The Legal System

The community at Sydney Cove found itself in a legally unprecedented position in its first few years.

In the future there would be free settlers, but for those first few years, apart from the Governor and his entourage, there were just convicts, marines and the wives of the marines.

Legally the colony was a military establishment. As was the case with all military garrisons there was a Judge Advocate to deal with matters of discipline arising from the behaviour of the soldiers. The only military punishments were flogging or death. The role of the Provost was to arrange for the sentences to be carried out.

The first Judge Advocate in Sydney was Captain David Collins of the marines, who was not a lawyer and had no legal training, while the Provost was Henry Brewer. (In the sources, Collins is sometimes called Deputy Judge Advocate to reflect the fact that he was in an outpost, rather than The Judge Advocate in London.)

In a military court martial the role of the Judge Advocate was to chair the tribunal, advise the court on points of law, and also act as prosecutor. The Judge Advocate had no say in determining the judgement.

In Sydney Cove, criminal offences were dealt with by court martial under the Mutiny Act and the Articles of War. This tribunal was constituted as a Criminal Court, and comprised the Judge Advocate and six naval or military officers. The officers of the marines included a major, 4 captains and 14 lieutenants. The Judge Advocate had the same responsibilities as in a court martial. In addition he also had a vote in the final judgement. So Judge Advocate had prepared the case, act as prosecutor and sit in judgement. It was a most difficult position to hold.

To complicate matters many of the Marine officers objected to being asked to sit as members of the criminal court, maintaining that they were not paid for this duty.

Civil matters such as probate and letters of administration were dealt with by the Judge Advocate and two fit and proper people, effectively officers in the early days.

Collins was all too acutely aware of the difficulty of his position, so far from any assistance or guidance for a non lawyer, acting as the most senior legal officer in the community, and separated from the support of most of his fellow officers by their attitude towards serving in the criminal court.

Law Enforcement

The other problem was the policing of the colony. In London in those days there was no such thing as a police force. The only model was the group of thief-takers set up by magistrate Henry Fielding in his precinct from 1748. As Fielding lived in Bow Street, they were known as the Bow Street Runners. A London-wide police force was not set up until 1829.

The marines led by Major Robert Ross, maintained that they were soldiers, not gaolers or supervisors or policeman, and refused to do other than guard the settlement. So Phillip was forced to look to the convicts themselves for these roles. The first convict supervisors were very unpopular with their fellow convicts.

By August 1789 scarcely a night passed when there was not a theft of some kind. It was around this time that the reduced rations were starting to be felt. It was not just the gardens of the government or the officers that needed protecting. Many convicts had private gardens as well, and they too were victims of persistent theft.

Some time in July 1789 convict John Harris went to Collins with a proposal for a Night Watch to be established from among the convicts to deal with all those found away from their huts at "improper hours".

Collins commented that: "it was to be wished, that a watch established for the preservation of public and private property had been formed of free people, and that necessity had not compelled us in selecting the first members of our little police, to be appointed from a body of men in whose eyes, it could not be denied, the property of individuals had never been sacred. But there was not any choiceŠ Convicts who had any property were themselves interested in defeating such practises [as theft]". The night watch were held in "fear and detestation" by their fellow convicts.

By November 1789, Collins was writing that the Night Watch had been very effective: there were fewer crimes. When there were crimes the culprits were usually caught.

Sources:
John Cobley, Sydney Cove 1789, Angus and Robertson, 1963
J. E. Nagle, Collins, the Courts and the Colony, UNSW Press, 1996
W. J. V. Windeyer, Legal History, Law Book Company of Australasia, 2nd edn, 1957

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