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HAGUE’S HISTORY
OF THE LAW
IN
SOUTH AUSTRALIA
1837 – 1867

Ralph M. Hague

Volume 1

xi
 nd st
Part of Southern Australia, from the 132 to the 141 degree of east longitude, (detail) from a pamphlet published
by the Colonization Commissioners in 1835 addressed to “small farmers and others” promoting the merits of
emigration to South Australia (SLSA)

xii
 Chapter 1.1
Historical Background
‘It is unique’

The Province of South Australia was created pursuant to the

provisions of an Act of the Imperial Parliament, passed in 1834.1 By
universal consent this Act has been condemned — by some as an
obscure and misshapen blunder, by others as "a document of
masterly ambiguity, if not of deep guile" — and to the pernicious
influence of its dubious drafting have been traced many of the
troubles which threatened to ruin the colony at its outset. "The chief
and original error" — reported the Select Committee of the House of
Commons which in 1841 inquired into the turbid affairs of South
Australia — "was committed in the Act itself." 2
George Fife Angas called it "a dead letter on the Statute Book, an
order of the Imperial Government to make bricks without straw"—
expressions which sufficiently show his opinion of it, although in
truth the Act was far from being a mere inert and stillborn legislative
corpse.3 Sir Charles Cooper declared it to have been the cause of the
virulent ill-feeling which racked the colony during the governorship
of Captain John Hindmarsh. The Act, he said, in the tone of mild
expostulation which was almost the severest form of disapprobation
of which he was constitutionally capable: "... was constructed in
England, whose legislators are famed for their wisdom, but when it
was opened it created surprise".4
Nearly a century later, when it came under the critical scrutiny of
the High Court, the Act was still creating surprise. "It seems very
singular to me," said Sir Samuel Griffith as he puzzled over it. "It is
unique," he was assured by Sir Josiah Symon.5
When an attempt was made to put the Foundation Act into
operation, its construction was discovered to be to the last degree
difficult and obscure. Its twenty-six sections formed a series of
trous-de-loup upon the spikes of which those whose duty it was to
expound the statutes became successively impaled. The well-known
method of dealing with loose acts of Parliament is to drive a coach
and six through them. Adopting this metaphor, it may be said that
there was for some years a steady stream of traffic through the
Foundation Act; nor was it one-way traffic only. The coaches
frequently went in different directions. They all drove into the
labyrinth at the same entrance; they did not all emerge at the same
exit. Some did not emerge at all, but went round and round in a
"circulus inextricabilis", seeking in vain a practicable way out. "An
Act of Parliament can do no wrong," loyally said Lord Holt, but
honesty compelled him to add that "it may do several things that look
pretty odd", and the Foundation Act illustrated the second half of his
dictum.
Historical Background
Why was the Act such a broad highway to doubts and
difficulties? Why was Coke's admirable precept neglected, that Acts
of Parliament should be plainly and clearly, and not cunningly and
darkly, penned? Dr Grenfell Price half-heartedly hints at a sinister
plot by Edward Gibbon Wakefield and his brother Daniel, who
prepared the first draft of the Act, deliberately to produce ambiguity,
presumably in order to give a wider scope for the unfettered
development of their schemes.6 This seems an opinion which is
unsupported by fact, unjust to the Wakefields and quite unnecessary
for the solution of the question. Successful ambiguity would be even
harder to attain than honest precision. No doubt Edward Gibbon
Wakefield was not a man to have scrupled to stoop to such a course
had he thought it would further his purposes, but his heart was set on
the success of his work, and he was too great a statesman not to
foresee the disasters which would attend a colony whose
constitutional foundations were laid in uncertainty.
The shortcomings of the Act can be fully and reasonably
explained without resorting to any such theory.
In the first place, notwithstanding the copious resources of legal
verbiage, it is almost impossible to prepare an act that will meet all
exigencies and will be impervious to attack. Every day's experience
teaches us that the most reasonable expectations may be baffled by
events which could not be anticipated. That there would be sins of
omission in the Act was inevitable. No-one in his right senses could
contend that there should have been compressed into a two-page
statute the whole of a complicated scheme for the establishment of a
colony, upon a hitherto untried system, in an unexplored wilderness
at the other side of the world. No complaint could be made that it
was a mere skeleton: the charge is that it was a skeleton which had
some bones missing altogether, and many others very poorly
articulated. In part this was due to the maltreatment it received in the
course of its passage through the Colonial Office and through
Parliament. The Bill in its final form was vastly different from the
original draft. "We struck out this provision"—wrote Wakefield—
"because it displeased somebody, altered another to conciliate
another person, and inserted a third because it embodied somebody's
crotchets." 7
The colonists were tired of waiting. "The ardour of individuals,"
James Mill soundly observed, "where anything is to be risked, is more
easily excited than upheld." Daily the ranks of prospective emigrants
were thinned by vexatious and expensive delays. The survivors were
desperate for an act at almost any cost, provided only there was left
sufficient of their original plan to enable them to hope for the
successful foundation of a colony on the lines which they proposed,
and they were as little inclined to pay attention to intricate questions
of legal or constitutional verbiage as they were to the gloomy
predictions of the Duke of Wellington, implicit in his laconic

2
 ‘It is unique’
statement that if they wanted to go to South Australia, and make
damned fools of themselves, let them.8
To cap all, the Act was the tainted offspring of a miserable and
vicious compromise between two parties whose views upon the
government of the proposed colony were as immiscible as oil and (Sir) James Stephen
water. The Colonial Office maintained that South Australia, like other (1789–1859)
An opponent of
Crown colonies, should be ruled from England, through a governor Wakefield’s scheme,
and nominated Council. Contrariwise, an essential feature of the Stephen served in the
Colonial Office as,
Wakefield theory of colonisation (the superiority of which, it was variously, counsel,
claimed, South Australia would demonstrate) was colonial assistant undersecretary
self-government, and "We are being sold to the Colonial Office!" was and undersecretary
between 1825 and 1847.
the faction cry of those who were in the habit of congregating about
the Adelphi to discuss the new principles. James Stephen ("Mr
Mother-Country", "Mr Over-Secretary Stephen", "King Stephen", as
he was variously called) has usually been taken as typifying the
Colonial Office, and he was cautious, conservative, aristocratic; the
majority of those who had actively taken up the scheme for the
founding of South Australia were radicals, whose enthusiasm Stephen
disliked, and whose political principles he distrusted.

The Adelphi was an important urban development designed by the Adam brothers in 1768 for a section of the Thames
River bank. The South Australian Commissioners’ office in the precinct was the site of much early discussion on the
colony. Once a favoured area for writers and artists, the Adelphi has all but been demolished. (SLSA)

3
Historical Background
‘The Wakefield theorists considered that, in attempting to
wring a new colony from the Colonial Office, they were
struggling with “the judgments of ignorance, the insults of
pride, and the delays of idleness'” Stephen and his satellites
believed that they were fighting a handful of revolutionary
dreamers, who desired, from reasons by no means devoid of
self-interest, to found a colony which would become a charge
upon the mother-country, and would “erect within the British
monarchy a government purely republican”.’ 9
Years of higgling took place. The Colonial Office doggedly
insisted that the government of the colony and the administration of
the law must be left in the hands of the Crown, and that no part of
the expense of the colony should fall upon England. Necessarily the
plans and schemes which were presented by the Wakefield party for
the approval of the Secretary of State became successively less and
less democratic in their nature.10

Edward Gibbon Wakefield

(1796–1862)
Wakefield is shown here
displaying the style that
may have tempted a
young heiress. His more
admirable pursuits
included his theorizing on
colonization that lead to
the formation of the South
Australian Association
and the establishment of
the Province. Drawing by
A Wivell, London, 1823.
(NLA)

4
 ‘It is unique’
Negotiations had been begun in 1831, not by Wakefield but by
Anthony Bacon, an officer who had fought at Waterloo and was
subsequently to distinguish himself in the struggle in Portugal
between Don Miguel and Pedro IV. His plan for founding an
Australian colony appears to have been modelled on the South Sea
Bubble Company, "for carrying on an Undertaking of Great
Advantage, but no one to know what it is", and Major Bacon himself
(like Arnold Bennett, who used modestly to say that the best was
good enough for him) asked only to be appointed the Governor of
the colony, with the power to make its laws and appoint its officers.
The Colonial Office frowned on this adventure, and coldly replied
that no encouragement could be given:
‘... to schemes which have for their object the extension of the
number of His Majesty's settlements abroad, and which,
whether founded in the outset by individuals, or by the
Government, are always liable to end in becoming in some way
or other a source of expense to the revenue of this country.’11
Bacon then joined the party headed by Wakefield and Robert
Gouger, and in June 1831 Gouger forwarded to Lord Howick a draft Robert Gouger
(1802–1846)
of a proposal to establish a colony by means of a chartered company, Gouger was an important
to carry out Wakefield's principles as to land and emigration. A local campaigner for the
establishment of South
elective assembly was suggested, to be established when the male Australia and publicist of
adult population reached 5,000 (later raised to 10,000). The first Wakefield’s theories. He
arrived in South Australia
Governor was to be recommended by the company and appointed by in November 1836 as the
the Crown, and, as a sop to make the request for an assembly more first Colonial Secretary
palatable, it was proposed that the Governor, until the meeting of the and Member of the
Executive Council.
Assembly, should have supreme power "unencumbered by any Appointed a Justice of the
Colonial Council to divide and weaken his responsibility". Until one Peace on 2 January 1837
he decided the first case
year after the meeting of the local Assembly, all the expenses of in the colony.
government would be borne by the company; thenceforward the
Governor would be appointed by the Crown, and the colonists
would pay for their own government.
This scheme was received with favour, but while the matter was
still under official consideration the colonisers prematurely
announced that the Government had approved of the scheme. When
an explanation was requested, Bacon admitted that the assertion of
the Government's sanction had been made to attract capital, and the
Colonial Office would not go on with what looked suspiciously like a
mere scheme for making money for its promoters.12
In July 1832 the provisional committee of the South Australian
Land Company put forward a proposal for a chartered company,
with a capital of £500,000. The company wanted power to constitute
courts and to make laws for the government of the colony, until the
population reached 50,000, when an assembly was to be established,
under a governor nominated by the Crown. For revenue purposes a
perpetual tax of 6d per acre would be reserved upon every original
sale of land.13
5
Historical Background
James Stephen had strong objections. He disliked the system of
chartered companies. Adam Smith had said that "the government of
an exclusive company of merchants is, perhaps, the worst of all
governments for any country whatever", and Stephen agreed with
him. He thought the scheme "wild and impracticable", the proposals
far too wide. There was no security for the proper use by the
company of its powers of legislation, and the requests of the
promoters showed "either a remarkable heedlessness or a singular
degree of confidence". In his view the proper form of government of
such a colony must be an official council, to be superseded later,
perhaps, by an assembly, but not until the colony was firmly and
successfully established. As for the power to erect courts, that could
not possibly be granted; "the administration of justice ought to be
studiously reserved to His Majesty".14
Upon these objections being communicated, the company
immediately abandoned the obnoxious claims, "reserving only the
principles of submitting all grants of land to a sale, the application of
the proceeds of sale to the furtherance of emigration, and the
eventual privilege of a legislative assembly". The reply was final:
‘The very readiness with which the objectionable points have
been abandoned, contrasted with their prominent appearance
in the plan as fundamental principles, unavoidably induces in
the mind of the Secretary of State a serious misgiving as to the
maturity of their knowledge and counsels on the very
th
Lord Stanley (14 Earl of important subject which they have submitted to his
Derby)
(1799–1869)
consideration ... It does not appear to His Lordship that any
Edward George Geoffrey advantage will arise from continuing the correspondence on
Smith Stanley’s long
political career as a this subject.’ 15
Conservative saw him
serve as Prime Minister It was not until Lord Stanley became Secretary of State in 1833
three times. Before this he that the proposals for a joint stock company could be renewed, with
was Colonial Secretary
from 1833 to 1834 and modified provisions as to the government of the colony. All the
from 1841 to 1845. (NLA) public officers were to be appointed by the Crown, and it now
appeared "highly desirable that the whole power and responsibility of
the Government should devolve upon the Governor until the Colony
shall be thought sufficiently advanced to receive the grant of a
legislative assembly". Of the subscribed capital of £500,000, one half
was to be employed in the purchase of lands and the other half used
as a fund for the government of the colony and the construction of
public works, the advances made to the colony to be considered a
public debt. This plan the Colonial Office would not consider unless
the company agreed to purchase the land, whether they settled it or
not, by fixed instalments to be paid within a limited period—a
demand with which the company could not comply.16
In November 1833 the South Australian Association was formed,
and their proposals were laid before the Colonial Office in February
1834. The powers they asked were much less extensive than those of

6
 ‘It is unique’
previous schemes. A corporation of trustees, the South Australian
Commission, was to manage the economic side of the scheme and
have power to make laws, constitute courts and appoint judges and
officers, but their laws were to be placed before the Colonial Office
for approval before being transmitted to the colony. The Crown
would appoint the first Commissioners and vacancies would be filled
by the remainder of the Commissioners, subject to the Crown's
approval.17
Stanley replied that, unless the Government of the colony was
left entirely in the hands of the Crown until it was able to govern
itself, he would decline to proceed any further.18 "He would only
allow the economic side of Wakefield's system to be based on the
centralised administration of a Crown Colony."19 All hope of a
chartered colony had therefore to be abandoned. "It was clear to us,"
said Wakefield, "that the part of our South Australian plan to which
the Colonial Office most objected was a provision for bestowing on
the colonists a considerable amount of local self-government. As we
could not move an inch without the sanction of that Office, we now
resolved to abandon the political part of our scheme, in the hope of
being able to realise the economical part."20
Although the Wakefield party grudgingly consented to cede the
power of government to the Colonial Office, it remained to be
decided how the expenses of government were to be met. Provision
for this had been made without difficulty in the schemes for a
chartered company, but now the only means of obtaining money to
establish and carry on the government of the colony was to borrow
on the security of the land sales and the future revenue of the colony,
for the Colonial Office flatly refused to give any financial assistance.
Upon this point a deadlock was imminent:
‘Stanley, on the one hand, would not move until sufficient
money was subscribed and guaranteed to carry on the colonial
government for ten years, so as to prevent all expense to the
mother-country. The Association, on the other hand, could not
promise to raise the money until they knew what kind of an
Act of Parliament they were going to get.’ 21
But in June 1834 Stanley was succeeded at the Colonial Office by
Thomas Spring Rice, with whom terms of compromise were Thomas Spring-Rice
(1790–1866)
arranged. A Bill purporting to embody these terms was introduced A Whig politician, Spring-
into the House of Commons and, after a hazardous passage through Rice was only Colonial
Secretary for a few
Parliament, it became law on 15th August 1834. months but spent over
So far the attitude of the Colonial Office had been clear and four years as Chancellor
of the Exchequer up to
definite - the government of the colony must be left to the Crown. 1839.
Upon this point it appeared to everyone that the Wakefield party,
whilst retaining their principles as to land and emigration, had been
forced to give way. The Foundation Act, however, proved to have
quite unexpected qualities, and the Secretary of State gradually
discovered that, owing to the language used in the Act, he had
7
Historical Background
retained merely the shadow of authority while the substance had
escaped him and had passed into the hands of the South Australian
Commissioners.

Following 8 pages – The Foundation Act (4 & 5 Wm IV c.95)

8
 Chapter 1.2
Historical Background
‘…that part of Australia…’

The Foundation Act can be conveniently analysed under the

following heads:
A. The system of colonisation.
B. The method of government.
C. The self-supporting system.1
A. The System of Colonisation
(1) Three or more fit persons, to be styled the "Colonization
Commissioners for South Australia", were to be appointed by
the Crown to carry out the provisions of the Act.

Heading to information for prospective emigrants to South Australia published by the Commission in December 1835.
(SLSA)

(2) The Commissioners were empowered:

(a) To declare all the lands of the province (except portions
reserved for roads and footpaths) to be public lands
open to purchase by British subjects.
(b) To make orders and regulations for the survey and sale
of such lands at such price as they deemed sufficient;
provided that no part of the public lands should be sold
except in public for ready money, either by auction or
otherwise as the Commissioners should determine, but in
no case and at no time for a lower price than 12s per
acre.
(c) To let the common of pasturage of unsold portions of
land for any period not exceeding three years.
Historical Background
(d) To employ the whole of the purchase money or rent
received as an "Emigration Fund" for conducting the
emigration of poor persons from Great Britain and
Ireland to the province.
(e) To appoint officers. They were authorised:
(i) By section IX "to appoint such person or
persons as they may think fit Treasurer, Assistant
Surveyors, and other officers, for carrying this Act into
execution respecting the disposal of the said Public
Lands and the Purchase Money thereof".
(ii) By section XIII to appoint "a Secretary,
Treasurer, and all such clerks, messengers and officers as
they shall think fit".
By section VIII the King was empowered to appoint a
Commissioner of Public Lands, to be resident in the
colony and to act under the orders of the
Commissioners.
The salaries of the officers appointed under the Act
were to be fixed by the Treasury.
(f) To delegate to the Colonial Commissioner or other
officers such of the powers and authorities with respect to the
disposal of the public lands of the province as they thought fit.
(3) At least once a year the Commissioners were to submit to
the Secretary of State for the colonies a "full and detailed
report" of their proceedings to be laid before Parliament.

B. The Method of Government

(1) By section I every person inhabiting or residing in the
province "shall be free and shall not be subject to or bound
by any laws orders statutes or constitutions which have
been heretofore made or which hereafter shall be made
ordered or enacted by for or as the laws orders statutes or
constitutions of any other part of Australia, but shall be
subject to and bound to obey such laws orders statutes and
constitutions as shall from time to time, in the manner
hereinafter directed, be made ordered and enacted for the
government of His Majesty's Province of South Australia".
(2) Section II empowered the King, with the advice of the
Privy Council, "to make ordain, and, subject to such
conditions and restrictions as to him shall seem meet, to
authorise and empower any one or more persons" resident
in the province:
(a) to make, ordain and establish all such laws, institutions
or ordinances; and
(b) to constitute such courts or appoint such officers; and
(c) to impose and levy such rates, duties and taxes "as may
be necessary for the peace order and good government
of the Province".

18
 ‘… that part of Australia …’
All such ordinances, laws and orders were to be laid before the
King in Council and were not to be contrary or repugnant to
any of the provisions of the Act.
(3) A constitution of local government was to be established when
the population reached 50,000.
(4) No convicts were at any time or under any circumstances to be
transported to the province.

Robert Dighton’s A Fleet of Transports under Convoy depicts convicts at Newgate Gaol. No convicts
were transported to South Australia but Newgate Gaol figures in the colony’s history. This is where an
imprisoned Edward Gibbon Wakefield formulated his system of colonisation and wrote A Sketch of a
Proposal for Colonizing Australasia and A Letter from Sydney. (NLA)

C. The Self-Supporting Principle

(1) Until the sale of lands, the Commissioners were empowered to
borrow at interest not exceeding ten per cent per annum up to
£50,000 for the sole purpose of defraying the costs of the
passage of poor emigrants by issuing bonds to be termed
"South Australian Public Lands Securities".
All sums borrowed "shall be borrowed on the credit of
and be deemed a charge upon the whole of the Fund" to be
received as purchase moneys and rent; and the Commissioners
might appropriate moneys from the sale of public lands to the
payment of interest on, or repayment of, any sums borrowed.
(2) To defray the necessary costs, charges and expenses of
founding the colony and providing for its government and the

19
Historical Background

expenses of administration, the Commissioners were

empowered to borrow up to £200,000 at interest not
exceeding ten per cent by issuing bonds to be termed "South
Australian Colonial Revenue Securities". The sums so
borrowed were to be charged upon the ordinary revenue or
produce of all rates, duties and taxes to be levied and collected
in the colony and were deemed to be a public debt owing by
the province to the holders of the bonds.
(3) The lands of the colony and the moneys obtained by their sale
were to be a collateral security for the payment of the colonial
debt.
(4) Out of the moneys borrowed on the security of the "South
Australian Colonial Revenue Securities", £20,000 was to be
invested in the names of trustees to be appointed by the
Crown; and this sum was to be at the disposal of the Secretary
of State for the colonies as a guarantee against the government
incurring any expense.
(5) The powers of the Commissioners were not to commence
(except for the purpose of raising money) until the guarantee
fund of £20,000 had been duly invested and £35,000 had been
subscribed for the purchase of lands.

20
 ‘… that part of Australia …’

King William IV and Queen Adelaide (ACCA)

21
Chapter 1.3
Historical Background
Quarter deck government

Father Paul Sarpi read the Scriptures with such care that, it being his
custom to draw a line under passages which he considered important,
there was not a single word in his New Testament but was
underlined. If any querulous person took a pen and set out to
underline all the passages in the Foundation Act which caused
trouble, his scoring might not be so meticulously thorough, but there
would be few sections left unmarked. Its creators might well have
chanted in unison, "We have done those things which we ought not
to have done, and we have left undone those things which we ought
to have done." Difficulties arose both in providing for subjects upon
which the Act was silent and in endeavouring to ascertain what it
meant when it spoke. Several writers have investigated the economic
and financial deficiencies of the Act, and it is only proposed here to
mention some of the legal and constitutional difficulties to which it
gave rise.
Officialdom was puzzled from the outset. How was the province
to be created? There was no precedent for the establishment of a
colony in the manner indicated by the Act. Section I (in
ungrammatical language) empowered the King, with the advice of the
Privy Council, "to erect and establish within the boundaries
prescribed one or more provinces" and to fix the respective
boundaries of such provinces. Nothing was said about the instrument
by which the provinces were to be created. Parliament had usurped
the prerogative of the Crown by authorising the King to do that
which he could have done, by a Commission under the Great Seal,
without Parliamentary assistance.1 Long consideration by the law
officers was necessary before the decision was reached that the
colony should be established by the issue of Letters Patent, defining
its boundaries.2
Then how many provinces were there to be and how were the
boundaries to be fixed? No-one had any adequate knowledge of the
country, and the fixing of boundaries could be nothing more than
guesswork. In the House of Commons one member had expressed
the opinion that a "cabbage garden" or at the most sixty or one
hundred square miles of territory would be quite enough "for these
gentlemen to play their pranks in", and the Colonial Office were
disposed to restrict the area to be granted for the experiment. The
Commissioners hastened to obtain the opinion of Sir William Follett
(Solicitor-General in 1835 and afterwards Attorney-General) that
under the Act the provinces must be proclaimed once for all and that
the government had no power to erect only a small portion of the
territory into a province, leaving the remainder in abeyance to be
 Quarter deck government
added at a future time or made into another province, if the colony
proved a success.3
Next, a legislature to be nominated by the Crown was to be
established. Should it be official, unofficial or a mixture of both? And
if official, what officers were to be members? The Commissioners
wisely recommended that, as the Council was to conform to the
instructions of the Colonial Office, no officers of the Commissioners
should be members, so as to prevent any clashing, but it was
eventually provided by an Order in Council on 23 February 1936 that
the Council should consist of:
(1) The Governor or officer administering the government.
(2) The Judge.
(3) The Colonial Secretary.
(4) The Advocate-General.
(5) The Resident Commissioner.
Any three of them (of whom the Governor should be one) could
make laws and ordinances, appoint officers and impose and levy
rates, duties and taxes. All laws were to be introduced into the
Council by the Governor and transmitted for the approval of the
Crown at home.4
The following instructions were prescribed for the conduct of
business by the Council:
(1) Each law was to be confined to a single subject matter.
(2) A law once disallowed was not to be re-enacted without leave.
(3) No law was to continue in force for less than two years, except
in cases of necessity.
(4) No revenue law was to be lightened without leave.
(5) Acts of an extraordinary nature, prejudicial to the prerogative
or the property of the subject, affecting trade or shipping, or of
a private nature, were to be reserved for the consent of the
Crown.
In the exercise of the prerogative of mercy the Judge was to
report upon the trial of everyone sentenced to death. His report was
to be considered at the next Council and the advice of the members
taken but the Governor was finally to decide on his own deliberate
judgment whether the sentence should be executed.5
Again, the method by which the officers of the colony were to be
appointed worried the law officers for more than three months,
before they finally advised that the Governor should be appointed,
like the governors of other Crown colonies, by Letters Patent, and
the other officers by an Order in Council. This latter mode of
appointment they described as "very inconvenient and so far as we
know without precedent" and they recommended that a bill should
be introduced to amend the Act on this point.6
These questions were mainly matters of legal forms; there were
difficulties far more serious to be faced. The powers given to the
Commissioners by the Act were very large, but when the Act was

23
Historical Background
examined there was a total absence of any provision to secure the due
exercise of those powers.
‘So large an administrative power in the discharge of so
important a public trust ought not to have been confided to
any other hands than those of the recognised authorities of the
country. To devolve them upon a Board, the members of
which were to be appointed and removed at the pleasure of the
Crown, but over whose proceedings the responsible Ministers
of the Crown could exercise no adequate control, was in effect
to relieve the Government from its proper responsibility, and
transfer it to persons of whose fitness for the office Parliament
could take no assurance beyond the judgment of the Ministry
Robert Torrens
for the time being, though the public faith was, to a great
(1780-1864) extent, implicated in their acts, and pledged to their
Economist, politician,
soldier and newspaper engagements.’7
proprietor, Torrens was
an early promoter of When Colonel Robert Torrens went to the Colonial Office to see
schemes for the Hay, "the ancient foe to South Australia", with a list of those whom it
colonization of South
Australia and emigration was proposed should be appointed Commissioners, Hay very
to colonies generally. He naturally said that it would be necessary to ascertain in what way the
became Chairman of the
Colonization Commissioners could be held responsible for the due execution of
Commissioners in 1835. their duties. Supposing they suddenly resigned, for instance, the
(SLSA)
colony would be left stranded and the Government would have to
come to the rescue. To the enthusiastic colonists Hay's sensible
objections seemed merely obstructive. Further consideration by the
Colonial Office opened up another question, and on 16 February
1835 Hay wrote to Colonel Torrens:
‘Lord Aberdeen considers it to be an essential preliminary to
the further discussion of the subject, that it should be distinctly
understood whether the proposed Commissioners are or are
Robert William Hay not to be accountants to the Crown, and personally
(1786-1861)
Undersecretary at the responsible for the receipt and application of the money to
Colonial Office from 1825
to 1836.
arise from the sale of lands in the proposed colony.’
Although there was no express direction to be found in the Act,
he presumed that:
‘... all the money which they shall receive as Commissioners
must be considered as part of the King's revenue, and that the
Commissioners, not being a body corporate, must be regarded
only as His Majesty's agents (though appointed under the
authority of Parliament) for the management, receipt and
expenditure of that part of the revenue of the Crown.’
He thought the matter of "such essential importance, and involved in
such obscurity, as to require a solution of the question on the highest
accessible authority before the discussion advances further".8
24
 Quarter deck government
Colonel Torrens submitted the matter to J.W. Freshfield
(afterwards solicitor to the Commissioners), who advised:
‘I have no hesitation in stating it as my opinion that the
Commissioners are not to be accountants to the Crown, nor
responsible for the receipt and application of the money made
subject to their control by the Act of Parliament; of course,
they would be liable for any personal corruption in the exercise
of their powers, and for the application of the money to
purposes not within the authority of the Act, but that liability is
common to every person accepting a trust.’ 9
This opinion was forwarded to the Colonial Office and sent on to
the Lords of the Treasury. There the matter slumbered until the
colonists became impatient, and Robert Gouger went to see Sir
Thomas Fremantle at the Treasury. An entry in John Brown's journal John Brown
describes the interview and shows how little attention the (1801–1879)
Government officials had given to the South Australian scheme. A businessman and
campaigner for the
Gouger complained of the delay and said that the question was a colonization of South
simple one — where was the responsibility to rest? Sir Thomas Australia, Brown became
the first Emigration Officer
Fremantle said that: and one of those who
opposed Hindmarsh. He
‘... he concluded that the Commissioners here would be as was, variously, on
Adelaide’s first municipal
necessarily responsible for the loan and other monies they council, a mine owner, the
might raise as the Directors of any Land Company. And upon editor of the Southern
Australian and the
Gouger expressing astonishment at his confounding two manager of an insurance
company.
offices so wholly dissimilar, it appeared that he had actually
viewed the colony in the light of a land speculation for the
benefit of individuals under the sanction of a Chater [sic].
Gouger then begged that as this view was wholly erroneous, he
would allow him to wait while he sent for an Act of Parliament
that the mistake might be at once rectified, and the impression
removed. Fremantle accordingly sent, and confessed that he
had not viewed it as a public and government Commission
before.’ 10
Eventually the Treasury confirmed Freshfield's opinion and
agreed that:
‘... so long as the powers in the South Australian
Commissioners by the Act 4 & 5 Wm IV c.95 in regard to the
moneys to be raised and applied under its provisions are duly
exercised, and not exceeded by the Commissioners, they will
not be personally responsible or accountable to the Crown for
those moneys.’11
This decision was a surprise to the Colonial Office. Worse still
was the gradual realisation that not only were the Commissioners free
from any liability to account to the Crown for the expenditure of
25
Historical Background
moneys coming to their hands but that they had complete and sole
control over those moneys.
For some time neither the Commissioners nor the Colonial
Office saw the full significance of the provisions of the Act. The
Colonial Office believed that the Commissioners were limited to
dealing with sales of land and emigration, while all questions of
government remained under the direction of the Secretary of State.
The only difference between the mode of government of South
Australia and any other Crown colony, they thought, was that instead
of the moneys required for the expenses of government being paid
by the Treasury they would be drawn (until the colony was able to
support itself) from the fund which the Commissioners were to raise,
the Colonial Office having control of this revenue fund.
Most of the colonists who troubled themselves about
constitutional matters probably came to South Australia holding this
opinion. In the first number of The Register, for instance, which was
published in June 1836 and contained information about the colony
for the instruction of emigrants, it was said that:
‘South Australia is to be governed precisely as the other
colonies of the Crown, not possessing a legislative assembly,
that is, by a Governor appointed by the King, assisted by a
Legislative Council’;
and that the powers of the Governor would be the same as those of
other governors with the exception of the disposal of public lands.12
(Sir) Rowland Hill At first the Commissioners, who were themselves divided in
(1795–1879)
Hill served as Secretary opinion about the construction of the Act, acquiesced in this view
for the South Australian and were subservient to the Colonial Office. By the end of 1835 it
Commission from 1834 to
1839 but is best known for had begun to dawn on them that they had, perhaps, larger powers
his reform of the postal than they had expected. Brown noted in his journal on 24 November
system and invention of
stamps. (NPG) 1835:
‘A long discussion with the Governor, Mr Hill, Fisher,
Stephens, Kingston and myself about writing to the Colonial
Office to request their sanction to the Commissioners
purchasing a vessel to accompany the first expedition as a
small surveying vessel. The propriety of establishing a
Lord Glenelg precedent for submitting all expenses to the permission of the
(1778–1866)
Charles Grant was Colonial Office was the question—in fact, whether the
Secretary of State from Commissioners are to have the direction of Government
April 1835 to February
1839. Despite success expenditure or the Office. The letter, tho' written by the
with the abolition of
slavery in the West Indies
Governor, was withheld until the Board considered it again.’
his performance as
Colonial Secretary was Here the point was directly raised, but the Commissioners did not
often criticised, take the matter up with the Colonial Office for some months.
particularly regarding
Canada, and he was
In January 1836 Lord Glenelg said he would consent to the
forced to resign from proclamation of the colony provided three things at least were
office.
embodied in an amending act:
26
 Quarter deck government
(1) Regulations for the protection of the Aborigines, whose
existence had been completely overlooked in the Foundation
Act.
(2) Provision for the appointment of officers in a simpler and
more convenient way.
(3) The reservation to the Treasury of power to apply towards the
civil government and administration of justice so much of the
proceeds of sale of land as might be made necessary by the
deficiency of other public resources.13
At this stage the Colonial Office still had no doubt that the
Commissioners were limited to controlling land and emigration. Lord
Glenelg did not ask for an act giving the Crown control of the
revenue fund because he assumed that the Crown had the power to
dispose of it: he only wanted power to supplement it from the land
fund if it proved insufficient.
The last of his three points, however, caused consternation
among the Wakefield party, to whom the land fund was sacrosanct.
Torrens said that unless the Colonial Office abandoned this demand Sir George Grey
the colony was ended. He interviewed Sir George Grey and told him (1799-1882)
A Whig politician who, in
that any alteration in the appropriation of the land fund would bring 1836, was Colonial under-
about the immediate resignation of the Commissioners and the whole secretary to Spring Rice.
14 He was to become
scheme would collapse. Surprised at this strong opposition, the Colonial Secretary from
Colonial Office allowed the matter of an amending act to drop. 1854 to 1855 and also
served as the Home
It was not until June 1836 that the Commissioners definitely Secretary. In that post he
asserted that the control of the funds raised pursuant to the Act carried the Bill that
brought an end to
(except so far as related to the salaries of the officers, which were transportation. (RVPL)
fixed by the Treasury) was placed in their hands entirely. The claim
was referred to the law officers (Sir John Campbell and Sir R.M.
Rolfe), and Lord Glenelg was startled to find that their opinion was
that the disposition of the fund to be raised under the 18th section of
the Act to provide for the expenses of government rested with the
Commissioners.
‘The Commissioners will be liable for any wilful misapplication
of the money; but so long as they bona fide apply it for the
purposes indicated in the 18th section, they appear to us to
have a discretion as to its application.’ 15
This unforeseen interpretation of the Act placed the Colonial
Office in an extremely awkward position.16 Lord Glenelg wrote that
he could only anticipate "very great confusion and difficulty from the
anomalous system which has been introduced into this branch of the
public business".17
Two courses were open to him:
(1) To have an amending act passed to give the Colonial Office
control of the fund for the expenses of government.
(2) To acquiesce in the complete control of the Commissioners
and throw all the responsibility on them.

27
Historical Background
To have taken the first course would have involved a complete
reconstruction of the Act. Out of the revenue fund had to be paid
not only the governmental expenses but the preliminary costs of land
sales and surveys, because by section 6 of the Act the whole of the
money derived from the sale of lands had to be devoted to
emigration. The Colonial Office did not want to take over the
supervision of these expenses, for the division of authority would
then simply be reversed and the Commissioners would have to
embark upon enterprises, without control of the funds from which
the expenses of them were to come. Further, thousands of pounds
had been invested upon the basis of the scheme as set out in the
original act. Seven vessels had sailed with over two hundred
emigrants, and it was impossible to hold up emigration while the
question was discussed in Parliament. Any step which might delay
further progress or cast doubt upon the stability of the scheme would
be ruinous. It is not surprising that Lord Glenelg shrank from such a
course, and it is only fair to take it that he acted as much from a
genuine belief that the best thing to be done in the emergency was to
relinquish full control to the Commissioners, as from any
Pontius-Pilate-like desire to shirk responsibility and wash his hands
of the whole matter.
View on the Glenelg plains
ca. 1837 by J.A. Thomas
(NLA)

The Commissioners suggested it was desirable to have the point

definitely decided by an amending act, but they received no reply.18
The Colonial Office treated the whole matter as settled by the
opinion of the law officers. The Commissioners became the real
rulers of the colony and thus "an unbusinesslike Board gained the
complete control of the complicated scheme of an almost

28
 Quarter deck government
unworkable Act of Parliament". All the dispatches and enactments
which the Governor sent home to the Colonial Office were passed
on to the Commissioners for their approval or condemnation. The
only control which the Colonial Office retained was that the
Commissioners were the nominees of the Secretary of State and
might be removed by him.
Although the Colonial Office cannot be blamed, perhaps, for the
course they took, there was no excuse for their failure to notify the
Governor of the changed circumstances. James Hurtle Fisher, the
Resident Commissioner, was advised of it by the Commissioners in
August 1836, but the Governor sailed in the Buffalo firmly believing,
as the Colonial Office had believed, that on the administrative side he
was supreme and that he had, as representative of the Crown,
complete control of this branch of affairs in the colony. It was not
until March 1838 that Hindmarsh was informed of the volte-face (Sir) James Hurtle Fisher
which the Colonial Office had made; and then he only discovered it (1790-1875)
19 A lawyer who became the
from Fisher. first Resident
The worst error of the Foundation Act was the division of Commissioner, Fisher’s
tenure of the position
authority which it created. Edward Gibbon Wakefield said later that ended with the arrival of
"according to the manner, I will not say system, in which South Governor Gawler in 1838.
He returned to the bar
Australia has been governed, every body seems to have been fully and in 1840 became the
20
relieved of responsibility to any body"; and the Select Committee of first mayor of Adelaide
and subsequently held
the House of Commons reported in 1841: various political offices
until his retirement in
‘In endeavouring to convey the necessary powers to the 1865. (SLSA)
Commissioners without trespassing upon the Prerogative of
the Crown, the Act created an inconvenient division of
authority, and the powers of Administration were so parted
between the two, that they could not be effectually exercised
by either. The raising of a Revenue by means of Rates, Taxes
and Duties, the appropriation of the Revenue so raised, and
the general administration of the Government, were vested by
the Act in a Local Board, appointed by the Crown, and subject
to the authority of the Queen in Council; whilst the
administration, not of the Land Fund only, but of the Fund
out of which all the necessary expenses of Government for
Surveys, Salaries, Police, Public Works &c were to be defrayed,
was confided in England to the Commissioners, and in the
Colony to a Commissioner, appointed indeed by the Crown,
but acting only under their instructions, and subject only to
their authority. Thus whilst one department was made
responsible for the payment of the Colonial Debt, another had
the management of the Fund out of which it was to be paid;
and whilst one was responsible for conducting the Public
Service, the money by means of which it was to be conducted
was placed under the control of another. If the Revenues of

29
Historical Background
the Colony were mismanaged by the Local Government, the
Commissioners could not satisfy the Public Creditor; if the
Funds raised on the security of those Revenues were
mismanaged by the Commissioners, the Government could
not conduct the Public Service. Nor is it to be forgotten, that
the evils to be apprehended from the conflict of authorities so
ill-adjusted, which must be great in any case, were greatly
aggravated in this by the distance at which they were exercised,
and the length of time before a difficulty arising in South
Australia could be removed by a fresh instruction from
England.’ 21
The Commissioners afterwards pleaded that the Foundation Act
was not sufficiently explicit to enable them, in their instructions to
the Resident Commissioner, to draw any precise line between the
limits of the authority of the Governor on the one hand and of the
Resident Commissioner on the other, but the fact that the Act was
not sufficiently distinct was only an additional reason why they
should have taken care to define those limits which the Act had left
obscure.
In this state of affairs the only hope for success in the colony lay
in the selection of able officers who would work together amicably.
Dr Price has pointed out the difficulties with which the
Commissioners were faced in making the appointments—their fields
Charles Mann
(1799–1860) of choice limited to men prepared to emigrate, willing to accept
A campaigner for moderate salaries and able to maintain themselves at their own
colonization and the first
South Australian expense for a considerable time; the services of those who had
Advocate General. After assisted in the colonisation movement to be rewarded; patronage to
clashing with Hindmarsh
he resigned on 13
be dispensed to men with money who could buy land or bonds.
November 1837. He "Qualifications, on the whole, were measured by bank balances rather
continued to work in law,
both in private practice
than ability." The various official positions were filled only after
and in a number of judicial months of jealous scheming which laid the foundation for quarrels in
offices. He was also co- the colony. Captain John Hindmarsh was appointed Governor; and
editor of the Southern
Australian with Brown. James Hurtle Fisher, a London solicitor, Resident Commissioner. Of
the other officers it is necessary to mention only Charles Mann
(Advocate-General, Crown Solicitor and Public Prosecutor, at a
salary of £300 a year), Robert Gouger (Colonial Secretary), Osmond
Osmond Gilles
Gilles (Colonial Treasurer) and John Brown (Emigration Agent).
(1788-1866) The division of authority in the colony created by the Foundation
The first Colonial Act was aggravated by the political prejudices of the officers. The
Treasurer (1836 to 1839)
contrasted his failings as Governor was an out-and-out Tory. Most of the officers were
an official with his middle-class liberals and radicals of varying shades of opinion. Brown
success as a
businessman. Gilles was and Gilles were the most violent; they suspected Mann, who was at
hot tempered but also a first the most moderate of the liberals, of being tainted with a tinge
religious man known for
his generosity. of Toryism. In between these extremes fell most of the others. Gilles,
during his term as Colonial Treasurer, even went to the ridiculous
length of attempting to have the Royal Arms removed from

30
 Quarter deck government
22
government proclamations. Stevenson, the Governor's secretary,
reported to the Colonial Office, with his usual asperity:
‘Poor Gilles is a mere mischievous fool, whose propensity to
intoxication and whose conduct when in that state makes it
perfectly impossible for any gentleman to have the slightest (Sir) John Morphett
(1809–1892)
connection with him. His common expression is, 'I have the From 1834 Morphett was
support of Wakefield and Torrens, and care not a damn for any an advocate for the
province and he became
bugger of the Colonial Office.'" 23 an influential landowner
and politician. One of four
Though holding the most extreme views, the Colonial Treasurer was non-official members of
too erratic to be dangerous, and after Gilles had by his conduct the Legislative Council in
1841 his political career
antagonised the Resident Commissioner and his supporters, continued until 1873.
Hindmarsh turned him into a useful ally.
Long before the Governor sailed it was obvious that he was
going to meet with decided opposition in the colony. Hindmarsh's
energy, his splendid naval record, his frank and open appearance, had Sir) George Strickland
made a good impression at first and offset the disadvantage that he Kingston
(1807–1880)
was not quite well enough known to the public to be an The Deputy-Surveyor-
advertisement for the colony.24 But within a few months he had General to the new
colony. Kingston also
managed to offend both the Commissioners and most of the served as town surveyor
prominent colonists. Angas had advanced him considerable sums of and colonial architect. His
political career began in
money and he thus became tied to the support of the South the Legislative Council in
Australian Company against the Commissioners. He cared little about 1851 and continued until
1880. “Paddy” Kingston is
the economic details of the Wakefield plan and incurred the remembered as the
displeasure of a compact clique of its sponsors—Fisher, Brown, the “father” of South
Morphetts, George Strickland Kingston, Mann, Gilbert, Dr Wright. Australia’s constitution
and the father of Charles
Hindmarsh thought them a set of unpleasant radicals who needed to Cameron Kingston who
be disciplined; they resented what they termed "quarter-deck was a major contributor to
Australian federation and
government" and were suspicious that the Governor was trying to the federal constitution.
obtain complete power for the Colonial Office with himself as its
representative. By November 1835 Brown, Morphett, Kingston and
Rowland Hill were discussing plans for the formation of a society in
the colony to oppose and check Hindmarsh if he acted "with greater Dr Edward Wright
promptitude decision and activity than may be compatible with (c1788–1859)
A failed applicant for the
sound and good judgment" or "from impulse or partiality, that may position of the province’s
occasion differences of opinion, and possibly so that the colony may first medical officer,
Wright, nevertheless,
not be always benefitted", and by the end of the year Brown was came to the colony in
expressing his conviction that Hindmarsh would not last long as September 1836 to
practice. His career was a
Governor—"Indeed I should feel some anxiety about our future chequered one due to his
progress if I thought otherwise."25 wayward character and
bouts of drunkenness and
Hindmarsh was not unaware of this opposition. "I began to at one time he was tried
perceive on the part of the Commissioners," he said, "a rising for murder.
jealousy which manifested itself in a variety of ways."26 He said, after
his recall, that he would have resigned had not Torrens persuaded
him that the Commissioners' duties were only as to land, emigration
and the raising of money, and that the Commissioners would have
nothing to do with the Government of the colony, which "once
established would be on precisely the same footing as the
31
Historical Background
government of any other colony".27 The Governor consoled himself,
therefore, with the belief that when he got to South Australia he
would be able to rule with a free hand and be as completely master
there as he had been of his ships of war. He took pains, however, to
conciliate Gouger, in whom he saw a dangerous rival to his authority
in the colony, and shortly before the Buffalo sailed Brown wrote
disgustedly of Gouger:
‘I find that he is all thick with Hindmarsh again, and that
Hindmarsh abuses Torrens, Wakefield and Hill in no measured
terms. What is perhaps more extraordinary, Gouger actually
thinks that Hindmarsh is right, and the Commissioners wrong!
So fatally prone is he to new friendships and new views. In
6 months he is quite as likely to head a party to get rid of the
Governor. At present, however, the Governor and the
Thomas Gilbert Colonial Office are all in all. One melancholy reflection follows
(c1787–1873)
Gilbert arrived in South
all this but too closely. How is this colony to succeed with
Australia in 1836 to take the these people as leaders?’ 28
position of Colonial
Storekeeper. He later
became the first
Postmaster. (SLSA)

32
 Quarter deck government

John Hill was the boatswain of the Buffalo and hoisted the flag on Proclamation Day. The Buffalo was launched in
1813 as a merchant ship named the Hindustan. Acquired and renamed by the Royal Navy it served until it was
wrecked at Mercury Bay in New Zealand in 1840. (SLSA)

33