Australian Aborigines were not as Joseph Banks had suggested—a timid few who would graciously give way for a British convict colony. His advice to the British government had been that the coastal area was thinly populated and the inland was likely to be empty.1 The Aborigines were much more numerous than expected and they were everywhere the newcomers ventured, both on the coast and inland. Nor did they willingly concede their homelands and instead, sometimes made considerable effort to dissuade white settlers from staying. Governor Phillip had instructions to forge good relations with the natives but none to make a treaty or to recognize prior ownership of land.
Clashes between the two cultures were inevitable and offenders, both white and black, usually met with a violent response from the other side. Phillip soon realized the Aborigines would not recognize the colony’s law—they had their own rules of payback. As settlement spread and white people moved into more vulnerable situations, it became more difficult to control the violence between colonists and the Aborigines who lived in those areas. Aborigines could not be made accountable under British law as they had no legal status in the colony’s courts despite being deemed British subjects. Simply frightening Aborigines with guns and pushing them back from the farming areas were unsustainable strategies.
Following Governor Hunter’s departure from the colony violent encounters between Aborigines and colonists persisted, although not continuously. As time went on Aboriginal clans preferred to adapt to the changed circumstances and live peaceably rather than maintain an opposition in which they often suffered severe losses. Governor King’s letters back to the Secretary of State for War and the Colonies, Lord Hobart, give no hint of fresh trouble until October 1802. He then reported that the natives around Toongabby and Parramatta were troublesome but those ‘about Sydney and Hawkesbury continued as domesticated as ever’.2
Despite accommodating and peaceful relations in the main, Australian Aborigines never conceded their traditional right to avenge themselves against those who offended against them. The colonial authorities, unable to bring Aborigines before the courts, had adopted a system of response that mirrored the one they faced. To strike back was understood in both cultures—it was the most basic form of natural justice. Perhaps if Governor Hunter could have delineated the New South Wales Corps as the sole agents of white retaliation against black, he might have been clearer to the settlers about how far they could respond to Aboriginal threats or attacks. If immediate self-defence had been the only response a settler was allowed to make then perhaps there would not have been so much killing. Pursuit of the offenders, however, was the usual response condoned by the authorities. The farming settlements had spread to locations often far from military stations. It was too late and too difficult to oversee every act of retaliation. Hunter’s government and general order of 22 February 1796 made it clear settlers were expected to come to each other’s aid to defend themselves. Striking back against the attackers was understood as necessary. Settlers and soldiers acted together, but sometimes it was settlers alone who went in pursuit.
Defining the limits of self-defence was beyond description when the official policy was retaliation. If an Aborigine shouldered his spear and pointed it at a white man, was it not self-defence for the white man to shoot? Ambiguity was bound to muddy the waters of any investigation after the fact. And who among the white man’s neighbours was prepared to say the gun was fired without provocation at the time?
Governor Hunter had tried to establish a legal precedent by which all colonists would be warned that wanton killing of Aborigines would be treated as outright murder. As in so many other aspects of his administration, Hunter’s opponents frustrated his efforts. It seems that the New South Wales Corps, when they were in charge of the colony before Hunter arrived, did not take on board that instruction Phillip had received to protect the natives. Perhaps they saw their role only in terms of maintaining control of the convicts and protecting settlers. Retaliation by way of a punitive military expedition to destroy Aborigines had been Governor Phillip’s way of demonstrating his anger when his own gamekeeper was murdered. It was a method used from then on by Acting Governors Grose and Patterson, and then by Governor Hunter. During the military interregnum there was not one murder trial of a colonist for killing a native. The first attempt of that kind was during Hunter’s governorship in October 1797—the trial of William Miller and Thomas Bevan for murdering the Aborigine Tom Rowley. The men were discharged when there was no witness to the killing. The next attempt was in February 1799 when Thomas Hewitt was charged with the murder of Aboriginal Willi Cuthie. That trial also miscarried. The next attempt by Hunter to show the colony that wanton abuse and murder must stop—the trial of the Hawkesbury five—was again thwarted. The trial never got to a point where punishment was inflicted on those the court found guilty, notwithstanding the fact that the charge itself seems to have been diminished by the Judge-Advocate.
When Governor King received Lord Hobart’s letter containing the several pardons, including for the five Hawkesbury men, he decided on firm public action. Hobart had given him a clear warning that protection of the Aborigines was an important matter to which King must pay particular attention.3 The letter had the desired effect. King decided upon issuing an order similar to the one Hunter had given in 1796, but this time by way of a proclamation. Whereas Hunter’s order had been handed down via the chain of command, King’s would be read aloud to the gathered public in all the settlements.
The proclamation warned people against committing any injustice or wanton cruelty towards the natives. Regardless of having remitted the punishment of the five Hawkesbury men, he warned the settlers that such leniency would not be shown in the future. The proclamation continued with the following:
I do hereby strictly forbid any of His Majesty’s subjects, resident or stationary in this colony, for using any act of injustice or wanton cruelty towards the natives, on pain of being dealt with in the same manner as if such act of injustice or wanton cruelty should be committed against the persons and estates of any of His Majesty’s subjects; but at the same time that His Majesty forbids any act of injustice or wanton cruelty to the natives, yet the settler is not to suffer his property to be invaded, or his existence endangered by them, in preserving which he is to use effectual, but at the same time the most humane, means of resisting such attacks, but always observing a great deal of forbearance and plain dealing with the natives appears the only means they can adopt to avoid future attacks, and to continue the present good understanding that exists. Phillip Gidley King.4
It was the same warning Hunter had given in 1796 but without specifically mentioning murder. The policy had not moved forward and instructions to the settlers still did not delineate how far retaliation could be taken. Self-defence and retaliation continued to be every colonist’s responsibility. Missing also was any statement about the natives being subjects of His Majesty and thus under His Majesty’s protection. Perhaps declaring that to be the case would only bring up questions about why they had no legal status in the courts. The pretence of protection due the Aborigines was of no meaning whatsoever when violence was the expected reply to violence. And missing too was any instruction about retaliatory action having to be immediate. It seems that principle was a John Hunter idea Phillip King did not adopt.
Governor King’s proclamation was delivered in June. In October he wrote an extensive report to Lord Hobart.5 It included an explanation of his decisions on the conditional pardons for the five Hawkesbury men and how he had negotiated peace with the Aborigines led by Pemulwy. King assumed that the Aborigines might cease their attacks once Pemulwy had paid with his life for the murders he had led his followers to commit,
as it was a practice strictly observed among the natives that murder should be atoned by the life of the murderer or someone belonging to him, the natives were told that when Pemulwye was given up they should be readmitted to our friendship.
King had ordered settlers in Parramatta, Prospect Hill and the George’s River to drive any natives away by firing at them. Pemulwy, the chief instigator of the attacks, was hunted down and killed by two settlers. The Aborigines then requested that Pemulwy’s head be taken to the Governor with their promise that no more mischiefs would occur and they therefore should be allowed back into the settlements. King immediately responded by ordering the settlers to cease attacking. As soon as that took effect the Aborigines returned to those same districts, relieved and happy that the conflict was over, and, King said, with ‘as much confidence as before’.6
The Sydney Gazette newspaper began publishing in March the following year and some comment relating to the enforcement of the Governor’s orders is available from that source. In May 1805 the paper reported the murders of two white men in the lower Hawkesbury area. The account is followed by several paragraphs that give some idea of the attitudes of the newspaper’s editor, and perhaps also of the readers.
Should it at any time appear that an individual amenable to the law abuses by maltreatment any of these people, the offence is immediately investigated, and the slightest act of injustice treated with even greater rigour than it would have been had the complaint proceeded from a European. The natives are themselves perfectly aware of the protection they owe to the Government; and its Officers; and seldom suffer an occasion to escape of representing the slightest grievance.7
The article expressed opposition to the idea that the Aborigines only retaliated for injuries received—an idea several times expressed by Governor Hunter and David Collins. Experience and observation, the Sydney Gazette writer contended, leads one to believe the contrary. The article gives an example of how the Governor’s regulation was enforced. A freeman, according to his own account, was in gaol at the Hawkesbury and serving on the gaol gang after being guilty of giving a blow to a native who was about to rob him. His punishment came about from a complaint made by the native. Cases like this must have been uncommon as the writer concedes that there had only been one such complaint from a native for the last twelve months. The settler’s generosity to the natives, the writer maintained, should be returned with gratitude, or at least a cessation of violence. But instead he could be at risk of losing his life. The periodic ‘enormities’ had a pattern. They occurred usually at the beginning of harvest time when the natives would reap what they wanted and despoil the crop. This, the writer said, would provoke the settler’s opposition that would then lead to a ‘renewal of mischiefs’.
If the Sydney Gazette represented community attitudes then resentment brewed over the Governor’s protection of Aborigines. The newspaper’s version was that provocation by the Aborigines led to defensive action by the settler, which then led to retaliation by the Aborigines. The scenario was one of a cycle of violence.
Death of the Upper Hawkesbury Aboriginal Resistance Leaders
In July 1804 a punitive party of soldiers killed Major White and another clansman known as Nabbin. The Sydney Gazette said that both natives had been the killers of Hodgkinson and Wimbo. At the time, efforts were under way to broker peace with the Hawkesbury clans. The Reverend Samuel Marsden and Mr Arndell, both magistrates, tried to negotiate a cessation of hostilities through two Aborigines they referred to as tribal chiefs, Yellowgowie and Yarramundi. They asked them to try to put an end to the current ‘mischiefs’ with the settlers.8 Their request, supplemented with gifts of food and clothing, met with some success, as hostilities did stop for a while after Major White’s death.
Yellowgowie and Charley were amongst several Aborigines killed in May the next year. Charley’s story is a sad example of the difficult choices that contact with white people presented to Aborigines. He evidently tried to walk a middle path between white and black cultures. In Parramatta he lived for a time with Captain Cummings where he must have learned to make himself understood in English. It was a skill that made him a clan spokesman with white settlers. In 1799 he was in trouble over the spearing of Sergeant Goodall but, as we know, after he was brought in for punishment Governor Hunter released him. Perhaps through his relationship with Captain Cummings he was persuaded to try his hand at growing his own crop of corn. Governor King gave Charley the use, but not the title, of four acres of land for that purpose. According to the Sydney Gazette of May 1805, Charley had applied himself with much energy cultivating the soil and had patiently awaited his crop as it slowly matured. This was an experiment by the Governor, but for Charley it was a once-only experience. He had developed a reputation with travellers and settlers in the outlying areas as being a native capable of fierce hostility. But in the period leading up to his final acts of warfare he had apparently been peaceful and friendly.
The deaths of Charley and Yellowgowie were reported in the Sydney Gazette as occurring during a settlers’ campaign against a large band of Aborigines gathering for warfare.9 The total numbers were reported as between three and four hundred with many ‘strangers’ amongst them. The pursuit party of settlers set off in wet weather with supplies and a wagon carrying a boat to cross the river. With the help of two Richmond Hill Aborigines they tracked the group into the mountains. The two guides had agreed to give their assistance on the promise that they would be able to each ‘seize and retain a wife a-piece’. Through the help of these two lads the settlers had the element of surprise. When they came across the band they fired their muskets and seven or eight Aborigines fell, amongst them Yellowgowie. The white men had not expected him to be there. They had last seen him at the Green Hills (the Windsor area) where he had assured them of his friendship. But unbeknown to them, Yellowgowie had outstripped the pursuit party by a shorter route in order to give the alert. He was dressed in the clothes of a white man, someone the Aborigines had murdered. Yellowgowie was shot dead before the settlers recognized him. The surprise attack frightened the Aborigines and the majority ran off leaving the weapons they had been stockpiling—reported as ‘several thousand spears, frightfully jagged’. The white men burned every spear in a big bonfire. It was an act that must have greatly discouraged the Aborigines from what was obviously to be a large-scale campaign.
The next day Charley was killed as he called at a settler’s hut. A few men from the pursuit party had stayed with this lone settler to give him protection.
Charley came into the hut on friendly terms and enquired whether any arms were there. He attempted to enter a room where the men were hiding but the settler stopped him. Charley then began a stream of abuse and the men were summoned from the room. Before Charley could make his escape he was shot dead. His compatriots outside disappeared after a few minutes, reappeared the next day but were driven away by the white men.
Alternative Ways to Punish Aborigines
The ambiguity of the legal position of Aborigines—British subjects, but unable to be tried or to give evidence in a court of law—made it difficult for the governors of New South Wales to find ways of punishing troublesome Aborigines. When, in 1805, several Aborigines had been voluntarily given up as being the principal aggressors in the recent murder of two Hawkesbury settlers and two stockman, Governor King asked for legal advice as to how he could deal with them. Six Aborigines had already been shot dead in pursuit of the offenders so King was not eager to execute more. That would appear unbalanced to the Aborigines as only four whites had died. After hearing from Judge-Advocate Richard Atkins that a murder trial was, from a legal standpoint, out of the question, King arrived at a punishment acceptable to all parties: the prisoners were sent to labour in another settlement.
King was hoping his handling of the case had demonstrated ‘the plain, honest dealing with the natives’ that Lord Hobart had pressed him to demonstrate. The outcome seems to have satisfied the settlers at the Hawkesbury as well as those Aborigines who gave up the culprits. By the time King wrote about the events to Lord Camden he could confidently report that the disputes were at an end and that the local Aborigines had returned to peaceful domestic habits with the settlers. One settler had engaged four Aborigines to stay with him for a limited period as hired servants. Apparently, following this 1805 negotiated agreement, peaceful coexistence was the preferred mode of living for both Hawkesbury Aborigines and white settlers.10
Colonial Coercion of Aborigines
Successive governors became more intolerant of Aboriginal resistance and Aboriginal customs. In 1816 Governor Lachlan Macquarie responded to persistent Aboriginal attacks on settlers with another punitive military force. Although a few of the offending Aborigines were killed, some innocent women and children also lost their lives when the identified culprits would not give themselves up. Macquarie decided upon making a proclamation that banned Aborigines from bearing arms when they entered the settlements.11 If they came unarmed, the proclamation said, they should not be more than six together. If they came onto the farms, whether they bore arms or not, the settlers should ask them to leave. If they persisted in staying or tried to commit a robbery they would be driven away by ‘force of arms’. If a settler needed help to do that, he could ask a magistrate to apply to the nearest military station for help. The proclamation also banned the Aboriginal custom of gathering in numbers to settle, by fighting, an internal dispute or to avenge a wrong. Macquarie declared this ‘barbarous custom’ was no longer to occur anywhere there were white settlers. It was ‘repugnant to the British laws’ and it ran counter to all efforts to civilize the natives—an object, he declared, of great importance.
Macquarie was demonstrating his determination to bring Aborigines to accept and submit to British colonial law and order. If Aborigines gathered on or near a farm Macquarie was telling the settler to ask them to leave, using firearms if necessary. It was authorizing settlers to shoot Aborigines who were reluctant to go. If the settler needed military help it was available, but only by application through a magistrate. This clearly placed responsibility at the settler’s door for first-line defence—and attack—at the Governor’s order. It was the same tactic Governor King had used when trying to quell the violence led by Pemulwy— order the settlers to go on the offensive. It is interesting that Macquarie was confident that the Aboriginal people in the settled districts would hear, understand and accept the meaning and intent of his proclamation. It would seem to indicate there was a certain ease and frequency of communication between Aboriginal and British communities.
Macquarie’s proclamation meant that asking for military help could no longer be by direct request. In September 1799 Joseph Phelps asked for the military’s aid to disperse a group of Aborigines. They had gathered near his farm on South Creek. As historian Jan Barkley-Jack points out, they could not have been threatening attack as Phelps had time to walk from his farm to the commanding officer’s house and back again.12 He and the two co-opted soldiers were apparently sufficient for the task. At the same time they also managed to take prisoner two Aborigines, Charley and Coppy. Discouraging groups of Aborigines from congregating on a settler’s property had been government policy under John Hunter’s order of 1796.13 Using the military to disperse a mob of Aborigines began long before Macquarie spelled it out in his proclamation.
Macquarie’s proclamation offered incentives as well as threats. He promised to provide land grants to Aborigines and similar support to that given any other grantee. It was an attempt to integrate Aborigines usefully into colonial society. He also promised, no doubt with what he believed were the best of intentions, that if they gave up their children into the care of an institution in Parramatta those children would be fed, clothed and educated.
Bringing White Men to Justice for Murder of Aborigines
Self-defence was, and continued to be, the excuse that kept white men who murdered Aborigines out of the criminal court. A case in 1827 demonstrates the difficulty in bringing the murderer of an Aborigine to justice even when it had obviously not been self-defence. Lieutenant Nathaniel Lowe of the 40th Regiment was charged with the murder of Jackey Jackey.14 The killing had occurred the previous year at Wallis Plains (Hunter River area) when Lowe had Jackey Jackey under escort as a prisoner. When Governor Darling heard the details he was not happy to let the case slide.
When the trial opened, Lowe’s counsel, Wardell and Wentworth, argued that the court had no jurisdiction since the Aborigine concerned had no legal status in the court and thus had no protection as a British subject under the law. They said that the only understanding between British people in New South Wales and Aboriginal inhabitants could be a ‘tacit compact among individuals which goes no further to say we will be at peace with you if you keep peaceable with us, and that compact would be sufficient to authorize the gentleman at the bar [Lieutenant Lowe] to punish any of these natives who violated this compact, in any way he might think fit’.
The two judges did not agree with that argument. They decided that the case could be heard in the court because Aborigines were British subjects due protection of His Majesty’s laws. However, as the trial proceeded the truth was covered up and the jury, composed of military officers, took just five minutes to arrive at a decision to acquit Lieutenant Lowe.
Aboriginal Legal Status Changes
Indigenous rights and indigenous law were never going to be officially recognized if the colony was going to be permanent and expand. As Aborigines became more accustomed to white society the colonial authorities became more confident in imposing British law on the black man. In 1836 the first Aborigine was brought to trial for murdering another Aborigine. The case, R. versus Jack Congo Murrell, paved the way for Aborigines to be tried for murder in the colony’s courts, as could Europeans. But as law historian Bruce Kercher argues, ‘far from the law protecting them, it usually victimized them. Its main impact was to coerce them into obeying a law that they had not agreed to observe and which they often knew nothing about.’15
Myall Creek Massacre
It was not until the Myall Creek massacre in 1838 that white men were convicted and punished for murdering Aborigines. A whole family group of Aboriginal men, women and children were slain near Inverell in north-west New South Wales. The case caused a furore in the newspapers. With public opinion weighted against a conviction, the jury in the first trial found the accused innocent. The defendants, ten stockmen and one resident squatter, had been charged with murdering one of the slain Aboriginal men. The prosecutor immediately moved for a new trial, this time against seven of the men, with the charge being for murder of a child rather than an adult. The judge made himself clear to the jurors that the evidence was strong for a guilty verdict, and that was how they voted. Seven men died on the gallows. Their confessions to the gaoler before they died were that they were unaware killing Aborigines was against the law since it had been done so often before.16
Postscript
I set out to find the truth about my ancestor’s involvement in the murder of two Darug Aborigines. By analysing the historical records I hoped to establish a clearer picture of what happened than was available in the published interpretations by various historians. In that the historical records have, almost in their entirety, been written by people in positions of administrative responsibility for the settlement, the overlay of their personal biases must always be recognized. I have uncovered almost nothing about how the Hawkesbury Aborigines felt about what happened. Any insights are only guessed at from the European viewpoint. Nevertheless the records provide some insight into the challenges faced by the local Aborigines as they lived alongside and amongst the settlers on the banks of the Hawkesbury River.
My interpretation of the events of 1799 on the river and in the administration of the colony has led me to a much deeper understanding of the injustices the Aborigines suffered and the challenges the farming settlers faced in those times. That my ancestor took a leading role in the decision to execute these young Aboriginal warriors is, I believe, beyond doubt. That his actions were inexcusable, yet at the same time understandable, is also plain to me. That realization has given me the deepest sadness about these events and about the plight of our Aborigines then and since. Their struggle has been blighted by white society’s determination to take their lands. I am part of that white society and the happy situation in which I now live is founded upon the displacement and misery my forebears have caused our Aborigines. I tell the story of Blood Revenge with a sense of shame and heartfelt apology towards our Aboriginal Australians.