HOW THE LAWS OF ENGLAND AFFECT THE NATIVES.
The native population of our colony are said to be a much more peaceable and harmless race than those of any other part of Australia. In the early days of the settlement they caused a good deal of trouble, and were very destructive to the pigs and sheep of the colonists; but a little well-timed severity, and a steadily pursued system of government, soon reduced them into well-conducted subjects of the British Crown. There appears, however, to be little hope of civilizing them, and teaching them European arts and habits. Those of mature age, though indolent, and seldom inclined to be useful in the smallest degree, are peaceful in their habits; and when in want of a little flour will exert themselves to earn it, by carrying letters, shooting wild ducks with a gun lent to them, driving home cattle, or any other easy pursuit; but they appear to be incapable of elevation above their original condition. Considerable pains have been bestowed (especially by the Wesleyans) upon the native children, many of whom are educated in schools at Perth, Fremantle, and other places, in the hope of making them eventually useful servants to the settlers. Most of these, however, betake themselves to the bush, and resume their hereditary pursuits, just at the age when it is hoped they will become useful. Very frequently they die at that age of mesenteric disorders; and very few indeed become permanently civilized in their habits.
Nothing could be more anomalous and perplexing than the position of the Aborigines as British subjects. Our brave and conscientious Britons, whilst taking possession of their territory, have been most careful and anxious to make it universally known, that Australia is not a conquered country; and successive Secretaries of State, who write to their governors in a tone like that in which men of sour tempers address their maladroit domestics, have repeatedly commanded that it must never be forgotten "that our possession of this territory is based on a right of occupancy."
A "right of occupancy!" Amiable sophistry! Why not say boldly at once, the right of power? We have seized upon the country, and shot down the inhabitants, until the survivors have found it expedient to submit to our rule. We have acted exactly as Julius Caesar did when he took possession of Britain. But Caesar was not so hypocritical as to pretend any moral right to possession. On what grounds can we possibly claim a right to the occupancy of the land? We are told, because civilized people are justified in extending themselves over uncivilized countries. According to this doctrine, were there a nation in the world superior to ourselves in the arts of life, and of a different religious faith, it would be equally entitled (had it the physical power) to the possession of Old England under the "right of occupancy;" for the sole purpose of our moral and social improvement, and to make us participants in the supposed truths of a new creed.
We have a right to our Australian possessions; but it is the right of Conquest, and we hold them with the grasp of Power. Unless we proceed on this foundation, our conduct towards the native population can be considered only as a monstrous absurdity. However Secretaries of State may choose to phrase the matter, we can have no other right of occupancy. We resolve to found a colony in a country, the inhabitants of which are not strong enough to prevent our so doing, though they evince their repugnance by a thousand acts of hostility.
We build houses and cultivate the soil, and for our own protection we find it necessary to declare the native population subject to our laws.
This would be an easy and simple matter were it the case of conquerors dictating to the conquered; but our Secretaries of State, exhibiting an interesting display of conscientiousness and timidity, shrink from the responsibility of having sanctioned a conquest over a nation of miserable savages, protected by the oracles at Exeter Hall, and reject with sharp cries of anger the scurrilous imputation. Instead, therefore, of being in possession by right of arms, we modestly appropriate the land to ourselves, whilst making the most civil assurances that we take not this liberty as conquerors, but merely in order to gratify a praiseworthy desire of occupying the country. We then declare ourselves seised in fee by right of occupancy. But now comes the difficulty. What right have we to impose laws upon people whom we profess not to have conquered, and who have never annexed themselves or their country to the British Empire by any written or even verbal treaty?
And if this people and country be not subject to our rule by conquest, and have never consented or desired (but the contrary) to accept of our code of laws, and to submit themselves to our authority, are they really within the jurisdiction of the laws of England—'especially for offences committed inter se?'
Such is the anomalous position in which the native inhabitants are placed through the tender consciences of our rulers at home. A member of a tribe has been speared by one of another tribe, who happens to be patronized by a farm-settler, and is occasionally useful in hunting-up stray cattle. The friends of the dead man proceed to punish the assassin according to their own hereditary laws; they surprise him suddenly, and spear him. The farmer writes an account of the fact to the Protector of Natives at Perth; and this energetic individual, rising hastily from dinner, calls for his horse, and endowing himself with a blue woollen shirt, and a pair of dragoon spurs, with a blanket tied round his waist, fearlessly commits himself to the forest, and repairs to the scene of slaughter.
He learns from the mouth of the farm-settler, that the facts are really what he had been already apprised of by letter; and then, having left word that the offender may be caught as soon as possible, and forwarded to Fremantle gaol, he hastens back again to his anxious family; and the next morning delivers a suitable report to his Excellency the Governor of all that he has performed. In course of time the native is apprehended—betrayed by a friend for a pound of flour—and brought to the bar of justice. His natural defence would be that he certainly slew an enemy, as he is accused of having done, but then it was a meritorious and necessary act; he glories in it; his own laws required that he should slay the murderer of his relative; and his own laws, therefore, accuse him not. What are English customs, prejudices, or laws to him? He is not a British subject, for he is not the inhabitant of a conquered country (as English governors tell him), nor has he, or any of his tribe or complexion, consented or wished to be placed under the protection of our laws. Why, then, should he be violently dragged from the arms of his 'wilgied' squaws, and his little pot-bellied piccaninnies, and required to plead for his life in the midst of a large room filled with frowning white faces? Much obliged is he to the judge, who kindly tells him, through the interpreter, that he is not bound to convict himself, and need not acknowledge anything that may operate to his disadvantage in the minds of the jury.
The unfortunate savage disregards the friendly caution, and heeds it not; he maintains, stoutly, that he 'gidgied' Womera through the back, because Womera had 'gidgied' Domera through the belly. He enters into minute details to the gentlemen of the jury of the manner in which these slaughters were effected, and describes the extent and direction of the wounds, and every other interesting particular that occurs to him. The gentlemen of the jury, after duly considering the case, return (of necessity) a verdict of "Wilful murder," and the judge pronounces sentence of death—which is afterwards commuted by the Governor to transportation for life to the Isle of Rottnest.
Now if our laws had been imposed upon this people as a conquered nation, or if they had annexed themselves and their country to our rule and empire by anything like a treaty, all these proceedings would be right and proper. But as it is, we are two nations occupying the same land, and we have no more right to try them by our laws for offences committed 'inter se', than they have to seize and spear an Englishman, according to their law, because he has laid himself open to an action of 'crim. con.' at the suit of his next-door neighbour.
Look at the question in another point of view. Is jurisdiction a necessary incident of sovereignty? Do a people become subject to our laws by the very act of planting the British standard on the top of a hill? If so, they have been subject to them from the days of Captain Cook; and the despatches of Her Majesty's Secretaries of State, declaring that the natives should be considered amenable to our laws for all offences which they might commit among themselves, were very useless compositions. We claim the sovereignty, yet we disclaim having obtained it by conquest; we acknowledge that it was not by treaty; we should be very sorry to allow that it was by fraud; and how, in the name of wonder, then, can we defend our claim? Secretaries of State have discovered the means, and tell us that Her Majesty's claim to possession and sovereignty is "based on a right of occupancy." Jurisdiction, however, is not the necessary incident of territorial sovereignty, unless that sovereignty were acquired by conquest or treaty. We question, indeed, whether it is the necessary consequence even of conquest—the laws of the conqueror must first be expressly imposed. The old Saxon laws prevailed among the people of England after the Conquest, until the Norman forms were expressly introduced.
It is well known in colonies, that the laws propounded in certain despatches are more powerful, and more regarded and reverenced, than any others, human or divine. A kind of moral gun-cotton, they drive through the most stupendous difficulties, and rend rocks that appeared to be insuperable barriers in the eyes of common sense or common justice. Judges are compelled to yield to their authority, and do violence to their own consciences whilst they help to lay the healing unction to those of their lawgivers.
The most convenient and the most sensible proceeding, on the part of our rulers at home, would be to consider this country in the light of a recent conquest. Instead of declaring, as now, that the natives are to be treated in every way as British subjects—thus making them amenable to the English law in all its complexity, whilst their own laws and habits are so entirely opposite in character—it would be better to pass a few simple ordinances, in the nature of military law, which would be intelligible to the natives themselves, and which would avoid the difficulty of applying the cumbrous machinery of our criminal code to the government of savages who can never be made to comprehend its valuable properties. It is most essential that the natives who commit offences against the persons or property of the whites should be brought to punishment. At the same time it is most difficult to establish the guilt of the party accused, according to the strict rules of legal evidence. The only witnesses, probably, were natives, who understand not the nature of an oath, and who lie like the Prince of Darkness whenever they have wit enough to perceive it is their interest to do so. In general, the only chance of obtaining a legal conviction is through the confession of the prisoner; and as it is most desirable that he should be convicted, when there is no moral doubt of his guilt, as his acquittal would be looked upon as a triumph by his fellows, and make them more daring in their opposition to the law, very little delicacy is used in obtaining that confession.
Were the prisoner defended by counsel, who did his duty to his client, without regard to the interests of the public, the guilty person would escape in almost every instance. As it is, the law is outraged, and a trial by jury made an occasion of mockery and gross absurdity, in order to obtain a conviction which is necessary to the welfare of the white population. Nothing would be more easy than to legislate for the proper government of the Aborigines; but you must begin 'de novo', and throw aside with scorn the morbid sentimentality that refuses to look upon those as a conquered people, whom, nevertheless, it subjects to the heavy thraldom of laws which they are not yet fitted to endure.