Settled or Conquered
By the time the First Fleet set sail in 1787, a philosophical tradition was in place that would render the Australian continent officially uninhabited in the eyes of the British government. The existence of Aborigines was certainly known to British officials; both Cook�s and Banks?accounts from the Endeavour voyage of 1780 refer frequently to the native presence. Indeed, Parliament�s orders to Captain Arthur Phillip (soon to be first Governor of New South Wales) express a desire to show �amity and kindness?to the natives, and instruct him to form friendly relationships that would prove mutually beneficial.1 Over time, however, the colonials?underestimation of the number of Aborigines (thanks to Cook�s description of the land as �thinly peopled,? as well as their persistent encroachment on Aboriginal resources, led to conflicts over land that were often fatal to both British and Aborigines. The question of Aboriginal right to Australian land, ceremoniously claimed by England, thus became salient in the early years of colonization. Legal arguments centered around the issue of settlement versus conquest. Settlement of New Holland, as Australia was then called, was premised on the assumption that the native inhabitants held no territorial claims to the lands they occupied; if, on the other hand, England was considered to have conquered the Aborigines, then the native�s previous right to the land could not be denied. In almost every court case involving property disputes, judges or arbiters made reference either or both of two major documents: Emerich de Vattel�s Law of Nations (1758), a foundation of subsequent international law, and William Blackstone�s multi-volume Commentaries on the Laws of England (1765). These works helped to shape the British government�s view of Australia as territory settled, not conquered, by the Crown. Consequently, they relegated the Aborigines to a status of occupants�not owners�of the land, a status they would maintain until the recognition of Native Title in 1992.
A Swiss jurist, Vattel delineates in 500 pages the principles of nationhood, from sovereignty to war, from commerce to justice. Of these 68 chapters of dense, proscriptive text, only two directly address the appropriation of already occupied lands, and these are cited repeatedly in Australian jurisprudence. In the chapter entitled �Of the Establishment of a Nation in a Country,?Vattel describes the nation�s relationship to the land it occupies. He states that a nation is settled if it inhabits a country, �whether that nation has emigrated thither in a body, or that the different families of which it consists were previously scattered over the country, and there uniting, formed themselves into a political society.?#060;sup>2 In this passage, the political unity of inhabitants is vital to Vattel�s definition of the national state. Thus, inability to demonstrate unity amongst peoples disallows reason to consider them a nation. In the following section, Vattel addresses a question made relevant by Europe�s discovery and exploration of distant parts of the globe. He wonders �whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole.? Reminding us that nations are only entitled to as much land as is needed to support their peoples, Vattel produces this remarkably influential passage:
Their (the natives? unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies.
Though such a statement would suggest that natives would bear claim to some, though not all, of the land they inhabit, the next chapter denies such a claim. There Vattel defines settlement as �a fixed residence in any place with an intention of always staying there,?and argues that �a man does not then establish his settlement in any place, unless he makes sufficiently known his intention of fixing there, either tacitly, or by an express declaration.? Thus, within a span of five pages, 1% of his entire work, Vattel effectively defines the Aborigines of Australia as an unsettled, disunited group with no true possession of the lands they inhabited. It was this view that would guide colonial courts when faced with conflicts between invading settlers and resistant Aborigines.
Whereas Vattel issued rules for regarding Australia as essentially unclaimed prior to English arrival, Blackstone established the distinction between settled and conquered lands. In his chapter titled �Of the Countries Subject to the Laws of England,?Blackstone outlines the relationship of Ireland, Scotland, and Wales to the English kingdom before moving on to the �more distant plantations in America, and elsewhere.? Here, he argues that the right to lands acquired either through discovery or through conquest �are founded upon the law of nature, or at least upon that of nations.? If England discovers the country uninhabited, English laws immediately preside over the land. However, if England conquers or annexes countries �that have already laws of their own,?then England cannot impose its laws unless the �king?of the conquered land changes them himself or unless the country�s laws �are against the law of God.? This outline thus distinguishes conquered lands from settled lands by three criteria: conquered lands are inhabited, conquered lands have a system of laws in place, and conquered lands are politically unified under a king. Though the Australian continent clearly contained people prior to the British, colonials rejected Aborigines?legal right to the land by virtue of their apparent lack of laws and a single political leader. Consequently, the notion that England settled, not conquered, Australia became standard and was formalized in Attorney-General v. Brown (1847). This doctrine of terra nullius, which held that the land was legally unoccupied prior to English arrival, received support throughout the century and was finally established authoritatively in Cooper v. Stuart (1889), wherein the Privy Council of England declared that, in 1788, the colony �consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law.? This settlement view of Australia maintained its prominent position in Australian law throughout the 20th century, and was not formally challenged until Mabo v. Queensland in 1992 established the Aboriginal claim of Native Title as legitimate.
Customary Law and the Status of Aborigines
Though the settlement view of Aboriginal land rights remained stable late into the 20th century, a dynamic theoretical discussion on Aborigines?legal status persisted, influenced in part by the settled versus conquered debate. In the first decades after settlement, the Aborigines?relationship to English colonial law fluctuated considerably. While later views came to be accepted as perpetual and axiomatic, Australian legal historian Alex Castles argues, �Viewed in the perspectives of the first half of the nineteenth century doubts and problems were raised on the position of the Aborigines in a variety of ways.? Provoking little argument was the question of Aboriginal legal accountability in violations of the Colonials?persons or property. Naturally, offences against British subjects warranted consideration before a British court of law. Matters became more complicated, however, in situations involving Aboriginal offences against other Aborigines. If Aborigines were to be incorporated as British subjects, they would deserve full entitlement to protection under British law. On the other hand, some colonial authorities argued that though the Aborigines were considered �unsettled,?they nevertheless possessed their own system of law, however crude in comparison to the English system, and could not be held to British standards in violations against one another.
In June, 1829, a critical precedent emerged in the Supreme Court of New South Wales favoring this plurality of laws point of view. The case of R v. Ballard brought charges against an Aborigine, dubbed �Dirty Dick?by colonial magistrates, for the �wilful [sic] murder of another aboriginal native.? Both judges presiding concluded that the case between two Aborigines was beyond the jurisdiction of the English court; the distinction between their arguments, though narrow, affords some insight into the complexities of the plurality perspective. Chief Justice Francis Forbes first established that no prior case existed wherein the British government interfered in a dispute among natives. He then moved to argue that �the savage is governed by the laws of his tribe? They make laws for themselves, which are preserved inviolate, & are rigidly acted upon.? Unlike laws of a �civilized state,?Forbes explained, the Aboriginal system did not require citizens to hand over their natural rights in exchange for protection of law. On the contrary, Aborigines, �living in the uncontrolled freedom of nature,?retained their natural rights and were thus governed by a system of natural justice. Though this application of an Hobbesian state of nature neglected to recognize the complexities of the Aboriginal governing system, it nevertheless accorded Aborigines the right to maintain the rule of law �which is perfectly agreeable to their own natures & dispositions.? Such a philosophy of natural law, positing universal moral principles, had the capacity to respect Aborigines �as a people equal in status to non-indigenous people.? Because Aborigines possessed their own system of natural justice, Forbes concluded, the English courts had no right to interfere with that system.
Like Forbes, Justice Dowling also acknowledged the lack of precedent for English interference in matters among Aborigines. However, whereas Forbes emphasized the existence of Aboriginal laws, Dowling implicitly recognized those laws (referring to Aboriginal �institutions?, but focused his argument on the absence of Aboriginal consent to English law. He states explicitly in his opinion:
The question of Aboriginal status, as well as the relevance of Aboriginal customary law, received due attention in the case of R v. Murrell (1836), just seven years following R v. Ballard. It is generally understood that the Murrell case overturned the Ballard decision, though clearly not without a great deal of argument. Interestingly, the case was initiated at the request of an Aborigine named Bowen Bungaree to prosecute Murrell, and another man named Bummaree, for the murder of two Aborigines. Initially, the proceedings hit a number of difficulties: no �Jury of Blackfellows?could be secured per the defendants?request, the prisoners?attorney �was ill in bed and could not attend,?and no Aboriginal witnesses could be sworn on the Bible, �as they did not believe in a future state.? Despite these obstacles, the Court appointed an impromptu Counsel for the defendants and allowed the case to proceed, though defense counsel contended that the case should be dismissed. According to Castles, the main argument offered by the defense appealed to the existence of Aboriginal customary laws, an existence established by Forbes and Dowling in Ballard. Through his interpreter, Murrell �argued that what he had done was a recognised revenge-killing under tribal law following the murder of his brother.? In this case, then, he should be tried according to the dictates of tribal law. Unfortunately for the defense, the Aborigine called to provide testimony as to native customs was not admitted, as Aboriginal customs were �decided by the Court as having no influence on the case.? Consequently, the case went to the Civil Jury with no witnesses and little testimony as to the actual facts of the incident. That a case between two Aborigines reached the jury at all, however, was unprecedented, and the Court�s jurisdiction to try such a case became a greater point of contention than the actual decision (which, in the end, proved to Not Guilty).
In his judgement of the case, Justice Burton addresses the question of the Court�s jurisdiction with direct appeal to both Vattel�s �Treatise?and Blackstone�s Commentaries. He argues, in an almost exact paraphrase of Vattel, that although the Aborigines were considered ?free and independence people,?they were neither populous nor civilized enough �to be entitled to be recognized as so many sovereign states governed by laws of their own.? Because the Aboriginal groups were not accorded sovereign nation status, they could not rightfully possess any land (according to Vattel�s Bk. II), and thus the Crown of England claimed Australia �before unappropriated by any one.? The land, therefore, was to be treated as an extension of English soil, and English law was to govern all activity as though committed in England. Furthermore, since Aborigines did not constitute sovereign nations but merely �wandering tribes,?they were to be treated as foreigners living within British territory, rather than �domestic dependent nations,?as the Cherokee Indians had been declared by the United States in 1831. In a remarkably subtle pronouncement, Justice Burton concludes, �There is no distinction in law in respect to the protection due to his person between a subject living in this Colony under the King�s Peace and an alien living therein under the King�s Peace.? In this manner, Burton effectively avoided the controversial step of declaring Aborigines British subjects, while nevertheless proposing that Aborigines be afforded all the protection (and, in turn, the legal responsibility) of British subjects. Thus, declaring both Vattel and Blackstone as �the authorities for these positions,?Burton, in his judgement of Murrel, stabilized the fluctuating legal status of Aborigines and established, once and for all, that they be treated as foreigners fortunate enough to occupy British soil.
The use of Vattel and Blackstone to justify this view of Aboriginal rights was not, however, inevitable. In a letter to the Sydney Herald published May 5, 1836, just a week before the case went to trial, an anonymous �Correspondent?provided a dissenting opinion to those supporting prosecution of Murrel. In addition to questioning the fairness of the trial�indeed, our Correspondent as much as prophesied the troubles in securing native witnesses and jurymen that would arise�the letter�s author raised two major objections to the case: namely, that Aborigines possessed their own laws, and that Aborigines could not be held accountable to British laws, of which they were not conscious. Citing the passage in Vattel that Burton would rely on almost exclusively to reject Aboriginal sovereignty, the Correspondent remarks, �It is not explained why this want of position as to strength and government should incapacitate them from making and putting into execution laws for the regulation of themselves.? In other words, the lack of Aboriginal nationhood according to Vattel�s criteria did not necessarily translate into the absence of an Aboriginal legal system. Beyond arguing the existence of Aboriginal laws, the author went further in declaring the Aborigines unanswerable to British laws, for their linguistic discrepancies and �helpless and unenlightened?nature rendered them ignorant. He likens the subjection of laws to ignorant persons to �the cruelty and injustice of an ex-post facto law,?and cites, of all people, William Blackstone as the scholar who made notifying the public of laws a requirement of any just legal system.
Despite such dissenting opinion, the Murrel decision, and Justice Burton�s remarks, became a crucial precedent in the treatment of Aborigines as subject to, though not subjects of, the laws of the British state. In 1860, the decision was upheld in two separate cases in Victoria, five years after the state earned its governing autonomy from New South Wales. In February of that year, the Melbourne Criminal Court tried an Aborigine named Mun-gett (called Peter by the whites) for the rape of a young white girl. Peter�s counsel plead against the court�s right to try the case, arguing that �Mun-gett did never become subject to, or submit himself or otherwise acknowledge allegiance to, our said lady the Queen.? Despite the plea, the case was held, Peter was convicted, and a special trial was brought to the Supreme Court in June to assess the Court�s jurisdiction. In the end, Peter�s conviction was upheld, the presiding justice arguing, �So long as the aboriginal was protected by the law, he was also to be held amenable to the law.? Several months following R v. Peter, another Victorian court tried an Aborigine named Jemmy for the beating death of his Aboriginal wife. In R v. Jemmy, the defense cited the coexistence of English common law and customary law in other colonies, such as Ireland and North America, and argued that the Crown must demonstrate its supercession of customary law before Aborigines can be held accountable to English law. However, as with R v. Peter, the Court asserted its right to hear the case, Chief Justice Stawell arguing that �the jurisdiction of the court is supreme, in fact, throughout the colony, and with regard to all persons in it.? Thus, both Jemmy and Peter maintained the principles of R v. Murrell in declaring Aborigines subject to British law in any infraction. Nevertheless, as Cooke demonstrates, controversy over the sovereignty of Aboriginal customary law was by no means stifled. On the contrary, arguments ranging �from sophisticated legal analysis of precedent to off-the-cuff oration based on beliefs about the customs of the uncivilized?dominated the discourse objecting to the Court�s jurisdiction. Though the Peter and Jemmy decisions further codified the retraction of Aboriginal customary law, the plurality of laws perspective remained a vital voice within legal debates.
Assimilation and Accountability
The Murrell decision, and subsequent cases that upheld it, placed the Aborigines in a unique position with respect to the British government. While it was understood that Aborigines recognized their own system of laws and punishments, the Aborigines were still considered accountable, as inhabitants of British soil, to the laws and regulations set forth by the Crown. Though this ruling denied Aborigines the sovereignty of their own customs, it nevertheless accorded them a certain degree of humanity that had heretofore been in question. That Aborigines were to be held responsible for their own actions under British law implied that they were capable of actively behaving either in accordance with or against those laws. While they may not have understood British law, or even realized its existence, Aborigines were nevertheless expected to abide by it and, so long as they did so, could benefit from the law�s protective capacity.
Through the second half of the 19th century, however, sentiments shifted such that Aborigines?responsibility for themselves became overshadowed by the law�s intent to �protect?them. Though colonial law still considered Aborigines legally reprehensible for their actions, colonials came to view the indigenous people as helpless, their behavior not as actions but as reactions to the shock of colonization. An 1858 editorial in the Argus described the Aboriginal condition as �analogous to that of an infant, as yet incapable of self control, innocent of the knowledge of good or evil, and destitute alike of foresight and experience. Therefore, he requires protection.? Though the presence of Aboriginal protectorates was nothing new�they dated back to the earliest humanitarian movements, to be discussed in the next chapter�the desire to improve the quality of the Protectors, and to extend their control, grew increasingly more imminent as the effects of colonial influence manifested. Following the recommendations of a Select Committee in 1858, the Australian colonies began reserving localities on which to settle and employ large groups of Aborigines. These reserves became universally popular, for they satisfied many parties with conflicting aims�those who wished to prepare Aborigines for white society, those who wished to compensate Aborigines for their stolen land, and those who wished to �rid society of an unsightly minority group.? For the colonial government, however, the primary purpose of these reserves was to protect Aborigines �from the vices and diseases of white men.? Again, the Aborigine assumed an ambiguous position: though accountable to British law, he was no longer considered capable of consciously choosing to abide by it. In a sense, then, later colonial opinion sought not only to protect Aborigines by the law but also to protect them from it, by removing them from situations in which they would be compelled toward criminality by the influence of white depravity.
By the late 19th century, the means of protection again shifted, this time with distinctly racial overtones. Though reserves had effectively segregated much of the black population, conditions on them were poor and �no habits of self-reliance were cultivated?in thee stationed Aborigines. As a result, colonial governments began to see assimilation of half-caste Aborigines into white society as a better strategy to encourage their development than isolating them from whites. Examining two Aboriginal Protection Acts from the state of Victoria elucidates this shift in philosophy, as Victoria was the first of all the colonies to espouse assimilation as a policy. In 1869, Parliament passed a bill �To provide for the Protection and Management of the Aboriginal Natives of Victoria.? The 1869 Act contained four main provisions: (1) it established a Board for the Protection of Aborigines (which replaced the Central Board for Aborigines ), (2) it gave the Governor the authority to determine the terms of aboriginal residence and employment, (3) it declared buying aboriginal goods or selling liquor to Aborigines a crime, and (4) it deemed �every aboriginal half-caste or child of a half-caste?or child habitually associating and living with aboriginals?to be Aboriginal under the law. In sum, the 1869 Act made the reservation movement that had casually emerged now a legal and systematic program, sanctioned by Parliament, and applicable to all inhabitants showing Aboriginal features, both physical and behavioral.
By the 1880s, however, discontent toward the reservation system festered on all sides. The Aborigines reacted to the increasing institutionalization of their lives by banding together in resistance; tactics ranged from strikes, to threats of destructive behavior, to using their newfound skills, such as writing, to protest poor conditions. The Board, on the other hand, grew frustrated at these Aborigines?acts of insubordination and sought to make the Aboriginal stations more manageable for the Protectors. They found their solution to this problem in reconfiguring the legal definition of Aborigine. As M.F. Christie, a scholar of colonial Victoria, notes, �now, according to the amended Act, �Aborigines?were full bloods, half-castes over thirty-four, female half-castes married to �Aborigines,?the infants of �Aborigines,?and any half-caste who was licensed by the (Board) to reside on a station.? In other words, the new legislation limited the category of Aborigine to a fraction of the earlier definition, thereby removing a large percentage of individuals with both white and Aboriginal blood from the stations. Christie remarks, �It is a bitter irony that many of those Aborigines who fought so strenuously to improve conditions on the stations?were themselves forced to leave after 1886.? Perhaps an even harsher irony was the legacy the Act left for the Aboriginal culture. Patrick Wolfe, from the Institute of Postcolonial Studies in Melbourne, explains, �Assuming continued �miscegenation,?the policy of leaving behind a �full-blood?population as the only officially recognized Aboriginal category would ensure that this category became an ever-dwindling one.? Stated differently, if sexual relations between whites and Aborigines continued to persist as expected, fewer offspring would legally qualify as Aboriginal, and thus Aborigines as a culture would die out. Thus, while this assimilation policy professed to help Aborigines thrive in colonial society, in actuality it sought to phase out the concept of the Aborigine entirely.
The shift from a segregation program to an assimilation policy marked yet another crucial change in the way Aborigines were regarded under the law. As we saw from the R v. Ballard decision, early 19th century colonial law recognized Aborigines as a distinct cultural group who retained their own laws in matters amongst themselves. With the overturning of Ballard through the R v. Murrell case, colonials acknowledged the existence of Aboriginal customary law but determined that British law should protect Aborigines in all circumstances, including cases within their community. Thus, the Murrell decision deprived Aboriginal law of its sovereignty, but at the same time attributed to Aborigines a degree of individualism and humanity in their responsibility under British law. However, this individualism fell to the wayside when, in the 1860s, Parliament made the segregation of Aborigines onto �protective?stations official policy. Though Aborigines were still technically accountable to British law, policymakers argued that Aborigines, as a cultural group, were helpless and that their actions were determined not by their own conscious will but by their unfortunate interactions with colonial society. Along with their freedom, then, Aborigines on reservations lost both their individuality and their capacity to guide their own behavior. With the emergence and implementation of assimilation policy at the end of the century, Aborigines faced losing their distincness as cultural beings as well. By limiting the scope of the Aboriginal definition and attempting to integrate any Aborigines with white blood into white society, colonials sought to phase out Aborigines as a cultural category. Though most colonials treated half-castes as inferior Aborigines, under British law they held the contradictory position of being whites, accountable to white laws and capable of white civilization, while simultaneously being blacks, subject to colonial encroachments on their political rights for their own good. This untenable legal status carried over into Australian federal law (after Confederation in 1901), and culminated in the Aborigines Protection Act of 1909, which legalized the forced removal of half-caste children from their Aboriginal kin. The thousands of Aborigines removed as part of this Stolen Generation thus serve as living symbols of the paradoxical legal status of Aborigines at the turn of the 20th century.
1Governor Phillip's Instructions, from
Back to Introduction
2Emerich de Vattel, The Law of Nations, London: G.G. & J. Robinson, 1797; Bk. I, Ch. XVIII, p. 98.
3Ibid., Ch. XVIII, p. 100.
4Ibid., Ch. XIX, p. 103.
5William Blackstone, Commentaries on the Laws of England, Last London Edition, Portland: Thomas B. Wait & Co., 1807; Bk. I, Sect. IV, p. 106.
"Political Science" in the 19th Century
Scientific Philosophy: Prime Mover, Grand Catalyst
Concluding Remarks: Where Are We Now?