Aspecto final

On 16 March 1824, Chief Justice Pedder disembarked in Hobart Town ‘under the customary honours’ of a thirteen-gun salute and official reception at

Government House.1 _{Two weeks later, the Royal Charter of Justice was}

proclaimed, and, on 7 May, Pedder took the oaths of office and allegiance to

the Crown.2 _{As the first professional judge in the newly established Supreme}

Court of Van Diemen’s Land, Pedder was responsible for administering English law in the multi-jurisdictional superior court of a penal colony. For the first time since colonisation in 1803, capital offences and complex civil matters could be heard locally, and, as Pedder later described the beginning of his judicial career, he found ‘a Gaol full of Prisoners and much litigation

calling loudly for the opening of the Court’.3

In addition to his ‘incessant and inordinate duties’ in the Supreme Court,4

Pedder served as an ex officio member of the colonial government. As John

McLaren’s comparative legal histories demonstrate, colonial judges were routinely appointed to the executive and legislative branches of government, where they were required to provide both ‘constitutional and legal advice’

and ‘conservative leadership’ within the local administration.5 _{As an official}

member of the Executive Council from 1825 until 1836, and of the Legislative Council between 1825 and 1851, Pedder advised a series of governors on matters of policy and law, and participated in the executive review of his own criminal sentencing. He was also responsible for certifying or opining that locally initiated legislation was not ‘repugnant’ to the laws of England.

1 _{Hobart Town Gazette, 19 March 1824, p. 2.}

2 _{E. Campbell, ‘Oaths and affirmations of public office’, Monash University Law Review 25 (1)}

(1999), pp. 140-141.

3 _{Pedder to Robert Wilmot Horton, private, 13 September 1825, CO 280/4, f. 272a, AJCP reel}

PRO 231.

4 _{Sydney Gazette, 13 September 1826, p. 3.}

5 _{J. McLaren, ‘The judicial office ... bowing to no power but the supremacy of the law: Judges}

and the rule of law in colonial Australia and Canada, 1788-1840’, Australian Journal of Legal History 7 (2) (2003), p. 182.

Charting the apparently inevitable consolidation of nineteenth-century liberal reforms, conventional histories of Van Diemen’s Land/Tasmania struggle to accommodate an avowed Tory, who sent several hundred fellow

beings to the gallows.6 _{Part II contextualises and tests two popular and}

scholarly constructions of Pedder that emerge from these whiggish narratives: a ‘hanging judge’ and a puppet of government. Tapping in to a growing body of scholarship which demonstrates that the ‘achievement of the liberal order’ in the British colonial world was ‘not the unfolding of a

predetermined plot line’,7 _{Part II is particularly concerned to acknowledge}

and engage with Pedder’s conservative ideological and professional paradigm. Refocussing on Pedder’s perspective in Chapters 5 and 6, a close reading of the chief justice’s correspondence and public statements reveals that they are infused with the language of duty – to the law, the Crown, the

‘welfare of the people’, and, above all, to his judicial office.8

Chapter 5 challenges Pedder’s posthumous construction as a Tasmanian Judge Jeffreys. Arguing that the trope of the ‘hanging judge’ belongs to a long literary tradition in which frontier judges are recast as judicial murderers, this chapter charts the capital felony process in Van Diemen’s Land to illuminate the legal, political and social frameworks within which Pedder was required to operate during the ‘heyday of capital punishment’ on the island. Comparison of tabloid ‘histories’ of the ‘hanging judge’ with colonial case law, editorial commentary, and Pedder’s own comments from the bench and during post-sentencing review, highlights the impact of mandatory sentencing and community expectations during the dying decade of the ‘bloody code’. Examining the chief justice’s very public emotional responses

6 _{A. Burns and J. Innes, ‘Introduction’ in A. Burns and J. Innes (eds.), Rethinking the Age of}

Reform. Britain 1780-1850 (Cambridge, Cambridge University Press, 2003), p. 21. Tory beliefs were not fixed, but support for the status quo was characteristic.

7 _{P. Girard, ‘Liberty, order, and pluralism: The Canadian experience’ in J.P. Greene (ed.),}

Exclusionary Empire: English Liberty Overseas, 1600 to 1900 (New York, Cambridge University Press, 2009), p. 162.

8 _{Pedder to Arthur, 16 July 1834, Papers of Sir George Arthur, vol. 10, ML ZA 2170, reel}

to the ‘most painful duty of a judge’,9 _{this chapter also highlights the personal}

conflict between Pedder’s humanity and his judicial duty, and challenges us to ‘humanise’ a ‘hanging judge’.

Pedder’s construction as a puppet of government is heavily inflected by the discourses of English liberties which inspired local campaigns for constitutional development before self-government in 1856. Challenging modern assumptions around the meaning of judicial independence,

Chapter 6 emphasises ‘old, forgotten’ common-law ideals of ‘judicial duty’.10

Following Philip Hamburger, it distinguishes between ‘internal’ and ‘external’ judicial independence. Similarly, it engages with McLaren’s wide-ranging research which illustrates that colonial judges, appointed ‘at pleasure’, were ‘expected to straddle the legal and political spheres in the cause of stable

governance’.11 _{In contrast to critiques of Pedder’s closeness to government,}

McLaren’s ‘Baconian colonial judiciary’ model recasts Pedder as the ‘epitome

of the loyal, journeyman judge doing what was expected of him’.12 _Revisiting

key colonial rule-of-law conflicts – including the touchstone issues of trial by jury and freedom of the press – Chapter 6 argues that Pedder’s successful negotiation of his competing obligations was rewarded with continuing Colonial Office support in an age when judges who failed to internalise a Baconian conception of service to the Crown were regularly removed from office.

9 _{Hobart Town Advertiser, 10 June 1859, p. 3.}

10 _{P. Hamburger, Law and Judicial Duty (Cambridge, Mass., Harvard University Press, 2008),}

p. 16.

11 _{J. McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800-1900}

(Toronto, University of Toronto Press, 2011), p. 149.

CHAPTER 5