Out of the Silence

by Robert Foster

  The jury argued that within their distinct communities the Aborigines upheld laws ‘for their own protection and government’; the limited contact with Europeans since settlement was insufficient to expect knowledge of European laws and usages to be communicated, or to justify ‘breaking up their own internal system for the punishment of offences to which all their previous traditions and habits give force and sanction’.91 This, the jurors continued, raised the real possibility that the imposition of British justice could result in someone being punished for a crime ‘which, in the minds of the persons punished, was simply the enforcement of their own mode of justice’. The jury argued a point that had repeatedly been raised since the colony was first established: that if Aborigines are to be amenable to British laws, they should first be made aware of them:

  That to compel such conformity (the result in our own social condition of centuries of progressive civilization, under the benign influence of Christianity), during the second decade of our residence, upon a race probably the lowest among mankind, both as to physical and intellectual position, would be an outrage on common sense, as well as a direct act of injustice.

  The jurors finally asked the judge to ‘define the limits within which it shall be the province of British law to interfere between the aboriginal natives in their own social relations’.

  Judge Cooper responded by insisting that two separate issues were involved: offences committed by Aborigines against Europeans, and offences committed among Aborigines. The former had to be treated like any other case under British law, for he could not see how Europeans could be made subject to the law and not Aborigines. Cooper noted that in the past he had made it a rule ‘not to try persons by our mode of trial who were not cognizant of our existence as a nation’.92 Regarding the second issue Cooper simply stated that if the court ‘had power to punish the aboriginal natives for offences against Europeans, the question of jurisdiction was settled, and it could try them for offences committed amongst themselves’. The judge repeated the necessity of instructing the Aborigines as to their standing under British law, and concluded:

  there was no more powerful means of civilization to instruct barbarians than teaching them practically the punishments that awaited them at the hands of Europeans for deeds of violence; and therefore the government should avail itself of every means of making all cases of punishment known amongst the natives.

  When the case was actually heard, on 19 May 1851, defence counsel Fisher argued that the prisoners ‘had no notion of our laws respecting murder, and … considered themselves justified, if not bound in duty by their laws, to put strangers to death’.93 But the judge, consistent with his previous address, refused to question the court’s jurisdiction and directed the jury to make their judgment ‘as in an ordinary case between Europeans’. The jury took fifteen minutes to find the three accused guilty of murder and the judge sentenced them to be hanged. Yet perhaps uncomfortable with the verdict, a fortnight later the Governor exercised his prerogative of mercy and commuted the sentences.94

  In a letter to the Governor, Cooper expressed his unease at trying Aborigines for crimes committed among themselves. He mentioned that he had spoken to the Chief Justice of New South Wales, James Dowling, who told him that he never interfered in cases between Aborigines, and that this was consistent with accounts from other colonies. Cooper saw the problem in this way:

  As settlers generally occupy the Country the natives are driven into narrower circles; but they pursue for the most part the same wild and rude kind of life as heretofore; their customs remain the same and so long as they do not trespass against the persons or property of the white race, they are not interfered with. Such I believe has been the manner in which they have been generally treated.95

  There is no question that judges of the Supreme Court had moral qualms about trying Aboriginal people for offences committed amongst themselves, but the letter of the law required them to be tried. However, as Pope demonstrates in his analysis of inter se cases in South Australia prior to 1862, judges had other ways of salving their consciences: most of the cases were dropped before they went to trial or abandoned on legal technicalities, and in the few instances where convictions were recorded, even for murder, the sentences were usually commuted or the prisoners were pardoned.96

  Inter se cases tell another story about the nature of frontier conflict. In South Australia’s south east region, for instance, the phase of most intense frontier violence lasted from 1844 to 1849 and involved attacks on Europeans, their stock and property, and a cycle of retaliatory violence. During this period no Aboriginal people were arrested for offences committed among themselves. This is hardly surprising; police had little interest in what was occurring on the other side of the frontier when their understood task was to protect settlers’ lives and stock. By the early 1850s, coinciding with the labour exodus brought about by the goldrush and the sudden demand for Aboriginal labour, we finally see a string of arrests for offences committed within the Aboriginal community. A similar pattern can be seen elsewhere in Australia’s colonies. Ann Hunter has shown that the question of inter se offences arose in New South Wales and Western Australia during the 1830s and 40s as a reflection of the emerging value of Aboriginal labour within the colonial economy. Prior to this, ‘both courts and the colonial government [realised] that Aborigines could not really be treated as British subjects, nor could British law effectively be applied in relation to inter se matters’.97

  Legal interest in inter se offences in South Australia’s southern districts from the 1850s can be read as an indicator of changed social relations, as a marker that the ‘frontier’ period was ending and that European authority had effectively been established. This was a pattern that would repeat itself as each new frontier opened up. Although during the frontier phase of settlement offences committed among Aboriginal people, such as killings for breaches of tribal law, were sometimes known to the authorities, they were deliberately not pursued. What this picture tells us is that the status of Aboriginal people as British subjects was accepted as a legal fiction until such a time as European occupation was effectively secured in practice; it also tells us that on the frontiers of settlement, Aboriginal people continued in practice to exercise a de facto sovereignty.

  Chapter 5

  ‘THE SECRECY WITH WHICH THESE TRANSACTIONS HAVE BEEN CLOAKED …’: THE CULTURE OF THE SETTLER FRONTIER

  As South Australia’s first decade as a British province drew on, pastoral settlement expanded rapidly, fanning out to the west and to the south east, which grew initially as an extension of the western Victorian frontier.1 As had become typical of the Australian frontier elsewhere, settlers arrived to capitalise on the potential of new country in the absence of any larger colonial infrastructure, and without the permanent presence of police. In terms of its climate and geography, the south east was quite unlike any other region of South Australia. Reasonably high rainfall and poorly draining soils meant that much of the land was swampy during the winter months. For the Buandig whose land it was, the environment shaped the nature of their occupation. In the winter months, their camps were on the high ground focused around Mount Gambier, and a low range that stretched along the coast. In the summer months, they shifted toward the coast where there was an abundance of fish and summer fruits. The country that was most attractive to the Buandig was equally attractive to the European settlers. It is notable that most of the attacks on European stock and property occurred during the winter months, when traditional resources were at their most scarce. As competition for diminishing resources increased, so did the violence between Aboriginal people and settlers. But as the dearth of cases against Europeans to come before the court indicated, although the authorities frequently had cause to suspect a culture amongst settlers of covert violence against Aboriginal people in such remote districts, it was often most difficult to prove.

  Amongst the first settlers to arrive in the south east were the Leake brothers, Robert and Edward, who
with their overseer John McIntyre established the Inverary run at Lake Leake in April 1843. In early June 1844, Robert Leake wrote to the authorities describing his trouble ‘with the natives’. Over the course of the last month, he wrote, his flocks and men had been attacked on eight separate occasions; sheep had been speared and others driven off.2 He also described ‘two battles’ with the Aborigines, during which he believed one Aboriginal man had been fatally shot and two others wounded. As it happens, Leake was meeting a legal responsibility to report a frontier fatality. By law, anyone who knew of an expected death, even at the furthest reach of the colony, was obliged to report it to the authorities at the risk of incurring a £10 fine.3 But Leake’s decision to report the shootings had little if anything to do with fulfilling the requirements of the law. His letter was motivated by a desire to impart to the government that he and settlers like him were victims of the government’s failure to protect settlers’ valuable stock from Aboriginal theft. Like most of his contemporaries, Leake’s sense of the role of police did not include belief in the principle that Aboriginal people were due legal protection as British subjects; patently, for them, Aboriginal people were not British subjects but a ‘criminal’ class whose threats to settlers’ property – regardless of whether produced by hunger, political resistance or any other conceivable motivation – it was the government’s responsibility to suppress. In short, Aboriginal people had become imagined as the invaders, while settlers were the stoical defenders of the colony’s economic future.

  Yet while he wanted to urge upon the government the material necessity of providing settlers with police protection against the loss of precious stock, Leake would also have been aware that in his description of clashes with Aboriginal people, he would need to be circumspect. He was, he claimed, in ‘constant dread of myself and men being murdered’; and if settlers were compelled to repel Aboriginal attacks on their property themselves, it was because the government’s failure to provide adequate protection left them with little choice.4 The Commissioner observed that given the remoteness of this newly opening district, it was ‘utterly impossible’ to provide the police support Leake requested. He asked instead that the recently arrived local magistrate Evelyn Sturt, brother of the explorer Charles Sturt, investigate the clashes on the Leakes’ station.5 In the depositions taken by Sturt, Leake stated that during the previous May one Aboriginal man had been shot in self defence while he and his men were attempting to recover their stolen property: ‘had we not succeeded in defeating them on this occasion, the lives of the men would have been endangered’.6 Reading Sturt’s report, the Commissioner of Police was suspicious that there was more than met the eye. He considered that the accounts provided by Leake and his men were ‘inadequate’ and that Leake and his men were bound to put their own actions ‘in the best light’, but that distance and the lapse of time made further investigation impracticable.7 As further inquiries would show, he had good reason to be suspicious, but little grounds of proof.

  Shortly afterwards, the Commissioner despatched Sergeant Major Alford to the south east to inquire into the state of the district. Alford spoke with Leake’s overseer McIntyre, who revealed that in one clash between Leake’s men and Aborigines, not long after they established themselves in the district, ‘eight natives had been shot’. This was quite a different account than the two or three men reported shot or wounded in Leake’s original letter requesting police protection. Alford’s report, which the Commissioner of Police summarised for the Colonial Secretary, went on to detail other concerns about settler actions in that district:

  The Sergeant Major learnt from another person on his way home as a rumour, that the natives of the Rivoli Bay District and Glenelg have generally been treated in a manner which can only be called atrocious if true. It was stated to him that damper poisoned with corrosive sublimate was given them. Another method of ill-treatment which can be vouched for is that of driving the natives from the only watering places in that neighbourhood. The native women appear likewise to have been sought after by the shepherds whilst the men were driven from the station with threats.8

  Although the Sergeant Major thought further investigation into the activities of Leake and McIntyre was warranted, a good deal of time had passed and ‘in the absence of the bodies of the slaughtered it may be impossible’ to establish the truth, especially given ‘the secrecy in which these transactions have been cloaked’.

  The following year, Robert’s brother Edward Leake wrote again to demand police protection for their stock, and described another ‘affray’ over lost sheep. In May 1845, he wrote, Aborigines had driven 165 sheep off the newly established SA Company run at Rivoli Bay and ‘many more’ off the Leakes’ run. He and the station workers had tracked the sheep to an Aboriginal camp where, faced with resistance in recovering them, they had fired three volleys upon the group. Although he did not detail whether there were any deaths, he noted that ‘two or three natives were seen to crawl away’.9 Once again, the Commissioner of Police was suspicious; he worried that settlers in the south east were leading themselves into ‘acts of unjustifiable hostility’ against Aboriginal people, and conceded that the time was right for police to be despatched.10 Two Mounted Constables were posted to the district in November 1845.11

  Whether or not the presence of small numbers of constables would make a significant difference to the nature of the remote frontier was another matter. Certainly, by the end of the decade, Protector Moorhouse was expressing the view that the level of police protection was not a good measure of whether or not the district remained peaceable.12 Despite the presence of the two police, Aboriginal attacks on the settlers and their stock did continue, following the contours of rapid European settlement: 19 runs had been taken up by 1845, an additional 30 in 1846 and another 20 in 1847.13 For the first few years of settlement in the district, the eyes and ears of the government were those of the local magistrate Evelyn Sturt. In August 1846, months after the arrival of a permanent police presence in the region, he reported the deaths of five Aboriginal men at settlers’ hands, all in separate incidents. He expressed his belief that ‘a wholesale system of murder is being carried on, which it is most difficult to obtain any evidence of’. The culture of secrecy around violence against Aboriginal people, he added, made it ‘almost impossible to get at the truth’.14 He related how one amongst the ‘nest of ruffians’ in the district, Owen Curran, had an Aboriginal man’s head ‘hung on a nail in his hut’. He advised against Curran being granted a depasturing licence, especially in a part of the colony ‘so remote as this, where a man has so much power to do evil’.15

  The remoteness of new pastoral districts and the difficulty of providing adequate police resources to them seemed almost inevitably to produce a hidden culture of settler reprisals against Aboriginal people. If some settlers felt driven to report these clashes – even in modified form – in order to gain the authorities’ ear, others recorded them only privately. The journal of Edward and Robert Leake’s neighbour Edward Arthur records an escalating series of ‘troubles’ with Aboriginal people over the course of 1844. Sheep were regularly driven off, shepherds and hutkeepers threatened and horses speared. In his journal, Arthur wrote of the ‘hostilities’ that ensued when he and his men attempted to ‘driv[e] off the Blacks’:

  a fight ensued; nor did they retreat until they had left many stretched on the grass – at a rough calculation, I should think about thirty fled; we then destroyed their camp, and took possession of their implements of warfare.16

  Although Edward Arthur was prepared to note privately that ‘many’ Aboriginal people were left ‘stretched on the grass’ after this clash, no report of it ever reached the authorities in Adelaide.

  If sometimes the details of violent reprisals against Aboriginal people were kept to the privacy of settlers’ journals or circulated as local knowledge within the settler community, at other times they came to the notice of authorities by chance, or because settlers sought legal redress in seeing A
boriginal sheep stealers further punished. A case that demonstrates both circumstances was a violent clash between Aboriginal people and shepherds that took place on John Hallett’s station in the mid north in July 1844 in which two Aboriginal people were killed. Local JPs Henry Price and George Hawker took statements from two of the five shepherds involved and issued a warrant for the arrest of an Aboriginal boy known to have been present, but saw no reason to press forward an investigation into the deaths, despite a statement from shepherd William Carter that he had shot an Aboriginal man and woman.17 When reports of the event finally reached the Advocate General’s office, he was annoyed that the ‘origin and extent’ of the affray were ‘still in obscurity,’ and reminded the JPs of their requirement to undertake a full investigation.18

  As details of this case unfolded, it proved to be one that exemplified the many difficulties of bringing effective legal process to the obscure culture of frontier violence. For a start, the incident only came to the authorities’ notice by chance, through the coalescence of two things. Firstly, the Protector of Aborigines Matthew Moorhouse happened to be visiting the district when he was told by local Aboriginal people that, some three months earlier, Hallett’s shepherds had ‘committed a daring outrage upon a group of natives’.19 Secondly, the station owner John Hallett, who wanted to see the Aboriginal sheep stealers further punished, brought charges against two Aboriginal men known to have ‘partaken’ of the stolen sheep, one of whom, Pari Kudnutya, would later provide an account crucial in raising suspicion against the shepherds.

  Wanting to pursue the Aboriginal reports, Moorhouse visited several stations in the district pulling together a picture of the incident. When he reached Hallett’s station and questioned the shepherds involved, he discovered that Carter had changed his account; ‘having originally made a very brutal disclosure to Mr Price … [that] he had killed a man and woman… he now swears that he saw no dead natives nor believes that any were killed’.20 On receipt of Moorhouse’s report, the Advocate General felt the case to be ‘far from satisfactory’, not least because Carter’s first incriminating statement had not been certified and forwarded by the JPs to his office.21 When finally Pari Kudnutya was committed for trial in Adelaide on the charge of stealing Hallett’s sheep, Moorhouse interviewed him and gained clarifying testimony.22 Pari Kudnutya told Moorhouse he had been present when Hallett’s men attacked the Aboriginal group and wounded four people; a man had died of sword wounds and a woman from bullet wounds. Two others had been shot but had recovered.23