The Present State and Prospects of the Port Phillip District of New South Wales/Chapter 11



"To civilize the rude unpolished world,
And lay it under the restraint of laws;
To make man mild and sociable to man;
To cultivate the wild licentious savage;
With wisdom, discipline, and liberal arts,
Th' embellishments of life;—virtues like these
Make human nature shine, reform the soul,
And break our fierce barbarians into men,"

In considering the proper mode of dealing with the aborigines of Australia, it is desirable that all extraneous difficulty should be got rid of. Many persons when arguing on this subject turn round and say, "Well, after all, I do not see what right we have to come and take away their country from them." This is a mixing up of two questions, which should be kept perfectly distinct. And it is of importance that the right to colonize should be settled in the first instance; for if we have no right to occupy the country, no course of subsequent dealing can, in the forum of conscience, cure the original defect of title; and the sooner that we retrace our steps, and that every European departs from the shores of Australia, the sooner shall we have shown a sincere regret for the injury we have already caused to the natives.

The proposition to be discussed is this: Whether the fact of a small population of savages, wandering over an immense tract of country in pursuit of game, or for the purpose of procuring subsistence in some such way, gives them such an indefeasible right to that territory, that no other nation has a right to trench upon its boundaries. This is I think stating the question fairly; for if you encroach never so little, for the purpose of introducing agricultural or pastoral pursuits, the tendency is to diminish pro tanto the means of subsistence of the savage. It is also against all experience to suppose that the occupation of a savage country by civilized man can take place without injury to its aboriginal inhabitants. The conflict of right therefore begins the moment that the white man sets his foot upon its shore, and the question comes to this: which has the better right—the savage, born in a country, which he runs over, but can be scarcely said to occupy, the representive of a race, which for ages have left unimproved the splendid domains spread out before them, as if to tempt their industry, but of which they may be deemed to have refused the possession; or, the civilized man, who comes to introduce into this unimproved and, hitherto, unproductive country, the industry which supports life, and the arts which adorn it, who will render it capable of maintaining millions of human beings more nearly in that position, which it was intended that man should hold in the scale of creation? I conceive that the original right, whatever it may have been, which the savage possessed, that right, by his laches, he has forfeited. The commission to "go forth and replenish the earth, and possess it," implies something more than the mere obtaining a precarious subsistence from the casual bounty of nature; the thorn and the briar were to be rooted up, and the herb yielding food to be planted in its place; all noxious animals to be subdued, and those intended to minister to the wants of man reduced into proper subjection. These duties the savage has for centuries neglected, and thus, in my mind, abandoned his inheritance. Can it be for a moment supposed that a large portion of the globe—yielding to few in its means of production, to none in the amænity of its climate—could have been intended by its Creator to be reserved for ever as the hunting grounds of a handful of savages? As well might it be said that it should be left to the kangaroo and wild dog, "the native burghers of this desert city;" and indeed the whole argument smacks of the sickly philosophy of Jacques, "who swears in this sort we do more usurp, than doth our brother who hath banished us." Whatever opinion enthusiasts may form, that which I advocate is the one which the common sense of mankind will support, and the law of nature prompt them to act upon to the end of time, as they have done since the dawn of civilization. In any case it lies not in the mouth of those who are actually occupying the country, or of those who have sanctioned that occupation, at this period to question its propriety; few do so openly, but there is an uneasiness in dealing with the subject, which shows in many a consciousness that in their opinion our title is bad. This is one reason why I have thought it right to meet this question on its own ground, but there is another and more important one; for the decision of this point has an important bearing upon the practical question of, how the natives are to be dealt with, as it materially affects their relations towards us. If the white man had a right to occupy the country, the native, by opposing no vain resistance to his doing so, acquires no fresh rights; and the indulgence which he is entitled to, at the hands of the civilized man, is that of an ignorant, and therefore weak being, from one superior to him in knowledge and power, and not as an equivalent for any property that he has given up, or any rights that he has surrendered.

But although I do not admit that the native can claim compensation as a right, I fully concur in the view that the providing for his welfare, as far as possible, is a charge which the English government was bound to undertake, as it has done, and that it is also bound to afford him all the indulgence which is consistent with the, welfare of its other subjects. It is no doubt its duty to endeavour, by systematic efforts, to make him, as far as he is capable, a partaker in the blessings of civilization, more particularly by attempts to educate the young, and to mitigate the evils necessarily attendant on the period of transition, by putting out of his power, as much as possible, the indulgence in vice and intemperance. From this duty they have shown no disposition to shrink, and I have only to lament that, hitherto, success has not attended their benevolent efforts. To this subject I shall return. It is moreover the duty of the legislature—regarding the spirit, rather than the letter, of the English law, and bearing in mind that they are dealing with a state of society not analogous to any thing within the range of their former experience—to frame such a code of laws as may at once afford protection to the native, and security to the settler. And it should never he forgotten, that it is, in practice, impossible to succeed in accomplishing the one, without making provision for the other. To hold the balance even between the two, is, however, by no means an easy task; and our rulers have eluded the difficulty: "Declare them," say they, "in the fullest sense of the words, British subjects; give them the rights of British citizens, and the protection of British law." But, before doing this, they should have reflected, that the laws which are well suited to a civilized people, living in fixed abodes, may be totally inapplicable to hordes of wandering savages; nor is the matter mended, but rather the contrary, by the circumstance, that the range of their wanderings is amongst the dwellings of a civilized but scattered community, whose laws and language they are ignorant of, and whose lives and properties are, in a great measure at their mercy. They should have remembered too, that subject and sovereign are correlative terms; that protection and submission are reciprocal duties; that a declaration of this kind, instead of good citizens, may create a parcel of insubordinate rebels. And they should have considered what were their means of carrying the law into effect, in case their new subjects did not consider themselves bound by it. To give men the protection of laws, which they do not acknowledge, and the sanctions of which it is impossible to enforce, is a one-sided arrangement, which is likely to press heavily on the other subjects of the empire brought in contact with them. It will now be my business to show how this has worked in practice.

There is no principle which more honourably distinguishes the common law of England, than the humane caution with which it abstains, in almost all cases, from allowing an individual to take the law into his own hands to the extent of depriving another of life; self-defence, including the defence of a man's house and family, being the only plea, which, in the eye of the law, can justify homicide by a private individual; if, for instance, you see a murderer making his escape, a thief riding away with your horse, or driving away your cattle, you may, indeed, arrest him if you can, but if you fire at him and kill him you will be guilty of murder or manslaughter at least. This extreme strictness would no doubt have afforded protection to a great number of malefactors, had not means been taken to counteract this effect. In the simple times of our Saxon ancestors, whilst travelling was unfrequent, and the mode of transit difficult, it was esteemed a sufficient protection to society, that every Englishman should have a fixed habitation where he could be found, and made responsible for his acts, or in his default, that a certain member of the community should be answerable for him, and make reparation for his crime. Hence arose the vagrant laws, which have in modern times been frequently, and with justice, censured as cruel and oppressive, because inapplicable, but which were essential to complete the system of Saxon police, and to act, in a measure, as a counterpoise to the encouragement given to crime, by the protection afforded to the person of the offender though surprised in the fact. When, however, the increase oft population, and the growth of commerce and manufactures, had rendered frequent travelling necessary, and the improvements of modern invention had made it easy, and it was found that the vagrant laws had become inapplicable to our complicated social system, and totally ineffectual as a measure of police, a new check was adopted, and a numerous police force organized, as well for the prevention, as for the detection of crime.

But when, without any of the safeguards which made it tolerable in England, this principle comes to be acted on, with regard to the black population in New South Wales, it operates as a complete protection to them in all their aggressions on the settlers. We will suppose that a hut has been robbed by the natives, the hut-keeper and shepherd surprised, and either killed or wounded, and a flock of sheep carried off. The settler arms some of his other servants, and pursues them immediately. They come up with them, and recover such of the sheep as have not been killed. The natives are of course anxious to escape, and to wait for some other opportunity of effecting their purpose; for it forms no part of the tactics of savages, when they have a chance of escape, to stand up in fair fight, unless they have an overwhelming force. If, under these circumstances, the settler and his servants fire upon and kill any of them, they make themselves amenable to a law, by which they may be hung or transported for life. If, on the contrary, they abstain from this course, in compliance with the English law, and relying on the protection which the government is bound to afford them, the result is, that in the first place, the natives get clean off; the capture of one of them, except by surprise, or when completely surrounded, being almost impossible, even if men were willing to run the risk of being speared or tomahawked in making the attempt. In the second place, as I shall show presently, there is not the slightest chance of the law being vindicated, by the subsequent apprehension and punishment of the offenders; the consequence is that, emboldened by impunity, they probably return soon after, and commit some further outrages upon the settler.

The government profess to extend to the natives that protection which an Englishman receives from the laws, but in fact afford him a complete license to rob and murder. The Englishman, in return for the security which he affords to society by a fixed residence, the possession of property, and the ties of kindred, is treated with a tenderness with respect to his person, even in his case scarcely reconcilable with good order. And the native, without any of these guarantees, without recognizing, or indeed knowing anything about our laws, without a fixed dwelling, without property of any kind, leading a vagrant life amongst a people of his own, amongst whom the similarity of natural physiognomy makes it difficult to recognise him; inaccessible to the visits of the police, even if there were an efficient force of the kind in the country, though he may be surprised (as the French jurists say) en plein delit, is treated with a similar indulgence, amounting in his case to a complete immunity from punishment. The English law is a connected system, which to be effectual must be enforced throughout; it is not sufficient to carry into effect one part, leaving out some other part which was intended to act as a counterpoise and check. If it he determined that the native should, in this respect, be put on the same footing with other subjects, let him be forced to give to society the same security for his good behaviour by a fixed residence, or, if this be impossible, let the law itself be modified, so as to prevent its being a screen to protect robbery and murder.

During the first few years after the settlement of this district, the settlers acted on the broad principle of the law of nature, intelligible alike to savage and to sage. When they saw men marshalled under their leaders, with deadly weapons in their hands, driving off a spoil, after perhaps having killed some of their comrades, they treated the marauders as enemies, and used their weapons, sometimes with deadly effect; these collisions, however, rarely occurred; intimidated by the bold bearing and superior weapons of the settlers, the natives gave them but little molestation, and in all parts of the country, settled at that time, live with them to this day on the most friendly terms, coming to, and leaving their stations at their pleasure, frequently bringing skins and furs, and receiving flour and sugar in exchange, occasionally employed for a few days together, and on all occasions treated with the greatest indulgence.[1] But when it was intimated to the settlers, by the government, that the natives were, in every respect, to be treated as British subjects, and that any person would be severely dealt with, who in his conduct towards them in any wise infringed the laws of England, the case became very different. Cases, such as I have described, became common, and the natives, encouraged by impunity, have succeeded in destroying an immense quantity of the property, and sacrificing the lives of many of the settlers and their servants. Exasperated by these repeated attacks, and by the want of protection by the Government, the latter have, I regret to say, been led to take the law into their own hands, and some of them I have no doubt, have been guilty of savage murders. The consequence has been mutual distrust, the natives are driven off the stations, and not allowed to approach the huts; if they see a white man they skulk into the bushes, and it is not till emboldened by superior numbers, or tempted by an opportunity to surprise, that they make their appearance for the purpose of some hostile act. I give to the executive the fullest credit for their anxiety to bring to justice, any of the natives who can be taken, and against whom satisfactory proof can be procured; but I think that I have shown enough to prove the difficulty of doing this. But supposing this difficulty overcome, suppose the savage arrested, and ready to be put upon his trial, an insuperable barrier has yet to be surmounted before this can take place. By the law of England no British subject can be put upon his trial, who is not of sufficient mental capacity to comprehend the proceedings of the court, and to exercise his right of challenge; when, therefore, a native is brought to the bar, a jury is empannelled to try an issue in the foregoing terms, and the verdict in every case (I think) but one has been in the negative. On what grounds a distinction was made in this case I had not the means of ascertaining.[2]

No effectual protection, therefore, being afforded to the settlers, as far as the natives are concerned, the feeling of many of them is this, that the government, by its being so inadequate to the discharge of those duties for which all governments exist, namely, the protection of life and property, has, in fact, abdicated its office, and forfeited their allegiance; and they feel quite at liberty to take the law into their own hands, and to protect themselves, absolved from all moral restraint on its part—the only question being one of prudence, whether they are likely by such conduct to run the risk of detection and punishment. Others there are of higher principles and more enlarged views, who prefer incurring all risks to violating the laws, but who hope, when the true state of the case is laid before the home government, that some attempt may be made to remedy the present anomalous state of things. But amongst all there is but one feeling of dissatisfaction, that no efficient police force has been established, to protect them in that course of forbearance so rigidly insisted on.

But whether the present system be right or wrong in theory, it is one which in practice is not, and cannot be carried out; and if I had no other objection to it, this would, in my mind, be a sufficient one, that the whole thing is a delusion from beginning to end. It may serve to set the minds of people in England at rest on the subject; but that is all it does. The English law has no more effect in restraining the natives from the commission of outrages on the settlers, by any fear of its sanctions, or any respect for its authority, than has the law of Confucius, of which they know about as as much; nor has it much more in protecting them from retaliation, should the latter he unscrupulous enough to resort to it. It is in its present unmodified state practically inefficient to restrain aggressions on one side or the other. Even the very officers in command of the small police force which exists, must either allow the escape of persons guilty of the greatest crimes, or else, in order to punish them, violate that law which they are bound to administer;and the colonial government have to wink at that violation. As an example of this, I shall detail an occurrence, an account of which I had on the best authority, and of which I understand a report was sent to government at the time.

In the winter of 1843 the natives carried off a child, the daughter of a Mr. Abraham Ward, an inn keeper, living about fifty miles from Portland Bay. Ward, when it was missed, went out in search of it in company with some friends. After a search of something better than a day, they succeeded in coming up with one or two natives, one of whom told them that the child had been killed by a man of a neighbouring tribe. He described the child's having been carried off, its having been given in charge to one of the women, and that on its crying, this man whom he spoke of had killed it with his waddy, and showed how the women had buried it with their murnong sticks. This man also promised to bring the party to the place where this tribe were. Ward having represented these facts to the officer in command of the native police, a party consisting of that officer and four native troopers, tegether with Ward, and three other Europeans, went out to endeavour to find the grave of the child, and, if possible, to take prisoners the natives concerned in its abduction and murder. After proceeding for some time they found a lamb which had been but lately ripped from the womb of a ewe, which led them to the conclusion that sheep had been recently taken and destroyed by the natives. At a short distance further on they came upon a party of four native men, whom they attempted to secure. Three of them, however, got away by plunging into a thick tea-tree scrub which was near; the fourth took to an open swamp, pursued by a settler. After running for some time, with his spear shipped in his throwing-stick, this native availed himself of the opportunity of his pursuer's taking his eye off him (owing to a false step) to throw his spear, which narrowly missed taking effect, owing to a sufficient allowance not having been made for the alteration of pace consequent on the stumble. The settler then fired, and wounded the native in the hip with a ball—not so, however, as to disable him; for, upon the white man's attempting to close with him, he seized another spear, which he had dropped when he was wounded, and shipped it for throwing, when the other fired his second barrel, and shot him dead. In the basket which this native had with him was found, amongst other things, part of a very peculiar coat, made of lambskin, which a poor man of the name of Basset was in the habit of wearing. This Basset was an old shepherd, who, being a provident man, had saved a great part of his wages, and had recently sat down in the neighbourhood with about a thousand sheep in charge of himself and another man. They concluded, from this that he had been murdered, and his sheep taken. On proceeding a little further, at the other side of a rising ground, the attention of the party was attracted by seeing a number of crows and eagle hawks hovering over something, which, upon making a reconnoisance, they found to be the carcasses of sheep, upon which a large party of natives had just been regaling themselves: this party were close at hand. It was resolved to attack them; and the officer divided his force into two parts, of which one, consisting of three native troopers, was to creep up in front, to fire, and then make a rush upon the natives; while the other party, consisting of the officer and the four settlers, under the guidance of the fourth trooper, were to creep round and intercept their flight. The three troopers being rather dilatory in making their attack, the order of things was changed, and the European party commenced the attack by firing on the natives, and then rushing on. The party attacked fled in all directions, some of them coming under the fire of the three black troopers originally detached. The result was, that nine natives were left dead upon the spot, all of whom were men. The party now proceeded to the hut of the old man Basset, whom, as they had anticipated, they found murdered, his body much mutilated, and his sheep driven off.

When we analyze this case, what does it amount to? Two barbarous and unprovoked murders are committed, besides a wholesale robbery of sheep; and the persons engaged in the commission of these crimes are punished promptly and effectually, in a mode intelligible to their whole trite, and a lesson—a severe one certainly—given to the natives, which has had the very best effect in preserving the peace of the district ever since—but which probably would not have been necessary, had not frequent impunity encouraged them to the commission of these outrages. There can be no reasonable doubt that the persons shot were engaged in the robbery and murder of the old man Basset, their being in possession of his sheep and clothes, affording the strongest evidence of those facts, for the party first come up with were merely a look-out detached from the main body. The proof of their having been engaged in the abduction and murder of the child rests merely on native evidence. This, however, merely affects the moral view of the proceeding, for in a legal one it could not be justified, even if the European party had seen them commit both murders. It was indubitably the duty of the police officer to have attempted to arrest the natives, although aware that, in making the attempt, he must have afforded them almost a certainty of making their escape, and also have exposed the lives of his men; and although he knew that, even if successful in effecting a capture, it would only result in the farce of the prisoners being brought up to the bar of the supreme court, and declared by a jury not of sufficient capacity to understand the proceedings, or to exercise their right of challenge. This was, however, no affair of his; it was his business to attempt to execute the laws, and not to act on abstract notions of right or wrong.

This is not written for the purpose of injuring that officer, who has, I have no doubt, been led into the commission of legal crime by an over anxiety to do substantial justice; for there is no doubt (if the above account be correct[3]) that, in the eyes of the law, the shooting of all those men (except the first) was murder. And further, there is equally little doubt that, if the law had been properly observed, the natives engaged in the crimes which I have enumerated would have escaped with perfect impunity, either by getting clear away in the first instance, or by being afterwards declared incompetent to be put upon their trial.

I will now cite another case, which, though putting the matter in a different point of view, shows equally the inapplicability of the English laws in their unmodified form. Some time in 1843 a native was brought up before a magistrate, by one of the assistant protectors, for using threatening language towards him; and that magistrate was bound, by the words of his commission, to commit him to jail until he could find security to keep the peace; where (if the law be strictly administered) he must be still, as it would be impossible for him to find such sureties. But at present, to make the thing work at all, a dispensing power must be assumed by the magistrates, as to what part of the English laws shall be applied, and what not—a state of things not contemplated by their commissions, nor by any means desirable.

Having given a sketch of the working of the present system, I shall briefly recapitulate my objections to it—which are:

First—That the British law, being inapplicable to the social state of the aborigines, can only be partially carried out; that it thus acts most unjustly towards the European settler—insisting on a rigid forbearance on his part, while it is totally inoperative for his protection from the natives, or for the punishment of their aggressions upon him.

Secondly—That, by affording the natives a practical immunity from legal punishment, it really does them an injury, by causing the less scrupulous of the settlers, or their servants, in secret, and without any efficient control, to take the law into their own hands, and to revenge attacks on their properties or lives at their own discretion, and in their own way; that, in this way, it subjects the natives to a system of petty warfare, whilst it demoralizes the settlers, by accustoming them to the violation of the laws;—thus placing the most effectual barriers in the way of the improvement of the one, and the civilization of the other.

I give the government the fullest credit for their feelings towards the natives, and believe that their conduct towards them has, all through, been dictated by feelings of the purest benevolence. I admit, too, that, if in the adjustment of this difficult question, they have leaned to one side rather than the other, they have erred on the right one; for, although it be true that the settlers have but feeble means of making their grievances heard, the natives have none. Still there is a line, beyond which, indulgence to one man, is injustice to another; and if it appear that this line has been passed, and if, moreover, the result of this indulgence should prove to be injurious to the objects of it, by encouraging them in outrage, making them the victims of retaliation, and obstructing their advance towards civilization, by creating a breach between them and the settlers; if these consequences follow from the system, it is time that the subject should be fully investigated, and that some attempt should be made at improvement.

Closely in connexion with this subject is another, which I shall but lightly touch upon. This is the expediency of making the natives amenable to the British laws, for acts committed inter se. This comes recommended by the authority of Captain Grey, the present governor of South Australia. Theoretically they are, at this moment, amenable to the British laws for such offences,[4] but practically it is impossible to punish them for these, any more than for their agressions on the whites—and for the same causes; besides this, the injustice of doing so, without first giving them some instruction in those laws, which they are called on to obey, is so obvious that no jury would ever be found, to carry it into effect. This difficulty might be met by framing a simple code, embodying the salient points of the British criminal law, expressing, clearly and briefly, what crimes they should be held responsible for, both as regards the settlers and each other, and means might be found of promulgating it amongst them.

Three courses are open for the British government to pursue. The first is, to carry out, if possible, the principle at present laid down—that the natives are British subjects, entitled to the perfect protection of the British law, and bound by all its obligations, and to endeavour to force them, by putting in operation a system of vagrant laws, or some such means, to remain in fixed habitations, where, under the superintendence of officers similar in authority to the present protectors, but with greater powers, they might be subject to the vigorous control of an active police, until they shall have attained habits of order and industry, some instruction in the laws of England, as they affect themselves, and in the ordinary arts of civilization. The objections to this system are its injustice, its expense, and the difficulty, if not impossibility, of carrying it into effect. Its injustice in forcing free British subjects to adopt a mode of life distasteful to them, and unsuited to their habits. The other objections, the expense and difficulty of carrying it into execution, are so obvious as to make it, in my mind, quite out of the question.

The second is to allow them to remain in their present wild state, and so to modify the English law as to make it more suitable to the circumstances in which they are placed. Such modifications to include the securing to them the benefit of legal assistance upon their being brought to trial—the doing away with the necessity of proving their capacity to understand the proceedings of the court, and to exercise their right of challenge—the making their evidence receivable in a court of justice, without proof of their belief in a future state of rewards and punishments[5]—the declaration that they should only be held responsible, either as regards the settler or each other, for those offences against the laws of England, which are also offences against the law of nature, or clearly incompatible with the welfare of society, and which should be clearly and simply defined—and lastly, the denying them, under certain restrictions, that indulgence, with respect to their persons, to which (according to my view of English jurisprudence) they have not entitled themselves.

The law which I should propose on this latter subject would be something of this kind, that, where a company of armed natives are carrying off sheep or cattle, and immediate pursuit is made by the owner and his servants, they should be at liberty to fire on them, in case they would not surrender themselves; but that in no case, where a man collects his neighbours and servants for the purpose of recovering his sheep, after a certain time has elapsed, and the natives have taken them clean off, should he be allowed to fire on them, unless in the presence and by the direction of a magistrate, (who should be bound to report the circumstances to the government, and be held responsible,) or in strict self-defence. The distinction taken between (what is called in law) fresh suit, and a case where a man collects neighbours, &c. is founded on this, that in one case it is an unpremeditated business, undertaken bona fide for the protection and recovery of property; while, if a similar license were given in the other, it might be made a cloak for collecting parties to go out and avenge aggressions by committing massacres.

The third course which may be pursued would be to combine, to a certain extent, both the former, and to declare that those who submit themselves to the English laws, fix themselves in villages, and exercise the arts of civilized life, should be entitled to the full benefit of that law, which should be modified towards all others. A registry might be kept of the former class, and they might wear a badge, of which probably they would be proud.

Being aware of the suspicion with which volunteer legislators are generally regarded, it is with reluctance that I have made the foregoing suggestions. Having, however, dwelt so long on the mischiefs of the present system, it appears to me that not to do so would be an unmanly shrinking from duty; and I will add, that did I imagine that the course proposed would prove injurious to the natives, I should be as backward to recommend it as the loudest of those who arrogate to themselves the exclusive title of "Friends of the Aborigines;" but I am convinced that it would have a directly contrary effect. There is this difficulty in making laws for distant colonies,[6] (and the present subject must be dealt with, if at all, by the British parliament,) that those who have an opportunity of witnessing the practical bearing of a system, and its every day working, are generally suspected of being prejudiced, and candour compels me to admit, are liable to be so, while those who judge from a distance are, at least, equally likely to be misinformed. In order, however, to give full weight to what I have said before on this subject, which appears to me of great importance in more than one point of view, and not for the sake of speaking of myself, I may perhaps be excused for stating, that personally, I cannot be affected by the way in which this question is disposed of, as I have my residence in a part of the country where the natives are perfectly harmless—that I have never lost a single sheep, or any thing else, through their means, but, on the contrary, have frequently availed myself of their assistance in recovering such as were lost, and in other ways, and that I have always lived on the best terms with them—that from the calls of duty or of business I have on many occasions been in those parts of the country not so happily stanced, and had frequent opportunities of judging of the state of things in them—and that it is my deliberate conviction that the present unsatisfactory relations of the two races in those parts arises from the unjust bearing of the present law upon the distant settlers.

Having dwelt at such length on this part of the subject, I shall allude more slightly to another branch of it—I mean the direct attempts which have been made to introduce religion and civilization. It is the less necessary to dwell minutely on these efforts, as from the total want of success which has (I regret to say) attended them, the establishments are (I believe) about to be broken up.

The total expenditure made directly on account of the aborigines of New South Wales since 1821 has been £51,807 12s. 2½d. The auditor-general also makes a memorandum that, as half the expense of the border poHce has been incurred on their account, they may be in addition fairly charged with half the expense of that force, amounting to £27,716 8s. 9d. This, however, appears to me questionable. Of the first mentioned sum the expense of £17,792 13s. 1¾d. has been incurred to defray the charges of the several missions through the colony, and £25,191 14s. 4½d. in supporting the Protector's establishments in the Port Phillip district for little more than four years—the expense of these establishments in 1842 being £8,000.

The following are some extracts from a despatch from Lord Stanley to Sir George Gipps, dated December 20th, 1842, which contains a masterly summary of this part of the subject.

"I have read, with great attention, but with deep regret, the accounts contained in your despatches. After making every fair allowance for the peculiar difficulty of such an undertaking, it seems impossible any longer to deny that the efforts which have been hitherto made for the civilization of the aborigines have been unavailing; that no real progress has yet been effected, and that there is no reasonable ground to expect from them greater success in future. You will be sensible with how much pain and reluctance I have come to this opinion, but I cannot shut my eyes to the conclusion which inevitably follows from the statements which you have submitted to me on the subject.

"Your despatch of the 11th March last, contains an account of the several missions up to that date, with reports, likewise, from the chief protector, and his assistants, and from the Crown Land Commissioners. The statements respecting the missions, furnished, not by their opponents, nor even by indifferent parties, but by the missionaries themselves, are, I am sorry to say, as discouraging as it is possible to be. In respect to the missions at Wellington Valley, Mr. Gunther writes in a tone of despondency, which shows that he has abandoned the hope of success: the opening of his report is indeed a plain admission of despair. I sincerely wish that his facts did not bear out such a feeling. But when he reports, that after a trial of ten years, only one of all who have been attached to the mission 'affords some satisfaction and encouragement;' that 'of the others only four remain with them,' and 'that these continually absent themselves, and when at home evince but little desire for instruction;' 'that their thoughtlessness, a spirit of independence, ingratitude, and want of sincere straight-forward dealing, often try us in the extreme;' 'that drunkenness is increasing, and that the natives are gradually swept away by debauchery and other evils, arising from their intermixture with Europeans.' I acknowledge that he has stated enough to warrant his desponpency, and to show that it proceeds from no momentary disappointment alone, but from a settled and reasonable conviction.

"Nor do the other missions hold out any greater encouragement. That at Moreton Bay is admitted by Mr. Handt to have made but little progress, as neither children nor adults can be persuaded to stay for any length of time; while that at Lake Macquarie had, at the date of your despatch, ceased to exist, from the extinction or removal of the natives formerly in its vicinity. The Wesleyan missionaries at Port Phillip, notwithstanding an expenditure, in 1841, of nearly thirteen hundred pounds, acknowledge that they are far from satisfied with the degree of success 'which has attended our labours,' and that 'a feeling of despair sometimes takes possession of our minds, and weighs down our spirits,' arising from the frightful mortality among the natives.

"In the face of such representations, which can be attributed neither to prejudice nor misinformation, I have great doubts as to the wisdom or propriety of continuing the missions any longer. I fear that to do so would be to delude ourselves with the mere idea of doing something, which would be injurious to the natives, as interfering with other and more advantageous arrangements, and unjust to the colony, as continuing an unnecessary and profitless expenditure."

With regard to the protectorate, he says:

"After the distinct and unequivocal opinion announced by Mr. Latrobe, supported, as it is, by the expression of your concurrence, I cannot conceal from myself, that the failure of the system of protectors has been at least as complete as that of the missions."

The concluding paragraph of the despatch expresses so well the feelings of every right-minded man on the subject, that I shall give it, even at the risk of spinning out this chapter to too great a length:

"I cannot conclude this despatch without expressing my sense of the importance of the subject of it, and my hope that your experience may enable you to suggest some general plan, by which we may acquit ourselves of the obligations which we owe towards this helpless race of beings. I should not, without the most extreme reluctance, admit that nothing can be done; that with respect to them alone the doctrines of Christianity must be inoperative, and the advantages of civilization incommunicable. I cannot acquiesce in the theory that they are incapable of improvement, and that their extinction, before the advance of the white settler, is a necessity which it is impossible to control. I recommend them to your protection and favourable consideration, with the greatest earnestness, but at the same time with perfect confidence; and I assure you that I shall be willing and anxious to co-operate with you in any arrangement for their civilization which may hold out a fair prospect of success."

It seems probable that some new system will be adopted in place of the protectorate. It appears to me that the protectors began at the wrong end. Collecting together hordes of savages, some of whom had never seen the face of a white man, without any means of controlling them, was a system which could have scarcely been expected to succeed. There was also combined with the large expenditure on these establishments a penny wisdom in details, which was calculated to render the other expenditure useless, even if the system had been of a more promising nature. The whole establishment at Mount Rouse consisted, in July, 1842, of the assistant-protector, an overseer, a constable, a bullock-driver, a carpenter, and, I believe, another man. I am not sure whether the constable was a convict or no, but three of the others were. Of these, the bullock-driver and another were constantly away fetching stores, &c. There are few men who, in such a position, would have firmness enough to control a mob, consisting of several hundreds of unruly savages, who could and would, if things had come to a rupture, have eaten the whole establishment for breakfast. A system of temporising was the natural result of this state of things. The natives speared a calf belonging to the overseer; they brought the sheep belonging to the neighbouring settlers, and ate them at the protectorate; and on the overseer interfering, threatened to kill him. Many other instances of outrage and insubordination occurred, which had to be passed over. At the time of my first visit to the settlement, in 1842, there were three or four hundred natives encamped there, and the following was the daily routine:[7]—In the morning they were put into a pen, and run out, one by one, as sheep are when they are counted, when each received a mess of a kind of burgoo, or porridge, which he carried away in a hollow piece of bark. In the middle of the day they were all drawn up in a row, squatted on their heels, and a wheelbarrow, full of pieces of beef, was wheeled round, the overseer giving a piece to each in turn. It was amusing to observe the anxiety with which they eyed every piece as it was delivered; each of them, as they received their allowance, squeezing it in his hands, to ascertain whether it contained any bone or no; when it had much of this, or little fat, they freely gave vent to their feelings of rage and disappointment. They all appeared sulky, and had completely the appearance of sturdy beggars receiving a dole. The allowance not being sufficient to satisfy their immense appetites, they frequently made forays upon the flocks and herds of the neighbouring settlers; and, in fact, this neighbourhood became the scene of greater outrage than any other part of the country, the tendency being (in the words of the governor) to "increase the irritation already existing between the two races." This assistant-protector was dismissed, and his place has not been filled up since.[8] The other protectors express themselves in desponding terms as to their success, although I have heard that their establishments were better conducted.

I cannot here resist the temptation of volunteering a little more legislation. In the first place, I think that the endeavour to civilize the natives, ought to be made in a way quite different from that hitherto attempted. Instead of collecting together the wild tribes, I would bring together a few of the most enlightened individuals of the most civilized tribes, with their families—men who had seen and could partially appreciate the comforts of civilized life. I would endeavour, under the direction of a good overseer, to make them useful in building huts for themselves, also in growing com and potatoes, and such other employments. I would not force them to live in these huts if they did not like it; but they would soon find the advantage of doing so in cold and wet weather, and they should be made always to take their meals there, and to keep them clean. They should be fed well if they worked, and any that were idle or disorderly should be expelled from the settlement, while the more deserving might be rewarded by tobacco, of which they are immoderately fond, or by some other indulgence. It would be necessary to make some arrangements by which they might be allowed to absent themselves from time to time, and also to prevent them frequenting the towns. The principal men amongst them, their sorcerers or priests, might, if they entered into the views of the conductors of the establishment, be of great service in getting rid of their superstitions and prejudices, being probably the only persons amongst them aware of their being a humbug. One or two of those most distinguished for good conduct, might be given a uniform, of which they are very proud, and made constables. This is merely a sketch, and I have given the details for the purpose of showing my meaning, not from any idea that they are exactly what ought to be adopted. The principle ought to be this, that it should be esteemed by the natives a favour to place them on the establishment, and a punishment to expel them from it; and it is immaterial by what means this object is attained, for once this is established, the means of enforcing your regulations would be attained, and all real difficulty be at an end. As this feeling became stronger, the reins of discipline might be drawn tighter; certain hours of work enforced, and regular wages paid in tobacco, sugar, or slops; a certain time set apart for instruction, particularly in the laws; leave of absence given only for a limited time; with many other improvements which experience would no doubt suggest; and, ultimately, I should look to the natives thus educated, as the most efficient means of civilizing the other tribes.

But whatever course may be adopted, I sincerely hope that it may be attended with more success than has hitherto accompanied the well-meant endeavours of the government. Above all, I consider it of paramount importance, even as effecting the natives themselves, that the laws regulating their relations with Europeans, should be put upon a more equitable footing, and while I should be one of the last men to propose a system, which I thought would substantially bear harshly upon them, I at the same time equally deprecate the indulgence of a mawkish sentimentality on their behalf, at the hazard of sacrificing the lives and properties of our fellow-countrymen, who are equally entitled to the protection of the laws.

I cannot conclude this subject without touching on a point alluded to by Lord Stanley, in the last paragraph of his dispatch, the extinction of the native before the advance of the white settler—a circumstance which seems to have occurred so uniformly, and without apparent causes adequate to account for it, that it has induced some persons to attribute it to a direct intervention of Divine Power; for neither the diseases consequent on intercourse with Europeans, nor the mortality caused by collisions with them are by any means sufficient for this purpose. The aborigines of Australia, as well as those of New Zealand and the South Sea Islands, are subject to periodical attacks of epidemics which commit great ravages, but probably they were so before the arrival of Europeans amongst them. It is possible that previous to this event, when a district was depopulated by an infliction of this kind, the vacancy was filled up from other parts which had not suffered; but now that the country is already in th« occupation of Europeans, that this does not take place. The very scanty population of the country when first discovered gives some colour to this supposition, as well as the fact stated by Captain Hunter, in his account of the formation of the settlement at Sydney, that they were then suffering under the small-pox. At the Mount House Protector's station, in 1842, the natives, who were there in great numbers, were generally suffering under inflammation of the lungs, accompanied by low fever, which caused great mortality amongst them, so much so that it was thought necessary to place a medical man on the establishment. This disease was still prevalent in 1844. These tribes lived more than two hundred miles from Melbourne, and being in one of those districts where aggressions on the whites had most frequently occurred, they had had but little intercourse with the settlers. I set this down at the time merely as an occasional epidemic, but I find that one of the Commissioners of Crown Lands speaks of a similar disease having been fatal amongst the Barabool tribe, near Geelong, in 1839. I find also from a work quoted below, that a disease exactly similar had followed the appearance of Europeans, not only in New Zealand, but in the South Sea Islands. It is also to be observed that, in Port Phillip at least, the white population did not, either before or after, suffer under this complaint.

In a work entitled "Polynesia," written by the Right Rev. M. Russell LL, D., that gentleman, alluding to the gradual extinction of savage nations when in contact with Europeans, inclines to. the opinion that their extinction is a necessity, a mystery which we cannot fathom:[9]

"It is a singular fact (says he) recorded by the missionaries, that disease has followed their steps in most of the islands which they have visited, even when no such personal intercourse has taken place, as would afford an explanation on the ordinary principles of medical science. A similar observation applies to New Zealand, where the people appear to have laboured under sickness of a kind hitherto unknown. A professional gentleman whose services were required at the station of Kaitai, writes as follows:—'I regret to state, that there has been more disease amongst them during this period than has ever been observed at any previous period of their history. Its nature also[10] appears to be quite new, and such as they appear never to have suffered from before. It has in many of its features resembled the influenza prevailing of late years in England, which brought with it so much mortality, and this in like manner has been very destructive.' In allusion to another ailment, the same writer observes, that the epidemic from which they have been more recently suffering, has been more general, and of much more serious results."

This seems to have been of an erisipelatous nature.

Mr. Threlkeld also, a missionary at Lake Macquarie, in New South Wales, writes thus: —

"Daring my seventeen years sojourn amongst these tribes, cruelties have not been so numerous or extensive as to account sufficiently for the decrease of the blacks, or to alter the opinion that the diminution of people, or the prosperity of nations, is from the wrath of God which is revealed from heaven against all ungodliness and unrighteousness of men. The mortality amongst the inhabitants of the South Sea Islands places them in a similar melancholy position with the aborigines of this land, and ere a few years elapse, they will become extinct or amalgamated with emigrants from European shores."

Without entering into the discussion whether the diminution of the natives can be attributed to their ungodliness—a conclusion seemingly negatived by the fecundity of the natives of Africa and Asia, who are sunk in the most debasing superstition—I shall merely remark, that there has been nothing brought forward to show that these visitations may not be traced to natural causes, far less to prove that "the extinction of the aborigines is a necessity which it is impossible to control." The origin of epidemic diseases is always involved in so much obscurity, and the mortality arising from them frequently possesses such a mysterious character, that they have in every age, from the days of Homer down, been attributed to the direct intervention of supernatural power, though probably regulated by laws capable of being as accurately defined, as those of any other phenomenon with which we are acquainted in the range of physics. I have introduced this subject as a matter of interesting speculation, and not as one having any practical bearing on our conduct towards the natives, for whether it shall please the Supreme Disposer of events that they should melt away before the white man, or should survive as a nation, to partake of the blessings of an enlightened civilization, it is equally the clear duty of the English nation to persevere in "acquitting itself of the obligations which it owes to this helpless race."

  1. It is only in the more recently settled parts of the district that the natives are troublesome to the settlers. These include part of the Port Fairy District, thence north and west to the Glenelg, the Grange, and the Wannon, the country to the west and north of that near the Victoria range, also about the Grampians, and on some parts of the Goulburn. In other parts nobody dreams of fastening his hut door night or day.
  2. The following is a list of such of the black population as have been brought before the Supreme Court since its foundation, with the charges against them. I have not been able to obtain a return of the murders and robberies committed by the aborigines, which is wanted in order to render the other of much value, they have, however, been very numerous:—
     Year.  Murder. Robbery. Inciting to
    Not Guilty. Guilty. Observations.
    1841  9  7 2  Executed (Natives of V. D. Land.)
    1842  4 1  4 1  Aboriginal native, executed for the murder of Mr. Codd, in 1839 or 1840.
    1843 2 1  3
    Total, 13 3 1 14 3

    In this return those set down as Not Guilty, were in reality not put upon their trial, being found on the preliminary enquiry, not of sufficient capacity to understand legal proceedings, &c.

    The two men executed in 1841 were natives of Van Dieman's Land, and had been brought over by Mr. Robinson, Chief Protector of aborigines, and were supposed to be partly civilized, having been resident in his family several years; but they broke out one day, took to the bush with their arms and shot an American sailor whom they met by accident. The natives when brought before the Court, have the benefit of legal assistance, one of the most eminent counsel at the Port Phillip bar having, very properly, been appointed their standing counsel. He is paid by the crown.

  3. It is possible that a slight colouring given to some of the circumstances of this transaction may give a different complexion to the whole. Were there, however, the slightest ground for suspicion that the above was not a perfectly faithful account, I should never have published it; but my informant had the best means of knowing all the circumstances, and no conceivable motive for misrepresentation.
  4. One of the cases tried in 1841, was the ease of Bon John, a native, tried for the murder of another of the aborigines. Judge Willis, having doubts on the subject of the jurisdiction of the court, referred a case to the Sydney judges, who gave an opinion in favour of the jurisdiction.
  5. This is about to be earned into effect.
  6. The colonial legislature is restricted from passing any law repugnant to the laws of England.
  7. I was shown a paddock which had been tilled by the natives, but no work was going on when I was there.
  8. A medical gentleman now does the duty, and also attends to the medical part of the establishment: for the discharge of these complicated duties he receives but £110 per annum.
  9. These extracts from this work are copied from a Sydney paper.
  10. This statement goes to contradict the supposition that the natives had suffered under this epidemic previous to the arrival of Europeans; but this is one of those subjects on which it is difficult to obtain information amongst savage nations. How few, even in England, know how often the influenza had visited England previous to 1831, or that it had appeared there at five distinct' intervals in the eighteenth century, and once since the commencement of the nineteenth, namely, in 1803?