The Swearing-in Ceremony

When writing up the history of the arrival of settlers at Happy Valley, I was rather dubious about the "swearing-in of the first magistrate." But seeing that I am not a constitutional lawyer, that it was a solicitor who was, supposed to have done the deed ; that Captain Porter had been gazetted a Justice of Peace on March 30 as from March 25, 1839 ; that George Stevenson, one time Private Secretary to Governor Hindmarsh, and Osmond Gilles, the treasurer of the newly formed province, were members of the Special Survey Association, one can surely be forgiven for not investigating further than the published newspaper account.

As it had been frequently remarked, the proprietors of the association were very enthusiastic and they wanted to give the project a good start. It is just possible that many of the men brought over might be inclined to be rough and troublesome, so what more natural than that the proprietors should have a magistrate at Port Lincoln who would uphold law and order.

The Colonial Secretary evidently did not take the same view. To him there was only one legal way for a Justice of Peace to be appointed. On March 25, probably after Porter had left for Port Lincoln, a letter was written advising him that he had been appointed, and further "that it will be necessary for you to take the oaths before His Honor, the Judge, before you can act," wrote G. M. Stephen to Porter. Mr. Porter wrote to the Colonial Secretary asking to be allowed to hoist the British flag, and whether be could appoint special constables. The Governor's permission was granted to the first request and he was informed that as a J.P. he had authority to appoint special constables at Port Lincoln. Before this letter could be despatched to Captain Porter, another letter dated March 30 was received at the office. Unfor tunately if these two letters from Porter are extant, they cannot be found at the present time. However, with the press report of the proceedings at Happy Valley and G. M. Stephen's reply we can gain an idea of the context of the last letter.

"Your letter of the 30th ultimo has been received at this office. I regret," wrote G. M. Stephen, the Colonial Secretary, "that you should have thought it expedient to take the oaths of office as a Justice of Peace before a gentleman unauthorised by law to administer them. As it is those oaths are wholly void and Mr. Smith has laid himself open to a criminal prosecution for having administered them. Of course you cannot in any way act as a magistrate until you have legally taken the necessary oaths. G. M. Stephen."

What the celebration committee may think and do at the second centenary of Port Lincoln is hard to say, but the present committee were perfectly justified in their representation of the landing and after events, portraying to the best of their ability a scene that actually occurred 100 years ago; they were concerned only with the intense enthusiasm and loyalty of the settlers.

Port Lincoln was not the only place to carry out things illegally. In Arthur Jose's "Builders and Pioneers of Australia," a copy of which has just been placed on the shelves of the Port Lincoln Institute, it is recorded on p.p. 192-194, that the legal adviser to the Colonial Office (London) said, "In my opinion they (Tasmania), have no law at all which can properly be recognised as such." It appears that the Governors of New South Wales (Tasmania being then a part thereof) made provisional orders which had no permanent legal force unless confirmed by the Colonial Office. This system worked satisfactorily whilst the Governors sent the orders neatly, written out by hand, but one of the Governors at the suggestion of his printer had the orders printed in the Government Gazette. This paper was sent to London for the necessary approval of the orders contained therein. The official receiving the gazette either had forgotten or was unaware of the reason of their receipt, quietly filed them away. The Colonial Governor overlooked that approval for his orders had not been received, and subsequent Governors did not know the necessity, so for 20 years this state of affairs lasted, until early in the 1820's the Colonial Office legal adviser wrote "There are reasons why it might be inconvenient to pledge yourself to any point respecting the law of this settlement (Tasmania)."

Captain Porter did not allow his error to continue but promptly advised Adelaide, as we have seen, of what had occurred.