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“Equals of the White Man”: Prosecution of Settlers for Violence Against Aboriginal Subjects of the Crown, Colonial Western Australia

Published online by Cambridge University Press:  07 May 2013

Extract

“Crime is a great leveller,” stated Western Australia's The Inquirer in October 1853. “Policy requires that we should convince the native population that in our Courts of Justice they really are what we profess and tell them they are—the equals of the white man, whatever they may be elsewhere.” The Inquirer was responding to a case that had just come before Perth's Quarter Sessions, in which John Jones was tried for the murder of Neader in the colony's southwest. Jones was found guilty of manslaughter and sentenced to transportation for life. Given that Australia's colonies were notable for their failure to bring settlers to trial for violence against Aboriginal people, it is significant that The Inquirer's editor did not regard Jones' conviction and sentence as a sign that the Courts of Justice were working as they professed to do. The charge was one of wilful murder, and the evidence indicated that “if ever a foul and deliberate murder was committed, it was on the occasion which led to this trial.” The verdict that Jones was guilty only of manslaughter, he continued, was indicative of the jury's disregard of the law's impartiality when a white man was on trial for the murder of an Aboriginal man. If the law was to make a distinction between white and black, “let it be declared: but to say there is none, and to act as if there were, is a mockery.”

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Copyright © the American Society for Legal History, Inc. 2013 

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References

1. The Quarter Sessions, The Inquirer, October 12, 1853 p1.

2. Quarter Sessions October 1853, Perth Gazette, October 7, 1853.

3. For example, Castles, Alex, An Australian Legal History (Sydney: Law Book Co., 1982), 521–52Google Scholar; Reynolds, Henry, Frontier: Aborigines, Settlers and Land (Sydney: Allen and Unwin, 1987)Google Scholar; Davies, Susanne, “Aborigines, Murder and the Criminal Law in Early Port Phillip 1841–1851,” Historical Studies 22 (1987): 320–25CrossRefGoogle Scholar; Broome, Richard, “The Statistics of Frontier Conflict,” in Frontier Conflict: The Australian Experience, ed. Attwood, Bain and Foster, Stephen (Canberra: National Museum of Australia, 2003), 88–98Google Scholar; Roberts, Tony, Frontier Justice: A History of the Gulf Country to 1900 (St Lucia: University of Queensland Press, 2005)Google Scholar; and Finnane, Mark and Paisley, Fiona, “Police Violence and the Limits of Law on a Late Colonial Frontier,” Law and History Review 28 (2011): 143Google Scholar.

4. This case history has been reconstructed by cross-listing the Criminal Sittings Register 1830–1887 (Acc 3422/1, State Records of Western Australia [hereafter, SROWA]) with available Court Records Indictment Files (Series 122, SROWA) and trials from the Quarter Sessions (before 1861) and the Supreme Court (after 1861) reported in the Perth Gazette and The Inquirer. The Criminal Sittings Register has been transcribed by Brian Purdue as “An Index to Violent Indictable Crime in WA” (2002), held at SROWA. Up to 1886, twenty-nine Europeans were tried for violent crimes against Aborigines across twenty-five cases. This figure does not include two cases of sexual violence against an Aboriginal girl and boy that led to the executions of Edwin Gatehouse in 1854 and John Caldwell in 1860: since all cases of rape incurred the death penalty until the early 1870s, it is difficult to differentiate these cases from prosecutions of settlers for crimes against each other. Of the twenty-five cases identified here, twenty-one entailed Aboriginal fatalities (see Appendix).

5. The collection of such data will be one outcome of the Australasian Legal History Digital Library, an Australasian Legal Information Institute (AustLII) project in progress (based at the University of Technology, Sydney) that aims to recover Australia's colonial case histories.

6. Salter, Brent, “‛For Want of Evidence': Initial Impressions of Indigenous Exchanges with the First Colonial Supeior Courts of Australia,” University of Tasmania Law Review 27 (2008): 145–60Google Scholar.

7. For example, Kercher, Bruce, An Unruly Child: A History of Law in Australia (Sydney: Allen & Unwin, 1995)Google Scholar; and Ford, Lisa, Settler Sovereignty Jurisdiction and Indigenous People in America and Australia 1788–1836 (Cambridge, MA: Harvard University Press, 2010)CrossRefGoogle Scholar.

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9. Gipps to Lord Glenelg, July 22, 1839, Despatches of the Governors of the Australian Colonies, with the Reports of the Protectors of Aborigines, House of Commons Parliamentary Papers (hereafter HCPP), no. 627 (1844), 8. See also Kercher, An Unruly Child, 15; Castles, An Australian Legal History, 521.

10. Reece, Aborigines and Colonists, 214.

11. Kercher, An Unruly Child, 7.

12. Barry Patton discusses two of these cases from 1842 and 1843. Patton, Barry, “Unequal Justice: Colonial Law and the Shooting of Jim Crow”, Provenance 5 (2006)Google Scholarhttp://www.prov.vic.gov.au/provenance/no5/UnequalJustice6.asp. Reece identifies a third in 1840 in his table “Return of Aboriginal natives killed by the Whites”, Port Phillip 1836–1844. Reece, Aborigines and Colonists, 222–223.

13. Reece, Aborigines and Colonists, 222–223.

14. Nettelbeck, Amanda and Foster, Robert, “Colonial Judiciaries, Aboriginal Protection and South Australia's Policy of Punishing with Exemplary Severity,” Australian Historical Studies 41 (2010)CrossRefGoogle ScholarPubMed; and Pope, Alan, One Law for All? Aboriginal People and Criminal Law in Early South Australia (Canberra: Aboriginal Studies Press, 2011), 319–336Google Scholar.

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18. The most complete examination of Western Australia's colonial administration of Aboriginal people remains Hasluck, Paul, Black Australians: A Survey of Native Policy in Western Australia 1829–1897 (Melbourne: Melbourne University Press, 1947)Google Scholar. For a fuller examination of how legal mechanisms were employed to create Aboriginal people as “a different kind of subject” in colonial Western Australia before the establishment of a Supreme Court, see Hunter, Ann, A Different Kind of Subject: Colonial Law in Aboriginal–European Relations in Nineteenth Century Western Australia 1829–1861 (Melbourne: Australian Scholarly Publishing, 2012)Google Scholar. However Hunter's study does not undertake to examine in any detail how the law treated Europeans who committed violent crimes against Aboriginal subjects.

19. Western Australia's centralized Aborigines Protection Board was established on the strength of the Aborigines Protection Act in 1886. Victoria's Central Board for the Protection of Aborigines had been in place since 1869, replacing the Central Board established in 1860, and NSW's Aborigines Protection Board since 1883. Queensland passed an Aborigines Protection Act in 1897 and South Australia passed one in 1911.

20. Proclamation of Lieutenant-Governor James Stirling, June 18, 1839, in Bennett, J.M. and Castles, Alex C., A Sourcebook of Australian Legal History (Sydney: Law Book Co, 1979), 257Google Scholar.

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22. Historical Records of Australia: Governors' Despatches to and from England (Sydney: Library Committee of Commonwealth Parliament, 1914–1925), series 1, vol 19, 252.

23. Reece, Aborigines and Colonists, 133.

24. For example, Lester, “British Settler Discourse,” 33–34; and Broome, Richard, Aboriginal Australians (St Leonards: Allen & Unwin, 1982), 4951Google Scholar.

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26. Castles, An Australian Legal History, 295.

27. Russell, Enid, A History of the Law in Western Australia and its Development from 1829 to 1979 (Perth: University of Western Australia Press, 1980), 18Google Scholar.

28. Castles, An Australian Legal History, 297.

29. Ibid., 307; see also Hasluck, 72–76; 103–5.

30. Hutt to Lord Glenelg May 3, 1839 and August 19, 1840, HCPP 627, 363–66; 373–75.

31. Lord Stanley to Grey July 10, 1843, HCPP 627, 341.

32. This process was not straightforward. An earlier Aboriginal Evidence Act proposed in 1840 was tied to an act to allow magistrates to award summary punishment on Aborigines, and was overruled by the imperial government. A separate act to allow Aboriginal evidence without the sanction of an oath was passed by the colony's Legislative Council in October 1841, but like the first, was ultimately rejected by the imperial government. However, Hutt did not receive notification of its rejection from Lord Stanley until late in 1843, soon followed by notification that a bill had been passed enabling colonial legislatures to pass laws authorizing the admission of unsworn Aboriginal testimony. Given this time lapse, historians have argued that Western Australia's 1841 Act did operate from the time it was passed by the Legislative Council. See Smandych, Russell, “Contemplating the Testimony of Others: James Stephen, the Colonial Office and the Fate of Australian Aboriginal Evidence Acts c 1839–1849,” Australian Journal of Legal History 8 (2004), 237–283Google Scholar; Hunter, Ann, “The Origin and Debate Surrounding the Development of Aboriginal Evidence Acts in WA in the Early 1840s,”, UNDALR 9 (2007)Google Scholar, 115–145.

33. Hunter, Ann, “The Boundaries of Colonial Criminal Law in Relation to Inter-Aboriginal Conflict in Western Australia 1830s–1840s,” Australian Journal of Legal History 8 (2004): 215–36Google Scholar; Finnane, Mark, “Settler Justice and Aboriginal Homicide in Late Colonial Australia,” Australian Historical Studies 42 (2011): 244–59CrossRefGoogle Scholar.

34. Purdue, Brian, Legal Executions in Western Australia (Perth: Foundation Press, 1993), 79Google Scholar (table).

35. Quarter Sessions January 1842, Perth Gazette, January 8, 1842.

36. Landor, Edward W., The Bushman: Life in a New Country (London: Richard Bentley, 1847), 187Google Scholar.

37. Ibid., 194–195.

38. Answer of Landor to charges brought against him, June 17, 1873, Despatches and Other Papers Relating to Transactions Arising out of the Homicide of and Other Alleged Outrages on Aboriginal Natives (Perth: Government Printer, 1873)Google Scholar, no 53, encl. 7, 13.

39. For example, Mackie's address to the jury, Quarter Sessions October 1837, Perth Gazette, October 7, 1837.

40. Quarter Sessions January 1848, Perth Gazette, January 8, 1848.

41. Quarter Sessions July 1858, Perth Gazette, July 16,1858.

42. See note 4.

43. On the still thin spread of pastoral settlement by 1870 see Driesen, H. Vanden, “The Evolution of the Trade Union Movement in Western Australia,” in A New History of Western Australia, ed. Stannage, C. T. (Perth: University of Western Australia Press, 1981), 352Google Scholar. On the consequences of decentralized settlement for law enforcement in colonial Queensland see Finnane, Mark, “The Varieties of Policing: Colonial Queensland 1860–1900,” in Policing the Empire: Government, Authority and Control 1830–1940, eds. Anderson, David and Killingray, David (Manchester: Manchester University Press, 1991), 33Google Scholar.

44. On early relations between settlers and Aborigines in Western Australia see Reece, Robert H.W. and Stannage, Tom, eds, European–Aboriginal Relations in Western Australian History, eds. (Perth: Studies in Western Australian History, 1984)Google Scholar; and Green, Neville, Broken Spears: Aborigines and Europeans in the Southwest of Australia (Perth: Focus, 1984)Google Scholar.

45. Purdue, Legal Executions in Western Australia, 79 (table).

46. In her comparative study of NSW and Georgia up to 1836, Lisa Ford examines the ways in which settlers used the judicial system to make their “lawlessness lawful” (Ford, Settler Sovereignty Jurisdiction, 107). Such justifications were also enlisted in Australia's colonies after Aboriginal people were deemed to be under the law's protection as British subjects. See Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History 1400–1900 (Cambridge: Cambridge University Press, 2002).

47. Barlow, Lorraine, “A Strictly Temporal Office: NSW Police Magistrates 1830–1860,” Law and History 3 (1987): 51Google Scholar.

48. For example, Perth Gazette, October 14, 1864, p2, January 13, 1871, p2, and December 20, 1872, p3.

49. Ford, Settler Sovereignty Jurisdiction, 85.

50. Ibid., 79.

51. In 1835, John Mackail was committed on a charge of shooting Goggalee, who died of his wounds, but the case did not go to trial. Mackail received a conditional pardon after Goggalee's relatives were induced to accept compensation in the form of flour and blankets. Quarter Sessions, Perth Gazette, July 1, 1835, p526.

52. Court Records Indictment Files, series 122, cons. 3472, case 271, SROWA.

53. Quarter Sessions July 1842, Perth Gazette, July 13, 1842.

54. See notes 9–12 above.

55. The same fine was awarded to William R. Steel in 1844 when he shot at and wounded Elup, an Aboriginal woman he had seen “running away” after oil was stolen from his vat. The idea of mitigating circumstances was applied in Steel's defense, even though he did not see who had taken the oil, by the argument that Elup been “warned off” in the past for “petty theft”. Quarter Sessions, Perth Gazette, January 6, 1844, p2.

56. M. Waller Chifton, Letter to the Editor, The Inquirer, August 2, 1848, p2.

57. R.W. Nash, Letter to the Editor, The Inquirer, August 16, 1848, p4.

58. For example, McGrath, Ann, Born in the Cattle (Sydney: Allen and Unwin, 1987)Google Scholar; May, Dawn, Aboriginal Labour and the Cattle Industry (Melbourne: Cambridge University Press, 1994)Google Scholar; and Lloyd, Christopher, “The Emergence of Australian Settler Capitalism in the 19th Century and the Disintegration/Integration of Aboriginal Societies,” in Indigenous Participation in Australian Economies, ed. Keen, Ian (Canberra: ANU Press, 2010)Google Scholar.

59. McQueen, Rob, “Master and Servant Legislation in 19th Century Australia”, Law and History 4 (1987): 80Google Scholar.

60. Quinlan, Michael, “Australia 1788–1902: A Working Man”s Paradise?” in Masters, Servants and Magistrates in Britain and the Empire 1562–1955, eds. Hay, Douglas and Craven, Paul (Chapel Hill and London: University of North Carolina Press, 2004), 225Google Scholar.

61. McQueen, “Master and Servant Legislation,” 82–83.

62. Quinlan, “Australia 1788–1902,” 229.

63. Court of Requests, The Inquirer, April 5, 1843, p2. Brent Salter identifies this as the first case of civil action by an Aboriginal person in Western Australia (Australasian Legal History Digital Library project, in progress).

64. Kercher, An Unruly Child, 111; McQueen, “Master and Servant Legislation,” 79–80. Magisterial powers were extended when an act to allow for Aboriginal summary punishment in non-capital cases, of the kind rejected by the Imperial Parliament in 1840, received assent and came into effect in 1849. On the discriminatory practice of this Act, see Evans, Julie, “The Formulation of Privilege and Exclusion in Settler States,” in Honour Among Nations, eds. Langton, Marcia, Palmer, Lisa, Tehan, Maureen, and Shain, Kathryn (Melbourne: Melbourne University Press, 2004), 6982Google Scholar.

65. Colonial Secretary to Laurence, May 16, 1884, and Laurence to the Colonial Secretary, July 3, 1884, Acc 388, 2815/84, SROWA.

66. Supreme Court Criminal Sittings July 8, 1886, West Australian, July 9, 1886.

67. Adelphi, The York Native Case, The Inquirer, July 14, 1886, p3.

68. Supreme Court, Perth Gazette, January 5, 1866, p3.

69. Series 122, cons 3472, case 889, SROWA. The prosecution of policemen for Aboriginal murder was not unknown in nineteenth century Australia. The precedent in 1827 was the trial and acquittal in NSW of Lieutenant Nathaniel Lowe for the murder of Jackey Jackey. For recent discussion of this case see Ford, Settler Sovereignty Jurisdiction, 120–28. In 1891 in South Australia, Mounted Constable William Willshire was tried and acquitted for the murder of Donkey and Roger. For recent discussion of this case, see Nettelbeck, Amanda and Foster, Robert, In the Name of the Law: William Willshire and the Policing of the Australian Frontier (Adelaide: Wakefield Press, 2007)Google Scholar.

70. Indictment files, series 122, cons. 3472, case 79, SROWA.

71. Supreme Court Criminal Sittings April 1, 1863, The Inquirer, April 8, 1863.

72. Quarter Sessions April 1844, The Inquirer, April 10, 1844.

73. Quarterly Report of Charles Symmons, Perth Gazette, April 13, 1844, p4.

74. The same challenge had been raised by the prosecution of Lowe in NSW in 1827 (note 70 above). As Lowe's trial took place before and Burges' some decades after Aboriginal people were clearly considered amenable to British law, Burges' case helps to indicate the protracted extent of debate about limitations of the law's jurisdiction in Australia's colonies.

75. Piesse to Superintendent of Police, February 1, 1872, Despatches (1873), no 53, encl 1, 7. For discussion of the Burges case see, for example, Russell, A History of the Law in Western Australia, 318–19; Williams, Jeanine, “Governor Weld and the Landor–Burges Affair,” Anthropological Forum 3 (1972), 157–179CrossRefGoogle Scholar; and Bolton, Geoffrey and Byrne, Geraldine, May it Please Your Honour: A History of the Supreme Court of WA (Perth: Supreme Court of WA, 2005)Google Scholar.

76. Minute by Governor Weld, February 6, 1872, Despatches (1873), no 53, encl 1, 7–8.

77. Colonial Secretary to Landor, June 6, 1872, Despatches (1873), no 53, encl 3, 9.

78. Weld to Kimberley, July 18, 1872, Despatches (1873), no 60, 27.

79. Lord Russell to Gipps, December 21, 1839, HCPP 627, 25.

80. Kimberley to Weld, September 5, 1872, Despatches (1873), no 39, 33.

81. Supreme Court Criminal Sittings September 4, 1872, Perth Gazette, September 13, 1872.

82. Kimberley to Weld, December 27, 1872, Despatches (1873), no 71, 43–44.

83. Charges preferred by His Excellency the Governor in Executive Council against Edward Wilson Landor, and answer of E.W. Landor to charges brought against him, June 17, 1887, Despatches (1873), no 53, encl 4(H) and encl 7, 10–13.

84. For example, Reece, Aborigines and Colonists, 179–82, Castles, An Australian Legal History, 533–34.

85. Smandych “Contemplating the Testimony of Others,” 254–55.

86. cited in Patton, “Unequal Justice,” 13.

87. On the ambiguities of this see note 34 above.

88. A similar pattern was evident in South Australia, which with Western Australia was the only other colony to admit Aboriginal testimony in courts of law in the 1840s. See Nettelbeck and Foster, “Colonial Judiciaries,” 331–33.

89. The Inquirer, December 8, 1841, p3.

90. Russell, A History of the Law, 319; Hunter, “The Origin and Debate,” 139.

91. The Quarter Sessions, The Inquirer, October 12, 1853, p2.

92. In 1850, station owner Denzil Onslow was tried for shooting Marrin with intent to do grievous bodily harm. The case relied on Marrin's testimony, and Onslow was acquitted (series 122, cons. 3472, case 478, SROWA). In 1852, Francis Whitfield was tried on Aboriginal witness testimony for shooting Mordecai with intent to do grievous bodily harm, and also acquitted (series 122, cons. 3472, case 535, SROWA).

93. Supreme Court Criminal Sittings January 4, 1865, Perth Gazette, January 6, 1865. When defending Lee and Wilkinson in 1863 for the murder of Coomberry, Landor similarly cautioned the jury “not to attach too much importance” to the eyewitness testimony of Narrogin and Corrubung, arguing that whereas Aboriginal evidence was “receivable” in court, it “ought not to outweigh” that of the white witnesses. Supreme Court Criminal Sittings April 1, 1863, The Inquirer, April 8, 1863.

94. In two cases from the 1840s in which settlers were tried for violent crimes against Aborigines, the influence of European witness testimony also resulted in guilty verdicts, although the sentences awarded were not heavy. In 1846, laborer Robert Connacher was found guilty for the manslaughter of Wunergun, an Aboriginal woman whom he had shot in the face and who died of her wounds. Two fellow workers testified against him. On their evidence he was found guilty and sentenced to 1 year's imprisonment with hard labor (Indictment files, series 122, cons 3472, case 359, SROWA). In 1848, station employees John Gale and James Eagan were sentenced to 3 years' imprisonment for stabbing and wounding Baudit on suspicion of sheep stealing at Albany. Although they did not kill him, the attack was so violent that the details were considered unfit for publication. In all likelihood, the prosecution was successful because European eyewitnesses testified against the men (Quarter Sessions, The Inquirer, January 12, 1848, p3).

95. Acc 430, 33/49, SROWA.

96. Acc 388, 3675/86, SWOWA.

97. Ibid.

98. Supreme Court Criminal Sittings January 4, 1865, Perth Gazette, January 6, 1865.

99. Criminal Sittings Register 1830–1887, Acc 3422/1, SROWA.

100. Supreme Court Criminal Sittings October 8, 1863, West Australian, October 15, 1863.

101. Acc 388, 3673/86, SROWA.

102. Acc 430, 1887/26, SROWA.

103. Acc 430, 1887/790, SROWA.

104. Barlow, “A Strictly Temporal Office,” 50–51; and Golder, Hilary, High and Responsible Office: A History of the NSW Magistracy (Sydney: Sydney University Press, 1991), 52Google Scholar.

105. Golder, High and Responsible Office, 60.

106. Acc 1496, 1900/1729, SROWA.

107. For example, in 1865, Francis Badcock was tried over the death of his de facto Aboriginal wife Emma and sentenced to 12 years' imprisonment, although he served only 5. It is possible that his heavy sentence resulted from the facts that the crime was particularly violent and it occurred in the presence of white eyewitnesses. Supreme Court, Perth Gazette, April 7, 1865, p3.

108. Golder, High and Responsible Office, 30. On the difficulties of maintaining administrative oversight of local magistrates in colonial South Australia, see Nettelbeck and Foster, “Colonial Judiciaries”.

109. Report of Hocking to Weld, July 15, 1873, Despatches (1873) Part V, 94.

110. Despatches Part V, 97.

111. For example, Roebourne's Resident Magistrate E.H. Laurence was questioned in 1884 over his handling of a case of Aboriginal assault. Two young boys who worked for pastoralist Guy Thomson had run away, and in punishment he flogged them until they were reportedly “nearly dead.” Thomson admitted the flogging, and the magistrate fined him £1 for the less severe assault and £5 for the worse. Although the attorney general suggested that “a much severer punishment, I should say imprisonment for some term, was the proper sentence,” the case was left with the observation that the magistrate had “committed an error of judgement” (Acc 388, 3296/85, SROWA).

112. March 4, 1885, Acc 388, item 7, SROWA.

113. April 13, 1883, Acc 388, item 7, SROWA

114. Acc 388, 3675/86, SWOWA.

115. For example, Acc 527, file 1886/3922, SROWA.

116. Indictment files, series 122, cons. 3472, case 851, SROWA.

117. Quarter Sessions, Perth Gazette, January 11, 1861, p2.

118. Supreme Court Criminal Sittings January 10, 1884, West Australian, January 12, 1884.

119. Derby to Broome, March 11, 1884, Acc 388/575/84, SROWA.

120. Acting Attorney General Leake to colonial secretary, October 19, 1884, Acc 388, 575/84, SROWA.

121. Acc 527, 1888/2446, SROWA.

122. Quarter Sessions October 1859, Perth Gazette, October 7, 1859.

123. When stockkeeper William Richardson was tried for the murder of Aboriginal woman Jinny in 1880, Chief Justice Henry Wrenfordsley reminded the jury of a need for the “just and equitable application of the law,” but appeared to offer this more as a matter of personal judgement than legal obligation by adding that he “did not know whether this was owing to the tendency of his mind, or not.” In this case Richardson was acquitted. Supreme Court, West Australian, June 8, 1880, p3.

124. Instructions to and Reports from the Resident Magistrate Despatched by Direction of His Excellency on Special Duty to the Murchison and Gascoyne Districts (Perth: Government Printer, 1882), known as the “Fairbain report”; and Report of the Royal Commission on the Condition of the Natives (Perth: Government Printer, 1905), known as the “Roth report.”

125. Acc 388, items 6–32, SROWA. These charges were published as J.B. Gribble, Dark Deeds in a Sunny Land (1905; rpt. Perth: University of Western Australia Press, 1987). For discussion of Gribble's efforts, see Reynolds, Henry, This Whispering in our Hearts (Sydney: Allen and Unwin, 1998)Google Scholar.

126. Reverend John Brown Gribble to Secretary of State Edward Stanhope, November 30, 1886 and Governor Frederick Broome to Secretary of State Edward Stanhope, December 20, 1886, Acc 388, item 6, SROWA.

127. Gill, Andrew, “Aborigines, Settlers and Police in the Kimberleys 1887–1905,” Studies in Western Australian History 1 (1977): 128Google Scholar; Owen, Chris, “‘The Police Appear to be a Useless Lot up There’: Law and Order in the East Kimberley 1884–1905,” Aboriginal History 27 (2003): 105–30Google Scholar.

128. James Maloney to Chief Protector A.O. Neville, June 16, 1917, Acc 653, 1917/23, SROWA.

129. cited in Kercher, An Unruly Child, 13.

130. Reece, Aborigines and Colonists, 162.

131. For example, Ford, Settler Sovereignty Jurisdiction, 121; and Nettelbeck and Foster, “Colonial Judiciaries,” 332–33.

132. The Inquirer, July 13, 1842, p2.

133. For example, one correspondent complained that “the Laws are so strictly administered in this colony … that if the settlers, to whom no sufficient protection is afforded, should take the law into their own hands and avenge attacks upon their property by summary punishment they would be held guilty of murder.” Perth Gazette, November 4, 1864, p4.

134. Perth Gazette October 11, 1872, p2. A telling back story to the Burges case is that almost 40 years after his trial, Burges published a memoir of his young pioneering days in the colony. In these memoirs he was quite direct about his “rough and tumble with the natives” during a 1864 expedition to Roebuck Bay with a party that included magistrate Maitland Brown. Each of their party, he writes, was “heavily armed” with a six-chambered revolver and a double-barrelled shotgun, “giving us each 44 shots without reloading” and making “things hot for the blacks.” Burges, Cleve Lockier, Pioneers of Nor'-West Australia (1911; rpt. Perth: Hesperian Press, 2008), 114–15Google Scholar.

135. Perth Gazette, October 14, 1864, p2.

136. Ibid., December 20, 1872, p3.

137. West Australian, November 21, 1882, p3.

138. Perth Gazette, March 5, 1852, p2.

139. West Australian, March 10, 1864, p3.

140. Perth Gazette, March 7, 1873, p3.

141. Their case was heard and dismissed at the Supreme Court on October 10, 1889. Supremet Court, West Australian, October 11, 1889, p4.

142. Ibid., November 13, 1889, p3.

143. See, for example, Bird, Greta, The Civilising Mission: Race and the Construction of Crime. Contemporary Legal Issues, 4 (Bundorra: Monash University, 1987)Google Scholar; Cunneen, Chris, Conflict, Politics and Crime (Sydney: Allen and Unwin, 2001)Google Scholar; and Evans, Julie, Grimshaw, Patricia, Phillips, David, and Swain, Shurlee, Equal Subjects, Unequal Rights (Manchester: Manchester University Press, 2003)CrossRefGoogle Scholar.

144. An exception is the case of Robert Rowland, who in 1868 was charged with murder, found guilty of manslaughter, and sentenced to 12 years. He and a group of others had forced “Chubbie” overboard from their vessel and then shot him while he attempted to swim to shore. After Burges' sentence was reduced from 5 years to 1, Rowland's friends attempted to have his sentence reduced; but Rowland was a former convict who had been transported to the colony for attempted murder, and although like Burges, his case was taken to the Secretary of State, no grounds were seen for clemency. See Supreme Court, Perth Gazette, August 14, 1868, p2; and Despatches (1873), 89–90. As noted above, Francis Badcock also received a 12 year sentence for manslaughter, a lesser verdict than the charge of murder, but only served 5 years.

145. See Godwin, “The Fluid Frontier,” on the evolution of an aggressive frontier mentality in colonial Queensland.

146. Paul McHugh, Aboriginal Societies and the Common Law (Oxford: Oxford Univerisyt Press, 2004).

147. Benton, Lauren, A Search for Sovereignty: Law and Geography in European Empires 1400–1900 (Cambridge: Cambridge University Press, 2010), 227Google Scholar.

148. Connors, Libby, “Witness to Frontier Violence: An Aboriginal Boy before the Supreme Court,” Australian Historical Studies 42 (2011): 231CrossRefGoogle Scholar.