Nineteenth century Australia witnessed several large changes in Aboriginal policy and, consequently, in the way the colonial government regarded Aborigines with respect to the law. In the early decades, opinion fluctuated as to whether Australian Aborigines had their own legal system under which they were accountable in matters amongst themselves. The R v. Ballard decision in 1829 established, for the first time officially, that a plurality of laws existed on the continent and that Aborigines could retain sovereignty of their own laws in some circumstances. However, in 1836, the R v. Murrell decision rescinded this plurality of sovereign laws; thereafter, the law treated them for all practical purposes as British subjects, though Aborigines maintained a nominal status of �aliens� on British land. By the late 1860s, although Aborigines could still pay the consequences of breaking British laws, the colonial government began to regard them differently from adult British subjects. The legalization of Aboriginal stations represented a shift in Aboriginal legal status from essential subjects to essential minors�from individuals accountable under the law to wards of the state incapable of managing themselves. While these native reservations proliferated, colonials saw little improvement in the Aboriginal condition (in other words, little movement toward adopting European customs), and thus by the end of the 19th century policy shifted yet again. The assimilation efforts that gained momentum after Victoria�s Aboriginal Act of 1886 sought to incorporate stationed half-castes into white society and consequently to obliterate the remaining Aboriginal culture. This program spawned a new, discrepant legal position for half-castes who had been legally considered Aborigines previously: now they were regarded as both white, expected to adopt white customs and laws, and black, subject to the will of the Australian government.

In the previous chapter I outlined the course of anthropology in 19th century Australia, demonstrating the enduring ties between the science of man and the politics of government. Considering the major shifts in Aboriginal policy, one would expect a relationship between the growing field of anthropology and the state of Aborigines� legal rights. But what was the nature of this relationship? Did the influence of anthropology, as a developing professional science, drive the changes in Aboriginal legal status? Or, was anthropology merely the �handmaiden� of colonialism, as a typical social historian might suggest? While both arguments have appeal for certain historical perspectives, the mutuality of the science-state tie suggests that neither anthropology nor colonial politics was driving the relationship. Since anthropology both influenced and benefited from the colonial government, to suggest that one sphere propelled the other would be to ignore the symbiotic nature of their relationship. In order to understand the connection between anthropology and Aboriginal legal rights, one must consider the broader context in which both Victorian science and imperial government were operating. I argue that the changes in both realms reflect broader changes in British scientific thought that were affecting all Aboriginal-related matters in tandem.

The first decades of British control in Australia coincided roughly with the final decades of the European philosophical era known as the Enlightenment. This era was characterized by its continual appeal to reason and its conviction that all aspects of the universe were ordered. The belief in order manifested in charts, diagrams, lists, and trees demonstrating the relationships between perceptibly distinct categories�between words in Noah Webster�s Spelling Book, between plants and animals in Linnaeus�s Systema naturae, and between the races of man in Blumenbach�s De generis humani varietate nativa. Race science drew upon numerous sources during this time. The hierarchical ordering of races was articulated through use of the �ancient concept of the Great Chain of Being� as an ordering principle of biology.� Evidence from newly discovered lands and peoples served to substantiate the principle; McGregor writes, �As Europeans became increasingly familiar with the diversity of humankind� the gap in the Chain between man and monkey was able to be filled in, with black races at the bottom of the human link.� Philosophical and phrenological observations from Australia were particularly salient, as Australian Aborigines came to be viewed as the lowest rung on the ladder, the missing link between man and ape.

For most Enlightenment thinkers, however, the Aborigines� inferior position on the racial hierarchy did not constitute a hopelessly immutable state. The Enlightenment belief in universal order extended beyond the races of men to their societies. In this ordering, European civilization was merely the end product in a long series of developmental stages. Aboriginal savagery, then, was not a static condition but rather the most primitive phase in a natural progression toward civilization. Furthermore, many Enlightenment thinkers believed that man was inclined toward savagery, only adopting civilization when conditions forced him to. Peter Cunningham, a naval surgeon in the early years of New South Wales colony, remarked: Civilization depends more upon the circumstances under which man is placed than upon any innate impulses of his own�. It is only necessity that urges mankind to congregate in fixed habitations, and raise their food by the sweat of their brow.

The Australian Aborigine, then, was destined to remain in his primitive state until a change in circumstances propelled him to adopt the manners of civilization, namely fixed habitation and cultivation of the soil. It was believed, nearly universally among the colonists, that British colonization would be the impetus driving that step toward societal progress.

While a dissenting opinion arose occasionally, the majority of legal documents concerning Aborigines in early colonial Australia reflect these Enlightenment beliefs in racial hierarchy and progress. In the decisions of Ballard, Murrell, and Jemmy, discussed earlier, the colonial Justices made these Enlightenment ideas apparent. Although Justice Dowling, in his opinion of the Ballard case, explicitly rejects the notion of England�s legal superiority over Aborigines, he clearly believes that the Aborigines could adopt the more perfect English laws at some later stage when he argues that the court has no jurisdiction �until the aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws.� Likewise, Justice Forbes describes the inferior position of the Aborigines in temporal terms; he notes that both the accused and the victim in the case had lived �in a savage state at the time of the transaction in question.� Underlying both Justices� statements, then, we find the implication that Aboriginal savagery was a lower state from which these people could emerge at some future point. Although the Murrell case overturned the legal plurality decision of Ballard, the Justices involved still invoked the Enlightenment notion of progress, though in this case to reject, rather than corroborate, the sovereignty of Aboriginal laws. Justice Burton argues that �the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization.� Burton�s use of the term �attained� is notable; evidently, he believed that Aborigines were on their way to �attaining� sufficient numbers and civilization to be considered independent nations but simply had not reached that higher stage yet. Justice Molesworth followed the same reasoning in R v. Jemmy. The Argus reported after the trial that the judge�s main point of contention was whether �either of these natives had become civilized or had changed their habits or modes of life so as to be supposed voluntarily to have subjected themselves to British laws,� a suggestion similar to Dowling�s that Aborigines could change or become more civilized by adopting British laws. Thus, we find the Enlightenment notion of societal progress strewn throughout the Australian legal decisions of the early 19th century and even in some mid-century documents that upheld the earlier decisions.

Considering the pervasiveness of the Enlightenment doctrine, it is not surprising to find elements of it in the early ethnographic writings in Australia. Both Grey�s and Eyre�s reports are rife with references to the moral improvement of Aborigines, making �rising in the scale of civilization and improvement� a moral imperative. Because these men�s journals also served as recommendations to the government, they went one step further than to simply suggest the possibility for Aboriginal civilization�Grey and Eyre offered actual instructions on how to effect that change through policy. Indeed, Grey�s letter to Parliament that received wide circulation throughout the colonies was titled, not remarkably, �Report upon the best Means of Promoting the Civilization of the Aboriginal Inhabitants of Australia.� Clearly, Grey believed not only that Aborigines could be civilized but also that he knew the best means of encouraging it. Eyre�s writings also contained ideas of social progress, though not highlighted as explicitly as in Grey�s letter. Often the influence of Enlightenment notions appears in Eyre�s description of the failed colonial school system. Regarding the Aboriginal students, Eyre found some �in such a state of forwardness and improvement, as reasonably the sanction the expectation, that they might one day become useful and intelligent members of the community.� The implementation of more stringent school systems was, for Eyre, the method by which this expectation that Aborigines could become �useful and intelligent��traits of the civilized�would be realized.

Both the political-legal and the scientific realms in early 19th century Australia drew from Enlightenment philosophies regarding racial hierarchies and the natural progress of societies toward civilization. Around mid-century, however, a shift in British scientific thought began to pull both realms in a new direction. Earlier in the century, some writers who appealed to the Enlightenment theory of societal stages also included the possibility of societal regression. As McGregor notes, these theorists argued that �the Aboriginals� had declined from a formerly more civilized state to one of wretched savagery, impelled on their downward course by the power of irrational superstition.� Accordingly, if societies could retrogress just as they could progress, the possibility existed for lower societies to regress themselves to extinction. This theory of societal extinction became codified, and gained widespread popular appeal, with the publication of Herbert Spencer�s Social Statics in 1850. In the early chapters of this influential work, Spencer argues that man is in the process of adaptation to his social state, and that civilization is evidence that some adaptation has taken place. Progress, then, represents the transition from savagery, a poorly adapted state, through civilization, a mostly adapted state, and finally to an hypothesized state of human perfection, wherein �man is completely suited to social life.� In this way, then, Spencer establishes civilization as a completely natural state for man, as �part of an organic law.� From this basis, Spencer then derives justification for the annihilating effects of colonialism. Though he regards the �predatory instinct� of colonization as having �retarded civilization� due to its anti-social nature, he praises colonialism in that �it has subserved civilization by clearing the earth of inferior races of men.� In other words, colonialism was a necessary evil, part of the process of progress, that allowed civilized states to exterminate the sectors of mankind that stood in the way of a �great scheme of human happiness.� For Spencer, then, the extinction of these lower orders of humanity was an inevitable, and essential, occurrence in man�s process of adaptation to the social state.

While Spencer�s argument, and soon thereafter Darwin�s theory of descent, retained the Enlightenment notion of societal development, the extinction concept proposed that some races had to die off in order that others could progress. The influence of this new theoretical twist can be found in both the changing policies toward Aborigines as well as in the new way ethnological research was conducted. Colonial officials appear to have felt some guilt over Aboriginal extinction, believing colonial contact to be the culprit. Even Edward Eyre, in 1845, lamented the decline in Aboriginal numbers, and considered it �a matter of deep regret to see them� disappearing.� A primary cause cited for Aboriginal demise was miscegenation; the missionary Lancelot Threkeld noted that, because of inter-racial mixture, �in a generation or two more the pure aborigines of these parts will be numbered amongst the numerous extinct nations.� Aboriginal reserves were in part a result of the guilt this miscegenation produced. Christie distinguishes between two contradictory factions who, ironically, both supported the reservation policy. One group, he writes, �believed that if the Aborigines were protected from the vices and diseases of white men, the decline in Aboriginal numbers might be arrested.� Another humanitarian group supporting reserves was less optimistic, believing �that the Aborigines would unquestionably die out and that the reserves should be conceived as rest homes where the tribes might spend their last years in comparative peace and comfort.� In either case, however, it is clear that the extinction theory promulgated by Spencer played a crucial role in the shift toward a formal reservation policy for Aborigines.

Where extinction theory motivated Aboriginal legislation, it created an even greater sense of exigency in the anthropological impulse. In his discussion of mid-19th century anthropology, Tom Griffiths remarks, �Anthropology in Australia was driven by the expectation of Aboriginal extinction, by the urgency of preserving the records of a dying race.� The effect of this urgency was a shift in ethnographic method, from mere observation by travelers and government magistrates to a standardized, scientific undertaking of collection and preservation. No longer was recording Aborigines� manners a sufficient form of scientific data; now, it was necessary to actually obtain material artifacts�tools, crafts, even skulls uncovered from the earth�such that future scientists could �know� the Aboriginal race even when its peoples had ceased to roam the land. In this way, Aboriginal reserves became a vital institution both for Australian colonial politics as well as for anthropological methodology. Reservations proved to be living museums, functional storehouses that captured permanently the stories, relics, and physical remains of a race destined to pass into legend. Gray points to the inherent irony in this new anthropological method, which sought to collect physical materials that represented Aborigines before colonialism rendered them extinct. He notes, �Aborigines, paradoxically, were unaltered by contact yet were fast disappearing.� Despite this intrinsic contradiction, however, the predictions of extinction theory continued to compel anthropology in colonial Australia in the mid-19th century.

The broad scientific shift from the Enlightenment notion of societal progress to Spencer�s theory of racial extinction was mirrored by concurrent shifts in Aboriginal legal policy and anthropological methodology. Likewise, the anthropological and legal realms incurred yet another change in direction with the increasing acceptance of Darwin�s theories of evolution and human descent. As with the previous philosophical shift from the Enlightenment, the new evolutionism built largely upon the existing doctrine of societal extinction. Indeed, as McGregor remarks, in his 1871 work, Descent of Man, Charles Darwin pays homage to Herbert Spencer as an influential philosopher. The difference between the two theories, the element that constitutes a philosophical shift, lay in the incorporation of biology into the theory of progress toward civilization��in the evolutionary version it was a developmental sequence not only of society but also of biology.� Because natural selection had perpetuated the superior adapted traits of civilized (white) man, it only followed that infusing Aborigines with white traits would assist in their biological development toward civilization, and thus in the extinction of the inferior racial category they previously occupied.

One does not need to extrapolate far to discover the connection between evolutionist theory and the assimilationist policies that pervaded late 19th and early 20th century Australia. The removal of half-caste children, first from reservations and later directly from their families, exemplifies that biological principle that �sought to eliminate Aborigines through the eugenic expedient of �breeding them white�.� The close connection between professional anthropology and the colonial/federal government leant credence to removal policies. Henrika Kuklick states:

When Britain�s colonial rulers presented themselves as agents of improvement in the lives of subject peoples, they were wont to do so by arguing that they were negotiating their charges� smooth passage through the stages of evolution anthropologists described.

That some anthropologists, such as Baldwin Spencer, actually became those officials in charge of the �subject peoples� only hastened the process by which evolutionary anthropology came to justify assimilationist programs. The shift in Aboriginal legal status under the new policies thus resulted from the Darwinian shift in the theory of societal progress combined with the close tie between anthropology and the Australian government.

In seeking to elucidate the relationship between Australian anthropology and Aboriginal legal rights, the broader scientific context thus becomes a crucial consideration. The tie between anthropology and the colonial government was symbiotic, such that science and politics both benefited from and influenced one another. The relationship, therefore, cannot be reduced to one realm motivating the other, but must be viewed as both anthropology and legal theory moving in tandem, at the impulsion of a larger driving force. Changes that occurred in British scientific philosophy rendered concurrent changes in Australian anthropology and native policy. The shifts in British scientific thought from Enlightenment notions of progress to Spencerian extinction theory to a Darwinist evolutionary perspective became reflected in the changing legal standing of the Aborigine, and likewise in the colonial policies and anthropological practices that underlay this shifting legal status.

Back to Introduction
Back to Land and Law: The Changing Rights of the Aborigine
Back to "Political Science" in the 19th Century
Conluding Remarks: Where are we now?