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	Australian Journal of Legal History

THE BOUNDARIES OF COLONIAL CRIMINAL LAW IN RELATION TO INTER-ABORIGINAL CONFLICT (‘INTER SE OFFENCES’) IN WESTERN AUSTRALIA IN THE 1830S-1840S

ANN HUNTER*

I INTRODUCTION

The question of whether Aborigines were subject to British law for conflicts between themselves (inter se offences), arose in New South Wales and Western Australia during the 1830s and 1840s. There is evidence that the colonial government and the courts in Western Australia responded to a perceived problem independently from New South Wales.[1] It had already been confirmed by the courts in 1837 that British law applied to offences against Europeans by Aborigines.[2] The issue of how the colonial government and the courts were to deal with inter se offences had initially arisen out of complaints by settlers of increased street violence in Perth amongst groups of Aborigines. This perceived problem then extended to the need to deal with attacks by Aborigines on other Aborigines residing with or employed by settlers in towns and dwellings of the colony. This reflected the value of their labour amongst other things, in the pre-convict era. Prior to 1838, colonial government policy had been not to interfere with the ‘private quarrels’ of Aborigines, partly because it was not seen as their business where Europeans were not directly involved.[3] This is likely to have arisen from a growing realisation by both courts and the colonial government that Aborigines could not really be treated as British subjects, nor could British law effectively be applied in relation to inter se matters.[4] A variety of ‘experiments’ were attempted by a colonial government eager to resolve this aspect of ‘the Aboriginal problem’.[5]

Unlike New South Wales which had convicts from 1788, the Swan River colony was established as a free settler colony in 1829 and land grants were allocated based on what its small population of settlers could provide in the way of collateral. Despite the fact that there was indentured labour tied to the land grants, there was a shortage of labour in the colony.[6] Aborigines were increasingly dispossessed of their lands. By the 1840s the colonial invasion had spread from Perth and the south-west to the Murchsion, and North West of Western Australia. Aborigines were often perceived as a threat by the settlers, when they congregated in large numbers, and when they threatened the settlers’ security and livelihoods.[7]

This paper examines the approach of the colonial government and courts to the application of British criminal law to murder and assaults between Aborigines in Western Australia. It examines the R v Helia and the R v Wewar cases, and makes comparisons with key New South Wales cases in the 1830s and 1840s.[8] This includes the debates surrounding the legal status of Aborigines and the kinds of arguments put forward relating to recognition of customary law.

II INTER SE CASES IN NEW SOUTH WALES

In the same year as the formation of the Swan River colony in 1829, the first case was heard in New South Wales which tested whether the Supreme Court had jurisdiction when one Aborigine killed another: R v Ballard or Barrett.[9] The tribal killing had occurred at the Domain near to central Sydney in 1829. On 21 April, the Attorney General had initially sought Chief Justice Forbes opinion on whether Robert Ballard was amenable to British law. Forbes opinion was that the Supreme Court would not have jurisdiction if the killing was a result of a dispute within a tribe solely in accordance with Aboriginal customs, but that it would have if an Aborigine had come to town and placed himself under the protection of British law.[10] The formal hearing that followed resulted in Ballard being discharged for want of jurisdiction.

Forbes noted that it had been the policy of the courts and government not to interfere in quarrels between Aborigines.[11] He stated:

it appears to me that it is a wise principle to abstain in this Colony as has been done in the North American British Colonies, with the institutions of the natives which, upon experience will be found to rest upon principles of natural justice ... . They gave up no natural rights. This is not merely a matter of theory but practice ... They make laws for themselves, which are preserved inviolate and are rigidly acted upon.[12]

He also pointed to the injustice and impracticality of applying British law to Aborigines in relation to inter se conflict.[13] The other judge in the matter, Dowling had said that:

Until the aboriginal natives of this country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human or divine, which ought to justify us in interfering with their institutions even if such an interference were practicable.[14]

R v Murrell (1836)

The Murrell case seven years later was to overrule the Ballard case.[15] In Februrary 1836, Jack Congo Murrell had been indicted in the Supreme Court for the wilful murder of Jabinguy (Jabbingee) and George Bummery was charged for the murder of Pat Cleary on the road between Windsor and Richmond.[16] In his oral argument (which expanded on his plea against the court’s jurisdiction), Murrell’s lawyer Sydney Stephen argued that New South Wales was neither ceded, settled nor conquered.[17] Aborigines continued to be governed by their own laws since time immemorial. The British had come to reside amongst them and by analogy the British should obey Aboriginal laws. Murrell belonged to a tribe who were not British subjects nor subject to British laws. Neither Murrell nor Jabinguy were practically able to be protected by British laws and therefore were not bound by them.[18] The Supreme Court overruled the plea on jurisdiction.[19]

The leading judgement by Justice Burton (with which the other judges were in agreement) stated that Aborigines were amenable to British laws for inter se offences and against the peace of the King.[20] The act had occurred on New South Wales territory that had been possessed by England, and ‘the English nation has obtained and exercised for many years the rights of Domain and Empire over the country thus possessed and it is particularly designated by an Act of the Imperial Parliament’.[21] Burton made no distinction in law between British subjects and aliens as both came under the protection of British law. Aborigines did not have laws that could be recognised.[22] He said that:

Although it be granted that the aboriginal natives of New Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.[23]

As Kercher points out that a theory of terra nullius was invoked by Burton.[24] Burton had taken a pragmatic approach by concluding that, if the Supreme Court had not had jurisdiction, then there would continue to be violence on the streets and there would be no protection under British law for Aborigines.[25] Despite there being no provision for Aborigines to give evidence in New South Wales, Burton dismissed Stephen’s arguments of the likely injustice, stating that this could be overcome by the local legislature and by the exercise of the royal prerogative of mercy.[26] As the Court found it had jurisdiction, Murrell and Bummery were tried on 13 May 1836. Murrell was found not guilty and the Crown did not proceed with the prosecution of Bummery.

R v Bonjon (1841)

While the Murrell case was authority for the courts jurisdiction on inter se matters, Justice Willis in Port Phillip (also a part of New South Wales) reached a very different conclusion in R v Bonjon, debating the issue of sovereignity of the Aborigines.[27] In September 1841, Bonjon (Bon Jon), was tried for the murder of Yammowing in Geelong.[28] Bonjon’s lawyer Redmond Barry argued that the court did not have jurisdiction. He argued that New South Wales was occupied which gave the Crown a right to the soil, but not authority over the Aborigines as subjects unless some treaty, compact or other expression of assent had been made. Aborigines had their own laws and modes of regulation and punishment and were self governing communities.[29]

In his judgment Justice Willis said he was not bound by Murrell. In his opinion the Supreme court did not have jurisdiction over crimes committed by Aborigines against one another.[30] New South Wales was not unoccupied at the time the colony commenced and Aborigines were distinct though dependent allies, not British subjects who were entitled to exercise their own usages and laws. This case was not viewed as authority at the time, but (along with the Ballard case) it is viewed today as the highest to which the Supreme Court reached on Indigenous legal autonomy.[31]

III WESTERN AUSTRALIA

Lieutenant-Governor Stirling received hastily drafted Instructions from London in 1828 with no information on the legal status of Aborigines. However, in his proclamation of 1829, Stirling stated that:

... the Laws of the United Kingdom as far as they are applicable to the Circumstances of the Case, do therein immediately prevail and become security for the Rights, Privileges, and Immunities of all His Majesty’s Subjects found or residing in such Territory.[32]

He also proclaimed that:

if any Person or Persons shall be convicted of behaving in a fradulent, cruel, or felonious Manner towards the Aborigines of the Country, such Person or Persons will be liable to be prosecuted and tried for the Offence, as if the same had been committed against any other of His Majesty’s subjects.[33]

When the full instructions eventually arrived from London in 1831, Stirling was instructed to

do to the utmost of your power promote Religion and Education among the Native Inhabitants of Our said Territory or of the Lands and Islands thereto adjoining And that you do especially take care to protect them in their persons and in the free enjoyment of their possessions and that you do by all lawful means prevent and restrain all violence and injustice which may in any manner be practised or attempted against them and that you take such measures as may appear to you to be necessary for their conversion to the Christain faith and for their advancement in Civilization.[34]

Increasingly, public officials found it more difficult to treat Aborigines as British subjects in accordance with colonial office instructions.[35] The priority focus for legal policy was on the protection of settlers’ lives and property more than protection of the rights of Aborigines.[36]

Governors had considerable influence in determining legal policy in relation to inter se matters.[37] There was a close relationship between the colonial government and the magistrates. The Governor could issue instructions on legal policy to Magistrates on a regular basis, but was required to refer death sentences to the Executive Council as contained in his instructions.[38] The Court of Quarter Sessions conferring criminal jurisdiction was set up in December 1829, which was confirmed in 1832 by legislation.[39] Legally trained Magistrate, Chairman William Mackie was appointed in 1829.[40]

In the early 1830s, the Swan River Colony comprised of a small but scattered population of Europeans, which became a steadily expanding frontier of settlement towards the 1840s. Settlers became increasingly fearful of attacks by Aborigines on their property and lives.[41] As early as 1833, they had expressed their concerns to the colonial government about the increasingly large numbers of Aborigines building huts, lighting fires and undertaking tribal battles near to houses, and in the streets of Perth.[42] The more frequent congregation of different tribes was attributed partly to the increasing scarcity of traditional game as a result of settlers’ activities.[43] Whilst Aborigines engaging in traditional activities were not welcome in Perth, increasingly, Aborigines from tribes around Perth, were casually employed for various jobs and paid in flour.[44] The government’s interpreter and ‘superintendent of natives’ Francis Armstrong had on previous occasions sought advice from Mackie about how to deal with matters involving tribal conflict in Perth. Mackie had told him that the Governor thought it best not to interfere in what was seen as their ‘private quarrels’.[45]

Courts operated in an frontier environment and often acted as an extension of it.[46] The first criminal law case to definitively spell out the law in relation to the treatment of Aborigines for offences against Europeans in 1837, in the Court of Quarter Sessions was R v Gear (alias Obediah) or the Gear case.[47] In that case, Gear had been tried for stealing some wheat from Advocate General George Fletcher Moore’s farm on the Upper Swan. Mackie applied the direction of the Home Government when he said:

it must be remembered, that the Aborigines were adopted as British subjects, and had every right to our protection; but at the same time they became amenable to our laws, and liable to punishment when they violated them. It must be borne in mind, that they (the jury and the magistrates) were not sitting there to create new laws, but to administer them as they had existed.[48]

The emphasis was on punishment and making an example to other Aborigines, in order to protect the property and security of settlers, often mixing legal and illegal remedies.[49] Mackie had warned Gear about taking retaliatory action when Gear had replied that the ‘black men would be very sulky, and would threaten and injure the white man, if they sent him away’. Mackie had asked the Interpreter to explain to Gear that ‘if his friends adopt any measure to resent his being punished he will be kept in confinement still longer, to answer for their conduct’.[50]

A year earlier, Moore in his private journal had outlined official policy in relation to inter-Aboriginal conflict where Aborigines came into contact with settlers:

Weenat had placed his wife in my kitchen as a refuge this morning. Some of the Murray River natives came to tell me they wanted to spear her and asked me if I would be angry. Of course I did not suffer them to do it, telling them that when natives were in our houses they must be unmolested, but when they were in the bush we did not interfere. Now all this shews the absurdity of directions that have been sent from home that natives are to be treated and dealt with as British subjects. There were perhaps 100 people in a deadly fight. Fancy a magistrate going and reading the riot act or fancy any attempted interference by the laws.[51]

R v Helia (1838)

The Helia case was the first that came before the Court of Quarter Sessions in Perth involving an inter se murder.[52] Helia had been indicted for the murder of Yatoobong (Yatorbong) in a tribal conflict in the streets of Perth and had pleaded not guilty. According to his statement made through the Government’s Interpreter, Helia admitted spearing Yatoobong but not with the intention of causing her death.[53] His intention in spearing Yatoobong had been to avenge his daughter’s Wilgup’s death.[54] Helia was not represented by a lawyer and no witnesses were presented on his behalf. There was no debate on the applicability of British law to Aborigines, and ‘the court directed the meaning of the sentence of the indictment and the grounds and object of his arraignment as arising out of the laws of the white people’.[55] Helia was found guilty and sentenced to death. The issue of whether his sentence should be commuted was referred to the Governor in Council. At its meeting on 13 July 1838, Governor Stirling sought the opinion of George Fletcher Moore. Moore’s opinion was that Aborigines had their own established laws that guided their conduct amongst themselves. In Moore’s opinion, Helia was an inoffensive and quiet old man who was acting in retaliation obligated by his own laws.

In doing so he was acting in the fulfillment of what he considered an imperative duty, in discharge of a binding obligation and it would be cruel to take away his life for acting amongst his own people, in a manner sanctioned and recognised as right by them, and although his conduct be in contradiction of one law, yet of that law as applying to his own people he neither knows the existence, nor could understand the force.[56]

Moore considered that it was necessary to educate Aborigines about British laws and to allow them to receive the benefit of them, before British law could be applied to their transactions with each other.[57] Governor Stirling agreed. Stirling was concerned:

‘that consequently to apply steadily and impartially the British law, to this particular offender would be to pass sentence of death upon the whole race’... and, ‘that the time did not appear to have arrived for its application, to the natives in question between themselves. Instruction must be conferred upon them. Civilisation reclaim them and protection be secured by the law before they could justly be tried [my emphasis] or liable to its punishment.[58]

Helia was sent to Carnac Island in July 1838 and then to the new prison being constructed for Aboriginal prisoners on Rottnest Island with several others. However he was drowned in an escape attempt, when the boat overturned on 9 August 1838.[59] It was thought by some that he had been killed by his companions and this information spread to others who sought revenge for this action. The congregation of tribes mourning Helia’s death close to settlers’ houses increased fear amongst the settlers of retaliation.[60]

A memorial lodged in October 1838 by influential townspeople in Perth, complained of inter Aboriginal violence and appearance of nudity in the streets of Perth, which increased pressure on the colonial government to act.[61] Measures that resulted included a change to Interpreter Francis Armstrong’s role to include that of town policeman under the control and direction of the magistrates residing in Perth.[62] This was later formalised in 1840 with the Protector and Magistrate Charles Symmons being instructed to banish offenders from the town for comittingh inter se offences. A police constable was also especially appointed for this purpose.[63] This increasingly focused attention on the application of formal legal processes to Aborigines and added to the Nyungars’ continual loss of rights to practise their own laws within the precincts of the town site of Perth.[64] Aborigines resisted the various measures that included having their spears broken in towns or settlements, but the combined effects adopted by the magistrates and colonial government pushed their traditional activities outside of the town, where there was no interference.[65] As a result of various control measures in 1839 and 1840, there were no inter se cases in Perth until 1846, the year that Hutt left the colony.[66]

R v Weban (1839)

The focus moved to the rural settlements with the apprehension and subsequent prosecution of Weban, before the Court of Quarter Sessions in April 1839.[67] Weban (Weeban) had been indicted for killing an Aboriginal child named Yellelan who had been living in a house in the Upper Swan, under the particular care of a settler named Eliza Shaw.[68] The issue of jurisdiction of the court to hear the matter was not raised. However, the case attracted the attention of the editor of the Perth Gazette. He reported the Advocate General’s explanation to the jury. that the relationship between the murder of Yellelan to previous inter se conflict had led to Weban killing Yellelan in retaliation, the act being a ‘final determination of all differences arising out of the several murders’.[69] In answer to the charge, Weban responded by saying that Weenat’s party had killed his brother and that Tomigin had told him to kill the child in revenge for that act. Weban was found guilty but his sentence of death was commuted to transportation to Rottnest Island for life.[70]

Governor Hutt had been appointed in January 1839 four months earlier, and immediately began reviewing colonial policy towards Aborigines. Six months later, he issued a notice that read:

If a native residing with, and under the care of a European is killed by a native, the Governor will immediately have the murderer apprehended and punished in precisely the same manner as if the murder had been committed on a white person.[71]

This was even if the injury was inflicted in accordance with Aboriginal laws and customs.[72]

IV GREY’S ‘GENERAL PRINCIPLES’

Although there is no evidence that Western Australia was directly influenced by the other Australian colonies on inter se policy, in 1840, Captain George Grey had written a report to Secretary of State for the Colonies, John Russell (which was later distributed to New South Wales and New Zealand) advocating a policy that could be adopted throughout Australia subject to local circumstances.[73] Grey had been a resident magistrate in Western Australia in King George Sound from 1837 to 1839, and his experiences formed the basis of his report.[74] Grey stated that his intention was to formulate ‘general principles’ before more widespread settlement of Australia occurred.[75] He argued that the main reason why the current policies were not working was the erroneous principle that:

although the Natives should, as far as European property and European subjects were concerned, be made amenable to British laws, yet, so long as they only exercised their own customs upon themselves and not too immediately in the presence of Europeans, they should be allowed to do so with impunity.[76]

Grey referred to examples in Perth in October 1838 shortly after the Helia case, and to various rural examples, where no official action had been taken.[77] He claimed that the reason why this principle had been defended was: ‘that the natives of this country are a conquered people, and that it is an act of generosity to allow them the full power of exercising their own laws upon themselves’.[78] In stating his disagreement with the principle, Grey believed that Aborigines did not have a regular code of laws and that:

when Great Britain ensures to a conquered country the privilege of preserving its own laws, all persons resident in this territory become amenable to the same laws, and proper persons are selected by the Government to watch over their due and equitable administration.[79]

However, because Aboriginal customs were not considered a code of laws by Grey, he did not believe the cases alluded to, presented a analogy.[80] Grey wanted Aborigines to be weaned from their own laws, and for them to re replaced by British law which he envisaged would provide protection against violence for all inter se ‘offences’ as well as meet the objects of policies on ‘civilisation’.[81] In his view, under the present practice there were no benefits or protection under British law for Aborigines, only the effect of punishment.

Hutt disagreed that the British law should apply to all inter se cases.[82] He thought that they should only apply to those ‘which come under our cognizance’ which ‘must be treated as breaches of the peace, and that even murder can only be visited with the penality of banishment’.[83] In his opinion, one of the difficulties was the inability of the Government to establish a larger police force, which was presently inadequate to provide protection to the scattered Aborigines from one another, and until this could be done, it would be ‘unjust’ and inexpedient to interfere with their laws and customs so as to prevent their protecting themselves.[84] Hutt also emphasised the difficulty of obtaining evidence in cases in which Aborigines alone were involved.[85] He believed in a gradual approach towards the assimilation of Aborigines into a ‘civilised’ society, and expected that education and training programmes would assist this objective.[86] In his opinion, ‘if the Aborigines and the colonists are destined to occupy this land in common as British subjects, they ought to be encouraged to mingle together as one people’.[87] He therefore approved and implemented Grey’s other idea for a financial concession to settlers who purchased land, on condition that they employ an Aborigine for two years employment such as in a trade.[88] In his view there was an inequity arising from the lack of ability of the British laws and procedures to apply to Aborigines for their protection and for their liability for offences against Europeans and each other. It is interesting to compare Hutt’s response to Grey’s general principles, with that of Governor Gipps in NSW, who in 1840 told Russell that this principle of non-interference had not been practised for many years by the government in New South Wales.[89]

Hutt believed that special laws should be applied to Aborigines in the interests of justice rather than a strict enforcement of British law, and that once this happened then civilisation would be possible and Aborigines would no longer have to seek redress from their own laws.[90] Hutt had sent a draft Bill to the Colonial office in May 1839, which would allow Aborigines to give evidence without an oath in criminal proceedings, and allow magistrates to administer summary punishment for offences for which not more than twelve months imprisonment could be given.[91] The Act had been passed in 1840 by the Legislative Council and this Act was in operation for a year, before news reached Hutt of its disallowance by the home government.[92] A second amended Act was enacted by the Legislative Council in November 1841, but it does not appear to be until 1843 that the matter was settled by the passing of an Imperial Act that confirmed colonial legislation on the subject, and not until 1849 that summary punishment provisions were allowed.[93]

R v Wewar (1842)

The first case to debate the jurisdictional issue in WA was R v Wewar (1842).[94] In October 1841, We-war (We-wa) from the Murray River tribes, was arrested for the wilful murder of Dy-ung (Dyang) from the Canning River area, which had occurred on Thomas Peel’s farm. Dyung had been employed by settler and government resident John Phillips to guide soldiers through Murray tribal territory towards Peel’s farm.[95] According to European witnesses, Wewar had joined the party with the consent of Dyung and the two were reported as getting on well together. Later that night, while Dyung and Wewar were sleeping in a separate hut adjacent to Peel’s house, Wewar speared Dyung. The trial was held in January 1842 before Chairman Mackie and a full bench of magistrates.[96] Wewar pleaded not guilty. In his statement made in October 1841, Wewar is reported to have said through an interpreter

I speared Dy-ung to avenge the death of Nindar, a Murray Native killed at Perth by Ningena ... Dy-ung was Ningena’s nephew, but after I had left him, another native Ki-bar made the wound larger.[97]

The newspaper report of the case stated that Nindar was Wewar’s adopted son.[98]

Wewar was represented by lawyer Edward Landor who had only recently arrived from England in August of the previous year. Landor had been asked by the Protector of Aborigines and Magistrate Charles Symmons to represent Wewar, and Landor made a number of arguments against the court having jurisdiction.[99] The first was that:

It being declared and acknowledged that we acquired possession of this colony by occupancy, and not by conquest, it follows that our laws would not apply to the aborigines for offences committed among themselves, without some express assent on their part by which they agreed to adopt and acknowledge them. 2ndly. Even if the colony were acquired by conquest, it would still be necessary to show that our laws had been expressly imposed upon the natives, and were to be thenceforth received by them in lieu of their own. 3rdly. If they be subject to our laws, they must be subject to the whole machinery of the law, and ought to be punished for minor offences committed among themselves, as slander, perjury, theft, indecent exposure of the person etc. 4thly. The natives have laws of their own, and stated punishments for particular crimes, and therefore the prisoner had most probably been already either punished or acquitted for the same offence, by the only laws he was acquainted with or bound to obey; and that it is contrary to all justice that he should be tried and punished again. 5thly. There is no act of Parliament which provides that the aboriginies shall, as among themselves, be answerable to our laws, and that, as we choose to found our title on occupancy, no local proclamation is sufficient authority to make them so amenable; for if the Governor have not arbitrary power to impose penal laws by proclamation upon us, who are really British subjects, a fortiori (all the more so), he cannot possess that power over strangers. If they were already British subjects, there was no need of a proclamation; if they were not British subjects, no proclamation could impose penal laws upon them. And 6thly. The circumstance of killing a man who happens to be casually employed by the British, does not make that to be murder, within the meaning and cognisance of our laws, which would not be murder, had the party not been so employed by the British.[100]

Chairman Mackie announced that Landor’s arguments had been overruled by the majority of magistrates.[101] He outlined three modes of the acquisition of foreign territory, treaty, conquest and occupancy. Mackie ruled out conquest even though he said that some of the measures of the British Government may be more consistent with this mode, but that ‘the theory of that government, as expounded by successive Secretaries of State, is, that its possession of the territory is based on a right of occupancy’.[102]

While there were not a large range of law books available at the time, Mackie had access to Vattel and Blackstone and, ‘other writers on the law of nations’. However, there is no reference to any New South Wales cases or other cases.[103] Mackie observed that:

There are two cases in which such a right may be exercised. First, in the case of an uninhabited country; which is not the present case. Secondly when a large extent of country is roamed over by wandering savages, who make no use, or a very trifling use, of the soil, and subsist by the chase and spontaneous products of the earth.[104] ... Those savage tribes have no right to exclude the rest of mankind from which they themselves make no proper use. Those writers, however do not proceed to prescribe by what common principles or rules the intercourse of the Aborigines, within the limits so occupied, and the newcomers is to be regulated. But as jurisdiction is clearly an inseparable incident of sovereignity, it follows that the British nation having, under the principle of the law of nations just stated, taken possession and assumed the sovereignty of a territory bounded by certain parallels and meridians, the law of that nation must be paramount coextensively with that territorial sovereignty.[105]

In Mackie’s opinion, there were limits to the application of British criminal law to ‘offences’ committed between Aborigines:

It is not however to be supposed that a prudent and judicious government would enforce the application of British Law indiscriminately to all transactions of the natives inter se, so as to incur the risk of burlesqueing the persons of justice, or turning them into engines of wanton oppression. There are certain obvious limits to that application, as to a right to be protected and offences to be punished. There are on the one hand those sacred rights of persons, which regard the safety of life and member;- on the other, those offences against the laws of god and the law of nature (or, as the latter has been defined, ‘the dictates of natural conscience’) which infringe those rights; and among which offences, the vindictive spilling of blood is unquestionably one, even within these limits, as to rights and offences the operation of the law has hitherto been further confined to cases in which the suffering party was, at the time of the offence, in the service, in the house, or otherwise under the protection of a settler.[106]

According to Mackie the purpose of setting these limits were for ‘justice and humanity’ and advancing the objects of ‘civilisation’ by encouraging Aborigines into employment by the settlers, and by allowing the British law to protect them from their kin and away from their own customs. Mackie expressed concern that settlers might take matters into their own hands if the law was not applied in this instance and acknowledged that up to this point, there had not been any interference with the ‘laws and usages of the natives’, as between each other, outside of towns and dwellings.[107] The category of exceptions now included the protection of British law to those Aborigines employed or in a settler’s house.

While matters of public policy were a large factor in Mackie’s decision, he added that: ‘The court cannot entertain the objection that by holding the British Criminal Law to be applicable to the Aborigines, they render the latter liable to unjust and arbitrary interference with their natural laws and usages’.[108]

The Advocate-General Richard Nash argued:

The title of England, or of any nation to a savage territory, was that of occupancy, where the individual savages or families (for tribes were nothing more) did not resist, and of conquest where they did.[109] Did any man believe that if all the tribes had gone to the first party of settlers, and informed them that they did not intend to allow them to reside here, that the British Government would have obligingly abandoned the territory? In fact, there never was a more unlucky case for such an argument than that of the prisoner at the bar, whose tribe had actually so resisted, and been accordingly attacked and conquered in the fullest sense of the word. ...[110]

Nash had referred to the massacre at Pinjarra that occurred on 28 October 1834 which resulted in many more Aborigines than Europeans being killed. Wewar had been one of the two elders remaining from the Murray River area that had survived.[111] Stirling had led an official party of soldiers to punish the Murray River tribes for earlier reprisals by members of the tribes on settlers and soldiers in that region.[112] Stirling had been concerned about the threat to the colony that this posed, including fears of a general uprising, and had proceeded to seek out the offenders. He had warned survivors afterwards

that the punishment had been inflicted because of the misconduct of the tribe; that the white men never forget to punish murder; that on this occasion the women and children had been spared; but if any other person should be killed by them, not one would be allowed to remain on this side of the mountains.[113]

Nash argued that British criminal law should punish rather than deter crime, as an example to other Aborigines. His argument of expediency did not impress Landor who objected to such an approach in a court of law.[114] In reply, Landor argued that criminal law could not be applied to Aborigines who already have their own laws, which they are bound to obey. Aborigines could not be expected to be subject to laws that they did not understand until they had been taught the value of those laws.

Wewar was found guilty by a grand jury of settlers, and his sentence was commuted to transportation for life.[115] On the way to prison at Rottnest, Wewar was reported to have said to Henry Trigg who was present at the trial:

I can not understand why the Governor is sulky or severe with me, if a white man kills a white man we never interfere. Sometime back the white man killed many of the natives and the Governor took no notice, now why should the Governor take any notice of me if I kill a fellow native that steals my wife, or kills my brother, when it is according to our law.[116]

In the debates that followed the trial, the editor of the Inquirer, Francis Lochee (a solicitor and journalist), referred to the distinction between personal and territorial law, stating that there were customs practised under personal law that were not punished under British criminal law, (such as in India) even though they would be considered an offence.[117] While Lochee equated the Wewar case with this example of a personal law, he added that:

so far then his punishment by us would seem to be unauthorised and against precedent; but we do not see why we are compelled to follow the practice of the Indian government ...[118] Wherever a civilised people go, they carry their rights along with them and the first is their power to protect themselves... .[119]

In a letter to the Inquirer and in his subsequent book, Landor had referred to the potential flexibility of the common law. He had argued that even if territorial sovereignity was coextensive with jurisdiction there was scope within this framework to recognise the rights of Aborigines to exercise their own laws for inter-Aboriginal conflict. He concluded his letter to the Inquirer by saying:

Perhaps the relation that exists between the red Indians of North America, and the Government of the United States, may afford a parallel case to ours, but there (I understand) though the territorial sovereignty of the Americans extends over a great part of the land of the Red Savage, the latter is answerable only to the laws of his own tribe for offences committed against any of his own people.[120]

After Wewar – 1842 to 1850

From the 1840s, there was increased expansion of European settlement and encounters with Aboriginal tribes who had little experience of Europeans. Coupled with the strengthening of law enforcement, several more inter se cases were brought to trial that occurred in rural settlements, but still within the categories defined by Mackie in the Wewar case.[121] However after 1848, there was a sharp increase in the number of cases with the arrival of Governor Captain Fitzgerald, who with Colonial Secretary Richard Madden, had introduced a more rigorous policy on inter se matters, with the objective of reducing the number of incidents and breaking the hold of customary law.[122] This policy as described by the Protector of Aborigines Charles Symmons would ‘take cognizance of all aggravated cases of assault committed even by bush natives inter se’.[123] The severity of punishment was increased, including carrying out the death sentence for murder. This had variable effect and in many cases no effect at all, and many Aborigines wary of coming to the attention of the colonial authorities moved into the bush, hoping to escape beyond the boundaries of British law.[124]

From the 1840s there had been increasing employment of Aborigines especially for farm work.[125] The earliest statistical report in 1848, indicated there were approximately 541 Aborigines (out of a total estimated population in the relevant districts of 1,960) employed by settlers in a total European population of 4,620 in WA.[126] While there were opinions expressed that the number of Aborigines were gradually disappearing within the settlements, there was added incentive to apply British law to protect those Aborigines who were employed by settlers, from their bush counterparts.[127] The first public hanging was carried out for an inter se murder in 1850, to make a public example.[128] Ironically, it drew objections from several settlers on the grounds that it would be unjust to apply the full force of British law.[129]

V CONCLUSION

The Wewar case recognised a certain legal status for Aborigines who were employed by or residing with settlers, in that they were entitled to protection under British law, despite the inequitable application of this law to them.[130] Their protection from attack from other Aborigines became increasingly important to the colonial government and the courts. The outcomes in the Helia and Wewar cases reflected the colonial government’s pragmatic policy of the time which questioned whether Aborigines could fairly and effectively come under the British legal system for inter se offences.

Like Sydney Stephen in Murrell, Landor had argued in Wewar that Aborigines were regulated and bound by their own customs and laws, and not British laws and that as Aborigines could not practically be protected by all aspects of British law, they could not be subject to it.

Mackie had dismissed the idea of conquest preferring to follow the administrative instructions of the colonial office that the theory of settlement applied to Western Australia. In addition, he justified his decision by interpreting international law and in particular Vattel as authority for the exercise of his right. While Mackie adhered to the theory of settlement espoused by successive Secretaries of State there is some evidence to suggest that he and others at that time did not really believe this fitted the facts. Landor later criticised Mackie for not following his moral conscience by following the direction of the home office: ‘Judges are compelled to yield to their authority and do violence to their own consciences whilst they help to lay the healing unction to those of their lawgivers’.[131]

While Mackie recognised the injustice of applying British law to these cases, expediency outweighed abandoning the jurisdiction of the court in relation to the category that he defined. The main difference between the Murrell and Wewar cases is that unlike Chief Magistrate Mackie, Justice Burton in Murrell concluded that all transactions inter se should be amenable to British law, and that any difficulties in bringing Aborigines under British law should be legislated for. Mackie attempted to limit the application of British law rather than relying like Burton in the Murrell case on the local legislature to remedy the injustice. However like Murrell there is reference to and reliance on the prerogative power of mercy where Wewar’s death sentence is commuted to transporation for life. Mackie avoided the issue of whether Aborigines were British subjects.

Wewar was similar to the Ballard case in its policy discussion on the boundaries of the application of British law, and natural law, where Chief Justice Forbes defined (before and after the case) the boundaries of what inter se matters might fall within the court’s jurisdiction and what did not. Like Mackie, Forbes referred to rights arising from natural law which, although something less than civilised law was something that Aborigines did not give up to magistrates.

What was the consequence of this absence of exercise of British law in the bush? In Wewar, there was scope for the common law to recognise that customary law needed to remain in force in the bush at least for the time being. While Wewar did not reflect a formal recognition of customary law or recognise indigenous autonomy, such as in Bonjon, there was a conscious policy decision not to apply British law to the Aborigines who did not fall within the category outlined by Mackie. The precedent created by Wewar for the application of British law created a form of legal pluralism in which Aborigines were to be treated as British subjects only in their relations with Europeans, but if they had very limited contact with the white man there was some ability to exercise their own laws without interference.[132] It was anticipated by colonial government policy and the courts that in time all Aborigines would come under the category of usefully employed in a ‘civilised’ society. However by the 1850s the objective of ‘civilisation’ was giving way to a harder line, coinciding with the arrival of convicts as an alternative source of labour. The arrival of convicts is likely to have shifted the focus for the need to employ Aborigines at least in the South West. The focus on economic development and political control of the land for settlement, meant that the law often lagged behind, but gradually there were likely to be fewer circumstances in which British law would not reach.

∗ BA (UWA), Grad Dip Bus (Curtin), Grad Dip Env Sc (Murdoch), Postgrad Dip Public History (Murdoch), LLB (Murdoch), PhD candidate in history (Murdoch)[.]

1 The Swan River Colony was isolated from the East to a large extent. By 1834, tradelinks had still not been established and shipping was infrequent adding to the Swan River Colony’s isolation. See Green, Broken Spears (1984) 95. Hutt referred to local conditions in WA that he believed were different to NSW in certain ways. Despatch from Hutt to Russell 15 May 1841, Papers relative to the Aborigines, Australian Colonies, British Parliamentary Press (first published 1844, 1968) vol 8, 380.

[2] The earliest Court of Quarter Sessions case involving Aborigines was R v Gear (Obediah) regarding the theft of wheat, reported in Perth Gazette, 2 January 1837. Prior to 1837, a quasi – military approach was taken. For example, the capture of Midgegooroo (‘outlawed’) in May 1833 for charges of murder, assault and robbery where depositions were taken before the Executive Council. Midgegooroo was shot by firing squad shortly afterwards, Perth Gazette, 25 May 1833, 83.

[3] For examples of reference to ‘private quarrels’, see Interpreters Report 27 December 1836 to 27 October 1837, Perth Gazette 28 July 1838, 119.

[4] Examples include holding Aborigines hostage, threats, public floggings, see Perth Gazette 3 May 1834, 11 July 1835, 4 July 1836.

[5] Examples of ‘experiments’ include threatening to discontinue supplies of flour, and ‘temptations’ to keep Aborigines out of town, etc. See Perth Gazette 22 October 1836, 784; Perth Gazette 28 October 1836, 700.

[6] Statham, ‘Swan River Colony 1829-1850’ in Stannage (ed), A New History of Western Australia (1981) Ch 5, 183; Perth Gazette, 31 October 1846.

[7] Examples of Governor acting on fears; G F Moore, Diary of Ten Years Eventful Life of a Settler in Western Australia (first published 1884, 1978) 234, 236, 321; Perth Gazette 16 February 1833; Rumours abounded as well of fears of attacks on Europeans by large groups of Aborigines, Perth Gazette 13 April 1833, 58-59.

[8] R v Helia (1838) Court of Quarter Sessions, reported in Perth Gazette 2 July 1838; R v Wewar 1842, Court of Quarter Sessions, reported in Perth Gazette 12 January 1842 and The Inquirer 12 January 1842, 4-5.

[9] R v Ballard or Barrett (1829) reported in the Sydney Gazette 23 April and 13 June 1829, and published in Decisions of the Superior Courts of NSW 1788-1899, by the Division of Law, Macquarie University (www.law.mq.edu/scnsw/cases) 3 of 7. Robert Ballard or Barrett was indicted for the murder of Borrondire or ‘Dirty Dick’.

[10] C J Forbes gave his opinion before and after the trial (Sydney Gazette 23 April and 16 June 1829). The Court hearing on 13 June 1829 before Forbes CJ and Dowling J, published in Decisions of the Superior Courts of NSW 1788-1899, Macquarie University.

[11] Ibid.

[12] Proceedings of the Supreme Court, Vol 22 in Archives Office of NSW 2/3205 published as Decisions of the Superior Courts of NSW 1788-1899, Macquarie University. www.law.mq.edu/scnsw/cases, 3 of 7.

[13] Ibid 3 of 7.

[14] Ibid 4 of 7.

[15] R v Murrell (1836) 1 Legge 72. It was not until the 1890s that formal reporting in the Legge’s selection of Supreme Court cases covering the determinations of the Supreme Court of NSW from 1825 to 1862 occurred. Up to then the reports were in the newspapers. Castles, Annotated Bibliography of Printed Materials on Australian Law 1788-1900 (1994) pxxi.

[16] R v Murrell (1836) Decisions of the Superior Courts of NSW 1788-1899, Macquarie University.

[17] The oral argument was slightly different to the plea. The plea made on 5 February 1836 in Sydney Morning Herald, 8 February 1836. The oral argument is in Sydney Gazette 23 February 1836, cited in Decisions of the Superior Courts of NSW 1788-1899 3 of 7.

[18] R v Murrell and Bummaree, Forbes CJ, Dowling and Burton JJ, 19 February 1836, Sydney Gazette, 23 February 1836, Decisions of the Superior Courts of NSW 1788-1899 Macquarie University.

[19] Forbes CJ, Dowling and Burton JJ in banco, 11 April 1836, Supreme Court, Miscellaneous Correspondence relating to Aborigines, State Records of NSW, 5/1161, 210-216[4] in Decisions of the Superior Courts of NSW 1788-1899 Macquarie University.

[20] Ibid.

[21] Ibid 5

[22] Ibid.

[23] Ibid.

[24] B Kercher, ‘The Recognition of Aboriginal status and Laws in the Supreme Court of New South Wales under Forbes CJ, 1824-1836’ in A R Buck, J McLaren and N E Wright (eds), Land and Freedom: Law, Property Rights and the British Diaspora (2001) 83 and 96.

[25] See above n 19, 5.

[26] Supreme Court, Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, 210-216, 11 April 1836, Forbes CJ, Dowling and Burton JJ in banco. Decisions of the Superior Courts of NSW 1788-1899 5 of 15.

[27] R v Bonjon (1841) Port Phillip Patriot, 20 September 1841, Decisions of the Superior Courts of NSW 1788-1899 Macquarie University. See also (1998) 3 Australian Indigenous Law Reporter 410-425.

[28] Bonjon was from the Wadora people and Yammowing from the Colijon tribe.

[29] R v Bonjon (1841) Decisions of the Superior Courts of NSW 1788-1899 1-14.

[30] Other Supreme Court judges in Sydney disagreed with Willis J that Murrell was not the accepted law. See Dowling to Gipps 8 January 1842 in Historical Records of Australia (HRA) Series 1, Vol XXI, 656-658.

[31] B Kercher, An Unruly Child, A History of Law in Australia (1995) 11. On Ballard see Kercher, ‘Recogition of Indigenous Legal autonomy in nineteenth century New South Wales’ (1998) 4(13) Indigenous Law Bulletin 7.

[32] Russell, A History of Law in Western Australia and its development from 1829 to 1979, (1980) Appendix III, Copy of Captain Stirling’s Proclamation of 18 June 1829, 334.

[33] Ibid 335.

[34] Ibid 350 Appendix IV, ‘Instructions as to the Office of Governor, March 1831’.

[35] George Fletcher Moore, who was Commissioner of the Civil Court and Advocate General from 1834 referred to the issue on 6 June 1833 in his private diary: ‘I wish it was either peace or war between us, but now we must not touch them for, by proclamation, they are declared under the protection of the law as British subjects’. J M R Cameron (ed), Swan River Letters: George Fletcher Moore’s Journal, 1839-1840 220 (unpublished typescript (200) 485pp. I am grateful to Dr Cameron for permission to access this source). See Perth Gazette 26 October 1839, 171. The Editor stated: ‘it will be seen with much satisfaction that His Excellency the Governor has honorably acknowledged a conviction, founded in experience, in opposition to his preconceived opinions, that the Aborigines cannot be treated as British subjects’. See also Perth Gazette report on the Legislative Council meeting of 23 October 1839.

[36] Legislative Council minutes 23 June 1837, Perth Gazette 1 July 1837. The allocation of limited funds discussed in terms of the priority of protection and security of lives and property of settlers.

[37] Fall ‘Crime and Criminal Records in Western Australia 1830-1855’ (Nov 1978) 111 Studies in WA History 18-29.

[38] Russell, A History of the Law in Western Australia and its development from 1829 to 1979, Instructions as to the Office of Governor, 5 March 1831, 350.

[39] Ibid 133; Quarter Sessions Act 1832 (2 Wm IV, No 4) 80 and Castles and Bennett (eds), A Source Book of Australian Legal History (1979) 217.

[40] Ibid 14.

[41] Green, Broken Spears (1984) see Perth Gazette 16 February 1833, 27.

[42] Perth Gazette, 18 May 1833, 78; 18 June 1836, 712 No 181. It was probably earlier in other towns. Minute by Stirling on a letter received from Government Resident at Fremantle, 26 July 1831 re inhabitants combining to drive the Aborigines out of town because of their pilfering. See also Perth Gazette editorial 28 April 1838 which refers to the precincts of several towns not only Perth, and Executive Council Minutes, 3 March 1840, No 6, 12 CO 20/3 AJCP, Battye.

[43] Perth Gazette 18 June 1836, 712; Executive Council minutes 3 March 1840, CO 20/3 AJCP 104, Battye.

[44] Perth Gazette 21 May 1836, 696.

[45] This was in 1837. Interpreters Report 27 December 1836 to 27 October 1837, 27 March to 27 April 1837, CSR Vol 58, 145, SROWA – ‘Warned? the natives repeatedly of fighting in the town, explained to them the consequence if they should happen to spear a white person, spoke to Mr Mackie on subject who told me the Governor thought it best not to interfere in their private quarrels’. Query: How can I so act when they quarrel and fight in town?.

[46] See for example, R v Gear case –Perth Gazette 2 January 1837 where for example Gear was asked whether any of the jurors were his enemy.

[47] See R v Gear (Obediah), Perth Gazette 2 January 1837 – Similar comments were made in R v Neu-an-ung case (1837) reported in the Swan River Guardian 5 October 1837, 229; ‘The respective addresses of the Chairman to the Grand Jury and of the Advocate General to the Petty jury merely enforced the truism, that the aboriginal inhabitants of Swan River were placed within the pale of the law, and recognized as British subjects by the King of England, that in regard to crime no difference could be made between a white and a black – the instructions of the British Government must be obeyed ...’ .

[48] Perth Gazette 2 January 1837, 829. Mackie had deferred to administrative instructions. Despatch from Stirling to the Earl of Aberdeen, 10 July 1835 No 53, WAS 1166, CONS 390/2, SROWA, ‘One of the earliest measures adopted in this colony was to issue a proclamation in which the right of the natives to the protection of the British law was formally declared on every possible occasion their equality in this respect with all His Majesty’s subjects has been urged upon the notice of magistrates’.

[49] See above n 4.

[50] R v Gear (1837) Court of Quarter Sessions, 2 January 1837 reported in Perth Gazette, 7 January 1837.

[51] Diary entry made in 1836 by G F Moore. Cameron, above n 35, 385.

[52] R v Helia (1838) reported in the Perth Gazette 2 July 1838.

[53] Report from Mackie to Colonial Secretary on Helia case, CSR 62, Vol 79-80, SROWA.

[54] R v Helia (1838) reported in the Perth Gazette, 2 July 1838, 107 – (before Mackie, Rev J B Wittenoom, J Lewis, J R Phillips, JP’s) – See also the examination in April 1838 reported in the Perth Gazette 28 April 1838, 7. For more on Helia case, see R H W Reece, ‘Laws of the white people: the frontier of authority in Perth and early Western Australia’ in B Hocking (ed), International Law and Aboriginal Human Rights (1988) Ch 7.

[55] Report by Mackie above n 53.

[56] Executive Council minutes 13 July 1838, CO 20/2, 1118 AJCP, Battye.

[57] Ibid.

[58] Ibid.

[59] N Green and S Moon, Far from Home, Aboriginal prisoners at Rottnest Island 1838-1931 (1997) 185. ‘Helia’s family refused to accept the notion of accidental death and tracked and allegedly killed a fellow escapee named Goordap in a payback murder’.

[60] Letter from Thomas Yule, Resident Magistrate to Colonial Secretary, CSR Vol 62, Fol 222, 20 August 1838, SROWA.

[61] 17 October 1838 Executive Council No 291, AJCP, CO20/2 Reel 1118, Battye; Perth Gazette 13 October 1838, 162. Memorial also stated that the ‘inhabitants of the town should be empowered to destroy all spears found in the hands of the natives within the limits of the town’.

[62] An instruction issued in 20 February 1839 to resident magistrates stated that no ‘native’ should be allowed to enter any town or dwelling of Europeans armed with a spear. Western Australian Government Gazette (WAGG) 23 February 1839 No 129.

[63] Report of Charles Symmons dated 31 December 1840 in WAGG, 8 January 1841 No 235, ‘To evince our disgust at objects which, however disgusting to civilization have been perpetrated by the natives on each other only in strict accordance with their established customs and prejudices, I have invariably punished the offenders by banishment from the town, for a limited period, thus depriving them of many of their comforts, and compelling them to seek a precarious subsistence in the chase. His Excellency has been pleased to adopt my suggestion ... the including in the banishment the wives and children of the offender, as I discovered that, in several instances, the prescribed party, although living in the bush, was actually supported in indolence by the ample supplies procured through his wife or wives, from the inhabitants of Perth.’

[64] The proceeding of the Magistrates Court in Perth on 4 January 1839, was reported in Perth Gazette 12 January 1839, 7, ‘Inquiry on the suggestion of Francis Armstrong into the conduct of certain Aborigines (Miago, Wiup, Munday and others) engaged in an affray in the streets or townsite of Perth. Miago was convicted of assault and battery on one of his black friends and was sentenced to 7 days imprisonment. White witness only. A warrant issued for arrest of Munday and Wiup.’

[65] For examples of Aboriginal resistance to their spears being broken by Europeans, see Perth Gazette 21 December 1839, 203 and 28 December 1839.

[66] Some examples of incidences in Perth that did not go to court are listed Green, Broken Spears (1984) Appendix 2, 230-231.

[67] R v Weban 1 April 1839 Court of Quarter Sessions, Perth Gazette, 6 July 1839. Weban was known as a ‘boylya’ or ‘native doctor’ with extraordinary powers. Helia was his brother. Tilbrook and Hallam (eds), Aborigines of the South West Region, 1829-1840, The Bicentennial Dictionary of Western Australians (1990) vol VIII, 3-15.

[68] Also known by Weeban, Webam, and Beewullo. William Shaws statement – Yellelan had been clothed as a European child, Criminal Indictment file, Case Number 204, CONS 3472, Item 38, SROWA.

[69] Perth Gazette 6 July 1839.

[70] Weban escaped shortly afterwards, CSR Vol 66, Fol 26, SROWA.

[71] WAGG 9 July 1839.

[72] Despatch from Hutt to Lord Glenelg 3 May 1839, Papers relative to Aborigines, Australian Colonies, British Parliamentary Papers, Papers relating to Emigration, the Aboriginal Population and other Affairs in Australia (1844, 1968) Colonies vol 8, 372.

[73] ‘Portions of it have in the interim been laid before some of the local governments in Australia, and a few of the suggestions contained in it have already been acted upon’, G Grey, ‘Report upon the best means of promoting the civilisation of the Aboriginal inhabitants of Australia’ Enclosure, Russell to Gipps, 8 October 1840 Historical Records of Australia (HRA) XX1, 35. (see also Despatch from J Russell to J Hutt, 8 October 1840, 391 and by G Grey 4 June 1840, 100 Papers Relative to Aborigines, Australian Colonies, British Parliamentary Papers (1844, 1968) vol 8.

[74] See Grey, Journals of Two Expeditions of Discovery in North West and Western Australia during the years 1837, 1838 and 1839 London (1841, Facsimile ed, 1984) vol 2, 371. Grey was also an explorer and later became Governor of South Australia. ‘The information I had collected regarding the Aborigines of Western Australia, encouraged me to address a report to Lord John Russell, the Secretary of State for the Colonies, embracing the general principles which I considered would best promote the civilisation of the race’.

[75] Despatch from Russell to Gipps 8 October 1840, Historical Records of Australia, Vol 21 Series 1, 34.

[76] Grey, ‘Report upon the best means of promoting the civilization of the Aboriginal Inhabitants of Australia’. Enclosure to the Despatch from Russell to Hutt dated 8 October 1840, 391, and 4 June 1840, 100, Point Number 2, Papers Relative to Aborigines, Australian Colonies, British Parliamentary Papers (1844, 1968) vol 8.

[77] See Grey, above n 74, 369 Grey reported that in Oct 1838 a woman had been killed and in south WA, and a servant of Europeans was killed in May 1839.

[78] Grey, ‘Report upon the best means of promoting the civilization of the Aboriginal Inhabitants of Australia’ Point No 5, Despatch from Russell to Gipps Historical Records of Australia, vol 21, Series 1, 8 October 1840, 35.

[79] Ibid.

[80] Ibid 35, Point No 5.

[81] Ibid Point No 6 and 9.

[82] Executive Council minutes dated 15 June 1841, No 73, 140, CONS 1058 WAS 1620 SROWA.

[83] Despatch Hutt to Glenelg 3 May 1839, Papers Relative to the Aborigines, Australian Colonies, British Parliamentary Papers (first published 1844, 1968) vol 8, 365. The Colonial Office supported Hutt’s policy regarding inter se conflict. J Stephen Memo, 26 Nov 1841, COL 18/28, f 60, PRO.

[84] See above n 82, 140 and above n 83, 365.

[85] See above n 82.

[86] Despatch from Hutt to Glenelg 3 May 1839, 363 and Despatch from Hutt to Russell 10 July 1841, 392, Papers relative to the Aborigines, Australian Colonies, British Parliamentary Papers (1844, 1968) vol 8. The Select Committee suggested short and simple rules that may form a temporary and provisional code for the regulation of Aborigines, Report from Select Committee, British Parliamentary Papers, Anthropology, Aborigines, Session 1837 (1968) vol 2, 84.

[87] Despatch from Hutt, to Stanley, 8 April 1842, Papers relative to the Aborigines, Australian Colonies, British Parliamentary Papers (first published 1844, 1968) vol 8, 413.

[88] See the Executive Council minute of 15 June 1841.CONS 1058, WAS 1620 , SROWA. There was a similar proposal to employ females, see Despatch from Hutt to Russell, dated 21 July 1841 No 55, British Parliamentary Papers, Anthology (first published 1844, 1968) vol 8, 1968

[89] Despatch from Gipps to Russell dated 7 April 1841, HRA (1924) vol XXI, Series 1, 312-315.

[90] Hutt had also read the British Parliament Select Committee report of 1837, which recommended special laws to protect Aborigines until ‘advancing knowledge and civilization shall have superseded the necessity of any such special laws’ British Parliamentary Papers, Anthropology, Aborigine Session (first published 1837, 1968) vol 2.

[91] Despatch from Hutt to Glenelg, 3 May 1839, Papers Relative to Aborigines, Australian Colonies, British Parliamentary Papers (first published 1844, 1968) vol 8, 363, 365 and Russell, A History of Law in Western Australia (1980) 317.

[92] An 1840 Act 4 Vic No 8 was passed in the Legislative Council but Royal Assent was refused. (See Despatch from Russell to Hutt dated 30 April 1841, Papers Relative to Aborigines, Australian Colonies, British Parliamentary Papers (first published 1844, 1968) vol 8, 377). It was in operation for a year. (Legislative Council Minutes 26 November 1841 in the Perth Gazette 1 December 1841) ‘The bill was passed into law, and the experience of a year, during which period it had been in operation, and shown that it had been attended with consequences of great benefit to the aborigines as well as to the Europeans’. A second amended ‘Act to Allow the Aboriginal Natives of Western Australia to give information and Evidence without the sanction of an Oath’ 5 Vict No 22 was passed by the Legislative Council on 26 November 1841 and intended to operate for two years. However it did not get approval from the Home Government (see the Despatch from Glenelg to Hutt, Stanley to Hutt dated February 1843, in Papers Relative to the Aborigines, Australian Colonies, 401-402). A notation on a copy of the 1841 Act states as follows: ‘See Statute 6 and 7 Vic C. 22, reciting (in 1843) that doubts had arisen whether these Acts passed by the Legislatures of the Colonies are not repugnant to the Laws of England, therefore null and void, and legalising all such enactments.’ Acts of Council B, Western Australia 1832-1853 (n.d) 117. The statute referred to was an Imperial Act relating to the evidence of persons without religious belief, which seems to have settled any confusion that previously existed which was adopted in WA in 1844. The WA legislature had also passed an Act in 1843 which allowed the 1841 Act to continue, See 7 Vic No 7 1843 and later 12 Vic No 14 1849. The summary punishment provisions came in with the Summary Trial and Punishment of Aborigines Act (1849) 12 Vic No 18. Russell, The History of Law in Western Australia (1980) 318, 408. In 1839, Hutt had also sent a draft bill to Glenelg relating to establishing a prison for Aborigines at Rottnest Island. It had to be amended before it was given Royal assent in 1841 (4 & 5 Vic No 21).

[93] Ibid.

[94] R v Wewar (1842) reported in The Inquirer on 12 January 1842 and The Perth Gazette on 8 January 1842.

[95] CSR Vol 95 Fol 81, SROWA. Letter to Colonial Secretary from Protector Charles Symmons dated 21 October 1841 − ‘Dyung was employed as a guide to Mr Phillips of the Canning under that gentleman’s protection’.

[96] The magistrates on 3/1/1842 listed in the register in addition to the chairman (Cons 3577/4, Battye) were George Leake, Rev G B Wittenoom, Chas Symmons, W H Drake, J W Hardey, M B Brown.

[97] See Criminal Indictment File, R v We-war, 1842, Case No 253, CONS 3472 Item 50, SROWA. The Inquirer reported that Wewar had an adopted son who had been killed by a relation of Dyung, which Wewar’s lawyer Landor argued required Wewar to act under his own laws, 12 January 1842, 5.

[98] Ibid. See also Tilbrook and Hallam, Aborigines of the South West Region 1829-1840,{1990} Nundjar is listed as one of Wewar’s sons. Also spelt Ngan-jar. CSR Vol 58 159, SROWA, provides list of names of Aborigines from the south side of the Murray or Kan=neeng, Boo=yang, Bee=la of which Wi-wa and his family are listed as members.

[99] See William Nairne Clark’s letter in Inquirer, 19 January 1842.

[100] R v Wewar (1842) The Inquirer, 12 January 1842.

[101] Ibid.

[102] Ibid.

[103] The Inquirer 12 January 1842, 5. Moore, Diary of Ten Years Eventful Life of a Settler in WA (first published 1884, 1978) 312, April 1837, ‘You can not imagine the perplexity we are in here sometimes for books on law subjects, especially where alterations have been made by statute law recently. The Governor himself is not even furnished with a copy of the Acts of Parliament.’ The NSW cases were unreported until the late 1890s.

[104] R v Wewar (1842) The Inquirer 12 January 1842, 5.

[105] Ibid.

[106] Ibid.

[107] Ibid.

[108] Ibid.

[109] R Nash replaced G F Moore as Advocate General in an acting capacity on 5 January 1841 while Moore was on a leave of absence, see Government Gazette 15 January 1841, No 234, Battye.

[110] The Inquirer, above n 103, 5.

[111] Tilbrook and Hallam (eds), Aborigines of the Southwest Region, 1829-1840, The Bicentennial Dictionary of Western Australians (1990) vol VIII, 317-8; ‘Wewa 1837, (referring to Armstrong’s list CSR 58/159, SROWA).

[112] See Despatch from Stirling to Stanley dated 1 November 1834. The extract is also in Report for Select Committee on Aborigines, (British Settlements) with the minutes of evidence (1837, 1968) vol 2, 12-13.

[113] Ibid.

[114] The Inquirer, above n 103.

[115] See Green and Moon, Far From Home, Aboriginal prisoners at Rottnest Island 1838-1931, (1997) 305 − Wewar was given a free pardon in 1846 by Governor Clark after falling ill on Rottnest and being unable to work. He was subsequently sentenced to 6 months for stealing flour and sent back to Rottnest.

[116] WAGG 11 February 1842 No 291, Trigg’s Report.

[117] Francis Lochee was the editor in 1842 to 1846 of the Inquirer and a solicitor.

[118] The Inquirer, above n 103, Editorial.

[119] The Inquirer, above n 103, Editorial..

[120] The Inquirer, above n 103, 4. Landor, The Bushman, Life in a New Country (first published 1847, 1998) 192-3.

[121] Fall, ‘Crime and Criminal Records in Western Australia 1830-1855’ (18-29) Studies in Western Australian History, III (1978) 21.

[122] There were also incidences where warrants were issued for inter se murders and assaults, and Aborigines were shot while trying to escape. See Drummond Police Journal − York CSR Vol 115/57 1 June 1842 for example. Governor Fitzgerald arrived in August 1848. S Moon and N Green, Far from Home: Aboriginal Prisoners of Rottnest Island 1838-1931 (1997) 22; Richard Robert Madden, The Memoirs, edited by his son, T M Madden, London (1891) 233. Prior to the arrival of Fitzgerald, Madden had been instrumental in a change of policy towards enforcement where ‘a respect for human life, whether of native or settler, was enforced’.

[123] Annual Report of Charles Symmons Protector of Natives dated 5 January 1849. WAGG 6 February 1849, 2.

[124] See Reports by Charles Symmons in Perth Perth Gazette 1 February 1850, Report of Guardian of Aborigines in York for 1849 and Perth Gazette 11 January 1850, Report of Protector of Natives, for year ending 31 December 1849.

[125] Hasluck, Black Australians (first published 1942, 1970) 149; Annual Report by Symmons to Colonial Secretary office, for 1848, Government Gazette 6 February 1849, 2.

[126] Hasluck, Black Australians (1942, 1970) 87-88 The first census of Aborigines who had been employed. Government Gazette 19 December 1848, No 163, 8. The figures were subject to various problems in compiling accurate statistics in districts occupied by settlers, see page 1.

[127] This view was held as early as 1838. See Hasluck, above n 126, 121.

[128] Green, Broken Spears (1984) 174-5.. Kanyin was hanged in 12 April 1850 near York − Reg v Kanyin, Mongean and Ngolangwert − Three Aborigines were charged with wilful murder of Tadupwert alias Monkey. Aboriginal witnesses were used in this case. Perth Gazette 12 April 1850. See petition of H H Hall, and letter to editor in Perth Gazette, 10 May 1850.

[129] Petition by H H Hall was mounted in an attempt to prevent the execution of two Aborigines, Mongean and Ngolangwert were reprieved at the eleventh hour.

[130] For example; civil law, giving evidence in court.

[131] Landor, above n 120, 193.

[132] Law Reform Commission Report No 31, The Recognition of Customary Laws (1986) vol 1, 123.