The Indigenous Question blows up
[Warning:Aboriginal and Torres Strait Islander readers are warned that this posting contains the names of deceased persons.]
I hadn’t realized until looking through the papers for this week that there were two court trials involving indigenous people running concurrently in Port Phillip during these first weeks of December. They were very different trials. The first, involved the ‘VDL Blacks’ or ‘The Tasmanians’, the group of Tasmanian aborigines that George Augustus Robinson had brought over with him when he took up the role of Chief Protector of Aborigines for the district of Port Phillip. I’ve written about Tunnerminnerwait and Maulboyheener on several occasions previously (see here, here, here and here ) They were accused of ‘outrages’ and murder, and had finally been captured and brought to Melbourne. During this first week, initial hearings were held in the Police Court before a bench of magistrates.
The second trial involved a settler, Sanford George Bolden, who was indicted for shooting with intent to murder an aboriginal native called Tatkier on his squatting run near Layton, down near Portland.
So, we have two trials: one of a group of indigenous people for murdering a settler, and the other of a settler for intending to murder an indigenous man. Add to this press outrage, an equivocal government response, the fanning of controversy by a missionary- and the authorities had a problem on their hands.
The ‘Tasmanians’
On Wednesday 1 December the Port Phillip Gazette reported that large benches of magistrates had sat in the Police Court since the preceding Friday to hear evidence on the case. They sat on Friday, continued on Saturday, resumed on Monday and proceeded on Tuesday, before a large audience. The Port Phillip Gazette had pretty much made up its mind:
The crimes alleged against them have been too clearly made out to leave any chance of acquittal, and their employment under Mr Robinson for such a number of years, precludes any hope of mercy on the plea of ignorance. The case, therefore, is one of peculiar and distressing interest: and the only door of escape, or alleviation of guilt, rests in the fact of their having been deprived of their liberty, and enslaved under British authority.
Their conclusion was:
First, the prisoners are civil subjects of the Crown, by the most indubitable proofs of international law; they belonged to a people who were conquered by arms, and who subsequently yielded their independent rights by treaty to the Government of the country. Secondly, they have a knowledge of British jurisprudence, are acquainted with the moral as well as civil law of the country, and can neither plead ignorance nor self-defence; they are, in fact, condemned under that very exposition of the law which the Resident Judge (from humane motives, but on mistaken principles) laid down in the case of Bon Jon.
So what did the Port Phillip Gazette think should be done? Their prescription was that they should
consider…them as they are- the wildest children of nature, without laws, religion, or obligation- and by taking them under our protection, with a view at once to curb their evil propensities, and instill into their minds the rudiments of our social order; in one word, by introducing a separate system of legislation for the Aborigines…
The editor’s reasons for this stance, however, were steeped in the language and philosophy of the 1840s (however unacceptable it might be to us today):
We do not wish it to be understood, however, that these prisoners are, in consequence of such an issue, to be discharged; their conduct is far too dangerous to authorize so rash a proceeding; they must be placed under restraint; they must no more be considered free or irresponsible agents; civilization, it is proved, has no effect on their savage spirit of destruction. Like the tameless hyena, they are irreformable; they must be placed beyond the means at once of mischief and of want. A similar course should be pursued with all adults: and it is upon the sucking infant only that any complete system of education should be commenced, and progressively practiced. It is in their case only that success can be looked for; and while the present generation remains, specific treatment, distinct legislation, should be enforced [PPG 1/12/41]
The evidence given over these days to the Police Court was reported in full in the newspaper.
At the same time the Gazette ran a two-part series giving the history of aboriginal-settler relations in Van Diemens Land, describing the Black War and Robinson’s ‘friendly mission’. The article criticized Protector Robinson in particular on the grounds that once the Blacks had surrendered themselves to him, they never attempted to leave him and that he left them completely to their own control, seemingly taking little notice of them. [1/12/41; 4/12/41]
The trial was set for the next session of the Supreme Court. We’ll read more about this case later.
The Bolden case
At the very same time that the magistrates at the Police Court were committing the Van Diemens Land black to trial, the case of Sanford George Bolden was being heard before Judge Willis in the Supreme Court. I’ve written about this case in Law & History Vol 3, which has recently been issued. As Willis said several times during the hearing, the Boldens were neighbours of his in Heidelberg, and he was at pains to say that this had not influenced him in the slightest. (I think the Judge doth protest too much.)
Mr Sanford George Bolden was indicted for shooting at with intent to murder, an aboriginal native named Takier [Tatkier], with a pistol loaded with powder and a bullet at Layton, on 1st November. The second count charged it to have been committed with power and shot. And the third with powder and slugs. [PPG 4/12/41]
Reading through the trial reports – and there is a very full account of the trial in the Port Phillip Patriot of 6 December (see here) – you’ll see that Judge Willis took a very active part in this case. He usually did, but it is particularly marked in this case. Much of the case revolved around the failure of the Assistant Protector Charles Sievwright to follow proper procedures in taking evidence. Willis certainly had cause to criticize. Sievwright indicated to Bolden that the body of Tatkier had been found, when this was not the case. Moreover, Sievwright was the object of rumour about his domestic arrangements and strongly criticized by the settlers. Willis certainly didn’t hold back, and this criticism at a time when the Chief Protector, George Augustus Robinson, was being held responsible for the Tasmanian added to a generalized attack on the Protection policy as a whole.
La Trobe was blamed by the settlers, too. In an editorial on 11 December, the Port Phillip Gazette complained that Willis said that he can act against natives for depredations on the whites but La Trobe discountenanced the practical amenability of the natives to that law. Willis said that a settler who had the privilege of a run from the Government had a right to exclude the intrusion of the natives but when settler brought complaints before La Trobe, he intimated that they must abide by the consequences of coming to a country infested with savages. [PPG 11/12/41 p.2]
Most importantly in this case, Willis clearly stated that leaseholders had the right to turn aborigines off their land.
“ I wish it to be distinctly understood from this bench, that if a party receives a licence from Government to occupy a run, and any person white or black come onto my run for the purpose of stealing my property, I have a right to drive them off by every lawful means in my power. … The blacks have no right to trespass unless there is a special clause in the licence from the government [PPG 4/12/41]
This statement was received with alarm by both La Trobe and Gipps, who feared that this would encourage settler violence even more. The settlers, however, warmly embraced Willis’ opinion. It took the Colonial Office until 1848 to definitively state that pastoral leases were
not intended to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence in the manner to which they have been heretofore accustomed… [Earl Grey to Fitzroy 11 February 1848]
By this time, of course, Willis was long gone from the colony and the Port Phillip frontier completely ‘pacified’. But back in the courtroom in 1841, Willis instructed the jury that
you can find no other verdict than an acquittal of the prisoner… I tell you again and again, the prisoner must be acquitted.” [PPG 4/12/16]
And Bolden was, too. Although his acquittal was not without some dissension. Edmund Finn, writing as ‘Garryowen’ felt that Willis’ charge to the jury was “so favourable to the prisoner as to amount to marked partiality”(p. 350). One of the jurymen stood up in court to declare that Bolden left the court “without the slightest imputation on his character”, but he was contradicted by the foreman of the jury who said that that was not the unanimous opinion of the jury.
A missionary has his two-pennethworth
Just to add to the controversy, the Wesleyan missionary repeated to a Wesleyan meeting in Melbourne comments that he had previously made in Launceston where he had accused some Portland settlers of parties of going out on the Sabbath with guns, ostensibly to shoot kangaroos, but in reality to hunt and kill blacks. Because the evidence of the native was not admissible in court, he claimed, the white murderers had escaped with impunity. [PPP 6/12/41 p.2] The settlers of the District published a letter in the newspapers denying his claims and stating that
the information by which you seem to have been guided is false and calumnious… we would call upon you to justify yourself for having made such statements by attempting to prove at least some of your many and heavy charges. [PPG 8/12/41]
One of the signers was Sanford George Bolden.
Wreck of the William Salthouse
During the first week in December, the Port Phillip Gazette reported the loss of the William Salthouse, the first vessel to be wrecked within the bay of Port Phillip itself. A 260 ton vessel, bound to Port Phillip from Quebec, it was laden with timber, flour saltfish, beer, cider and vinegar. It was wrecked at the Heads on the reef that runs out from Point Nepean.
This reef we may observe was never properly laid down, it is represented as terminating abruptly at the last rock which shows itself above water, whereas the dangers continue under water at various depths, to the length of a cable or about 110 fathoms. [PPG 4/12/41]
The ship was boarded by one of the pilots from Shortland’s Bluff but she was unmanageable; the pilot gave her a second anchor but it snapped and the barque ran onto the sand known as the Pope’s Eye. The water was rising.
The captain and the sailors succeeded in saving the ship’s boats and the sails of the ship, together with the ships papers, and some portion of their own clothes, but as the vessel was rapidly settling down in the water, they were speedily compelled to abandon her and take refuge on shore until assistance came to their aid. [PPP 2/12/41]
The owner of the consignment, Mr Ashurst, sailed down to render every assistance in his power.
On reaching the wreck, it was seen that no hope remained of saving the vessel or the cargo- she had fallen off the shoal into deep water…It is expected that she will go to pieces in a short time, especially as the weather has been very rough and the window blowing hard from seaward since the hour she sank.[PPG 4/12/41]
And sure enough, within a week there was an advertisement in the papers advertising that James Cain had purchased the wreck and cargo:
The undersigned having purchased the above wreck with all her cargo, hereby cautions all persons from appropriating any portion of the same. Any person picking up any part ashore or afloat will be paid a salvage on delivery to JAMES CAIN, Queen’s Wharf. [PPG 11/1241 p 2]
The William Salthouse is now one of Victoria’s most important shipwrecks and is on the Victorian Heritage Database. But at the time, as the Port Phillip Patriot pointed out:
The William Salthouse was, we believe, the first vessel excepting the prison ship Buffalo with the Canadian rebels, that ever came direct from British North America to any of the Australian Colonies, the catastrophe is therefore doubly to be deplored as likely to case of damp upon an opening trade which might have proved highly advantageous to these Colonies.[PPP 2/12/41]
And how’s the weather?
Obviously it was typical early-December weather, with all the changeability we Melburnians have come to love (?!) The highest temperature for the week was recorded as 88 (31C) and the lowest 45 (7.2). It was notable enough for the Port Phillip Gazette to devote a long paragraph to Melbourne’s Favourite Topic:
The Weather. – The variations of temperature which have marked the past week are worthy of notice — the extreme of heat during the season has probably taken place, and the most sudden alteration which we may experience has accompanied it. For several days previously, the weather showed all the indications of gloom, storm, and heat. On Saturday,fitful gusts of wind swept over the town,and caught up columns of dust and sand into the air, which were carried away in whirlwinds, that gave a miniature idea of the horrible simooms of the Eastern dessert. One of these, particularly large and well defined, was traced from the river bank across the western end of Flinders and Collins-streets, through the opening in the Church-square ; hence it took the direction of Bourke-street, and enlarging as it proceeded, shot up a column of sand, the ruddy colour of which was strongly contrasted against the blue sky and rarified atmosphere ; the gyrations of the whirlwind, accompanied by a progressive motion carried it diagonally across the Eastern end of the town down to the river bank again, where crossing, it was dispersed on the opposite bank. Sunday was remarkable for its stormy character, the sand flew in broad clouds with a piercing force, that drove the pedestrian from the street, and the squalls raged round the building occupied as the New Church, that the congregation was obliged to disperse without the performance of divine service. One or two heavy thunder showers succeeded, which falling on the shingled roof of St. James’s Church, succeeded in penetrating, those parts where the heat had made the timber covering shrink, and threw down such a shower bath upon the inmates, as compelled many to change their seats. Monday and Tuesday were both sultry and oppressive, and the heat on Wednesday had arisen to a degree that rendered It almost insupportable. Towards the evening, the bush in every direction took fire,and from the signal hill a semicircle of burning forest was visible, through the darkness of the night, for twenty miles in the direction of Geelong. While the sun remained above the horizon the air was perfectly breathless, but at dark a hot northerly wind set in, that drove the fires nearer to the site of Melbourne, and carried with it a smoke that at daylight was descried hanging like a vast pall over the town, and spreading the panic of a conflagration. During this period the thermometer stood at 75 degrees, or nearly the same average temperature as at Calcutta through the year. With the additional stimulus of the sun’s rays the column nearly reached 90, when a sudden shift of wind took place— the sea breeze came up, swept away in the “twinkling of an eye” the superincumbent smoke and brought to the gasping inhabitants the long looked for relief. The mercury shortly fell to nearly 10 degrees below its former mean range, on about 18 degrees in as many minutes. The remain der of the day (Wednesday) was clouded and threatening. On Thursday it rained heavily ; the weather has now resumed its usual tranquility. [PPG 8/12/41]
The Resident Judge of Port Phillip 