CHAPTER XII.
NATIVE RIGHTS.
The apostolic Bishop Selwyn, the lover of the coloured race, had been deeply affected with the story of the Tasmanians, and, upon his appointment as Missionary Pastor of the Maories, resolved to contend for their freedom as far as possible. In 1847 he uttered these memorable words:—
"I am resolved, God being my helper, to use all legal and constitutional measures, befitting my station, to inform the Natives of New Zealand of their rights and privileges as British subjects, and to assist them in asserting and maintaining them."
It is undeniable that the British Government converted the island of Van Diemen's Land into what has been called a dust-hole, for the reception of the moral rubbish and turpitude of Europe, without the least consideration of the question of the Aborigines. The authorities were pleased not only to seize and hold the Island, without consultation of the will of the inhabitants, but actually, without their knowledge, and most certainly against their wishes, constituted them British subjects. As will be seen in the course of this book, the several Governors of the colony have declared that the Natives were entitled to all the rights and privileges of British subjects. What that means will be understood.
What is the opinion of European jurisconsults, statesmen, and others, relative to aboriginal rights?
When Dr. Wardell, of Sydney, defended an Englishman charged with the murder of a Black, he argued from Lord Bacon, Puffendorff, and Barbeyrac, that savages who fed upon human flesh (as the Australians were by him assumed to do), were proscribed by the law of nature; consequently it was no offence to slay them.Dr. Arnold observes: "So much does the right of property go along with labour, that civilized nations have never scrupled to take possession of countries inhabited only by tribes of savages, countries which have been hunted over, but never subdued or cultivated." Vattel, the greatest authority upon international law, is adduced as favourable to the same side from the fact that, while condemning the occupation of land already inhabited, he mildly observes: "One does not, then, exceed the views of nature, in restricting savages to narrower limits." These words are interpreted into seizure in full.
Mr. Hepworth Dixon discusses the question of the Indian right to the soil thus: "The soil! they have no soil. The soil was no more to them than the sea and the sky are to us. A right to go over it they claimed; but to own it and preserve it against the intrusion of all other men, is a claim which the Red man has never made, and which, if they should learn to make it, should never be allowed by civilized men. No hunting tribe has any such right; perhaps no hunting tribe can have such right, for, in strict political philosophy, the only exclusive right which any man can acquire in land, the gift of nature, is that which he creates for himself, by what he puts, into it by way of labour and investment, alike for his own and for the common good."
This argument has been applied in two other ways. The holding of great quantities of land, kept only for park or hunting purposes, has been regarded by others as opposed to the law of nature, and a revolution has furnished the occasion of confiscating some of this waste land, that it may be applied to more productive utilitarian ways. So long as this law was made applicable to savages it was held legitimate, but denied when pressed into the service of either English or French reformers. But, in Australia, the argument has been directed to the displacement of squatters, as the pressure of population has rendered necessary. They have had their runs in part or whole taken from them, and cut up into farms for cultivation by another class. The squatter has resented the application of the argument as unjust in principle.
Turning to the other side—the right of the Aborigines to their land—we find some good authorities.
Grotius, the learned jurist, denies the right of one people to seize the uncultivated lands of another. Lord Bacon wrote: "I like a plantation in a pure soil; that is, where people are not displanted to the end to plant in others, for else it is rather an extirpation than a plantation."
Vattel gives this opinion: "When a Native finds a country uninhabited, and without a master, he may lawfully seize upon the same. The law of nations, then, will recognise the proprietary right and the sovereignty of a Native over only uninhabited countries, which it shall have occupied really, and, in fact, in which it shall have formed A settlement." Then, as concerning the Aborigines, he goes on to say: "Since men are naturally equal, and that their rights and obligations are the same, as coming equally from nature, nations composed of men, and considered as so many free persons who live together in a state of nature, are naturally equal and hold from nature the same obligations and the same rights. Neither strength nor weakness produces, in this respect, any difference."
Voltaire, when speaking of the struggle in America for supremacy between the French and English, sarcastically concludes: "They had quite made up their minds in one point, viz. that the Natives had no right at all to the land in question." Thus Buchan declares that "the colonists and the Natives are necessarily brought into painful collision at the very outset; the one seeks to obtain possession of the lands secured to them by Act of Parliament, the other to keep possession of those very lands which are theirs by a prior right."
William Penn, who purchased a right from the Indians, was able to add these memorable words in his treaty: "And if anything shall offend you or your people, you shall have a full and speedy satisfaction for the same by an equal number of just men on both sides, that by no means you may have just occasion of being offended against them." He who had treated them as men, equal in natural rights, when dealing for land, could afford to recognise their citizen rights under a common government.
An old Delaware Indian Sachem spoke conclusively in relation to the quarrel between the English and French: "The French claim all the land on one side of the Ohio, the English claim all the land on the other side,—now where does the Indians' land lie?" Another chief thus addressed the French envoys: "The land belongs to neither of you. The Great Being allotted it to us as a residence. So, fathers, I desire you, as I have desired our brothers, the English, to withdraw, for I will keep you both at arms' length."
Count Strzelecki has pointed out the consequences to the poor Native of this disregard of their rights to the soil. "Since the time," he says, "that the Aborigines have been declared by law, or rather, sophistry of law, to be illegitimate possessors of any land which they do not cultivate, the Australian has been looked upon, ipso facto, as a sort of brute intruder, and, in the transactions which ended in the taking possession of New Holland by the English, has been allowed no more voice than the kangaroo."
This is a truth of which colonization furnishes us with many examples. When, notwithstanding the fact of the tribes having specific boundaries to their respective grounds, and across which it were trespass to pass, we see their land privileges wholly ignored, it can excite no surprise that their personal rights should receive little respect. And, in spite of the exhortations of Secretaries of State, and the Proclamations of Governors, to treat Aborigines as equal with the Whites in the sight of the law, it is notorious that their claims have been rarely admitted, and still more seldom acted upon. If poverty alone be held a sufficient plea in England for subjecting a man to the virtual deprivation of civic rights, and the rejection of his share in the government of his country, it follows with more force that the landless Native would, while acknowledged a British subject, be denied the franchise. Even universal suffrage in a colony could never reach his position. But he is not permitted the exercise of that common right of another British subjects—trial by his peers. Worse still, he is made amenable to laws of which he is totally ignorant, and the correction of which is beyond his power, while the customs of his own people are utterly dishonoured in the eyes of his foreign rulers. To complete his sense of degradation, he discovers that his Testimony against a White, a fellow-subject, is absolutely valueless; and that no amount of counter Native evidence can shake the stability of the unsupported word of one European against him.
The Peruvian Government of the Spaniards humanely treated the Indians as minors, and protected them by special laws as such. "But," says the traveller Mr. Markham, "the opposite plan, which has been adopted in some of the English colonies, of making Natives equal to Europeans in the eye of the law, is a mere mockery, and cannot by any possibility exist in reality." And, as Lord Goderich remarked, "they are brought into acquaintance with civilized life, not to partake its blessings, but only to feel the severity of its penal sanctions." Count Strzelecki affirms of their naturalization, that it "excludes them from sitting on a jury, or appearing as witnesses, and entails a meet confused form of judicial proceedings; all which, taken together, has made of the Aborigines of Australia a nondescript caste, who, to use their own phraseology, are neither white nor black."
Mr. Bannister, once Attorney-General of New South Wales, sought to further the ends of justice when he said, "We ought forthwith to begin, at least, to reduce the laws and usages of the aboriginal tribes to language, print them, and direct the courts of justice to respect those laws in proper cases." We have paid that respect to written codes of the conquered in India, while the unwritten laws of the hunters of Tasmania were definite in object, binding in obligation, and suitable to their condition. Our own modes of thought and action are so different to theirs, that some respect to their tribal customs would have been as humane as politic.
New South Wales stands forth proudly as the only one of our southern colonies seeking to do tardy justice to the Native. An Act was passed by the Sydney Legislature, October 8, 1839, allowing the Dark subjects, under certain circumstances, to be admitted as witnesses in court. But the majesty of England could not sanction the innovation. Governor Grey tells us, "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." Mr. Powlett, P.M. of Victoria, would have native evidence received for what it is worth. Mr. Protector Robinson always maintained that the legal disqualification to give evidence was not only the cause of many outrages, but accelerated the destruction of Blacks by the Whites; adding, "They consider any injury they can inflict upon white men as an act of duty and patriotism; and, however much they dread the punishment which our laws inflict upon them, they consider the sufferers under those punishments as martyrs in the cause of their country." Dr. Jeanneret refers to the treatment of the Aborigines' wives as "evils aggravated by their entire inability to comprehend how to obtain redress and protection."
It was a remarkable acknowledgment of Governor Arthur's, in a despatch home in 1835: "On the first occupation of the colony, it seems a great oversight that a treaty was not, at that time, made with the Natives, and such compensation given to the chiefs as they would have deemed a fair equivalent for what they surrendered."
A few illustrations of the practical working of the law may be cited. When Jack Congo was tried in 1836 for the murder of Jabengi, the plea was entered, "An Aborigine, and not subject to law, as not recognising law or king." The Chief Justice turned to the Attorney-General, and asked what he would do. The other replied that he did not know, and must consider of it. When Mr. Martin Montgomery, the distinguished writer, spoke of the execution of Black Tommy at Sydney, in 1827, he said, "I believed the man to be innocent, and I, therefore, attended his trial to aid in the defence of a man who knew not a word of our language, and owed no obedience to our laws." Several Blacks, known to be murderers of parties in Van Diemen's Land, were not tried for their crimes when captured, and removed to Flinders Island. It was felt, rather than declared, that the crime was not murder in our accepted sense of that word.
The Report of the Colonization Commissions in 1840 to the House of Commons contains this sentence: "To subject savage tribes to the penalties of laws with which they are unacquainted, for offences which they, very possibly, regard as acts of justifiable retaliation for invaded rights, is a proceeding indefensible, except under circumstances of urgent and extreme necessity." The strong language from the pen of Mr. Howitt would have lost its sting had this act of justice been performed. "We have actually turned out the inhabitants of Van Diemen's Land," quoth he, "because we saw that it was a 'goodly heritage,' and have comfortably sate down in it ourselves; and the best justification that we can set up is, that if we did not pass one general sentence of transportation upon them, we must burn them up with our liquid fire, poison them with the diseases with which our vices and gluttony have covered us, thick as the quills on a porcupine, or knock them down with our bullets, or the axes of our woodcutters."
Two Tasmanian Natives, Robert Jimmey Smallboy and Jack Napoleon Tarraparrara or Timninaparena, had been induced by their friend, Mr. G. A. Robinson, to go with him, from Flinders Island to Port Phillip, upon that gentlemen being appointed Protector of the Aborigines in the latter place. He thought the presence of some civilized Tasmanians might be of service to him with the wilder Australians. These two men were accompanied by three female islanders; viz. Truganina or Lalla Rookh, Fanny Waterfordia, and Maria Matilda Natopolina. Truganina was the special companion of Mr. Robinson in his successful mission to capture the Blacks of the island. The other two women had been sealers' gins, and had also rendered important service to the Government The two men, Bob and Jack, were two useful Tasmanians, who had accompanied Mr. Robinson for a dozen years, and were well known in Hobart Town.
It is not necessary to our story to say why they left the service of their Protector in Melbourne. In November 1841, they were down in Western Port District, where they formed acquaintance with some runaway sailors, or whalers. To supply their civilized necessities, they robbed the huts of some settlers. After a quarrel, the Blacks charged their European sailor friends with having fired at them; and, ultimately, the assault ended in the murder of William Cooke and Yankee, two of the whalers.
The police were soon on the track of the murderers. The women showed Mr. Powlett, Chief Commissioner of Police, the graves of the dead. All five were captured, and brought up for trial in Melbourne. The case was clearly proved against them. I was in Hobart Town at the time of the trial, and took much interest in the proceedings, because my artistic friend, Mr. Duterreau, was so attached to those Aborigines of the island. The old gentleman shed many tears at their fate. Judge Willis saw the difficulties connected with their position as Natives, and much excitement prevailed about the question of legality. The women were set free, and sent back to Flinders Island, but the men were condemned.
Their friend, Mr. Robinson, bore honourable testimony at the trial. Of Bob, who had been with him for eleven years, he declared, "I never knew him guilty of any dishonest act." He said Jack had been his companion for thirteen years, and that during all that time, his conduct has been most satisfactory. Regarding the case as one of great provocation on the part of the sailors, he told the judge, respecting the two Natives, "I have never found these persons wanting in humanity." Mr. Barry, now Sir Redmond Barry, the real founder of the noble Melbourne Public Library, and the Chancellor of the University, pleaded feelingly for the poor creatures.
But though the lives of these Tasmanians, who had rendered such good service to the State in the Black War, were sacrificed to the demands of the law, justice was not so inexorable when that same year three men were charged with shooting three three native women and a child at Port Fairy, and afterwards burning their bodies. The prisoners were acquitted by the jury. But the Governor, Sir George Gipps, has this remark in his despatch home: "It seems to be established beyond any rational doubt, that the three aboriginal women and the child were murdered by a party of white men, who left Mr. Osprey's hut with fire-arms, and returned to it after about an hour's absence, on the 23d of February, 1842; that two at least of the persons who have been acquitted accompanied the party."
In May 1826, the trial of Jack and Dick took place in Hobart Town. The excellent Governor was resolved to give the accused every supposed chance of fair play, although he had, like previous governors, neglected to place at the bar of justice such white men as had murdered black fellows. The two were charged with committing a murder, and were condemned only upon the evidence of convict stock-keepers, who were thought by some to have been concerned in the death for which the others suffered. Colonel Arthur nominated counsel to defend the Natives, and had interpreters to aid on the occasion. Old Dick, a miserable victim to disease, was carried screaming to the gallows. In his struggles he loosened his arms, and reached upward to his neck, a deluge of blood pouring from his mouth. The hangman laid hold of his legs, and so hastened the strangulation. The other man walked quietly to the scaffold, protesting to the last that he was not even present at the melancholy affair. They were thus launched into eternity; "there," says the historian of the event, the Rev. Mr. West, "to discover whether a warfare in defending their soil from the spoilers, and their females and children from outrage and destruction, were or were not crimes in the estimation of the almighty Creator of all men."
The criticism of the anti-Government paper, the Hobart Town Colonial Times, of that date, brings out the leading principles of law as applicable to the Aborigines:—
"By reference to our report of the proceedings of the Supreme Court, it will be seen that the two Aborigines, named Jack and Dick, have been tried and found guilty of murder. We are aware of the legal dogma that all persons on English land become subjected to English laws. Good! But as far as these poor wretches are concerned, it is not quite clear that as relates to them it is English ground. It is true that formal possession has been taken of this country by the hoisting of the English flag, and by other mummeries of the same description. But what do these poor creatures know of this?" After the citation of cases, the editor proceeds: "We hope there are those here who will use their influence to prevent these poor creatures becoming victims to a breach of law which they understood not, and their responsibility to which is questionable by the very highest authority. As examples, their execution will be worse than useless."
The civil position of the Aborigine is thus pointed out by Judge Willis: "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?" Governor Hutt, of Western Australia, in a despatch to Lord Glenelg, said: "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." Lord Stanley sympathised in the wish to do something for the Natives' relief, writing, in a despatch to Governor Gipps, "agreeing, as I do, in the general opinion that their evidence should, to a certain extent at least, be received in the courts of law."Mr. Protector Robinson often felt the want of a code suited to the Aborigines. In 1843, he asserted that "the destruction of the aboriginal native has been accelerated from the known fact of his being incapacitated to give evidence in our courts of law. I have frequently had to deplore, when appealed 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."
Among other expressions of opinion this is that from Mr. Eyre, afterwards Governor of New Zealand, and lately Governor of Jamaica:—
"It is true that they do not cultivate the ground; but have they, therefore, no interest in its productions? Does it not supply grass for the sustenance of the wild animals upon which in a great measure they are dependent for their subsistence? Does it not afford roots and vegetables to appease their hunger, water to satisfy their thirst, and wood to make their fire? or are these necessaries left to them by the white man when he comes to take possession of the soil? Alas! it is not so. All are in turn taken away from the original possessors."
To show that the Native has no home, let the judgment of Judge Willis, of Melbourne, be cited: "I have," said he, "on a recent trial stated my opinion, which I still maintain, that the proprietor of a run, or, in other words, one who holds a lease or licence from the Crown to depasture certain crown-lands, may take all lawful means to prevent either Natives or others from entering or remaining upon it."
The Aborigines, therefore, are pronounced by the laws of civilized England to be without right or title to the land they have first occupied, and occupied as a people for some thousands of years; they are forced into the condition of subjects to the Crown, without the recognition of civil rights; and they are, furthermore, admitted to have no claim to rest their foot upon the soil which they had supposed their own. It was reserved for modern Christian civilization to advance, and act upon, a theory, which ancient heathen philosophy would have declared inhuman and unjust.