Wednesday, 27 June 2012

Phillip establishes a settlement (just)

Far from being able to fall back on his aides in the initial trying years, Phillip had to struggle against widespread defeatism and occasional opposition.[1] The attitude of the marine officers and especially Major Ross[2] affected their men and possibly the convicts who had least cause of any to feel content with their lot. The officers, construing their duties as being primarily military, caused Phillip much difficulty. They refused to help in supervising the activities of the convicts even though, through the oversight of the British authorities, few suitable persons were available and they objected to having to sit on the Criminal Court.

Officers decline the least interference with the convicts, unless when they are immediately employed for their (the officers) own conveniency...they did not suppose that they were sent out to do more than garrison duty, and these gentlemen...think the being obliged to sit as members of the Criminal Court as hardship...[3]

Their discontent was heightened by the fact that unlike emancipists they were denied free grants of land and lacked the opportunity to secure any of the advantages traditionally associated with colonial service. Ross made matters worse by his high-handed actions, such as the arrest of five of his officers that created friction in the mess and prompted Lieutenant Ralph Clark[4] to describe him as ‘the most disagreeable commanding officer I ever knew’.[5] Although at first on reasonable terms with Phillip, Ross soon became quarrelsome, acting both as a focus of discontent and a major irritant. He supported and encouraged his fellow officers in their conflicts with Phillip, engaged in clashes of his own, and complained of the governor’s actions to the Home Office. Phillip for his part was anxious in the interests of the community as a whole to avoid friction between the civil and military authorities and endeavoured to placate Ross, but without effect.[6] In the end he solved the problem by ordering Ross to Norfolk Island on 5 March 1790 to replace Philip Gidley King, the commandant there, whom he had previously decided to send to England to report personally on the establishment.

Partly to counter this attitude, in his dispatches Phillip highlighted favourable developments and concealed the personal doubts that he experienced from time to time. Not the least of his accomplishments was to help to keep faith in the venture alive in official circles in London and provide the optimism as well as the leadership without which morale in NSW itself might have crumbled completely.[7] Phillip’s enthusiasm is all the more remarkable in view of the fact that during his five year term of office the colony assumed a shape that was not in accord with his wishes. Instead of the free settlers whom he sought to encourage with grants of from ‘five hundred to one thousand acres’ and the assistance of ‘not less than twenty men’ maintained at government expense for two years, only convicts arrived. This was not surprising. When the Home Office finally dispatched Instructions to Phillip in August 1789 authorising him to give grants to migrants it was on terms far less generous than he had contemplated. People leaving England lacked any real incentive to come to NSW and preferred the more accessible parts of the empire untainted by the stigma of convictism. Only thirteen free settlers left for Sydney in the first five years and none of these landed until after Phillip’s departure.[8] The governor had expected several advantages to flow from the presence of settlers. Besides forming the basis for the kind of settlement he hoped would emerge, he thought they would also prove of practical value for the penal standpoint by assisting in administration and convict control, by employing the prisoners and by setting an example for them to follow. Inspired by the profit motive, they would quickly make the settlement self-sufficient in basic foodstuffs. Their failure to materialise forced Phillip to depend on methods which he would have preferred to drop and that further increased his problems.[9]

Between 1788 and 1792 about 3,546 male and 766 female convicts were landed at Port Jackson and handed over by the contractors to the governor, who faced the task of deciding how their sentences were to be served. Anxious to keep costs low the British government insisted that they be disposed of in such a way as to involve the Treasury in a minimum of expenditure. Previously, in the American colonies, settlers had taken them into employment, but in the absence of private employers in New South Wales most convicts remained in government hands throughout the first five years and Phillip found himself responsible for directing their energies. The task was not made easier by the characteristics of the convicts themselves and many were unfit subjects for an experiment in colonisation. Not unnaturally they resented being wrenched from their homeland and taken to a harsh, hostile and uncivilised land. Phillip found them lazy and anxious to escape work by any means possible. Few were skilled artisans[10] or knew anything of agriculture and each of the fleets that arrived up to 1792 contained a high proportion of aged and sick who were unfit for work. [11] Worst of all was the Second Fleet that arrived in June 1790 after losing more than a quarter of its ‘passengers’ en route through sickness. Phillip’s reports on the unscrupulous behaviour of the private contractors helped to produce improvements, but not until after the Third Fleet had arrived bearing convicts whose physical condition appalled him once more.

A serious crisis occurred in 1790 after the wreck of the supply ship Guardian off the Cape of Good Hope; although the situation eased in 1791, it remained uncertain and even when the full ration could be issued.[12] Under such conditions the health of the convicts deteriorated and they found prolonged manual labour difficult. Faced with a lack of suitable personnel to act as supervisors Phillip selected superintendents from among the better-behaved convicts, placed them under the few free men in the settlement, ex-marines, a few from the ships’ crews, and some whose sentences had expired. He encouraged gardening.[13] He had dispatched a party to Norfolk Island under Philip Gidley King within a month of his arrival, and constantly reinforced it when he found that the island was more fertile than the land around Sydney.[14] He exercised great care in distributing rations and insisted on equality for all regardless of their standing. The governor based his actions on no particular set of beliefs except a broad humanitarianism. By nature self-sacrificing he was not prepared to inflict greater suffering on others than on himself and he felt that gradations in the ration were unfair in time of scarcity. Phillip’s measures helped to keep the settlement alive in its early years. By 1791, only 213 acres were under crop and the number of farm animals amounted to only 126 head, for some of the cattle brought out had strayed, while others had died or been slaughtered. The building programme, by contrast, had advanced more satisfactorily, resulting in the erection of dwelling places for the governor, the officers, the convicts and some of the troops, together with several store-houses. Having completed these and other essential tasks Phillip was able to give more attention to farming. The area cultivated by government labour expanded much more rapidly after 1791 and by October 1792 some 1,017 acres were under crop on the public domain; although livestock was still scarce important advances had been made towards the attainment of self-sufficiency in grain. The community was still vitally dependent on overseas supplies for most of its needs, but no longer was survival thought to be impossible.

In 1791 the marines were replaced by the New South Wales Corps.[15] In the light of later events this may appear unfortunate, but Phillip’s relations with the Corps, though marked by occasional disagreement, were reasonably pleasant, partly because its officers had not then acquired the economic interests that led to conflict with later governors.[16] Effective discipline was a vital necessity in an isolated community where convicts far outnumbered their gaolers and where it was impracticable to segregate them behind bars. Phillip housed the convicts in a series of huts so arranged that they could be policed at night; but the watch of necessity had to be drawn mainly from among the better convicts, and this caused further trouble with the marines who complained bitterly on the odd occasion when a convict policeman detected one of their number breaking the law. Offences committed within the colony were, if only minor, tried by the magistrates, or when more serious by the Civil and Criminal Courts. Phillip sat on neither bench, but he was able within limits to determine their composition and to vary their sentences, thereby influencing the course of justice.[17] Before leaving England he had stated his opposition to the death penalty save for murder and sodomy, which crimes he felt best punished by handing guilty persons over to be eaten by ‘the natives of New Zealand’. This harsh sentence was never imposed, but there were some executions, particularly for the theft of food in time of scarcity.[18] More usual was the lash, then a standard punishment in the army and navy, or committal to a gaol-gang.[19]

Phillip’s second Commission dated 2 April 1787 had given him the power of granting land to approved persons, defined in his first Instructions as former convicts. The British government was anxious to encourage people of this kind to remain at Port Jackson and for this reason offered them small plots of land and full maintenance during the early months of operations. The Home Office also indicated its willingness to make grants to the non-commissioned officers and privates of the marines who might elect to remain after completing a tour of duty, and to any migrants who might arrive. Phillip was ordered to examine the soil, report on its quality and suggest terms on which it might be alienated. Without fully waiting for his advice, however, the secretary of state dispatched on 22 August 1789 fresh Instructions on the granting of land. The only residents not permitted to own land were the civil staff and military officers, whose pleas for this concession were not satisfied until after Phillip had departed. The governor himself had viewed their requests with no great enthusiasm. While willing to allow them to grow foodstuff in time of shortage or run livestock on plots of crown land he was not happy at the thought of their becoming property owners. He feared their attention might be distracted from their duties. He realised that they would wish to employ convicts, and these he thought might be left too much to their own devices. Shortly before leaving England he stressed that insufficient convicts were available to make it possible for the officers’ likely demands to be met. Phillip was also reserved in his attitude towards the issuing of land grants to emancipists, for he rightly felt that many would never succeed at farming.

On 11 December 1792 Phillip sailed for England in the Atlantic to seek medical attention for a pain in his side that caused him constant suffering.[20] His work in New South Wales has been widely commended and, given the circumstances under which he was obliged to operate, it is difficult to see how he could have accomplished more than he did. Many of his hopes, including those for the encouragement of whaling off the coast which he recommended very strongly, were not realised.[21] Despite these frustrations he retained his optimism, displaying a resilience and sense of duty that carried him through periods of great difficulty and physical pain. However, he left when two developments loomed that were to dismantle much of his work. One consequence of the discovery of the settlement by overseas merchants was that increasingly they brought cargoes including liquor for sale. This may have given regularity to the supplies brought to the colony but Phillip recognised the dangers of permitting the convicts to obtain spirits. The one occasion, in October 1792, when he allowed it to be sold to the other residents confirmed his fears, for there was widespread drunkenness and disturbance.[22] The episode was not repeated but, had he stayed much longer, it is doubtful Phillip could have countered the many problems that were to arise from the liquor trade. Similarly his departure preceded by only two months the arrival from London of orders allowing civil and military officers to own land[23], an event that provided these men with an opportunity to promote their interests and heightened the possibility of their conflict with a governor anxious to favour no single element in the community. It was perhaps fortunate that Phillip was unable to follow his original intention of returning to Port Jackson once his health was restored, but medical advice compelled him formally to resign on 23 July 1793.[24]

[1] Egan, Jack, Buried alive: Sydney 1788-1792: eyewitness accounts of the making of a nation, (Allen & Unwin), 1999 contains valuable accounts from the early years of settlement.

[2] See, for example, HRNSW, Vol. 1, (2), pp. 262-265. See also, HRNSW, Vol. 2, pp. 383-384 for Ross’ instructions dated 2 March 1787.

[3] HRNSW, Vol. 1, (2), p. 153.

[4] Hine, Janet D., ‘Clark, Ralph (1762-1794)’, ADB, Vol. 1, pp. 225-226.

[5] Cit, Egan, Jack, Buried alive: Sydney 1788-1792: eyewitness accounts of the making of a nation, p. 76.

[6] This was evident in Phillip to Sydney, 16 May 1788, HRA, Series I, Vol. 1, pp. 36-48 detailing the court martial of Joseph Hunt. Phillip stated that he ‘was not informed of the courts being under arrest till the next morning, when he came to inform me, and I used every means in my power to prevent a general court-martial, the inconveniences of which were obvious. Any accommodation being declined...’

[7] For example, Phillip to Sydney, 9 July 1788, HRA, Series I, Vol. 1, p. 51, ‘I could have wished to have given your Lordship a more pleasing account of our present situation; and am persuaded I shall have that satisfaction hereafter; nor do I doubt but that value of this country will prove the most valuable acquisition Great colony. Britain ever made; at the same time no country offers less assistance to the first settlers than this does ; nor do I think any country could be more disadvantageously placed with respect to support from the mother country, on which for a few years we must entirely depend.’

[8] HRNSW, Vol. 2, p. 15 lists five who arrived on the Bellona in early February 1793.

[9] The lack of free settlers is a persistent theme in Phillip’s correspondence: see, HRNSW, Vol. 1, (2), pp. 153, 177, 191, 207, 299, 347, 470, 534, 557 and 597. Letters from G. Matcham, HRNSW, Vol. 1, (2), pp. 590, 615 indicate that there was some interest in Britain in exploiting the agricultural deficit in the colony but that the response from government was tardy.

[10] There was, for example, a lack of carpenters; see, HRNSW, Vol. 1, (2), pp. 146, 183. See also comments in HRA, Series I, Vol. 1, p. 81 about individuals as ‘indifferent carpenters’ and ‘tollerable sawyers’.

[11] The problem of the lack of artisans and farmers identified by Phillip was quickly acknowledged in London and ‘it is advisable that twenty-five of those confined in the hulks...who are likely to be the most useful should be sent out in the ship [Lady Juliana] intended to convey provisions and stores’: see Lord Sydney to the Lords of the Admiralty, 29 April 1789, HRNSW, Vol. 1, (2), pp. 230-231.

[12] The problem of feeding the population at Sydney Cove as persistent until 1792, see HRNSW, Vol. 1, (2), pp. 173, 223, 299, 326-327, 377, 382, 557, 570, 596, 644, 654.

[13] Gardens were given to marines and convicts: HRNSW, Vol. 1, (2), pp. 189, 362.

[14] Phillip to Dundas, 4 October 1792, HRNSW, Vol. 1, (2), p. 661 contained an enclosure with details of land grants. 104 had been made at Norfolk Island and this contrasted with only 66 at Parramatta.

[15] On the establishment of the NSW Corps, see HRNSW, Vol. 1, (2), pp. 249-251; see also Grenville to Phillip, 24 December 1789, HRA, Series I, Vol. 1, pp. 132-133.

[16] Phillip to Sydney, 20 February 1789, HRA, Series I, Vol. 1, p. 106 contained the following prophetic statement: ‘When this circumstance is laid before Lord Sydney, I doubt not but his Lordship will see that the civil Government of this colony may be very materially affected by directions of such a nature being given to the commandant of the detachment, and by him carried into execution without the knowledge or consent of the Governor, and which I presume never was intended by Lord Howe.’

[17] Phillip to Sydney, 5 June 1789, HRA, Series I, Vol. 1, pp. 107-111.

[18] The number of executions was relatively small; four in 1788 and two in 1789: Phillip to Lord Sydney, 12 February 1790, HRNSW, Vol. 1, (2), p. 298.

[19] Phillip was given the authority to remit sentences in November 1790, HRA, Series I, Vol. 1, pp. 208-212.

[20] Chief-Surgeon Knox to Sir A. S. Hamond, (one of the Commissioners of the Navy), HRNSW, Vol. 1, (2), p. 675; see also, pp. 329-330, 422 and 483 for requests for leave of absence.

[21] For Phillip’s observations on the potential of whaling, see HRNSW, Vol. 1, (2), pp. 612-613, 665.

[22] Phillip’s initially supported the import of rum; see, Phillip to Dundas, 2 October 1792, HRNSW, Vol. 1, (2), p. 648, ‘...for it is a bounty which many of the people deserve and to the undeserving it never will be given...’

[23] Grose to Dundas 16 February 1793, HRNSW, Vol. 2, p. 15. See also Dundas’ instruction concerning land grants in his letter to Grose, 30 June 1793, HRNSW, Vol. 2, pp. 50-51.

[24] Phillip to Dundas, 23 July 1793, HRNSW, Vol. 2, pp. 59-60.

Tuesday, 26 June 2012

In, out or shake it all about

In 1975 I campaigned for a ‘yes’ in the referendum on what was then the Common Market.  In the past decades my attitude to the EU has vacillated and this has especially been the case since 2000.  It is true that I campaigned for a free market area and I still have faith in that proposition and I was prepared to relegate my concerns about the anti-democratic character of the EU to one side.  The economic crisis since 2008 and the almost complete failure of the EU elite to resolve the euro crisis, other than throwing money at countries with sovereign debt problems in return to austerity measures, leads me to question whether membership of the EU is still in Britain’s national interest.  The notion of strength in unity that underpinned the whole idea of the EU is cracking and all the centre can suggest is that what is needed is greater European integration. 

One reason why many in Britain are sceptical about the direction in which the EU seems hell-bent on going is that we have, for all its defects, an established democratic system in which the people play a significant role and whose voice cannot be indefinitely ignored.  Demands for a referendum which, irrespective of what the question is, will be about whether Britain should be in or out of the EU, have grown in urgency and support since the mid-1990s, a situation aided by the failure of successive governments, despite their promises, to accede to calls for a vote.  This reflects the democratic deficit long identified as at the centre of the EU.  Take the debate over the new EU constitution in the 2000s: once the EU elite recognised that it would lose referendums on a constitution, it changed the rules and pushed ahead with much of the constitution in the Treaty of Lisbon that did not need referendums for national ratification.  Or, as in Ireland, when a referendum defeats an EU development, you renegotiate and vote on it again (and presumably again) until you give the answer the EU wants.  Those committed to the European project have never trusted ‘the people’ to give the answer they wanted and so have either circumvented or ignored them.  While this may be acceptable to many in Europe (though even here support seems to be waning ), it goes against everything that most people in Britain regard as democratic.  It’s not just that we’re being awkward (though there is an element of ‘Little England’ in people’s thinking) but that our history and constitutional development has for the past two hundred years at least been based on the idea that Britain is involved in Europe but that we are not actually part of Europe, a consequence of our (not just geographical) insularity.

Within the next five years or perhaps sooner, there will be a referendum in Britain over the EU and it will be an in/out referendum (whether that is the question or not).  The question is whether Britain is better inside the EU or whether we would be better served by negotiating a free trade agreement with EU members and remain outside.  Whatever the political case for greater European integration, and there is a case to be answered, what appears to matter for many people in Britain is whether our economy will be adversely affected by not being in the EU.  It was why most people supported the yes campaign in 1975 and it is still the determining factor in many people’s reasoning.  I’m not convinced that even if the EU became a more democratic and accountable institution that it would gain sufficient support in Britain.  Despite the continued commitment of many within our economic and political elites to membership of the EU, if not the European project, when there is a referendum I do not see those elites being able to persuade most people of the case for remaining in Europe.  It could well be the wrong decision but at least the principle of British democracy will have been expressed.

Sunday, 24 June 2012

Why examination reform is essential

Is the time right for a debate on the character of the examination system at 16+?  If the YouGov survey in today’s Sunday Times is indicative of the public’s attitude, the answer is an unequivocal yes.  Half of those surveyed thought a return to O Level was a good idea compared to 32% who supported the existing GCSE.  The response to should there be one national examination board was even clearer with an overwhelming majority in favour of this step.  So it appears that, despite the way in which the debate was initiated, Michael Gove has hit a raw nerve in public opinion and the public popularity for the proposal should be sufficient to catapult it forward. 

Do we need an examination system with greater rigour?  Well, yes as many students leave school at 16+ knowing very little and not knowing how to apply the little that they do know. The problem lies with the notion of a return to O Levels.  You simply can’t turn the clock back to what many people see as a golden age.  Were O Levels and CSEs that good?  Having taught both I’m not convinced.  Both encouraged the assimilation of knowledge but did little to develop effective thinking and passing examinations depended less on critical thinking than the ability of regurgitate factual materials.  GCSEs, by contrast, attempted, but with limited success, to develop thinking and research skills with a consequent dilution and fragmentation of factual material.  So what we need is an examination system that successfully combines the development of critical thinking and research and communication skills with coherent and ideally holistic factual content.  In History, this means courses that meld What? Why? and How? with an understanding of historiography and analysis of sources that are tested through extended writing based on research, essays and source analysis within a framework of critical thinking weighted 30 per cent, 40 per cent and 30 per cent.  Three elements: the first teacher-assessed and moderated more rigorously than at present; the second and third elements through written examinations at the end of the course.  I would also be inclined to apply the same criteria to Advanced Level increasing the number of written examinations to three (two essay papers and one source paper) against at the end of the course ending the need for AS and modular structures.  This would allow students at both 16+ and 18+ to take courses unhindered by the disruptive nature of modular courses (all that time spent preparing for and doing examinations and resits) and would allow teachers to teach the subject unfettered in the knowledge that the exams would be at the end.  That would be really liberating and would allow the development of detailed understanding of subjects that is impossible within a modular system.


The question is whether we need to go back to two qualifications at 16+ as existed before 1987.  I’m inclined not to.  It was one of my most difficult tasks to decide whether students should do O Level or CSE and there was no guarantee that I’d get it right.  The problem was that once a decision had been made it was difficult to move from O Level to CSE and vice versa.  In addition, parents are more empowered educationally today than they were in the 1970s and 1980s when I remember having fairly ferocious discussions with parents about my decisions.  Having two qualifications could well damage the often tenuous relationships between teachers and parents who now see themselves rather more as consumers than was the case in the past.  Going back to parallel qualifications at 16+ could well raise more problems than it solves.  The solution lies in something that has already been tried: tiered examinations.  This has the advantage of leaving the final decision on which tier is entered until the last moment and the decision will be based on quantifiable evidence of performance during a course.  This will not entirely negate parental objections but at least teachers will have evidence to support their decisions that can be presented to parents to justify their choices. 

As for a single national examination board that the survey strongly favoured, this is now essential.  It will remove the iniquitous system of deciding to do examination board A’s courses because the pass rate appears to be better and would also ensure that standards could be uniformly applied (in so-far as they can ever be uniformly applied).  The existing examination boards would simply become regional deliverers of the national board’s courses responsible for administration and marking under national supervision in their particular region. 

Friday, 22 June 2012

The past is a distant land

There is the past and there is history and in-between there lies the historian though this is no longer simply the preserve of historians whatever academe suggests. The argument goes as follows. People in the past left traces, wittingly or unwittingly, of their lives and experiences in the form of sources material that historians trawl to obtain the evidence that forms the foundations on which they built their construction, reconstruction or deconstruction of the past. The aim in this process is to get ‘as close’ as possible to narrating and explaining what actually happened in the past and, as a result, to establish some sort of true meaning of the past.  Others suggest that historians are story-tellers involved in an essentially literary activity interrogating texts to construct their view of the past.  Let me be clear, I do not see myself as a historian in a postmodernist context, not because I object to the postmodernist perspective even though it is frequently expressed in language that hides more than it reveals but because I am not convinced that postmodernism had added much that is valuable to the practical ‘craft of history’.  Few if any historians today would claim that their work is the definitive answer or that they are doing more than expressing their own view of what happened in the past.  They do not seek ‘the truth’ but merely seek to explain what happened recognising that their explanation will itself be subject to review and revision by others.  In that respect we are perhaps all postmodernists!

The problem it seems to me lies less in what historians do but their failure to address the issue of what the past actually is.  At one level, the past never actually existed.  People do not live in the past, they live in their presents with all the chaos that this implies.  Neither did people in the past live in history; they did not spent their lives thinking what the causes and consequences of their actions and thoughts would be.  Historians impose rationality on lives that are generally far from rational or logical.  It is historians who ‘make’ history with all the ambiguity that this implies and we interrogate history to provide an explanation for our presents…what Marwick called ‘history as a social necessity’.  Our views of our presents are partial and generally partisan in some form or another and so were people who lived a hundred years ago in their own presents and so on.  We/they cannot/could not ‘know’ that our actions could/did have particular consequences.  We look back to our pasts through the refracting mirror of our presents and our perceived (and invariably wrong) perceptions of our possible futures.  Unlike the newspaper announcing that next week’s fortune-tellers conference is cancelled due to unforeseen circumstances, our hindsight and foresight are limited by our understanding or our presents.  The past may well by a distant land but so are/were our/their presents. 

Thursday, 21 June 2012

Birth, death and taxes

The chapter on tax rebellion in my forthcoming Resistance and Rebellion in the British Empire, 1600-1980,  begins in the following way:

‘In late 1789, Benjamin Franklin wrote:

Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes. [1]

….From when taxes were first levied, people have found ways to evade paying for reasons that have been honourable, ideological, greedy and selfish. People have evaded taxes illegally, some have resisted paying taxes and others have simply refused. Taxation is almost by definition unfair. It is imposed on people by government generally without consultation and is frequently used to pay for things of which people do not approve or do not need. Getting the level of taxation in society right, or at least politically acceptable, has always been a problem for government. If the level of taxation is set too low then it may have insufficient funds to rule effectively with the likelihood of the same consequences as setting taxes too high; anger, discontent and even resistance. ‘

How many of us if asked whether we would like to pay less tax would say no!  How many of us if asked whether we would like to pay less tax in a scheme recognised by HMRC would say no!  Most of us of course have no option but to pay our taxes since we cannot afford the fees paid by tax revenue experts who know the vagaries of taxation law to do this.  But given the option, most of us would and it’s hypocritical to say we wouldn’t.  Let us be clear, the amount of tax we pay is a legal question and if we use taxation law to avoid paying taxation that is legally acceptable.  But is it morally acceptable or more accurately should taxation be subject to moral as well as legal rules?  The past few years have seen the growth of moral pressure on individuals and institutions to ensure that they do not have unacceptably high levels of income or pay their ‘right’ level of taxation.  Should we, as a society, ensure that people do not have unacceptably high incomes or avoid paying tax?  Certainly.  If so, how should we do this?  Well not by moral pressure since it ensure that individuals and institutions are effectively shamed into earning less or paying more taxes.  Moral pressure is arbitrary, generally ill-defined if defined at all and resembled the charivaris of the past, its scapegoats individuals and institutions.   It makes good headlines in the media but does not address the real issue: if the law allows me to avoid paying tax or to earn exorbitant sums of money why should I not do so?  If you don’t like taxation law as it stands, change the taxation law and stop whingeing when individuals and institutions act within the rules to pay less tax.  We’d all do it given the opportunity. 


[1] Franklin to Jean-Baptiste Leroy, 13 November 1789, Sparks, Jared, The Works of Benjamin Franklin, with Notes and a Life of the Author, 10 Vols. (Hilliard, Gray and Company), 1836-1840, Vol. 10, pp. 409-410. Daniel Defoe was the first author to use words to this effect in The Political History of the Devil, (T. Warner), 1726, p. 246, ‘Things as certain as death and taxes, can be more firmly believed.’

Friday, 15 June 2012

Captain Arthur Phillip and the law

Although law courts were established when the colony was founded, for the first thirty-five years, the Governors were absolute rulers. The British Parliament could control their authority, but England was 12,000 miles and eight months away by sea: by the time a complaint was heard and decided, nearly two years might have gone by. Phillip’s first and second Commissions, dated 12 October 1786 and 2 April 1787, appointed him as the representative of the Crown in an area embracing roughly the eastern half of Australia together with adjacent Pacific islands.[1] Before he left for NSW, Phillip received his Instructions (composed by Lord Sydney) from King George III, ‘with the advice of his Privy Council’. The first Instructions included Phillip’s Commission as Captain-General and Governor-in-Chief of New South Wales. An amended Commission, dated 25 April 1787, designated the territory of New South Wales as including ‘all the islands adjacent in the Pacific Ocean’ and running westward to the 135th meridian, that is, about mid-way through the continent.[2] The Instructions advised Phillip about managing the convicts, granting and cultivating the land, and exploring the country. The Aborigines’ lives and livelihoods were to be protected and friendly relations with them encouraged, but the Instructions make no mention of protecting or even recognising their lands. It was assumed that Australia was terra nullius, that is, land belonging to no one, an assumption that shaped land law and occupation for more than 200 years

Phillip[3] was responsible solely to his superiors in London and was expected to carry out their orders as embodied in his first Instructions of 25 April 1787, his ‘additional’ Instructions of 20 August 1789[4] and official dispatches. Within these limits his powers were absolute. The Crown vested him with complete authority over the inhabitants and gave him the right to promulgate regulations touching practically all aspects of their lives. He combined executive and legislative functions and could remit sentences imposed by the Civil and Criminal Courts established under a warrant issued on 2 April 1787. Only the crimes of treason or wilful murder were exempt from this provision, but even here he could grant a reprieve while awaiting advice from London. Distance from Britain and the relative indifference of the Home Office towards the affairs of the infant colony enlarged even further the scope of the governor’s initiative and increased his responsibilities.

The New South Wales Courts Act 1787 established a legal system, providing for the establishment of the first NWS Courts of Criminal and Civil Jurisdiction by executive action. [5] It ensured that British law landed with the First Fleet in 1788[6] and that the convict colony had the basis for law enforcement. The Act also allowed for a more ‘summary’ legal proceeding than was usual, adapting court procedures to the conditions of the new convict colony. The Court was established by the Letters Patent of 2 April 1787. [7] The Charter of Justice 2 April 1787[8] provided the authority for the establishment of the first New South Wales Courts of Criminal and Civil Jurisdiction. The Charter of Justice is in the form of Letters Patent providing for a Deputy Judge-Advocate and six court officers to be appointed by the Governor and the establishment of a Civil Court. The Governor was required to give his permission to any death sentence imposed by the Court, and was empowered to give pardons. The Civil Court had the power to deal with disputes over property and had jurisdiction over wills and estates. Although the British intended to transport English law and legal proceedings along with the convicts, in practice there were significant departures from English law in the new and distant Colony. Notably, the first civil case heard in Australia, in July 1788, was brought by a convict couple. They successfully sued the captain of the ship in which they had been transported, for the loss of a parcel during the voyage.[9] In Britain, as convicts, they would have had no rights to bring such a case. In reaching this decision, the Judge Advocate, David Collins, ignored the English common law rule of felony attaint.[10] Under that rule, those who had been sentenced to death for felony were unable to hold property, give evidence or sue in the court. Henry and Susannah Cable had been sentenced to death and their attaint should have followed them for the full period of their transportation. Thus the ambivalent relationship between Australian and English common law began with the very first case. [11]

[1] HRNSW, Vol. 1, (2), pp. 24-25, 61-67, HRA, Series I, Vol. 1, pp. 1-2.

[2] HRNSW, Vol. 1, (2), pp. 84-91, HRA, Series I, Vol. 1, pp. 2-9.

[3] Fletcher, B.H., ‘Phillip, Arthur (1738-1814)’, ADB, Vol. 2, pp. 326-333, Mackaness, G., Admiral Arthur Phillip, (Angus & Robinson), 1937, Thea, Stanley, Arthur Phillip: Australia’s Founding Governor, (Movement Publications), 1985 and Frost, Alan, Arthur Phillip: His Voyaging 1738-1814, (Oxford University Press), 1987 provide contrasting biographical material. See also, Stockdale, John, The voyage of Governor Phillip to Botany Bay: with an account of the establishment of the colonies of Port Jackson & Norfolk Island, 3rd ed., (Printed for J. Stockdale), 1790. See also Clune, David and Turner, Ken, (eds.), The Governors of New South Wales, 1788-2010, (Federation Press), 2009 on Phillip and subsequent governors.

[4] HRNSW, Vol. 1, (2), pp. 256-259, HRA, Series I, Vol. 1, pp. 9-16.

[5] House of Lords Record Office: 27 George III, 1787; HRNSW, Vol. 1, (2), pp. 67-70.

[6] ‘8th February 1788: The criminal court, consisting of six officers of his Majesty’s forces by land or sea, with the judge advocate, sat for the first time, before whom several convicts were tried for petty larceny. Some of them were acquitted, others sentenced to receive corporal punishment, and one or two were, by the decision of the court, ordered to a barren rock, or little island, in the middle of the harbour, there to remain on bread and water for a stated time.’ Ibid, White, John, Journal of a Voyage to New South Wales, pp. 126-127

[7] Letters Patent are written instrument granting authority from the Crown, not enclosed but open to view, with the seal of the sovereign at the bottom. As the provision for establishing a Civil Court had not been included in the Act there was no legislative basis for its foundation.

[8] States Records, New South Wales: SRNSW: X24, HRNSW, Vol. 1, (2), pp. 70-76.

[9] Cable/Kable v Sinclair, July 1788 was the first civil action brought in Australian legal history. In it, two convicts successfully sued the master of one of the first fleet ships for the loss of their baggage on the voyage. In doing so, commentators argue, the colony began with the rule of law rather than the simple rule of the lash. See, Kercher, B., Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, (Federation Press), 1996, pp. xviii-xix and Neal, David, The Rule of Law in a Penal Colony: Law and Politics in Early New South Wales, (Cambridge University Press), 1991, pp. 1-8.

[10] ‘Collins, David (1756-1810)’, ADB, Vol. 1, pp. 236-240. See also, Currey, John, David Collins: a colonial life, (Miegunyah Press), 2000.

[11] On the early development of a legal system in NSW, see, Nagle, John F., Collins, the courts & the colony: law & society in colonial New South Wales 1788-1796, (Indiana Press), 1996.

Monday, 11 June 2012

A question of legitimacy

There is an increasing chasm between the attitudes of political elites and the public at large across the globe that the economic crisis since 2007 has exacerbated.  What was acceptable behaviour by the elites in 2002 is no longer the case in 2012 largely because those elites have, with some justification, been blamed for a crisis in living standards for which some, at least, still appear to be in denial.  Corruption and sleaze challenges their moral legitimacy; economic crisis challenges their economic competence while the failure to sort out the problem threatens their political legitimacy.  There is a growing sense that not only are existing political elites unable to find solutions to global economic problems but that the scale of the problems is so great that any solutions they do come up with have little long-term effect.  It’s not simply a question of austerity and finding growth mechanisms that are sustainable, it’s the broader question of the legitimacy of the market economy.

At the root of the problem is the democratic deficit that lies at the heart of democracy.   This is nothing new.  There has always been a tension between the political elites elected within a democratic system and the often transient concerns of the electorate.  When economic conditions are good this is not a problem but when the economy slumps, the electorate seeks to assert its democratic credentials over and above those of the elites it elected and now seeks to control.  That the feeding frenzy associated with MPs’ expenses and phone hacking occurred after the economy slumped is no coincidence and is an attack on the moral competence of the elite.  The long recognised democratic deficit at the heart of the EU may have been acceptable (barely) when the organisation appeared to function at least competently (if not efficiently) but the euro crisis has made clear what most of us have known for decades that the EU was never an economic project but a political one for greater European integration and this challenges not only the notion of democracy but the nationalism of individual states.  

It is clear than the recreation of Christendom as Eurodom is unacceptable to most Europeans but the elite ploughs on regardless unwilling to listen to the people and unable to countenance that there could be an alternative vision.  When the people do assert their power, as for instance in the Irish referendums on the Lisbon treaty, then they are asked to vote again until they give the ‘right’ answer.  The attitude of successive British governments to a referendum on the EU (whatever the question) is evidence that the elite does not trust the people to come up with the right answer.  In the case of the Lisbon treaty this led to weasel words from the government that the treaty did not represent fundamental constitutional change (something few believed) and that, as a result, no referendum was necessary.  All you have to do is read the Lisbon treaty (something most MPs admit to never doing) to recognise that it did represent fundamental constitutional change and that a referendum should have occurred.  Politicians, it appears, expect us to trust them but they are unwilling to return the favour.  The consequence of this prevarication could well be that when there is a referendum, increasingly probable in the next five years, those wishing to come out of the EU could win, something that ten years ago would not have been the case. 

Friday, 8 June 2012

Captain Cook and Australia

Captain James Cook made three voyages to the South Pacific between 1768 and 1779 and on each occasion carried ‘Secret Instructions’ from the British Admiralty. These contained an outline of the route of the voyage, described the activities he and his men were to undertake, and the manner in which he was to report his progress. They were secret in that they held the real intentions and plans for the voyage, while other papers issued would be made available on demand to show Cook’s authority for his command and the enterprise. On his first voyage, Cook sailed in the Endeavour to Tahiti to assist in the scientific observation of the transit of the planet Venus and then sailed south in search of the fabled ‘Great Southern Continent’. [1]

Nathaniel Dance-Holland, James Cook, c1775

The Secret Instructions, dated 30 July 1768 contained in the Letterbook carried on the Endeavour, included Additional Instructions authorising James Cook to take possession of ‘a Continent or Land of great extent’ thought to exist in southern latitudes and instructed him ‘with the Consent of the Natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain’. [2] These provided that, if he found the Continent, he should chart its coasts, obtain information about its people, cultivate their friendship and alliance and annex any convenient trading posts in the King’s name. Cook followed the coast of New Zealand showing that Abel Tasman had been wrong to conclude that it formed part of the southern continent and then turned west, reaching the southern coast of NSW on 20 April 1770.[3] He sailed north, landing at Botany Bay one week later[4], before continuing to chart the Australian coast all the way north to the tip of Queensland. There, on Possession Island, just before sunset on 22 August 1770, he declared the coast a British possession

Notwithstand[ing] I had in the Name of His Majesty taken possession of several places upon this coast, I now once more hoisted English Coulers and in the Name of His Majesty King George the Third took possession of the whole Eastern Coast . . . by the name New South Wales, together with all the Bays, Harbours Rivers and Islands situate upon the said coast, after which we fired three Volleys of small Arms which were Answerd by the like number from the Ship.[5]

Cook had recorded signs that the coast was inhabited during the voyage north noting as he returned to the ship the large number of fires on all the land and islands about them, ‘a certain sign they are Inhabited’.[6] Cook then sailed through Torres Strait, returning to England in May 1771. Cook’s Secret Instructions represented the first official expressions of British interest in Australia combining the pursuit of scientific discovery with the desire to find exploitable natural resources and to expand Britain’s control of strategic trading posts around the globe and assumed that these varied interests could be made compatible with a respect for the native populations in those countries. Cook’s observations along the NSW coastline on his first voyage formed the foundation for Britain’s decision to establish the colony at Botany Bay in 1788.[7]

Cook’s second and third voyages involved a fuller exploration of the Pacific and Atlantic, including the search for a north-west passage through the Pacific to the Atlantic. He was instructed to make scientific observations and collect natural specimens, and to show ‘every kind of civility and regard’ to the natives, at the same time taking care not ‘to be surprized by them’. With their consent, he was to take possession in the name of the King of any convenient situations in any country he might discover. Cook eventually reached the north-west passage, but the Bering Strait was ice-bound and he was unable to cross it. Returning through the South Pacific, he was killed in the Sandwich Islands on 14 February 1779.

John Cleveley, Death of Captain Cook, aquatint, 1781

[1] Beaglehole, J.C., The Life of Captain James Cook, (Stanford University Press), 1974 and his editions of Cook’s journals, The Journals of Captain James Cook: The Voyage of the Endeavour,1768-1771, (Cambridge University Press), 1955, The Journals of Captain James Cook: The Voyage of the Resolution and Adventure, 1772-1775, (Cambridge University Press), 1961 and The Journals of Captain James Cook: The Voyage of the Resolution and Discovery, 1776-1780, 2 Vols. (Cambridge University Press), 1967 are the standard works. Edwards, Philip, (ed.), James Cook: The Journals, (Penguin Books), 2003 is an abridged version.

[2] This Letterbook contains the only surviving set of Cook’s original Secret Instructions. See, HRNSW, Vol. 1, (1), pp. 398-402 for the secret instructions for Cook’s third voyage.

[3] Ibid, Edwards, Philip, (ed.), James Cook: The Journals, pp. 120-121.

[4] Ibid, Edwards, Philip, (ed.), James Cook: The Journals, pp. 122-123.

[5] Ibid, Edwards, Philip, (ed.), James Cook: The Journals, pp. 170-171.

[6] Unlike Cook’s interaction with other peoples in the Pacific and New Zealand, his contacts with the peoples in Australia have been relegated to a footnote in history perhaps because they were so brief. See, Nugent, Maria, Captain Cook Was Here, (Cambridge University Press), 2009 for a detailed examination and critique of Cook’s eight days at Botany Bay in late April-early May 1770 and the original encounter on land between the British explorers and the first Australians that has become one of Australia’s founding legends.

[7] HRNSW, Vol. 1, (1) contains extracts from Cook’s private log and the log book of the Endeavour. However, the volume is perhaps most valuable for the journals of officers, pp. 175-298.

Friday, 1 June 2012

Second and Third Fleets

Unlike the First Fleet, where great efforts were taken to ensure the health of the convicts, the Second Fleet[1] was contracted to the slave-trading firm Camden, Calvert & King who undertook to transport, clothe and feed the convicts for a flat fee of £17 7s 6d per head[2], whether they landed alive or not.[3] Unlike the slave trade where deaths in transit reduced profits, the contractors had little incentive to worry about conditions. Upon arrival the sickly convicts were a drain on the already struggling colony. The only agents of the Crown in the crew were the naval agent, Lieutenant John Shapcote, who died on the voyage and Captain William Hill, commander of the NSW Corps, all other crew were supplied by the firm. Hill afterwards wrote a strong criticism of the ships’ masters stating that

...the more they can withhold from the unhappy wretches the more provisions they have to dispose of at a foreign market, and the earlier in the voyage they die, the longer they can draw the deceased’s allowance to themselves.[4]

The fleet was comprised of six ships, one Royal Navy escort, four convict ships and a supply ship. The Lady Juliana sailed on 29 July 1789 arriving at Port Jackson after a voyage lasting 309 days on 3 June 1790 before the other convict ships and is not always counted as a member of the Second Fleet.[5] The store ship Justinian did not sail with the convict ships on 19 January 1790 (it left the following day) and arrived before them on 20 June 1790. HMS Guardian set out before the convict ships on 12 September 1789 but struck ice after leaving the Cape of Good Hope.[6] The Surprize, Neptune and Scarborough had previously been involved in transporting slaves to North America and left England on 19 January 1790, with 1,006 convicts (928 male and 78 female) on board. They made only one stop on the way, at the Cape of Good Hope. Here 20 male convicts, survivors from Guardian, were taken on board. The three vessels made a faster trip than the First Fleet, arriving at Port Jackson in the last week of June 1790, three weeks after Lady Juliana and a week after the Justinian.

The voyage was relatively fast, but the mortality rate was the highest in the history of transportation to Australia. Of the 1,026 convicts who embarked, over a quarter, 267 (256 men and 11 women), died during the voyage. On Neptune they were deliberately starved, kept heavily ironed and frequently refused access to the deck. Scurvy could not be checked. On Scarborough, rations were not deliberately withheld, but a reported mutiny attempt led to the convicts being closely confined below decks. On arrival at Port Jackson, half naked convicts were lying without bedding, too ill to move. Those unable to walk were slung over the side. At least 488 sick were landed (47% of those embarked). The remainder were described as ‘lean and emaciated’ and exhibiting ‘more horrid spectacles than had ever been witnessed in this country’. [7] Among the arrivals on the Second Fleet were D’Arcy Wentworth and his convict mistress Catherine Crowley, on Neptune and John Macarthur, then a young lieutenant in the NSW Corps and his wife Elizabeth, on Scarborough.

Map of Sydney Cover, 1788

When news of the horrors of the Second Fleet reached England, both public and official opinion was shocked. An enquiry was held but no attempt was made to arrest Donald Traill, master of Neptune and described as a demented sadist or bring a public prosecution against him, the other masters, or the firm of contractors. They had already been contracted by the government to prepare the Third Fleet for sailing to Port Jackson in 1791. Traill, along with his Chief Mate William Ellerington, were privately prosecuted for the murder of an un-named convict and also a seaman named Andrew Anderson and a cook named John Joseph. But, after a trial lasting three hours before Sir James Marriott in the Admiralty Court, the jury acquitted both men on all charges ‘without troubling the Judge to sum up the evidence.’[8]

The Third Fleet consisted of 11 ships that set sail from United Kingdom in February, March and April 1791 bound for the Sydney penal settlement, with over 2,000 convicts. [9] The first ship to arrive in Sydney was the Mary Ann with its cargo of female convicts and provisions on the 9 July 1791. The Mary Ann could only state that more ships were expected to be sent. The Mary Ann had sailed on her own to Sydney Cove, and there is some argument about whether she was the last ship of the Second Fleet, or the first ship of the Third Fleet. The ships that make up each Fleet, however, are decided from the viewpoint of the settlers in Sydney Cove. For them the second set of ships arrived in 1790 (June), and the third set of ships arrived in 1791 (July-October). The Mary Ann was a 1791 arrival. The next ship to arrive just over 3 weeks later on 1 August 1791 was the Matilda. With the Matilda came news that there were another nine ships making their way for Sydney, and which were expected to arrive shortly. The final vessel, the Admiral Barrington, did not arrive until the 16 October nearly eleven weeks after the Matilda, and fourteen weeks after the Mary Ann. 194 male convicts and 4 female convicts died during this voyage.[10] Though this death rate was high, it was nowhere near as bad as that which had occurred on the Second Fleet.

Phillip now had more mouths to feed and to avert another famine, hired the transport Atlantic to sail to Calcutta for a cargo of rice.[11] She sailed late in October and with good sailing was expected to return by the following April or May. By early 1792, food stocks were down to dangerous levels.[12] The grain harvest at Parramatta had been above expectations, but still too small to feed the colony for more than a few weeks. Phillip had no choice but to reduce the ration yet again. Food shortages lead to desperation and food stealing became common. Discontent became so close to revolt that the Governor refused close assembly in numbers for any reason. A numbers count revealed that 44 men and women were missing. Most had wandered into the bush, believing that they could find a better place; few were ever found or returned. In April 1792, with no sign of the Atlantic, Phillip reduced the ration again to near starvation level with flour down to 1½ pounds and 2 pounds of maize and some pork. The mortality rate had reached desperate proportions and a general air of despair was everywhere. ‘Distressing as it was to see the poor wretches dropping into the grave’, David Collins wrote, was far more afflicting to observe the countenance and emaciated persons of many who remained, soon to follow their miserable companions...It was not hard labour that destroyed them; it was an entire want of strength in the constitution to receive nourishment, to throw off the debility that pervaded their whole system.[13]

The Atlantic finally returned from Calcutta with a cargo of rice and other food including pork; the latter found to be ‘for the most part putrid’ and had to be thrown out. Phillip though, had good reason to believe that the worse was over. HMS Gorgon had returned from England with assurances from authorities that regular shipments of food and other supplies would be forthcoming. The first sign of this promise was the arrival in July, of the supply ship Britannia with four months of flour and eight months of beef and pork ‘for every description of persons in the settlement at full allowance.’ It also carried a year’s supply of clothing and the news that two more ships were on the way. The full standard ration was thereby restored.

When Phillip left the colony in December 1792, its population was 4,222, of which 1,256 were at Sydney, 1,845 at Parramatta and 1,121 at Norfolk Island. The colony was still short of many necessities and livestock. However, more than 1,700 acres of land were under cultivation or cleared of timber for cultivation. Many settlers were able to keep themselves, and some had surpluses of grain and vegetables to sell. The harvest before Phillip’s departure had yielded 4,800 bushels and within another year, Grose optimistically but prematurely reported that the colony was virtually independent of outside supply.

[1] William Grenville to Phillip, 24 December 1789, HRNSW, Vol. 1, (2), pp. 284-286 informed Phillip of the new batch of convicts.

[2] While the contract for the First Fleet had been a generous £54,000 for seven ships carrying a thousand convicts and marines, Camden, Calvert & King were paid £22,370 for four ships. Hill argued that the appalling conditions were a consequence of the contract with slaver-traders.

[3] Flynn, Michael, The Second Fleet: Britain’s Grim Convict Armada of 1790, (Library of Australian History), 1993, ibid, Bateson, Charles, The Convict Ships 1787-1868, pp. 120-131.

[4] Captain Hill to Wathen, 26 July 1790, HRNSW, Vol. 1, (2), p. 367. The recipient of the letter was the abolitionist William Wilberforce. The anguished nature of the complete letter suggests that he tried but failed to alleviate the suffering of the convicts though it was perhaps Hill’s intervention that resulted in his ship, the Surprize losing only 14 per cent of its cargo while the Neptune and Scarborough lost twice as many. See also, the extract from a letter, Rev R. Johnson to Mr Thornton, HRNSW, Vol. 1, (2), pp. 386-389.

[5] On the Lady Juliana see, Rees, Siân, The Floating Brothel: the extraordinary true story of an eighteenth-century ship and its cargo of female convicts, (Hodder), 2001.

[6] Commanded by Lieutenant Edward Riou, it struck an iceberg off the African coast. Riou, after parting with as many of his men as the boats would hold, not only successfully navigated his half-sinking ship 400 miles to the Cape of Good Hope but kept order amongst the panic-stricken convicts, an achievement that has few parallels in naval history. See, Riou to Stephens, 20 May 1790, HRNSW, Vol. 1, (2), pp. 336-340.

[7] Phillip’s initial response can be found in Phillip to Grenville, 13 July 1790, HRNSW, Vol. 1, (2), pp. 354-356.

[8] Admiralty Proceedings on the Sessions held 7th and 8th June 1792 before Sir James Marriott and others, Trials of Kimber, Traill, Ellerington and Hindmarch for murder and Berry and Slack for piracy, London, 1792

[9] Ibid, Bateson, Charles, The Convict Ships 1787-1868, pp. 131-139 and Ryan, R.J., The Third Fleet Convicts: an alphabetical listing of names, giving place and date of conviction, length of sentence, and ship of transportation, (Horwitz Grahame), 1983

[10] New Holland Morning Post, 18 October 1791.

[11] The problem was evident in a letter from Phillip to Lord Grenville, 5 November 1791, HRNSW, Vol. 1, (2), pp. 532-541.

[12] See, Phillip to Henry Dundas, 19 March 1792, Phillip to Nepean, 29 March 1792, HRNSW, Vol. 1, (2), pp. 596-599, 610-613.

[13] Ibid, Collins, David, An account of the English colony in New South Wales, p. 207.