Wakefield Press
Out of the Silence
The History and Memory of South Australia’s Frontier Wars
Robert Foster is Associate Professor in the School of History & Politics at the University of Adelaide. Amanda Nettelbeck is Professor in the School of Humanities at the University of Adelaide. Their previous co-authored books, also published by Wakefield Press, are Fatal Collisions: The South Australian Frontier and the Violence of Memory (with Rick Hosking, 2001) and In the Name of the Law: William Willshire and the Policing of the Australian Frontier (2007).
Out of the Silence
The History and Memory of South Australia’s Frontier Wars
Robert Foster and Amanda Nettelbeck
Wakefield Press
1 The Parade West
Kent Town
South Australia 5067
www.wakefieldpress.com.au
First published 2012
This edition published 2012
Copyright © Robert Foster and Amanda Nettelbeck 2012
All rights reserved. This book is copyright. Apart from any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced without written permission. Enquiries should be addressed to the publisher.
Cover design by Stacey Zass, Page 12
National Library of Australia Cataloguing-in-Publication entry:
Author: Foster, Robert.
Title: Out of the silence [electronic resource]: the history and memory of South Australia’s frontier wars / Robert Foster and Amanda Nettelbeck.
ISBN: 978 1 74305 172 6 (ebook: epub).
Notes: Includes bibliographical references.
Subjects:
Frontier and pioneer life – South Australia.
Aboriginal Australians – South Australia.
South Australia – Race relations.
Other Authors/ Contributors: Nettelbeck, Amanda.
Dewey Number: 994.230049915
Contents
Introduction
Acknowledgements
Part 1 ‘The war between the races’
Chapter 1 Foundations
Chapter 2 British subjects or enemy aliens?
Chapter 3 ‘Our declared enemies’: frontier warfare
Chapter 4 The trials of the criminal justice system
Chapter 5 ‘The secrecy with which these transactions have been cloaked’: The culture of the settler frontier
Chapter 6 ‘The natural working of an unsound system’: Administrative responses to frontier violence
Chapter 7 ‘These war-like preparations’: the Mounted Police and the tyranny of distance
Part 2 Negotiating the Past
Chapter 8 Paving the way back
Chapter 9 The Great Australian whispering
Chapter 10 Placing the past in the present
Conclusion
Notes
Bibliography
Plates
Acknowledgements
Some sections of this work have previously been published in different versions: ‘The Rule of Law on the Australian Frontier’, Legal History, vol 13, no 2 (2009); ‘Colonial Judiciaries, Aboriginal Protection and South Australia’s Policy of Punishing with “Exemplary Severity”’, Australian Historical Studies, vol 41, no 3 (2010); ‘Commemorating the Past: Foundation in Regional Memory’, History Australia, vol 7, no 3 (2010); ‘The Australian Frontier in the Museum’, Journal of Social History (Summer 2011). We would like to thank the editors of those journals and the anonymous readers who provided us with valuable feedback.
In this book we revisit some of the events we first addressed in Fatal Collisions: the South Australian Frontier and the Violence and Memory; it has been necessary to do so because these events form an integral part of the more comprehensive analysis of the trajectory of the South Australian frontier which is undertaken here.
The authors would like to acknowledge the support of the Australian Research Council in supporting this project through an ARC Linkage Grant, and our industry partners, the South Australian Museum and the State Records of South Australia. We would especially like to thank Skye Krichauff and Jude van Konklenberg for their patient and methodical research, and Bain Attwood for his astute comments and corrections. Many thanks also to Michael Bollen and the staff at Wakefield Press for their continued support.
Introduction
In 1835 Britain’s House of Commons established a Select Committee to inquire into the conditions of Aboriginal people in British settlements. Chaired by the evangelical politician Sir Thomas Fowell Buxton, famed for his role in the abolitionist movement, the Select Committee was symptomatic of a building reformist politics over the past decade as Britain sought to reconcile the economic strength of its empire with an increasing sense of humanitarian duty towards Aboriginal peoples across its colonies.1 The Committee’s report of 1837 was forthright in its condemnation of past British policy toward ‘the uncivilized nations of the earth’. This had been a policy that had not only sacrificed many thousands of lives, it stated, but continued to have disastrous consequences for Aboriginal peoples:
Too often, their territory has been usurped; their property seized; their numbers diminished; their character debased; the spread of civilization impeded. European vices and diseases have been introduced amongst them, and they have been familiarized with the use of our most potent instruments for the subtle if violent destruction of human life, viz. brandy and gunpowder.2
The Select Committee’s report spoke strongly of rights. Aboriginal peoples had a ‘plain and sacred right’ to their soil, and Europeans had not only intruded upon that soil, but had then punished the original inhabitants for presuming to ‘live in their own country’.3 But although it issued a compelling reminder of the wilful neglect of Aboriginal rights across Britain’s colonies, the Select Committee’s report refrained from acknowledging the sovereignty of the Aboriginal peoples of Australia, whose political and social systems it regarded as being too ‘destitute’ to warrant that status. Instead, it argued, these peoples must be secured ‘the due observance of Justice’ through the extension of ‘civilisation’ and ‘Christianity’.4 The 1837 report illuminated a paradox at the heart of colonial endeavour in Australia from this time onwards, for although its language of humanitarian liberalism challenged a history of British settlement in which Aboriginal rights had been usurped, it did not fundamentally challenge Britain’s continuing possession of new territories.5
At the same time as the Select Committee was conducting its inquiries into the effects of colonisation on Aboriginal peoples across Britain’s empire, plans were evolving to establish the new colony of South Australia, which was formally proclaimed on 28 December 1836. South Australians now know this day as Proclamation Day, and celebrate it every year with a ceremony at the ‘Old Gum Tree’ near the beach-side suburb of Glenelg. This is the place where the colony’s inaugural governor Captain John Hindmarsh read ‘The Proclamation of South Australia’ and formally announced British possession.
The Proclamation was a remarkable document for the fact that, despite being one of the legal instruments by which Aboriginal sovereignty was overturned, well over half of it was devoted to the question of the rights and welfare of Aboriginal people and, in particular, their status as British subjects. In insisting upon this principle, the Colonial Office was mindful of the violence that had marked earlier Australian colonies, and was determined that the unequivocal extension of British legal rights to Aboriginal people would not only be a humane intervention but also a means of deterring the kind of settler excesses that had occurred elsewhere. In this respect the importance of South Australia’s Proclamation lay not only in what it claimed to offer Ab
original subjects of the Crown, but in the caution it offered to its European ones. As British subjects, Aboriginal people were unambiguously ‘under the Safeguard of the law’, and any ‘acts of violence or injustice’ toward them would be punished ‘with exemplary severity’.6
The nature and extent of frontier violence after 1836, and the degree to which the law operated to provide Aboriginal protection as British settlement unfolded, are therefore significant questions not only in understanding the character of South Australian settlement but also in analysing more broadly the terms on which British settlement in Australia took place after the 1830s. Having established authority over previously sovereign peoples, could colonial governments fulfil the promise of providing them with legal protection as British subjects, a promise which formed the moral underpinning of the assertion of British sovereignty?
The Australian frontier and the rule of law
Until this time in the Australian colonies, the treatment of Aboriginal people under British law had been marked by ambiguity and vacillation.7 Although the principle that Australia was settled rather than conquered implicitly suggested that Aboriginal people were British subjects from the moment of British occupation, their relation to British law was ‘largely a matter of chance’.8 The early instructions to governors in Van Diemen’s Land and New South Wales to attempt ‘conciliation’ with Aboriginal people were framed as a matter of intention rather than as a legal imperative.9 As a result, occasional efforts to afford Aboriginal people protection under the law were, for at least the first fifty years of British settlement in Australia, ‘certainly not the general rule’.10 Given that Aboriginal people could neither give evidence in a court of law nor be expected to understand its proceedings, the only course, according to New South Wales’ early Judge Advocate Richard Atkins, was ‘to pursue and inflict such punishment [on them] as they merit’.11 Atkins’ blunt assessment describes the broad shape of early Australian settlement. After an outbreak in the Bathurst region of New South Wales in 1824, in which the Wiradjuri had killed seven stockmen, Governor Brisbane declared martial law west of the Blue Mountains.12 Governor Arthur also employed this strategy on several occasions, most famously in August of 1830 when authorising the ‘Black Line’, his attempt to drive all the Aborigines from the settled districts.13 Though perhaps desirous of conciliating where possible, there is little sign that the Governors of Australia’s earliest colonies felt obliged to treat Aboriginal people as subjects of the Crown.
Interestingly, Tim Castle has shown that of the 363 executions that took place in New South Wales in the decade before 1836, only four of the executed were Aboriginal men; the vast majority were male convicts, not only indicating that convict crime rather than frontier violence was regarded as the most significant threat to social order, but also demonstrating the legal uncertainty that pertained well into the 1830s about the amenability of Aboriginal people to British criminal law.14 A case that seemed to clarify the status of Aboriginal people took place in New South Wales in 1836, the same year that saw the foundation of South Australia. This was the murder trial of R. Vs Murrell, in which the New South Wales court decided that an inter se case where one Aboriginal man had killed another was within its legal jurisdiction to try under British criminal law. However, the court’s reluctance to find Murrell guilty indicated continuing uncertainty about the treatment of Aboriginal people as British subjects, and despite the precedent set in taking this case to trial, judges elsewhere across Australia’s colonies continued for at least the next decade to express doubt that their courts held jurisdiction over Aboriginal peoples – peoples who not only shared no understanding of British law, but had shown no sign of submitting to it.15
Perhaps the most telling marker of continuing ambiguity about Aboriginal people’s status in the eyes of the law is that across Australia’s colonies, very few Europeans were brought to legal account over the course of the nineteenth century for the murder of Aboriginal people. The execution in 1838 of seven white men for the Myall Creek massacre in New South Wales – in defiance of considerable public pressure to acquit them – was an exception to the more enduring rule that the law ‘nearly always failed … to protect Aboriginal subjects’.16 Indeed, shortly after this event, Governor Gipps declined to prosecute New South Wales police who had shot dead a dozen or so Aboriginal people in a frontier clash in order to avoid offending the volunteer police force.17
In the Port Phillip district (later Victoria), Aboriginal protection under the law proved equally elusive. Susanne Davies has shown that between 1841 (when the district had its first resident judge) and 1847, five Aborigines were hanged for the killing of Europeans, despite doubts about their capacity to understand the proceedings and the inadmissibility of their testimony in court.18 In the same period, the death sentence of an Aboriginal man tried for murdering another Aboriginal was commuted, indicating the judiciary’s discomfort at invoking British law in inter se cases and continuing legal doubt about the status of Aboriginal people as British subjects. In contrast, only two cases in colonial Victoria saw Europeans tried for the murder of Aboriginal people, and in both cases the defendants were acquitted.19 To put this in perspective, Richard Broome has argued that Aboriginal fatalities on Victoria’s pre-1850 frontier can be calculated at 700 or more.20
In colonial Queensland, too, judicial punishment was directed more concertedly against Aboriginal and other non-European people, and even after capital punishment reform which prohibited executions as public spectacle, Aboriginal people continued to be gathered together to witness the hanging of their countrymen as an educational example and deterrent against ‘committing outrages upon settlers’.21 The ‘lawful violence’ practiced against Aboriginal people in colonial Queensland from the time of its separation from New South Wales in 1859 is perhaps best exemplified by the notoriously violent operations of the Native Police. In working to secure European settlement through the second half of the nineteenth century on Queensland’s northern and western frontiers, the corps of the Native Police worked through an implicit legal contradiction: on the one hand, Aboriginal people were in theory British subjects due the protection of the law; on the other hand (as Queensland’s Aboriginal Commission noted in 1875), ‘without an armed force the frontier settlement could not be maintained’.22
Western Australia might suggest a different pattern in so far as, like South Australia, it promised Aboriginal protection under the law not just as a vacillating ‘afterthought’23 but as a foundational principle. When Lieutenant-Governor Stirling proclaimed Western Australia as a British colony in June 1829, he stated (though without quite the definite force of intention expressed by Governor Hindmarsh in proclaiming South Australia in 1836) that anyone behaving in a ‘fraudulent, cruel or felonious manner’ towards Aboriginal people would ‘be liable to be prosecuted and tried for the offence as if the same had been committed against any other of His Majesty’s subjects’.24 Again, however, the historical record suggests that in Western Australia ‘both courts and the colonial government [realised] that Aborigines could not really be treated as British subjects’, and exercised a mixture of ‘legal and illegal remedies’ in responding to Aboriginal ‘crime’ well into the 1840s.25 And though technically British subjects, Aboriginal people would be policed on Western Australia’s remote northern frontiers with deadly force until the early twentieth century, while in contrast it proved virtually ‘impossible’ to investigate settlers for crimes against Aboriginal people.26
Bruce Kercher has noted that South Australia would seem most likely amongst Australia’s colonies to have an effective rule of law because, unlike other Australian colonies, a clear judicial system was established there ‘almost from the beginning’.27 As he puts it, legal ‘amateurism’ defined the first decades of New South Wales justice, as well as justice in the early Moreton Bay settlement under New South Wales’ jurisdiction before Queensland’s separation in 1859; Port Phillip had no resident judge until 1841 or Supreme Court until its separation
from New South Wales in 1851; and although Western Australia had a civil court from 1832, its judges were ‘flexible about the application of English law’ until a Supreme Court was established in 1861.28 However, although South Australia’s judicial structure may have been clearly established from the outset, implementing a rule of law on the frontiers of settlement proved to be altogether another matter.
Given that South Australia was distinctive in its explicit promise to protect Aboriginal people under the law, the history of how its settlement took place, and of Aboriginal resistance to it, has remained surprisingly under-researched in the historical scholarship of Australia’s frontiers.29 Likewise, although there is some excellent scholarship addressing the relationship between Aboriginal people, police and the law in colonial Australia, there has been surprisingly little sustained analysis of the practical processes by which Aboriginal people were brought under the authority of the colonial state.30 This book considers the ways in which these processes unfolded across the evolving frontiers of South Australia, and examines how governments and settlers dealt, in policy and in practice over the course of decades, with Aboriginal resistance to incursions upon their land. While these reveal a set of specific policing strategies and administrative mechanisms (with varying levels of effectiveness), they also demonstrate a process of wheels repeatedly being re-invented, most particularly because there was no global Aboriginal resistance but rather the singular response of dozens of Aboriginal nations faced with invasion of their lands.
Despite the foundational principle that Aboriginal people were to be considered British subjects under the law – a principle intended to set South Australia apart from the violence that had marked other Australian colonies – through the second half of the nineteenth century a unifying theme concerning the colony’s governors and administrators was whether and how Aboriginal people were in fact amenable to the rule of law. In 1863 South Australia’s Police Commissioner Major P.E. Warburton responded to Aboriginal attacks against settlers in the colony’s north by dispatching more mounted troopers and ammunition to the district. When the Protector of Aborigines protested against these ‘war-like preparations’, the Commissioner responded angrily that the police were ‘directed to endeavour to secure the legal punishment of these offenders, but this is next to impossible – These savages cannot be made to understand our Laws whatever pains we may take to teach them… they will not yield to the covenants of the Law whilst they have the least power of resistance’.31 On the one hand, the Police Commissioner was duty-bound to uphold the principle of the rule of law, which required the protection of Aboriginal peoples as British subjects; on the other, he knew his primary task in managing the frontiers of European settlement was to suppress Aboriginal resistance.
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