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.