In his report of the punitive expedition, published in the Register in September 1840, Commissioner of Police Major O’Halloran showed no doubt about the primary function of punitive action, which had little to do with the legal technicalities being debated in other quarters: ‘The impression … left on the natives’ minds of our activity in thus sweeping their entire country, will, I am persuaded, give them a high notion of our power, and teach them to dread it for the future’.46 Even in to the following year, newspapers expressed support for a ‘white man’s law’ that bypassed the niceties of the court. In July 1841, the Courier complained:
we hear of nothing but British law and trail by jury – as if, in the first place, the utter extermination of such a tribe would have been a matter of the slightest regret; and as if, in the next place, the enactment of a formal trial before a civil Court were not a complete farce. In all such instances summary justice is the best preventative against the repetition of crime, and is more likely – by striking terror at once – to get at the truth of events than a tedious process of law.47
But the execution of Aboriginal subjects without trial caused doubt and consternation in other quarters, most particularly in numerous editorials by George Stevenson, the editor of the Register, who challenged the government’s justifications of its action. Stevenson characterised the Advocate General’s description of the Milmenrura as a people beyond British law as the artful side-stepping of a barrister. He pointed out that the clear intention of the Proclamation, which he himself had worded, was to extend the protection of British law to all the Aborigines of the Province. Rather than ‘framing the law,’ the Proclamation merely stated what was already law – something approved of by the Home Government and already tested in the colony’s courts. Stevenson scoffed at Hanson’s description of the Milmenrura as a separate nation, pointing out: ‘If we treat the Murray tribe as a nation, we must concede to them the right to make their own laws, and what is more, we must deny the right of the South Australian nation to object to these laws, whatever they may be’.48
Through the mouthpiece of the Register, George Stevenson also emphatically rejected the authority of O’Halloran’s police party to employ summary justice. Although the police acted according to ‘moral conviction’ and were sanctioned by their instructions, it was impossible to reconcile their proceedings ‘either with the acknowledged rights of all natives within the province of South Australia, or with the inviolable principles of the British Constitution’.49 In essence, the hanging of the Milmenrura men was undertaken ‘by an unrecognised and unconstitutional tribunal’.50 He also rejected the logic of the view that ordinary law must be deferred because the case could not be legally tried; if it could not be legally tried, he argued, there was no other option than to consider the Milmenrura men legally innocent.51 In all, he rejected the ‘vigorous efforts’ being made ‘to justify an act which, legally and constitutionally, is unjustifiable’. At issue was the power of the Governor to order ‘the summary execution of any human being within the Province’.52
Stevenson made a steadfast point of distinguishing between the ‘moral’ grounds of punitive action and the requirements of the government’s own law. ‘Whether the natives themselves can be bound by the proclamation in question, or whether they recognise or value the title of English subjects, may admit of argument; but the Government, at least, is bound by its own act’.53 In contrast to those who justified the hangings as divine justice, there were many from among the colonists who agreed with the Register’s editor. ‘No man’s life’, argued one correspondent, whether that ‘of a British subject, or a savage native — can be taken away on the moral belief of his guilt, and in the proclaimed absence of “all legal evidence of crime”’.54 When the Register, despite its views, acknowledged that there was ‘a long and respectable list’ of people who expressed support of Gawler’s action,55 a correspondent wondered why no such list of names had appeared in print: ‘Is it that the absence of names of old and influential colonists would show too plainly how far it was from obtaining general approval’?56 Mary Thomas, in a letter to her brother George Harris, wrote that Gawler’s decision entailed ‘a most flagrant breach of the laws and constitution of England’ as well as an assumption of governmental power ‘which even the Sovereign does not possess’.57
The reaction in Britain was unambiguous: when details of the summary trial and execution were received by the Colonial Office the opinion of Crown Law officers was that the Governor had acted illegally and that he and O’Halloran were liable to be tried for murder.58 The Aborigines Protection Society in England met and roundly condemned Gawler’s actions.59 Within the year, the over-expenditures of this government would lead the Colonial Office to recall George Gawler and replace him with George Grey. Gawler had begun his governorship of South Australia with the determination to maintain peaceful relations between the colonists and the Aborigines of the province, yet with the Maria affair, his term ended in controversy and some degree of shame. Grey began his term with a similar determination to faithfully implement the principle of the rule of law set out in the Proclamation, yet within a year this determination was compromised, as Gawler’s had been, by events unfolding on the ever-expanding frontier.
Overlanders and the Rufus River Massacre
By 1839, as new surveys were completed, settlers began to move into country further distant from Adelaide. Enterprising pastoralists and adventurers saw an opportunity for profit, and provided the capital for overland expeditions to bring sheep and cattle from New South Wales. Two principal routes emerged: one through the Port Phillip district via the Lower South East of South Australia, and the other following Sturt’s path along the Murray/Darling River system. It was the second that would be preferred in the years between 1838 and 1842: it was direct and there was a sure supply of water for the stock. The first to bring cattle overland along this route was the explorer Edward John Eyre. In late December 1837 Eyre assembled a party of 8 men, three teams of bullocks and 300 head of cattle on the Limestone Plains of New South Wales. Although Charles Sturt had given him advice about the route, it would nonetheless prove to be a long and difficult journey. By June of 1838 his party reached the junction of the Darling and he knew there were just 250 miles to go before he reached Adelaide. Eyre was cautious about his dealings with Aboriginal people and completed the journey in July with nothing more serious to report than a hostile but harmless confrontation near the Rufus River.60 But in the following months and years, the traffic on the Murray/Darling route would grow exponentially. At its height there was an almost continuous train of sheep, cattle, bullock drays and horses, snaking their way along the river system from Sydney to Adelaide. Many of these entrepreneurs were much less reticent than Eyre to use violence to ease their passage.
Certainly there was good money to be made. James Crawford, who travelled the route in 1838, made a profit of £3000 from about 700 head of cattle.61 To put this in perspective, the annual salary of the Protector of Aborigines, Matthew Moorhouse, was about £100. The prospect of huge profits also entailed the risk of great losses. What was less clear at this time was the human cost of the passage. In October 1840 a correspondent to the Register suggested that the cost in Aboriginal lives was high:
There has seldom been an arrival by land from Port Phillip or Sydney, which on its reaching Adelaide, did not bring some tale of boasting and butchering the natives on the way. There are few in Adelaide who have communicated with the degraded ruffians employed in driving stock to this country, who have not heard them vaunt their exploits in shooting or ‘peppering’ the natives in their route. And there are well authenticated instances where both the stockkeepers and their masters have related tales of their shooting or hunting down the natives, which they have promptly recanted when it was ascertained that they were affording grounds for a dangerous enquiry into their own conduct. That firearms have been unhesitatingly and unscrupulously used by overland parties there is no doubt …’62
These, o
f course, were just rumours, but the journal of Alexander Buchanan’s overland expedition in the second half of 1839 appears to bear out the claims. Buchanan set out from Sydney in July 1839 and arrived in Adelaide in December of that year. His arrival went virtually unnoticed in the press, but his own journal suggests that it was far from an uneventful passage. On 1 October he recorded: ‘We gave the men the muskets and ammunition to-day as we may expect to fall in with the blacks’. On 15 November, when Buchanan’s party encountered an Aboriginal party at the junction of the Murray and Darling Rivers, he recorded:
the men fired upon them and we from the opposite bank fired upon them also and killed the old chief, when they all took to the Murray and we kept firing as long as they were within shot. There were five or six killed and a good many wounded.63
On November 22, ‘a black was seen in some reeds and the carter fired upon him and killed him. He had come with no other intention but to spear sheep, so his plant was fixed.’ Buchanan’s journal records that he fired upon Aboriginal people on half a dozen occasions, killing at least eight and wounding ‘many others’. The last of these clashes occurred on 7 December when Buchanan coolly noted that they saw ‘a good many blacks on the opposite bank of the river, fired upon them and killed one, the rest made off immediately’.64 There seems little doubt that Buchanan’s actions were pre-emptive. Just two days later Buchanan fell in with a settler party that included Governor Gawler, which had sailed up from Lake Alexandrina on a tour of the river. Asked whether ‘the blacks had been troublesome’, Buchanan records: ‘We told them they had been pretty quiet except at the Darling they annoyed us a little. Did not say we shot any’.65
As Aboriginal attacks on overlanding parties became more concerted and widespread, the need for secrecy about the use of guns diminished. In October 1839, when an overlanding supply party was attacked, the expedition leader McLeod reported that ‘after about half an hour’s sharp firing, which the natives stood admirably,’ the attackers were driven off.66 Shortly afterwards this party came across another overlanding party which had also been attacked nearby, and one of their number killed. Governor Gawler issued a public statement about the escalating violence. He had no doubt that Aboriginal hostility existed, in part, because of the ‘injudicious treatment’ they had received from Europeans; ‘it is certain that the natives have been frequently fired upon and many of them killed and wounded’.67
In April 1841 an overland party led by Henry Field and Henry Inman was attacked by a Maraura group near Lake Bonney: the overlanders shot dead at least one Maraura man in fending off the attack, but five thousand sheep and eight hundred head of cattle had been dispersed.68 The death of an Aboriginal man registered little mention; the loss of the stock, which represented a valuable import into the colony, caused wide consternation. Gawler, now in the last month of his governorship, immediately despatched a police party to the Murray River to retrieve the lost property. Members of the police force, which was still limited in manpower, were supplemented with volunteer militia. Major Thomas O’Halloran was in command of this expedition, as he had been of the punitive expedition following the Maria massacre the previous year. In his journal the Major noted that although the police ‘shall be careful not to be the aggressor in any way’, he anticipated that ‘the punishment ought to be severe to prove to them our power … I think that a severe lesson to this fierce tribe would greatly conduce to the preservation of life hereafter.69
The police party did not reach its destination, for news of Gawler’s recall by the Colonial Office obliged them to turn back. Frustrated by the loss of the awaited sheep and cattle, settlers organised a volunteer party, led by Henry Field, to set out to recover the missing stock. Amongst the party was James Hawker, who in coming years would become an influential and successful pastoralist. His diary reveals that the settlers shot six to eight Aboriginal men on this expedition, but failed to recover the stock.70
Meanwhile in Adelaide, Gawler had been replaced with the new Governor George Grey. When news reached Adelaide in May that another overlanding party led by stockholder Charles Langhorne was on its way down the river, colonists petitioned Grey to send a strong party of volunteers and police to the Murray to protect the overlanders on the route.71 Holding to an unambiguous understanding of Aborigines’ legal status as British subjects, Grey rejected the petition. For a start, he argued, the police should not be considered as a private security force to protect the enterprises of overlanders. He was equally reluctant to sanction an expedition in which volunteer colonists, unaccountable to the police force, might take part in acts of retribution against the Aboriginal population. He also doubted that the recent attacks on overlanders were unprovoked. Above all, he emphasised that all Aboriginal peoples held the same rights of British subjects as did all settlers, and that ‘to regard them as aliens, with whom a war can exist, and against whom Her Majesty’s troops may exercise belligerent rights, is to deny that protection to which they derive the highest possible claim from the sovereignty which has been assumed over the whole of their ancient possessions.’72 He did finally sanction an expedition, which would be led again by Major O’Halloran, but on conditional terms. Its primary function was to escort the overlanders to Adelaide, it would be accompanied by the Protector of Aborigines whose role was to ‘act as protector and counsel of the natives’, and weapons were only to be used when ‘absolutely necessary’ in self-defence.73
Before this third party reached the overlanders, Langhorne’s party and the Maraura had already clashed, and four of Langhorne’s stockmen had been killed. The Protector of Aborigines, Matthew Moorhouse, later reported to Grey that Langhorne’s party had shot and killed at least five Maraura men, though no Aboriginal deaths were mentioned in Langhorne’s report.74 With the Governor’s clear instructions against the use of firearms, the police party was obliged to return to Adelaide without having retrieved the stock. ‘I much fear’, O’Halloran wrote in his journal, ‘that allowing these fellows to escape without injury will do much future Mischief & make them more bold & daring than ever.75
In August, petitioners again pressed Grey to send armed protection to the Murray with the news that another overland party under the leadership of William Robinson was passing through the same contested territory.76 Again Grey hesitated, reluctant to commit government resources to a cause which not only might ‘involve alike the innocent and guilty, men, women, and children in its consequences’ but also was ‘a matter of private adventure, not of public utility’.77 But again he agreed to endorse an expedition to the Murray, this time a smaller party commanded by the Protector of Aborigines Matthew Moorhouse. The Sub-Inspector of Police Barnard Shaw would be second in command. The ‘main object’, Grey instructed Moorhouse, was to prevent a collision between the overlanders and the Maraura; Moorhouse should take every opportunity to establish good relations between the two groups.78 Yet when the Moorhouse/Shaw party met Robinson’s party on August 27, it was to learn that the overlanders had been attacked the previous day and in defending the stock had killed five and wounded another ten Aboriginal men.
Within an hour of this meeting, Moorhouse’s and Langhorne’s parties were confronted with a large group of Maraura men, women and children on the banks of the Rufus river. Fearing imminent attack, Moorhouse gave over command to Shaw. Without waiting for Shaw’s orders, Langhorne’s party opened fire, followed by the police party from the opposite bank of the river. Moorhouse’s report suggests that perhaps thirty Aboriginal people were killed and many wounded,79 though other records suggest this figure to be higher. In his memoir published in 1899, James Hawker wrote: ‘in after years, when I was residing on the Murray and had learnt the language of the natives, I ascertained that a much larger number had been killed, for Mr. Robinson’s men were all picked marksmen’.80
When the party returned to Adelaide in September, Grey called an inquiry into the massacre. The resolution of the Bench of Magistrates was that the party’s conduct was ‘justifiable, indeed unav
oidable in the circumstances’.81 In this case, unlike the case of the Maria massacre the previous year, all the principles of the rule of law had been observed. Nonetheless, the final result was that when faced with strong Aboriginal resistance to European incursions, the government again sanctioned and justified the use of deadly force against a people deemed to be British subjects. The outcome on the Rufus River was the largest recorded massacre of Aboriginal people in the colony’s history.
Grey’s immediate response in the aftermath of the clash at Rufus River was to appoint the explorer Edward Eyre as Resident Magistrate and Protector of Aborigines on the River Murray. Eyre established his outpost at Moorundie, mid-way between Adelaide and the site of the clashes on the Rufus. He was directed to devote ‘his attention to the suppression of outrages on the part of overland parties, and to the civilisation and improvement of the natives’.82 These objectives were to be achieved in the following way:
I have directed Mr Eyre to bring into operation a system of periodical distributions of flour to the natives; – this distribution being made dependent on their good conduct. They are to assemble on every other full moon, for the purpose of receiving these presents. Opportunities will thus be afforded them of bring under Mr Eyre’s notice any grievances, under which they may be suffering; and he, at the same time, can impart to them any regulations or directions for their guidance. I confidently anticipate that the measures thus adopted will, for the future, prevent a recurrence of scenes similar to those which I have lately had to bring to your Lordship’s attention.83
On the eve of quitting England to take up his post as Governor of South Australia, George Grey had written to the colonial office expressing his surprise at the ‘total absence of any armed forces in South Australia’, forces that might be necessary to repel an attack by foreign enemies, be brought to the aid of the Civil Power, or in the event of other emergencies. To this end, he asked if ‘one of two companies of Infantry’ might be granted the colony.84 Just days after assuming the governorship of South Australia he addressed the issue again, this time in a letter to Governor Gipps in New South Wales requesting ‘two or three companies of infantry’. Governor Gipps sent him a terse response declining his request and advising him that he was only authorised to send troops ‘in a case of emergency’.85 The violence on the overland route was just such an emergency. On 12 June 1841, as the rescue expedition under the command of Moorhouse and Shaw was heading up the river to give assistance to overlanders, Grey again requested Gipps to provide him with a detachment of troops:
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