When a new set of surveys was completed in July 1840, Governor Gawler instructed Protector Moorhouse to reserve sections of land on behalf of Aboriginal people before they were opened to selection by colonists. Moorhouse set aside several parcels of land in districts that seemed to correspond to areas associated with particular Aboriginal clans. Despite the modest size of these reserved lands, representatives of the South Australia Company, including the former Resident Commissioner Fisher, were furious. The preliminary land orders they had purchased in England, they complained, gave them the right to have first choice. Governor Gawler responded with what must be one of the most passionate defences of Aboriginal rights to land ever heard in the Australian colonies. Aboriginal people, he said, ‘have exercised distinct, defined, and absolute rights of proprietary and hereditary possession … from time immemorial’.15 He reminded prospective land owners of his instructions, which commanded him to protect Aboriginal people in ‘the free enjoyment of their possessions … and of which they are not disposed to make a voluntary transfer’.16
Yet despite this unequivocal statement on Aboriginal proprietary rights, Gawler ultimately implemented a much more compromised policy, based on the view that Aboriginal people would, given their ‘limited knowledge’, be put at disadvantage if they were to enter into treaties and bargains. Gawler’s instructions as both Governor and Resident Commissioner certainly gave him authority to enter into land cession treaties of the sort that were regularly being negotiated in British north America, but he did not pursue his authority in this way. Instead he directed the Protector
to select such land for the natives, in moderation, as he may deem likely to be necessary for their future use, support, and advancement in civilisation: such land being afterwards secured in the Governor, and Council, and the Protector of Aborigines, as trustees.17
Before long, the passage of the Imperial Waste Lands Act of 1842, which gave Governors the discretionary power to set aside lands for Aboriginal use, would settle the question. Henceforth, parcels of land would be set aside for Aboriginal people, but only to the extent that this would serve their eventual ‘civilisation’ and ‘Christianisation’: that is, they could have land if they farmed it. Although Gawler’s compromised approach seemed to signal a contradiction between rhetoric and policy on Aboriginal propriety rights, it actually echoed the paradoxical logic of the 1837 Select Committee report: on the one hand, Aboriginal people, in Buxton’s words, had a ‘plain and sacred right’ to their soil, a right at least acknowledged in some other British territories where land cession treaties were negotiated; on the other hand, Australia’s Aboriginal people were regarded as being insufficiently advanced in ‘civilisation’ to have this ‘plain and sacred right’ recognised in law.
In South Australia, as across Australia’s other colonies, the failure to adequately deal with Aboriginal rights to land was fundamental to the violence that followed in the path of the pastoral frontier wherever it spread. This failure rendered Aboriginal people both state-less and property-less, the consequences of which were anticipated by Governor Arthur when he wrote to the Colonial Office in 1835 pressing the necessity of land treaties. Aboriginal people may have been made British subjects, but by virtue of that nominal status they were instantly made the unsovereign trespassers on their own land. District by district and year by year, as the frontiers of European settlement spread into the interior, dispossessed Aboriginal peoples responded to European aggression with aggression.
The Maria Massacre
On 25 July 1840 the police at Encounter Bay, about 100 kilometres south of Adelaide, received news that a ship had been wrecked on the south coast and that the survivors had been murdered while attempting to return overland to Adelaide.18 The ship was the brig Maria which had departed Adelaide for Hobart on 7 June 1840 with a crew of ten, and sixteen passengers.19 A party under the Marine Surveyor, Captain Pullen, set out from Adelaide to search for survivors, but no one had been spared. They recovered a number of bodies buried in the sand, and the victims’ scattered belongings.20 The murder of the twenty six survivors of the Maria was the largest massacre of Europeans by Aboriginal people in Australian history.
In Adelaide, the murder of a large group of European settlers in a remote district of the colony caused consternation, fear and outrage. Governor Gawler, relatively new in his role as Hindmarsh’s successor, faced a crisis that neither his predecessor nor the colony’s founders had anticipated, and it was the first significant occasion on which the legal status of Aboriginal people beyond the settled districts could be put to the test. The demand for ‘exemplary’ action jostled with the requirements of the law. Yet in the face of the massacre of twenty six Europeans, Gawler had few precedents in determining how to respond. With colonists calling for immediate action, Gawler called a special meeting of the Executive Council to advise him. Judge Cooper and Advocate-General Hanson argued that the crime had been committed ‘beyond the reach of ordinary British Law’.21 Being unable to take an oath, Aboriginal evidence would be inadmissible in any case that might go to trial; and in the absence of survivors, there was no European evidence. Given the legal advice he had received, and ‘considering the district in question as in a disturbed state’, Gawler decided to proceed ‘on the principles of martial law’.22
No formal proclamation of martial law was made, since the Council feared that making public the adoption of the ‘principles of martial law’ might injure the reputation of the colony.23 This, however, was effectively what it was. A police party was sent to the district to secure summary justice against the offending tribe. This was to be the first significant occasion in South Australia, though by no means the last, on which the police force would be enlisted against an entire Aboriginal group in the cause of punitive action.
Until this point, there had been little reason to consider the role of the police as one that would involve serious action against the newly identified Aboriginal subjects of the Crown. When Aboriginal people murdered shepherds William Duffield and James Thompson in the Adelaide area in 1839, acting Governor James Stephen, in Gawler’s absence, cancelled all government rations to Aboriginal people in Adelaide and lectured as many Aboriginal people as could be mustered to a public meeting on the principle that the government would ‘always protect white men and punish wicked black men’.24 The editor of the Register protested that the acting Governor’s actions risked placing Aboriginal people beyond British law, a violation of the principle of the Proclamation, and indeed when Governor Gawler returned, he immediately restored the rations that had been withheld, and to further prove his friendly intentions, invited Aboriginal people from the Adelaide area to a dinner in the grounds of Government House to celebrate Queen Victoria’s birthday.25
In 1840, in fact, the colony’s police force, still in its fledging state, was neither intended nor organised to fight a war on any significant scale against any Aboriginal aggressions that might arise. Its manpower was limited, and its primarily metropolitan peace-keeping role thus far had been committed to duties such as apprehending drunk and disorderly persons on the streets of Adelaide, preventing the disorderly from discharging firearms or fireworks, fining culprits who let their livestock stray into the streets, and ensuring the registering of dogs.26 In the absence of a large body of enlisted men, Governor Gawler had early in that year encouraged the formation of a voluntary militia, furnished with arms provided by the Colonisation Commissioners, which would supplement the police force and be called out in ‘exceptional circumstances’.27
The police force quickly took form, however, under Gawler’s commitment to it as an essential public service. When the Maria tragedy occurred, the new office of the Commissioner of Police had just a month previously been established. This office was held by Major Thomas O’Halloran, a former military man who had served as an officer in the British army in India. Another former military man, Alexander Tolmer, was appointed his second in command as Sub-Inspector of police. According to Robert Clyne, the
new Commissioner of Police was a ‘frustrated soldier’ who ‘frequently displayed an inability to appreciate the civil function of the police department’.28 Trained within a military environment, both he and Alexander Tolmer would be influential in organising the fledging South Australian police into a para-military force. Both would have a significant impact on the consolidation of the police as a security force in the coming years.29
Before his party left for the site of the murders on the south coast, O’Halloran’s instructions were ‘to apprehend, and bring to summary justice, the ringleaders in the murder, or any of the murderers (in all not to exceed three).’ Although further bloodshed was to be avoided if possible, O’Halloran had the Governor’s assurance that if he had to ‘resort to extreme force against the whole tribe’, he would not be held accountable. If deemed to be guilty, the Aboriginal suspects were to be hanged or shot on the spot.30 As Robert Clyne has pointed out, Commissioner O’Halloran’s instructions in this case took the police’s civil role as a putative peace-keeping force to a martial role of administering ‘belligerent rights against a declared enemy’; and as commander of this expedition, O’Halloran would serve as ‘judge, jury and executioner’.31
O’Halloran’s party left Adelaide on 15 August. Upon reaching their destination they found ample evidence of violence: blood-stained clothing, the scattered leaves of a bible, the ship’s mail, and part of the ship’s log. On 23 August they rounded up 13 men, 2 youths, and 50 women and children, although they later let the women and children go. Two Aboriginal men seen fleeing the area by swimming across the Coorong were shot. On interrogation the captive group implicated two men, Moorcangua and Mongarawata, as those involved in the murder of the Maria survivors. On 24 August the two men were unanimously found guilty by a tribunal formed from members of the expeditionary force, and on the following day they were hanged over the graves of the Maria victims.32
Over the following month, the government sought to justify the decision to invoke martial law. At a meeting of the Executive Council on 15 September, 1840, the most unequivocal defence was offered by Advocate-General Hanson who began by asking: in what position do the Aborigines of the Province stand in relation to the Government? He argued that the doctrine which declared the Aborigines as British subjects should hold only under certain conditions. To those who were in constant intercourse with colonial society, exhibited friendly dispositions, and were advancing in civilisation, ‘the ordinary forms of our constitution and laws may be beneficially and effectually applied’.33 But British law could extend no further than this:
it would be assuming too much to hold that the same maxims and principles must be applied without modification to distant tribes, inhabiting a territory beyond the limits of our settlement, with whom we have never communicated under friendly circumstances, whose language is equally unknown to us as ours is to them, and who betray, in all their intercourse with Europeans, the most savage and brutal hostility – who have never acknowledged subjugation to any power, and who, indeed, seem incapable of being subjected to authority, or deterred from atrocious crimes, except by military force.34
If further bloodshed and plunder were to be prevented, he argued, it was necessary that tribes such as the Milmenrura, the people accused of the crime, be considered a ‘separate state or nation’. He cited Vattel’s influential Law of Nations to argue that those who ‘disdain to cultivate their lands, and choose rather to live by plunder, are wanting to themselves – are injurious to their neighbours – and deserve to be extirpated as savage and pernicious beasts’. Hanson also argued that the Milmenrura had a history of hostility, and it was therefore necessary that measures ‘summary and severe were adopted to terrify the whole tribe by a sense of our power and determination’. Their crime should be regarded ‘not as that of individual British Subjects, but of a whole hostile tribe, that is a nation at enmity with Her Majesty’s subjects’. His defence of the government’s decision was completed with an assertion that Hindmarsh’s Proclamation was directed more towards ordering the conduct of the settlers, than in extending the benefits of the British constitution to all Aborigines.35
On 30 September a bill was introduced in Council to allow Aborigines to be received as competent witnesses in criminal cases. With the question again raised of the Aborigines’ constitutional position, Gawler had another opportunity to defend his actions in the Maria case. He characterised the Aborigines’ ‘proper position in the eye of the law’ as a ‘question of the greatest difficulty throughout the whole continent of Australia’.36 While he admired the British constitution, its extension to the Aborigines of South Australia posed difficulties. The constitution, he stated, had gone through a thousand years of development, and
it cannot be fully received or properly appreciated even by civilized nations of an inferior class, much less by the savages of Australia, who stand in the lowest degree in all the earth in religion, government, arts and civilization. In all these respects they are morally, as in material things they are physically, the antipodes of Britain – and it is not an easy thing to make antipodes meet.37
Gawler argued that even in Britain there were people under the same incapacity as the Aborigines. ‘Atheists, idiots, and very young children’ were under the protection of the law, but they were also ‘deprived of great liberties and privileges’. If such people, he argued, were gathered together in an isolated mass, occupying great tracts of country and speaking an unknown language, ‘our present laws would be in reference to them … powerless, and that to have law at all a very great change would be required in the principles and practice of the parent state’. If the murderers had been given the protection of British subjects, he concluded, ‘crime would have followed crime, the blacks intermixed among us would have caught the example, other persons of another description might have become emboldened by the impunity enjoyed by the blacks, and even the settled portion of our territory would have witnessed scenes of blood, robbery, and desperate contention’. His interpretation of the extension of rights as British subjects was that they were conferred ‘as a boon and not as a right, in the rate and degree at which they would be beneficial to the natives, and safe for natural born subjects, and not all at once’.38
Shortly afterwards Justice Cooper, who had advised Gawler that the case lay beyond the reach of British law, also felt compelled to justify his views in a statement to the Court sessions. He appealed to the idea that summary justice represented a kind of commensurate law in the Aboriginal world; he could see no reason why the Milmenrura people should feel that they owed any allegiance to the British law, but their crime was a crime against nature, and one for which they themselves would have inflicted death.39
Outside of the Executive Council, Gawler’s view enjoyed considerable support. The Southern Australian newspaper steadfastly defended his actions, suggesting that his ‘energetic system’ of administering punishment to the Aborigines was efficient, and approving of his assertion that the extension of the rights of British subjects to the Aborigines was a boon rather than a right.40 Plenty of correspondents from among South Australia’s colonists agreed. One respondent argued that just because Aboriginal people might ‘reside’ in a British province, it did not follow that they deserved British rights.41 Another considered that Aboriginal people were amply compensated for the loss of their lands by colonists’ goodwill, and the extension to them of British subjecthood was too much to expect.42 Another argued that the executions of the Milmenrura men fulfilled divine justice, a higher law than man’s, and therefore Gawler could be defended by the most unimpeachable authority of all.43 A letter of address to His Excellency expressing ‘public approval and appreciation’ of his actions was circulated and made available to be signed at various offices, and The Southern Australian urged all to ‘come forward with promptness and decision’ to add their name to the list of supporters.44 The deaths of twenty six Europeans had caused fear as well as outrage, and legal debate about the status of Aboriginal people was of
less import to many colonists than their future security. In September, The Southern Australian spread alarm with a report that ‘the Milmenrura nation, after having massacred the unfortunate people of the Maria, had invaded the neighbourhood of Lyndoch Valley in a most formidable number’. The Register immediately responded with a counter-report in an attempt to diminish unnecessary anxiety, with a correction that ‘only about half a dozen blacks’ were seen on a hunting excursion, were not of the Big Murray tribe, and had ‘heard nothing of any attack or any disturbance’.45
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