The opinion of Judge Willis upon this point may be gathered from the following extract, from an address to a native of New South Wales, when passing sentence of death upon him:—
"The principle upon which this court has acted in the embarrassing collisions which have too frequently arisen between the Aborigines and the white Europeans, has been one of reciprocity and mutual protection. On the one hand, the white man when detected (WHICH I FEAR SELDOM HAPPENS), has been justly visited with the rigour of the law, for aggressions on the helpless savages; and, on the other, the latter has been accountable for outrages upon his white brethren. As between the Aborigines themselves, the court has never interfered, for obvious reasons. Doubtless, in applying the law of a civilized nation to the condition of a wild savage, innumerable difficulties must occur. The distance in the scale of humanity between the wandering, houseless man of the woods, and the civilized European, is immeasurable! FOR PROTECTION, AND FOR RESPONSIBILITY IN HIS RELATION TO THE WHITE MAN THE BLACK IS REGARDED AS A BRITISH SUBJECT. In theory, this sounds just and reasonable; but in practice, how incongruous becomes its application! As a British subject, he is presumed to know the laws, for the infraction of which he is held accountable, and yet he is shut out from the advantage of its protection when brought to the test of responsibility. As a British subject, he is entitled to be tried by his PEERS. Who are the peers of the black man? Are those, of whose laws, customs, language, and religion, he is wholly ignorant—nay, whose very complexion is at variance with his own—HIS peers? He is tried in his native land by a race new to him, and by laws of which he knows nothing. Had you, unhappy man! had the good fortune to be born a Frenchman, or had been a native of any other country but your own, the law of England would have allowed you to demand a trial by half foreigners and half Englishmen. But, by your lot being the lowest, as is assumed, in the scale of humanity, you are inevitably placed on a footing of fearful odds, when brought into the sacred temple of British justice. Without a jury of your own countrymen—without the power of making adequate defence, by speech or witness—you are to stand the pressure of every thing that can be alleged against you, and your only chance of escape is, not the strength of your own, but the weakness of your adversary's case. Surrounded as your trial was with difficulties, everything, I believe, was done that could be done to place your case in a proper light before the jury. They have come to a conclusion satisfactory, no doubt, to their consciences. Whatever might be the disadvantages under which you laboured, they were convinced, as I am, that you destroyed the life of Dillon; and as there was nothing proved to rebut the presumption, of English law, arising from the fact of homicide being committed by you, they were constrained to find you guilty of murder. There may have been circumstances, if they could have been proved, which would have given a different complexion to the case from that of the dying declaration of the deceased, communicated to the Court through the frail memory of two witnesses, who varied in their relation of his account of the transaction. This declaration, so taken, was to be regarded as if taken on oath, face to face with your accuser; and, although you had not the opportunity of being present at it, and of cross-examining the dying man, yet by law it was receivable against you."
In vol. ii. p 380, Captain Grey says:—
"I have been a personal witness to a case in which a native was most undeservedly punished, from the circumstance of the natives, who were the only persons who could speak as to certain exculpatory facts, not being permitted to give their evidence."
Under the law lately passed in South Australia, the evidence of natives would be receivable in a case of this kind, in palliation of the offence. Although it is more than questionable how far such evidence would weigh against the white man's oath; but for the purpose of obtaining redress for a wrong, or of punishing the cruelty, or the atrocity of the European [Note 115 at end of para.], no amount of native evidence would be of the least avail. Reverse the case, and the sole unsupported testimony of a single witness, will be quite sufficient to convict even unto death, as has lately been the case in two instances connected with Port Lincoln, where the natives have been tried at different times for murder, convicted, and two of them hung, upon the testimony of one old man, who was the only survivor left among the Europeans, but who, from the natural state of alarm and confusion in which he must have been upon being attacked, and from the severe wounds he received, could not have been in an advantageous position, for observing, or remarking the identity of the actual murderers, among natives, who, even under more favourable circumstances are not easily recognizable upon a hasty view, and still less so, if either they, or the observer, are in a state of excitement at the time. Is it possible for the natives to be blind to the unequal measure of justice, which is thus dealt out, and which will still continue to be so as long as the law remains unchanged?
[Note 115: Governor Hutt remarks, in addressing Lord Glenelg on this subject:—"In furtherance of the truth of these remarks, I would request your Lordship particularly to observe, that here is one class of Her Majesty's subjects, who are DEBARRED A TRUE AND FAIR TRIAL BY JURY, whose evidence is inadmissible in a court of justice, and who consequently may be the victims of any of the most outrageous cruelty and violence, and yet be UNABLE, FROM THE FORMS AND REQUIREMENTS OF THE LAW, to obtain redress, and whose quarrels, ending sometimes in bloodshed and death, it is unjust, as well as inexpedient, to interfere with.
"A jury ought to be composed of a man's own peers. Europeans, in the case of a native criminal, cannot either in their habits or sympathies be regarded as such, and his countrymen are incapable of understanding or taking upon themselves the office of juror.">[
I have no wish to give the native evidence a higher character than it deserves, but I think that it ought not to be rendered unavailable in a prosecution; the degree of weight or credibility to be attached to it, might be left to the court taking cognizance of the case, but if it is consistent and probable, I see no reason why it should not be as strong a safeguard to the black man from injury and oppression, as the white man's oath is to him. There are many occasions on which the testimony of natives may be implicitly believed, and which are readily distinguishable by those who have had much intercourse with this people—unaccustomed to the intricacies of untruth, they know not that they must be consistent to deceive, and it is therefore rarely difficult to tell when a native is prevaricating.
Among the natives themselves, the evil effects resulting from the inability of their evidence to produce a conviction are still more apparent and injurious. [Note 116 at end of para.] It has already been shewn how highly important it is to prevent the elders from exercising an arbitrary and cruel authority over the young and the weak, and how necessary that the latter should feel themselves quite secure from the vengeance of the former, when endeavouring to throw off the trammels of custom and prejudice, and by embracing our habits and pursuits, making an effort to rise in the scale of moral and physical improvement. Whatever alteration therefore we may make in our system for the better, or however anxious we may be for the welfare and the improvement of the Aborigines, we may rest well assured that our efforts are but thrown away, as long as the natives are permitted with impunity to exercise their cruel or degrading customs upon each other, unchecked and unpunished. We may feel equally certain that these oppressions and barbarities can never be checked or punished but by means of their own unsupported testimony against each other, and until this can be legally received, and made available for that purpose, there is no hope of any lasting or permanent good being accomplished.
[Note 116: Upon the inability of natives to give evidence in a court of justice, Mr. Chief Protector Robinson remarks, in a letter to His Honour, the Superintendent of Port Phillip, dated May, 1843—"The legal disabilities of the natives have been a serious obstacle to their civil protection; and I feel it my duty, whilst on this subject, respectfully to bring under notice the necessity that still exists for some suitable system of judicature for the governance and better protection of the aboriginal races. 'As far as personal influence went, the aboriginal natives have been protected from acts of injustice, cruelty, and oppression; and their wants, wishes, and grievances have been faithfully represented to the Government of the colony,' and this, under the circumstances, was all that could possibly be effected. There is, however, reason to fear that the destruction of the aboriginal natives has been accelerated from the known fact of their being incapacitated to give evidence in our courts of law. I have frequently had to deplore, when applied to by the Aborigines for justice in cases of aggression committed on them by white men, or by those of their own race, my inability to do so in consequence of their legal incapacity to give evidence. It were unreasonable, therefore, under such circumstances, to expect the Aborigines would respect, or repose trust and confidence in the Protectors, or submit to the governance of a department unable efficiently to protect or afford them justice. Nor is it surprising they should complain of being made to suffer the higher penalties of our law, when deprived (by legal disability) of its benefits. Little difficulty has been experienced in discovering the perpetrator where the blacks have been concerned, even in the greater offences, and hence the ends of justice would have been greatly facilitated by aboriginal evidence. It is much to be regretted the Colonial Act of Council on aboriginal evidence was disallowed.">[