Australia (Part Two) Germ Of An Idea

Posted on Thu 05/08/2008 by


This portrait is of , who, as Lieutenant, commanding the Barque Endeavour, on 19th April 1770 was the first person to make landfall on the Eastern coast of the Great Southern Land, now known as Australia.

This portrait was painted by Nathaniel Dance in 1775, and hangs in The National Maritime Museum at Greenwich in the United Kingdom.

So then, just what is the tenuous link between lawyers and the founding of Australia?

Shakespeare talked of lawyers in Henry VI written in 1591.

Back then, in England, the Law wasn’t like it is today. There was no four year course at University. There was no spending time as a gopher an articled clerk, then as a Solicitor. There was no Bar exam on the step to becoming a Barrister. No long wait then to become a Senior Counsel, (or Queens Counsel, as they are still often called in British Commonwealth Countries, the process of taking silk, if you are a fan of that English BBC TV program, Rumpole of the Bailey) There were no partners, no senior partners, no advocates, no district Attorneys, no Defence lawyers. No hundreds of bound case books along the walls of each Practice.

No the law just consisted of Magistrates schooled in Laws enacted by Parliament. Private lawyers were pretty scarce on the ground in those days, and virtually their sole work came from those in the upper class able to afford their skills. Hence the saying, one law for the rich and another for the poor. Those upper classes who (if ever) got into trouble could afford a lawyer who would get them out of that trouble. There was very little even in the way of a middle class, mostly merchants, also able to afford a lawyer schooled in the Law to also get them off. However, the vast bulk of humanity were the lower classes, and their access to the law was non existent.

If arrested, or even just accused of anything petty, then the case was that they were guilty. The job of the Magistrate was to hear the outline of the accusation, and then pass judgment as the sitting judge. They got through hundreds of cases a day. There was no such thing as a defence. You could say nothing in the Court, be it in your defence, or anything at all. The only thing the judge may have heard was if there was someone to speak on behalf of the accused, and that was a rare thing indeed, and also rare that it had any effect on the outcome or sentence. It was a case of lead in the accused, and take down the guilty person.

Petty crime was harshly dealt with, and there were jail terms for virtually everything, and not just seven days, but years for something as trivial as stealing a loaf of bread, or, as a female servant, stealing a handkerchief from her employer. The most trivial of misdemeanour’s drew harsh jail terms.

Capital punishment was prevalent, and not only just for the serious crime of murder, but for a lot lesser crimes as well. Male. Female. It mattered little. These were gruesome times with gruesome punishments, so even though England was the leading civilisation on the Planet, they were not very civilised at all.

Because of this jails bulged at the seams, literally, and because most sentences were to a term in jail, then there was no real turnover of prisoners. They just built more jails.
Still prisoner population increased. In 1718, new laws were passed and a new punishment was introduced, that of transportation, effectively exile. The reason behind this was to move the problem of housing prisoners offshore, effectively attempting to solve the problem of housing the prisoners in England, and assisting in those far off lands under the overarching authority of Mother England. Prisoners sentenced to transportation were shipped off to America, and sold as indentured servants. Over the next 58 years more than 60,000 prisoners were brought to America, mostly serving in Virginia and Maryland. Some actually returned to England but the vast majority stayed and started new lives in America following the finish of their sentence.
In 1775 at the height of your War Of Independence, with things starting to go badly for England, the writing on the wall, the transportation of prisoners ceased.
Even with transportation on a scale like this jails still bulged as the justice system concentrated more on punishment than justice.

To this end jails still creaked at the seams. Because America no longer accepted prisoners another means of housing prisoners was needed. The practice of the came into being starting in 1775, old sailing ships gutted with superstructures removed, and anchored in harbours around the Country and most in the River Thames in mid London. The hulks remained in service till the mid 1850’s, and all up, there were 60 of them, housing tens of thousands of prisoners during those 70 or so years.

The only known photograph of the prison hulks on the River Thames at Woolwich shortly before their removal in 1856. The hulks were established at Woolwich and at other ports in the 1770s to accommodate the burgeoning prison population. Prisoners either served their time on the hulks or waited to be transported to Botany Bay in Australia.

Photograph courtesy of University of Greenwich and others.

In 1766, leading Astronomers in England wanted to observe the transit of Venus across the Sun in 1769, and the best place to do this was in the South Seas.
A renowned mariner James Cook was tasked with the job, departing in 1768 for the three year voyage. Incidentally, as part of this voyage, Cook rigorously tested the new version of clock the H4, proving beyond doubt that this was the conclusive answer to accurate time keeping in aid of navigation, once and for all solving the problem of longitude. The planetary observations were somewhat inconclusive, but the voyage was notable in that Cook finally discovered and proved the existence of the ‘Great Southern Continent’, often guessed about but never really found. He was the first to land on, and then chart the Eastern sea board of the Continent, a task that took nearly 5 months. He claimed the Continent for England on the 22nd August 1770.

This photograph is of that K1 watch, a copy of the Harrison H4 that Cook used extensively on this voyage. It may look like a pocket watch but this was the result of 50 years of hard work by Harrison. It measures just over 5 inches across and weighs just over 3 pounds. Its cost at the time was 600 Pounds Sterling, the equivalent in today’s money of $360,000. Proving conclusively that this was the answer to the problem of Longitude, Harrison was awarded the prize of 20,000 Pounds Sterling, the equivalent of $12 Million today.

The war in North America went the way of the Americans, the first major loss for the English in their history, extended in the fight by being across the other side of the Atlantic Ocean.

Back in England, the loss of the War meant that America was now off the list of places to transport prisoners.
The jails bulged, as did the inhumane hulks, a place where prisoners were chained to the sides of the ship on decks where a man could not stand without having to stoop. During daylight hours prisoners worked ashore, but at night they were chained in the dark in conditions barely even imaginable.

Something was needed drastically as a place to house the increasing population of prisoners as even hardened English authorities perceived the draconian conditions of these hulks as only a stopgap means of housing the prisoners.

Eyes shifted to the other side of the planet to a place claimed on behalf of England more than a decade previously, and plans were raised to colonise this ‘Great Southern Land’.

Yes, lawyers played a pretty big part in the colonisation of Australia, as did America itself.