Policing and the Police Act

Arthur’s police numbered 254 in August 1828, increasing to 346 in December 1833 and 453 in April 1835.[1] In 1835, the population has been estimated at 40,172, giving a ratio of one policeman for every 88.7 people; in Sydney and the settled districts the ratio in 1836 was 1 policeman for every 133 people.[2] In rural England, the ratio was not more than 1 to every 1000 people. The ratio in VDL was not only much more than the colonists had been used to in England but was also significantly higher than in the heavily policed society of NSW. This meant that convicts and colonists were always under the surveillance of the police and made collision with them difficult to avoid, especially in the towns. The police were more concerned to enforce order than protect liberty and were generally supported by the magistrates. The police could use their discretionary powers to harass and arbitrarily arrest free citizens, who were required to buy their freedom with bribes or other favours. On the other hand, if properly supervised, the police were a protection against property crime and violence and many colonists welcomed their protection.

Arthur was always willing to protect the settlers from crime and was susceptible to arguments for more police if funding allowed. But Colonial Office directions to limit spending acted as a barrier to extending police protection in response to the calls of colonists. In September 1835, Forster pointed out the urgency of appointing an assistant police magistrate at Morven near Launceston where ‘a great many expirees’ had settled because of the absence of police.[3] In England from the second half of the eighteenth century, dissatisfaction with measures against criminals prompted the propertied class to form associations for the prosecution of felonies, which attempted to track down criminals, sometimes to arrange patrols to prevent crime, and to share the cost of prosecution.[4] After repeated calls for police protection, the inhabitants of Morven and Breadalbane decided to follow the example set in England and, with land and stockholders in other districts, formed an Association for the Suppression of Felonies in October 1835.[5] How successful this association was is unclear, but its existence indicates that colonists saw Arthur’s police as efficient protectors of their property and took direct action only after this protection was not forthcoming.

Settlers in the interior without police protection had good cause for complaint, but in 1836 virtually the whole colony was in an uproar after the British treasury decided that police costs should be funded from local revenue.[6] Arthur knew that this would be unpopular and had postponed implementing the Colonial Office’s instructions for two years by seeking a reconsideration of the decision. Six members of the Legislative Council protested that the large costs of the police and jails stemmed from the presence of British convicts and should be paid by the British government.[7] The colonists had already paid £14,464 17s 6d for the judicial establishments and for the food and clothing of more than 7,000 convicts. With a mere 12,000 free adults, the economy could not afford an increase in taxation of £24,283 1s 9d. The British government dismissed such arguments and stuck to its decision.

In addition to strengthening police numbers, Arthur was amenable to increasing their powers, even where this might infringe individual liberties. He argued that the demands of convict discipline left him no choice. For instance, he attempted to stop the increasing seizure of vessels by convicts.[8] He strengthened the coastal police, empowered them to stop all boats and ships suspected of hiding convicts, restricted the movement of small crafts on the rivers, and required all owners of vessels to keep them under ‘proper surveillance.’ The most contentious measure was section 61 of the Police Act that enabled constables to arrest between 9 p.m. and sunrise any sailor found in a pub or on the street without a pass whom they suspected of being a convict in disguise.[9] The Australian Courts Act of 1828 stated that English statute law was operative in VDL and empowered the Supreme Court judges to protest that a particular section or sections were repugnant to English law. Reflecting a widely held opinion, the judges invoked their power of judicial review and held section 61 to be repugnant to the laws of England because it deprived a free man of his liberty without good reason.

After prolonged delay, the English Crown Law Officers concluded that the governor with the advice of his Legislative Council could pass such a section if the circumstances of the colony necessitated it.[10] Lord Glenelg mildly rebuked Arthur for allowing conflict with the judges to arise, as they were the acknowledged local experts on legal and constitutional matters. Glenelg doubted that the evil demanded such an ‘extreme remedy’ and thought conflict could have been avoided by inserting a preamble explaining the need for the section. Arthur wanted to avoid a preamble indicating that he had ‘to place any class of free subjects under a particular restraint,’ as this would have given ammunition to the nascent anti-transportation party. After Arthur declined to repeal the section, Glenelg let the matter drop, praising Arthur’s ‘habitual foresight and circumspection.’ Some sailors were arrested under section 61 and this exacerbated tensions between Arthur and the free population in the ports of Hobart Town and Launceston.[11]

The Police Act contained seven other sections dealing with police powers over disorderly or criminal conduct[12]. These included arresting convicts out after 8 p.m. without a pass, drunk and disorderly persons, and persons acting indecently. These sections gave constables ample discretionary power to harass, if not arrest, free citizens. Masters of vessels could request the police to bring disorderly persons ashore. Anyone who assaulted a policeman or publicans who harboured a policeman on duty were liable for a fine. The Police Act said nothing about appointing or disciplining police, about their pay and conditions, about funding police forces, or under whose authority they acted. Arthur had control of these matters and did not need to seek legal authority for their implementation or to give the Legislative Council an opportunity to debate such issues. Some powers in the Police Act benefited the colonists. At this time municipal government was not contemplated, so most of the act’s seventy-two sections were designed to improve the health, amenity, and convenience of residents in Hobart Town and Launceston. These included prohibitions against obstructing paths, damaging buildings, polluting streams, disposing of rubbish and night-soil, and causing nuisances. The police cared little for the comfort and convenience of town residents and merely enforced those provisions of the Police Act and other legislation that brought them part of the fines.

Arthur’s enemies expressed their distaste for his statutes by comparing them to the actions of despotic foreign governments. Thus the Colonial Times referred to ‘the Algerine Police Act—the Turkish Dog Act’ and the ‘Persian’ Sunday trading clauses, while the hated Forster was called the ‘Aga Khan’ and the police ‘Janissaries,’ the Turkish foot guards ‘formed originally of renegade prisoners.’[13] However, police enforcement of these statutes antagonised colonists by threatening their liberty and undermined support for Arthur’s police system.

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[1] AOT CSO 51, Police Serving on 1 August 1828; CO 280, Return of Police Establishment in Van Diemen’s Land, 31 December 1833, and Quarterly Return of Police in Van Diemen’s Land, 1 April 1835.

[2] Population figures for VDL might have been underestimated. See ibid, Hartwell, R.M., The Economic Development of Van Diemen’s Land, 1820-1850, p. 68; ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 54, 155.

[3] AOT POL 318/4, memo by Forster, 29 September 1835.

[4] Philips, David, ‘Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England, 1760-1860’, in Hay, Douglas and Snyder, Francis, (eds.), Policing and Prosecution in Britain, 1750-1850, (Clarendon Press), 1989, pp. 113-170.

[5] Hobart Town Courier, 6 November 1835; Launceston Advertiser, 26 November 1835, letter by George Palmer Ball; Cornwall Chronicle, 14 November 1835; Colonial Times, 27 October 1835.

[6] Hobart Town Courier, 13 May 1836; Launceston Advertiser, 1 September 1836; Colonial Times, 15 November 1836.

[7] Launceston Advertiser, 1 September 1836.

[8] CO 280, Arthur to Hanley, 4 April 1834.

[9] AOT GO 33/22, Arthur to Glenelg, 10 May 1836, Forster to Arthur, 17 December 1833, Pedder and Montagu to Arthur, 12 December 1833; AOT GO 1/19, Glenelg to Arthur, 8 November 1835; CO 280, minute by unidentified author, 8 November 1836; Launceston Independent, 4 January 1834; Cornwall Chronicle, 29 August 1835; Colonial Times, 31 December 1833.

[10] AOT GO 1/19, Glenelg to Arthur, 8 November 1835.

[11] Cornwall Chronicle, 14 May 1836.

[12] Hobart Town Gazette, 13 December 1833, pp. 801-24; ibid, Shaw, A.G.L., Sir George Arthur, Bart, 1784-1854, pp. 148-149.

[13] Colonial Times, 15 March 1836; True Colonist, 27 November 1835.

Convict constables in Tasmania

As in NSW, suitable men were hard to find and most of Arthur’s police were convicts under sentence.[1] A committee of senior public servants appointed in 1829 to enquire into the cost of the police concluded that convict police were ‘influenced by the two most powerful motives of fear of punishment and hope of reward’ in gaining their liberation.[2] Their appointment destroyed ‘the feeling of Convict fraternity’ in committing and concealing crime and created a feeling of ‘common distrust and suspicion of treachery.’ But this should not be taken to suggest that policemen were always appointed from convicts who had spent some time in the colony and gained some knowledge of their colleagues’ characters. A number were appointed directly from the convict ships. The surgeon superintendent recorded everything that occurred on the ship, especially the behaviour of convicts, to add to the previous details about their crimes and character.[3] On the arrival of a ship, government departments requiring men applied first to Arthur and later to the assignment board that he established in 1832. At least some men, who were thought to have gained a good knowledge of their companions, were selected from each ship to be policemen.

In 1831, Josiah Spode[4] admitted that the system of appointing convicts as constables ‘immediately on arrival’ on convict ships, begun when he was assistant police magistrate in 1828, had defects.[5] He had great difficulty persuading assigned convict servants to volunteer for police work and their masters would not recommend them without getting ‘efficient farming servants’ in return. The shortage of recruits also stemmed from the increased demand for convict labour by new settlers and the reduced number of ‘useful’ convicts sent to VDL since 1828. On reflection, Spode thought that the system of appointments direct from convict ships was ‘anything but a good one.’ Originally, he intended to appoint as policemen convicts with ‘extremely good character either from home or by the recommendation of the Surgeon Superintendent.’ But he estimated that five-sixths of the convicts with the desired character were either artisans needed for public works or physically incapable of performing police work. Consequently, policing was in the hands of ‘a set of unworthy fellows which counteracts in a great degree the excellent Police arrangements laid down.’ Despite the defects, Arthur’s evidence to the Molesworth parliamentary committee on transportation indicated that the practice of appointing policemen directly from the convict ships continued until his departure.[6]

Hobart Town, Van Diemen's Land, 1811-1837, by RG Reeve.
National Library of Australia

Arthur defended the appointment of convicts. He claimed that the police were ‘always the best convicts; men who are sent out with the best characters, active and intelligent.’[7] But he conceded that many thought to be ‘good characters’ had shown themselves ‘very bad ones’ and that, when faced with pressure to fill vacancies, he appointed ‘characters who ought on no other account to have been admitted.’ Generally, he felt the convict constable system was ‘a good one’ because, with a chance of getting a ticket of leave or emancipation, ‘they have all very strong inducement to give information’ and ‘to do their duty in a very watchful and careful manner.’ He admitted that there had been some false charges, but ‘I would not say to such an extent as might be supposed from such a class of persons.’ Of course, not all false charges were exposed in court, but Arthur here indicates that he expected a certain number of false charges in return for a high level of surveillance.

For convicts, police work held certain attractions. Although not ‘very well paid,’ they obtained ‘a great deal of freedom’ and ‘a great deal of authority.’[8] However, far too many abused their power. Colonists in the major towns regularly complained that convict constables (‘the offal of British depravity’) could not be trusted with legal powers to ride ‘rough-shod over the liberties and rights of free British subjects’ and justified their complaints by reference to English practice.[9] One colonist pointed out that the office of constable was an old and honourable one and a constable should perform his duties honestly ‘without malice, hatred, affection, or partiality’ and ‘with utility to the public, whose sworn servant he is.’[10] Convict constables, however, did not serve the public; they served the convict system while lining their own pockets. Another colonist asserted that in England criminals were not accepted as ‘competent witnesses’ and argued that it was therefore wrong to rely on convict constables in VDL.[11] Their appointment, thundered the True Colonist, destroyed

...the bonds of society by removing the distinction between crime and virtue’ and ‘elevating the convicted criminal above the unoffending citizen.[12]

In other words, to send a thief to catch a thief might be a sensible practice in some cases, but the thieves had to be more carefully selected and closely supervised than they were in VDL.[13] This criticism was true up to a point, but it ignored the number of dismissals of convict policemen showing that Arthur’s control of the police was strict, as well as demonstrating ‘the unreliable nature of many of the personnel of that service.’[14]

41 per cent of convicts, whose appointments as policemen between 1828 and 1836 can be verified in the Hobart Town Gazette, were dismissed, compared to 25 per cent of free settlers appointed policemen. Table 2 shows that between 1828 and 1831 about 40 per cent of dismissed convict policemen were removed for drink-related offences and another 34 per cent for misconduct of various kinds. After Forster, who had served in the military in Ireland, was appointed chief police magistrate in 1832, a more rigid discipline was introduced and policemen were expected to adhere more closely to orders and the law. Between 1832 and 1835, about 40 per cent of convict policemen and 40 per cent of free policemen were dismissed for breaches of duty. Drink-related offences ended in the dismissal of 23.7 per cent of convict policemen and 43.4 per cent of free policemen. Arthur was more likely to dismiss policemen for behaviour that weakened convict discipline and control than actions that infringed the liberties of colonists.

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[1] Ibid, King, Hazel, ‘Some Aspects of Police Administration in New South Wales, 1825-1851’, p. 221.

[2] AOT CSO 1/60 1258, report by committee of public servants, 15^t October 1829.

[3] Ibid, Report from the Select Committee on Transportation, Vol. 2, pp. 282, 300-301; Hobart Town Gazette, 21 November 1829, pp. 270-271.

[4] Green, F.C., ‘Spode, Josiah (1790-1858)’, ADB, Vol. 2, p. 466.

[5] AOT CSO 1/252/6040, Spode to Burnett, 21 February 1831.

[6] Ibid, Report from the Select Committee on Transportation, Vol. 2, pp. 300-301.

[7] Ibid, Report from the Select Committee on Transportation, Vol. 2, pp. 302-303.

[8] Ibid, Report from the Select Committee on Transportation, Vol. 3, p. 127.

[9] Cornwall Chronicle, 29 August 1835, 2 January 1836.

[10] Letter by ‘Z’, Tasmanian, 12 October 1832.

[11] Tasmanian, 16 November 1832, letter by ‘Justice’; it was true that in England incompetent witnesses included those ‘whose crimes had rendered them infamous’ and those ‘who were interested in the event of the suit.’ See Jervis, John, Archbold’s Summary of the Law Relating to Pleading and Evidence in Criminal Cases, 10^th ed., (Sweet and Stevens), 1846, p. 143. This situation changed with the English Evidence Act 1843, section 1

[12] True Colonist, 11 September 1835.

[13] True Colonist, 13 January 1835.

[14] Ibid, Forsyth, W.D., Governor Arthur’s Convict System: Van Diemen’s Land, 1824-36, p. 156.