In vol. ii. p 380, Captain Grey says:--

"I have been a personal witness to a case in which a native was most undeservedly punished, from the circ.u.mstance of the natives, who were the only persons who could speak as to certain exculpatory facts, not being permitted to give their evidence."

Under the law lately pa.s.sed in South Australia, the evidence of natives would be receivable in a case of this kind, in palliation of the offence.

Although it is more than questionable how far such evidence would weigh against the white man's oath; but for the purpose of obtaining redress for a wrong, or of punishing the cruelty, or the atrocity of the European [Note 115 at end of para.], no amount of native evidence would be of the least avail. Reverse the case, and the sole unsupported testimony of a single witness, will be quite sufficient to convict even unto death, as has lately been the case in two instances connected with Port Lincoln, where the natives have been tried at different times for murder, convicted, and two of them hung, upon the testimony of one old man, who was the only survivor left among the Europeans, but who, from the natural state of alarm and confusion in which he must have been upon being attacked, and from the severe wounds he received, could not have been in an advantageous position, for observing, or remarking the ident.i.ty of the actual murderers, among natives, who, even under more favourable circ.u.mstances are not easily recognizable upon a hasty view, and still less so, if either they, or the observer, are in a state of excitement at the time. Is it possible for the natives to be blind to the unequal measure of justice, which is thus dealt out, and which will still continue to be so as long as the law remains unchanged?

[Note 115: Governor Hutt remarks, in addressing Lord Glenelg on this subject:--"In furtherance of the truth of these remarks, I would request your Lordship particularly to observe, that here is one cla.s.s of Her Majesty's subjects, who are DEBARRED A TRUE AND FAIR TRIAL BY JURY, whose evidence is inadmissible in a court of justice, and who consequently may be the victims of any of the most outrageous cruelty and violence, and yet be UNABLE, FROM THE FORMS AND REQUIREMENTS OF THE LAW, to obtain redress, and whose quarrels, ending sometimes in bloodshed and death, it is unjust, as well as inexpedient, to interfere with.

"A jury ought to be composed of a man's own peers. Europeans, in the case of a native criminal, cannot either in their habits or sympathies be regarded as such, and his countrymen are incapable of understanding or taking upon themselves the office of juror."]

I have no wish to give the native evidence a higher character than it deserves, but I think that it ought not to be rendered unavailable in a prosecution; the degree of weight or credibility to be attached to it, might be left to the court taking cognizance of the case, but if it is consistent and probable, I see no reason why it should not be as strong a safeguard to the black man from injury and oppression, as the white man's oath is to him. There are many occasions on which the testimony of natives may be implicitly believed, and which are readily distinguishable by those who have had much intercourse with this people--unaccustomed to the intricacies of untruth, they know not that they must be consistent to deceive, and it is therefore rarely difficult to tell when a native is prevaricating.

Among the natives themselves, the evil effects resulting from the inability of their evidence to produce a conviction are still more apparent and injurious. [Note 116 at end of para.] It has already been shewn how highly important it is to prevent the elders from exercising an arbitrary and cruel authority over the young and the weak, and how necessary that the latter should feel themselves quite secure from the vengeance of the former, when endeavouring to throw off the trammels of custom and prejudice, and by embracing our habits and pursuits, making an effort to rise in the scale of moral and physical improvement. Whatever alteration therefore we may make in our system for the better, or however anxious we may be for the welfare and the improvement of the Aborigines, we may rest well a.s.sured that our efforts are but thrown away, as long as the natives are permitted with impunity to exercise their cruel or degrading customs upon each other, unchecked and unpunished. We may feel equally certain that these oppressions and barbarities can never be checked or punished but by means of their own unsupported testimony against each other, and until this can be legally received, and made available for that purpose, there is no hope of any lasting or permanent good being accomplished.

[Note 116: Upon the inability of natives to give evidence in a court of justice, Mr. Chief Protector Robinson remarks, in a letter to His Honour, the Superintendent of Port Phillip, dated May, 1843--"The legal disabilities of the natives have been a serious obstacle to their civil protection; and I feel it my duty, whilst on this subject, respectfully to bring under notice the necessity that still exists for some suitable system of judicature for the governance and better protection of the aboriginal races. 'As far as personal influence went, the aboriginal natives have been protected from acts of injustice, cruelty, and oppression; and their wants, wishes, and grievances have been faithfully represented to the Government of the colony,' and this, under the circ.u.mstances, was all that could possibly be effected. There is, however, reason to fear that the destruction of the aboriginal natives has been accelerated from the known fact of their being incapacitated to give evidence in our courts of law. I have frequently had to deplore, when applied to by the Aborigines for justice in cases of aggression committed on them by white men, or by those of their own race, my inability to do so in consequence of their legal incapacity to give evidence. It were unreasonable, therefore, under such circ.u.mstances, to expect the Aborigines would respect, or repose trust and confidence in the Protectors, or submit to the governance of a department unable efficiently to protect or afford them justice. Nor is it surprising they should complain of being made to suffer the higher penalties of our law, when deprived (by legal disability) of its benefits. Little difficulty has been experienced in discovering the perpetrator where the blacks have been concerned, even in the greater offences, and hence the ends of justice would have been greatly facilitated by aboriginal evidence.

It is much to be regretted the Colonial Act of Council on aboriginal evidence was disallowed."]

The following very forcible and just remarks are from Captain Grey's work, vol. ii. pages 375 to 378:--

"I would submit, therefore, that it is necessary from the moment the Aborigines of this country are declared British subjects, they should, as far as possible, be taught that the British laws are to supersede their own, so that any native who is suffering under their own customs, may have the power of an appeal to those of Great Britain; or to put this in its true light, that all authorized persons should, in all instances, be required to protect a native from the violence of his fellows, even though they be in the execution of their own laws.

"So long as this is not the case, the older natives have at their disposal the means of effectually preventing the civilization of any individuals of their own tribe, and those among them who may be inclined to adapt themselves to the European habits and mode of life, will be deterred from so doing by their fear of the consequences, that the displeasure of others may draw down upon them.

"So much importance am I disposed to attach to this point, that I do not hesitate to a.s.sert my full conviction, that whilst those tribes which are in communication with Europeans are allowed to execute their barbarous laws and customs upon one another, so long will they remain hopelessly immersed in their present state of barbarism: and however unjust such a proceeding might at first sight appear, I believe that the course pointed out by true humanity would be, to make them from the very commencement amenable to the British laws, both as regards themselves and Europeans; for I hold it to be imagining a contradiction to suppose, that individuals subject to savage and barbarous laws, can rise into a state of civilization, which those laws have a manifest tendency to destroy and overturn.

"I have known many instances of natives who have been almost or quite civilized, being compelled by other natives to return to the bush; more particularly girls, who have been betrothed in their infancy, and who, on approaching the years of p.u.b.erty, have been compelled by their husbands to join them.

"To punish the Aborigines severely for the violation of laws of which they are ignorant, would be manifestly cruel and unjust; but to punish them in the first instance slightly for the violation of these laws would inflict no great injury on them, whilst by always punishing them when guilty of a crime, without reference to the length of period that had elapsed between its perpetration and their apprehension, at the same time fully explaining to them the measure of punishment that would await them in the event of a second commission of the same fault, would teach them gradually the laws to which they were henceforth to be amenable, and would shew them that crime was always eventually, although it might be remotely, followed by punishment.

"I imagine that this course would be more merciful than that at present adopted; viz. to punish them for a violation of a law they are ignorant of, when this violation affects a European, and yet to allow them to commit this crime as often as they like, when it only regards themselves; for this latter course teaches them, not that certain actions, such, for instance, as murder, etc. are generally criminal, but only that they are criminal when exercised towards the white people, and the impression, consequently excited in their minds is, that these acts only excite our detestation when exercised towards ourselves, and that their criminality consists, not in having committed a certain odious action, but in having violated our prejudices."

Many instances have come under my own personal observation, where natives have sought redress both against one another and against Europeans, but where from their evidence being unavailable no redress could be afforded them. Enough has however been now adduced to shew the very serious evils resulting from this disadvantage, and to point out the justice, the policy, the practicability, and the necessity of remedying it.

In bringing to a close my remarks on the Aborigines, their present condition and future prospects, I cannot more appropriately or more forcibly conclude the subject than by quoting that admirable letter of Lord Stanley's to Governor Sir G. Gipps, written in December, 1842; a letter of which the sentiments expressed are as creditable to the judgment and discrimination, as they are honourable to the feelings and humanity of the minister who wrote it, and who, in the absence of personal experience, and amidst all the conflicting testimony or misrepresentation by which a person at a distance is ever apt to be a.s.sailed and misled, has still been able to separate the truth from falsehood, and to arrive at a rational, a christian, and a just opinion, on a subject so fraught with difficulties, so involved in uncertainty, and so beset with discrepancies.

In writing to Sir G. Gipps, Lord Stanley says (Parliamentary Reports, pp.

221, 2, 3):--

"DOWNING-STREET, 20TH DECEMBER, 1842.

"SIR,

"I have the honour to acknowledge the receipt of your despatches of the dates and numbers mentioned in the margin, reporting the information which has reached you in respect to the aboriginal tribes of New South Wales, and the result of the attempts which have been made, under the sanction of Her Majesty's Government, to civilize and protect these people.

"I have read with great attention, but with deep regret, the accounts contained in these despatches. After making every fair allowance for the peculiar difficulty of such an undertaking, it seems impossible any longer to deny that the efforts which have hitherto been made for the civilization of the Aborigines have been unavailing; that no real progress has yet been effected, and that there is no reasonable ground to expect from them greater suceess in future. You will be sensible with how much pain and reluctance I have come to this opinion, but I cannot shut my eyes to the conclusion which inevitably follows from the statements which you have submitted to me on the subject.

"Your despatch of the 11th March last, No. 50, contains an account of the several missions up to that date, with reports likewise from the chief Protector and his a.s.sistants, and from the Crown Land Commissioners. The statements respecting the missions, furnished not by their opponents, nor even by indifferent parties, but by the missionaries themselves, are, I am sorry to say, as discouraging as it is possible to be. In respect to the mission at Wellington Valley, Mr. Gunther writes in a tone of despondency, which shews that he has abandoned the hope of success. The opening of his report is indeed a plain admission of despair; I sincerely wish that his facts did not bear out such a feeling. But when he reports, that after a trial of ten years, only one of all who have been attached to the mission 'affords some satisfaction and encouragement;' that of the others only four still remain with them, and that these continually absent themselves, and when at home evince but little desire for instruction; that 'their thoughtlessness, and spirit of independence, ingrat.i.tude, and want of sincere, straightforward dealing, often try us in the extreme;' that drunkenness is increasing, and that the natives are 'gradually swept away by debauchery and other evils arising from their intermixture with Europeans,' I acknowledge that he has stated enough to warrant his despondency, and to shew that it proceeds from no momentary disappointment alone, but from a settled and reasonable conviction.

"Nor do the other missions hold out any greater encouragement. That at Moreton Bay is admitted by Mr. Handt to have made but little progress, as neither children nor adults can be persuaded to stay for any length of time; while that at Lake Macquarie had, at the date of your despatch, ceased to exist, from the extinction or removal of the natives formerly in its vicinity. The Wesleyan Missionaries at Port Phillip, notwithstanding an expenditure in 1841 of nearly 1,300 pounds, acknowledge that they are 'far from being satisfied with the degree of success which has attended our labours,' and 'that a feeling of despair sometimes takes possession of our minds, and weighs down our spirits,' arising from the frightful mortality among the natives.

"In the face of such representations, which can be attributed neither to prejudice nor misinformation, I have great doubts as to the wisdom or propriety of continuing the missions any longer. I fear that to do so would be to delude ourselves with the mere idea of doing something; which would be injurious to the natives, as interfering with other and more advantageous arrangements, and unjust to the colony, as continuing an unnecessary and profitless expenditure.

"To this conclusion I had been led by your despatch, No. 50, but antic.i.p.ating that the protectorate system would promise more beneficial results, I postponed my instructions in the matter until I should receive some further information.

"Your despatches of the 16th and 20th May have furnished that further information, although they contradict the hopes which I had been led to entertain. After the distinct and unequivocal opinion announced by Mr. La Trobe, supported as it is by the expression of your concurrence, I cannot conceal from myself that the failure of the system of protectors has been at least as complete as that of the missions.

"I have no doubt that a portion of this ill success, perhaps a large portion, is attributable to the want of sound judgment and zealous activity on the part of the a.s.sistant protectors. Thus the practice of collecting large bodies of the natives in one spot, and in the immediate vicinity of the settlers, without any previous provision for their subsistence or employment, was a proceeding of singular indiscretion.

That these people would commit depredations rather than suffer want, and that thus ill-blood, and probably collisions, would be caused between them and the settlers, must, I should have thought, have occurred to any man of common observation; and no one could have better reason than Mr.

Sievewright to know his utter inability to control them. When such a course could be adopted, I am not surprised at your opinion that the measures of the protectors have tended 'rather to increase than allay the irritation which has long existed between the two races.'

"But after allowing for the effect of such errors, and for the possibility of preventing their recurrence, there is yet enough in Mr. La Trobe's reports to shew that the system itself is defective, at least in the hands of those whose services we are able to command. I am unwilling, at this distance from the scene, and without that minute local knowledge which is essential, to give you any precise instructions as to the course which under present circ.u.mstances should be pursued: but I have the less hesitation in leaving the matter in your hands, because your whole correspondence shews that no one feels more strongly than yourself the duty as well as the policy of protecting, and, if possible, civilizing these Aborigines, and of promoting a good understanding between them and the white settlers. At present, though I am far from attributing to the white settlers generally an ill disposition towards the natives, there is an apparent want of feeling among them, where the natives are concerned, which is much to be lamented. Outrages of the most atrocious description, involving sometimes considerable loss of life, are spoken of, as I observe in these papers, with an indifference and lightness which to those at a distance is very shocking. I cannot but fear that the feeling which dictates this mode of speaking, may also cause the difficulty in discovering and bringing to justice the perpetrators of the outrages which from time to time occur. With a view to the protection of the natives, the most essential step is to correct the temper and tone adopted towards them by the settlers. Whatever may depend on your own personal influence, or on the zealous co-operation of Mr. La Trobe, will I am sure be done at once, and I will not doubt that your efforts in this respect will be successful. In regard to the missions and the protectors, I give you no definite instructions. If at your receipt of this despatch you should see no greater prospect of advantage than has. .h.i.therto appeared, you will be at liberty to discontinue the grants to either as early as possible; but if circ.u.mstances should promise more success for the future, the grants may be continued for such time as may be necessary to bring the matter to a certain result. In the meantime, agreeing as I do, in the general opinion, that it is indispensable to the protection of the natives that their evidence should, to a certain extent at least, be received in the courts of law, I shall take into my consideration the means by which this can be effected in the safest and most satisfactory manner.

"I cannot conclude this despatch without expressing my sense of the importance of the subject of it, and my hope that your experience may enable you to suggest some general plan by which we may acquit ourselves of the obligations which we owe towards this helpless race of beings. I should not, without the most extreme reluctance, admit that nothing can be done; that with respect to them alone the doctrines of Christianity must be inoperative, and the advantages of civilization incommunicable. I cannot acquiesce in the theory that they are incapable of improvement, and that their extinction before the advance of the white settler is a necessity which it is impossible to control. I recommend them to your protection and favourable consideration with the greatest earnestness, but at the same time with perfect confidence: and I a.s.sure you that I shall be willing and anxious to co-operate with you in any arrangement for their civilization which may hold out a fair prospect of success.

"I have, etc.

"(signed) "STANLEY."