Indigenous Crime and Settler Law

White Sovereignty after Empire

H. Douglas, M. Finnane

• Publisher: Palgrave Macmillan
• Year: 2012
• Print ISBN: 9780230316508
• eBook ISBN: 9781137284983
• Topic: Droit
• Subtopic: Droit comparé

In a break from the contemporary focus on the law's response to inter-racial crime, the authors examine the law's approach to the victimization of one Indigenous person by another. Drawing on a wealth of archival material relating to homicides in Australia, they conclude that settlers and Indigenous peoples still live in the shadow of empire.

1

‘Troublesome Friends and Dangerous Enemies’

Before British law prevailed there was a protracted struggle over what it might possibly mean to assert jurisdiction over the Indigenous peoples of Australia. If jurisdiction was ‘clearly an inseparable incident of sovereignty’, as magistrate W H Mackie put it in a Perth court in 1842, what were the implications for the ‘savage tribes’ who occupied the country? The assertion of law’s authority depended on two instruments: one linguistic, the other physical. In the colonial encounter, these instruments were exercised on both sides. Aboriginal peoples used force tactically, and negotiated terms of engagement with invading settlers where they could. On their side, settlers pondered the application of their own laws, argued between themselves over the development of a policy towards the ‘natives’, but rarely hesitated to use force when their own presumptions of property and personal rights were threatened.

To put the colonial encounter in these polarized terms is an abstraction from a complex and constantly shifting reality. Depending on local conjunctions of time and space across the scattered settlements of the continent and its islands, these were not encounters between cohesive groups of Indigenous tribes and unified settler communities. Settlers were divided – convicts, free immigrants, military, governors. So too were Indigenous peoples – jealous of their own country, accustomed in many places to constant warring, seeking advantage of alliances with settlers to advance or protect their own interests.

Chronological precedent and judicial authority have conventionally demanded that Australian histories of the legal status of Aboriginal peoples start with Sydney and New South Wales (NSW) (Castles, 1982; Kercher, 1995; Ford, 2010). That colony was the first to boast a Supreme Court, which declared in the case of R v Murrell and Bummaree in 1836 that British law ran in the territory of NSW, for Aborigines as British subjects and for settlers or any others (Kercher, 1998a; R v Murrell and Bummaree (1836)). Significant as that judgment appears in retrospect, through its considered reasoning, and through its force as common law precedent captured by its inclusion in the NSW law reports published only late in the nineteenth century (Kercher, 1998b), its authority was built only slowly in the imperfect conditions of the colonial and imperial legal worlds. Colonial law was built on the ground, in the reasoning and decisions of actors remote from the institutional solidity of the imperial centre in London, or its colonial outpost in Sydney. To capture this reality, to de-centre our concepts of law’s authority in Australia, we can begin to trace the contours of the Australian encounter in law and order by turning to the much more condensed experience of another colony, that of Western Australia.

Western Australia was established originally as a Crown colony on the Swan River in 1829. An earlier settlement at King George’s Sound had been founded for strategic defence purposes in 1826 under the administration of New South Wales – it was transferred to the Western Australian administration in 1831. Tempting as it might be to treat the colonies of Australasia as though they were all destined to be part of the one nation state, the distance of the west from the east, and the constitutional distinctions between the colonies as they developed during the nineteenth century constitute an important reason for distinguishing the western colonial experience. Although much was shared across the continent, each colony encountered Indigenous peoples of distinctive languages and cultural identity.

At Swan River, the uneasy explorations of first contact gave way within a few years to sporadic bloody encounters, including one major encounter whose grossly unequal consequences spelled out the settler colony’s insistence on resorting to terror as a backdrop to other less violent means of asserting ownership of the land. In spite of the signals sent by the Battle of Pinjarra (1833), it was almost another decade before Crown sovereignty was consolidated through the extension of criminal jurisdiction over Indigenous inter se offences (Hunter, 2004). In the meantime, Western Australian settlers lived in a space of shared jurisdiction, much as its recent historians have described for Sydney in its early decades (Clendinnen, 2003; Karskens, 2009; Ford, 2010). As in Sydney and its surrounds, the signs of overlapping jurisdiction were evident in the daily life of the streets, and in the discourses of those who pondered the future of relations between whites and blacks. But whereas in Sydney half a century elapsed before settler jurisdiction was formally settled, at Swan River that process was completed in little more than a decade.

The rapidity of events means that we find a concentration of historical experience, as Aborigines and settlers worked out the terms of their engagement at the Swan River and its environs. Our knowledge of the foundationsetting of colonial legal order is almost entirely dependent on the writings of those few diarists, letter writers and officials who took the trouble to describe these first colonial encounters. Some of them, well-educated professionals seeking a prosperous future in a new colony, were more than acute observers. They were interlocutors, reflective and curious. An exemplar was Ulsterman George Fletcher Moore, born in County Tyrone in the turbulent Ireland of 1798 (Cameron, 2000; Moore, 2006). He came from a prosperous background in land and commerce. After taking a law degree at Trinity College Dublin in 1820, Moore practised for six years in the Irish north-west circuit. Hearing of the prospective Swan River colony in 1828 he applied without success to the Colonial Office for a legal position in the colony. Undeterred, he embarked for Swan River as a self-funded emigrant, hoping to establish himself in a new land. Like other colonies of the second British empire (Belich, 2009), the Swan River settlement was the product of considerable ‘boosting’ by the London newspapers selling its extraordinary prospects. Moore arrived at Swan River in October 1830, just 16 months after the colony had been proclaimed by its first Governor, James Stirling. The colony’s administrative structure took some time to shape, given the imperial government’s indifferent engagement in the enterprise (Statham-Drew, 2003a). Within 18 months of his arrival, however, Moore was appointed the first commissioner to hear civil disputes. When Stirling reconstructed the legal institutions two years later, Moore ceded this role to William Mackie (a magistrate already in charge of criminal matters at Quarter Sessions) and was instead appointed to the position of Advocate-General. That role entailed his responsibility for providing legal advice to the Executive Council, drafting legislation for the Legislative Council as well as conducting all Crown cases in the local courts. His greatest influence in the colony, concludes his biographer, ‘derived from his role as interpreter of Colonial Office instructions and as drafter of colonial legislation’ (Cameron, 2000, p. 25). Simultaneously, Moore had acquired a significant land-holding on the Upper Swan, where he established later a fine homestead named Millendon, an Aboriginal name for the area.

Like so many others in the small Perth elite of the first decade of settlement, Moore was thus grounded in both government and land. Establishing himself in country which was still occupied by its Indigenous owners, Moore was nevertheless exceptional in his community in the degree of his reflective engagement with the conditions of occupation, a disposition noted by many historians of the early years (Hasluck, 1970; Hallam, 1983; Cameron, 2000). Conscious of his occupation of country that belonged to others, like Governor Stirling he hoped for a conciliatory relation to the ‘natives’. But when hard times pressed on the colonists, and food became scarce, and Indigenous hunting and plant resources were replaced by sheep and cows, relations between the newcomers and the Aborigines were increasingly aggravated (Hallam, 1991). Moore’s writing traces the changing climate of opinion, which was never in one direction only, for both settlers and Aborigines remained in constant communication through often violent encounters. His journals also make evident the struggle within himself over how to react when precious resources, such as the few pigs he had, were lost to the Aborigines. In striking detail he – a settler who immediately started listening to what the natives were saying, in their languages – also captured the attempts of local Indigenous people to steer a way through the dangerous shoals of violent conflict to achieve some kind of accommodation with the new settlers.

White and black

In Moore’s perception, relayed home to Ireland in March 1831, ‘the natives … are neither so despicable a race nor so few in numbers as was at first supposed’. In spite of the spearing of one of his servants (which he regarded as not an innocent collision on the whites’ part), he considered that ‘we are on very good terms with them’. But in the same month Moore also recorded that his female servant had taken to warning off Aboriginal visitors to the farmstead with the aid of a gun. Moore found that the Aborigines rarely visited when he was present – ‘they are harmless and friendly when left alone but I think they watch and take advantage of the absence of the master’ (Moore, 2006, pp. 13, 14, 24). Although the initial signs were that the ‘natives’ wanted ‘plunder’, by October there were more serious threats of stock-killing on a wide scale and Moore announced his determination to serve in a planned ‘body of yeomanry cavalry’ to deal with the threat to the settler farms (Moore, 2006, p. 55).

Yet there was reason for scepticism about the perceptions of threat. After his appointment as Commissioner of the Civil Courts in Western Australia (February 1832) he spent more time in Perth. On one evening in June 1832 he was alarmed to hear a ‘great firing of guns with ball’. A soldier’s report that the barracks was being attacked by about ‘50 natives’ turned out to be what Moore described as a ‘cock and bull story’. At the barracks, Moore heard the accounts first hand: ‘There was much noise and talk, but we saw no natives & on being questioned they [the soldiers] had seen them & fired upon them without any provocation but their [the natives] calling and shouting.’ (Moore, 2006, p. 121) All the same, the sense of rising conflict could not be avoided. A fortnight later Moore was called to conduct an inquest on a white servant who was shot accidentally during a punitive raid on a party of Aborigines suspected of stealing cattle. A week later, at the small settlement of Guildford, he attended a ‘meeting of Settlers to take into consideration what is to be done about the natives. Large meeting, strong expressions, resolutions that something must be done by Govt or settlers must abandon the colony as they cannot keep stock. Heard on my way down that I am a fellow sufferer. Some of my pigs left in the bush, wounded by spears.’ (Moore, 2006, p. 127)

The settlers talked of revenge. From this moment Moore was also conscious, like others around him, of the reality of the conditions they were in. After discovering the severed head of one of his pigs in the bush he reflected: ‘I dare say the natives think they have as good a right to our pigs as we to the kangoos [sic], and the argument is a strong one, but if we caught them in the act of killing I would not answer for the force of it.’ Such muted recognition of reciprocal rights was overwhelmed by the settlers’ sense of grievance against a government that ignored their vulnerable status: ‘We are gravely told that the military are not to be called out unless in case of a systematic attack. Was ever such a thing heard of by natives[?]’ (Moore, 2006, p. 127) Such anxieties were aggravated by the perilous condition of Swan River at a time of severe food shortages, and in the context of the settlers’ demands (agitated by Moore among others) for the return of the Governor to London to argue the case for a more solid basis of support for the fledgling colony (Statham-Drew, 2003a; Moore, 2006, p. 128).

The succeeding 12 months saw a dramatic escalation in conflict between settlers and the Indigenous owners of the lands they sought to occupy. The causes were little understood and only slowly apprehended. In March 1833, Moore confessed himself both anxious about possible attacks and bemused by the causes since ‘we are on good terms with them everywhere’. By now he was well aware of the actions of Yagan, the famous Aboriginal warrior who had been captured after a series of attacks on settlers, banished to Carnac Island off the coast, and had then escaped. Moore suspected (wrongly as he later discovered) that Yagan had been one of those who had thrown a spear at his own farmhouse (Moore, 2006, p. 190).

While the conflict escalated, the settlers were also coming to know their Aboriginal contacts more intimately. A turning point was the visit to Perth in January 1833 of two men from King George’s Sound, Manyat and Gyallipert. British settlement of their country pre-dated the Swan River colony – it had been founded as a military garrison outpost of NSW in 1826. A policy of constructive contact between the military and other settlers and the King Ya-nup people of that region had resulted in a more amicable settlement of the region than had proved the case in Perth (Shellam, 2009). Hoping to take advantage of this experience, the authorities had brought Manyat and Gyallipert to Swan River in an attempt to conciliate the Perth ‘tribes’. There they were introduced to Yagan, a meeting the Governor hoped would result in Yagan stopping the attacks on the settlers. The experiment was of mixed success, owing to language difficulties. For Moore, however, the introduction provided a new opportunity to learn about the language and culture of the people whose lives were so intertwined with the fate of the settler colony. A few weeks later, he joined the Governor’s party returning to King George’s Sound with the visitors. There he witnessed the local storekeeper perform an admonitory ceremony which conveyed the Governor’s desire that killing between black and white men cease, and that killing between black men should also cease. Moore recorded the King Ya-nup pidgin in which the storekeeper conveyed the message; later he would help compile and fund the publication of a dictionary of Aboriginal language in use in the region (Moore, 2006, pp. 203–4; Shellam, 2009, pp. 154–76).

These experiences, meeting and talking with Aboriginal people, seeing them in their own country, and interacting with other whites in a context of negotiation produced a new sense of inquiry in Moore. He became one of those who started to document what they could learn of Indigenous culture, language, laws, perceptions. From such encounters, emerged the beginnings of a construction of Aboriginal life in translation – in turn becoming available, fitfully, to law in its everyday operation, shaping decisions about response to Aboriginal violence and depredations, but also about whether and how to prosecute and sentence Aboriginal people for offences against their own. A month after his return from King George’s Sound, Moore exhibited an emerging respect for what he was learning – ‘some of them are very intelligent and observing, and capable of reflecting on the difference of our manners in a way which you could scarcely expect’. Here also he both noted and attempted to conceptualize the significance of inter-Aboriginal conflict.

Though they [at King George’s Sound] never molest the white people here, they are almost constantly at feud with one another, tribe against tribe. If one be killed, or even, it is said when one dies a natural death, it is their religion to sacrifice some victim from another tribe, perhaps to preserve the ‘balance of power’. This must greatly tend to thin their numbers and keep them at perpetual strife.

Like many before and after him, Moore found it difficult to determine whether such practices belonged to a domain of religion, law or politics, though its consequences in death and injury were alarming. ‘My old friend Manyat’ reported Moore, had expressed his distress after an ‘unusually deadly business of spearing’, in words that had amounted to saying that ‘the black men would exterminate themselves and white men would grow up in numbers to fill their places’ (Moore, 2006, p. 212).

Moore’s experience and dialogue opened him to the possibility of seeing the world from the other side. After Yagan was outlawed following further killings, Moore was startled one day to find himself visited by Yagan and two other men. On Moore’s account, he and Yagan engaged in a ‘long, angry and wholly unexpected conference’ in which Yagan defended himself against the charge of killing on the grounds that his brother had in turn been shot by white men. ‘I confess he had almost as good of the argument as I had’ Moore wrote later. His admiration was evident in Moore’s account of Yagan’s performance.

Yagan used emphatic language and graceful gesture with abundant action. I was heated & spoke in the same way. Sometime he advanced boldly & leaning with his left arm familiarly upon my shoulder he delivered a ‘recitative’ which I regret I could not understand, but the sound of it was as if we had not acted peaceably & fairly towards them.

After further angry words and threats on both sides (and Moore’s unsuccessful attempt to avoid confirming the uncomfortable truth that Aboriginal outlaw and Yagan’s father, Midgegoroo, had been summarily executed at Fremantle), they nevertheless ‘parted friends, though it was strictly my duty to have endeavoured to take him dead or alive’ (Hasluck, 1970, p. 168; Moore, 2006, pp. 235–6).

Moore’s hopes for conciliation were tested sorely by the continuing violence on both sides. He suspected that some he had befriended and supported were responsible for taking his best sow pig, action he could not comprehend.

It is hard to say what is the truth; we comprehend them so imperfectly … I wish it was either peace or war between us, but now we must not touch them for, by proclamation, they are declared under the protection of the law as British subjects. (Moore, 2006, p. 243)

‘We comprehend them so imperfectly’ – that was the nagging thought troubling this most reflective of settler observers of the world around them. As Sylvia Hallam has shown, one of the ways in which comprehension fell short was ignorance of Aboriginal kinship (in which matrilineal rather than patrilineal descent was crucial), gender relations and resource use that shaped Indigenous possibilities of survival, and equally structured the growing conflict with settlers. Moore was equally observer of the varied Aboriginal uses of the lands occupied by the settlers, and determined defender of settler prerogatives. When he and others invoked the aid of police and soldiers to drive away gatherings of Aboriginal families seeking to harvest yams in their traditional grounds, they blundered into a culture whose forms they discerned only dimly, or else pragmatically ignored. As Hallam concludes, ‘Moore does not seem to have realized that the need for flour and bread resulted less from declining opportunities for men to hunt than from a decade in which European fences, sheep, crops, and guns had deprived Aboriginal women of access to the land to which they held rights and the carbohydrate staples they used to harvest there.’ (Hallam, 1991, p. 52)

Thoughts of vengeance were never far away even as the settlers debated what to do. In his musings after another loss of stock, Moore wished ‘there had been a little arsenic for their dear sakes’, but added later that ‘it is well we not meet them when the passion is on us’. His neighbour, Henry Bull wished ‘still to feed the natives and I agree with him that if we do not make an effort to come to a friendly understanding and agreement with them we must give up having stock for we are not able to drive them away so as to secure ourselves, for nothing short of extermination will do that’. By now, June 1833, only four years after the colony’s foundation, the stark reality of contested occupation was evident: ‘Each tribe has its distinct ground and they will rather stick to their own ground, dispute its possession, and take their revenge on the intruders than fall back on another tribe and have to fight their way inch by inch with them.’ (Moore, 2006, p. 245)

Like others before and after him, here and in other colonies, Moore was coming to articulate a vision of the future in which two very different peoples would occupy the lands. Extermination was unacceptable, as unthinkable as departure. Almost immediately after this discussion with Bull, another...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of Cases
• Table of Legislation
• Preface
• Maps
• Introduction: Histories
• 1 ‘Troublesome Friends and Dangerous Enemies’
• 2 Amenable to the Law
• 3 The Exercise of Jurisdiction
• 4 A Question of Custom
• 5 Equality before the Law
• 6 Towards Formal Recognition
• 7 ‘Benign Pessimism’: A National Emergency
• Conclusion: Sovereignties
• Bibliography
• Index