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by Bruce Kercher
It is generally believed that until the Mabo decision of 1992,[1] the common law in Australia was based on terra nullius. The consequences of this included an assumption that the indigenous peoples of New South Wales became British subjects from 1788 onwards, that they had no recognisable legal system or sovereignty, and that their rights over land received no recognition by English law. The first reported case on this topic was decided in 1836: R v Murrell[2] is the founding case on the terra nullius doctrine for Australian law. It was not, however, the first time the courts considered these questions. Seven years earlier, in R v Ballard[3], the same court took a very different approach.
Murrell's case was decided by the Supreme Court of New South Wales. In it, Burton J (with the concurrence of Forbes CJ and Dowling J) held that the court did have jurisdiction when one Aborigine killed another. The law report version of the case, taken from a newspaper account, contained only a brief summary of Burton's full opinion on the legal position of Aborigines. Twenty five years ago, however, a short historical article by Barry Bridges gave more details about this case. Bridges found evidence in the Archives Office of New South Wales that Burton considered an argument by the defendant's counsel, that Aborigines had recognisable laws. The judge dismissed the argument after some consideration. Bridges' summary of Burton's view has become famous: that Aborigines had no law but only lewd practices and irrational superstitions contrary to Divine Law and consistent only with the grossest darkness. In fact, Burton did not say that exactly, but concluded on the point as follows:
the several tribes have never owned any common superiority or any common bond of union, but have ever lived in a state of enmity with one another - their practices are only such as are consistent with a state of the grossest darkness & irrational superstition and although in some cases being a show of justice - are founded entirely upon principles particularly in their mode of vindication for personal wrongs upon the wildest most indiscriminatory notions of revenge.
Burton's reference to 'lewd practice was in analogy with the laws of the 'Wild Irish.'[4]
In the early 1840s, Bridges tells us, Willis J of the Port Phillip district New South Wales used the Bon Jon case to question this decision of his Supreme Court colleagues.[5] Willis doubted that the court had jurisdiction when an Aborigine killed or interfered with another. This view was soon crushed by the weight of judicial and imperial authority, and the law returned to its comfortable unitary view, that there was and only ever had been one legal system in Australia since 1788, that of England. The assumption was that Aborigines were British subjects, entitled to the protection of the law but subject to as well.
In recounting this story, Bridges make brief reference to another New South Wales Supreme Court decision, R v Ballard or Barrett 1829. However, it tells us little about it because he relies only on newspaper accounts of the decision. Fortunately, Dowling J kept a lengthy account of it among the hundreds of notebooks he left behind. This was a joint decision of the first two holders of the office of Chief Justice of New South Wales, Dowling and Forbes. Forbes was Chief Justice from 1824-26, and Dowling was his successor. Bridges simply states that the two judges held that it would be unjust to apply English law to offences committed between Aborigines. The judges said much more than that in Ballard and it may be the strength of the reasoning in it as much as the power of argument by counsel that led Burton to take the Aboriginal autonomy argument so seriously when he made his decision in Murrell.
Ballard was taken into custody for allegedly killing another Aboriginal man called Borrondire or Dirty Dick. The killing took place near the Domain, not far from the centre of Sydney. When the Attorney-General took the case to Forbes CJ in April 1829 for his opinion as to whether the Supreme Court had jurisdiction, the Chief Justice said that he was reluctant to reach a decision alone. His initial impression was that the court would not have had jurisdiction if it had been a conflict between Aborigines in accordance with their own customs, but that it would have done so if an Aborigine had come to town to gain the protection of English law.
The case was placed before the Supreme Court more formally on 13 June 1829. Ballard, whom the magistrates committed for trial on a charge of murder, was put before the bar. The Attorney-General then prayed the direction of the judges as to whether the prisoner could be tried for the murder of one of his own countrymen.
Chief Justice Forbes began his judgment by stating that `Certainly this is a case sui generis, and the Court must deal with it upon general principles, in the absence of any fixed known rule upon the subject.' Forbes then said that Ballard ought to be discharged for want of jurisdiction. [6] The Chief Justice found that the prisoner was a person who lived in the uncontrolled freedom of nature, wandering about the country. Characteristically, Forbes commenced his argument with an examination of the legal history of the question. He found that 'it has been the practice of the Courts of this country, since the Colony was settled, never to interfere with or enter into the quarrels that have taken place between or amongst the natives themselves.' This, in common with the practice of other colonies, was a matter of policy of colonial judges and governments. Where practicable, however, conflicts between British subjects and natives were subject to the courts' jurisdiction:
This has been found expedient for the mutual protection of both sorts of people; but I am not aware that British laws have been applied to the aboriginal natives in transactions solely between themselves, whether of contract, tort, or crime. Indeed 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.
Sounding like a latter day Hobbes, Forbes went on to say that there was one important difference between what he called `civilized' men and `savages': the latter did not give up their natural rights to magistrates, but instead decided their differences on a principle of retaliation. It was doubtful that there would be any benefit in engrafting English principles on such people. They had a mode of redressing wrongs:
...which is perfectly agreeable to their own natures & [sic] dispositions, and is productive, amongst themselves, of as much good, as any novel or strange institution which might be imparted to them ... the savage is governed by the laws of his tribe - & with these he is content.
In any event, how would English law be imposed on them, when they were unacquainted with English language, laws and customs? (Forbes did not attempt to answer this question for the cases in which Aborigines were tried for offences against whites, as occasionally happened.)
Savage peoples, Forbes went on, `make laws for themselves, which are preserved inviolate, & are rigidly acted upon' and English law had no right to intervene even if its judges found the native laws to be abhorrent.[7] He concluded:
There is reason & good sense in the principle that in all transactions between the natives & British subjects, the laws of the latter shall prevail, because theyafford equal protection to all men whether actually or by fiction of law brought within their cognizance. But I know no principle of municipal or national law, which shall subject the inhabitants of a newly found country, to the operation of the laws of the finders, in matters of dispute, injury, or aggression between themselves. If part of our system is to be introduced amongst them, why not the whole? Where will you draw the line: the intervention of our courts of justice, even if practicable, must lead to other interferences, as incompatible as impolitic, in the affairs of harmless inoffensive savages. -With these general observations, I am of opinion that this man is not amenable to English law for the act he is supposed to have committed.
Justice Dowling began by stating that the issue came to him as a surprise, and that he had not had an opportunity to consider it in a way which was satisfactory to his mind. Nonetheless, he thought that Forbes' statements were consistent with reason and principle. Dowling emphasised consent:
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.
Dowling then made the conventional statement that a colony of Englishmen in a new found country was subject to the law of the parent state so far as those laws were applicable to the circumstances of the colony. When natives were present, they were subject to the same laws in the event of dispute, injury or aggression with the settlers. The universal principle of civilised nations was that the lex loci ('the law of the place') was in force in determining disputes between the native and the foreigner. He went on:
But all analogy fails when it is attempted to enforce the laws of a foreign country amongst a race of people, who owe no fealty to us, and over whom we have no natural claim of acknowledgment orsupremacy. We have a right to subject them to our laws if they injure us, but I know of no right possessed by us, of interfering where their disputes or acts, are confined to themselves, and affect them only.
He returned to the point of interracial conflict by stating that it was undoubtedly murder for a white to kill an Aborigine without reason or excuse, and the same applied in reverse. The same also applied in property disputes:
The same principle of protection applied to the preservation of property, although the notions of property may be very imperfect in the native. The Englishman has no right wantonly to deprive the savage of any property he possesses or assumes a dominion over.
Justice Dowling concluded by repeating his hesitation about the matter: 'These are general observations suggested on the occasion, without meaning them to have the effect of judicial determination.' However, he said, it would be most unjust and unconscionable to hold a native responsible in English law for an offence committed against one of his own tribe.
Despite Dowling's hesitation and the fact that this decision was effectively overturned in 1836, R v Ballard is one of the most important judicial statements of the position of indigenous people in Australian legal history. It contains unambiguous support for Aboriginal legal autonomy. Forbes used the word ‘law' when describing Aboriginal practices, and drew a clear contrast between British subjects and native people. Dowling seemed to agree that Aborigines were not British subjects. He went further than Forbes in his explicit recognition of indigenous property, and of the obligation of English law to protect it against attacks by whites. Unlike Burton's judgment in Murrell (with which both Forbes and Dowling agreed), this decision was based on a recognition of a plurality of laws on the Australian continent and of the obligation of English law both to recognise and protect those other laws.
Ballard's case was, of course, a product of its intellectual and social times. The judges were both highly skilled lawyers who were willing to adapt the common law to local circumstances. They were also aware that there had been interracial violence on the frontier since 1788, as the correspondence file in the Archives Office shows so starkly.[8] These clashes sometimes had legal consequences, when a white was tried for killing a native and, less often, the reverse. In one of those cases in 1827, Lieutenant Lowe was tried for the murder of an Aborigine who was in his custody. His defence counsel argued that the court had no jurisdiction, using similar legal tools to those of Forbes and Dowling (and, in particular, those of Stephen, the counsel for Murrell). The court rejected the argument about lack of jurisdiction, but Lowe was acquitted on the facts. Lowe's case deserves close study, particularly for the evidence it offers about contested meanings of law.[9] So does Murrell for different reasons: why did Forbes and Dowling change their minds, and just how did Burton meet the Ballard arguments in his lengthy notes for judgment? Was he influenced by his experiences in Africa (and Forbes by his in North America)? Why was Murrell prosecuted at all, given the decision in Ballard?
We can only speculate about what might have happened had the decision in R v Ballard not been overturned. What effect might it have had on relations between settlers and the indigenous peoples of Australia? Might Cooper v Stuart[10] have been decided differently? Would Mabo have been necessary? Ballard's case dealt with the most difficult issues which now bedevil us in the late twentieth century law, the recognition of native laws and property rights. In dealing with these issues, the judges afforded recognition to the legal autonomy of indigenous people. The fact that similar recognition in Mabo and Wik[11] has caused such controversy,[12] gives us a hint as to why Ballard did not last.
Bruce Kercher is a Professor at the Law School, Macquarie University.
[1] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1..
[2] (1836) 1 Legge 72.
[3] See Proceedings of the Supreme Court, Vol. 22, Archives Office of New South Wales, 2/3205, 98, on which the following discussion is based. Dowling also summarised this case in his Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, 198. See also Sydney Gazette, 23 April 1829; Australian, 16 June 1829; Sydney Gazette, 16 June 1829. The newspapers usually called the defendant Ballard, though the Gazette called him Barrett on one occasion. The man killed was called Borrondire, or Dirty Dick. The judges' notebooks incorrectly reversed the parties, stating that Borrondire was the defendant rather than the victim.
This case, along with hundreds of others, is being prepared for publication on the internet. Publication commenced with the 1824 cases, some of which concerned Aborigines, at www.law.mq.edu.au/~bruce/index.htm. This site presently contains cases decided between 1824 and 1827.
[4] This was part of lengthy notes for judgment by Burton, which are filed in Miscellaneous Correspondence Relating to Aborigines, Archives Office of New South Wales, 5/1161, 239-240. See Barry Bridges, 'The Extension of English Law to the Aborigines for Offences Committed Inter Se, 1829-1842' (1973) 59 Journal of the Royal Australian Historical Society 264. See also A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, 526-529.
[5] British Parliamentary Papers, Papers Relating to Emigration, the Aboriginal Population and Other Affairs in Australia 1844, Irish University Press, Shannon, 1969, Vol. 8, Colonies Australia, p. 143-156. See also S Davies, 'Aborigines, Murder and the Criminal Law in Early Port Phillip, 1841-1851' (1987) 22 Historical Studies 313.
[6] Ballard was eventually sent to Port Macquarie (Sydney Gazette, 5 July 1829) and ultimately to Van Diemen's Land to help hunt the native people of that island (Sydney Gazette, 11 May 1830).
[7] Even Burton hinted at something like this in Murrell His unpublished judgment includes the statement that Aborigines 'are entitled to the possession of those rights which as such are valuable to them': Miscellaneous Correspondence, 211.
[8] Miscellaneous Correspondence Relating to Aborigines, Archives Office of New South Wales, 5/1161.
[9] Lowe's case is now on the internet, as will be Ballard and other significant cases of the 1820s and 1830s concerning Aborigines. The major source for Lowe is the Australian, 23 May 1827.
[10] (1889) 14 App.Cas.286.
[11] Wik Peoples v State of Queensland & Ors (1996) 187 CLR 1.
[12] On the settlers' hostile reaction to the similar reasoning in Bon Jon, see Davies, 330.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/1998/54.html