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Legal History |
RUSSELL SMANDYCH[*]
In the first half of the nineteenth century, British Evangelicals played a key role in influencing the development and implementation of colonial ‘native policy’ throughout the British Empire. The breadth and depth of this influence was highlighted most tellingly in 1837 in the publication of the House of Commons Report from the Select Committee on Aborigines spearheaded by Thomas Fowell Buxton, and taken up in subsequent years by the Aborigines Protection Society.[1] One of the key recommendations contained in the Report, which is of primary interest in the present study, was the recommendation that gradual steps be taken to apply English colonial criminal law more uniformly to Indigenous peoples across the British Empire.[2] In the following decade, James Stephen, Jr, through the influence he had as Permanent-Undersecretary of the Colonial Office, undertook a determined effort to persuade colonial judges and legislatures of the need for implementing this particular Select Committee recommendation, in so far as it was practically feasible given the specific circumstances that existed in particular colonies. Stephen took up the cause of Indigenous peoples in the mid-1830s with the same degree of Evangelical commitment that he devoted earlier to the cause of the abolition of slavery and the protection of slaves in British colonial criminal law.[3] This is not to say, however, that James Stephen, Jr, enjoyed wide-popular success in his effort to convince colonial authorities – in such far distance colonies as South Africa, Australia, and New Zealand – that Indigenous peoples should receive all of the benefits that came with being treated as ‘British subjects’, who were fully amenable to and protected by English law.
The views James Stephen held on how English law should be applied to Indigenous peoples, as well as the frustrations he experienced in attempting to have them embodied in official Colonial Office policy, are revealed clearly in the debate he became involved in the late-1830s over the enactment of local Aboriginal evidence ordinances in the Australian colonies of New South Wales, Western Australia, and South Australia. However, Stephen’s involvement in this debate is only one part of this important but thus far largely unexamined series of related comparative British colonial legal developments. In the following article, I draw on the work of previous Australian and comparative legal historians who have commented on the colonial Australian Aboriginal evidence bill debates, as well as on a range of relevant, although apparently largely overlooked, primary data in the form of extant Colonial Office correspondence and minutes often written by James Stephen, to provide a more in depth account of this significant episode in the shift toward applying colonial criminal law to Indigenous peoples in nineteenth century British settler societies.[4]
The issue of the legal status of Indigenous peoples in the early Australian colonies of New South Wales, Western Australia, and South Australia has been touched on by many legal historians, along with the debates surrounding the enactment of early proposed Australian Aboriginal evidence bills that were intended to allow for the unsworn testimony of Aborigines to be accepted as evidence in criminal trials. As in other 19th century British settler colonies, there was, at least initially, a great deal of uncertainty and debate over whether the Aborigines of Australia were amenable to English criminal law.[5] Like colonial judges elsewhere, as in the Cape Colony, [6] and in Upper Canada and Rupertsland,[7] by the mid-1840s judges in the superior courts of New South Wales had decided a number of cases that favoured this principle. Specifically, cases like R v Congo Jack Murrell (1836) and R v Bon Jon (1841) have been well documented and frequently discussed by legal historians, as evidence of how Aborigines in New South Wales began to be drawn into colonial courts as accused and made subject to the same penal sanctions as non-Aboriginal settlers and convicts; despite Judge Willis’s opinion in the Bon Jon case in favour of the contrary.[8] Although writers like Alex Castles and S D Lendrum have noted that in South Australia ‘the approach taken in Murrell only slowly gained acceptance’, by the early 1850s even Justice Cooper of the Supreme Court began to concede ‘that where Aborigines committed offences against each other it might be appropriate to try them as part of the civilising mission of Europeans’.[9] Although it is possible that after 1837 it may have become increasing difficult for judges to refuse to concede that they had jurisdiction over Aborigines, because of the specific directive issued ‘by the Secretary of State for the Colonial Department to the Governor of New South Wales requiring that thereafter all of the Aborigines within his jurisdiction should be considered as British subjects’,[10] little attention is given in most legal histories of Australia to the influence the Colonial Office may have had on the movement toward more uniform judicial thinking about the amenability of Aborigines to English law. For example, in his early study, Alex Castles only alludes to the important influence of the Colonial Office, in noting that:
official records from the first half of the nineteenth century tend to confirm that the full recognition of the status of Aborigines as British subjects was ultimately reached as a consequence of administrative directives. In the process, it is hard to resist the conclusion that in part at least this was done because of the strongly-held religious and similar convictions of some administrators of the period.[11]
Although Castles may also have had other mid-nineteenth century colonial administrators in mind in this statement, as we will see in this article, James Stephen Jr clearly fits the description of a Colonial Office administrator who used administrative directives to promote the equal legal status of Aborigines.
There are a number of studies that also make reference to related legal cases and discussion bearing on the questions of when, historically, did Aboriginal testimony became an issue in Australian courts, and on how the issue was eventually decided.[12] Despite its frequent mention in passing in histories of Australia, few legal historians have devoted detailed attention to the issue of the admissibility of Aboriginal evidence, and only recently have historians begun to examine the issue from a comparative perspective. In addition, few attempts have been made to unravel, or explain in detail, the fate of different Aboriginal evidence bills that were introduced and debated in the colonies of New South Wales, Western Australia, and South Australia, in the period from around 1839 to 1849. In the following paper, I attempt to offer a more in depth comparative-historical account that can help to more adequately answer these questions. The recent comparative studies of Jane Samson,[13] and Lauren Benton[14] provide a useful starting point for this effort.
Jane Samson provides a novel examination of the role played by the British Royal Navy in carrying British authority to the Pacific Islands.[15] She points out that, far from just physically carrying, or transporting, those who were sent to impose British rule, captains and senior officers of the Royal Navy who crossed the Pacific to Australasia also brought their own views on British colonial ‘native policy’ and the treatment of Pacific Island peoples. More specifically, she provides evidence that most senior Naval officers were deeply sympathetic to Christian evangelical notions of duty and to the belief in Britain’s civilizing mission in the colonies. Samson also points to the close connection and mutual humanitarian-benevolent interests that linked senior officers of the Royal Navy, missionaries, and evangelical groups like Thomas Fowell Buxton’s and Saxe Bannister’s ‘Aborigines Protection Society’. Thus, she argues that:
[a]ccording to the benevolent vision espoused by naval men and missionaries alike, the islanders were innocents vulnerable to corruption and prone to violence only in retaliation for wrongs inflicted by white traders. In Christian humanitarian rhetoric, it was the depraved men of commerce who were the ‘savages’, whilst the islanders were dependent children, incapable of autonomous rational agency.[16]
According to Samson, the outcome of this was the development of ‘a tradition of sympathy for the deployment of British “protective supremacy” over the Pacific Islands’ for much of the nineteenth century.[17]
As part of the assertion of British ‘protective supremacy’, British naval, as well as legal, officials were forced to address the issue of the amenability of newly ‘protected’ Indigenous peoples to English law. They were also unavoidably compelled to address the narrower – but arguably central – issue of whether, and if so, under what specific circumstances, the unsworn testimony of ‘protected’ Indigenous peoples would be admitted as evidence in colonial courts. Samson claims that by 1838 the Aborigines Protection Society, led by Saxe Bannister, had made ‘the issue of indigenous testimony its top priority, hoping “to obtain justice for natives by an improved administration of law”’.[18]
Drawing on testimony of the Select Committee on Aborigines, Bannister concluded that the requirement to testify under a Christian oath unjustly disadvantaged non-Christian peoples, especially those whose societies lacked recognizable legal systems. If such people could not testify, they could not seek redress: a clear violation of their rights as British subjects.[19]
Samson also argues that it was largely due to the influence of the Aborigines Protection Society that in 1843 ‘the British Parliament produced a Colonial Evidence Act, permitting colonies to overturn British law in order to admit unsworn testimony’.[20] Although not mentioned in her book, in her more focused study of debates over the admissibility of Aboriginal evidence in New South Wales and British Columbia, Samson cites James Stephen as the person who prepared the Colonial Evidence Act of 1843,[21] along with Colonial Office Secretary, Lord Stanley. Pointing to the nature and significance of the Act of 1843, Samson notes:
This act is one of the most important and certainly one of the most neglected pieces of legislation on colonial aboriginal issues. Its preamble noted the injustices caused by the inadmissibility of Aboriginal evidence in British colonies of settlement, and called for the usual role of legal compatibility to be overturned to permit unsworn testimony in the colonies. All the Legislative Councils had to do was to pass their own enabling legislation. It is worth noting that Stanley’s bill passed completely unopposed in Parliament and caused no visible backlash − indeed, no comment − in the major newspapers or periodicals of the day. We are now a very long way from the popular view that British officials deliberately manipulated the law to enable atrocities against indigenous peoples.[22]
While Samson credits the Aborigines Protection Society with advancing a persuasive general humanitarian argument in favour of legislation like that enacted in 1843, she also examines more closely some of the specific events behind the legislation. These include the earlier disallowance of an Aborigines evidence act introduced by New South Wales Attorney General John Plunkett in 1838 after the Myall Creek Massacre investigation, and Colonial Secretary Lord Russell’s subsequent urging of New South Wales Governor Gipps in 1839 ‘to hasten the creation of special provisions to allow Aborigines to testify unsworn because the present system, based on the principle of equality before the law, was producing obvious injustice’.[23] Samson also mentions Governor Gipp’s failure after 1843 to get an Aboriginal evidence act passed in New South Wales, because of the growing influence of emancipists like W C Wentworth, who ‘opposed a bill they denounced as sentimentalist nonsense’.[24]
Lauren Benton also provides a helpful comparative starting point for re-examining the manner in which Australian Aborigines were made fully subject to British colonial law, including laws relating to the admissibility of evidence. In her important recent work on Law and Colonial Cultures: Legal Regimes in World History, 1400-1900, she notes that throughout European history law has ‘worked both to tie disparate parts of empires and to lay the basis for exchanges of all sorts between politically and culturally separate imperial or colonial powers’.[25] Benton’s research covers legal regimes ranging from those that existed in early Catholic and Islamic empires, to those put into place by European colonizers in Bengal, West Africa, the Cape Colony and New South Wales, and Uruguay. In the course of this sweeping comparative historical analysis, she manages to offer a number of intriguing generalizations. The most important of these, for the purposes of the current study, is her argument the development of colonial legal regimes in the nineteenth century occurred at least ‘in part as a response to conflicts over the legal status of indigenous subjects and cultural others’.[26] More specifically, Benton contends that from the late eighteenth century on ‘[a]ttention focused in particular on debates about the legal status of indigenous peoples and, especially, the definition of roles for cultural and legal intermediaries’. In the process, ‘[l]egal actors played upon these tensions in crafting legal strategies that often involved appeals to state law, even before the colonial state had articulated claims to sovereignty’.[27]
In addition to highlighting the central importance of examining debates over the legal status of Indigenous peoples and at the manner in which they were brought within the grasp of formal state-enacted colonial law, Benton offers a comparative account of the application of state law to Indigenous peoples in the Cape Colony and New South Wales as a specific example of this type of historical analysis. Specifically, Benton provides a comparative analysis of changes that occurred in the treatment of Indigenous peoples as ‘subjects and witnesses’ in the colonial criminal courts of the Cape Colony and New South Wales from the late 1700s to the 1830s. According to Benton, across these two jurisdictions ‘colonial legal politics produced substantially different outcomes’. Whereas in the Cape Colony ‘establishing British hegemony over Dutch-descended settlers involved the strategic acceptance of indigenous Khoi as legal witnesses and litigants’, in New South Wales ‘the conflict over the legal status of convict settlers encapsulated debates about the legal standing of Aborigines and reinforced their systematic exclusion as legal actors’. Despite these different politically influenced outcomes, Benton maintains that in broader structural terms the two cases were similar in that they both represented a shift from a form of ‘weak’ to a form of ‘strong’ legal pluralism, in which state law became more dominant.[28]
Benton’s account of changes in the legal status of Aborigines in New South Wales deserves further mention as it is particularly relevant to the attempt made in the present study to examine the New South Wales experience alongside that of Western Australia and South Australia. In essence, Benton argues that in New South Wales debates over the legal status of Aborigines were intertwined with debates over the legal status of former convicts (or ‘emancipists’) who in the mid-1820s began arguing for the same political and legal rights as those held by other white colonists. According to Benton ‘[i]n seeking to redefine themselves as the legal and political equals of other whites, emancipists sought to emphasize the cultural gulf that divided former convicts, and whites in general, from Aborigines’.[29] Benton’s argument of the link between failure to enact an Aboriginal evidence act in New South Wales after 1843 and debate over legal rights of Aborigines versus emancipists is consistent with Jane Samson’s passing reference to the same conclusion. It is also consistent with the earlier work of Australian legal historians, including Alex Castles[30] and Bruce Kercher,[31] who refer to the infamous William Charles Wentworth in their discussion of the reasons for the failure of New South Wales to enact an Aboriginal evidence act. Interestingly, however, it would appear that none of these authors provide a very thorough examination of relevant direct documentary evidence on how prominent former convicts in the colony in fact lobbied to restrict the legal rights of Aborigines as a strategy for increasing the legitimacy of their own claim for equal rights. In addition, it is also notable that none of these authors mentions very much about the nature and extent of James Stephen’s involvement in the debate over Australian Aboriginal evidence bills in the period from 1839 to the mid-1840s. In the following parts of this paper, attention is given to examining historical documents that help to shed additional light on the fate of the first Aboriginal evidence acts of New South Wales, Western Australia, and South Australia.
As Alex C Castles wrote in his early chapter on ‘Aborigines and European Law’, it was one thing for the British Colonial Office to strongly affirm that Aborigines ‘were to be treated as British subjects for all purposes’ and that ‘they were to be accorded the full protection of European law’, while it was another to actually ‘ensure that justice could be achieved effectively and fairly in legal proceedings involving many Aborigines’.[32] The discrepancy that existed between the ideal of equality before the law, argued for by Colonial Office officials like James Stephen, Jr, and the reality of unequal justice for Aborigines and colonists in Australian criminal courts, becomes clearly evident in the debates that emerged in the 1830s surrounding the issue of the admissibility of unsworn Aboriginal testimony in criminal trials and the need for colonial legislation to address the issue.
It appears that prior to the 1830s it was simply assumed that Aborigines were incapable of providing testimony in criminal trials. As early as 1805, colonial courts in Australia began to raise the question of whether courts could hear pleas from Aborigines who did not understand either the language or procedure of British courts.[33] In a legal opinion on ‘The Treatment of Natives,’ written in July 1805, Judge-Advocate Atkins addressed this issue in light of reported ‘Outrages committed by the Natives of the Hawkesbury, &c’ against white settlers. In his opinion, the fact that ‘evidence of Persons not bound by any moral or religious Tye can never be considered or construed as legal evidence’ made it impossible, under existing law, to bring a Native to trial for a crime committed against a settler. In light of this, Atkins endorsed the practice of settlers carrying out reprisals against Natives by pursuing and inflicting ‘such punishment as they may merit’.[34] The punishments ultimately inflicted on the Aborigines for committing the ‘outrage’ of killing two settlers and two stockmen near Hawkesbury, involved the use of both ‘blood-for-blood’ reprisal and less brutal measures which included both short imprisonment and forced labour. In a letter he wrote to Earl Camden less than two weeks after receiving Atkins’ legal opinion, Governor Philip Gidley King elaborated on how he dealt with the outrage, noting that ‘[s]ix of the Natives and those the most Guilty were Shot in a pursuit by the Settlers’ and the natives ‘late excesses’ were terminated by their voluntary giving up the other aggressors for confinement in the jail at Parramatta. He further remarked that:
Yet as Two Black Men more than Settlers have been shot, I shall forego any farther retaliation, but as they were so desirous of shewing their Sorrow for what had passed by giving up the Delinquents and requiring them to be punished, I should try the expedient of sending them to another Settlement to labour which has been much approved by the rest.[35]
These types of ‘blood-for-blood’ reprisals and less ‘coercive Measures’ were no doubt used frequently prior to the 1830s and rationalized by colonizers and the judiciary as being necessary in light of the belief that Aborigines were in amenable to ordinary English law and criminal procedure.[36] However, all colonial officials did not support these measures. In 1824, Saxe Bannister, then Attorney General of New South Wales, made the opposite complaint in the letter he wrote to Colonial Office Under-Secretary Wilmot Horton.[37] Bannister remarked on the continuing ‘denial of Justice’ caused to ‘Black Natives’ by the fact that a law had not yet been enacted to allow them to testify in court without taking an oath. More specifically, Bannister wrote in this regard that:
Mr Forbes has mentioned a point with regard to the Black Natives, which I most cordially agree with him upon. They have not that sense of religion, which authorises the taking of an oath by any form. The consequence is a very frequent denial of Justice to them. I have no doubt of the present disturbance in the mountains and near Bathurst being most to be attributed to a gross case of this kind.
The remedy will be in an Act of Parliament enacting that, from certain persons, evidence may be taken without oath. The religious sanction is one only of many, and with these people it does not exist in this shape. Without the passing of such an act as this, the Act of Parliament of last year with respect to the New Zealanders and others will in many instances be perfectly inoperative.
The impropriety of the rule of law cannot be shewn more strongly.[38]
In November 1824, Bannister wrote an addendum to this letter, in which he noted that ‘It has, since the writing of this letter, occurred to me that the council here might pass a local act on the subject with a special clause of suspension, inasmuch as the change of principle is considered’.[39] While Bannister appears to have been among the first to propose enacting either a British, or alternatively a local colonial, statute to enable Aborigines to testify in criminal trials, others soon followed. In addition, increasingly after the mid-1820s, issues surrounding the admissibility of Aboriginal evidence began to be raised more frequently in cases that came before the Supreme Court of New South Wales.
In the case of R v Fitzpatrick and Colville (1824) Chief Justice Forbes asserted that ‘the best evidence’ for the charge was not available because of the inadmissibility of testimony by an Aboriginal witness. In this case Bullwaddy, an Aboriginal man, witnessed Fitzpatrick killing a Shepard named Bentley and reported that information to a constable. A second accused, Colville, who was also indicted but subsequently acquitted of the murder, and another man, Sears, offered corroborative testimony of the facts of the case.[40] In her analysis of this case, Nancy Wright notes that it is significant that Chief Justice Forbes paid attention to Bullwaddy’s statement made to another witness in his decision to convict Fitzpatrick, even though he, and later Governor Brisbane who reviewed Forbes decision, considered it only as corroborating evidence. Specifically, Wright notes that Chief Justice Forbes ‘respited Fitzpatrick’ after his conviction in order to allow Governor Brisbane to consider the case, ‘in Forbes’s words, “divested [of] those restraints which the strict rules of evidence, imposed upon the Court at the trial, and with that light which the evidence or statement of Bullwaddy will in all probability throw upon it”’. Subsequently, Brisbane reported his decision back to Forbes that, based upon Bullwaddy’s testimony, he was ‘against exercising the prerogative of mercy on Fitzpatrick’s behalf’.[41] In this instance, Brisbane himself questioned Bullwaddy, after the Attorney General brought him before him.[42] With respect to the overall legal significance of this case, Wright concludes that:
The admission of the testimony of Aboriginal witnesses in extrajudicial circumstances [like those involving Bullwaddy], however, did not construe it as legal evidence. Instead it was weighed as corroborating information upon the discretion of the governor in his capacity to exercise the royal prerogative of mercy. As a result it did nothing to implement and exercise the rights of Aboriginal people as British subjects.[43]
In the case of R v Jackey (1834) an Aboriginal native was committed for trial for the wilful murder of a white stockman, John Flynn.[44] At the trial, the Reverend L E Threlkeld ‘was sworn interpreter between the Court and the prisoner at bar’. Threlkeld was assisted by another Aborigine, who could understand English, but who could not be sworn as an interpreter because, it was said, he had ‘no religion at all’. In the course of the trial, when the accused’s defence counsel, Mr Nichols, was asked by the Solicitor General if he could produce any witnesses for the defence, he said he could not ‘because he was unable to converse with the prisoner as to the merits of the case; and if he could produce any, their evidence would not be received’. According to the trial records, ‘The Solicitor-General denied that this was a necessary cenclusion [sic], upon which Mr Nichols put into the witness box the aboriginal native, who was assisting [sic] Mr Threlkeld as interpreter.’ In the ensuing conversation over ‘the capability of the natives imbibing any religious impressions, or of their believing in any future state of rewards or punishments’, Mr Threlkeld stated ‘that the black man in the witness box believed in the existence of a divinity and a future state, because he had told him so, and not from any belief of his own on the subject’. When ‘the court enquired whether the man tendered as a witness could speak to any of the facts’, Mr Nichols ‘replied in the negative – his object was to prove by illustration the impossibility of tendering witnesses for the defence’. The accused was subsequently convicted of manslaughter and ‘sentenced to be transported from the Colony for the term of his natural life’.
The problem of how to accommodate the unsworn testimony of Aborigines was also addressed in the case R vs Jack Congo Murrell (1836), heard by Chief Justice Forbes, and Justices Dowling and Burton.[45] This was the case in which Murrell’s barrister, Sydney Stephen argued that the Aborigines had their own laws and that they ‘were given no protection by European law’ partly because ‘they were unable to given evidence as witnesses’. As reported in the Sydney Gazette on 23 February 1836, Stephen specifically argued that:
The reason why subjects of Great Britain were bound by the laws of their own country was, that they were protected by them; the natives were not protected by those laws, they were not admitted witnesses in Courts of Justice they could not claim any civil rights they could not obtain recovery of, or compensation for, those lands which had been torn from them, and which they had held probably for centuries. It therefore followed they were not bound by laws which did not at the same time afford them protection. If it was held that they were subjects of Great Britain, then they would have a right to come into the Courts, and sue for any property they might possess, for assaults and cases of that kind. Again, providing the Court was to try this man, they would have to follow him with the shield of the law to prevent his being tried by his own tribe according to their laws. How could oaths be framed that would be binding on these men?
Although Murrell was found not guilty on the facts, the court disagreed with Stephen’s argument, declaring that Aborigines accused of killing other Aborigines were fully subject to British law. According to the report that appeared in the Sydney Herald on 18 April 1836 describing the judgement in the case delivered by Mr Justice Burton:
The learned Judge read a very elaborate review of all the bearings of the case − the principles which it involved - and the consequences which might ensue if it were to be held that the Aboriginal Natives might murder each other uncontrolled by the English law; and concluded by expressing an opinion (in which the other Judges entirely concurred) that the Act of Parliament having given the Supreme Court jurisdiction over all offences against British law, within certain prescribed limits, they could, within those limits, recognise no distinction between Natives and Europeans.
It appears that, in the end, it was the Myall Creek trials that provided the major impetus for the attempt made to enact an Aboriginal evidence act in New South Wales in 1839. In July 1839, Colonial Office Secretary Lord Normanby wrote to Governor Gipps, referring to the fact that Her Majesty’s government ‘has been recently called to the necessity of making provision for receiving the evidence of Aboriginal Natives in Courts of Justice’. He went on to note that: ‘This, however, is a question which I consider it better to leave to you to bring before the local Legislature, convinced that it will receive that consideration, which so important a question demands.’[46]
Gipps did not need very much convincing from Normanby, as he had already himself had begun to press for the admissibility of Aboriginal evidence in courts of law, following the Myall Creek trials. According to R H W Reece’s early account:
One of the aspects of the Myall Creek trials which had attracted [Gipps] attention was the difficulty of calling as a witness the Aboriginal stockman Davey who had seen the massacre and could probably have testified to the degree of culpability of each of the eleven men. In order to remedy this anomaly, and in anticipation of a request from the Marquess of Normanby who had succeeded Glenelg, Gipps in September 1839 introduced in the Legislative Council a Bill designed to raise the evidence of Aborigines taken without a Bible oath to the level of approvers. This meant that evidence from Aboriginal witnesses could be accepted by a court if it was supported by corroborative evidence from other sources.[47]
The New South Wales bill was actually drafted earlier, in 1838, by Justice Burton, who then forwarded it to Governor Gipps for his consideration, along with a letter explaining the object of the bill and his views respecting Aborigines.[48] On 17 August 1839, James Stephen’s immediate superior, Colonial Office Parliamentary Under-Secretary Labouchere, wrote to Justice Burton, who was at this time in London, stating that:
I am directed by the Marquis of Normanby to transmit to you the Copy of a Communication from the Committee of the Aborigines Protection Society urging that the Natives in the Australian Colonies should be admitted to give Evidence in the Courts of Law; and I am to request that you will state for his Lordship’s information whether in point of fact any objection has ever been made to admit the Evidence of the Aborigines in the Courts of New South Wales, and if so in what manner you conceive that defect in the administration of Justice could be most properly remedied.[49]
Justice Burton replied to Labouchere the same day, informing him that in the past objections were ‘made and sustained by the Supreme Court of New South Wales to the admission of such evidence’ on two grounds. The first ground, he said, was where it had ‘been impossible to communicate with a proposed witness on account of his ignorance of the English Language, and where no Interpreter could be procured to interpret between him and the Court’, and the second, was where ‘a proposed witness’ was ‘found to be ignorant of a Supreme Being and a future State’.[50] Burton went on to provide Labouchere with his opinion on the expediency of enacting ameliorative legislation, along with an overview of his own role in bringing forth such legislation in New South Wales. Burton stated that:
Whether it is expedient to introduce into the Australian Colonies any modification of the English Law of Evidence now existing there is however involved in His Lordship’s Enquiry, and I conceive that, in certain cases where the matter at issue is of minor consideration, the statements of the Aborigines might be received as evidence; and I had the honour of preparing a Bill for their Protection in New South Wales, in which that principle is recognized and acted upon; it was transmitted by me to His Excellency the Governor, Sir Geo Gipps, together with a letter explanatory of its intention in the Month of June, 1838, but was not laid as I hoped it would be by His Excellency before the Legislative Council in consequence, as I presumed, of a recommendation of the Committee of the House of Commons, that no measure of that kind should be of Colonial Origin.[51]
Burton also noted that his ‘rough Draft of the Bill’ and letter to Governor Gipps had been already transmitted to the Colonial Office, and that he conceived that the proposed Act ‘would give satisfaction to the Friends of the Aborigines both in England and in the Colony, if it were adopted.’[52] It is clear from Burton’s letter, along with other correspondence, that the Aborigines Protection Society did indeed play a key role in raising the issue of the need for an Aboriginal evidence act in New South Wales. In the statement of the Aborigines Protection Society originally sent to Lord Normanby in July 1839, the Society stated that:
Amongst various points which have engaged the attention of the Aborigines Protection Society as necessary to ensure the safety and elevation of the uncivilized Natives of those parts of the Globe, on which British Colonies or Settlements are formed, the subject of their admission to give Evidence in Our Courts of Law has repeatedly excited particular interest.[53]
The statement went on to highlight the attention that was being directed at the issue by Barton Hack, one of the ‘corresponding Members’ of the Aborigines Protection Society from Adelaide, and the bill the Society had prepared ‘which they hoped would be passed with the concurrence and support of Her Majesty’s Government.’ However, alluding to the ultimate power wielded by the Colonial Office regarding the matter of recommending British Parliamentary acts that were binding on all British colonies, the Aborigines Protection Society further added that:
Intimation ... having reached the Committee of the Society that the course which it was prepared to take did not meet the approbation of the Colonial Office, it was determined to suspend the further prosecution of the Bill and again address the Colonial Office in the hope that the appeal, which they now offer, limited as it is to the subject of Evidence and confined to the Aborigines of Australia or to the Australians and the Islands of the Pacific, will not be made in vain. The Committee cannot but anticipate that the effectual carrying out of measures, calculated to secure the object which the Bill in question was destined to obtain, will prove so real a boon to the Native population and so important to the respectable Class of British Emigrants, so decided a check to evil doers, and so satisfactory to the friends of humanity in this Country, that it may be speedily followed up by similar measures applicable to all the Courts in Our Colonies and Dependencies.[54]
By the end of August, 1839, Lord Normanby wrote a despatch (No 134) to Governor Gipps, transmitting copies of the recent correspondence between Labourchere and Justice Burton ‘relative to the question of admitting the evidence of the Aborigines in the Courts of Justice in New South Wales’.[55] In light of this correspondence, Normanby said it seemed desirable to him that Gipps ‘should submit to the Legislative Council some well digested plan for obviating such impediments as prevent the admission of the testimony of the Aborigines in Judicial proceedings’. By October 1839, the Legislature of New South Wales had passed an Act (No 16) ‘to allow the Aboriginal Natives of New South Wales to be received as Competent Witnesses in Criminal cases’. It is significant, however, that his Act was limited in that it allowed Aboriginal testimony to be given only ‘so much weight as corroborating circumstances may entitle it to’. More specifically, that Act required that testimony of Aborigines should be corroborated with evidence provided by ‘European witnesses’. Consequently, as Alex Castles notes, in light of the evidentiary rule ‘that evidence could not be used for corroborative purposes where this also had to be corroborated ... under this scheme, the evidence of one Aborigine might not be used to corroborate the evidence of another’.[56] In addition, a clause was added to the Act which prevented it from taking effect until it was approved by ‘her Majesty’; which occurred normally by recommendation of the Colonial Office. On 14 October 1839, Gipps wrote to Normanby, informing him of the circumstances that led to the enactment of the legislation and the inclusion of the noted specific clauses, stating:
Herewith I have the honour to transmit to your Lordship an Act passed in the present session of the Legislative Council to allow the aboriginal natives of New South Wales to be received as competent witnesses in criminal cases, notwithstanding that they have not at present any distinct idea of religion, or any fixed belief in a future state of rewards and punishments.
This Act is transmitted separately to your Lordship in consequence of a clause having been added to it by the Council, preventing its taking effect in the Colony until it shall have been approved by Her Majesty.
The measure was introduced at the desire of the Attorney-general [J H Plunkett], in consequence of the difficulty in obtaining convictions which he experienced in several cases, wherein native blacks have been concerned, either as the accused or the injured party, and the dissatisfaction which has been expressed in the colony when a criminal has escaped.
The clause preventing the Act from coming into operation until Her Majesty’s pleasure shall be known, was added at the request of the Chief Justice, who, though friendly to the measure, would otherwise have felt himself, as probably would also his brother judges, compelled to remonstrate against the act as repugnant to the Laws of England.[57]
Just over a year later, in December 1840, Governor Gipps wrote to C J La Trobe, the newly appointed Superintendent of the Port Phillip District, stating that he was confident that the Act would soon receive Royal Assent.[58] However, as we know, this was not to be the case. Upon being received by the Colonial Office, the Act was referred to the Attorney and Solicitor General of England for his consideration. The Attorney General in turn passed on the Act to two barristers, J Campbell and Thos Wilde, who were asked to offer a legal opinion. On 11 August 1840, the new Colonial Secretary, Lord John Russell, wrote a despatch (No 127) to Governor Gipps, in which he informed him that the Act had been disallowed, and enclosed a copy of the report written by Campbell and Wilde that, he said, showed ‘the motives by which I was induced to advise Her Majesty to disallow the Act’.[59] The report written by Campbell and Wilde, dated 27 July 1840, read:
My Lord,
Having duly considered the Act passed by the Legislative Council of New South Wales ‘To allow the Aboriginal Natives of New South Wales to be received as competent witnesses in Criminal Cases,’ transmitted to us by your Lordship’s directions, we have to report to your Lordship that in our opinion it cannot properly be submitted to The Queen for confirmation.
To admit in a Criminal Case the evidence of a witness acknowledged to be ignorant of the existence of a God or a future state would be contrary to the principles of British jurisprudence; and the Act is loosely worded with respect to the admission of which evidence and the weight to be given to it that we do not think it could be attended with any advantage.
We should have supposed that the Aboriginal Natives might have been sufficiently instructed before being produced as witnesses to render their evidence admissible according to the established rules of Law, which do not define the distinctness of Religious ideas or to what degree the belief in a future state is to be fixed to qualify a witness to take an Oath.[60]
It is important to note that while Lord Russell felt obligated to accept the legal opinion that led to the disallowance of the New South Wales Act of 1839, this did not mean he (or his highest-ranking civil servant, James Stephen, Jr) agreed with the opinion of the learned barristers. Among other sources, evidence of this is provided in the despatch Lord Russell wrote to Governor Gipps two months later, on 8 October 1840, in which he enclosed a copy of a report which he received ‘from Captain Grey, late commandant of an expedition into the interior of Australia’, which he said contained ‘some valuable suggestions with regard to the treatment of the aborigines’.[61] Captain Grey’s report included 37 itemized issues and suggestions related to the treatment of Aborigines, four of which related directly to the issue of the admissibility of Aboriginal evidence. First, Grey observed that the greatest obstacle that presented itself in considering the application of British law to Aborigines was the fact, that ‘from their ignorance of the nature of an oath, or of the obligations it imposes, they are not competent to give evidence before a court of justice’, and that ‘hence, in many cases, it would be extremely difficult, if not impossible, to obtain evidence on which a prisoner could be convicted’. Secondly, he advised that one ‘mode of evading this difficulty’ would be to empower courts ‘to receive evidence from the natives in all causes relating solely to themselves without the witness being sworn, only allowing testimony of this nature to hold good when borne out by very strong circumstantial evidence’, while at the same time also ‘empower the court always to receive evidence from natives called on by a native prisoner in his defence, such evidence being subject to the before named restrictions’. Thirdly, Grey reiterated the point made by some previous sympathetic observers (like Saxe Bannister), that the fact that natives were ‘unable to give testimony in a court of justice is a great hardship on them,’ and that ‘they consider it as such’. Grey added that: ‘the reason that occasions their disability for the performance of this function is at present quite beyond their comprehension and it is impossible to explain it to them’.[62] Grey also elaborated that he had been ‘a personal witness to a case in which a native was most undeservedly punished, from the circumstance of the natives, who were the only persons who could speak as to certain exculpatory facts, not being permitted to give their evidence.’ Fourthly, he pointed out that it was clear from his experience that ‘[t]here are certain forms in our colonial courts of justice, as at present conducted, which it is impossible to make a savage comprehend’. Specifically, he noted an instance of a court of quarter sessions he attended ‘at which a number of natives were tried on a great variety of charges’. He commented that:
Several of them were induced to plead guilty, and on this admission of their having committed the crime, sentence was pronounced upon them. But when others denied their guilt, and found that this denial produced no corresponding result in their favour, whilst at the same time they were not permitted to bring forward other natives to deny it also, and to explain the matter for them, they became perfectly confounded.[63]
Grey reported that he ‘was subsequently applied to by several intelligent natives to explain this mystery to them’, but that he ‘failed in giving such an explanation as would satisfy them’.[64]
The legal opinion that led to the disallowance of the Act of 1839 was not received favourably by Governor Gipps. In a despatch he subsequently wrote to Lord Russell, dated 7 April 1841, in reply to his despatch containing Captain Grey’s report, Gipps was critical of the fact that Russell’s predecessor ‘had disallowed the colonial Act which would have made special provision for the admission of Aboriginal testimony’.[65] It is interesting, however, that Gipps appears to have been displeased with the disallowance as much for the effect he saw it having in allowing Aborigines to get away with crimes they should be convicted for, as for the effect it would have in allowing whites to get away with crimes committed against Aborigines. Specifically, Gipps remarked to Lord Russell:
It seems to me, however, right to point out to Your Lordship that the inadmissibility of their evidence acts perhaps quite as often in favour of the aborigines as against them. The hardship of the exclusion of evidence that might be favourable to them, is always urged on the jury, both by their counsel and by the judge, and is again taken into consideration by the executive in carrying into effect the judgment of the court. The admission indeed of their evidence was in 1839 as much called for in New South Wales by parties who had suffered from the aggressions of the blacks, as by those who advocate their civilization; and complaints have long been loud amongst our settlers that, whilst the penalties of the law are rigorously enforced against persons who commit violence on the aborigines, the aborigines themselves are, when brought into our courts, almost invariably acquitted.[66]
Gipps went on to point out that he believed the frequent acquittal of Aborigines was actually unfavourable to their interests in that it engendered a disposition ‘in the minds of the less principled portion of the white population to take the law into their own hands’. A good example of this, he said, was the Myall Creek case that occurred nearly three years ago, in which ‘not less than 28 aboriginal natives were barbarously murdered’ in ‘an act of atrocity for which ... seven white men paid the forfeit of their lives on the scaffold’.[67]
On 24 January 1842, Gipps wrote the new Colonial Office Secretary, Lord Stanley, reporting on the controversy surrounding Judge Willis’s decision in the Bonjon case, and asking for a ‘declaratory law’ to be passed affirming that Aborigines ‘are amenable to British law for offences committed inter se’.[68] Gipps continued in a subsequent despatch to Lord Stanley, dated 11 March 1842, to provide the Colonial Office with further evidence of the ‘the legal disabilities’ of Aborigines and the ‘necessity of admitting the evidence of natives in courts of law’.[69] One piece of evidence Gipps offered was the annual report of the mission to the Aborigines at Wellington Valley, in which it was stated that:
It is indeed strange that, whilst the Aborigines are pronounced amenable to the English laws, and considered British Subjects, they are not dealt with as in such a condition, being allowed practices repugnant to our laws, injurious to their, as well as, European interests... .[70]
Gipps also enclosed a letter from Mr Hurst to Superintendent Latrobe, dated 22 July 1841, which provided details about a murder case that was said to illustrate the problems posed by not allowing Aborigines to testify in criminal trials. In his letter, Hurst argued that to help save the Aborigines from such murderous acts it would be proper to allow ‘the Aborigines to give evidence in Court whether a native or a European be the offending party’. Hurst said that while he was ready to ‘admit that their testimony should be received with caution, from the circumstances of their not being fully acquainted with the solemn obligations of an oath’, at the same time, he was of the opinion, ‘that when it is corroborated by circumstantial evidence, it should be received’. Nor, Hurst said, did he see ‘how they can be protected, or how justice can be done to them, unless some provision be made to meet their case in this respect’.[71] Gipps’ despatch also included an enclosed letter from the Chief Protector’s Office to Superintendent Latrobe, dated 11 December 1841, which claimed that: ‘The lives of Aboriginal natives known to have been destroyed, are many, and if the testimony of Natives be admissible, the amount would be great indeed’, but that, ‘even in cases where the Aborigines are said to be the aggressors, who can tell what latent provocation existed for perpetrating it’.[72] In addition, in his letter the Chief Protector lamented the inability of both himself and the Assistant Protector ‘to afford protection, or administer justice to the Aboriginal Natives,’ and that both ‘have invariably complained, and have urged that the subject might be brought under the early notice of the Government’. Writing personally, he said: ‘I also have felt myself powerless; and although frequently applied to for protection, and for justice, I have felt unable in some cases, owing to the legal disabilities of the Aborigines, to do so’.[73] In despatches he wrote to Lord Stanley in the spring of 1843 and 1844, Gipps included more evidence of the displeasure some voiced to the disallowance of ameliorative legislation, including copies of relevant annual reports he received from G A Robinson, the Chief Protector of Aborigines. In his report for 1842, Robinson complained that:
At present the evidence of aboriginal natives, by reason of their ignorance of the knowledge of God, is inadmissible in our courts of law; and hence, properly qualified religious instructors, to impart to them the truths of Christianity, and prepare them for the reception of their legal rights, as proposed by the Right honourable the Secretary of State, is, in consequence, absolutely needed. It were much to be regretted that the Colonial Act of Council on aboriginal evidence was disallowed, for it frequently happens that for want of this evidence the highest and foulest crimes go unpunished.[74]
In his report to Governor Gipps the following year, Robinson again pointed out that:
There is ... reason to fear that the destruction of the aboriginal natives has been accelerated from the known fact of their being incapacitated to give evidence in our courts of law. I have frequently had to deplore, when applied to by the aborigines for justice in cases of aggression committed on them by white men, or by those of their own race, my inability to do so in consequence of their legal incapacity to give evidence.[75]
As in New South Wales, not everyone in the Colonial Office agreed with the legal opinion that led to the disallowance of the Aboriginal evidence bill of 1839. This was especially true of James Stephen, Jr, who was, without question, the one person in the Colonial Office who was most knowledgeable about the challenges faced in attempting to adapt English laws of evidence to the specific circumstances of nineteenth century British slave colonies and settler societies.[76] In a hand-written minute, dated 20 April 1840, he pencilled on the back of the 14 October 1839 despatch Gibbs sent Normanby, Stephen (as cited by Alan G L Shaw) wrote that he thought the Act was necessary and valid, and that any doubts about it arose from a ‘misapprehension of the sense of the words in the act’ forbidding its repugnancy to the laws of England.[77] The full citation to Stephen’s minute of 20 April 1840 (from the original held in the PRO), reveals even more clearly that Stephen was fully in favour of the proposed legislation and critical of the justices of the Supreme Court of New South Wales who questioned its validity. More fully, Stephen wrote:
I should entertain [crossed out] feel no difficulty in expressing the opinion that this was an Act proper to be confirmed, but for the doubt which the Colonial Judges are said to entertain, whether it is not ‘repugnant to the Law of England’. To myself, that doubt appears to rest upon a misapprehension of the sense of those words in the Act of Parliament, which forbids the enactment of Colonial Laws, ‘repugnant to the Law of England’. The expression, as I conceive, means only to prevent a direct collision of authority between the Imperial & the Colonial Legislatures. To construe it as meaning that all laws of local origin shall be framed on the mode of the same English law, would be to attribute to Parliament the absurdity of requiring an identity of Legislation under an inherent dissimilarity of circumstances. If we had a race of aboriginal savages in England, I presume we should make such a Law as the present. At least I am convinced that we ought to make such an [sic] one. Therefore, I infer, that the Legislature of New South Wales ought to do the same, and may lawfully do it. Perhaps, however, the case should be referred to the Law Officers of the Crown.[78]
Stephen’s minute is followed by another minute, dated 23 April 1840, which appears to have been written by Colonial Secretary Lord John Russell, which reads:
Perhaps so, [illegible] I agree with J Stephen. I understand ‘repugnant to the Laws of England’ to mean the general principles of those laws – such as torturing a prisoner to make him confess his guilt and − I do not think in this case there is such repugnancy, but we had better ask the Law Officers.[79]
This document, which to my knowledge has not been cited in full in any other published secondary literature, shows that Stephen was extremely interested in and concerned about the treatment of Aborigines in the legal system of New South Wales, and that he believed that – as in the case of slaves[80] – one way to try to protect them through the law was to make the testimony of Aboriginal witnesses admissible in criminal trials. Evidence that Stephen was successful in convincing his superiors in the Colonial Office that further steps should be taken in this direction exists in the despatch Lord Stanley sent to Governor Gipps in December 1842, in which he remarked that:
[A]greeing as I do in the general opinion, that it is indispensable to the protection of the natives that their evidence should, to a certain extent at least, be received in the courts of law, I shall take into my consideration the means by which this can be effected in the safest and most satisfactory manner.[81]
Ultimately, the measure finally resorted to by Lord Stanley was to have James Stephen draft a Colonial Evidence Act for passage by the British Parliament what would enable individual colonies to enact local Aboriginal evidence bills. Indicatively, on 31 March 1843, Lord Stanley received a legal opinion from barristers T Pollock and W W Pollett regarding the validity of the proposed bill, in which they mentioned the specific reason Stanley decided to proceed by way of passing an Act through the British Parliament, instead of leaving the colonies without any specific guidance in this matter. The barristers acknowledged receiving the ‘Draft of a Bill’ Stanley proposed ‘to submit to Parliament in the present session, to enable colonial legislatures to pass laws authorizing the admission of native testimony though unsworn, in courts of justice within the colonies’. They noted that Stanley had been led led to propose the adoption of this measure in consequence of the objections raised by us in our Reports of the 26th October and 24th December last, ‘as well as by the Report of our predecessors, to the confirmation of local Acts passed by the respective governments of New South Wales and of Western Australia for that purpose’. They further noted for the record that Stanley’s secretary, Mr Hope, had requested that they ‘take the enclosed draft into our consideration, and report to your Lordship our opinion whether there is anything objectionable in the draft as at present framed, and, if so, in what respect it would require amendment’. In response to this request, the barristers stated that ‘we have taken this matter into our consideration and have perused the draft of the proposed Bill, and beg leave to report to your Lordship that we see nothing objectionable in the draft as present framed’.[82]
Four months later, on 6 July 1843, Stanley wrote a short despatch to Gipps in which he included a copy of the Colonial Evidence Act passed by the British Parliament, and tersely noted that:
The circumstances which have given rise to the passing of the Act have been so fully entered into in previous correspondence that it is only necessary for me now to instruct you to propose to the Legislative Council of New South Wales a law for giving effect to the provisions of the Act of Parliament.[83]
Shortly, we will turn to looking at how Western Australia and South Australia managed to enact local evidence bills along the lines recommended by James Stephen, and embodied in the British Colonial Evidence Act of 1843. However, first, some final comments are needed on the New South Wales experience after 1843.
The subsequent fate of efforts undertaken in New South Wales to enact an Aboriginal evidence act is well documented. Without doubt, much to James Stephen’s dismay, an Aboriginal evidence act was not enacted in New South Wales until 1876. While Gipps obediently carried through on his instruction to propose such an act to the Legislature, subsequent bills failed to pass. In 1844, the Legislative Council ‘rejected a bill supported by Governor Gipps on the admission of Aboriginal evidence’, and again, in 1849, ‘the Council refused to adopt a proposed law along the lines of those already in force in the western colonies’.[84] Commenting on the fate of the failed Act of 1844, Bruce Kercher notes that:
The 1844 bill was rejected by fourteen votes to ten after a vociferous debate. The Attorney General said that one of the aims of the bill was to reduce the bloodshed on the frontier; he cited the lucky escape of the four Myall Creek defendants on this ground. In reply, Robert Lowe said that the bill would risk the lives of white people to the uncertain consciences of Aborigines.[85]
Kercher also cites the infamous speech given by W C Wentworth in the Legislature and reported in the Sydney Herald on 21 June 1844, in which he showed his unrestrained hostility to Aborigines, and in which he pointed to the execution of those convicted of the Myall Creek killings as ‘legal murder’ and a ‘violation of every principle of law and justice’. Consequently, in his account of the failure of the 1844 bill, Kercher notes that:
The murders at Myall Creek had become a focus of the debate about law on the frontiers of New South Wales. Each side clung to its version of the second trial’s outcome. The 1844 bill failed largely because the majority believed an injustice had been done to the murderers and because of an irrational belief that the bill would encourage further Aboriginal attacks. The formal legal position was that Aborigines were British subjects, but New South Wales was left without any means to begin to give them access to the British version of justice. They were subjects without enforceable rights.[86]
Why, then, were Aboriginal evidence acts passed on Western and South Australia, and not in New South Wales? Finding an answer to this question is important, because it may potentially help comparative legal historians move toward developing a more adequate ‘postcolonial’ perspective on the application of colonial law to Indigenous peoples.[87] In particular, exploring this question helps to illuminate how different relations that existed between government officials in the imperial centre, or ‘metropole’, and government and judicial officials in the colonies, affected the different ways in which English criminal law was applied to Indigenous peoples – or postcolonial ‘others’ – in nineteenth century British settler societies.
To my knowledge, Alex Castles is the only Australian legal historian who has addressed this question specifically. In his discussion of the experience of Western and South Australia, Castles remarks that:
In the cases of Western Australia and South Australia ... special legislation was approved to deal with the admission of Aboriginal testimony. It would seem that in contrast to New South Wales, a change in attitude in Britain enabled this to be done, following a change of government in 1839.[88]
Castles notes that in Western Australia the local enactment (Act 4 and 5 Vict No 22, 1841) applied to both criminal and civil proceedings and Aborigines were permitted to give evidence by way of affirmation. A prior Act on the subject (No 8 of 1840) had been disallowed because ‘it covered only criminal proceedings’ and because ‘instead of giving courts a discretion as to the weight to be accorded to Aboriginal testimony it attempted to do this statutorily.’ According to Castles, the Western Australia Act of 1841 was later re-enacted in 1843 (7 Vic No 7) and made permanent in 1849 (12 Vic No 14).[89] Castles notes that ‘South Australia succeeded in gaining approval for similar legislation in 1844’ (Ordinance No 8 of 1844, SA) but that ‘serious problems remained in relation to the corroboration of Aboriginal testimony, along the lines raised with respect to the New South Wales enactment of 1839’. Although the South Australian legislation was amended in 1846 in an attempt to overcome these problems (Ordinance No 5 of 1846, SA) Castles claims that the amendments were not all that satisfactory.[90] While Castles’s general account of the enactment of legislation in Western Australia and South Australia is for the most part accurate, it is lacking the detail required in order to situate the enactment of these statutes within broader comparative context. Specifically, it appears that Castles may have been wrong in concluding that an Aboriginal evidence act was implemented in Western Australia in 1841.
The need for a comparative perspective is clearly suggested in contemporaneous data, such as in the early despatch, dated 3 May 1839, that the new Governor of Western Australia, John Hutt, sent to Lord Glenelg on subjects which included the ‘Character of the Aborigines’ and the need for ‘Magistrates to receive Evidence in certain cases’.[91] In his despatch, Hutt related his experience of having travelled recently from England, which led him to contemplate the ‘future destiny’ of the local Aborigines. Specifically, he surmised that:
To a person residing in a colony of England, among an untutored race, such as the aborigines of Australia, the question naturally and anxiously arises, what is to be this people’s future destiny? Are they to be swept off by aggression and disease, or will they pine away under a feeling of their immeasurable inferiority to the white men; or, if they survive, will it be to sink into a state little better than the slave, or gradually to be absorbed into and become one people with their intruders?[92]
Hutt believed that while the last of these potential outcomes (racial amalgamation) was at least for now ‘apparently unattainable’, it was the long-term ‘result which in our conduct towards them we should ever keep in view’.[93] However, Hutt added that, in addition, ‘[m]uch will depend on the way in which we exercise our power, but still more upon the character and disposition of the aborigines themselves’. Moreover, in a statement that would clearly appease the conscience of English Evangelicals like Lord Glenelg, Hutt added:
Knowing the feeling on this point which pervades the Government and the public mind in England, and having had it strongly pressed upon my attention before sailing for this country, I have since my arrival here taken every opportunity of ascertaining the present condition of the native inhabitants of Western Australia, and the relative position in which they stand towards the settlers.[94]
Like others, such as James Stephen, Jr, and the Aborigines Protection Society, who pushed for the equal treatment of Indigenous peoples as full ‘British subjects’, Hutt viewed the inadmissibility of Aboriginal testimony in courts of law to be one of the key obstacles that made it impossible for Aborigines ‘to participate with us in the benefit of the leading principles of the English constitution, perfect equality before the law, and full protection of their lives and liberties’.[95] Consequently, in his despatch of 3 May 1839, Hutt informed Glenelg that he recognized that an ‘alteration in the law’ was needed, and that he thought that given ‘a measure of such importance’, it was ‘most advisable ... to submit the draft of a Bill for your Lordship’s consideration, in order that I may be favoured with your Lordship’s opinion as to its propriety or expediency.’ Hutt explained that:
The chief provisions of this Bill are to enable magistrates to issue warrants on the statements without oath of the natives, and to allow those statements to be taken in evidence on the trial, and to warrant judgment being passed and punishment inflicted on such evidence, when borne out by circumstantial proofs, in all cases, whether the offender be a colonist or one of the aborigines.[96]
Hutt further noted that:
In proposing this Bill, the draft of which I now enclose, and upon which I solicit your Lordship’s early opinion, I would observe, that it affects the criminal law alone, because civil law being the offspring of civilization, nothing relating to the aborigines can have reference thereto.[97]
Hutt’s detailed reasoning as to the need for this type of bill was remarkably similar to that offered by Governor Gipps in New South Wales, especially in relation to the need for such a law, as much to protect settlers from Aborigines, as to protect Aborigines from settlers. In particular, Hutt pointed out that in English courts of law ‘all evidence must be taken on oath, or upon an affirmation, declared by an Act of Parliament equivalent to an oath’; however, ‘the aborigines of Australia have no religious forms either of blessing or of cursing, by which their conscience can be bound’.
From this source the most serious evils necessarily flow. In very many instances criminals escape altogether; in others, as I have before observed, the principles of the law by which we profess to be guided are violated, and putting aside its slow forms and technicalities, and acting only on notorious facts, offenders in very gross cases are apprehended and summarily convicted by a magistrate, on legally inadmissible evidence. Whilst settlers at stations widely distant from the seat of government, ignorant of the name and person of the native depredator, or if they know them, unable to bring the requisite proof, having had their sheep stolen, their goods and pigs speared, and their gardens and fields robbed a first, a second and perhaps a third time, at last seeing that they cannot, as they think, obtain justice in any other way, consider themselves authorized to defend their property by every means in their power, and they fire upon the native when they next catch them thieving. Exasperation, revenge and murder ensue, and eventually the weaker party are exterminated.[98]
Again revealing his own sense of the need for a comparative perspective, Hutt made a point of further noting that:
I am not now stating what actually takes place in this colony, but rather pointing to what has taken place elsewhere, and what we must expect will occur in Western Australia, unless some timely check is interposed by a change or modification of the existing law.[99]
Lord Russell, having replaced Lord Glenelg in the interim as Colonial Secretary, replied to Governor Hutt in a despatch, dated 29 October 1839, in which he stated:
I approve of the principle on which this proposed enactment is founded. It is clearly right to enable the magistrates to take the evidence of a native, though not upon oath. The judge and jury will then decide what such evidence may be worth. It will, however, be proper to add to the Bill a clause, providing that no sentence upon a native shall be carried into effect until the chief judge of the colony shall have had before him the evidence in the case, and shall have confirmed the sentence.[100]
The following year, on 19 August 1840, Governor Hutt forwarded Lord Russell a copy of the Act (No 8) ‘to allow the Aboriginal Natives of Western Australia to give Information and Evidence in Criminal Cases, and to enable Magistrates to award Summary Punishment in certain cases’.[101] As noted earlier, in his discussion of the case of Western Australia, Alex Castles argued that the Act of 1840 was disallowed because ‘it covered only criminal proceedings’ and because ‘instead of giving courts a discretion as to the weight to be accorded to Aboriginal testimony it attempted to do this statutorily’.[102] However, not cited by Castles is the fact that the exact circumstances that led to the disallowance of the statute are documented in considerably more detail in the correspondence that transpired between Governor Hutt and Lord Russell, as well as in a private minute apparently written by Lord Russell, regarding issues and problems with the Act of 1840. One additional factor that may have contributed to the legislation being disallowed was that Governor Hutt openly disagreed with and decided not to follow Lord Russell’s instructions on how to improve the draft legislation he submitted in 1839. Specifically, in the explanatory comments on the Act he provided in his despatch of 19 August 1840, Hutt mentioned that:
In the despatch [I received] relative to this Act, your Lordship says it will be proper to add a clause, providing that no sentence upon a native shall be carried into effect until the chief judge of the colony shall have had before him the evidence of the case, and shall have confirmed the sentence. The Act now submitted contains no such clause, and I have ventured, with some hesitation, to forego your Lordship’s instructions on this point, because I could not but concur in the reasoning of the Council, when this Act was under discussion, that by the insertion of such a clause, this, which if sanctioned will prove a most salutary measure, would be rendered frequently inoperative.[103]
It is significant to note the considerations Governor Hutt took into account in deciding not to follow Russell’s instructions. In essence, Hutt recognized that requiring all sentences handed out to Aborigines to be approved by the chief judge of the colony would make it impossible for magistrates to use their summary jurisdiction to deal with the ‘common offences of the aborigines’ in a manner that would both allow for the ‘immediate punishment of the offender’ and at the same time reduce ‘the exasperation of feeling which is excited’ among the local Aborigines ‘when a family is deprived of one of its members, or a tribe of one of its warriors, by the suffering individual being sent to a distant part of the colony, for to them an unknown, or at least unintelligible period’. Hutt invoked the same rationale to explain and justify the power the Act gave to magistrates to impose sentences of whipping, in lieu of a sentence of imprisonment, on any Aborigines who were convicted of offences of a ‘trivial nature.’ According to Hutt, the punishment of whipping was less oppressive to Aborigines, because:
... to the habits and dispositions of these people; they do not hold it in that degrading, disgraceful light which we do. Parents request it of their children, even when those children have advanced beyond the age of childhood; the elder for the younger members of the community, when the latter have been convicted of any wrong; and one and all of them would prefer the temporary pain of flogging, of which the worst is known and suffered at once, to a lingering incarceration in a cell, where they are separated from their kindred, bereft of any sympathy, and compelled to exchange the wild restless freedom to which they have been accustomed in their native woods, for a life of almost sedentary inactivity.[104]
On the back of the original hand-written copy of Hutt’s despatch of 19 August 1840 that was received by the Colonial Office, there is a minute, apparently written by Lord Russell, which contains a short response Hutt’s despatch and instructions on the action that should be taken by the Colonial Office.[105] Titled ‘W Australia 714’, the minute read:
1. I agree that the necessity of requiring an oath from a native of Australia before his evidence is an absurdity −
That absurdity ought to be removed, and not only in W Australia but throughout the Australian colonies −
The other instructions on evidence are only good so far as they confine the attention of the judge and jury to material points. When any body is heard [crossed out] called as a witness who has heard any thing of the case, as in France, the direct testimony to important facts, and the circumstantial hearsay as to collateral matters form a confusion which it requires the closest and most powerful judicial mind to unravel −
I wish Mr. Stephen would make a draft despatch on this subject.
2. I cannot allow the aborigines to be distinguished from Europeans – [illegible] let in this distinction, and the greatest apprehension will grow up – For this reason the Act should be disallowed.
In the despatch he subsequently sent to Govenor Hutt, dated 30 April 1841, in which he gave reasons for the disallowance of the Act of 1840, Lord Russell referred to a number of specific problems with the Act. However, he also noted improvements in the legislation compared to the earlier 1839 draft, and encouraged Governor Hutt to resubmit a revised Act for consideration by the Colonial Office.[106] Specifically, on the positive side, Lord Russell’s despatch stated that:
The Act, No 8, to allow the aboriginal natives of Western Australia to give information and evidence in criminal cases, is not only unobjectionable, but is an evident improvement on the former law, so far as provision is now made for the admission of the evidence of aborigines without an oath. To exact oaths of men to whom the sanctions of religion are unknown, and who do not even recognize the elementary truths on which all religious belief must depend, is a manifest absurdity. Either the deponent must go through what to himself appears an unmeaning ceremonial, and to others a profanation, or the courts must be excluded from receiving at all the testimony of those persons, as to matters of fact lying within their direct personal knowledge, and which they may have no motive to conceal or falsify. The escape from this dilemma is obviously to receive their unsworn testimony, leaving the courts to make any deduction from the weight and credit due to the witness, which the avowed absence in his mind of the religious sanctions for truth may require.
However, Russell also noted that in his opinion the Act did not go far enough in treating the testimony of Aborigines in the same manner as that given by white settlers. Most problematically, he pointed out:
This Act determines that the unsworn testimony of a native is never to be regarded as conclusive, unless it be supported by strong collaborative circumstances. Probably, without any enactment, this rule would be observed by every court and jury. It is, in fact, seldom disregarded in the administration of the law in this country. The simple assertion of a witness that a crime was committed by the accused party, is, in the absence of corroborative circumstances, inconclusive, because it is scarcely possible to suppose the absence of that kind of corroboration when the statement itself is true.[107]
According to Russell, because it emphasized the need for strong corroborative evidence, the Act did not introduce any ‘real innovation’, but instead:
[b]y laying down a general rule for appreciating the evidence of aborigines, which is not extended to the evidence of other persons, it affords an apology, and perhaps a valid apology, for such a practical administration of the law as may virtually exclude them from the protection of it.[108]
Russell suggested that:
To have enacted that the courts should make in each case such an abatement from the value of the evidence as the want of an oath might seem to the judge and jury to require or justify, would have been the more convenient course.[109]
Lord Russell also objected to the power given to magistrates to substitute the punishment of whipping for imprisonment in the case of more trivial offences. The wording of Russell’s objection to this provision of the Act is worth quoting at length, in particular because of the manner in which it resonates with the views long held and expressed by his top-ranking civil servant, James Stephen, Jr on the punishment of whipping,[110] and the fact that Stephen had a great deal of input into the wording (if not the actual writing) of Lord Russell’s official statement on punishment of whipping inflicted on natives. The despatch, signed by Russell, stated:
I more decidedly object to the summary jurisdiction of any two justices of the peace, in the case of aborigines, especially connected as it is with the power of whipping. So great is the difficulty of legislating aright for the protection of savage tribes living in juxta-position with a race of civilized men, that it is not without great hesitation that I object to any attempt made for that purpose, especially when conceived, as in the present instance, in the spirit of humanity and zeal for their welfare. Yet I must observe, that the delegation to justices of the peace of summary powers of punishment over the inferior race, from which the colonists of European descent are to be exempted, is a measure dangerous in its tendency, as well as faulty in principle. By thus establishing an inequality in the eye of the law itself between the two classes, on the express ground of national origin, we foster prejudices, and give a countenance to bad passions, which unfortunately need no such encouragement. It is wise to sacrifice some immediate convenience with a view to maintain the general principle of strict legal equality, because, in the continued assertion of this principle will be found the best attainable security for maintaining just opinions, and a correct moral sentiment throughout society at large, on the subject of the rights of the native population.[111]
As referred to briefly in Castles’s account of the fate of the Western Australian Act of 1840, Lord Russell added that:
I observe, also, that the admissibility of the evidence of the natives without oath, having been expressly enacted in reference to criminal cases, the consequence inevitably follows, that, in all civil suits, their testimony must be entirely rejected. Whether this was an intentional or an unforeseen consequence of the law, does not appear; but whatever the fact may in that respect be, it is a result to be deprecated. The evidence which is admitted where liberty and life are at stake, should not be excluded when proprietary interests only are in question.[112]
Finally, Russell advised that:
For these reasons I have thought it my duty to advise Her Majesty to disallow this Act also, and the Queen has been pleased to disallow it accordingly. But you will immediately propose to the local Legislature the enactment of another law, having for its object to dispense with an oath in receiving the evidence of any aboriginal inhabitants of the province who may be unable to appreciate the nature and the obligation of an oath, qualifying the rule by such general terms as I have mentioned.[113]
On 20 January 1842, Governor Hutt submitted a revised Act (No 22, 4&5 Vict, 1841) for approval by the Colonial Office. Although Hutt said he disagreed with Lord Russell’s views on the use of whipping as a substitute for imprisonment for Aborigines, he nevertheless followed all of Lord Russell’s recommendations with regard to revising the Act. Specifically, Hutt noted:
Your Lordship’s observations and instructions have, in the reframing of this Act, been strictly attended to, and literally followed out. The evidence of the aborigines is hereby admitted without distinction, whether in civil or criminal cases, whilst it is left to the court to decide the value to be attached to such testimony; and the summary jurisdiction over aboriginal offenders, given to magistrates under the disallowed Bill, is not only separated from the present Act, but is done away with altogether.[114]
Likely much to Hutt’s surprise, given the diligent effort he made to follow Lord Russell’s precise instructions, their correspondence of the time indicates that the proposed Western Australian Act of 1841 was also disallowed in London. In his reply to Hutt informing him of the disallowance, dated 15 February 1843, Lord Russell stated:
I have laid before the Queen the Act which accompanied your despatch, No 2, of the 20th January 1842, passed by the Legislative Council of Western Australia, on the 26th of October 1841, intituled [sic], ‘An Act to allow the Aboriginal Natives of Western Australia to give Information and Evidence without the sanction of an Oath.’
I transmit to you copies of a reference to the law officers of the Crown, and of their report on this Act. In consequence of the objections stated by them to this Act, I have thought it my duty to advise the Queen to disallow it; and have received Her Majesty’s commands to signify to you, that Her Majesty has been pleased to disallow it accordingly.
It is not without regret that I announce to you this decision; and I am so fully sensible of the importance of the subject, that I shall consider whether it may not be advisable to introduce into Parliament a Bill to enable Colonial Legislatures to pass laws authorising the admission of the testimony of natives, although unsworn, in civil and in criminal cases, under such restriction as may be thought necessary.[115]
Although a copy of the reference to the law officers of the Crown referred to by Lord Russell in his despatch of 15 February 1843, is not included in the published Papers Relating to Emigration and the Aboriginal Population and other Affairs in Australia (from 1839-1844), the Public Record Office files for New South Wales contain a letter from the law officers of the Crown, T Pollock and W W Pollett to Lord Stanley, dated 26 October 1842, which explains how and why the Western Australian Act of 1841 was disallowed. Interestingly, this document also shows the nature of James Stephen, Jr’s involvement as a civil servant assigned to carry out a task he probably knew would probably have an unfavourable result. In their letter, the law officers informed Lord Stanley that:
On the 9th [?] instant we had the honor to receive a letter from Mr Stephen wherein he stated he had been directed by Your Lordship to transmit to us a copy of an Act proposed by the Legislature of Western Australia on the 26 November 1841 entitled ‘An Act to allow the Aboriginal natives of Western Australia to give information and evidence without the sanction of an oath.’
Mr Stephen enclosed an extract of so much of the Despatch of Governor Hutt as explaining the intention of the Act. In Mr Stephen’s letter it was also stated that in the year 1839 an Act was passed by the Legislature of New South Wales ‘to allow the Aboriginal natives of New South Wales to be received as competent witnesses in criminal cases’. A copy of that Act for our information was enclosed, together with a copy of a report upon it which was made by Sr J Campbell and Sir I Wilde when filling the Offices of Attorney and Solicitor General. And Mr Stephen was further pleased to state that he had received Your Lordship’s directions to request that we would take into consideration this Act of the government of Western Australia and report to your Lordship our opinion whether the objections where were pointed out by the late Attorney and Solicitor General as rendering necessary the disallowance of the form Act apply to the present Act, and would prevent its being properly submitted for Her Majesty’s confirmation.
In obedience to your Lordships’ Commands signified to us as above we have taken this matter into our consideration, and have the honour to report for your Lordships’ information that the objections which were pointed out by the late Attorney and Solicitor General to the former Act are applicable to the present − the two Acts are in fact, as far as regards the nature of these objections, substantially the same.[116]
There is also more direct evidence that James Stephen Jr, was intimately involved in the dispute over the enactment of an Aboriginal evidence act in Western Australia. On 28 September 1842, Stephen wrote a lengthy minute to Lord Stanley, in response to his request for Stephen’s opinion on the ‘Crown lawyers’ legal opinion that the Aboriginal evidence act proposed for Western Australia should be disallowed because its provisions were ‘contrary to the principles of British jurisprudence’. Lord Stanley said:
I do not know how far you might consider that objection to be applicable to the provisions of the Act of the Government of Western Australia, but I enclose a copy of the report that you may have an opportunity of referring to it, together with the Act on which that report was made.[117]
In reply, James Stephen, Jr, wrote:
I apprehend that the opinion of the late Attorney and Solicitor General (suffering it to be sound) will require the disallowance of the Act about evidence. I must acknowledge that I do not understand it. They argue that the admission, as a witness, of a man who is an Atheist, not by willful but by inevitable ignorance is contrary to the principles of British Jurisprudence. Under the shelter of emphatic language of this kind much often [papers] current, which has no real or precise meaning. I suppose the great principle of British Jurisprudence is that of making the best Laws which the exigencies of Society may require and the state of Society may admit. If the admission of the evidence of such people be requisite to the general good I confess I do not know what can be the principle of Jurisprudence which sh’d prevent such an Enactment. It is not opposed to the Divine Law, not to any of the Franchises which Englishmen regard as their birth-right. The real utility of oaths and the real good sense of refusing to listen to the testimony of Atheists are a large chapter, on which, of course, I do not mean to enter. But whatever may be the sound opinion in reference to this Country, and to those of our fellow-Country-men who may profess Atheistically opinions, I cannot doubt that the interests of truth and justice [will] be best promoted by setting aside this prohibitory rule in a Country where Atheism is a mere calamity and does not indicate the influence of a corrupt will in darkening the understanding.
However, the practical question is, whether your Lordship will regard the opinion of Sir John Campbell and Sir Tho Wilde as justifying the disallowance of this Ordinance?
I am afraid that in the law of this opinion it will be impossible to allow the Act; however it is an opinion, as I understand it, not as to the policy, but as to the competency of the Colonial Legislatures to pass such an Act. But I think the expediency of admitting the testimony of Aborigines, valued quantum, so strong, that I should wish the opinion of the [learned] Law Officers to be taken; and should they concur with this [proposition], I am inclined to advise the introduction of a short Act of Parliament expressly authorizing the Australian Legislatures to pass enactments on this subject.[118]
Thus it would appear that the Western Australian Act of 1841 was disallowed for exactly the same reason as the New South Wales Act of 1839; both were considered by law officers of the Crown to be ‘repugnant to the laws of England’, and ‘contrary to the principles of British jurisprudence’. In order to get around this otherwise insurmountable obstacle to the enactment of local colonial Aboriginal evidence bills, officials in the Colonial Office, including James Stephen, Jr, saw no other way than to have the British Parliament pass an act that would, in effect, give prior statutory approval to the enactment of such legislation. Thus, on 4 July 1843, Lord Stanley wrote to Governor Hutt, informing him:
In my despatch, No 5 of the 15th February last, I intimated to you that it might probably be considered advisable to introduce into Parliament a Bill to enable colonial Legislatures to pass laws authorizing the admission of the testimony of natives, although unsworn, in civil and criminal cases, with such restrictions as might be thought necessary.
I now transmit to you a copy of an Act which has been passed for that object. The purposes of this Act have already been so fully discussed in previous correspondence that it is not necessary for me to trouble you with any further explanations on the subject. I have, therefore, only to request that you will take an early opportunity of proposing to the Legislative Council of your Government an enactment in accordance with the provisions of the Act of Parliament.[119]
The, albeit, thus far preliminary, research I have carried out on the South Australian experience indicates that the colonial politics and circumstances surrounding the enactment of an Aboriginal evidence act in 1844 were different from those that prevailed in either New South Wales or Western Australia. At the same time, my research findings show that the imperial influences, including the influence of British missionary evangelism, the Aborigines Protection Society, and James Stephen, Jr, were much the same.[120] The background events to the enactment of the South Australian Act of 1844 span the period covering the governorship of the first three governors of South Australia, John Hindmarsh, George Gawler, and Sir George Grey. Evidence suggests that John Hindmarsh came to the new colony with clear instructions to treat local natives as if they were British subjects who were fully amenable to English law. However, Governor Gawler obviously abandoned this ideal soon after he became governor, when he gave the order to Major O’Halloran to ‘enforce summary justice without trial’ against the natives who were thought to be responsible for the ‘Maria massacre’ of June 1840.[121] In the end, the person who took the lead in enacting an Aboriginal evidence act for South Australia was Sir George Grey, a well-known Anglican evangelical and zealous advocate for civilizing natives, who would, coincidentally, later serve terms as the governor of New Zealand and the Cape Colony.[122]
In their book, Fatal Collisions: Myths of the South Australian Frontier and the Violence of Memory, Robert Foster, Rick Hosking and Amanda Nettlebeck note that the South Australia Act, which was passed in 1834, ‘made no mention of the Indigenous inhabitants and declared the region “waste and unoccupied”’. However, they add that:
Shortly after the passage of the South Australia Act in 1834, a Whig government under Lord Melbourne came to power and the colonial office was now dominated by humanitarians. Men such as Lord Glenelg, Sir George Grey and James Stephen, who had been active campaigners against slavery, now expressed their concerns about the rights of Indigenous people.[123]
Moreover, Foster, Hoskings and Nettlebeck could have added that it was because of the influence of the Colonial Office, and the epiphany experienced by men like James Stephen partly because of the lobbying efforts of the Aborigines Protection Society,[124] that Captain Hindmarsh was instructed to make the legal rights of Aboriginal people ‘the centrepiece of his Proclamation speech in 1836’.[125] Hindmarsh’s Proclamation stated in part that it was his intention:
[T]o take every lawful means for extending the same protection to the Native Populations as to the rest of His Majesty’s Subjects, and of my firm determination to punish with exemplary severity, all acts of violence and injustice which may in any manner be practised or attempted against the Natives, who are to be considered as much under the safeguard of the law as the Colonists themselves and equally entitled to the privileges of British subjects.[126]
Although not touched on by Foster, Hoskings and Nettlebeck, there is also evidence that Governor Hindmarsh took the initiative to propose an Aboriginal evidence act for South Australia as early as 1838. Interestingly also, from a comparative perspective, it appears that the intention behind Hindmarsh’s proposal for a South Australian act, was similar to that expressed by Governor Gipps in New South Wales; in that both stated that they were concerned as much with increasing the chances of successfully prosecuting Aborigines who committed crimes against white settlers and other Aborigines, as they were concerned about protecting Aborigines from the violent depredations committed against them by whites. On 16 March 1838, Governor Hindmarsh wrote a despatch (No 80) to Lord Glenelg in which he reported the case of a murder of a white settler by Aborigines. Hindmarsh told Glenelg that he had ‘no doubt’ that the murder ‘was in revenge for the fact of several of their boys having been killed by the Colonists’, and that he believed ‘the natives generally, were not concerned in the murder; but that its perpetration was confined to one or two individuals’.[127] Hindmarsh went on to say that he ‘had much difficulty in allaying the fears of the white population, which [the murder and other attacks by Aborigines against whites] had led them into the mistaken opinion that retaliation was justifiable and even necessary’, and that he was strongly determined ‘not to suffer any but the culprits to be molested, and also to punish with the utmost rigour all aggression whether committed by Black or White’. In addition to intervening personally to prevent the escalation of violence between Aborigines and white settlers, Hindmarsh reported that another method he adopted to allay the fears of white settlers was to appoint ‘a Committee of twelve [settlers] to examine into all causes of differences which may arise between the Aborigines and the Colonists, who are to suggest to me from time to time such remedies and regulations as may appear to be necessary’. In the conclusion to his despatch, Hindmarsh outlined more specifically his views on the causes of the violent encounters between Aborigines and colonists, and the steps he planned to take to ensure both were treated equally in the eyes of the law. He said that notwithstanding what had occurred he felt confident that the Aborigines ‘will never be the aggressors in any collision that may unfortunately take place’. He was convinced that ‘should such a misfortune occur, it will arise from drunkenness, other improper conduct, or from the no less degrading absurd fears on the part of the Colonists’. Moreover, Hindmarsh promised Lord Glenelg that he could rely on his ‘most earnest exertions and caution to prevent such a calamity’.[128] With regard to how he planned to deal with the recent case of the murder of a white settler by Aborigines, Hindmarsh advised Glenelg that:
Should the murderers be apprehended we have only the evidence of a Native Boy, who stated that he saw the persons accused standing over the body; it will be curious to hear the advice the Committee may tender to me respecting the validity of this evidence, on which indeed the Law Officers and myself entertain considerable doubts.
I avail myself of this occasion to inform Your Lordship that I have for some time seriously considered the necessity of legalizing the evidence of the Aborigines, for which purpose I intend to propose a Bill to the Council, but which according to my present view must receive Her Majesty’s approbation before being carried into effect.[129]
I have been unable to find any evidence that Governor Hindmarsh ever brought forth an actual Aboriginal evidence bill for South Australia. By the middle of 1840, Governor Hindmarsh had been replaced by Governor Gawler. As several previous researchers have shown, Gawler soon found himself embroiled in a heated debate in South Australia over whether Aborigines should be viewed as ‘British subjects’ and dealt with according to the strict principles and rules of English law when they committed crimes of violence against white settlers.[130] A more detailed study of the debate over the legal status of Aborigines in South Australia after 1839 would no doubt help to enrich our legal-historical knowledge of this important subject.[131] However, the focus of this study is restricted to documenting, more narrowly what was said in the course of this debate, about the issue of the admissibility of Aboriginal evidence in criminal trials.
On 17 September 1840, the South Australian Gazette published the ‘Journal of the Proceedings of the Council’ held in Adelaide on 15 September 1840 at which Governor Gawler reported on the action taken against by Major O’Halloran against the Aborigines who allegedly massacred the 26 survivors of the brig Maria. At this meeting of the Legislative Council, Governor Gawler reported that:
On the 12th of August last I laid before a Council specifically assembled for the purpose, the reports which had been forwarded to me concerning the murder of several Europeans by the natives near the coast to the south-east of Encounter Bay. His Honor the Judge [Chief Justice Cooper] who attended by particular request, and all the members present, including the Advocate General, declared their opinions that the crimes in question were beyond the reach of the ordinary British law.
While not a lawyer himself, Gawler stated, with apparent confidence in his own opinion, that he himself was certain that this would be the conclusion reached even ‘before these opinions were elicited’. Gawler reasoned that this had to be the case, ‘inasmuch as, in addition to other forcible reasons, it is necessarily impossible, by ordinary law, to convict men of crimes of the perpetration of which no evidence commonly recognised as legal can be procured’. With regard to problems concerning the testimony of natives, he further put forth that:
The natives, as being practical atheists unacquainted with the obligation of an oath or solemn declaration, are not in British law valid witnesses. I am informed by His Honor the Judge that a legislative enactment has been passed in New South Wales under which their evidence is received as far as is may be corroborated by the testimony of competent Europeans; but even had such an enactment been in force here, it would, in the case in question, have been unavailing, inasmuch as all the Europeans at the time present in the district having been killed, there remained no legal evidence of any kind, direct or corroborative.
Gawler went on to use this argument to justify his recent resort to martial law. Specifically, he reasoned that since the Maria massacre occurred ‘[b]eyond the limits of ordinary British justice, there remained for me, in conformity with usage in Great Britain, the course of considering the district in question as in a disturbed state, and of proceeding on the principles of martial law’. Gawler claimed that he would ‘have been gratified if there had been no infliction of punishment except after formal trial and in the ordinary mode of British executions’, since he also realised that:
Punishment without trial by promiscuous firing is repugnant to justice and humanity – is calculated to excite the passions of the natives and to array them in open hostility. Punishment, after trial, in the deliberate and awful form of British justice, will, I am persuaded, as in a former case it has already been done, commend itself even to their understandings, and repress in a very powerful manner their disposition to crime.[132]
Three days following his meeting with the Legislative Council, on 15 August 1840, Governor Gawler wrote a despatch (No 12) to Lord Russell, informing him of the massacre of the survivors of the Maria, and the order he gave to execute two of the Aborigines relying on practices of martial law and summary justice.[133] On the back of this despatch is a long hand-written minute pencilled by James Stephen, Jr to another Colonial Office official, Mr Vernon Smith, dated 19 February 1841, in which he outlined his serious objections to Chief Justice Cooper’s opinion of the legal status of Aborigines and Governor Gawler’s use of summary justice. In Stephen’s opinion:
The Governor being informed by the Chief Justice that he (the CJ) had no authority to try the Aborigines accused of a massacre of many Europeans, sent out a party of Police with orders to ‘execute summary justice after deliberate and formal investigation’ – that is as I understand to put the offenders to death without trial. This appears to me a most unfortunate and an indefensible proceeding. The Governor appears to have inferred that if he had not a Civil, he must have a Belligerent authority over these people. I do not think that the inference was just. It did not follow that because he could not try he might slay them. He might have had a Law enacted to provide for their trial if the Law did not already authorize such a trial. But I further think that the Chief Justice was in error, & that the murderers might have been tried. Such trials have repeatedly taken place in W. Australia. The mail yesterday brings a report of such a trial in N.S. Wales. The Aborigines, whether subjects of the Queen or not, are persons living on British territory, & within the jurisdiction of British Courts. That they are savages cannot entitle them to impunity, still less expose them to be punished without trial. I apprehend however that the question of Law must be referred to the Law Officers. But I would further suggest, that instead of the approbation which he asks, Colonel Gawler’s order must be distinctly & strongly disapproved.[134]
In a subsequent minute to Vernon Smith, dated 12 March 1841, found on the back of a follow-up despatch that Governor Gawler sent to Lord Russell in early-September 1840 with further information on the summary trial and execution of the two natives, James Stephen wrote:
This is the conclusion of the Gov’s report of the ‘summary punishment’ of the Aborigines. Whatever may be the moral justification of such proceedings I cannot, but think, that most men will regard them as altogether indefensible...
I have always thought that the Law Officer, or rather the Judge of South Australia gave an erroneous opinion on this subject. I endeavoured to explain this shortly in the note of 19th Feb on the back of No 348. There can be no doubt that the murder was committed within the local jurisdiction of British Court [sic]. The Judge suggested a difficulty which appears to me to be really of no value at all. It has within my own memory been unheeded in cases exactly parallel in Guiana, in Western Australia, in New South Wales, and I think at the Cape of Good Hope. Lord John Russell’s Minute of the 20th Feb directed a reference to the Law Officers of the Crown. That direction appears to have been countermanded by his Lordship’s letter of 22nd Feb, and the reference to the Crown lawyers has therefore not been made. I must venture to repeat my former opinion that it is the right course of proceeding.[135]
As if he had not already said enough on this subject, Stephen subsequently wrote another minute on the back a despatch Gawler sent to Lord Russell in the final month of his tenure as Governor of South Australia, in which Gawler had continued his effort to justify the summary execution of the two natives for the Maria massacre. Stephen added specifically that:
As a matter of Law there can be not doubt that the proceedings of Colonel Gawler and the Officers employed by him must be designated by the word murder, however injurious the use of such a word may be to characterize what they did. Such at least was the opinion of Sir John Campbell and Sir Thomas Wilde. Colonel Gawler undoubtedly being misled by the opinion of the Chief Justice of the Colony. The Protector argues that it would be unjust to subject the Aborigines to the liabilities of English law; and infers I know not how that they ought not to have the protection of it. I should entirely admit the premises and deny the Conclusion.[136]
In the end, the Crown Law Officers substantially agreed with James Stephen in this regard, as revealed in the legal opinion they submitted to Lord Russell on 27 March 1841, in which they stated that the execution of the alleged native murderers in South Australia was ‘contrary to law’, and that Major O’Halloran and Governor Gawler could possibly be found guilty of murder for the summary execution of the natives: ‘Major O’Halloran and those who were present assisting him being guilty as principles & Governor Gawler being guilty as an accessory before the facts’.[137]
It is remarkable, and somewhat surprising at first notice, to find that within month after writing his final report to the Colonial Office on the ‘summary punishment’ of natives for the Maria massacre, Governor Gawler expressed his intention of bringing a bill before the Legislative Council of South Australia to allow ‘aboriginal natives’ to be received as competent witnesses in criminal cases. As reported in the South Australian Gazette on 1 October 1840, at the meeting of the Council held on September 30, Governor Gawler introduced ‘a bill to allow the aboriginal natives of Australia, Van Diemen’s Land, and New Zealand, to be received as competent witnesses in criminal cases in the province of South Australia’. In the ‘Minute on the subject of Legislation for the Aborigines, read by the Governor in Council, on the 30th September, 1840’, Gawler stated:
I have to request the attention of the Legislative Council to the important and interesting subject of Legislation for the Aborigines. Their proper position in the eye of the law has hitherto been a question of the greatest difficulty throughout the whole continent of Australia.
Valuing highly the British constitution, and considering it in its purity as forming at the same time the bulwark of the Government and the safeguard of the people, intelligent men throughout the empire have been most anxious that its benefits should be enjoyed by every inhabitant of British territory, from its parent and central seat in Britain to the furthest limits of the empire, to the uttermost end of the earth – the continent of Australia.
Despite the lip-service he gave to acknowledging the influence of British Evangelicals, Gawler’s intent was less benevolent that it might appear at first glance. Indeed, any initial surprise about why Governor Gawler would decide to introduce an Aboriginal evidence act, is diminished considerably upon reading his candid statement to the Legislative Council that he believed that such legislation would have provided a more effective legal tool for prosecuting the Aborigines responsible for the Maria massacre. According to Gawler: ‘The circumstances of the [Maria] murders, and the names and persons of the murderers, who were in considerable numbers, were perfectly well known’, and ‘[m]embers of their own tribe could have been easily procured to describe them intelligibly to full ordinary satisfaction’. Notwithstanding this however, because of the inadmissibility of Aboriginal evidence, had the culprits been given a regular trial, he had ‘reason to believe, with correct constitutional accuracy, that these murderers’ would have been ‘beyond the reach of British law’. Consequently, he stated that:
The introduction of a bill which I now lay on the table for the admission as far as practicable of the evidence of the aborigines in the courts of law, added to the discussion which has arisen in the community upon the proceedings which the Government thought it necessary to adopt in connection with the passengers of the Maria, have led me to enter at considerable length into this subject.[138]
The South Australian Gazette (No 142) 8 October 1840, contained an erratum noting that, because of an oversight by the printers, a paragraph was omitted from the Governor’s minute of Council published the previous week, which read:
I now lay the bill before you with no further remark than that as being in its object of admitting the evidence of persons inconscious [sic] of the obligation of an oath or solemn declaration, a very great departure from constitutional principles. I apprehend it may be necessary to suspend its operation until it shall have received the Royal sanction.[139]
I have found no evidence that Gawler’s bill was either examined or approved by the Colonial Office or the Crown Law Officers in London. It is likely that even if the bill had been forwarded to London, it would not have been sent out for a legal opinion, since it had already been decided by this time that Gawler would be recalled. According to Foster, Hosking and Nettlebeck:
Gawler’s recall to London because of his government’s over-expenditure was probably decided [even] before the news [of the Maria massacre] reached the Colonial Office, but his action over the Maria massacre was thought by many in the colony to be the essential cause of his replacement by George Grey the following year.[140]
Foster, Hosking and Nettlebeck note that Sir George Grey’s approach to dealing with the ongoing collisions between Aborigines and colonists differed fundamentally from the approach taken by Gawler.
Whereas Governor Gawler’s response to the Maria massacre had been underpinned by the belief that quick punitive actions, even if beyond the exact letter of the law, produced the best resolution to frontier violence, Grey’s response to the current crisis was more wary and equivocal. For a start, he expressed suspicion about the colonists’ suggestion that the police should be regarded as a security force to protect the interests and risk-bound enterprises of overlanders, as well as that non-uniformed volunteers with undeclared designs should move against the Indigenous population. He also doubted that the attacks on overlanders were unprovoked.[141]
It is clear that James Stephen had a direct influence on Governor Grey’s thinking and actions on the legal status that should be granted to Aborigines in the criminal courts of South Australia. This influence is most clearly illustrated in a despatch addressed to Governor Grey that James Stephen wrote for Lord Stanley’s signature in December 1841, in which Grey was informed of the Crown Law Officers legal opinion that the ‘summary justice’ meted out by Governor Gawler and Major O’Hallaron was ‘contrary to law’ and of ‘the legal character of murder’.[142] In this despatch, Lord Stanley also felt it was his duty ‘to state unreservedly, that Her M’s Government most strongly object to the course pursued on the occasion referred to’ and that he ‘was glad to perceive, that in the proceedings which form the subject of your Despatches Nos 3 and 5 of the 29 and 31st of May you enforced principles more consonant with those entertained by the Government and with the Law as laid down by the Law Officers of the Crown’.[143]
Thus, it is not coincidental that Governor Grey also expressed concern over the inadmissibility of Aboriginal evidence in criminal trials, and eventually acted upon the instructions he received from the Colonial Office to enact an Aboriginal evidence bill for South Australia. On 5 July 1843, Lord Stanley sent Governor Grey a near exact copy of the despatch sent to other governors of the Australian colonies, informing them of the Act passed in Parliament to enable colonies to enact local Aboriginal evidence ordinances, and instructing that they ‘should forthwith propose to the Council of your Government the enactment of a Law in accordance with the provisions of the Act of Parliament’.[144] Governor Grey acted on these instructions in August 1844, when, in his opening address to the Legislative Council on August 5, he said that he would be introducing ‘a variety of legislative measures which appear to me to be calculated to promote the prosperity and well being of the various classes of Her Majesty’s subjects in this Province’.[145] Specifically, Grey informed the Legislative Council that:
An Act having been passed by the Imperial Parliament, which gives to the Colonial Legislatures the authority requisite to enable them to pass laws for the admission in certain cases of unsworn testimony in civil and criminal proceedings, it is my intention to introduce into the Council an Ordinance to allow the aboriginal inhabitants of South Australia to give information and evidence without the sanction of an oath; and I would earnestly recommend to your attention to the necessity which exists for endeavouring to provide some remedy for the disabilities under which the aboriginal inhabitants of the province at present labour, from the frequent inapplicability of many of the provisions of the English law to cases which they are concerned.
Expressing further the Evangelical missionary zeal he shared with other humanitarians, like James Stephen, Jr, who dedicated themselves to the cause of ‘civilizing’ and ‘protecting’ Indigenous peoples throughout Her Majesty’s growing British Empire, Governor Grey went on to state that:
One of the most distinguishing features of modern colonization is the anxiety manifested by the immigrants to render their occupation of the ancient territory of the aborigines productive of the blessings of Christianity and civilization to the people whose country they enter, and the settlers in this colony have ever lent the government a zealous aid in the promotion of any plans having for their object the civilization and welfare of the native population.
It is obviously one of the most important duties of the Legislature of a country circumstanced as this is, to promote this feeling by every means in their power, and to endeavour to induce each member of the community to perform, within the sphere of his individual influence, those duties towards the aborigines, for the fulfilment of which he rendered himself morally responsible when he entered the territory. No prouder or brighter distinction could adorn the history of South Australia, than the fact of its first European occupants bequeathing to their children a territory unsullied by deeds of violence and crime; and I rely upon your bestowing the most careful consideration upon the measures I am about to introduce into the Council, with the object of giving increased means of ameliorating the condition of the aborigines, both to the Government and to the settlers, upon whose Christian and benevolent sentiments towards them, the welfare and happiness of the scattered and wandering native population must mainly depend.[146]
On 14 August 1844, Governor Grey transmitted a copy of Ordinance (No. 8) passed by the Legislative Council of South Australia,[147] and on 30 January 1845, Lord Stanley replied, stating that he had ‘received the Queen’s command to acquaint you that Her Majesty has been pleased to confirm and allow the ordinance’.[148] Although this ordinance did by no means entirely clarify the legal status of Aborigines in the courts of South Australia, as reflected in part in the subsequent amendments made to the colony’s Aboriginal evidence ordinance in 1846, 1848, and 1849,[149] it did reveal a great deal about the motives and sensibilities of those who pushed for its enactment.[150]
Surprisingly little attention has been given by Australian and comparative common law legal historians to documenting the fate of different early colonial Australian Aboriginal evidence acts. While the work of writers like Alex Castles and Bruce Kercher is foundational, only cursory attention is given in their work to explaining the different outcomes of the attempts made to introduce legislation in New South Wales, Western Australia, and South Australia. While such ‘micro-level’, mainly individual-state focused studies, appear to be lacking a much needed comparative perspective, more recent ‘macro-level’ comparative studies, like those of Jane Samson and Lauren Benton, appear to lack the amount and type of documentation required in order to more strongly back up their key arguments. While Jane Samson is no doubt correct in pointing out the important role played by the Aborigines Protection Society in bringing the issue of the Aboriginal evidence to the attention of the Colonial Office, her work does not document the significant correspondence on this issue that transpired directly between the Colonial Office and colonial authorities in the different Australian colonies of the period.
Lauren Benton’s recent study similarly appears to be lacking needed historical detail. Other than noting (as many other historians have) that Aborigines in New South Wales (and elsewhere in Australia) were denied rights to property because of the courts’ growing support for the doctrine of terra nullius, Benton does not clearly outline how Aborigines continued to be systematically excluded as legal actors after the 1830s. On the contrary, much of her evidence, especially relating to the increasing appearance of Aborigines in criminal court proceedings, points in the opposite direction of the courts treating Aborigines as full legal actors for criminal trial purposes, except for their inability to provide direct testimony in court; a point which Benton curiously does not mention at all in her analysis. A possible weakness of Benton’s study is that she chose either the wrong jurisdictions, or too few jurisdictions, to include in an adequate comparative study of the treatment of Indigenous peoples in British colonial legal cultures. In any case, Benton also fails to closely address the question of why the experience of New South Wales was different than that of Western Australia and South Australia.
The current study has attempted to illustrate the benefits of undertaking a program of more close archival-based research on British colonial law administration with respect to Indigenous peoples in the mid-nineteenth century. Most importantly, it has illustrated the need for undertaking a detailed analysis of documents relating to the experience that each British colony under investigation had in dealing with the Colonial Office; or with what post-colonial writers refer to as the ‘colony/metropole’ dynamic.[151] It has also shown the value of investigating and attempting to explain the often striking parallels, as well as frequent differences, in the legal-historical experiences of nineteenth century British settler colonies such as the Australian colonies, New Zealand, the Cape Colony, and western and central Canada (in addition to other comparable British settler societies or ‘outposts’ of nineteenth century British imperialism). Australia offers one of many possible fascinating historical laboratories for the study of comparative common law legal history. More of this type of comparative research is needed before any adequate generalizations can be made about the nature and direction of changes that affected the way in which Indigenous peoples were treated in the legal systems of evolving colonial common law jurisdictions in the nineteenth century.
[*] Professor, Department of Sociology, University of Manitoba, Winnipeg, Canada. Funding for this research was provided by the Social Sciences and Humanities Research Council of Canada. The author would like to thank the anonymous reviewers as well as Catherine Coleborne, Ann Hunter, and Bruce Kercher for their constructive comments on earlier drafts of this paper.
[1] Zoe Laidlaw, ‘Integrating Metropolitian, Colonial and Imperial Histories – The Aborigines Select Committee of 1835-7’ in Tracey Banivanua Mar and Julie Evans (eds), Writing Colonial Histories: Comparative Perspectives (2002) 75-91.
[2] Great Britain, Parliament, House of Commons, Report from the Select Committee on Aborigines (British Settlements); with the Minutes of Evidence, Appendix and Index (1837) 79-80.
[3] Russell Smandych, ‘“I Am Very Conscious How Far I Am Travelling Beyond the Boundaries of My Own Peculiar Province”: James Stephen, the Colonial Office, and the Fight for the Protection of Slaves and Indigenous Peoples in British Colonial Criminal Law, 1813-1847’ (Paper presented at the Annual Meetings of the Canadian Law and Society Association, Halifax, June, 2003); Russell Smandych, ‘To Soften the Extreme Rigor of Their Bondage: James Stephen’s Attempt to Reform the Criminal Slave Laws of the West Indies, 1813-1833’ 2005 23 (3) Law and History Review 537.
[4] This paper is part of a larger work in progress on the application of British colonial criminal law to Indigenous peoples in 19th century British settler societies, with a primary focus on Canada, Australia, and New Zealand. More specifically, it builds on and extends my earlier work contained in: Russell Smandych and Rick Linden, ‘Co-existing Forms of Native and Private Justice: An Historical Study of the Canadian West’ in K Hazlehurst (ed), Legal Pluralism and the Colonial Legacy: Indigenous Experiences of Justice in Canada, Australia, and New Zealand (1995); Russell Smandych and Gloria Lee, ‘Women, Colonization, and Resistance: Elements of an Amerindian Autohistorical Approach to the Study of Law and Colonialism’ (1995) 10(1) Native Studies Review 21; Russell Smandych and Rick Linden, ‘Administering Justice without the State: A Study of the Private Justice System of the Hudson’s Bay Company to 1800’ (1996) 11(1) Canadian Journal of Law and Society 21; Russell Smandych and Karina Sacca, ‘The Development of Criminal Law Courts in Pre-1870 Manitoba’ (1996) 24 Manitoba Law Journal 201; Russell Smandych, ‘The Exclusionary Effect of Colonial Law: Indigenous Peoples and English Law in The Canadian West to 1860’ in L Knafla and J Swainger (eds), Laws and Societies in the Canadian Prairie West, 1670-1940 (2005); Russell Smandych, ‘History, Theory, and the Cultural Imperialism of Law’ (Working Paper No 2, Griffith University, Faculty of Law Socio-Legal Research Centre Working Paper Series, 2003, Online: http://www.gu.edu.au/school/law/s/rc); Russell Smandych, ‘“I Am Very Conscious How Far I Am Travelling Beyond the Boundaries of My Own Peculiar Province” above n 3; Russell Smandych, ‘Contemplating the Testimony of “Others”: Reconstructing Debates over the Legal Status of Slaves and Indigenous Peoples in British Colonial Criminal Law, 1813-1847’ (Paper presented as invited keynote speaker at the Annual Conference of the Australian and New Zealand Legal History Society, Brisbane, Australia, July 2003); Russell Smandych, ‘The Cultural Imperialism of Law’ in B Hamm and R Smandych (eds), Cultural Imperialism: Essays on the Political Economy of Cultural Domination (2005).
[5] See generally, Bruce Kercher, An Unruly Child: A History of Law in Australia (1995) 3-17; Alex C Castles, An Australian Legal History (1982) 515-542.
[6] Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (2002).
[7] Russell Smandych, ‘The Exclusionary Effect of Colonial Law: Indigenous Peoples and English Law in The Canadian West to 1860’ above n 4.
[8] In R v Congo Jack Murrell (1836) the court (consisting of Chief Justice Forbes and Justices Dowling and Burton) decided that Aborigines were fully responsible for their crimes under English law, even if the crime was committed against another Aborigine. Sidney Harring cites this case as an example of the fact that Australian courts acted more independently than Upper Canadian courts in setting precedents on how to deal with Aborigines accused of criminal offences. Sidney L Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence (1998) 348 note 27. In his discussion of this case, Bruce Kercher, above n 5, 9-11, notes that the court clearly rejected barrister Sydney Stephen’s argument that the Aborigines had their own laws and that they ‘were given no protection by European law’ partly because ‘they were unable to given evidence as witnesses’. Although, ‘(u)ltimately, Murrell was found not guilty on the facts ... he had been declared subject to British law’. Moreover, Kercher notes that while in the 1841 case of R v Bon Jon, Justice John Willis refused to follow the Murrell precedent, and instead argued – in agreement with the view expressed earlier by the former Attorney General of New South Wales, Saxe Bannister – that the Aborigines had their own law and that the British courts should be directed to observe it, Chief Justice Dowling ‘subsequently said that Willis was wrong to doubt whether an Aborigine could be tried for killing another Aborigine, holding that the issue had been settled in the Murrell case’. The Murrell and Bon Jon cases are also discussed at length by Castles, above n 5, 526-532. Castles suggests ‘that the conclusion reached in Murrell was not as clear cut as later judicial decisions seem to have assumed’ since ‘[t]he often neglected extracts of (Justice) Burton’s notes for judgement seem to confirm that the Supreme Court of New South Wales did give serious consideration to the possibility of giving some form of recognition to the “law” of the Aborigines’. See also, reference made to these cases in: Barry Bridges, ‘The Extension of English Law to Aborigines for Offences Inter Se, 1829-1842’(1973) 59 Journal of the Royal Australian Historical Society 264; Susanne Davies, ‘Aborigines, Murder and the Criminal Law in early Port Philip, 1841-1851’ (1987) 22 Australian Historical Studies 313; Mark Finnane, and John McGuire, ‘The Uses of Punishment and Exile: Aborigines in Colonial Australia’ (2001) 3 Punishment and Society 279.
[9] Castles, above n 5, 529-530; S D Lendrum, ‘The “Coorong Massacre”: Martial Law and the Aborigines at First Settlement’ [1977] AdelLawRw 2; (1977-1978) 6 Adelaide Law Review 26.
[10] Glenelg to Bourke, 26 July 1837, Historical Records of Australia, 1st series, vol 19, Governors’ Despatches to and from England, July 1837-January 1839, 47 cited in Lendrum, above n 9, 33.
[11] Castles, above n 5, 517.
[12] Specifically, these include: Castles, above n 5, 532-540; Kercher, above n 5, 15-17; Davies, above n 8, 317; Lendrum, above n 9, 30-31; Vivienne Rae-Ellis, Black Robinson: Protector of Aborigines (1988) 208-210; R H W Reece, Aborigines and Colonists: Aborigines and Colonial Society in New South Wales in the 1830s and 1840s (1974) 179-182; Alan G L Shaw, ‘James Stephen and Colonial Policy: The Australian Experience’ (1992) 20 Journal of Imperial and Commonwealth History 23; Alan G L Shaw, ‘British Policy Towards the Australian Aborigines, 1830-1850’ (1992) 25 Australian Historical Studies 277-279; G D Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788-1900 (2002) 139-140; Nancy E Wright, ‘The Problems of Aboriginal Evidence in Early Colonial New South Wales’ in D Kirkby and C Coleborne (eds), Law, History, Colonialism: The Reach of Empire (2001).
[13] Jane Samson, Imperial Benevolence: Making British Authority in the Pacific Islands (1998); Jane Samson, ‘British Voices and Indigenous Rights: Debating Aboriginal Legal Status in Nineteenth-Century Australia and Canada’ (1997) 2 Cultures of the Commonwealth 5; Jane Samson, ‘British Authority or “Mere Theory?”: Colonial Law and Native People on Vancouver Island’ (1998) 11 Western Legal History 39.
[14] Benton, above n 6.
[15] Samson, Imperial Benevolence above n 13.
[16] Brian Stanley, ‘Review of Jane Samson, Imperial Benevolence: Making British Authority in the Pacific Islands’ (2000) 28 Journal of Imperial and Commonwealth History 171-172. I have drawn directly on Stanley’s review of Samson’s book here because I believe his quote does a good job of capturing the essence of Samson’s argument.
[17] Ibid.
[18] Samson, Imperial Benevolence above n 13, 101-102; citing Aborigines Protection Society [APS] Address of the Aborigines’ Protection Society (London, 1838).
[19] Ibid 102; citing Standish Motte, Outline of a System of Legislation for Securing Protection to the Aboriginal Inhabitants of all Countries Colonized by Great Britain; Extending to Them Political and Social Rights, Ameliorating Their Condition, and Promoting Their Civilization. Drawn up at the Request of the Committee of ‘The Aborigines Protection Society,’ for the purpose of being laid before the government (London, 1840).
[20] Ibid 102; citing Great Britain, Parliament, House of Commons (1843) ‘An Act to Authorise the Legislatures of Certain of Her Majesty’s Colonies to Pass laws for the Admission, in Certain Cases, of Unsworn Testimony in Civil and Criminal Proceedings’ 6 and 7 Vict, cap 22 (1843).
[21] Great Britain, Parliament, House of Commons (1843) ‘An Act to Authorise the Legislatures of Certain of Her Majesty’s Colonies to Pass laws for the Admission, in Certain Cases, of Unsworn Testimony in Civil and Criminal Proceedings’ 6 and 7 Vict, cap 22 (1843).
[22] Samson, ‘British Voices and Indigenous Rights’ above n 13, 10.
[23] Ibid 9-10.
[24] Ibid 10.
[25] Benton, above n 6, 3.
[26] Ibid preface.
[27] Ibid 6.
[28] Ibid 169-170.
[29] Ibid 188.
[30] Castles, above n 5.
[31] Kercher, above n 5.
[32] Castles, above n 5, 522-523.
[33] Samson, ‘British Voices and Indigenous Rights’ above n 13, 9.
[34] ‘Judge-Advocate Atkins’ Opinion on the Treatment of Natives’ 20 July 1805, in Historical Records of Australia. Series 1, Governors’ Despatches to and from England, Volume 5, July 1804-August 1806, 502-504.
[35] Governor King to Earl Camden, 20 July 1805, in Historical Records of Australia. Series 1. Governors’ Despatches to and from England Volume 5, July 1804-August 1806, 496-497.
[36] Other evidence of this is provided in: Castles, above n 5, 524-525.
[37] Attorney-General Bannister to Under Secretary Horton, 16 August 1824, in Historical Records of Australia. Series IV, Legal Papers Section A, Volume 1, 1786-1827, 554-555.
[38] An endnote in Historical Records of Australia, Series IV, Legal Papers, Section A, Volume 1, 1786-1827, at 952, states that it is not clear which statute is referred to here, but that probably it was the statute 4 Geo IV, c xcvi, which provided that ‘all offences and outrages, committed by the masters or crews of any British vessels, or by any persons that have sailed in or quitted any British ship to live in New Zealand, or within any other islands or countries not within His Majesty’s dominions, nor subject to any European power or state, may be sued and punished in any of His Majesty’s islands, under His Majesty’s commission issued or to be issued under the 46 George III, c liv, in the same manner as if the offence had been committed on the high seas’.
[39] Bannister to Horton, 16 August 1824, and 10 November 1824, in Historical Records of Australia, Series IV, Legal Papers, Section A, Volume 1, 1786-1827, 555.
[40] Wright, above n 12, 141.
[41] Wright, above n 12, 142.
[42] R v Fitzpatrick and Colville, in Bruce Kercher (ed), Decisions of the Superior Courts of New South Wales, 1788-1899; http://www.law.mq.edu.au.scnsw/html/r_v_fitzpatrick_and_colville
_.html).
[43] Wright, above n 12, 142.
[44] R v Jackey (1834) in Bruce Kercher (ed), Decisions of the Superior Courts of New South Wales, 1788-1899; http://www.law.mq.edu.au.scnsw/Cases1834/html/r_v_jackey__1834.htm.
[45] R v Jack Congo Murrell in Bruce Kercher (ed), Decisions of the Superior Courts of New South Wales, 1788-1899; http://www.law.mq.edu.au.scnsw/cases1835-36/html/r_vmurrell_and_
bummaree__1836.htm. All subsequent quotations from the Murrell case are cited from this web site.
[46] Marquess of Normanby to Sir George Gipps, 17 July 1839, in Historical Records of Australia, 1st series, vol. 20, Governors’ Despatches to and from England, February 1839-September 1840, 242-243.
[47] Reece, above n 12, 180.
[48] Mr Justice Burton to Right Hon H Labouchere, 16 August 1839, in Historical Records of Australia, 1st series, vol 20, Governors’ Despatches to and from England, February 1839-September 1840, 303.
[49] Right Hon H Labouchere to Mr Justice Burton, 17 August 1839, in Historical Records of Australia, 1st series, vol 20, Governors’ Despatches to and from England, February 1839-September 1840, 303.
[50] Ibid 304-305. Mr Justice Burton to Right Hon H Labouchere, above n 49.
[51] Ibid.
[52] Ibid.
[53] ‘Statement from Aborigines’ Protection Society’, signed, John H Tredgold, on behalf of the Committee, 4 Bloomfield Street, 30 July 1839, in Historical Records of Australia, 1st series, vol 20, Governors’ Despatches to and from England, February 1839-September 1840, 303-304.
[54] Ibid.
[55] Marquess of Normanby to Sir George Gipps, 31 August 1839, in Historical Records of Australia, 1st series, vol 20, Governors’ Despatches to and from England, February 1839-September 1840, 302-303.
[56] Castles, above n 5, 533.
[57] Sir George Gipps to Marquess of Normanby, 14 October 1839, in Historical Records of Australia, 1st series, vol 20, Governors’ Despatches to and from England, February 1839-September 1840, 368. Also in Papers Relating to Emigration and the Aboriginal Population and other Affairs in Australia (from 1839-1844). Great Britain, Parliament, House of Commons, Ordered by the House of Commons to be Printed, 9 August 1844, 26 [hereafter cited as Aborigines Papers, 1844].
[58] Sir George Gipps to Superintendent La Trobe, 12 December 1840, La Trobe Library, H7015; cited in Vivienne Rae-Ellis, above n 12, 208.
[59] Lord Russell to Sir George Gipps, 11 August 1840, in Historical Records of Australia, 1st series, vol 20, Governors’ Despatches to and from England, February 1839-September 1840, 756.
[60] The Attorney and Solicitor General to Lord John Russell, 27 July 1840, in Historical Records of Australia, 1st series, vol 20, Governors’ Despatches to and from England, February 1839-September 1840, 756.
[61] Lord John Russell to Sir George Gipps, 8 October 1840, in Aborigines Papers, 1844, 99.
[62] Captain G Grey, ‘Report upon the best Means of Promoting the Civilization of the Aboriginal Inhabitants of Australia’, in Aborigines Papers, 1844, 100-104.
[63] Ibid 102
[64] Ibid.
[65] Sir George Gipps to Lord Russell, 7 April 1841, in Historical Records of Australia, 1st series, vol 21, Governors’ Despatches to and from England, October 1840-March 1842, 312-315; referred to in Castles, above n 5, 539. Also in Aborigines Papers, 1844, 104-106.
[66] Ibid Gipps to Russell 7 April 1841.
[67] Ibid.
[68] Sir George Gipps to Lord Stanley, 24 January 1842, with reply from Lord Stanley to Sir George Gipps, 2 July 1842, in Aborigines Papers, 1844, 143-156.
[69] Public Record Office [PRO], CO 201/318, folios 203-314, Sir George Gipps to Lord Stanley, 11 March 1842, Despatch No 50. with enclosures relative to ‘Aborigines Protector’s Report’ (yearly reports of the Protectors of Aborigines and Missionaries required by Lord John Russell’s Despatch No. 32, 25 Aug. 1840).
[70] Ibid 208.
[71] Ibid 288-291.
[72] Ibid 258-263.
[73] Ibid.
[74] PRO, CO 201/332, folio 238, Sir George Gipps to Lord Stanley, 3 April 1843, Despatch No 46. with enclosures relative to ‘the annual reports for 1842, of the different officers of this Government employed in the civilization or protection of the aborigines, and also from the different Missionary establishments receiving aid from the Government’. Also in Aborigines Papers, 1844, 254.
[75] PRO, CO 201/344. folios 163-319. Sir George Gipps to Lord Stanley, 21 March 1844, Despatch No 68. with enclosures relative to ‘the reports for 1843, of the different officers of this Government employed in the civilization of the aborigines’. Also in Aborigines Papers, 1844, 280.
[76] See Smandych, ‘To Soften the Extreme Rigor of Their Bondage: James Stephen’s Attempt to Reform the Criminal Slave Laws of the West Indies, 1813-1833’ above n 3.
[77] Cited in Shaw, ‘British Policy Towards the Australian Aborigines, 1830-1850’, above n 12, 278. Significantly, Shaw is the only author I have found who cites James Stephen’s memo of 20 April 1840, or for that matter, who even mentions James Stephen has having been involved in the debate over the New South Wales Aboriginal evidence bill of 1839.
[78] PRO, CO 201/287, folios 329-33: Gipps to Normandy, Despatch 137, 14 October 1839; Minute of James Stephen, 20 April 1840; Minute (likely written by) Lord John Russell, 23 April 1840.
[79] On 30 April 1840, Stephen forwarded the New South Wales Aboriginal evidence bill to the Attorney and Solicitor General, with a covering letter which stated: ‘I am directed by Lord John Russell to transmit to you herewith the copy of a Despatch from the Governor of New South Wales submitting for the Royal allowance an Act passed by the Legislative Councils “To allow the aboriginal natives of New South Wales to be received as competent witnesses in criminal cases.” You will observe that the clause preventing the Act from coming into operation until Her Majesty’s pleasure should be known was added at the request of the Chief Justice who would otherwise have objected to the Act as being repugnant to the Laws of England ... I am to request that you will in conjunction with the Solicitor General report to Lord John Russell your opinion whether this Act can properly be submitted to the Queen for confirmation.’ Signed, James Stephen. PRO, CO 202/42, Letters from the Secretary of State, Offices and Individuals, related to New South Wales, folios 28-29, James Stephen to the Attorney and Solicitor General, 30 April 1840.
[80] Smandych, above n 3, “To Soften the Extreme Rigor of Their Bondage: James Stephen’s Attempt to Reform the Criminal Slave Laws of the West Indies, 1813-1833.”
[81] PRO, CO 202/45, folios 256-267, Lord Stanley to Sir George Gipps, 20 December 1842. Also in Aborigines Papers, 1844, 221-223.
[82] PRO, CO 201/337, folios 292-293, T Pollock and W W Pollett to Lord Stanley, 31 March 1843. Although not formally referred to as the Colonial Evidence Act, I refer to it as such here to distinguish it clearly from local Aboriginal evidence bills; and also to remain consistent with Jane Samson’s reference to it in ‘British Voices and Indigenous Rights’ above n 13.
[83] PRO, CO 202/45, folios 438-439, Lord Stanley to Sir George Gipps, 6 July 1843. Also in Aborigines Papers, 1844, 261-262.
[84] Castles, above n 5, 534. Within this context, it is important to note that prior to 1843, the Legislative Council of New South Wales was nominated by the Governor, while after 1843 it was partially elected. See Shaw, ‘British Policy Towards the Australian Aborigines, 1830-1850’ above n 12, 279.
[85] In his earlier book, Reece, above n 12, 181-182, cites Robert Lowe’s speech at length, as it was originally recorded in The Sydney Morning Herald, 20 June 1844, in which he stated: ‘We could not pretend to much knowledge of the character of the aborigines; but believing them ... a race of untutored savages, he must protest against leaving evidence so questionable to a jury at all. Only picture their examination. See the wild savage of the woods standing amid the hum and press of civilised men: among them, but not of them. See the trembling prisoner in vain endeavouring to gather his future fate from the stolid apathy or malignant scowl of those scarce human lineaments. Here his evidence given through an interpreter, in a language ... which ... is destitute of abstract ideas, and of these nicely defined terms which distinguish the almost imperceptible limits of guilt and misfortune. See him become at once the supreme arbiter of life and death: a life of whose end and author he is alike ignorant, a death of whose fearful secrets he knows nothing – see him ready, from savage waywardness, from puerile petulance, or from a bribe so paltry that the meanest wretch whoever perjured himself for hire would spurn with contempt and disgust such a crime for such a price – see him ready to trample on a being of whose unspeakable importance to accountable agents he has never heard, and by false witness to hurry a fellow-creature into the presence of that God whose very name is a stranger to his language – see him, finally, after the last act of the tragedy is over, standing on the steps of the court, and, with his national talent for mimicry, representing to the admiring crowd the verdict of the foreman, the sentence of the judge, and the thrilling appeal of the prisoner for mercy: see all this, and then turn from the sickening mockery, and say, Great is the Majesty of British Justice!’ Reece (n 24, 181) notes that Robert Lowe ‘was probably the most influential opponent of the 1844 Evidence Bill and spoke against similar legislation again in 1849’.
[86] Kercher, above n 5, 16-17. More recently, in his introduction to the Myall Creek massacre trials of R v Kilmeister (No 1 and No 2) of 1838, Kercher notes: ‘The hanging of seven white men for the Myall Creek massacre of a large group of Aborigines caused a huge uproar in the colony. The emotional response is still evident in the Australian community, as was shown in the recent unveiling of memorials to the victims. Myall Creek should be central to any history of the relationship between the Aboriginal and British occupants of Australia, but it was anything but unique.’ Bruce Kercher (ed), Decisions of the Superior Courts of New South Wales, 1788-1899; http://www.law.mq.edu.au.scnsw/cases1835/36).
[87] For a more detail argument on the relevance of postcolonial theory to the historical study of law in colonial societies, see Smandych, ‘The Cultural Imperialism of Law’ above n 4.
[88] Castles, above n 5, 533-534.
[89] Ibid 534. However, as we will see shortly, it appears that Castles missed the fact that the Colonial Office also disallowed the Western Australian Act of 1841.
[90] Ibid.
[91] Governor Hutt to Lord Glenelg, 3 May 1839 in Aborigines Papers, 1844, 363-366.
[92] Ibid 363.
[93] Hutt’s view on the ultimate desirability of racial amalgamation or assimilation as part of a well-conceived colonial ‘native policy’ was shared by many influential mid-nineteenth century Evangelicals and leading Colonial Office officials like Lord Glenelg, James Stephen, Jr, and later Herman Merivale. See, Smandych, ‘The Exclusionary Effect of Colonial Law’ above n 4.
[94] Governor Hutt to Lord Glenelg, 3 May 1839, above n 91, 363.
[95] Ibid.
[96] Ibid 365.
[97] Ibid.
[98] Ibid 364.
[99] Ibid.
[100] Lord Russell to Governor Hutt, 29 October 1839, in Aborigines Papers, 1844, 367.
[101] Governor Hutt to Lord Russell, 19 August 1840, in Aborigines Papers, 1844, 374.
[102] Castles, above n 8, 533-534.
[103] Governor Hutt to Lord Russell, 19 August 1840, above n 101, 374.
[104] Ibid 374-375.
[105] Original hand-written copy of despatch from Governor Hutt to Lord Russell, 19 August 1840, with minute apparently written by Lord Russell. PRO, CO 18/25, folios 250-257. Although the initials following this minute are not clear, it was almost certainly written by Lord Russell, since he was in charge of the Colonial Office at this time.
[106] Lord Russell to Governor Hutt, 30 April 1841, in Aborigines Papers, 1844, 377-379. It should be noted that his despatch, like all other important despatches send out by the Colonial Office to the colonies during this period dealing with legal matters, was very likely drafted by James Stephen, Jr. According to the ‘biographical notice’ written later by one of his famous sons, Sir James Fitzjames Stephen, “The position which Sir James Stephen occupied in the Colonial Office was a very singular one. The British colonies are a collection of many separate states, of every degree of importance, from nations like Canada and New South Wales down to the rock of Heligoland, inhabited by a few Germans.’ ‘To know exactly what were the powers and what the rights of the English government in respect of each of these communities, to know the history of all the relations between the United Kingdom and each of its dependencies, and to be able to give an account of the state of parties and local politics in every one of them, was one part that was required of the Under-Secretary of State for the Colonies’. In addition to supplying ‘successive Secretaries of State’ with the ‘special knowledge’ they needed in order to make important policy decisions, it was Sir James Stephen’s duty ‘to prepare drafts of almost all of the more important despatches, and of the numerous Acts of Parliament which were required by every colony’. James Fitzjames Stephen, ‘Biographical Notice of Sir James Stephen’, in Sir James Stephen, Essays in Ecclesiastical, Biography (new ed), (1868) xi-xvi, xii-xiii. For a more detailed account of James Stephen’s career in the Colonial Office, see Smandych, ‘To Soften the Extreme Rigor of Their Bondage: James Stephen’s Attempt to Reform the Criminal Slave Laws of the West Indies, 1813-1833’ above n 3.
[107] Lord Russell to Governor Hutt, 30 April 1841, above n 106.
[108] Ibid 378.
[109] Ibid.
[110] See Smandych, ‘To Soften the Extreme Rigor of Their Bondage: James Stephen’s Attempt to Reform the Criminal Slave Laws of the West Indies, 1813-1833’ above n 3.
[111] Lord Russell to Governor Hutt, 30 April 1841, above n 106, 378-379.
[112] Ibid 379.
[113] Ibid.
[114] Governor Hutt to Lord Russell, 20 January 1842, in Aborigines Papers, 1844, 399.
[115] Lord Russell to Governor Hutt, 15 February 1843, in Aborigines Papers, 1844, 401-402. This quotation runs contrary to what Alex Castles states in above n 5, 534. Specifically, he claims that ‘Despite some confusion on the status of the Act in some later writings, Lendrum’s researches have shown the second Act was not disallowed.’ Although I have not yet had the opportunity to re-examine Lendrum’s original research, on the face of it, it does not make sense that the Colonial Office would officially disallow an Act and then later rescind the disallowance. More recently, in the course of the ongoing research she is undertaking on colonial criminal law and inter se offences in Western Australia in the 1830s and 1840s, Ann Hunter has found a copy of the 1841 Act passed by the Legislative Council of Western Australia which has an annotation on it [ie. An asterisk next to the title of the 1841 Act] which reads: ‘See Statute 6 and 7 Vic cap 22 [1843], reciting ...that doubts had arisen whether these Acts passed by the Legislatures of the colonies are not repugnant to the law of England, therefore null and void, and legalizing all such enactments’ (Personal communication from Ann Hunter, 20 September 2003); see also, Ann Hunter, ‘The Boundaries of Colonial Criminal Law in Relation to Inter-Aboriginal Conflict (inter se offences) in Western Australia in the 1830s-1840s’ (Paper presented at the Annual Conference of the Australian and New Zealand Legal History Society, Brisbane, Australia, July 2003). This annotation suggests that members of the Legislative Council may have believed that the Act was legally in effect, when in fact it had been formally disallowed by the Colonial Office. This may well be the case, given the chronological sequence of the enactment of the Act of 1841 (on 26 October) and the time-delay between the despatches that went back and forth between Western Australia and London, as I have documented (ie While Hutt despatched a copy of the Act to London on 20 January 1842, Lord Russell did not reply until over a year later, on 15 February 1843, and Russell’s despatch probably did not make it to Western Australia until late in 1843).
[116] PRO, CO 201/337, folios 294-295, T Pollock and W W Pollett to Lord Stanley, 26 October 1842.
[117] PRO, CO 18/31, folio 15, Lord Stanley to James Stephen, Jr, 28 September 1842.
[118] PRO, CO 18/31, folios 15-16, Minute of James Stephen, Jr, 28 September 1842. Words in brackets [ ] are only partly legible, thus, the specific word I have inserted has been determined partly by the rest of the context of the sentence.
[119] Lord Stanley to Governor Hutt, 4 July 1843, in Aborigines Papers, 1844, 426-427.
[120] In this respect, my findings are consistent with the more general conclusions of Jane Samson, above n 13, Imperial Benevolence, and similar in nature to the findings of other recent research on the imperial influences that shaped British colonial ‘native policy’ in the mid-nineteenth century. See, for example: Elizabeth Elbourne, Blood Ground: Colonialism, Missions, and the Contest for Christianity in the Cape Colony and Britain, 1799-1853 (2002); Harring, above n 8; and Alan Lester, Imperial Networks: Creating Identities in Nineteenth-Century South Africa and Britain (2001).
[121] Robert Foster, Rick Hosking and Amanda Nettelbeck, Fatal Collisions: Myths of the South Australian Frontier and the Violence of Memory (2001) 13-28.
[122] Edmund Bohan, To be a Hero: Sir George Grey, 1812-1898 (1998); Mark Francis, Governors and Settlers: Images of Authority in the British Colonies, 1820-60 (1992); James O Gump, ‘The Imperialism of Cultural Assimilation: Sir George Grey’s Encounter with the Maori and the Xhosa, 1845-1868’ (Paper presented at Joint Neale and Commonwealth Fund Conference on ‘The British Encounter with Indigenous Peoples, C 1600-1850’ London, University College London, February 1997).
[123] Foster, Hosking and Nettelbeck, above n 121, 2.
[124] Smandych, ‘James Stephen, the Colonial Office, and the Fight for the Protection of Slaves and Indigenous Peoples in British Colonial Criminal Law, 1813-1847’ above n 4.
[125] Foster, Hosking and Nettelbeck, above n 121, 2-3.
[126] Cited in Ibid 3.
[127] PRO, CO 13/10, folios 159-163, Governor Hindmarsh to Lord Glenelg, 16 March 1838, folio 160.
[128] Ibid 163.
[129] Ibid.
[130] Foster, Hosking and Nettelbeck, above n 121, 13-28; Lendrum, above n 9.
[131] There is a significant amount of primary historical data in the Public Record Office in London which I have examined in relation to the debate over the legal status of Aborigines during and following Gawler’s tenure as Governor that I have not cited in this paper, because it takes us far beyond dealing with the narrow question of the enactment of Aboriginal evidence acts, which is the main focus of the present study. Relevant data sources include: PRO, CO 16/1, South Australian Gazette, Nos 74-259, 20 June 1839 to 22 December 1842; PRO, CO 13/16, folios 82-93, correspondence of Major O’Halloran, Richard Penny, W Pullun, Chief Justice Cooper, and Governor Gawler, July-August 1840; PRO, CO 13/23, folios 394-399, issues of the The South Australian Register, September 1840; PRO, CO 13/16, folios 95-111, Governor Gawler to Lord Russell, 5 September 1840.
[132] PRO, CO 16/1, South Australian Gazette, No 139, 17 September 1840, 2.
[133] PRO, CO 13/16, folios 79-82. Governor Gawler to Lord Russell, 15 August 1840.
[134] Ibid. Minute of James Stephen, 19 February 1841, folio 82.
[135] PRO, CO 13/16, folios 95-111, Governor Gawler to Lord Russell, 5 September 1840, with Minute of James Stephen, 12 March 1841, folio 111. It was also in March 1841 that James Stephen received a letter from the Aborigines Protection Society inviting his attention to an enclosed reprinted copy of the Sydney Gazette of October 10, that reported on the ‘summary justice’ meted out to the alleged murderers of the Maria shipwreck surviours. PRO, CO 13/23, folios 132-138, Mr Innes, Secretary of the Aborigines Protection Society to James Stephen, 9 March 1841.
[136] PRO, CO 13/20, folios 101-113, Governor Gawler to Lord Russell, 30 April 1841, with Minute of James Stephen, 12 October 1841.
[137] PRO, CO 13/23, folios 39-41, J Campbell and Thomas Wilde to Lord Russell, 27 March 1841. No legal action was ever taken against O’Halloran or Gawler, nor was an act of indemnity ever passed by Parliament excusing them of their actions. This may have been so at least in part because of the opinion expressed by James Stephen, on a minute written on the back of the Law Officers 27 March 1841 letter to Lord Russell, in which he questioned whether indemnifying O’Halloran and Gawler would be ‘strictly legal’ or ‘constitutional’. Stephen also provided an opinion on this issue in a minute he wrote on the back of correspondence between T Pollock and W W Pollett to G W Hope, 29 November 1841. PRO, CO 13/23, folios 43-47.
[138] PRO, CO 16/1, South Australian Gazette, 1 October 1840, 1-4.
[139] PRO, CO 16/1, South Australian Gazette, 1 October 1840, 1-2.
[140] Foster, Hosking and Nettelbeck, above n 121, 16.
[141] Ibid 31.
[142] I have been able to determine that James Stephen wrote the despatch because it was first written as a draft for Lord Stanley. In the margin of the draft, Lord Stanley wrote: ‘Mr Stephen I conclude that it will be right to make this despatch confidential except with reference to the last part’. PRO, CO 13/23, folios 47-51, draft of ‘confidential’ despatch, Lord Stanley to Governor Grey, 14 December 1841. On the same day, a formal despatch with the identical wording was written to Governor Grey, and signed by Lord Stanley. PRO, CO 396/2, folios 131-135. Lord Stanley to Governor Grey, 14 December 1841.
[143] PRO, CO 396/2, folios 131-135 ibid.
[144] Ibid folios 342-343, Lord Stanley to Governor Grey, 5 July 1843.
[145] PRO, CO 13/38, folios 326-333, Governor Grey to Lord Stanley, transmitting the Governor’s Address at the opening of the Legislative Council of South Australia on August 5th 1844.
[146] Ibid 327-329.
[147] PRO, CO 13/38, folios 405-407, Governor Grey to Lord Stanley, 14 August 1844.
[148] PRO, CO 396/6, folios 125-126, Lord Stanley to Governor Grey, 30 January 1845.
[149] PRO, CO 396/6, folios 390-391, Earl Grey to Lieutenant Governor Robe, 14 December 1846, sanctioning amendments made to ordinance ‘to allow the Aboriginal inhabitants of South Australia and parts adjacent to given information and evidence without the sanction of an oath’. PRO, CO 13/63, folios 231-234, Lieutenant-Governor H E F Young to Earl Grey, 31 July 1849, regarding amendments to Ordinance No 3 of 1848 to facilitate the admission of the unsworn testimony of the Aboriginal inhabitants of South Australia and parts adjacent, and transmitting copy of Ordinance No 4 of 1849 ‘to amend the first named Ordinance in conformity with Your Lordship’s suggestions’. In this despatch, Young noted that in the new Ordinance of 1849, a section of Ordinance No 3 of 1848 containing ‘provisions as to the corroboration of aboriginal evidence in cases of unsworn testimony’ was repealed because in a previous despatch Earl Grey deemed it ‘to be superfluous’.
[150] In this context, it is intriguing to note that in 1844 the Legislative Council of New Zealand also passed an ‘Unsworn Testimony Ordinance’ that allowed the evidence of non-Christian Maori to be received in a court of law without the necessity of a Christian oath, and there is considerable evidence that James Stephen, Jr played a significant role in the enactment of this and other early local New Zealand ordinances aimed at the gradual amalgamation of Maori custom and English law. See Robert Joseph, 'The Government of Themselves: Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (2002). I would like to thank Robert Joseph for drawing my attention to this important comparative evidence on New Zealand.
[151] Smandych, ‘The Cultural Imperialism of Law’ above n 4.
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