The Hospital Contract and early Licensing
“You are to be extremely cautious in granting Licenses
for the retailing of Spiritious Liquors,
Confining them to as few Persons as possible.”
-Governor Macquarie, 1817
During the history of the Bush Inn, the licensing laws in the state have undergone numerous changes and revisions. They have also had many problems with the interpretation and implementation of these laws, and the laws themselves have been influenced by a number of outside forces. In the early years of the colony not the least of these problems were caused by its isolation not only from England, but from New South Wales. Initially all laws in force in the Colony were enacted in England. Until 1825 Van Diemen’s Land was administered from New South Wales, (that is why all references before then refer to the Lieutenant Governor of the Colony, rather than the Governor) further adding to the confusion of the legal and administrative system. Delays simply from time lag involved in moving written correspondence half way around the world by sailing ship, formulating a reply then returning that reply also by ship to England could mean that a year had passed from the writing of a letter until receiving a reply.
Another problem encountered in the early days of the Australian colonies, was that rum was issued to military officers and soldiers, civilians and even convicts to ease the burden of dislocation. This practice began in New South Wales in 1792 when the Secretary of State in England dispatched 2,319 gallons [10,550L] of rum being “...an allowance of half a gallon [2.25L] for each person per annum including the convicts.20”
With the establishment of Van Diemen’s Land things were no different, with an annual issue, the amount dependent upon rank. Prisoners were also issued with spirits as a reward for extra labour.
Even in the earliest days of the Colony this practice was causing headaches, in more ways than one. A General Order issued on September 22, 180421 gives an example:
|The Lt. Governor having reason to apprehend that the permission of rewarding Prisoners for extra Labour with Spirits may be abused (an instance of which occurred in the Two Men, William Wright and John Jackson, who we punished for Drunkenness) finds it necessary to direct that not more than ½ a pint [0.28L] of Spirits be ever given to a Prisoner in a day.
This was the beginning of what would be an ongoing problem, involving convicts, smugglers, publicans and, apparently, most of the population of Van Diemen’s Land. Apart from the problems of drunkenness, spirits were being used for barter, or sold outright. The following year another General Order on the subject appeared:22
General Orders, Hobart Town, January 26 1805
The Lt. Governor finds it necessary again to caution the prisoners against rendering themselves incapable through intoxication of performing the Public Labour, which is required of them. Of this Offence, the Magistrates are requested particularly to take Cognizance.
As the Spirits, which have been purchased for the use of the Settlement, have been under certain Regulations allowed to be given to the Convicts as a reward for the Performance of extra Labour, but not to be retailed or sold by them to others, it is hereby ordered that any Person, selling or retailing Spirituous Liquors without a License, shall on Conviction before a Magistrate, forfeit the sum of Five Pounds [$10] for any Quantity of Spirits sold and retailed without a License, half of which is to be paid to the Person giving the Information, the other half to be applied to Public Use.
These early Liquor Licenses referred to in the General Orders were granted by the full bench of magistrates, and read thus:
|Licensed Persons- bound by recognizance to the due assize of weight and measure; to permit no gaming, drunkardness, indecency or disorder ; to pay due respect to existing regulations ; not to entertain persons from tap - too beating of [Tap-too, lights out, nine pm] to the following noon, nor during Divine Service. Penalty- forfeit of License and regognizance, the latter to informer and £5 [$10] to orphans.23
Even with the problems of issuing spirits to the convicts, the practice still continued, and was at times enlarged upon. There were not the number of public holidays we have today. It was very rare for colonies to be given a ‘day off’, instead, on occasions of importance extra rations of rum were issued:
General Orders June 4th 1805
This day being the Anniversary of His Majesty’s Birth, the Commissary will issue ½ a pint [0.28L] of Spirits to each Male Prisoner in the Settlement.24
The amount of spirits issued depended upon rank and standing in the community. In 1806 a small quantity of spirits was received into the Public Stores, the following Distribution was made25:-
To Civil and Military officers
15 gallons [68L]
6 gallons [27L]
5 gallons [23L]
To the detachment of Royal Marines
20 gallons [91L
To further complicate matters, on the 6th of November 1810, Governor Macquarie in Sydney entered into a contract with Graham Blaxcell, Alexander Riley and D’Arcy Wentworth for the erection of a general hospital at Sydney. By this agreement the contractors were granted the exclusive privilege of importing 45,000 gallons [204,750L] of spirits into New South Wales and Van Diemen’s Land during a period of three years, and thereby obtained a monopoly of the spirit trade.26 If smuggling of spirits was happening before this, this caused a great increase in the problem. The smugglers were often business men who were not only getting the rum at a cheaper price than in the contract, but were also evading the duty that was levelled on it. The usual plan was that the spirits “must be either landed or planted (ie. concealed), this accomplished by going into one of the Bays outside the Heads, where it was not possible for us to follow or to see her...”27
Lachlan Macquarie, Governor of NSW and its Dependencies sent the following to ‘Capt J Muray, 73rd regiment, Commandant of the Settlement of Hobart Town in Van Diemen’s Land’ in June 181028
The Clandestine introduction of Spirits into the Settlement must be guarded against with the upmost vigilance, and you are to be extremely cautious in granting Licenses for the retail of Spirituous Liquors, containing them to as few Persons as possible, and the first instance of irregularity in a retailer of Spirituous Liquors should deprive him of his License.
Again in January 181329
Macquarie to Davey
...Having lately received reports from various Quarters that large Quantities of Spirits have been Smuggled and Clandestinely landed at the Derwent from Various Ships and Vessels that have lately touched there, I have to direct and command that you will use every means in your power to prevent further continuance of this illegal, shameful and injurous Practice, and when any Persons are detected in carrying on such illegal Practices have them prosecuted and severely Punished according to the Colonial Regulation established on the subject.
Macquarie to Davey 18 Aug 1814
The series of notorious, disgraceful, and daring instances of Smuggling, which have recently taken place on the Derwent, far exceed anything that has ever yet occurred there or at any of the other Dependencies of this Territory. This traffick has arrived at a most alarming Pitch of late in Van Diemen’s Land, and requires a commensurate degree of vigilance and activity in the Police of your settlements to restrain and prevent it. I hope that the Seizures will in some degree check that extraordinary propensity to smuggling, which appears to pervade all ranks and descriptions of People at the two settlements in Van Diemen’s Land. I cannot therefore too strongly impress on your mind the necessity for your directing your most Zealous efforts to restrain and prevent, by every means in your power, this illegal and disgraceful contraband Traffick in Spirits.
This smuggled spirit still caused problems for the Governor Davey, even when it was impounded by his troops. The letter (above) goes on to say:-
I have never credited entirely the reports, which were in circulation here, respecting your having permitted Fifteen Thousand Gallons of Spirits [68,250L] to be landed within the last Twelve Months at the Derwent; but even the Quantity you acknowledge you have permitted to be landed or distributed, namely Five Thousand Gallons, [22,750L] is by far a larger Quantity than you were warranted by my Instructions either to permit to be landed or distributed to the description of Persons specified in the Schedule, which accompanies those Instructions. I must therefore express my decided disapprobation of your conduct in this instance, more especially as it is a breech of the General Hospital Contract, which you well know I am bound to make good and to fulfil. No Civil Officers at Head Quarters have yet received an issue of Spirits for the present year; and I think you ought first to have obtained my permission before you issued the full allowance of Spirits for the present year to the officers, Cival and Military, in Van Diemen’s Land in advance, for which you certainly had no legal authority; added to which you have committed another very great irregularity in giving a regular issue of Spirits to two Convicts (Messrs. Randall and Bland) equal to what is issued to officers of the highest rank. You must be sensible how very improper and indecorous such very misplaced indulgence is, it being unprecedented at the Seat of Government.
The Contractors will no doubt call upon me, in consequence of this breach of their contract, for an indemnification, to which they are justly entitled; and thus you have entailed additional expense on the Crown, besides placing me in a most awkward predicament. The Smuggled Spirits seized, amounting to 2,800 gallons [12,730L], ought to have been retained in the Bonded Store, until you could receive a communication from me on so important a subject, and not have been sold or thrown into the Market; for, by their being so disposed of, no less than 7,800 gallons [35,490L] of Spirits have been distributed at Hobart Town within a few months, by your own Statements to me; but I greatly fear that the evil has not rested here, as it would appear from Capt. Murray’s own confession, that large quantities of Spirits have been landed at Hobart Town from his Ship, the Eliza, with regular Permits; which, I am sorry to say, corroborate in some degree the reports circulated here by Dennis McCarty, and which I considered as malicious and unfounded until I read Capt. Murray’s Letter and conversed with him on this subject. For your further information, I transmit you herewith an attested Copy of Capt. Murray’s Letter addressed to Mr. Wentworth, one of the Contractors for the General Hospital. This transaction certainly requires some explanation on your part, which I hope you will not fail to afford me.
Later, Davey countered these claims in a letter to Lord Harrowby, where he turns these claims about. In it he argues that “The importation of Ten’s of thousands of Gallons of Spirits and other properties from India had been the grand Support of the General contract, as well as private interests.” He also attacks Macquarie personally, where he enclosed documents that “...will exhibit the highly improper conduct of Govr. Macquarie.” and “...now exposes to open light those dark spots in General Macquarie’s Conduct, whose base disposition, which had laid lurking in Secret, veiled with dissimulation During the whole of his Administration.”31
The annual quota continued, with Civil and Military officers, including magistrates received fifty gallons, superintendents, storekeepers, principle clerks, head constables, school masters and jailors received twenty gallons [91L], overseers, subordinate clerks and constables, ten gallons [45L], Licensed publicans, thirty gallons [136L]32 per year.
This order, in 1815, should have helped solve the problem:
|By orders lately Received form Home [England], all further Issues of Spirits from the King’s Stores to Civil and Military Officers, Superintendents, Overseers, Publicans etc., at a Government Price is strictly forbidden; and I have hereon to Enjoin you not to permit any Issue of Spirits to take place in future throughout Van Diemen’s Land from the King’s Stores to any Person Whatever, whether in or out of the Service of the Government.33
But it appears it did not. At that time the rum was imported from both Bengal and Mauritius into Van Diemen’s Land, the Bengal rum being stronger and sweeter, having a taste that more appeased the palettes of the masses. Often the West Indian rum sat in the Government stores unwanted, only being used when there was a shortage of the Bengal spirit.34
With the spirit being in great demand from those having a Ticket of Leave and those free persons and settlers in the colony, and with the Officers and soldiers having rum issued, it wasn’t unexpected that the bartering with, and the selling of rum became prevalent. Wages for a labourer at that time were ten shillings [$1] a day, for a ‘mechanic’, about 15s [$1.50], so rum was a convenient medium. It seemed everyone from the ‘lower orders’ to the Governor himself was using it to barter for food, goods and services.
This state of affairs caused great consternation in the importers then operating. The public houses were buying their supplies from soldiers, and as they were paying no import duty on their spirits, the soldiers were underselling the importers. The bartering and selling was not confined to small quantities, often it was traded in hogsheads [Eighteen gallons, 92L] at a time.
The government was concerned, too, as it was missing out on the much needed revenue from duty. With so much rum being traded and sold there was a proliferation in sly grog shops, the government having little or no control over licensing.
In trying to redress this problem several people in Hobart Town were questioned, including A.F. Kemp, the Quartermaster, in November of 181935. He was asked (in part):
Q Are Spirits used in barter?
A. They are by every class of persons including the Lt. Governor.
Q Are the Civil and Military officers and soldiers in the habit of disposing of their rations of Rum by Sale or Barter?
A. The Civil and Military Officers dispose of it by barter, the soldiers sell it for money. The pay Serjeant sells it by the cash to the licensed houses...
Q. Do you think this is done frequently and to any amount?
A. Very frequently...
Q. What is the duty on Spirits imported, and how is it levied?
A. Ten shillings P. Gallon [$0.23c/L] without regard to its strength or quality.
Q. Do you consider that this mode of levying is more injurious to the revenue than to the importers?
A. I do.
Q. Do you think it would be practicable to establish a scale of Duties according to strengths of Spirits imported?
A. I think it would.
Q. Has there been any scarcity of Spirit in Van Diemen’s Land within these last four years?
Q. Are there many public houses licensed in Hobart Town?
A. About twenty.
Q. Are the Public Houses there owned by the actual occupier or are they put in by Merchants?
A. Some are the property of those who keep them, and others not above three or four belong to Merchants.
Q. Upon what conditions are the houses taken?
A. The conditions vary. Generally the innkeeper receives an allowance of two pounds [$4] P. week, wood and candle and stand rent free; they must have good characters or the Magistrates wd. not grant them licenses. They pay the proceeds of the week’s sale to the Proprietor.
Before 1821, a licence was required to retail ‘Spirits and Wine’. To sell beer, however, did not require a license. Because of this Government records on the early Ale Houses of the colony are virtually non existent unless mentioned in relation to some other matter.
This system was changed in 1816 to include the Licensing of Ale houses:
The following Regulations, e∫tabli∫hed by HIS EXCELLENCY the GOVERNOR in CHIEF, order dated 27th January 1816, concerning Licen∫es for the Retail of Wines, Spirits, and Beer, ∫hall be in Force in the Settlement in Van Diemen’s Land, on and from the 29th in∫tant, the Day on which the Annual Licen∫es now in Force expire:-
“Every Per∫on, who ∫hall in future receive a Licen∫e for the Sale of Spirits and Wines, ∫hall be required to take out a Licen∫e for the Sale of Beer al∫o:- and on a Refu∫al to furni∫h Beer as well as Spirits, when called for, ∫hall incur a Penalty of Ten Pounds [$20.00], on Conviction before a Bench of Magi∫trates ; which Fine is to be levelled by an order of the ∫aid Bench, and paid to the Informer.”
It being required by the ∫aid Regulations, that all Per∫ons who retail Beer only, ∫hould al∫o take out a Licen∫e ; and it being known that the unlicen∫ed Sale of Beer affords a Colour for Selling Spirits without a Licen∫e;- It is hereby declared, that from and after the 29th In∫tant, any Per∫ons in Van Diemen’s Land, who ∫hall ∫ell Beer by Retail without being duly licen∫ed, will incur the ∫ame Penalty as is affixed to the Sale of Spirits and Wines without a Licen∫e.
The Price of a Licen∫e for retailing Beer is, by His Excellency the Governor in Chief’s Regulations, fixed at £5 [$10].
In all Ca∫es of Conviction of Selling Wine, Spirits or Beer by Retail without a Licen∫e, the whole Penalty ∫hall go to the Informer.36
Public houses and dealers in spirituous liquors paid an import duty in Hobart Town in 1819 of ten shillings per gallon [23c per litre], this figure regardless of the quality or strength of the spirit, and was paid into the Police fund.
However, those who had rum issued to them paid no duty.
Rum was not the only liquor used in the colony. As the vast majority of colony were British born, ale was commonly sought after, and in the tradition of English ale houses most bore colourful names, and many still survive.
Though most of the colonies ale, beer and porter [a dark beer similar to stout] was imported from England, there was already the beginnings of an industry that would last until today, and provide a major industry in the Derwent Valley. That is the local growing of hops and the brewing of fine ales. One early speculator in this endeavour was Mr G Gatehouse. Initially a merchant in a Hobart partnership for four years, he decided to divert his attention to the establishment of a brewery in 1820. In March of that year he answered the following questions:37
Q When do you expect to begin malting?
A About June next.
Q Do you intend to Malt with Barley or Wheat?
A With Wheat this year as I have not been able to procure Barley.
Q Is this the first experiment made in the settlement?
A Austin, a settler at the ferry has tried brewing upon a small scale and sells it.
Q Have you observed a great demand for English Beer on arriving in this Colony?
A Yes, always.
Q From your observation of the crops of Barley do you think the settlers will be able to grow it in perfection here?
A I have no doubt of it.
Q From whence do you expect to obtain the hops?
A I have now by me about three tons [3 t] of English Hops and have contracted with the settlers for a supply. I have no doubt but that in two years there will be a sufficiency.
Q What is the imported price of English beer and porter at this place?
A Usually from £10 to £12 per Hogshead.
Q Do you think you’ll be able to brew it cheaper?
A Yes, I do.
That initial supply of hops was grown in the New Town district, it would not be until the 1860s that the Derwent Valley would become established at the countrys hopfields. New Town was a separate village, and at the time the centre of Hobart’s agricultural industries. Later that year, in December, it was noted:
|With reference to the state of the Brewries, I beg to state that of Mr Gatehouse at New Farm will be ready by Harvest Time ; that of Mr Loane is nearly completed, and Mr Cawthorn at New Norfolk has for some time past been Brewing a fine description of Table Beer from Malt made up of Wheat for which there has been a great demand38.
Licenses were still granted by the full bench of Magistrates, who met on or about the September 29 each year for that purpose. The annual licensing procedure began with an advertisement, such as appeared in the Hobart Town Gazette on Saturday September 15, 1821:
period at which Licen∫es for the Retail of Spirits, Wine and Beer, for the
en∫uing Year are granted being now at hand, ∫uch Perfons as are
de∫irous of obtaining Licen∫es as Publicans under the actual
Regulations, are to ∫end in to this Office written Applications, on or
before the 25th In∫tant, in Order to their being handed to the Bench of
Magi∫trates, for the Selection of the Number to be Licen∫ed.
No Per∫on under Sentence of the Law, nor any Clerk, Con∫table, or Person of any De∫cription in the Service of the Government, is allowed to hold a Licen∫e ; and none need apply who∫e Application is not ∫upported with the required Te∫timonials to Character, and who∫e Hou∫e is not known to po∫∫e∫s the nece∫∫ary Accommodation of a decent and comfortable Public Hou∫e.
By 1823 the brewing of beer in the colony was what today would be termed a growth industry. As reported in The Hobart Town Gazette39,
By the full bench of Magistrates, which affembled at the Court Houfe, Hobart Town, on the 19th ultimo... the following perfons were licenfed to brew beer, ale & porter from grain the produce of Van Diemen’s Land, only, viz:-
Mr. George Gatehoufe, at New Town,
Mr. James Whyte, Hobart Town,
Meffrs. Petchey & Wood, ditto,
Mr. Thomas Prefnell, ditto; ...
Beer, as with much of the young colonies requirements, was still being imported from England, and the arrival of ships with their precious cargoes “from Home” was widely advertised in the newspapers of the day. These examples, on page one and underneath each other, are typical of the announcements made by importers when new shipments arrived:40
|Hadgeson’s Pale Ale, in Bottle and cask, fifty Hogsheads and 40 Tierces of the above, imported per the William Shand, are now on sale at the stores of the undersigned, at the wharf.
BETHUNE & GRANT
|Just Imported per the William Shand from England, and now for sale, at the stores of the Undersigned, on the wharf, the following articles: - Earthenware, ready made clothes, brown stout, cyder and Edinbourgh ale, in bottles, ribbons, superfine cloths, Medeira wines, in cask, Port ditto, in bottles, elegant ladies’ gowns, muslins, biscuit, in tin cases; sugar and tea.
BETHUNE & GRANT
With the independence of the Colony of Van Diemen’s Land approaching, one of the last Acts from New South Wales to come into force was a new Licensing Act. Entitled “An Act to regulate the Granting of Licenses for the sale of Spirits, Ale, Beer and other Liquors in New South Wales and Van Diemen’s Land Respectively.”, the Act in Council 6 Geo IV No 4 was passed on the eighth of February 182541.
Though it seemed straightforward, the wording of the Act, was to cause great consternation in Van Diemen’s Land.
In the act:-
|...it is amongst other Things enacted, that before any such Licence as therein mentioned, shall be granted, a Certificate, to the Form and Effect thereinafter mentioned, shall be obtained from the Justices of the Peace, ...within the District or Township nearest to the House intended to be made a Public house as aforesaid ; and that no such Certificate shall be valid, unless the Justice of the Peace, living nearest to the House, shall have signed the same, or have signified, in Writing, his Approval thereof...
In a letter to Sir Thomas Brisbane K.C.B, Governor of the Colony of New South Wales, Lieutenant Governor Arthur explains the problems experienced in trying to enforce this Act42:-
Government House, Hobart Town,
15th September, 1825
I had the honour of addressing Your Excellency on the 2nd of April last, respecting the Act of the Council, past in February last, for regulating the granting of Licenses, communicating the difficulty which had arisen thereupon in this Colony ; and I had anxiously hoped the subject might have been taken into consideration, so that I might have been honoured with your decision thereon prior to the 29th September Inst., at which period Licenses have hitherto been always granted in Van Diemen’s Land ; disappointed in the expectation, I felt it necessary to refer the point again to the Attorney General, as all existing Licenses will expire here on the 29th Instant ; Copy of his Opinion I have the honour to enclose together with a Letter from the Crown Solicitor, whom I had required to frame an Advertisement upon the subject. I also beg leave to enclose the Copy of a Letter from the Chairman of the Bench of Magistrates and Superintendent of Police; by these Documents Your Excellency will perceive that we are placed in very great Embarrassment and that it is totally impossible for the Magistrates to issue Licenses in this Colony at present according to the provisions of the Act
I have &c.,
The enclosures mentioned were from the Attorney-General Gellibrand, Mr. Alfred Stephen and the Magistrates of Hobart Town, Joseph Hone & A.W.H. Humphrey.
In his letter to Lieutenant Governor Arthur, the Attorney-General Gellibrand states “...I am still of opinion that the time and the manner of granting the Certificates and Licenses cannot be fully complied with in this Colony, as directed by the Act.
“I am still of the opinion that the Magistrates cannot at present legally grant the Licenses under the Act (altho’ it may perhaps be advisable to do so); and if they do, that the Council must pass an Act of Indemnity to protect them.”
In the second enclosure, a letter from Mr. Alfred Stephen to Captain Montagu, Mr Stephen states:
Finding that the Attorney General... is still of opinion that Licenses cannot legally be granted under these Acts ...It is evident that the time limited by the Act cannot be attended to... Upon this, several difficulties arise as to the apportionment of the Licensing money.
...The Clause requiring Certificates to be granted by Justices within the district or township nearest to the public House is inconvenient to the last degree, if not impracticable, in this Colony for many local reasons. There are 29 districts in Buckinghamshire. In Several there is no Justice of the peace; in others, only two and not more than perhaps 3 or even 2 respectable house-keepers.
...It would be nearly impossible to assemble the Magistrates throughout the Colony within the districts until some time after the 29th Instant, on which day all the present licenses expire.
...But the 5th clause enacts that, “before any licenses shall be valid for any purposes.” the same shall be countersigned by the Commissary of Civil Accounts for this Island; and there is no such Officer here.
For these and other reasons, and especially considering that the Attorney General is of the opinion that the Acts in question can not safely be put into operation... that deviation from the precise terms of the Act would excite investigations upon the subject, which must be highly undesirable; these Gentlemen [the publicans] have expressed it to be their decided impression that the old system ought under the circumstances be retained, except however as respects the amount of the licensing money, which they would recommend should be the sums provided by the late Acts, and no more.
I have consequently found it impossible to frame the advertisement, which His Honour contemplates...
The third enclosure, from the Magistrates Joseph Hone & A.W.H. Humphrey to Lieutenant Governor Arthur says in part “...in reference to... the peculiar situation of the Colony, it may be better to license according to the Old System than at present adopt the new one.. In the first place, it is clear that the Magistrates cannot meet on the day specified... Secondly, that they cannot meet in Districts as required by that Act ; And thirdly, that no License should be valid for any purpose without being countersigned by an Officer not yet attached to our Island.”
This letter recapped, “There may be difficulties under the old system, but not so many, or so formidable, as those which would arise under the new one.”
The suggestion of a ‘mixture’ of the Acts appears to be the course they ended up taking, as the licenses continued to be issued on September 29 until the 1850’s when another new act was introduced. This new act (of the 1850’s) will be discussed in a later chapter. Gazetted on October 22, 1825 in the Hobart Town Gazette were 48 hotels whose licenses were granted (see table next page). And with that notice began the unbroken series of Licensees for the Bush Inn that continues until this day. Several of the other hotels mentioned in the notice are still trading today, but in different premises, or with breaks in their licenses, or the modern hotel taking its name from an earlier one.
At the General Meeting of His Majesties Justices of the peace in and for
Van Diemen's Land, held at Hobart Town on the 29th Day of September1825,
the following LICENSES were granted:
For retailing Malt, Spiritious, and other Liquors in Hobart Town
Jno. Petchey &
Wm. T Stockes
Horse and Groom
Coach and Horses
Bird in Hand
To sell Malt Liquors only in Hobart Town.
Rose & Thistle
For retailing Malts, Spiritous, and other Liquors, in the Country.
Plough & Harrow
Lovely Banks Inn
Three Jolly Farmers
Brockley Combe Inn
The Golden Fleece
The early years of the Bush Inn are particularly interesting, as for much of it there is accurate documentation, as well as the myth, mystery and speculation that abounds about all long established hotels.
Original material © November 2000 KM Roberts