“Crime is a great leveller,” stated Western Australia's The Inquirer in October 1853. “Policy requires that we should convince the native population that in our Courts of Justice they really are what we profess and tell them they are—the equals of the white man, whatever they may be elsewhere.”Footnote 1The Inquirer was responding to a case that had just come before Perth's Quarter Sessions, in which John Jones was tried for the murder of Neader in the colony's southwest. Jones was found guilty of manslaughter and sentenced to transportation for life.Footnote 2 Given that Australia's colonies were notable for their failure to bring settlers to trial for violence against Aboriginal people,Footnote 3 it is significant that The Inquirer's editor did not regard Jones' conviction and sentence as a sign that the Courts of Justice were working as they professed to do. The charge was one of wilful murder, and the evidence indicated that “if ever a foul and deliberate murder was committed, it was on the occasion which led to this trial.” The verdict that Jones was guilty only of manslaughter, he continued, was indicative of the jury's disregard of the law's impartiality when a white man was on trial for the murder of an Aboriginal man. If the law was to make a distinction between white and black, “let it be declared: but to say there is none, and to act as if there were, is a mockery.”
What meaning did Jones' trial have within the wider context of prosecuting violent offenses against Aboriginal people in colonial Australia? A striking feature of Western Australia's colonial criminal justice history is that a considerable number of Europeans—twenty-nine between the colony's foundation and the establishment of a centralized Aborigines Protection Board some 50 years later—were tried for violent offenses against Aborigines, and of these, only eight were acquitted.Footnote 4 Although comprehensive data on Europeans prosecuted for such crimes across Australia's colonies is yet to be mapped,Footnote 5 an overview of the available scholarship helps to put this figure in perspective. Bruce Kercher's and Brent Salter's recovery of New South Wales (NSW)'s criminal case history up to 1827 reveals that in NSW's first three decades only four settlers were prosecuted for Aboriginal murder, and of these only one (a runaway convict) was found guilty and hanged.Footnote 6 As historians have noted, the dearth of cases before the mid-1820s in which either Europeans or Aborigines were tried for injury to each other was a clear symptom of the profound uncertainty in the early decades of Australian settlement about British law's jurisdiction over Aboriginal people.Footnote 7 However, even after Aboriginal people were deemed amenable to and protected by British law—a shift commonly positioned in relation to two landmark cases in NSW, the inter se murder trial of R. v Murrell in 1836 and the conviction and hanging of seven white men for the Myall Creek massacre in 1838—Australia's colonial courts only occasionally prosecuted, let alone punished, settler crime against Aborigines. In NSW, the successful prosecution of the Myall Creek murderers proved to be an exception to the more general rule in years to come that settlers would not be tried for crimes against Aborigines.Footnote 8 The guilty verdict in the Myall Creek case excited such opposition from NSW settlers that soon afterwards Governor Gipps chose not to pursue any prosecution over the Waterloo Creek massacre of the same year, writing to Secretary of State Lord Glenelg that given the “excitement” produced in the colony by the Myall Creek hangings, “no further proceedings could, with propriety, be adopted; and that if any of the parties were placed on their trial, the result would inevitably be an acquittal.”Footnote 9 By the late 1840s, Robert Reece has argued, the NSW government had largely relinquished any concerted efforts to capture settler–Aboriginal conflict within the law.Footnote 10
Australia's other colonies suggest a similar dearth of successful prosecutions for settler violence. In Van Diemen's Land, Kercher argues, “it was blacks who were hanged after incomprehensible trials, not whites.”Footnote 11 In the history of Port Phillip, there were only three cases in which Europeans were brought to trial for Aboriginal murder, all in the early 1840s and all leading to acquittals.Footnote 12 Reece details another dozen investigated cases that never went to trial, mostly because they rested on legally inadmissible Aboriginal testimony.Footnote 13 South Australia might have suggested a different history because of the founding promise of its 1836 proclamation to protect Aboriginal people as British subjects; but over the colony's first three decades of pastoral expansion, only seven Europeans in five cases were prosecuted for violent crime against Aborigines, and only one—an ex-convict from another colony—was convicted of murder.Footnote 14 Colonial Queensland stands somewhat apart from its sister colonies because of the violence against Aborigines that took place through the second half of the nineteenth century at the hands of the Native Police Force.Footnote 15 However, even when legal procedures were followed, such as holding coronial inquiries into Aboriginal deaths on Queensland's pastoral frontiers, there was little sign that justice for crimes against Aborigines would be achieved.Footnote 16 Historians have suggested that the formal government inquiries undertaken into the Native Police's operations in “dispersing” Aboriginal people did little more than encourage the force's greater turn to secrecy about the ongoing violence of its methods.Footnote 17
In comparison, then, it might seem that Western Australia's prosecution of twenty-nine Europeans before the 1886 Aborigines Protection Act, resulting moreover in a minority of acquittals, represents a more effective reach of its early judicial system coupled with a stronger administrative endeavor to meet the principle of Aboriginal equality under the law.Footnote 18 Given that Western Australia was not founded until 1829, the decades from the 1830s to the 1880s encompass a critical period in colonial policy relating to Aboriginal legal protection, stretching from the cusp of emerging humanitarian priorities in Britain's Colonial Office to the emergence of centralized Aborigines Protection Acts in a number of Australia's colonies.Footnote 19 However, if Western Australia successfully tried more settlers for crimes against Aborigines over those decades than did other Australian colonies, it does not follow that its judicial system fulfilled the promise of the colony's founding proclamation that those crimes would be legally punished “as if the same had been committed against any other of His Majesty's subjects.”Footnote 20 This article will more closely examine Western Australia's case history of Europeans on trial for Aboriginal murder, manslaughter, or assault, from the time of foundation until the establishment of the Aborigines Protection Board in 1886, in order to ask what this case history might tell us more broadly about legal responses to settler violence in colonial Australia in the period after Aborigines were deemed to be British subjects.
“Subjects of the Crown”
The evangelical humanitarian politics in Britain during the 1830s that culminated in the 1837 Report of the House of Commons Select Committee on Aborigines included the ideal of bringing Aboriginal peoples under the protective umbrella of British law. Although the Report's recommendations did not challenge Britain's imperial project, it recast the Colonial Office's energies toward producing what Alan Lester has called a new class of “civilised and assimilated black Britons.”Footnote 21 In 1838, Secretary of State Lord Glenelg forwarded to NSW's Governor Gipps a plan for establishing a Crown-appointed protectorate in the Port Phillip District, a model that would also be adopted in the recently established colonies of South and Western Australia.Footnote 22 As well as furthering Aboriginal “civilisation and Christianisation.” one of the key roles of the protectors would be to ensure that crimes committed by settlers against Aboriginal subjects of the Crown would be prosecuted.Footnote 23
Ultimately these goals would not be meaningfully met. By the early 1850s, the humanitarian wave that had driven Colonial Office policy over the past decade and a half was on the wane, undermined by the resistance of powerful settler lobbies, by the failures of colonial policy to produce a new class of indigenous subjects inducted into Christian civilization, and by the lack of interest of Aboriginal people themselves in being claimed for “reform” by missionaries and other colonial officials.Footnote 24 Most of all, Elizabeth Elbourne has argued, the era of humanitarianism in colonial policy was rendered unstable because in fixing its attention on the “amelioration” of colonized subjects, it neglected to address the structural causes of frontier conflict, key among these being the imperial government's failure to recognize that prior Aboriginal sovereignty could have existed on the Australian continent.Footnote 25 In 1849, the Port Phillip Protectorate was abandoned, and although the protectorates as dedicated institutions lasted some years longer in Western and South Australia, these also ultimately disappeared. However, the enduring legacy of the humanitarian shift in colonial policy was that from the late 1830s the status of Aboriginal peoples as British subjects was considered settled, at least officially. After the decline of dedicated colonial protectorates and until the establishment of centralized Aborigines Protection Boards, oversight for Aboriginal people's legal protection as subjects of the Crown formed part of the many duties of frontier police and magistrates.
The colony of Western Australia might have appeared well positioned to provide the kind of legal protection to Aborigines envisaged by Colonial Office policy. Like South Australia, the only other of Australia's later-settled free colonies, Western Australia had legislative structures in place soon after foundation, which allowed a greater measure of local autonomy in the administration of justice than had been the case in early NSW.Footnote 26 Although Western Australia did not establish a Supreme Court until 1861, from soon after foundation criminal justice was administered by a Court of Quarter Sessions, convened by a legally trained Chairman, William Henry Mackie, and attended by justices of the peace who had been appointed within the colony's first 6 months.Footnote 27 The intention, as Alex Castles notes, was to ensure the new colony's jurisdiction “over all serious criminal offences” from its beginning.Footnote 28 Over the 1830s, the cases that came before the Quarter Sessions reflected the fairly limited jurisdiction of a new colony, relating mostly to robbery and assault within the settler community and within the vicinity of Perth. By the 1840s, however, with the spread of settlement and a commensurate increase in frontier conflict, local courts had become established outside the Perth district, convened by locally based stipendiary magistrates who would be the “backbone” of justice in outlying districts.Footnote 29
This decade coincided with the governorship of John Hutt, who took seriously the Colonial Office's goal of ensuring the amenability of Aboriginal people to British law. During his governorship, Hutt initiated a broad-reaching set of “experiments” intended to assimilate Aboriginal people into the colonial economy, including schemes for adult training and children's education, and rehabilitation measures at the Aboriginal prison on Rottnest Island.Footnote 30 Secretary of State Lord Stanley thought so well of Hutt's efforts “to protect and civilise the natives” that in 1843 he asked Hutt to forward an outline of his measures to Superintendent La Trobe, Governor Gipps, and Governor Grey with a view to applying them in Port Phillip, New South Wales, and South Australia.Footnote 31 In 1841, also, Western Australia became the first Australian colony to have in operation an act for the legal admissibility of Aboriginal testimony, a measure that in theory would remove the profound disability facing Aboriginal people in the courts.Footnote 32 At about this time, Europeans began to appear before Western Australia's Quarter Sessions charged with violent offenses against Aborigines. This was precisely the time when the recommendations of the Select Committee's 1837 Report could be put to the test.
For colonial judiciaries, however, one of the difficulties of meeting these recommendations was continuing doubt about Aboriginal people's status under British law, even after they were decided in policy to be British subjects. As historians have argued, these doubts were reflected across a number of Australia's colonies in the tendency of courts to commute death penalties for inter se murder well after the law's jurisdiction over Aboriginal subjects was considered clarified.Footnote 33 This was true in Western Australia, where over the course of the nineteenth century, the great majority of Aboriginal inter se murder cases brought before the courts led to commuted sentences.Footnote 34 In Western Australia's first inter se murder prosecution, the 1842 case of R. v Wi-war, defense counsel Edward Landor argued, although ultimately without success, that the court did not have the jurisdiction to try the case, because “the aboriginal inhabitants could not be subject to our laws for offences committed amongst themselves without their previous assent to and acceptance of those laws.”Footnote 35
Landor's argument might seem to indicate some advocacy for Aboriginal defendants brought without their consent or “cognizance” within the criminal code, but he was not to prove sympathetic to the principle of Aboriginal legal equality. In 1847, he published a memoir in which he reflected on the “absurdity” of the law regarding Aboriginal people. Nothing, he wrote, could be “more anomalous and perplexing than the position of the Aborigines as British subjects.”Footnote 36 The heart of the problem, as he saw it, lay in the “morbid sentimentality” of the Colonial Office in shrinking “from the responsibility of having sanctioned conquest over a nation of miserable savages,” and then applying the pretence that they came within the British criminal code. Rather than make a “mockery and gross absurdity” of the judicial system, he stated, the honest thing would have been to apply military law in a colony established by “right of power.”Footnote 37 This frank assessment that Australia was conquered by force of arms rather than settled by law might here have been reserved for a personal memoir, but in future years, when serving as defense counsel for settlers on trial for violent offenses against Aboriginal people, Landor continued to express fundamental disagreement with the idea that there could be “perfect equality between an English gentleman … and a wild savage.”Footnote 38
William Henry Mackie, the colony's first advocate general and chairman of the Quarter Sessions, also expressed some reservation about the law's applicability to Aboriginal people, but was obliged to endorse the principle in his court.Footnote 39 As the number and expense of Aboriginal defendants grew over the 1840s, Mackie worried about what he called a “most absurd system of viewing alike both white and native,” but was duty bound to honor the principle “that all [British] subjects must be treated alike.”Footnote 40 Mackie's successor Alfred McFarland was more emphatic about the court's obligations to honor Aboriginal equality under British law. At the July Quarter Sessions of 1858, he noted that all the defendants before the present session were Aboriginal; but by virtue of his own laws being “superseded,” the “life of the native, whether he be the sufferer or the accused,” is “equally entitled to the guardianship of our law, as that of a white man would be.” All the “assistance and safeguards” of British law, in short, must be afforded to Aboriginal as equally as to white subjects of the Crown, because “our oaths enjoin it, and our consciences require it.”Footnote 41
What did such affirmations of the court's duty to treat black and white equally mean in practice? Across Australia's settler frontiers, the difficulties of establishing effective administration in frontier districts often meant that investigations against settlers for crimes against Aborigines never led to prosecution and hence to court.Footnote 42 Colonial Western Australia's relative success in bringing settler offenses to trial is especially notable in per capita terms, given that the concentration of settlement in Western Australia advanced less rapidly than was the case elsewhere.Footnote 43 Initially, with a dearth of free labor and the inducement of Aboriginal people into working for settlers, a more permeable settler frontier was earlier established than in other colonies.Footnote 44 Ultimately, however, even though 21 of the 29 Europeans tried for violent offenses against Aboriginal people up to 1886 were found guilty and awarded a sentence of some sort, only one was convicted of murder and suffered the death penalty. Over the same period, Western Australia executed 25 Aboriginal people for the murder of Europeans.Footnote 45 This manifest difference between the fate of Aborigines and that of Europeans who were tried for violent offenses against each other begs more detailed analysis of why, when settler offenses against Aborigines actually reached the courts, their sentences did not reflect the officially upheld principle of equal justice.
A closer examination of this particular case history shows several trends that help explain the law's failure to adequately address settler violence. First, arguments of provocation or defense of self or property were successfully enlisted in many cases to minimize judicial punishment for Aboriginal deaths, demonstrating how readily settler violence could be attenuated by the law. This is a similar pattern seen across other colonies when settler crime against Aborigines reached the prosecution stage.Footnote 46 Further, the ways in which judicial punishment was mitigated in these cases reveals much about the assumed hierarchies of colonial society. As many cases involved the deaths of Aborigines at the hands of Europeans whom they already knew and sometimes for whom they worked, they provide a glimpse into how the law helped to justify the everyday kinds of violence Aboriginal people faced in their dealings with settlers. And as white laborers and (later) ex-convicts incurred heavier penalties for such offenses than did landowners, they also demonstrate the law's investment in maintaining existing “institutions and social relationships.”Footnote 47 Second, many of these cases show that despite the legal admissibility of Aboriginal evidence earlier in Western Australia than anywhere else in colonial Australia, judicial punishment of settler crimes was limited by the readiness of settler juries, magistrates, and police to dismiss its reliability, at least when it incriminated settlers. Third and more broadly, as a snapshot of the workings of colonial law, Western Australia's colonial history of settlers on trial reveals the extent of the indifference that existed within legal networks in fulfilling an official duty of Aboriginal protection, as that duty was vested not just in juries but also remotely located magistrates, police, and justices of the peace. Over the course of decades, this was a situation occasionally queried but ultimately tolerated by the government.
In the end, these patterns make Western Australia's colonial judicial history little different from that of Australia's other colonies, where settler prosecutions took place with less frequency. The fact that Western Australia tried such a considerable number of settlers for crimes against Aborigines, yet still failed to achieve Aboriginal protection through the law, illuminates just how little settler prosecution worked as a means of regulating violence in colonial Australia. Ironically, however, the very fact that settler prosecutions took place with some regularity, helped create a perception in the settler community that the law too vigorously favored a policy of Aboriginal protection.Footnote 48 The ironies of this public discourse were not just that it failed to mirror the actual workings of the law, but that as the nineteenth century progressed, it expressed grievance against a perceived humanitarian priority in colonial legal policy that in practice had ceased to exist.
“Mitigation of Punishment”
In her comparative study of how settler sovereignty was consolidated in NSW and Georgia in the early nineteenth century, Lisa Ford makes the astute point that few settlers were “merely lawless”; rather, they made good use of the “discourses and the politics of settler jurisdiction” to clothe their violent acts in the legally acceptable terms of provocation, self-defense, and justifiable homicide.Footnote 49 Ford's study ends in 1836, just before the emergence of the protectionist era in colonial policy. By the time Western Australia first prosecuted a settler for Aboriginal injury in the early 1840s, Aboriginal people had not only become equal under the law as British subjects, but their capacity to continue living in what Ford calls “a largely separate jurisdictional order from settlers” was becoming limited, at least within the settled districts.Footnote 50
These circumstances were influential in the case that came before William Henry Mackie in July 1842 when Charles Bussell, one of the brothers of a prominent settler family in the Vasse, was tried for manslaughter over the shooting death of a 7-year-old Aboriginal child.Footnote 51 Suspecting the girl of having stolen some flour, Charles Bussell pointed a gun at her in order to exhort her confession. Falsely believing the gun to be unloaded, he pulled the trigger to intimidate her, killing her instantly.Footnote 52 Bussell's defense counsel was Edward Landor, who 5 months earlier had queried the court's jurisdiction to try Wi-war. In Bussell's case, Landor's defense rested on the argument that the accused had been the victim of Aboriginal robbery, and had a right to defend his property. Bussell was a respected settler and the girl's death had been “purely accidental,” he argued, and although reason demanded that Bussell be acquitted, the court would be justified “in inflicting a nominal fine.” Mackie concurred, adding that the Crown was obliged to pursue the case because “the government was determined to enforce the principle that the natives should be treated in every way as British subjects, and that as they were liable to punishment, so they had a right to protection.”Footnote 53 Having been seen to have enforced that principle, the court fined Bussell 10 s., and he was discharged.
As Western Australia's precedent in prosecuting settler violence, Bussell's case is notable for establishing a defense of mitigating circumstances for the kind of normalized violence that could attend relationships between Aboriginal people and the settlers with whom they were compelled to live in close proximity. The crime of manslaughter to which Bussell pleaded guilty was not a frontier encounter of the kind that had caused controversial debate about the limits of legal jurisdiction in 1820s and 1830s NSW.Footnote 54 Rather, it was a crime arising from uneasy cross-cultural intimacy. The child whom Charles Bussell killed was familiar enough to the family for Charles to suspect her, interrogate and intimidate her, and ultimately shoot her in his own kitchen.
The defense and outcome of Bussell's trial were mirrored in many respects in the case 6 years later against respected settler George Guerrier. As a disciplinary measure, Guerrier had tied a pregnant Aboriginal woman in his employ to his verandah for 3 days, and she subsequently died. In July 1848, a charge of manslaughter against Guerrier was rejected for want of sufficient evidence, and he was charged in October for aggravated assault. Guerrier's case was heard at the Criminal Sittings on January 3, 1849. As defense counsel, Advocate General Richard West Nash presented the court with certificates of Guerrier's good character, and in “mitigation of punishment” the court fined Guerrier £5.Footnote 55 Prominent settler and magistrate Marshall Waller Clifton queried the judicial proceedings in this case. In a letter to The Inquirer, he questioned why the manslaughter charge had been ignored, and stated that the jury had failed in their duty to punish “the criminality of persons ill-treating the natives.”Footnote 56 As defense counsel, Nash angrily responded that Guerrier had “the highest written testimony” on his good character; that there was no proof the woman's detention had caused her death; and that she had provoked her employer by having absconded from service, an offense that merited a more severe punishment than Guerrier had given her by confining her “for two or three days.” In short, Guerrier had the most cause for grievance, and had further suffered from the expense and loss of time in having had to journey from his property to stand trial.Footnote 57
Guerrier's case was telling not only for the defense counsel's successful argument that Aboriginal provocation warranted “mitigation of punishment,” as in Bussell's case, but also for providing insight into the law's justification of a landowning settler's treatment of his Aboriginal servant. Many settlers readily regarded Aboriginal people as a naturally subservient source of labor.Footnote 58 Likewise, the master and servant legislation that operated with some variations across the Australian colonies supported a labor relationship that was essentially bound, as Rob McQueen has argued, to an assumption “of substantive inequality.”Footnote 59 Michael Quinlan has similarly examined how embedded expectations of “worker deference” provided the law with “sweeping powers to aggrieved employers and scant redress to servants.”Footnote 60 Although organized protest against the harshness of master and servant acts grew from the 1840s, Aboriginal workers had no such organized support.Footnote 61 Not only did they have little leverage with the judicial system, but they were also further burdened by an embedded ethic in colonial policy that their labor for settlers would serve as a beneficial step toward their “civilisation and Christianisation.” Although Aboriginal people were ostensibly subject to master and servant legislation, there is little evidence in colonial Australia of civil litigation involving Aboriginal workers.Footnote 62 A case notable for its rarity occurred in Western Australia in 1843 when Mooyan obtained a summons against William Lemington for failure to pay promised wages, and won his case in the Court of Requests.Footnote 63
Overall, however, in the spirit of “paternalism and punishment” that defined the relationship between masters and servants, there can be little doubt that over the course of decades magistrates treated settler abuses of Aboriginal employees with a light hand, and supported settler-masters' assumed rights over the lives of Aboriginal employees.Footnote 64 From 1873, Aboriginal employment in the pearling industry in the colony's north was regulated under the Pearl Shell Fishery Act, but there was little sign such legislation worked to protect Aboriginal workers. In 1884, the Governor queried the “light” punishments that Roebourne's Resident Magistrate E.H. Laurence reported having imposed on pearlers over the last season for abuses of Aboriginal employees. For acts such as corporeal punishment or tying Aboriginal divers up with rope if they did not collect enough shell, the resident magistrate awarded minor fines or cautions. Having read the magistrate's reports, the governor reminded him that Aboriginal employees deserved the law's protection as equally as did white men, earning the magistrate's reply that to deal with such cases more severely “would I fear deter anyone from pearling.”Footnote 65 The magistrate's response gave voice to the reality that those who served the economic development of the colony were unlikely to face more than a nominal fine for crimes of violence against Aboriginal people, and Aboriginal employees held little chance of redress through the legal system that ostensibly served to provide them with equal protection.
As Bussell's and Guerrier's trials also indicated, being a gentleman of “good character” was in itself likely to serve as a successful defense. In 1886, two “respectably connected” young men, William Bradshaw and William Inkpen, were tried on a charge of manslaughter over the death of Wyngell, alias Dickey, at York. The young men had followed Wyngell and his wife Minnie, attempting to lure Minnie “into the bush.” Wyngell repeatedly told them to leave, at one point picking up a stick and threatening to strike the white men “if they did not clear off.” Assisted by Inkpen, Bradshaw attacked him with such force that he died the following day. Despite the defense counsel's attempt to argue that Bradshaw had been “attacked by the black fellow with a stick” and was “justified in defending himself,” the jury saw no case for provocation, and returned a guilty verdict. However, they moderated this verdict with a strong recommendation to mercy, supported by the opinion of Chief Justice Alexander Onslow that although the young men had “brought themselves into disgrace,” they had not “really meant mischief.”Footnote 66 Bradshaw was sentenced to 6 months' imprisonment and Inkpen to 3. Given that no witnesses had appeared for the defense, only their “respectable” backgrounds appear to have justified their light sentences, as one correspondent to the press implied.Footnote 67
If the prosecution of “respectably connected” settlers for crimes against Aboriginal subjects was one test of the rule of law—a test it only superficially fulfilled—the prosecution of public officials was another. In 1866, the assistant superintendent of Rottnest Prison R.W. Vincent was tried for aggravated assault on an Aboriginal prisoner who subsequently died, and was sentenced to 3 months' imprisonment. Although he was found guilty as charged, Vincent's light sentence might be explained by the mitigating argument urged by defense counsel Edward Landor that it was the duty of a prison warden to maintain discipline and keep order amongst his charges.Footnote 68 Some years later in 1879, police constable Edward McComish was tried for manslaughter after having struck his Aboriginal police assistant Toby over the head with a revolver with such force as to kill him. Although the jury found that he had used “unnecessary violence,” mitigating circumstances were accepted with his claim that he was attempting to arrest Toby for trying to abscond from police duties before the expiration of his contract. With the jury's recommendation to mercy, McComish was sentenced to 3 months' imprisonment and dismissed from the force.Footnote 69 If the rule of law worked sufficiently well to bring these public officials to trial and even to find them guilty, it did not do more than impose minimal sentences upon them.
European laborers who were tried for violent crimes against Aboriginal people were more likely than their employers to incur a heavier sentence; however, an argument of provocation, self defense, or defense of property still worked to offset a verdict of murder, particularly as the settler frontier expanded and minimal police support was at hand. Such was the defense that Edward Landor brought to the trial of stockkeepers Edward Lee and James Wilkinson in 1863 for the murder of Coomberry. Suspecting Coomberry and Narrogin of stealing their flour, the men took it upon themselves to “arrest” the two, tying them up and beating them with a gun. The accused and two other station workers later deposed that Wilkinson's gun had discharged “accidentally,” killing Coomberry instantly.Footnote 70 When the case came to trial, Landor argued, as he had in Bussell's case, that the accused had been provoked by Aboriginal criminality: their hut had been robbed, there was no police assistance to hand, and in “arresting” the Aboriginal culprits they considered themselves to be “doing a lawful act” to protect their master's property.Footnote 71 Justice Burt reminded the jury that as neither the accused nor the witnesses who testified for the defense could prove that Coomberry and Narrogin had stolen the flour, the “arrest” of them was an illegal act. In the event, Lee and Wilkinson, the latter a former convict, were found guilty. The evidence could hardly have allowed otherwise. However, Landor's defence seems to have held sway, because the jury found not for the actual charge of murder but for the lesser crime of manslaughter. Both men were sentenced to 5 years' imprisonment.
If provocation was a familiar argument though which European responsibility for violent crimes against Aboriginal people could be mitigated, self-defense was another. In April 1844, James Stoodley, an employee of pastoralist William Brockman in the Swan River District, came before the court on a charge of manslaughter for the death of Wabbemurra, whom he had killed at Brockman's station with blows about the head with a whip.Footnote 72 In his quarterly report, Aboriginal protector Charles Symmons was gratified to observe that Stoodley's indictment had convinced Aboriginal people “of our intention to see them righted” through British law.Footnote 73 This belief was hardly warranted. Although Stoodley's case went to trial, defense counsel John Schoales successfully argued that Stoodley had used the whip only to “drive away” an Aboriginal group from the station, and that as Wabbemurra held a dowak or throwing stick, “it might properly be inferred” that Stoodley “was under the impression” he might be attacked. The jury returned a verdict of not guilty and Stoodley was discharged.
No other case in the colony's history captured the settler defense of mitigating circumstances more controversially than the 1872 case against respected settler and Justice of the Peace Cleve Lockier Burges, which challenged the perceived right of settlers to take the law into their own hands when beyond the law's ordinary reach.Footnote 74 In February 1872, word reached Perth that Burges, provoked by the theft of his saddle, had shot and killed an unidentified Aboriginal man during an overland expedition near Nickol Bay some months earlier.Footnote 75 Governor Frederick Weld was adamant that as Aboriginal defendants were increasingly appearing in the courts on capital charges, it “is my duty to see impartial justice done to both races of Her Majesty's subjects.”Footnote 76 In his view, this case would prove to be an exemplar of the policy of equal justice.
When Edward Landor (now Police Magistrate) and a bench of magistrates heard the witness statements, they considered the key evidence of Burges' Aboriginal assistant Chum Chum to be too “doubtful” to warrant a murder charge, although sufficient to charge Burges with intent to do bodily harm. Governor Weld was suspicious of the magistrates' willingness to consider the evidence against a respected pastoralist reliable for the lesser charge but not for the capital charge, and when Landor would not concede an inconsistency in this, Weld suspended him from office.Footnote 77 Forwarding all papers on to the case to the secretary of state, the Earl of Kimberley, he recalled how Sir George Gipps had “fought the same battle for justice … against the whole force of a powerful squatter aristocracy”—a reference to the conviction of seven white men for the Myall Creek massacre in 1838—and reiterated that his own efforts in this case would “promote equal justice for all classes of Her Majesty's subjects”.Footnote 78
In comparing his treatment of the Burges case to Gipps' treatment of the Myall Creek case, Weld was appealing to an era when humanitarian discourse had driven colonial policy. In 1839, in the aftermath of the Myall Creek massacre trial, Secretary of State Lord Russell had stressed the Crown's determination to provide Aboriginal people with “protection against injustice,” and promised NSW's Governor Gipps the imperial government's every support in securing it.Footnote 79 In the decades between, however, that commitment had significantly fallen away. If Governor Weld expected the Colonial Office to support him as it had supported Gipps more than three decades earlier, he would be disappointed. The secretary of state did not endorse Weld's action “in interfering with magistrates in the honest exercise of the discretion with which they are invested by law,” and requested Landor's reinstatement.Footnote 80
When Burges' case came before Justice Archibald Burt and a common jury in the Supreme Court, Attorney General Robert Walcott attempted for the prosecution to stress the equality of Aboriginal people before the law. In summing up, Justice Burt also reminded the jury that the law must apply “for black and white alike.”Footnote 81 However, although the attorney general considered “the evidence would have justified and sustained a verdict of murder,” the jury found Burges guilty only of manslaughter and sentenced him to 5 years' imprisonment. Appeals on his behalf were sent to the secretary of state, who again showed how far Colonial Office policy had drifted from its insistence a generation earlier on equal justice for Aboriginal people. Kimberley recommended that a year's imprisonment would provide sufficient punishment “to exercise a sufficiently deterrent effect on … similar offences,” and Burges' sentence was duly remitted from 5 years to 1.Footnote 82
“Principles of Conscience and Truth”
A key aspect of the controversy in Burges' case was that it relied significantly upon the eyewitness testimony of Burges' Aboriginal assistant, whose evidence Landor and his fellow magistrates considered too unreliable to sustain a murder charge, yet sufficient for a lesser one.Footnote 83 In NSW and its jurisdictions, the inadmissibility of Aboriginal evidence until 1876 concerned many colonial administrators, as well as London's Aborigines Protection Society.Footnote 84 Through the 1840s, bills to admit Aboriginal evidence in courts of law were proposed and rejected for NSW and its jurisdictions, because of the perceived legal obstacle of Aboriginal ignorance about the nature of an oath, an outcome that frustrated Governor Gipps both because it allowed settlers to escape judicial punishment for injury to Aborigines and because, in his view, it allowed Aborigines to escape judicial punishment for their crimes, and, therefore, encouraged settlers to “take the law into their own hands.”Footnote 85 As Barry Patton has argued in relation to the Port Phillip District, the continuing inadmissibility of Aboriginal evidence in the courts was understood to be a primary cause for settlers getting away with murder. Protector George Augustus Robinson complained in 1845 that by virtue of this “incapacity.” Aboriginal people would inevitably bear the brunt of “unequal justice.”Footnote 86
In contrast, Western Australia was distinctive for being the first Australian colony to admit Aboriginal testimony without the sanction of an oath in criminal cases concerning both Aborigines and Europeans.Footnote 87 However, in coming years, a continuing difficulty when Europeans were prosecuted for violent offences against Aborigines was that juries and other legal officials remained ready to disregard Aboriginal evidence, despite its legal status.Footnote 88 When the draft of the 1841 Aborigines Evidence Act had come before the Executive Council, Advocate General Richard Nash recorded his disapproval of admitting into courts the unsworn testimony of “infidel savages” who were “devoid of the principles of conscience and truth,” not just because it ran counter to “the principles of evidence,” but, more specifically, because it might prove to be “dangerous to the lives, properties, and reputation of British citizens.” In his view, whereas Aboriginal people's “random assertions” might be applied to each other, they should not be allowed to affect “the life or liberty of a civilized man.”Footnote 89 Although Nash's objections did not hold officially, in subsequent years such sentiments still seeped into the courts. Moreover, they were given legal latitude by the discretionary scope provided within the Act for justices and juries to determine the degree of credibility attaching to Aboriginal evidence.Footnote 90
The bias against Aboriginal evidence when it incriminated settlers was at the heart of The Inquirer's protest about the outcome of John Jones' trial in 1853, which was dependent upon Aboriginal eyewitness testimony. If the evidence was considered insufficient when “the result will be hanging,” the editor asked, how was it found sufficient “when it only tends to cause a man to be imprisoned”? Despite the clarity of the evidence, he pointed out, the jury returned a verdict of manslaughter rather than murder because they would not abide by the principle that the “testimony of natives should affect the life of a white man.” In “common justice,” Aboriginal evidence should be either accepted or rejected altogether, and if it was not considered reliable when it incriminated white defendants, it should not be considered reliable when it incriminated Aborigines.Footnote 91
The duplicity neatly identified by The Inquirer's editor pertained in the courts over the course of decades. In the early 1850s, for example, two cases of grievous bodily harm in which Aboriginal men had been shot and wounded by settlers, came before the court. The prosecutions relied solely upon Aboriginal witness testimony, and in both cases the accused were acquitted.Footnote 92 In 1865, Edward Landor defended station worker David Reader, who was on trial for the murder of an Aboriginal man, Denny. The witness testimony was provided by two Aboriginal people, Sammy and Scarron, who stated through an interpreter that Reader had come into the camp where Denny was resting, and, without provocation, had beaten him with such force as to kill him. Landor cautioned the jury that “there was but little dependence to be placed upon native evidence,” and urged them “not to be carried away by too eager a desire for equal justice between white and black.”Footnote 93 However, in addition to the Aboriginal evidence, the prosecution was supported by the testimony of the colonial surgeon, who verified that Denny had died from kicks delivered “with considerable violence” to his stomach, liver, and spleen. With the backing of the medical evidence, the jury found Reader guilty, not of murder but of the lesser crime of manslaughter, and sentenced him to 3 years' imprisonment with hard labor, although he served less than 2.
These cases at least reached the court, even if a disregard for Aboriginal evidence unsupported by white witnesses resulted in minimal,, if any judicial punishment.Footnote 94 Other cases never reached the prosecution stage because the officials charged with investigating such cases were also unwilling to rely upon Aboriginal evidence unsupported by white witness testimony. When warrants were issued for Eucla station owners William Stewart McGill and William Kennedy for an alleged murder of an Aboriginal man near Albany in 1882, the Attorney General acknowledged that a difficulty in prosecuting the case was that “there is no evidence against the suspects except the evidence of aboriginals. Such evidence is as likely as not to break down before a Jury if unconfirmed.”Footnote 95 The case did not proceed, and the men did not go to trial.
Similarly, in 1886 when station overseer John Pollett reported to the local Roebourne magistrate that his gun had accidentally discharged, killing Jenaquorie, the case was decided at a coronial inquest as one of excusable homicide because both the magistrate and the investigating police proved unwilling to rely on the Aboriginal witness statements that Pollett had put his gun to the shoulder and fired deliberately.Footnote 96 When the paperwork was forwarded to his office, Acting Attorney General Septimus Burt asked for a re-investigation, arguing that the Aboriginal eyewitness testimony “disclose[s] a clear case of wilful murder and nothing less.”Footnote 97 “I am aware” he wrote, “that it is extremely difficult to get the whole truth in a matter like this” and the police felt “that full reliance cannot be put upon [Aboriginal] evidence,” but he was “strongly impressed” by the consistency of Aboriginal testimony in this case. As it transpired, the outcome of the second investigation by two magistrates was little different from the first: following police opinion, they agreed that the Aboriginal evidence in this case was not reliable, and that Pollett was liable for assault. To this lesser charge Pollett pleaded guilty and was fined £5.
It was notable that when uncorroborated Aboriginal evidence was required to find a guilty verdict in cases of Aboriginal violence against Europeans, juries were ready to accept it no matter how tenuous it might be. At the same Criminal Sittings in which David Reader was tried, five Aboriginal men were tried for the murder of station worker Thomas Botts near Champion Bay. The men had been arrested on the word of an Aboriginal interpreter who was not present at the trial, and the evidence had to pass through another three interpreters to be understood.Footnote 98 Four of the five men were found guilty and hanged at the scene of the crime. Likewise in October 1863, Tellup was tried for the murder of shepherd Charles Story 2 years earlier near Albany. Tellup was the fourth Aboriginal man to be tried for this crime, three others having been tried, convicted, and executed the previous year.Footnote 99 At Tellup's trial, interpreter Francis Armstrong could not understand the Aboriginal testimony “satisfactorily to himself.” One witness, Barbelan, “told a long unintelligible story,” and another Aboriginal witness was “only a degree less unintelligible” to the court. “The whole proceeding,” wrote the court reporter, “had the appearance of a mockery of English forms of criminal justice.”Footnote 100 Nonetheless, Tellup was found guilty and hanged at the scene of the crime.
The flaws in the principle of equal justice created by the unwillingness of juries, magistrates, or investigating police to rely upon Aboriginal evidence alone, were no doubt compounded by the fact that Aboriginal people themselves had every reason to avoid police or other entanglements in the British legal system. When in 1886 Corporal Edward Smith investigated the shooting of an Aboriginal man by a station worker on the Gascoyne, he was unable to gather any evidence other than a corroborating statement from the man's coworker that he had shot in “self defence.” Aboriginal people themselves could not be induced to yield information because, Corporal Smith supposed, “they thought we wanted to catch them.”Footnote 101
From the 1870s, as the pastoral, mining, and pearling industries established themselves in the colony's far north, the difficulties of successfully prosecuting cases against settlers on the basis of Aboriginal evidence were compounded by distance, as well as by the investment of local magistrates or justices of the peace in the local economy. In one instance, police sergeant Christopher Payne tried hard to have a case against pearler John Wells properly tried, as Governor Weld had done in Burges' case. Sergeant Payne investigated Wells for having flogged Aboriginal diver Charlie to death 2 years earlier. Payne gathered statements from six Aboriginal witnesses “which corroborate each other in nearly every particular” but, he reported, it “is almost impossible to get any white evidence in these cases.” He saw sufficient grounds for charging Wells with manslaughter, but understanding the limitations of a case built solely upon Aboriginal testimony, he persisted in finding European witnesses. Finally he gathered statements from two of Wells' pearling coworkers, about which he entertained considerable doubt. The witness statement of Duncan McRae he considered warranted “very little reliability,” as McRae was clearly “an interested party … almost an accessory.” As well as expressing his lack of faith in the white witness testimony, Payne expressed his lack of confidence in the local justices of the peace, as they were all “very deeply interested” in the pearling industry. Predicting that “if any Justices sit with the Govt Resident it is impossible to get a conviction,” Payne recommended “that this case be tried at Perth as Justice can never be got here.”Footnote 102 Despite Payne's efforts, Wells' case did not go to Perth, but was tried at the Roebourne District Court. The charge went forward not as manslaughter but as assault causing actual bodily harm. McRae, whom Payne considered to be “almost an accessory” to the crime, served as witness for the defense. As Payne had predicted, the jury returned a verdict of not guilty and Wells was discharged.Footnote 103
“I Do Not See That Anything Can Be Done”
As cases such as John Pollett's and John Wells' indicated, it could be more a matter of individual discretion than legal obligation whether local magistrates pursued a duty to ensure Aboriginal legal protection. Australia's colonial magistracy, as it had functioned since the 1820s, was largely composed of settlers who mostly had no formal legal training, but who represented landed gentleman or the “local oligarchy.”Footnote 104 Hilary Golder has discussed the essentially incompatible responsibilities of these functionaries in NSW over the 1840s, the decade when frontier expansion coincided with the shift in imperial policy to Aboriginal protection. As she puts it, the magistracy “was supposed to secure the orderly advance of the pastoral industry while acting as a ‘protector’ of Aborigines,” but in practice, the essential incompatibility of these roles could manifest in magistrates turning a “blind eye” to settler vigilantism.Footnote 105
Resident or stipendiary magistrates, along with honorary justices of the peace, were appointed to Western Australia's outlying districts as they opened up. As these officials were primarily appointed from within the local landowning body, the task of Aboriginal legal protection in distant districts sometimes fell to curiously inappropriate hands. An irony of a forgetful administration is that some years after Eucla sheep station owner William Stewart McGill was investigated for Aboriginal murder in 1882, he was appointed local justice of the peace and sub-protector of Aborigines. In this role, he continued to be enveloped in controversy about his handling of Aboriginal matters.Footnote 106
Although a bias among settler juries may have made it difficult to secure meaningful penalties against Europeans tried for offenses against Aborigines, at least in the colony's earlier decades, most such cases arose from circumstances in which the victims and perpetrators were known to each other, and were readily captured in the law's net.Footnote 107 However, with increasing distances between the center of government and new districts of settlement, it was no simple matter for central authorities to always scrutinize the activities of the regional magistracy tasked with Aboriginal legal protection.Footnote 108 In 1873, in the wake of Burges' trial, Governor Weld asked the Attorney General H.H. Hocking to review the cases of outrage against Aboriginal people that had come to the government's notice in the northern districts over recent years, and report on “the efforts that have been made to investigate them and to apprehend and punish the offenders.”Footnote 109 Hocking's report was a depressing account of a tolerated culture of settler violence and the difficulties of investigating it, not least because of the indifference of local magistrates. Hocking closed his report with the observation that despite the government's stated goal to legally punish injury to Aboriginal people, such efforts “have not been attended with the success that might have been wished.”Footnote 110
At times, government authorities intervened when reports from local magistrates indicated a failure to adequately pursue or punish settler crimes against Aboriginal people, particularly in the remote north.Footnote 111 In 1885, the attorney general and colonial secretary queried a report from the resident magistrate at Carnarvon, C.D. Foss, in which he accepted without investigation a statement from the Davis brothers that their party had shot an Aboriginal man in self-defense while out near Mount Clere. The magistrate had known the Messrs Davises “for some years” and felt no reason to doubt their report; and given the distance and the time that had elapsed, he saw no reason for further inquiry.Footnote 112 When the magistrate's report reached Perth, the colonial secretary noted: “the Resident Magistrate does not appear to regard this as anything out of the way—a lesson in a civilising school!” Foss was reminded of his duty to initiate an investigation into such cases; however, this case went no further when the magistrate restated that “I do not see that anything can be done in this matter.”Footnote 113
Some magistrates openly resented any intervention from the seat of government. When the attorney general requested a re-investigation of the case against John Pollett in 1886, local Resident Magistrate Edward Angelo felt justified in arguing for his magisterial independence. The government's attempt to bring a charge of murder “against a settler bearing a good character in the district,” he reported back, had “acted prejudicially” in the minds of local settlers, even though in the end the re-investigation made little difference to the original findings.Footnote 114 At other times, the disinclination of remote magistrates to pursue investigations or coronial inquests in cases of Aboriginal deaths received no government comment at all, such as when mounted police reported Aboriginal fatalities as a “last resort” in the course of patrols.Footnote 115
However, the everyday difficulties of law enforcement were a measure of how hard it could be to achieve convictions for settler violence, even when cases were prosecuted. Delays in police investigation, degrees of magisterial indifference, and settler unwillingness to come forward were all symptoms in the 1861 case against John Death and Joshua Edwards, which ultimately led to an acquittal. In September 1860, police sergeant William Piesse went to the hut of Death, stockkeeper on Edwards' cattle station near the Swan, in order to arrest him on a charge of cattle stealing. In the hut he found strychnine-laced flour, which Death told the policeman he kept for eradicating native dogs. Piesse may have thought no more about it, except that he was in the district not just to arrest Death for cattle stealing but also “to catch natives” for the same reason. While the sergeant was out on this business, Aboriginal people showed him the grave of 2-year-old boy Bulbaroo, and told him the child had died some time earlier after eating poisoned flour left by Death. Piesse reported this to the local magistrate, who called an investigation. Two fellow workers of Death's, William Bandy and John Sims, deposed that Edwards had instructed Death to mix the strychnine in the flour “for the natives,” and that Death had “a trap laid for them.”Footnote 116 Death and Edwards were tried for the murder of the child in January 1861. Although Bandy and Sims both appeared as witnesses for the prosecution, neither inspired confidence in the likelihood of settlers serving in that role. When asked why they had not earlier come forward when they knew of the planned “trap” and the child's death, Bandy replied that he considered it “none of his business,” and Sims that he had no idea to “caution the natives nor tell the police.”Footnote 117 Moreover, the magistrate did not think to arrange exhumation of the child's body or to investigate further than taking Bandy's and Sims' depositions. Although medical advice to the court was that the child's symptoms sounded consistent with the effects of strychnine, without examining a body, and with no further evidence to hand, it was impossible to judge with certainty. In the absence of harder evidence the accused were acquitted.
A case from the far north that revealed much about the levels of inertia embedded in the law's official role to protect Aboriginal people was that of Charles Clifford, a pastoral worker identified as “creole,” who was tried in early 1884 for the manslaughter of Thackabiddy in the northern district of the Gascoyne. The court heard that in May 1883, pastoralist George Gooch took it upon himself without warrant or authority to “arrest” Thackabiddy for being within the vicinity of his sheep. Gooch decided to take him to the police station in Carnarvon with the aid of his station worker Clifford. Before setting out, he left Thackabiddy in the “custody” of a Mr Keane, who shot and wounded the prisoner in the neck, chin, and arm. Considering the wounds “slight,” Gooch embarked on the journey with Clifford, the prisoner chained by the neck to Clifford's horse. Three days later, they fell in with another settler, travelling with a 16-year-old boy, Roach. While Messrs. Gooch and Gale continued ahead, Clifford and Roach followed with the wounded prisoner, and sometime during the journey Roach shot Thackabiddy again, wounding him in the ankle. Although “hardly able” to walk, Thackabiddy was obliged to trail the horse in chains until he “tumbled down.” Clifford dragged the prisoner by the neck chain behind his horse for another mile or thereabouts before securing him to a tree. There he was left without food or water while Clifford and Roach continued the last 40 miles into Carnarvon, where they directed Constable Turner on how to find him.Footnote 118
When Constable Turner arrived at the spot, he found Thackabiddy dead, still chained to the tree, with the bullet wounds on his body and the tracks from where he had been dragged behind the horse in clear view. Nonetheless, it was a month before the police thought to make any arrests in this case. On cross-examination, Constable Turner pointed out that there was “nothing unusual in escorting a native chained round the neck to a horse: that is how the police escort them.” Of those involved in this tortuous journey, from Thackabiddy's unwarranted detention on May 24 to his death on May 29, it was only the “creole” station worker Clifford who was charged with manslaughter. Clifford's defense counsel Stephen Henry Parker, who had acted as Burges' defense counsel in 1872, did not attempt to argue other than that “this native was, so to speak, done to death,” but rested his defense on the grounds that the “immediate” cause of death was impossible to calculate. In this, he was supported by the medical opinion of Dr Edward Scott that, although being dragged by neck chains behind a horse while wounded by bullets was not “judicious treatment,” it could not be confirmed as the direct cause of death. The jury took 10 minutes' consideration to acquit Clifford. The case generated discussion in the colonial press and reached the notice of the secretary of state, Kimberley's successor the Earl of Derby, who queried whether any further attempt could be made to prosecute the others involved in the affair.Footnote 119 The governor and attorney general examined the possibility, but concluded that sufficient evidence could not be produced. Discussions continued for months, but petered out with the conclusion that although the jury had taken a “prejudiced” view, the fact that “nobody was punished was no fault of the Government.”Footnote 120 By the end of the decade, George Gooch had been recommended to the local position of justice of the peace and sub-protector of Aborigines.Footnote 121
Only once in the colony's history was a European convicted and executed for the murder of an Aboriginal. In October 1859, Richard Bibbey was tried for the murder of Billamarra. Bibbey was an expiree who had been originally transported for robbery with violence, and was now working as a hutkeeper at Champion Bay. Shepherd Edward Cornely testified that he had seen Bibbey shoot Billamarra in cold blood without provocation. Although Bibbey alleged he had shot in self-defense while recovering stolen sheep, the shepherd testified that he “never missed any” sheep, and no witnesses were called for the defense.Footnote 122 Bibbey was hanged on October 17, 1859. His case was heard before Alfred McFarland, who the previous year had insisted that “our oaths enjoin … and our consciences require” equal justice to Aboriginal people. Overall, however, there was little proof that this view was much shared by the judges, juries, and magistrates who oversaw cases of Europeans charged with violence to Aborigines.Footnote 123
After the establishment of a centralized Aborigines Protection Board in 1886, there was also little sign that the promise of Aboriginal equality and protection under the law had any more reality than it had over the colony's first 50 years, despite periodic enquires into charges of abuse against the Crown's Aboriginal subjects.Footnote 124 Throughout 1886, Governor Frederick Napier Broome instigated police investigations into the Reverend Joh Brown. Gribble's charges of Aboriginal abuse in the northwest following their extensive serialisation in the press, but with little effect.Footnote 125 When Gribble appealed directly to the secretary of state about the government's failure to “remove” such abuses, the governor responded with underwhelming assurance that each case which came “to the knowledge” of the government was investigated, and although such cases occurred “from time to time,” he believed Aboriginal people “enjoy as full a measure of protection as can at present be given to them.”Footnote 126 Into the twentieth century, occasional complaints about violence against Aboriginal people in the northwest received short notice.Footnote 127 One Wyndham resident, who in 1917 tried and failed to achieve a neutral inquiry into the police shooting of an Aboriginal man, stated that it was “useless bringing the matter before the government or Police as they only send to the accused man for a report and accept it.”Footnote 128 As “the natives can be shot down with impunity,” he concluded, it “is no use continuing the farce [of the law] any longer.”
“Sympathy for the Poor Blacks”
Although the trials of Europeans responsible for Aboriginal deaths only led to the death penalty once in the colony's history, the prosecution of such cases seemed to arise often enough to fuel an aggressive public discourse of settlers' disability and Aborigines' advantage before the law. This kind of sentiment was visible across Australia's colonies whenever Europeans were pulled into the courts as defendants. After NSW's Myall Creek murder trials in 1838, the colonial press without apparent irony lamented the absence of “equal laws and equal justice” for whites who did no more than protect themselves from Aboriginal aggressions.Footnote 129 As Reece describes it, settler grievance about the trial ultimately served less to discourage violent vigilantism than to encourage the secrecy that surrounded it.Footnote 130 Similar grievance about the prosecution of settlers for Aboriginal murder was expressed in other colonies.Footnote 131 In Western Australia, however, where the prosecution of settlers for violence against Aborigines took place with more consistent regularity, such public sentiment built steadily over the decades, fueled by a belief that from the beginning, Western Australia had treated Aboriginal people to the law's protection.
This feeling was evident from the colony's earliest settler prosecution in 1842, and was tied to settler complaints about the lack of adequate government support of pastoral security in outlying districts. The government afforded “scarcely one tittle of assistance to the unfortunate settler,” wrote one correspondent, whereas Aboriginal offenders were routinely acquitted of their crimes.Footnote 132 At the time this correspondent penned his letter, settlers would have regularly observed the acquittal of Aboriginal defendants in inter se cases. However, even as the decades passed and Aboriginal people were overwhelmingly prosecuted and sentenced as defendants in the courts, complaints continued to appear regularly in the colonial press that settlers received none of the law's benefits, whereas Aborigines received all of its clemency.Footnote 133
The prosecution of landowner and Justice of the Peace Cleve Lockier Burges in 1872 particularly served to excite such feelings, voiced in the colonial press as a perception that the law “protects the Blacks from the oppression of the whites, but affords no protection to the latter from the aggressions and depredations of the natives.”Footnote 134 Such sentiments, however, were not confined to any one case; they were more protractedly tied to the continuing evolution of a volatile settler frontier in Western Australia's north, decades after Aboriginal people across Australia's colonies were officially considered amenable to British law. An “erroneous policy” pertained in the colony, complained another correspondent in the 1860s, which “spared” Aboriginal offenders to the degree of encouraging them to believe they could “kill the whites, and they will not be hung for it.”Footnote 135 What is particularly notable about such settler sentiment of the law's bias in favor of Aboriginal people is that it continued to pour scorn on a perceived overzealous “doctrine of Protection” well after the humanitarian policies of the 1840s had waned, and a dedicated Aboriginal protectorate had ceased to exist.Footnote 136 The government's enthusiasm for Aboriginal legal protection worked so far against settlers' interests, claimed one correspondent in 1882, as to give credibility to the idea that “the Governor would let the natives shoot us!”Footnote 137
The actual imbalances within the law were not lost on some correspondents to the press. Despite the official claim of legal equality, wrote one, “no such equality exists … our superiority is but one of force [which is] at variance with the true principles of justice.”Footnote 138 Another correspondent suggested that the only benefits to Aborigines of being stamped with “the dignity of British subjects” is that they have “free quarters in our jails, and are duly hanged … with all the solemnities of the law.”Footnote 139 Such views, however, were considerably less common than the circulating sentiment, particularly in the north, that the government encouraged settlers “to take up lands,” left them without resources to manage “as best they can,” then stepped forward “ret hot with sympathy for the poor blacks.”Footnote 140 In 1889, brothers Arthur and Gordon Shaw, station owners on the Murchison River, and their foreman Thomas Mead, were fined for various cases of Aboriginal assault and charged with two counts of Aboriginal murder.Footnote 141 Although they were all discharged, local settlers still held a public meeting to record their disapproval at the “unwarranted manner in which they have been dealt with” by the law and its “undue severity in treating the whites in connection with the natives.”Footnote 142 Ultimately, it seemed that resentment arose from the officially held principle that the law would punish settler crimes against Aboriginal people, despite the practical reality that meaningfully it did not.
Conclusion
Across Australia's colonies after the 1830s, the law's disciplinary and protective roles towardsAboriginal subjects of the Crown were intended to work as two sides of the same coin, but although Aboriginal people felt the full weight of the law's punishment, there was little fulfilment of its promise to protect them.Footnote 143 Although only a minority of settlers prosecuted for violent offences against Aborigines were actually acquitted in colonial Western Australia, the pattern of sentences awarded gave little force to the colony's founding promise that such crimes would be punished “as if the same had been committed against any other of His Majesty's subjects.” Some were awarded a fine, and of those who received a term of imprisonment, John Jones' sentence of life transportation was unusual; most served a sentence that ranged from 3 months to 5 years.Footnote 144 Of the cases ini which respected settlers came before the court, only Cleve Lockier Burges served a sentence of 1 year's imprisonment, to the outrage of many in the colony.
That Western Australia proved to be little different from its sister colonies in failing to provide adequate legal redress to Aboriginal victims of settler violence is perhaps not surprising. What is more notable about the colony's judicial response to Aboriginal–settler conflict is that from its early years, it seemed to achieve a wider reach over the problem of settler violence than did other Australian colonies, demonstrated in the relatively high numbers of settlers tried and sentenced for crimes against Aborigines in the critical decades after foundation. This judicial reach might be explained by a mixture of circumstances. With South Australia, Western Australia was distinctive from NSW and its jurisdictions in being founded as a free colony relatively late in Australia's history of British settlement, at a time when the rise of Colonial Office concern for the status of Aboriginal peoples across Britain's Empire led to clearer obligations on colonial governments to extend to them the law's protection. However, less parallel to South Australia is the fact that Aboriginal people in Western Australia were earlier brought within the colonial economy, bringing their encounters with settlers also within judicial notice. As settlement spread into more dispersed frontiers, it was accompanied by an infrastructure of government in the form of resident magistrate offices and local courts, which again maintained the appearance of legal oversight.
Ultimately, this level of judicial reach did not ensure Aboriginal legal protection, but two conclusions emerge from the fact that it appeared to do so. First, the superficial sense that the law functioned to protect Aboriginal people seemed to serve in producing an enduring public discourse that settlers labored under a form of legal surveillance from which Aboriginal people routinely escaped. Quite possibly, this helped to create and maintain an aggressive “frontier mentality” that lasted well after settlement was secured, most especially in the north.Footnote 145 Second and most important, the capacity of the legal system to capture as many cases of violence against Aboriginal people as it did, yet not to award strong judicial punishment for them, suggests the practical limitations that shaped the colonial judicial network itself. Law in Britain's settler states, Paul McHugh has written, was subject to a “messy process of invention, reinvention and improvisation.”Footnote 146 And as Lauren Benton has more recently argued, even after the jurisdiction of British law seemed officially settled, the opening of vast new settler frontiers later in the nineteenth century continued to entail flexible applications of the law, ones that “defied easy categorisation and seemed even to require the [law's] occasional suspension.”Footnote 147
Such flexibility of legal application is evident in the case of colonial Western Australia where settler violence was prosecuted with more regularity than elsewhere, yet was either moderated or accommodated in the courts. To the extent that the law's failure to regulate violence was a shared trend across Australia's colonies, the factors that enabled settlers to “get away” with Aboriginal murder were not just the settler lobby's strength, or the indifference of individual officials, or the problems of distance and silence that framed the settler frontier. More pointedly, they were symptomatic of how securely the law itself was bound to the maintenance and protection of settler sovereignty, to use Lisa Ford's term, as it became consolidated in the decades after Aboriginal people were included as legal subjects of the Crown. Libby Connors has suggested that it is in the courts “that much of the social history of colonialism is revealed and the successful imposition of colonial rule through law imposed.”Footnote 148 Insofar as this was so, the terrors of the law remained all too predictably the preserve of Aboriginal people, in colonial Western Australia as in its sister colonies. Although its courts of justice repeatedly reiterated the view that black and white shared the same law, they were not ultimately prepared to ensure, as The Inquirer put it in 1853, that they should “meet the same mercy, or share the same doom.”
Appendix. Europeans Indicted for Violent Crime Against Aborigines Until 1886
