Joseph Toscano, well known anarchist and correspondent to The Age yesterday convened a commemoration ceremony of the 167th anniversary of the execution of two “indigenous resistance fighters” who were found guilty of murder by Judge Willis, the Resident Judge of Port Phillip.
It is striking that there were six executions in Port Phillip during 1842, and then none for several years. This does not necessarily denote, though, that Judge Willis was a particularly vicious ” hanging judge”. Until his arrival in Port Phillip in March 1841, all Supreme Court trials were conducted in Sydney. After Judge Willis’ removal in mid 1843, his replacement Justice Jeffcott refused to order the death sentence in his own right until the legality of Willis’s dismissal had been confirmed. However, during 1842 there were six executions in total- two Aborigines in January 1842, three bushrangers in June 1842 and another Aborigine (Roger) in September 1842. For that year, it must have seemed that the execution parade through the streets of Melbourne to the gallows outside the new gaol was becoming a regular feature.
It’s significant that both aborigines and bushrangers were the real hot-button issues for white settlers. Judge Willis did pass another death sentence for murder on Thomas Leahy for murder of his wife, but the the sentence was commuted to transportation. However, there was no mercy for aborigines or bushrangers found guilty of murder: their crimes challenged power and authority more generally.
The passage of 167 years certainly changes the language that we use to conceptualize this event. Toscano speaks today of their execution as “a great Melbourne story of love, resistance, passion and violence”. Judge Willis wrote to La Trobe describing the case as “one of great atrocity”. Toscano today identifies them as Tunnerminnerwait and Maulboyheenner; at the time their names were recorded by the Aboriginal Protector as “Tuninerparevay: Jack, Napoleon” and “Small Boy: Robert, Timmy, Jimmy” (Mullaly, p. 255)
“Bob” and “Jack”, as they were popularly known at the time, were part of a group of Aborigines brought across from Van Diemen’s Land by the Aboriginal Protector G. A. Robinson when he was appointed to his post in Port Phillip, with the intent of using them as intermediaries when conciliating the local tribes. This seems a rather ill-informed intention on Robinson’s part, given the language and territory differences. After a time they were no longer staying with Robinson. When two white whalers were murdered, this group of five aborigines, two men and three women (including Truganini) were reported to have been seen in the location of the murder scene , and said to have committed other depredations in the area.
This complicates the picture somewhat. Coming from Van Diemen’s Land, it was not a simple matter of protecting traditionally-owned territory from invading settlers. On the other hand, their transplantation from Van Diemen’s Land across the sea was an absolute dispossession, and resistance moved from the particular to the generalized- not a particular settler on a particular river, but white men in general.
The Port Phillip Herald of 21 January 1842 reported that there was no doubt about the justness of the sentence, and that their execution was the imperative duty of the authorities to vindicate the impartiality of British law. It is interesting to note the objections raised by Redmond Barry in their defence. At first he argued that half the jury should consist of people able to speak the language of the defendants which, not unsurprisingly, Justice Willis overruled. In his address to the jury, Barry referred to the ‘peculiar situation’ of ‘circumstantial evidence of dubious character’. Likewise, it is interesting to note the issues that did not arise. The amenability of these particular Aborigines to European law was not questioned. It was ascertained from Robinson that the men had knowledge of the existence of a Superior Being and knew right from wrong, and that they could speak English. These grounds were later used by Judge Willis in other cases to acquit Aboriginals in his court who were not deemed to understand English or have an understanding of a Supreme Being.
In his address to the jury, Judge Willis is reported to have commented on the criminal activities of the armed men prior to the attack on the unarmed whalers, and he distinguished between the role of the men as murderers and the women as accomplices. He emphasized the necessity to prevent the ‘recurrence of similar acts of aggression’. After a recess of half an hour, the jury returned with a conviction for the men with a recommendation of mercy ‘on account of general good character and the peculiar circumstances under which they are placed’ (Mullaly p 257). The more than I think about it, this recommendation of mercy arising from a community truly anxious about ‘depredations’ and its consequent dismissal by the authorities is perhaps the most surprising aspect of the trial.
This recommendation, however, was not strongly supported by Justice Willis, and the sentence was confirmed by Governor Gipps. Their executions were the first in Port Phillip. Public executions at the time were understood by the white participants and specatators (as distinct from the Aboriginal prisoners) to represent authority, religion and humanity (Castle 2007). It was a highly ritualized degradation ceremony, with specific clothing and practices and designated roles for the clergy, the judge, the governor and the prisoners to play. The newspaper descriptions of the time reflected the traditional narratives of repentance, scaffold confessions and fear, well-known from similar practices in England.
However, this was mixed with a degree of sympathy and uneasiness among some- but certainly not all- spectators. This was a ‘first’ for everyone, and it was generally agreed that the execution itself was botched and unpleasant. Although this first execution attracted large crowds, by the time another Aborigine, Roger, was executed in September 1842 there was newspaper disapproval of the character of the spectators who attended- particularly women- and calls for the scaffold to be removed as quickly as possible and executions to be carried out within the gaol walls rather than in public view. However, this squeamishness needs to be balanced against the fear of Aboriginal depredations voiced by small settlers and more influential squatters and landowners in the outlying frontier areas. In such an environment, and given the legal restrictions on Aboriginal testimony, it is perhaps not surprising that there were so very, very few executions of white settlers when it was Aborigines who were murdered.
Update: An interesting article by Marie Fels with David Clark and Rene White called ‘Mistaken Identity, Not Aboriginal Heroes’ in Quadrant October 2014 looks closely at the coal-mine manager William Watson. The only words uttered by Tunnerminnerwait and Maulboyheener in their own defence pertained to William Watson- “We thought it was Watson”. This article looks carefully and critically at William Watson and carefully reconstructs the movements of the Van Diemens Land aborigines immediately before the murder. Well worth reading.
Paul R. Mullaly Crime in the Port Phillip District 1835-51,
Ian Macfarlane The Public Executions at Melbourne 1842
Tim Castle ‘ Constructing Death: Newspaper reports of executions in colonial NSW 1826-1837’ Journal of Colonial History, vol 9, 2007 p. 51-68.