia, by covering the productions of Barnett Levey’s Theatre Royal. In 1834 he published an explosive pamphlet, Part Politics Exposed, on the misuse and brutalisation of convict servants, which would appear under the pen-name ‘Humanitas’. It was the work of William Watt, a sub-editor and educated convict, in love with the proprietress, Ann Howe.

  This was an important shot in the argument over convict transportation, one which would no doubt be heard by the liberals in Britain who equated the assignment of convicts with slavery, and would get plenty of evidence of that from Watt’s pamphlet. It was mainly directed at a master named Major Mudie of Castle Forbes, Patrick’s Plains in the Hunter Valley, of whom one observer said, ‘Mudie spoke of the men he employed in terms of an executioner: “Nothing could wash away their guilt or obliterate its brand.”’ Mudie had been appointed a magistrate by Governor Darling, and he and his magistrate neighbours would meet for dinner and beforehand, in the parlour, condemn each other’s assigned convicts to floggings.

  When five of his men absconded, stole weapons and fired at Mudie’s superintendent, they were brought to trial on a capital offence under the Bushranger Act. A private donor hired the Irish lawyer Roger Therry to defend them. In his pamphlet, Watt recorded that Hitchcock, the most intelligent of the five men, said he had no ground to offer in his defence, but he implored the government to enquire into their past floggings; the frivolous excuses resorted to for the purpose of depriving them of their liberty after they had served a period that entitled them to its partial enjoyment by being granted tickets-of-leave; the merciless infliction of the lash; the bad and insufficient food they had received, and so on. Hitchcock asserted that an old cow had died alongside a creek on a Sunday and had been cut up on Monday and served to the men. ‘I have seen the overseer take out his meat full of maggots,’ testified one of the men, ‘and wash the meat, and throw salt on it for the men’s use.’ The flour was tailings mixed with smut and rye. It should not be so on a large and well-regulated estate, argued ‘Humanitas’. It was generally presumed that on the ill-managed and small farms, oppression could be worse still.

  Hitchcock requested permission that he and his fellow prisoners might exhibit their lacerated backs to the public gaze, but this request was not granted; indeed it would have been considered highly irregular in terms of the jurisprudence of the day. The Solicitor-General, John Hubert Plunkett, ‘humanely forbore’, said Therry, to insist on execution in the twenty-four hours after the sentence and agreed to their having a reasonable time to prepare for death. Three were hanged in Sydney, and two of them at Castle Forbes. They were aged between twenty and thirty-two.

  The bodies of his absconders hanging in the wind, Mudie turned his attention to William Watt of the Gazette. Watt was charged with having passed a printed piece of paper from the Sydney Herald, founded in 1831 and a conservative voice which derided the Gazette under O’Shaughnessy as ‘the prisoners’ paper. The piece of paper, Mudie believed, libelled a third party, but Watt was acquitted. Mudie then attempted to have Watt deprived of his ticket-of-leave on the grounds of an immoral relationship with a convict woman. This intimacy, said Therry, had ended many months before. In hearing the case ten magistrates, all of whom hated the liberal Governor Bourke and suspected Watt was his creature, attended the court.

  In fact Bourke had already decided that Watt had assumed a position in society ‘inconsistent with his condition’. He sent him to Port Macquarie, then the station for educated felons. It was a compromise. The exclusives wanted Watt punished for lending ammunition to the reformers, colonial and imperial, by being put into a work gang.

  Watt travelled to Port Macquarie in style as a cabin passenger attended by his foursome of servants. In February 1836 a Supreme Court injunction transferred control of the Gazette from Mrs Howe to Richard Jones, a Tory merchant notorious for his diehard opposition to Bourke’s liberal reforms. Mrs Howe had by then herself shifted to Port Macquarie, where she married and lived with William Watt. She threatened to withdraw her assigned servants, the nine pressmen and compositors who produced the Gazette, but Jones bought her off with a weekly allowance of £5. Watt exercised his charm to win the friendship of the local police magistrate, Major Sullivan, but alienated the harbourmaster, Captain Geary, who caused his ticket-of-leave to be cancelled. Watt seems to have absconded then, but after a month was arrested and given fifty lashes by his former friend Sullivan. After a period on a road gang, he was assigned to his wife as her servant, but drowned while crossing a tidal creek at Port Macquarie in January 1837. In the same year, Mudie lost his magistracy, claimed that ‘through his secret connection with functionaries of the government, Watt actually ruled the colony’, and withdrew to England in dudgeon.

  The Gazette, under Jones, turned into a Tory mouthpiece that harped on convict insubordination, and reviled WC Wentworth as a demagogue and Governor Bourke as the champion of the unwashed. Its editor, George Cavanagh, left in 1838 to found the Port Phillip Herald in Melbourne, and in the new decade, the Sydney Herald, which had become the Sydney Morning Herald and published daily, would drive it out of business.

  Left: Methinna. This Tasmanian Aboriginal girl, seen on Flinders Island in 1845, was adopted and then abandoned by Lady Jane Franklin. (‘Methinna VDL’’ 18
45 by JS Prout, drawing © The Trustees of the British Museum AN76222001) Right: The young Trugernanner or Truganini, once said to have been the last Tasmanian Aboriginal. She knew that many of her Aboriginal sisters had been carried off by sealers. (‘Trugernanner (aka Truggernana or Truganini)’, 1837-1847 by Thomas Bock, drawing © The Trustees of the British Museum AN00094643_001_l)

  Behind the regimented line of the chain gang lies a world of chicanery and suffering, and at the centre of it, the convict supervisor. (‘The chain gang mustered after a days work…’, 1853? by Frederick Mackie, lithograph. National Library of Australia, nla.pic-an4767719)

  Left: ‘Emigration of Females to Sydney under Sanction of Government’, reads the poster on the wall. In 1833, this young, sweet-faced woman was on her way to be someone’s servant. But her main objective was appropriately marital, and she would be helped by gender imbalance of the colonies. (‘Emigration in search of a husband’, 1833 J Kendrick, etching. National Library of Australia, nla.pic-an6589596) Right: Steerage on bounty vessels to Australia was as cramped, interminable and hard on the health as it was on ships to the Americas, as the woman on the lower bunk at the right of the picture could tell us. (Steerage bunks of European emigrants sailing to America, 1870. Courtesy of photolibrary.com)

  An English cartoon of about 1830 portraying the flourishing state of the Swan River colony. Some of those who, while in Britain, had read the prospectus too enthusiastically and signed up, would have looked wryly at this artist’s work. (‘Florishing State of the Swan River thing’, 1830 by William Heath. Mary Evans Picture Library/ photolibrary.com)

  This 1828 plate, ‘Plucking or Peeling’, depicts Thomas Peel of the Swan River emigration scheme snatching the feathers from a white swan, a symbol of the scheme. He reflects that ‘Cousin Bob’s letter did the job, etc.’, his cousin being Robert Peel, Home Secretary and future prime minister of Great Britain. The signpost points to ‘the best part of the Swan River settlement, only to be got at through the hands of Mr Thos Peel’. Tom Peel himself would be plucked. (‘Cousin Thomas, or, the Swan River job’, 1829 by Robert Seymour, etching. National Library of Australia, nla.pic-an6016587)