A CRACKER-JACK OPINION – NO SWEAT

‘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 in 1771 from the Endeavour voyage (1786-1771) and reported the island continent New Holland, given that name by Dutch explorers, 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 then shared out amongst that nations’ citizens.

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 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  

ACTUAL OCCUPATION: ‘EXISTING IN FACT’ – OXFORD ENGLISH DICTIONARY

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

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

It was however Captain Cook’s poetic ‘Earth and Sea’ musings, 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.

An English translation of Vattel’s Law of Nations, a treatise held to be ‘full of inconsistencies and contradictions’, was had been published anonymously in 1760.  It had a profound effect on many of America’s revolutionary pamphleteers including Thomas Jefferson, James Otis and the Adams’ cousins Samuel and John.

James Otis a brilliant but somewhat erratic Boston lawyer was a prolific pamphleteer. He is credited with coining ‘no taxation without representation’ the catch-cry of America’s Patriot Revolutionaries.

AMERICA’S WAR OF INDEPENDENCE: 1775-1783

‘Study of the pamphlets confirmed my old-fashioned view that the America Revolution was above all else an ideological, constitutional, political struggle’. Bernard Bailyn, Forward, Origins of the American Revolution, Belknap Press, Harvard University, 1967

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Post the Seven Years’ War (1756-1763) Patriot America’s call for independence 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.

The colonists were not as one. Patriots sought independence from Britain, Loyalists fought for Britain and King George III.

‘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. 

Patriots and Loyalists sang from the same hymn sheets often citing the same luminaries.

‘In pamphlet after pamphlet the American writers cited…Vattel on the laws of nature and nations and on the principals of civil government’. Bailyn. op. cit.

1775 – April, Massachusetts: At Lexington the war of words became a war of brothers. While France and Spain supported Washington’s home-spun militia, aside from the Loyalists England had no allies.

1783 – September, Versailles:  After eight (8) years of conflict via the Treaty of Paris and, against all odds, 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

As New Holland was occupied territory Vattel was the go-to man for England’s lawyers. His Law of Nations paved the way for Britain to establish an ’empire of commerce in the Indian and Pacific Oceans’.

‘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

EFFECTIVE OCCUPATION:  ‘ANSWERING ITS PURPOSE’

‘We had reason to believe, that the natives associate in tribes of many families together…you may often visit the place where the tribe 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

Captain John Hunter RN commander of HMS Sirius flagship of the ‘First Fleet’ described a ‘civil society’  – the Eora Peoples ‘assembled’  holds ‘private and exclusive right[s]’.

‘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

The First Nations; Peoples were in ‘effective occupation’ of New Holland.

Vattel however provided wriggle room – no sweat – ‘failure to cultivate’. Vattel held a ‘distinction’ could be made between ‘cultivated and uncultivated lands’.

‘International law recognised an obligation for people to cultivate the land they used. So, 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. 

‘CULTIVATED’ V ‘UNCULTIVATED’ AND ‘EFFECTIVE OCCUPATION’

‘[Cook] The natives of the country…live in Tranquillity’ Britain knew New Holland was occupied. But lawyers deemed them ‘wandering tribes’. Therefore they had not earned the right to claim ‘real and lawful possession’ of their lands.

‘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 his ‘secretive inner cabinet’ – three (3) powerful politicians Henry Dundas, Lord Hawkesbury and Lord Mulgrave.

Britain’s own ‘wandering tribes’ were comprised of a multitude of criminals, petty thieves and n’er-do-wells together with paupers despised and 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 movement. 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 or 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‘.

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

‘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

By contrast European ‘planter’ cultivation 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 and, as each facet demanded protection, inherently confrontational. Exclusion – fences and guns – were the ‘planters’ hallmark.

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

‘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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