AIR-BRUSHED – INVASION – EYES WIDE SHUT

‘The Old Privy Council decision in Cooper V Stuart [1889] was based on the factual errors that Australia was peacefully settled and that Aborigines were never in possession of the land’. Professor Bruce Kercher, An Unruly Child, A History of Law in Australia, 1994

1889 – 3 April, London: Lord Watson, Lord Fitzgerald, Lord Hobhouse, Lord MacNaghton, Sir William Grove, in Cooper V Stuart [1889] 14 AC, Privy Council of the United Kingdom, ruled: [13] ‘There was no land law existing in the Colony (New South Wales) at the time of its [peaceful] annexation to the Crown’.

1790 – 13 December: ‘Bring in six [6] of those natives who reside near the head of Botany Bay, or if that should be found impractical, to put that number to  death…cut off and bring in the heads of the slain’. Extract: General Orders, Governor Arthur Phillip to Marine Captain Watkin Tench, Sydney, 13 December 1790, Historical Records of New South Wales.

1992 – 3 June Canberra: The High Court of Australia in Mabo and Others V Queensland (No. 2) 1992 in a majority 6:I judgement, Justices Mason, Brennan, Dean, Gaudron, Toohey, with Justice Dawson dissenting, found proposition [13]; ‘There was no land law…Aborigines were never in possession of the land’ [was] ‘wrongly decided’. Kercher. ibid.

‘Despite recognising native title, these judgments upheld the feudal basis Australian land law. The High Court in Mabo V Queensland confirmed the feudal origins of Australia’s land law. The majority claimed that the Crown acquired ultimate title, known as ‘radical title’ of all Australian land upon colonisation’.  http.//anu.ed.

‘1066 AND ALL THAT’

In 1066, William the Conqueror, on the death of King Edward the Confessor, crossed the Channel from Normandy with an army to lay claim to the English Crown that, on Edward’s death, had passed to King Harold II who ruled for nine (9) months.

William, at the Battle of Hastings in October 1066, killed King Harold and future-proofed his position by killing Harold’s  brothers. Ruling as William I he lived most of his reign in Normandy where he died in 1087 and was succeeded  by his son William II.

During his twenty- (20) reign William I turned England’s land tenure on its head by replacing the Anglo-Saxon notion of land tenure with feudal law thereafter the monarch owned ‘radical title’ to all land.

Land was parceled out among the king’s favourites ‘lords and barons‘ who in turn were obliged to support the monarch principally ‘military service’ – killing for him.

A hard copy of what became ‘Norman Law’  – The Domesday Book – first saw the light of day in 1086.

‘Normandy’s place at the centre of colonising movement came to an end in the early decades of the 12th century, though its far-flung connections, endured much longer’.

In 1788 Norman Law washed up on the ‘far-flung’ shores of New Holland.

‘Each substantive [Mabo] judgment made some reference to this feudal essence of land law as expressed in the doctrine of Tenures and Estates’. anu. ibid.

1066-1788: That Britain and Australia share a history is demonstrated no more starkly than in Mabo No. 2, 1992 when Australia’s High Court justices upheld Britain’s – 1066 – Norman law.

[11] Cooper V Stuart, 1889: ‘There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British Dominions’.

The High Court upheld ‘New South Wales was peacefully annexed’.

Yet the ‘First Fleet’ expedition, an expensive amphibious military operation fully-funded by the British Government, was organised by the Navy Board under the auspices of the Admiralty.

1787 – 13 May, Portsmouth: The fleet, a large armed squadron of eleven (11) ships, commanded by Captain Arthur Phillip RN, sailed from England to invade New Holland on 13 May 1787.

‘In determining the ration no distinction was drawn between marines and [male] convicts …the standard adopted was that of troops serving in the West Indies‘. Wilfrid Oldham, Britain’s Convicts to the Colonies, Library of Australian History, 1990

Its complement of 1500 souls, one-half convicted criminals, consisted of four (4) marine detachments – two hundred and forty-five (245) from the military arm of the naval service – two hundred (200) Royal Navy personnel, twenty (20) officials, six (6) physicians, five hundred and seventy (570) male convicts and approximately four hundred and forty (440) merchant seamen.

‘No one out of Bedlam would advise a popular Assembly for a Colony of convicts. The only free settlers were government officials and soldiers, whose duty it was to obey the orders of the Governor. For the first twenty-five to thirty years the form of government was purely military: the first Governors being the most part naval officers’. Hugh E. Egerton, A Short History of British Colonial Policy, Methuen, London, 1928

‘Bedlam ? without doubt but there was method in this madness. All male persons on the ‘First Fleet’ – sailor, soldier and convict were available for combat – they represented a formidable force for the time and place of deployment.

The female component by comparison  was minuscule numbering two hundred and twenty-one (221). One hundred and eighty-nine (189) female prisoners camp followers, thirty-one (31) marine wives and Mary wife of Reverend Richard Johnson the fleet Chaplain. See: Brokeback Mountain – 1300 men 221 women

1788 – 18/20 January, Botany Bay: After traversing 13,000 miles (21,000 km) of ‘imperfectly explored oceans’ the armed convoy  arrived at Botany Bay within thirty-six (36) hours between 18 – 20 January 1788.

Three (3) elements were responsible for the extraordinary accuracy of the fleet’s navigation.

[Harrison’s] ‘Watch…against all odds, in using the fourth – temporal – dimension to link points on the three-dimensional globe…locked the secret [time] in a pocket-watch‘. Dava Sobel, Longitude, Fourth Estate, London, 1996

John Harrison who ‘in 1759 had solved the problem of longitude’, Marine Lieutenant William Dawes an astronomer, the fleet’s chief scientific officer, and K-1 a copy of Harrison’s marine chronometer. See: William Dawes & ‘The Eternal Flame’

Rev. Nevil Maskelyne, Astronomer Royal at Greenwich Observatory who, in 1768 had denied Lieutenant James Cook RN the H-4 for the Endeavour voyage, entrusted William Dawes with K-1 a true and faithful copy of John Harrison’s H-4 chronometer. See: James Cook, John Harrison, Charles Green – Three Yorkshire-men walked into a Bar

1788 – 23 January, Botany Bay: La Boussole and L’Astrolabe, French ships under command of Comte Jean-Francoise La Perouse arrived off Botany Bay on 23rd January 1788. See: Britain By A Short Half-Head

‘When leaving Botany Bay, Phillip noticed two French ships in the offing…there would seem to be “some justification for the saying that England won Australia by six days”. Edward Jenks, cited Hugh Egerton, A Short History of British Colonial Policy. ibid.

1788 – 26 January, Port Jackson: The ‘First Fleet’ quit Botany Bay to sail nine (9) miles fourteen (14km) north to Port Jackson and a deep, sheltered anchorage in Sydney Cove on 26 January 1788 where Captain Phillip raised ‘English Colours’ the Union Jack.

‘Raising the flag was one of the acts recognised as an assertion of a prior claim against other colonial powers eyeing off the same land’. Larissa Behrendt, The Honest History Book, ed. David Stephens & Alison Broinowski, UNSW Press, Sydney, 2017 

1788 – 7 February, Sydney Cove: Captain, now Governor Phillip in the name of King George III of England, ‘using a form of words’ without consent from Australia’s First Peoples – claimed British sovereignty over New Holland, now Australia.

‘The troops sent to garrison the Australian colonies participated in the great struggle at the heart of the European conquest of this continent. They fought in one of the most prolonged frontier wars in the history of the British Empire and for the first half of their stay were probably more frequently in action than the garrison of any other colony besides that of Southern Africa’. Dr Peter Stanley, The Remote Garrison, The British Army in Australia 1788-1870, Kangaroo Press, 1986.

Australia was invaded and conquered. New Holland’s First Nations’ Peoples did not cede their country. Against overwhelming odds they fought for it and, as in all war, conquerors with superior fire power die in inverse ratio to the conquered.

1790 – 22 December: ‘Our first expedition [14 December] having so totally failed, the governor resolved to try the fate of a second…The orders under which I [Tench] was commanded to act differing in no respect from the last…cut off and bring in the heads of the slain’. Watkin Tench, Sydney’s First Four Years, ed. F.L. Fitzhardinge, Angus and Robertson, 1961

EPILOGUE

‘Factual error… Australia was peacefully settled’. Kercher. ibid

Governor Phillip’s orders of 13th of December 1790 ‘infuse universal terror’repeated with clear intent on the 22nd – served as an ignition point for ‘one of the most prolonged frontier wars in the history of the British Empire’. See: John M’Entire – Death of a Sure Thing

‘Invasion’ remains a contentious concept but who can mistake ‘infuse terror… put to death six [6] cut off and bring in the heads of the slain’ with ‘peaceful annexation’ ? Only those with eyes wide shut. See: Arthur’s Algorithm 

‘Military and police raids against dissenting Aboriginal groups lasted from the eighteenth to the twentieth centuries. These raids had commenced by December 1790’. Kercher. ibid.

How long will Australia’s First Peoples who lost their lives, lands, resources, freedoms, religion, children and culture to invasion and conquest have to wait before Australia’s High Court addresses the ‘great difference between acquired by conquest or cession’ and rules on ‘proposition [11] Cooper V Stuart, 1889; ‘New South Wales was peacefully annexed to the British Dominions’? See: Continuing Connection (pending)


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