Murder at Myall Creek
Page 18
Mr Plunkett was repeatedly consulted by the Secretary of State for the Colonies relative to the Bill for the Government of New South Wales, then being prepared for introduction into the House of Commons; and we have cause to know that much deference was paid to his opinions; and that it is to the suggestions made by him that many of the best features of the Act are attributable; particularly in the amendment of its qualification and disqualification clauses.15
While in England in 1843 Plunkett was also instrumental in lobbying the British Parliament to pass the Colonial Evidence Act that empowered individual colonies to enact local Aboriginal evidence Bills, granting Aborigines the right to give unsworn evidence in courts. It was now permissible for New South Wales to enact such legislation, and Plunkett fully intended to introduce it if and when he returned to the colony. But, would the colonial legislators rise to the occasion?
While in the British Isles, Plunkett made subtle enquiries to see if he might be offered a suitable position in England or Ireland. However, he soon realised that the prospective positions in either location were far lower in standing than his existing position in New South Wales, and, in fact, no offers were forthcoming. At the time, Ireland was in a parlous economic state and there were few jobs. Having completed his private affairs and his lobbying activities, John, and a disillusioned, reluctant Maria, set sail for Sydney in April 1843.
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John Plunkett arrived back in Sydney in August 1843 to find that William à Beckett had been confirmed as Solicitor General. The main reason that Governor Gipps chose à Beckett over Roger Therry was that he considered it undesirable from the point of view of public perception to have both senior law offices held by Catholics. John Plunkett resumed his post as Attorney General.
At the earliest opportunity, in 1844, Plunkett set about convincing the Legislative Council to pass an Act – now permitted by English law – allowing Aborigines to give unsworn evidence in court if their testimony was corroborated by a witness who had taken an oath. Plunkett addressed the Legislative Council in strong terms, pointing out that massacres had gone unpunished. His speech was reported in the Sydney Morning Herald:
The motive he [Plunkett] had in bringing in this measure was to put an end to bloodshed, and murder, and crimes which he feared were but too frequently perpetrated, but which escaped detection and punishment because the Aboriginal natives were excluded from the witness box. The crimes he feared were much more frequent than they would be, if the parties knew that they could not commit them with impunity. To this day, however great an outrage was committed upon the Aborigines or by them, the guilty parties could not be brought to justice unless there was one or more white men to give evidence as to the facts. Murder might be committed with impunity, and as he had said before, frequently was. Many cases had been brought forward which were sufficiently clear to him, but there was not legal evidence to go to a jury; in some cases indeed, the parties had been prosecuted, and convictions had been obtained, but it was not without the greatest difficulty, and this because the Aborigines who were witnesses of the crime were not permitted to make their statements in Court. The Imperial Parliament, when they passed the Act authorising the Council to pass such a measure as this, had all the circumstances of the case before them; they were well informed as to the nature and character of the Aborigines, and in the preamble of the Act they were characterised as uncivilised, barbarous, without any religious impressions, without any idea of a God, and without belief in a future state of rewards or punishment; and it was on this account that the Act of Parliament did not go the length of authorising the Council to place them on an equal footing with ordinary witnesses, but merely raised them to the level of approvers[informers]; their testimony was only to be regarded so far as it was corroborated by other evidence, and there were many cases in which the ends of justice were defeated, but in which it would not have been so if the statements of the Aborigines had been received, as those statements would have been fully borne out by competent witnesses.16
Plunkett went on to describe – somewhat inaccurately – the problems he had experienced nearly six years earlier in the prosecutions of those responsible for the Myall Creek murders. According to the report:
He [Plunkett] would mention one case only, which occurred in the neighbourhood of the Big River. Some eleven or twelve stockmen had been scouring the bush for some days in search of a tribe of blacks; about sunset one evening they came up with a tribe, although not the one which they were looking for; the blacks were assembled around their fire, camped for the night; a rope was immediately put around the whole of them, twenty-four in number, and they were led away to a place about a mile and a half distant, where there were discovered signs which left no doubt that they had been most inhumanly massacred. But of this fearful slaughter there was no living witness except one, besides the perpetrators of the deed, and that one was inadmissible as a witness. That one was an Aborigine, distinguished from others as a tame black, having been for some time domesticated with some shepherds in the neighbourhood of the scene of slaughter. These shepherds, anticipating what was about to take place, but afraid to show themselves, sent this black to watch the murderers; and he contrived unseen, to get behind a tree on a slight eminence near the scene of slaughter, and witnessed the whole of the horrible affair. If this man’s evidence could have been received, the shepherds would have been able to corroborate it; they would have deposed to the previous circumstances, to the leading away of the blacks, and to then sending the tame black to watch the proceedings, and they could have given evidence as to his conduct afterwards, so that the case would have been brought home to the guilty parties; but as the law was, the crime remained unpunished.
The newspaper concluded:
He [Plunkett] did not apprehend that much danger could arise to others from the admission of Aborigines as witnesses. The juries of this country would be well able to judge what weight should be attached to the evidence of the blacks. There were but too many whites in this colony who were utterly unworthy of belief, even on their oaths and the juries of the country showed that they know well how to appreciate such evidence, by throwing it entirely out of their consideration. It was only just, he considered, that the Aborigines, however ignorant, however barbarous, should be protected from outrages on their persons and their lives, and this protection would in some measure be afforded by allowing their statements to be received in Courts of Justice, although those statements should not, on the other hand, be allowed to have any weight at all, unless fully corroborated. In the same way as Judges cautioned juries against receiving the evidence of approvers [informers], when that evidence was uncorroborated, so juries would be cautioned against receiving that of Aborigines; and the effect of the Bill, if passed, would be to restrain parties from committing outrages on the blacks, who now calculated on being able to commit them with impunity.
In reply, Robert Lowe, barrister and member of the Legislative Council, said that the Bill would risk the lives of white people to the uncertain consciences of Aborigines. William Charles Wentworth attacked Plunkett personally by referring to his enduring criticism of the execution of those convicted of the Myall Creek killings by labelling them as ‘legal murder’ and a ‘violation of every principle of law and justice’.17 Despite the imprimatur of London, the Legislative Council rejected the Bill. For the second time, John Hubert Plunkett had sought to provide the Aboriginal population with access to the courts, and once again he had failed to convince his contemporaries of the desirability and fairness of this reform.
The failure of the 1844 Bill was, according to Professor Bruce Kercher, a reaction to the Myall Creek murder trials six years earlier:
The murders at Myall Creek had become a focus of the debate about law on the frontiers of New South Wales. Each side clung to its version of the second trial’s outcome. The 1844 Bill failed largely because the majority believed an injustice had been done to the murderers and because of an irrational belief that the Bill would encourage further A
boriginal attacks. The formal legal position was that Aborigines were British subjects, but New South Wales was left without any means to begin to give them access to the British version of justice. They were subjects without enforceable rights.18
In 1849, Plunkett tried for a third time to introduce a Bill for the admission of Aboriginal evidence, but again the Legislative Council rejected it. Plunkett could not understand the reluctance of his fellow legislators to allow this simple measure to be introduced, particularly because, in the meantime, South Australia and Western Australia had passed legislation permitting Aborigines to give evidence. It would not be until many decades later, in fact only in 1876, that New South Wales would finally allow Aboriginal persons to give evidence in courts, despite the fact that England had expressly permitted such legislation since 1843.
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Within a year of Plunkett’s return, the Chief Justice, Sir James Dowling, unexpectedly retired due to ill health, and shortly afterwards died. As the leader of the Bar, John Plunkett considered that he had first claim to fill the vacant position, due to what he claimed was a convention in England. However, he had a serious rival for the post in Justice Alfred Stephen, who in 1839 had come from Van Diemen’s Land and taken an acting Supreme Court judgeship in Sydney, which had been made permanent while Plunkett was overseas.
John Plunkett and Alfred Stephen were both forty-two, they held similarly progressive views, and each had had an outstanding legal career to date. Plunkett had harboured a desire to one day be appointed Chief Justice since soon after his arrival in the colony. The idea of a Catholic taking office as Chief Justice anywhere in the British Empire appealed to his sense of vindicating history. He had faithfully served in public office for twelve years and had a good working relationship with Governor Gipps. Stephen, on the other hand, was an Anglican, whose father, John Stephen, had been one of the first Supreme Court Judges of the colony. Stephen also had the advantage that his cousin, James Stephen, was the Under-Secretary of the Colonial Office in London. John Plunkett and Alfred Stephen each thought that he had a superior claim to the position of Chief Justice, and the competition between them was intense for many months. Governor Gipps could not decide between them, so he left it to the Executive Council to make the final choice. Was this a convenient way of not alienating either of these two men, each of whom had contributed greatly to the colony? Did he know what way the Council would go, and wished to avoid the appearance of partisanship?
Apart from the Governor, there were four members of the Executive Council, all of whom were Protestant. The most influential was the Anglican Lord Bishop, William Broughton, who was implacably opposed to Plunkett and had openly declared that while he had a say in the matter a Catholic would never obtain a seat on the Bench in New South Wales. The next member was Campbell Riddell, who was the Colonial Treasurer. Riddell’s appointment had been responsible for the departure of Governor Bourke, with whom Plunkett had worked so closely. The third was General Maurice O’Connell, the Commander of [Military] Forces, who, although he was a second cousin of Daniel O’Connell, was a Protestant with completely different political views to his famous Irish relative. The fourth member of the Council was Edward Deas Thompson, the Colonial Secretary. It came to a decision in the Executive Council on 7 October 1844. The Governor abstained and Stephen had three votes to Plunkett’s one. When the decision was announced, it was met with general approval in the local newspapers, and it was finally confirmed by Lord Stanley in the Colonial Office in London in April 1845.
Plunkett was severely stung by the decision. Gipps offered him a position on the Bench as a puisne (standard) judge, but Plunkett would have none of it. If he could not be Chief Justice, he would not be a judge at all. He believed that New South Wales had lost an opportunity to show the Empire that real progress had been made in the equality of all citizens, regardless of their religion. Plunkett remained as Attorney General and the vacancy on the Supreme Court was filled by his co-religionist, Roger Therry, who, by his appointment, finally eclipsed his fellow countryman and erstwhile leader in professional rank. William à Becket was appointed as resident judge in Port Phillip (Melbourne).19 To his credit, Plunkett did not allow the decision to affect his long-term support of and respect for the new Chief Justice. Alfred Stephen went on to have a most illustrious and constructive career as Chief Justice for the next thirty years, winning universal respect and admiration. Nor did Plunkett’s relationship with Therry suffer from the windfall appointment that the latter had received. In fact, after Therry went onto the Bench, their relationship improved.20 Maybe, now that they were not frequent opponents at the Bar table, they were able to relate more readily as equals.
By passing over John Plunkett as Chief Justice, Governor Gipps and his Executive Council lost an opportunity to place the Colony of New South Wales at the forefront of religious tolerance and emancipation in the British Empire. New South Wales would not have a Catholic Chief Justice until 1988.21
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Despite the abolition of transportation in 1840, during the ensuing years Britain gave ongoing consideration to its reintroduction as a way of avoiding the cost of building gaols in England. In New South Wales a huge majority of the population were against any reintroduction. Most of the community saw the future of the colony as a prosperous, vibrant, free, self-governing society rather than as a penal outpost of the mother country. However, there was continuing support in favour of resumption from a few of the larger landowners who were well represented on the Legislative Council, including WC Wentworth, who still exercised considerable political and economic power, and Henry Dangar, who had been elected to the Council in 1845. They were entirely motivated by self-interest and the prospect of further free labour. Henry Dangar’s views were criticised by his local newspaper in the Hunter Valley:
Dangar has shown that he is one of those who are prepared to uphold the pecuniary interests of the woolgrower and the employer of labour at any sacrifice; he is for the resumption of transportation in any shape – either the old or the new, and has no objection to the importation of cannibals or coolies, providing that a profit can be extracted out of their labour.22
In 1846, a Select Committee of the Legislative Council, chaired by WC Wentworth, was established to explore the issue. Plunkett, unfortunately, was absent, because he had been injured in a fall from his horse. The Committee ignored public opinion and voted in favour of resumption on certain conditions.23 When the recommendations of the Committee were made public, they prompted a violent outcry in the community. Many well-attended public meetings were held in the latter part of 1846 and early 1847 to voice fierce opposition to the renewal of transportation in any form. Most of the newspapers, including the Sydney Morning Herald (renamed from the former Sydney Herald in 1842), were also firmly against the idea. John Plunkett’s position was that a revival was unthinkable. At the first full debate on the topic in the Legislative Council in September 1847, he stated his unequivocal position:
If they could be so degraded as to ask again to have British crime poured in upon them, they would be forever unworthy of a place among nations of the earth.
In September 1847, a majority of the Legislative Council voted against resumption of transportation. The resolution expressed the view that:
A return to the system of Transportation and assignment would be opposed to the wishes of this Community, and would also be most injurious to the moral, social and political advancement of the Colony.24
However, in the meantime, because of the earlier Report of the Legislative Council Select Committee in favour of resumption, a letter came from Lord Grey, the Colonial Secretary in London, requesting a compromise: namely that convicts be sent to New South Wales as ticket-of-leave holders after serving a suitable reformatory period in Britain. The Sydney Morning Herald expressed the view that not one in a hundred of the citizens of New South Wales wanted transportation revived in any form. Despite this, the Legislative Council voted in April 1848 to accept Lord Grey
’s request, with two members opposing it – John Plunkett being one of them. Plunkett addressed the Council and explained that he was against the plan ‘on the grounds that the social and moral interests of the Colony would be injured by the introduction of any class of criminals’. In late 1848, Lord Grey made preparations for the departure of the first ship – the Hashemy – containing 236 convicts. The stage was set for a violent public confrontation on its arrival.
When the Hashemy docked at Sydney in June 1849, there were mass demonstrations in both Sydney and Melbourne and there was even talk of sinking the ship in Sydney Harbour. Between 7000 and 8000 Sydneysiders turned up on a wet day to an anti-transportation rally in Barrack Square, at which it was suggested by some of the speakers that if England insisted on sending its convicts to New South Wales, a republic should be proclaimed. One of the speakers who addressed the crowd was a young Henry Parkes, who decades later was to play a major role in the Federation of the colonies into the Commonwealth of Australia.25
Reacting to overwhelming public pressure, in September 1850 the Legislative Councillors had a definitive debate on the topic, in which John Plunkett led the arguments against resumption. In a lengthy, eloquent and well-reported speech, he stated that ‘it was impossible for the Crown Prosecutor of New South Wales to shut his eyes to the evils of convictism’.26 He produced a vast array of facts and figures from the court system to prove that on the issue of crime alone transportation should never be reintroduced. He asserted that ‘Transportation and free institutions cannot exist together’. In early 1850, the Council voted unanimously to abolish transportation for good. Plunkett’s role in this decision was ‘without parallel’ and this period has been described as ‘his finest hour’.27
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PUBLIC EDUCATION, SISTERS OF CHARITY AND THE INCIDENT OF THE BIBLE
Over numerous years, the person who had shown the most obstinate resistance to many of the reforms that John Plunkett pursued was William Broughton, the Anglican Lord Bishop of Australia. Broughton was one of the most influential people in the colony and as a member of the Executive Council he had been able to thwart many of the progressive innovations that Plunkett had advocated. Broughton sided with the ‘exclusives’ on the issue of the civil rights of the emancipists; he stood against the introduction of a ‘national’ school system, preferring government sponsorship of parochial schools; he opposed the acceptance of unsworn evidence by indigenous witnesses in courts; and he was one of those who had voted against Plunkett’s appointment as the first Catholic Chief Justice of New South Wales. Bishop Broughton finally resigned his position on the Executive Council in early 1847. The person who replaced him on 30 March 1847 was John Hubert Plunkett. By then, Gipps had been replaced by Governor Sir Charles Augustus FitzRoy, who had arrived in the colony in August of the previous year.