Murder at Myall Creek

by Mark Tedeschi

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  In Ireland, John Plunkett had seen first-hand the negative effects of the unity between church and state, and he had experienced discrimination derived from religion interfering in the business of government. He was determined that the religious divisions that had riven his homeland for so many centuries would not be allowed to infect the colony, and that the solution was to create a division between church and state – to secularise the state and all its institutions. Plunkett, the intensely religious man, saw religion as having no legitimate role to play in government or its institutions and believed that faith should be an entirely private affair. His solution was the Church Act of 1836.

  The enactment of the Church Act arose from one of the most remarkable partnerships for reform in the history of colonial Australia. It involved three men: Governor Sir Richard Bourke, John Hubert Plunkett and Roger Therry. Each man had originated in Ireland, although Bourke was a member of the Anglican aristocracy, while Plunkett and Therry were from the oppressed Catholic majority. All three were reformist by nature, believing in the equality of all men before the law, and were determined that the colony should avoid the religious sectarianism that had plagued their homeland. They realised that a direct move in the colony to remove the Church of England from its central role as the church of state would inevitably be met by a declaration of repugnancy in London. They had all been impressed by the non-sectarian system of public, government-funded schooling that had been established in Ireland in 1831 under a Board of National Education at the instigation of Lord EG Stanley, then the Chief Secretary for Ireland. The Irish system provided that children of all denominations were to be admitted to schools receiving government grants and that their instruction was to include religious teaching of an undogmatic kind. Bourke, Plunkett and Therry were keen to set up something similar in New South Wales.

  The seemingly impossible task of changing the status of the Church of England in the colony involved a carefully orchestrated manoeuvre – combining an attack from the flanks disguised as a cost-saving measure and a wide reading of instructions from London. On 30 September 1833, when Plunkett was still Solicitor General, Bourke sent a letter to Lord Stanley, who by this stage had become the Secretary of State for the Colonies, seeking approval from London to expend government moneys in New South Wales on any of the Christian religions that wished to build a house of worship and employ a clergyman. His letter explained this unusual request in these terms:

  I would observe that the Inhabitants of this Colony are of many different religious persuasions, the followers of the Church of England being the most numerous; but there are also large bodies of Roman Catholics and Presbyterians of the Church of Scotland, besides Protestant Dissenters of many different denominations having separate Places of Worship …

  I would observe that, in a New Country to which Persons of all religious persuasions are invited to resort, it will be impossible to establish a dominant and endowed Church without much hostility and great improbability of its becoming permanent. The inclination of these Colonists, which keeps pace with the Spirit of the Age, is decidedly adverse to such an Institution; and I fear the interests of Religion would be prejudiced by its Establishment. If on the contrary support were given as required to every one of the three grand Divisions of Christians indifferently, and the management of the temporalities of their Churches left to themselves, I conceive that the Public Treasury might in time be relieved of a considerable charge, and, what is of much greater importance, the people would become more attached to their respective Churches and be more willing to listen to and obey the voice of their several Pastors …

  I would propose that, wherever a moderate congregation can be collected throughout the Colony, and that a subscription shall have been entered into for Building a Place of Worship and Minister’s dwelling amounting to Sum not less than £300, upon application an equal Sum shall be issued from the Colonial Treasury in aid of the undertaking …

  I cannot conclude this subject without expressing a hope, amounting to some degree of confidence that, in laying the foundations of the Christian Religion in this young and rising Colony by equal encouragement held out to its Professors in their several Churches, the people of these different persuasions will be united together in one bond of peace, and taught to look up to the Government as their common protector and friend, and that thus there will be secured to the State good subjects and to Society good men.4

  Bourke received no reply from Lord Stanley, and had to wait until a new Whig Colonial Secretary, Lord Glenelg, replied more than two years later, in a letter dated 30 November 1835, with these words:

  His Majesty’s Government are deeply sensible of the importance of the subject thus brought under their consideration. They fully concur with you in the opinion that in no part of the World is the general Education of the People a more sacred and necessary duty of the Government than in New South Wales …

  I am disposed, therefore, to commit to the Governor and the Legislative Council the task of suggesting and enacting such Laws and Regulations for the distribution and appropriation of the Funds applicable to the general purposes of Religion and Education, as they consider best adapted to the exigencies of the Colony …

  Attached as I am, in common with the other Members of the Government, to the Church of England, and believing it, when duly administered, to be a powerful Instrument in the diffusion of sound Religious Instruction, I am desirous that every encouragement should be given to its extension in New South Wales, consistently with the just claims of that large portion of the Community, which is composed of Christians of other denominations. In dealing with this subject, in a case so new as that of the Australian Colonies, few analogies can be drawn from the Institutions of the Parent state to our assistance. In those Communities, formed and rapidly multiplying under most peculiar circumstances, and comprising great numbers of Presbyterians and Roman Catholics, as well as Members of the Church of England, it is evident that the attempt to select any one Church as the exclusive object of the Public Endowment, even if it were advisable in every other respect, would not long be tolerated.5

  Glenelg also approved of Bourke introducing a system of education based on the Irish national system.

  By the time Glenelg’s response had been received in New South Wales,6 John Plunkett had secured his place as the preeminent legal adviser to the Governor. With their equal zeal for reform, the Governor and his Attorney General had cemented a close personal friendship that was to last until Bourke left the colony.7 John and Maria Plunkett were frequent guests at Government House. The relationship between Plunkett and Therry was more problematical, but even longer lasting. Plunkett and Therry had been students at Trinity College and King’s Inn at the same time. Therry had preceded Plunkett in coming to New South Wales when he was appointed as Commissioner of the Court of Requests, a position that gave him freedom to practise as a private barrister. When Plunkett arrived as Solicitor General, he ranked above Therry. There was clearly a sense of competitiveness between these two men, whose careers overlapped for several decades.

  Bourke and Plunkett viewed the response from Lord Glenelg in London as an open invitation to press for far more than had been requested in the original letter or approved in the Colonial Secretary’s reply. They saw it as an opportunity to move in the direction of their real, underlying objective: to provide that the colony should have no established religion and that there should be neutrality between all faiths – Christian or otherwise. At Bourke’s request, Plunkett drafted a Bill to give legislative effect to Bourke’s original letter, but it went much further, in that it extended the benefits of state funding to all religions, including Baptists, Methodists, dissenting Protestants, and Jews. The next step was to present the Bill to the Legislative Council. However, before doing so, Bourke took steps to increase the odds of the Bill winning majority approval. Firstly, he appointed Plunkett as a member of the Council. Next, he prevented Bishop William Broughton from voting, on the pr
etext that he had only recently been appointed to the position of Anglican Lord Bishop of Australia, and until the appointment had been confirmed in London, Broughton should not take up his seat on the Council. In the meantime, the third member of the triumvirate, Roger Therry, agitated in favour of the Bill in the newspapers and in public in a manner that would have been inappropriate for the Governor or the Attorney General. The aim of this exercise was to convince swinging voters on the Council that the Bill had support from a wide spectrum of the community.

  After Plunkett’s appointment, at the first meeting of the Legislative Council on 2 June 1836, Bourke tabled the exchange of letters with London and two Bills that had been drafted by Plunkett: one to provide multi-denominational funding to all religions for their houses of worship and their clergy; and another to set up a National School System along the lines of the Irish model. There was much public debate in the newspapers and many petitions were sent to the Governor opposing both Bills. The most vociferous opposition was to the Bill that would establish a secular school system. A protest meeting was held at the Pulteney Hotel in Sydney on 24 June 1836, under the Chairmanship of Bishop Broughton, that was attended by the Episcopalian, the Presbyterian, the Independents, the Baptists and the Wesleyans. A resolution was passed opposing ‘any system of general education, which shall be founded on the principle of interdicting [i.e. excluding], either wholly or in part, the use of the Holy Scriptures according to the Authorized version’.8 These church representatives favoured a system of allocating state grants to religious schools under their own denominational authority, rather than the establishment of an independent school system outside their control. Only the Catholic clergy supported the proposals. A majority of the newspapers also opposed the schools proposal. At the core of the opposition were the conservative Anglican landholders and churchmen. No real assessment was made of the merits of a public education system, nor analysis of whether the successful Irish system would work well in the colony. The opposition was based on ignorance and a fear of the religious leaders losing control. So great was the ensuing public opprobrium of Bourke’s plans for a new school system that he realised that the secular Irish model was fraught with dissension in the colony, rather than generating sectarian peace and goodwill,9 so he withdrew the proposal from consideration.10

  On 27 July 1836, the Legislative Council met again to consider the Church Bill. It now referred only to state financial support for church buildings and stipends for the clergy, and made no mention of setting up a new school system. Apart from the Governor, there were twelve other members of the Council. The acting Chief Justice, James Dowling, was a fellow Anglo-Irishman, who was reform minded, like the Governor. There were two members of the Church of Scotland; two Presbyterians; two military officers; three traditional, conservative, Anglican pastoralists; a member of one of the non-conformist Christian churches; and John Plunkett – the only Catholic. The provisions extending the benefits of the Church Act to non-Christian religions were defeated, however, a majority of eight to four approved the legislation to provide equality of funding to Anglicans, Catholics and Presbyterian churches. Although the Church Act did not set up Bourke and Plunkett’s new state school system, the Council did vote at the same meeting to approve £3000 for schools.

  The Church Act was received with almost universal approval by the local Press, and the Australian noted the high quality of the speeches that had been made in the Council by Attorney General Plunkett and Chief Justice Dowling.

  In putting forward the Church Act, Bourke and Plunkett took an enormous risk. To detract from the status of the Anglican Church not only ran the risk of alienating the hierarchy of the Church in Australia, and its local adherents, but also the top echelons of the Church in England and the Colonial Office in London. Although on its face it was purely a fiscal measure, its true effect was to disengage the Church of England as the church of state in the colony by putting it on the same footing as the other Christian churches. This was entirely repugnant to a host of English laws that had been adopted over centuries to cement the Church’s role in the mother country at the centre of religious, political, legal, administrative and educational life. It could not be said that the circumstances in New South Wales were so different as to render these laws inapplicable to the colony, so there was every possibility that a law that had the effect of diminishing Anglicanism as the religion of state in the colony would be rejected by London under the doctrine of repugnancy. That it wasn’t is a tribute to Bourke and Plunkett’s negotiating and legal skills.

  While the Church Act was a limited provision that nominally provided only for equal state funding of the various religions, it had an effect far greater than that. It was immediately viewed in the colony as a bold statement of the equality of all religions. From 1836, it became an accepted convention that the colonial government would never intervene in matters of religious belief and that it would maintain strict neutrality between the various religions. For many years, public money was allocated to supporting denominational schools of all the Christian religions. Without even mentioning the status of the Church of England, Bourke, Plunkett and Therry had effectively rendered New South Wales a secular colony without an official state religion. By a masterstroke of tactics, they had achieved a separation of church and state at a time when those two institutions remained inextricably bound together in the home country. The measure irretrievably changed the relationship between the state and religion in all the Australian colonies.

  By the time Bourke left the colony in December 1837, the merit of his educational policies had become more evident to those who had opposed the new school system. When he departed, he was accorded tributes from every section of society, including Catholics, Protestants, Dissenters and Jews. It would be much later, well after Bourke had returned to Ireland, that Plunkett would be instrumental in setting up a public school system in New South Wales.

  In 1839, the Church Act was extended to apply to Methodists and other dissenting Christian religions. It was not until 1858 that the Jews Relief Act was passed in the United Kingdom, followed soon after in New South Wales.

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  The Church Act of 1836 is the reason why the Commonwealth of Australia that was established in 1901 was, and still is, a secular country with no religion of state. It is one of the great strengths of the nation, and, like the United States of America, one of the reasons so many migrants from diverse parts of the world have come over many decades, creating a peaceful, prosperous, democratic, multicultural society in which plurality and diversity are some of its foremost strengths. Meanwhile, in England, the Monarch is still the head of the Church of England. There is still a law that any member of the Royal Family who converts to Catholicism automatically renounces any right to the throne, and it was only in 2011 that the British Monarch could marry a Catholic. Australia owes a great debt to Bourke, Plunkett and Therry; because of the work of these men, the nation has been able to avoid the most blatant discriminatory measures on religious grounds that were a feature of so many European countries in their time.

  6

  SANCTUARY

  During the early 1830s, hot on the heels of the great explorers such as John Oxley, Charles Sturt and Major Sir Thomas Mitchell, cattle and sheep graziers appropriated large swathes of fertile land along the major rivers of the Liverpool Plains1 in the New England district of northern New South Wales, including what is now known as the Gwydir River, but was then called the Big River. The deep narrow valleys of the Big River offered ideal conditions for the grazing of cattle. There was an abundance of trees and steep mountains along the sides of the river, so that cattle could safely be contained with little effort, because cattle do not wander far from their drinking water and are not mountain climbers like goats or sheep. The nearby mountains also protected the verdant grassy floor from violent storms. The large pastoral landholdings, known as ‘stations’ or ‘runs’, had originally been covered in bush and used for millennia by the local Aboriginal in
habitants, the Gamilaroi, who would set fire to the low scrub near the river in order to encourage the growth of grasses that would attract the native wildlife, which formed the basis of their diet.

  With the arrival at the Liverpool Plains of white ‘squatters’, whose occupation of the land had no legal foundation, bush areas were cleared using assigned convict labour. The introduction of sheep and cattle had a devastating effect on the native animals, and hence on the local Aborigines. A flock of sheep or a herd of cattle could reduce a waterhole to polluted mush in a matter of weeks, depriving people and all native animals of clean water. This would quickly reduce the wildlife available for hunting and therefore the amount of food available to the Aborigines diminished, and starving tribes would soon resort to the cattle or sheep as a readily available source of sustenance. This soon established a source of conflict for resources between whites and blacks. The Aborigines had a number of unpalatable choices. They could relocate to areas where they could live on meagre charitable handouts of basic food from the whites. They could be employed on subsistence wages – often just food and a place to camp – on white stations, or as Aboriginal police trackers. They could live in the bush, surviving on the occasional sheep or cow, and run the risk of brutal retaliation from the far-better-armed whites. Especially in times of drought, which occurred with monotonous regularity, the competition for resources between whites and blacks became particularly intense, and the conflicts more vicious on both sides.

  Once the white settlers’ stations were established with the building of small workers’ huts and basic cattle or sheep yards, they were predominantly staffed by assigned convicts or ex-convicts, while the landowners lived in far greater comfort in Sydney or larger country towns. In the bush, the prisoners were given far greater freedom of movement than those in the more populated areas of the colony. Many of them worked on their master’s property virtually unsupervised, other than by an appointed manager, known as the superintendent, who was often himself an assigned convict or ex-convict. The ability to live and work without supervision by a master or his non-convict overseer was often preferred, particularly when it meant that a ticket-of-leave – the right to live as a free, emancipated citizen before the expiry of one’s sentence, to occupy and farm one’s own land, and to move more freely about the colony – might come sooner. It was far preferable to work as a stockman in the remote bush than it was to be part of a convict gang in irons constructing roads, bridges or public buildings in the more settled parts of the colony under the watchful eye of military guards and ruthless overseers. The rural convict workers in colonial New South Wales therefore tended to be more resourceful, trustworthy and dynamic than some of their Sydney counterparts.