A CRACKER-JACK OPINION – NO SWEAT

‘ACTUAL OCCUPATION’ OXFORD ENGLISH DICTIONARY‘EXISTING IN FACT

‘During the period 1763-1793 the character of the Second British Empire was being formed…the empire of commerce in the Indian and Pacific Oceans’. Vincent T. Harlow, The Founding of the Second British Empire 1763-1793, Vol. 2 Longmans, 1963

1771 – England: Lieutenant James Cook RN returned to England from the Endeavour voyage (1786-1771). He reported the island continent named New Holland by Dutch explorers, known now as Australia, was inhabited.

‘The natives of the country…live in Tranquility which is not disturb’d by the inequality of condition’. James Cook, Endeavour Journal

According eighteenth century international law only if territory was without inhabitants could it be claimed by another nation and taken over by citizens of that other nation.

The whole claim of sovereignty and ownership on the basis of terra nullius was manifestly based on a misreading of Australian circumstance, not that this prevented [Arthur] Phillip from hoisting the Union Jack in 1788 and expropriating the owners of Sydney Cove. Stuart Mac Intyre, A Concise History of Australia, Melbourne University Press, 2004  

England’s lawyers burned midnight oil as they sought to establish legal grounds that would allow Britain take ‘effective occupation’ from those in ‘actual occupation’ of New Holland.

To that end they studied the tortuous twists and turns of English law, laid down in the ‘Commentaries’ of Sir William Blackstone England’s leading jurist of that time.

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It was however Captain Cook’s poetic musings ‘Earth and Sea of its accord furnished them with all the things necessary for life’, when allied to Swiss born Anglophile Eremich Vattel’s Law of Nations, that provided Britain with NO SWEAT as ‘moral and legal justification’ for wresting New Holland; ‘the fifth great continental division of the earth’ from its Sovereign Peoples.

In 1760 an English translation of Vattel’s Law of Nations, a treatise held to be ‘full of inconsistencies and contradictions’, had been published anonymously.

Vattel’s ideas had a profound an effect on Britain’s invasion of New Holland (Australia) in 1788  that followed almost seamlessly from  America’s Revolutionary War of Independence (1775-1783) and Britain’s loss of America.

‘In pamphlet after pamphlet the American writers cited…Vattel on the laws of nature and nations and on the principals of civil government’. Bernard Bailyn, Forward, Origins of the American Revolution, Belknap Press, Harvard University, 1967

Thomas Jefferson,  cousins John and Samuel Adams, were prominent among the pamphleteers as was Common Sense the work of Englishman Thomas Paine.  

‘Study of the pamphlets confirmed my old-fashioned view that the America Revolution was above all else an ideological, constitutional, political struggle’. Bailyn. op. cit.

James Otis a brilliant, though somewhat erratic Boston lawyer, is credited with coining ‘no taxation without representation’ the catch-cry of George Washington’s Patriot Revolutionaries.

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Post the Seven Years’ War (1756-1763) Patriot America’s call for independence from Britain centred on opposition to a plethora of taxes known collectively as the [Charles] Townshend Acts.

Stamp and Navigation Acts as well as a miscellany of nit-picking taxes on tea, sugar, glass, paint nails etc. fuelled the fire of revolution.

The colonists were not as one. Patriots led by General George Washington sought independence from Britain. Loyalists fought for Britain and King George III.

Loyalist and Patriot cited the same luminaries and sang from the same hymn sheets.

‘The New York loyalist Peter Van Schaack reached his decision to oppose Independence on the basis of a close and sympathetic reading of Locke, Vattel, Montesquieu, Grotius, Beccaria and Pufendorf’. Bailyn. op.cit. 

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1775 – America, April: At Lexington, Massachusetts a war of words became a war of brothers.

‘America…desperately needed to bring France [1777] and Spain [1778] into the war, the only nations powerful enough to carry the fight straight to the British army as well as to bring the British navy into a wider conflict that would draw it away from American shores and sap its strength.’  Larrie D. Ferreiro, Introduction, Brothers at Arms, American Independence and the Men of France and Spain Who Saved It. Vintage Books, New York, 2017 

France supported George Washington’s home-spun militia with massive amounts of men, money and munitions. Spain supplied logistical support.

In 1779,  Island Britain ‘s depleted home forces faced the menace of another Spanish Armada in the English Channel.

 Paris –  September 1783: Versailles:  After eight (8) years of conflict, via the Treaty of Versailles and against initial expectations, Britain lost her ‘mighty empire in the west’ – the colonies of North and South Carolina, Connecticut, Delaware, Georgia, Maryland, Massachusetts, New York, New Hampshire, New Jersey, Pennsylvania, Virginia and Rhode Island.

‘Britain’s decision in 1786 to occupy New South Wales was partly to compensate for the loss of the American colonies to which unwanted convicts (some 50,000 before the Declaration of Independence in 1776) had been sent and partly to protect Britain’s control of the sea route to Asia via the Southern Oceans’. Professor Martyn, Oxford Companion to British History, 1997

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EFFECTIVE OCCUPATION:  ‘ANSWERING ITS PURPOSE’

The natives of the country’ Cook said ‘live in Tranquillity’ . Britain’s lawyers knew New Holland was ‘effectively’ occupied.

1788 – Sydney Cove: Captain John Hunter RN commander of HMS Sirius flagship of the ‘First Fleet’, a Scot born in Edinburgh, described a familiar ‘civil society’.

‘We had’ he wrote ‘reason to believe, that the natives associate in tribes of many families together…you may often visit the place where the tribe [clan] resides, without finding the whole society there…but in the case of any dispute with a neighbouring tribe, they can be soon assembled’. Captain John Hunter, First Fleet Journal, 1793, Bibliobazaar reprint, 2009

Clearly Sydney’s Eora Peoples were in ‘effective occupation’ of their lands.

‘Great Britain under the premiership of the younger Pitt (1783-1806)…asserted rights were conferred by effective occupation’. J.A. Williamson, Cook and the Opening of the Pacific, Cambridge University Press, 1946

Britain was determined to gain and secure ‘control of the sea route to Asia via the Southern Oceans’ in order to establish an ’empire of commerce in the Indian and Pacific Oceans’  and Vattel provided wriggle room –‘cultivation’.

‘International law recognised an obligation for people to cultivate the land they used in the case of wandering tribes, so he [Vattel] contended, their failure to cultivate the lands they used meant that they had never taken real and lawful possession of these’. Alex Castles, An Australian Legal History, Law Book Company, 1982. 

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‘The main characteristics of wandering tribes throbbed with disapproval’. Henry Mayhew, London Labour and London Poor, 1851, Cited in The Unknown Mayhew, Eileen Yeo and E.P. Thompson, Schocken Books, New York

Mayhew’s insight reveals the mindset that made Vattel’s ‘wandering tribes’ hypothesis such an agreeable fit for Prime Minister William Pitt and Henry Dundas, Lord Hawkesbury and Lord Mulgrave three (3) powerful politicians that made up Pitt’s ‘secretive inner cabinet’.

Britain’s home-grown ‘wandering tribes’ comprised a multitude of criminals, petty thieves and n’er-do-wells, together with despised  paupers shunned ‘for their lax ideas of property…general improvidence…repugnance to continuous labour…disregard of female honour…love of cruelty…pugnacity…utter want of religion’. Mayhew. op.cit.

Australia’s First Nations’ Peoples were not ‘wandering tribes’.  Seasonal change dictated their movements.

They lived vigorous, healthy lives governed by strict protocols. Exacting laws of avoidance, taboo and trespass, preserved a rich family, cultural and spiritual life.

Violation and non-observance of clan strictures were subjected to ritual punishment – wounding even death.

CULTIVATE: ‘TO DEVELOP (FACULTY, MANNER, HABIT) IN ONESELF OR OTHERS BY PRACTICE OR TRAINING’.

Aboriginal cultivation was dynamic. In rhythm with the seasons it was based on the faculty of acute observation, inherited knowledge, training and regular practice. Understanding and obeying the dictates of their semi-arid land provided ‘all the things necessary for life‘.

‘The English were the most explicit of all the European colonizers in seeing themselves as ‘planters’. It provided a moral and legal justification for what might otherwise be regarded as the problematic act of dispossessing native peoples of their lands’. David Day, Conquest, A New History of the Modern World, Harper Collins, 2004

‘Planter’ cultivation by mice and Englishmen was static. Tied to river systems in a ‘land of drought and flooding rain’ crops and animals would always be prey to the vagaries of weather making outcomes unpredictable.

Grazing, cropping, harvesting, storage, all were labour intensive. Every facet was inherently confrontational as each demanded protection. Vermin, fences and guns – were the ‘planters’ hallmark.

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‘Lieutenant Ball, who had remarked, as well as myself, that every part of the country, though the most inaccessible and rocky, appeared as if, at certain times of the year, it had been all on fire’. Dr John White, Chief Medical Officer, First Fleet Journal, 1794, reprinted Angus and Robertson, 1961

Fire was an essential ingredient of indigenous cultivation; ‘a carefully calibrated system [it] kept some areas open while others grew dark and dense’ . Judicious use of fire engineered regeneration, guaranteed repetition and allowed predictable outcomes.

‘Every nation which governs itself, under whatever form, and which does not depend on any other Nation has a private and exclusive right’.

The territory which a Nation inhabits, whether the Nation moved into it as a body, or whether the families scattered over the territory came together to form a civil society, forms a national settlement, to which the Nation, has a private and exclusive right’. Eremich Vatel, Law of Nations, 1760

EPILOGUE

Not until the High Court gave its Mabo judgement in 1992 was there a legal recognition that Aborigines owned and possessed their traditional lands…A similar recognition of prior or continuing sovereignty has yet to occur’. Stuart Mac Intyre. ibid. See: Cape York to South Cape – Your Land is My land

 2020:  Whitehall: Brexit  Prime Minister Boris Johnson insists was all about regaining British sovereignty‘.

2021: Canberra:  From Britain the ‘original aggressor’  –  ‘similar …legal recognition…of prior or continuing [Aboriginal] sovereignty  has yet to occur’.

‘An effective resolution will require what the British required as long ago as 1768 ‘the consent of the natives’. G. Nettheim, Centre for Aboriginal Economic Policy Research, Monograph No. 7, May 1994, ed. W. Sanders, Australia National University, Goanna Press, 1994

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