‘The whole claim of sovereignty and ownership on the basis of terra nullius was manifestly based on a misreading of Australian circumstances, not that this prevented Phillip from hoisting the Union Jack in 1788 and expropriating the owners of Sydney Cove.
Not until the High Court gave its Mabo judgement in 1992 was there a legal recognition that Aborigines had owned and possessed their traditional lands. A similar recognition of prior or continuing sovereignty has yet to occur’. Stuart Mac Intyre, A Concise History of Australia, Melbourne University Press, 2004
1770: August 22, Possession Island: Lieutenant James Cook RN, in the name of King George III of England on 22 August 1770, claimed ‘discovery’ of the entire eastern coast of New Holland (Australia) ‘from Cape York…in the most northern extremity…to South Cape’.
‘Discovery gave what was termed an inchoate title which could only be developed further by actual occupation. This had been established well before 1788.
Hugo Grotius [1538-1645] remarking that an act of discovery was sufficient to give clear title to sovereignty’ only when it is accompanied by actual possession’. Henry Reynolds, Aboriginal Sovereignty, Three Nations, One Australia, Allen and Unwin, 1996
ACTUAL: ‘Existing in fact’. Compact Oxford English Dictionary, Oxford University Press, 2005
In 1771 James Cook returned to England from Endeavour’s Pacific voyage (1768-1771) and reported; ‘The natives of the country [New Holland]…live in Tranquility which is not disturb’d by the inequality of condition.
The Earth and Sea of its accord furnished them with all the things necessary for life: they covet not magnificent Houses, household stuff etc. They sleep as sound in a small hovel or even in the open as the King in His Pallace on a Bed of down’. Lieutenant James Cook, Endeavour Journal
It was quite clear when Cook ‘discovered’ New Holland ‘the natives of the country’ were in ‘actual possession’ of that territory.
But; ‘effective occupation as the title to new lands had been an English doctrine consistently enforced since colonization began (and] Great Britain under the premiership of the younger [William] Pitt (1783-1806)…asserted rights were conferred by effective occupation’. J.A. Williamson, Cook and the Opening of the Pacific, Cambridge University Press, 1946.
Britain however had a problem as international law of the 18th century dictated; ‘only if uninhabited could one country take possession of another country, claim ownership for itself and share it out among its own people’.
EFFECTIVE: ‘Producing a desired or intended result’. Oxford English Dictionary
‘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 Ocean’. Professor Martyn, Oxford Companion to British History, 1997
Lawyers sought to establish legal grounds to allow Britain take ‘effective occupation’ of New Holland. They burned midnight oil studying and interpreting the tortuous twists and turns of English law, as laid down in ‘Commentaries’ the writings of Sir William Blackstone, England’s leading jurist.
But it was James 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 from its peoples.
VATTEL, KING GEORGE 111 & AMERICAN INDEPENDENCE
‘New South Wales was partly to compensate for the loss of the American colonies’. Oxford Companion to British History. ibid.
Vattel’s Law of Nations a treatise held to be ‘full of inconsistencies and contradictions’ translated into English and published anonymously in 1760, had had a profound effect on many of America’s revolutionary pamphleteers including Thomas Jefferson, James Otis and cousins Samuel and John Adams.
‘Study of the pamphlets confirmed my old-fashioned view that the American Revolution was above all else an ideological, constitutional, political struggle’. Bernard Bailyn, Forward, Origins of the American Revolution, Belknap Press, Harvard University Press, 1967
James Otis, brilliant but somewhat erratic Boston lawyer and, a prolific pamphlet writer, is credited with coining the catch-cry of America’s Revolution; ‘no taxation without representation’.
In America the call for independence centred on opposition to a plethora of taxes imposed by Britain on her American colonists post the Seven Years’ War (1756-1763). These included Tea, Navigation and Stamp Acts and, a miscellany of nit-picking taxes known as the [Charles] Townshend Acts.
America’s colonists were not as one. Some remained loyal to Britain and monarchy. Others, Patriots, sought independence from Britain.
‘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’. Bernard Bailyn. ibid.
Loyalists and Patriots sang from the same hymn sheets, 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’. Bernard Bailyn. ibid.
In April 1775 at Lexington a war of words became a war of brothers. In 1783 after eight (8) years of conflict via the Treaty of Paris and, against all odds, Britain lost her ‘mighty empire’ to America’s Patriots.
VATTEL, KING GEORGE 111 & NEW HOLLAND 1788
‘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 Emp[re 1763-1793, Vol. 2, Longmans, 1964
English lawyers were now well aware of Vattel’s Law of Nations so, when Britain moved to establish an ‘empire of commerce in the Indian and Pacific Oceans, Vattel was their go-to man.
‘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.
Every nation which governs itself, under whatever form, and which does not depend on any other Nation has a private and exclusive right’. Eremich Vattel, Law of Nations, Anon. 1760
1788 – Sydney Cove: Captain John Hunter RN commander of HMS Sirius, flagship of the ‘First Fleet’, described Sydney’s Eora Peoples in terms that met Vattel’s criteria; ‘every nation…which does not depend on any other Nation [and] scattered…came together to form a civil society…has a private and exclusive right’.
‘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 RN. First Fleet Journal, 1793, Bibliobazaar reprint 2009
Vattel however provided wriggle room.
CULTIVATED V UNCULTIVATED
‘…international law recognized an obligation for people to cultivate the lands 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
James Cook had reported ‘the natives of the country’ did not graze or tend animals or cultivate. That is they did not clear or till land, plant crops, harvest or store produce in accordance with static European-style agricultural practice.
Vattel argued in Law of Nations that occupation did not confer ‘real’ [estate] rights of ownership and sovereignty. He held ‘distinction’ could be made between between ‘cultivated and uncultivated lands’.
OPINION: ‘FAILURE TO CULTIVATE’ = NO SWEAT
‘failure to cultivate…meant they as wandering tribes had never taken real and lawful possession’ of New Holland.
DECISION: ‘The British…applied the principle of terra nullius…vacuum domicillium…which accorded a natural but not a civil right to the land’. Martyn Webb, Oxford Companion to British History, 1997
So while recognising New Holland was occupied, its peoples ‘fail[ed] to cultivate’ and were deemed ‘wandering tribes’.
EFFECT: New Holland ‘a highway to Asia’ was up for grabs.
‘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 Brooks, New York.
Henry Mayhew’s insight revealed the mindset that made Vattel’s ‘wandering tribes’ hypothesis such an agreeable fit for Prime Minister William Pitt and his ‘inner cabinet’ of three (3), Lord Hawkesbury, Lord Mulgrave and Henry Dundas.
England’s ‘wandering tribes’ were her multitude of paupers, criminals and n’-do-wells, despised and shunned by the elite; ‘for their lax ideas of property…general improvidence…repugnance to continuous labour…disregard of female honour…love of cruelty…pugnacity…utter want of religion’. op. cit.
Australia’s First Nations’ Peoples were not ‘wandering tribes’. They lived vigorous, healthy lives, governed by strict protocols. Punishment for violation of clan strictures, such as non-observance of exacting laws of avoidance, taboo and trespass, preserved a rich family, cultural and spiritual life.
Tribal territories, wide-ranging but strictly defined, gave each clan group a ‘fair go‘ of the seasonal resources ‘of their lands’.
‘In his own district a native is very differently situated; he knows exactly what it produces, the proper time at which the several articles are in season, and the readiest means of procuring them. According to these circumstances he regulates his visits to the different portions of his hunting ground’. George Gray, Journals of Two Expeditions of Discovery 1841, Cited in D.J. Mulvaney, The Prehistory of Australia, 1975
Cultivate: ‘To develop (faculty, manner, habit) in oneself or others by practice or training’. Concise Oxford Dictionary
Aboriginal cultivation was based on the faculty of acute observation, on inherited knowledge and training and, on regular habits tied to seasonal change. Fire was the essential ingredient, recognised as such from the earliest days of European occupation, Sydney April 1788.
‘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 Office, First Fleet Journal 1794, reprint Angus and Robertson, 1961.
Fire; ‘a carefully calibrated system kept some areas open while others grew dark and dense’. Judicious use of fire engineered regeneration, guaranteed repetition and allowed predictable outcomes.
The First Australians did not seek to dominate their vast generous but finely balanced semi-arid land. Rather they studied the country, allowed it to shape their lives and dictate their movements.
‘The English were the most explicit of all the European colonizers in seeing themselves as ‘planters’…It [cultivation] 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
‘Planter’ cultivation introduced in 1788 was labour intensive and inherently confrontational. A system of fencing, grazing, cropping, harvesting and storage, meant every facet of European agriculture required constant vigilance and demanded protection.
Static and tied to river systems, prey to the vagaries of weather in ‘a land of drought and flooding rain’, crops and animals were vulnerable and outcomes extremely unpredictable.
‘In fact, it did not matter how [native peoples of New Holland] lived in relation to their lands, the invaders were determined to have those lands for themselves’. op. cit.
METHOD: ‘Infuse universal terror’.
‘Infuse universal terror…bring in six  of those natives who reside near the head of Botany Bay; or if that should be found impracticable, to put that number to death…bring in the heads of the slain‘. Governor Arthur Phillip RN to Marine Captain Watkin Tench, cited in Watkin Tench, Sydney’s First Four Years, ed. F.L. Fitzhardinge, Angus and Robertson, 1961.
1790 – December, Sydney Cove: Governor Phillip’s General Orders ‘infuse universal terror’ issued in December 1790 authorized unlimited brutality and served as a template for the:
‘Twenty-five regiments of British infantry [who] 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, 1788-1780, Kangaroo Press, 1986
See: An Ugly War – Shock and Awe