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
London – 1889, April 3: 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’.
Sydney – 1790, December 13: ‘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.
Canberra – 1992 – June 3: The High Court of Australia, Mabo and Others V Queensland (No. 2) 1992, in a majority 6:I judgement, Justices Mason, Brennan, Dean, Gaudron, Toohey, Justice Dawson dissenting, found proposition [13]; ‘There was no land law…[that] Aborigines were never in possession of the land’ [was] wrongly decided’. Kercher. ibid.
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+++++++’Despite recognising native title, these judgements upheld the feudal basis of 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 English Channel from Normandy with an army to lay claim to the English Crown. On the Confessor’s death the Crown passed to King Harold II, whose reign was to last just nine (9) months.
At the Battle of Hastings in October 1066 William the Conqueror killed King Harold. He future-proofed his position by killing Harold’s brothers. Ruling as William I he lived most of his reign in France where he died in 1087.
William turned England’s land tenure on its head during his twenty (20) year reign. The Anglo-Saxon notion of land title was replaced with feudal law whereby the monarch owned ‘radical title’ to all land.
The Domesday Book, a hard copy of what became known as ‘Norman Law’, first saw the light of day in 1086. Land was parcelled out among the king’s favourites ‘lords and barons‘ who in turn were obliged to support the monarch principally with ‘military service’ – killing for him.
‘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’.
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In January 1788 Norman Law washed up on the ‘far-flung’ shores of New Holland, now Australia. King George III claimed ‘radical title to all land’.
‘Each substantive [Mabo] judgment made some reference to this feudal essence of land law as expressed in the doctrine of Tenures and Estates’. anu edu. ibid.
1066-2018: That Britain and Australia share a history is no more starkly demonstrated than in Mabo No. 2, 1992. Australia’s High Court justices upheld a ‘factual error’- ‘New South Wales was peacefully annexed to the British Dominions’.
[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 BACK STORY TO ‘PEACEFULLY ANNEXED’
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.
England – May 13: The fleet, a large armed squadron of eleven (11) ships, commanded by Captain Arthur Phillip RN, sailed from Portsmouth to invade New Holland, now Australia in mid-May 1787.
Its complement of 1500 souls, one-half convicted criminals, consisted of four (4) marine detachments – two hundred and forty-five (245) officers and men from the military arm of the naval service – two hundred (200) Royal Navy personnel, twenty (20) officials, eight (8) physicians, five hundred and seventy (570) male convicts, ‘rationed as troops’, one hundred and eighty-nine (189) female prisoners and approximately four hundred and forty (440) merchant seamen, crew of six (6) chartered transports plus three (3) supply vessels.
‘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. See: Arthur Phillip Soldier Spy & a Military Campaign Hidden in Plain Sight
‘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
All male persons – sailor, soldier, convict were available for combat. They represented a formidable force for the time and area of deployment.
By comparison the fleet’s female component was minuscule – in all two hundred and twenty-one (221). One hundred and eighty-nine (189) female prisoner camp-followers, thirty-one (31) marine wives plus Mary wife of Reverend Richard Johnson the fleet Chaplain. See: Brokeback Mountain – 1300 men – 221 women
‘Against all odds, in using the fourth – temporal – dimension to link points on the three-dimensional globe…[John Harrison] locked the secret [of time] in a pocket-watch‘. Dava Sobel, Longitude, Fourth Estate, London, 1996
Botany – 1788, 18/20 January: 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.
The extraordinary accuracy of the fleet’s navigation can be attributed in large part to the diligence of Marine Lieutenant William Dawes. An astronomer, the fleet’s chief scientific officer, he had in his care a replica of John Harrison’s H-4 marine chronometer. See: William Dawes & ‘The Eternal Flame’
‘John Harrison, the man who solved longitude in 1759’. Peter Ackroyd, London, Macmillan, London, 2016
Rev. Nevil Maskelyne, Astronomer Royal at Greenwich Observatory the man who, in 1768 denied Lieutenant James Cook RN Harrison’s original H-4 for Endeavour’s voyage, entrusted William Dawes with K-1 a true and faithful copy of H-4 . See: James Cook, John Harrison, Charles Green – Three Yorkshire-men walked into a Bar
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Botany Bay – January 24: La Boussole and L’Astrolabe, French ships under command of Comte Jean-Francoise La Perouse arrived off Botany Bay at dawn on the 24th of January.
‘When leaving Botany Bay [25th], 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.
Port Jackson – January 25: Captain Arthur Phillip aboard HMS Supply quit Botany Bay at mid-day. He returned to Port Jackson a vast body of water, with a secure deep-water cove, that he had sighted 3 (three) days earlier.
Sydney Cove – January 26: Phillip stepped ashore at first light on the 26th ‘raised English Colours’ and claimed Britain’s victory over France. See: Britain By A Short Half-Head
‘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
Port Jackson – January 26th: When bad weather abated late in the day the remaining ‘First Fleet’ ships followed Captain Phillip and sailed nine (9) miles fourteen (14km) north to Port Jackson. By 6 pm on the evening of 26 January 1788 they were riding at anchor alongside Supply.
By the 28th of January all male convicts and marines had disembarked. Once the prisoners regained their land-legs they began clearing trees, levelling a parade ground, erecting tents, laying duck boards, digging latrines and fire-pits.
Ten (10) days later – 6th February the fleet’s entire complement of women – two hundred and twenty-two (222) landed in Sydney Cove.
Mid-day 7th of February 1788: Captain-General Governor Phillip, in the name of King George III of England accompanied by ‘the pomp and circumstances of glorious war’ declared; ‘We have come today to take possession of this fifth great continental division of the earth on behalf of the British People‘. Historical Records of New South Wales
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Australia’s First Nations’ Peoples did not cede their country nor enter into a treaty. Against overwhelming odds they fought for it but, as in all war, conquerors with their superior fire power die in inverse ratio to the defenders.
‘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.
For most non-Aboriginal Australia; ‘and from all the world’s on earth we come’ invasion is an unknown. Britain’s relentless military campaign dispossessed the First Peoples of their land ‘parcel by parcel’ and hunted them off their lands. Yet this ‘great struggle at the heart of European conquest‘ hardly rates a mention here and none in Britain perpetrators of the ‘original aggression’.
EPILOGUE
‘Factual error…Australia was peacefully settled’. Kercher. ibid.
Australia’s First Peoples lost their lives, lands, resources, freedoms, languages, religion, culture, children and future biological integrity to invasion and conquest. See: G is for Genocide
‘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 much longer before Australia’s High Court addresses the ‘great difference between acquired by conquest or cession…Privy Council [11] Cooper V Stuart, 1889; ‘New South Wales was peacefully annexed to the British Dominions’? See: The Crown, Brexit & Continuing Connection (pending)
Botany Bay – December 13: ‘infuse universal terror put to death six [6] cut off and bring in the heads of the slain’.
Who could mistake ‘infuse universal terror… [with] ‘peaceful annexation’ ? Who could mistake ‘bring in the heads of the slain’ with ‘peaceful annexation’ ?
Only those with eyes wide shut. See: A Hatchet Job – Heads Off the Bidjigal of Botany Bay
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’. Marine Captain Watkin Tench, Sydney’s First Four Years, ed. F.L. Fitzhardinge, Angus and Robertson, Sydney, 1961
Governor Phillip’s orders of 13th of December 1790 ‘infuse universal terror’ were repeated with clear intent ‘ put to death six [6] cut off and bring in the heads of the slain’ on the 22nd of December 1790 and ignited; [Stanley] ‘one of the most prolonged frontier wars in the history of the British Empire’. See: Arthur’s Algorithm
Tags: arthur phillip, First Fleet, Invasion, mabo, native title, peacefully annexed, radical title