Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court, c. 1840–60

Abstract

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.

Acknowledgements

My thanks to Mary-Camillus Dale, Simon Potter, Zoë Laidlaw, Mark Hickford and to the participants of the European Society of Oceanists Conference, Marseille, 2005, for their comments on earlier drafts. Any errors remain my own. The views expressed in this article are the personal views of the author. Nothing in this article necessarily represents the views of the Crown Law Office.

Notes

1. Foster, Hosking and Nettlebeck, Fatal Collisions; Foster, ‘An Imaginary Dominion’; Pope, ‘Aborigines and the Criminal Law’; Pope, Resistance and Retaliation.

2. Lendrum, ‘Coorong Massacre’, 26–43.

3. Bennett, Sir Charles Cooper.

4. Castles and Harris, Lawmakers and Wayward Whigs.

5. Reynolds, Aboriginal Sovereignty, 63, 119-20.

6. McHugh, Aboriginal Societies; Smandych, ‘Contemplating the Testimony of “Others”’, 275.

7. Bonnell and Crotty, ‘An Australian “Historigerstreit”?’, 425–33.

8. I made this point in Ward, ‘Means and Measure’. At the same time Bain Attwood reached a similar conclusion: Attwood, ‘The Law of the Land or the Law of the Land?’; McHugh, Aboriginal Societies, 20–30; Sharp, ‘Recent Juridical and Constitutional Histories of Maori’.

9. See, for instance, McHugh, Maori Magna Carta; McHugh, ‘Law, History and the Treaty of Waitangi’, 38–57; McHugh, ‘The Common Law Status of Colonies’, 393–429; McHugh, Aboriginal Societies, 21–23, 125–26.

10. George Fife Angas to George Grey, 29 Sept. 1842, GL:A16, Auckland Public Library Special Collections (APL); Adelaide Chronicle 21 May 1840; Ward, Show of Justice, 35; Extracts from the Papers and Proceedings of the Aborigines Protection Society, ‘October and November 1839’; ‘December 1840’; Angas to Glenelg, 20 Dec. 1839, CO 209/3, 348, The National Archives (TNA, formerly Public Record Office); Pike, Paradise of Dissent, 33, 111–12, 197, 212–13, 402. Two important imperial administrators, George Grey (governor of New Zealand, 1845–53 and 1861–68, and of the Cape Colony, 1854–61) and Edward Eyre (governor of St. Vincent, 1854–60, and of Jamaica, 1862–66), served in South Australia prior to their postings in New Zealand. Grey was governor of South Australia 1841–45. Eyre was a resident magistrate in South Australia and lieutenant-governor of New Munster (an administrative district of New Zealand) 1848–53.

11. See the debates in the New South Wales Legislative Council, Great Britain Parliamentary Papers (PP) 1841 xvii (311), 62–67; Sweetman, The Unsigned New Zealand Treaty.

12. There was considerable debate among British officials and settlers on the nature and extent of Maori property rights, and the powers of the Crown in relation to them. There was also much debate about the interpretation of the treaty and its future implications for Crown government. There is a considerable literature on these issues, the scope of which may be partly gauged through the essays in Sharp and McHugh, Histories Power and Loss. For a detailed consideration of the debate on property rights, see Hickford, ‘Making “Territorial Rights”’.

13. Stanley to FitzRoy, 13 Aug. 1844, PP 1845 xxxiii (1), 1; Russell to Hobson, 9 Dec. 1840, PP 1841 (311) xvii, 27–28; Ward, ‘Means and Measure’, 5–15; Hickford, ‘Making “Territorial Rights”’.

14. Gawler to Angas, 23 June 1843, PRG 174/21, Mortlock Collection, State Library (South Australia) (SLSA).

15. The categorisation of a colony had implications for the extent of prerogative powers, and was understood to affect settler rights to a representative legislature. Categorisation was therefore a politically sensitive issue, and different political agendas might converge around indigenous cases that raised such issues. McHugh, ‘The Common Law Status of Colonies’, 400–11; Benton, Law and Colonial Cultures, 167–210.

16. McHugh, Aboriginal Societies, 121–25; Ward, ‘Means and Measure’, 5–8; Laidlaw, ‘Aunt Anna's Report’, 1–28.

17. McHugh, ‘The Common Law Status of Colonies’, 393–429; Benton, Law and Colonial Cultures, 167–210; Ward, ‘Politics of Jurisdiction’, 31–32; Laidlaw, Colonial Connections, 45–46.

18. Hague, ‘History of the Law in South Australia’, 27–30; Minute, 7 Jan. 1836, CO 13/3, 120; Stephen, minute, 14 July 1832, CO 13/1, 269–72; [c. 8 Dec. 1835], CO 13/3, 122. Grey to Torrens, 15 Dec. 1835, CO 13/3, 112; 11 Jan. 1836, CO 13/4, 175–77; 21 Jan. 1936, CO 13/4, 190; Law Officers to Glenelg, 3 Feb. 1836, CO 13/5, 35–36.

19. Grey to Torrens (draft), 21 Jan. 1836, CO 13/4, 190.

20. Proclamation, 28 Dec. 1836, in Dickey and Howell, South Australia's Foundation, 77.

21. Parker to Glenelg, undated, received 31 March 1836, CO 13/5, 268; Castles and Harris, Lawmakers and Wayward Whigs, 57–58, 68, 196; Hague, ‘History of the Law in South Australia’, 95–98.

22. Bennett, Sir Charles Cooper, xiii, 2–3.

23. Some cases involving Aborigines had come before South Australian courts in the first few years of the colony, though there appear to have been no inter se cases (cases where both victim and accused were Aborigines).

24. South Australian Register (Register), 25 May 1839.

25. Castles and Harris, Lawmakers and Wayward Whigs, 15.

26. Gawler to Secretary of State, 15 Aug. 1840, CO 13/16, 79.

27. Cooper to Gawler, 12 Aug. 1840, GRG 24/1/1840/511, State Records of South Australia (SRSA).

28. Lendrum, ‘Coorong Massacre’, 27.

29. Register, 19 Sept. 1840.

30. Lendrum, ‘Coorong Massacre’, 29–32; Castles and Harris, Lawmakers and Wayward Whigs, 15–17; Reynolds, Aboriginal Sovereignty, 120–21; Foster, Hosking and Nettelbeck, Fatal Collisions, 13–18.

31. Southern Australian, 5 Nov. 1840; Cooper, address to grand jury, GRG 24/1/1841/131. Cooper also told the jury that English law was the proper law to apply in 1839 because murder was an offence ‘against nature’, not an offence based on legal rules or structures foreign to Aborigines.

32. Ibid.

33. Stephen to Hope, 14 Oct. 1841, CO 13/20, 106.

34. R v Murrell and Bummaree, 11 April 1836, Decisions of Superior Courts of New South Wales (DSCNSW). Available online at < http://www.law.mq.edu.au/scnsw> . See also R v Lowe, 18 May 1827; R v Ballard or Barrett, 21 April 1829, DSCNSW; Dowling to Gipps, 8 Jan. 1842, Historical Records of Australia, Series 1, Vol. 21, 656–58.

35. R v Bonjon, 16 Sept. 1841, DSCNSW. See McHugh, Aboriginal Societies, 104–08.

36. Gipps to Stanley, 24 Jan. 1842, Historical Records of Australia, Series 1, Vol. 21, 653; 19 July 1843, Series 1, Vol. 23, 47–50; Shaw, ‘British Policy’, 265–85.

37. Stephen to Hope, 14 Oct. 1841, CO 13/20, 106–10.

38. Smith, minute, [March 1841], CO 13/16, 82; minute, CO 13/16, 106.

39. Stephen, minute, [March 1841], CO 13/16, 94.

40. Campbell and Wilde to Lord John Russell, 27 March 1841, CO 13/23, 39–41. My thanks to Matthew Hill for discussing his transcription of this opinion with me. Smandych, ‘Contemplating the Testimony of “Others”’, 276–78; Stephen to Hope, 14 Oct. 1841, CO 13/20, 103–09; Minute, 6 May 1841, CO 13/16, 294.

41. Stephen, minute, [March 1841], CO 13/16, 82.

42. Campbell and Wilde to Lord John Russell, 27 March 1841, CO 13/23, 39–41.

43. Gipps to Stanley, 19 July 1843, Historical Records of Australia, Series 1, Vol. 23, 47–50; Stanley to Gipps, 2 July 1842, PP 1844 (627), 156. In 1840 Dowling told Charles Cooper that New South Wales courts did not interfere in inter se cases. As Reynolds notes, it is unclear whether Dowling was expounding on the law (and had forgotten Murrell) or whether he was explaining the court's practice. Reynolds, Aboriginal Sovereignty, 63.

44. Lendrum, ‘Coorong Massacre’, 33, 42–43; Minute, 14 Dec. 1841, CO 13/23, 47–50.

45. Advice to Executive Council, 28 Dec. 1842; Extract Minute of Executive Council, PP 1844 xiii (556), appendices, 460, 462; W. Shortland to Stanley, 31 Dec. 1842, PP 1844 xiii (556), appendices, 456.

46. Stanley to W. Shortland, 21 June 1843, PP 1844 xiii (556), appendices, 475.

47. Ibid. See also, Stephen to Hope, 19 May 1843, CO 209/16, 455–57.

48. Stanley to W. Shortland, 21 June 1843, PP 1844 xiii (556), appendices, 475; Stephen to Hope, 19 May 1843, CO 209/16, 455–57. Stanley's comment masked a highly contested debate over the level of ‘civilisation’ required in an indigenous society for its customs to be cognisable at English law. Note also, on the approach of the law officers in 1841, Stanley's suggestion that Maori might be made ‘exempt’ from English law, or ‘English courts’ in inter se cases may have required legislation. In 1845 Stephen noted with regret the failure to provide courts for inter se disputes. Stephen, minute on FitzRoy to Stanley, 16 Aug. 1845, CO 209/35, 36–38, 47. Ward, ‘Means and Measure’, 6–7.

49. Ward, Show of Justice, 63; Stanley to FitzRoy, 10 Feb. 1844, PP 1844 xiii (556), 171–73.

50. For instance, Stephen, minute on FitzRoy to Stanley, 16 Aug. 1845, CO 209/35, 36–38.

51. See, for instance, George Fife Angas, evidence to Select Committee on South Australia, 25 March 1841, PP 1841 iv (394), 210; Ward, Show of Justice, 184–85, 222. Gazette and Mining Journal, 21 June 1848.

52. For example, Memorial of the Inhabitants of the Town of Port Lincoln, 8 March 1842, GRG 24/6/1842/125. Register, 29 May 1841.

53. Southern Australian, 2 Oct. 1840; Hobson to Stanley, 29 March 1842, CO 209/14, 357–58; Colonial Secretary to Resident Magistrate, Russell, 2 Feb. 1849, BAVX 4817/1a/72. Archives New Zealand (Auckland) (ANZ); Hickford, ‘Settling Some Very Important Principles of Colonial Law’, 3–5, 13–16. Ward, ‘Means and Measure’, 4–16. J. Brown, journal, 16 Dec. 1835; 5 Jan. 1836; 6 Jan. 1836, PRG 1002/2 (SLSA).

54. Stephen to Vernon Smith, 28 July [1840], CO 209/4, 343.

55. Stanley to FitzRoy, 10 Feb. 1844, PP 1844 xiii (556) appendices, 171–74. See also, Hope, minute on Law Officers to Stanley, 8 Nov. 1842, CO 209/17, f. 194; Ward, ‘Means and Measure’, 1–16; Burroughs, ‘Imperial Institutions and the Government of Empire’, 175–77; Hickford, ‘Settling Some Very Important Principles of Colonial Law’, 3–5, 30. Such an approach also tempered against imperial legislation for the whole empire. McHugh, Aboriginal Societies, 125; Laidlaw, Colonial Connections, 45–46.

56. Stanley to FitzRoy, 10 Feb. 1844, PP 1844 xiii (556) appendices, 172. Stanley acknowledged that, in the meantime, magistrates might need to exercise some care in exercising their legal jurisdiction, neatly summarising the political difficulty facing the government.

57. Stephen to Stanley, 29 Sept. 1842, CO 209/14, 362; Stephen felt that while judges might be skilled at identifying what the common law on a point was, they were less effective at judging ‘whether any particular law is or is not applicable to the circumstances of Society’.

58. Although subjecthood did not necessarily require English law to be applied, much Australian discussion conflated subjecthood and English law jurisdiction, presuming that one required the other. This conflation was partly due to the belief that Aboriginal customs were not sufficiently ‘civilised’ to be cognisable in a common law court. See Murrell; Gipps to Stanley, 19 July 1843, Historical Records of Australia, Series 1, Vol. 23, 47–50.

59. In 1847 he said his position was supported by unspecified ‘books’ and by New South Wales practice. Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564. (This item is a more legible copy of the original letter, GRG 24/6/1847/383½.)

60. McHugh, Aboriginal Societies, 118–50; Hickford, ‘Settling Some Very Important Principles of Colonial Law’, 3–5, 13–18; Attwood, ‘The Law of the Land or Law of the Land?’ 10-20; Stephen to Vernon Smith, 28 July [1840], CO 209/4, 343. Cooper's approach may reflect something of the broader intellectual traditions that informed the United States jurisprudence, but his emphasis was on interaction that might be used to imply or deem an awareness of obedience to the sovereign Crown rather than the United States formulation of some continuing form of de jure Aboriginal sovereignty. United States cases, such as the decisions by the Supreme Court under Chief Justice John Marshall in Johnson v McIntosh, (1823) 8 Wheat. 543, Cherokee Nation v Georgia (1830) 5 Pet. 1, Worcester v Georgia, (1832) 6 Pet. 515, were in circulation in Australasia, particularly in New South Wales and New Zealand debate over indigenous land rights. Note, however, that in 1840 James Stephen rejected what he understood as the United States Supreme Court's analysis of such rights.

61. George Grey, ‘Report upon the Best Means of Promoting the Civilization of the Aboriginal Inhabitants of Australia’ enclosed in Russell to Hobson, 9 Dec. 1840, PP 1841 xvii (311), 43–45.

62. Foster, Hosking and Nettlebeck, Fatal Collisions, 2–10, 29–79; Adelaide Chronicle, 2 June 1841.

63. Colonial Secretary to Driver, 28 July 1849, GRG 24/6/1849/392; Advocate-General to Colonial Secretary, 7 Nov. 1844, GRG 24/6/1844/1293; Adelaide Observer, 7 April 1846; Pope, ‘Aborigines and the Criminal Law’, 74–80.

64. Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564; Moorhouse to Gray, 20 April 1855, GRG 52/7. One magistrate, investigating allegations of the poisoning of Aborigines by a European stockman in 1851, noted ‘the death of a native becomes to [the stockmen] a matter of triumph as the death of an enemy’. Price to Colonial Secretary, 1 May 1851, GRG 24/6/1851/1559.

65. Foster, ‘The Legend of James Brown’, 223.

66. Laidlaw, Colonial Connections, 45–54, 61–88, 194–95, 203–05; Bayly, Imperial Meridian, 133–60, 193–286. Hunter, ‘The Boundaries of Colonial Criminal Law’, 215–36, indicates a similar increased concern with applying criminal law to Aborigines in Western Australia in this period.

67. Advocate-General to Colonial Secretary, 16 Oct. 1846, GRG 24/6/1846/1276; Bennett, Sir Charles Cooper, 66–67; Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564.

68. This was not an unusual argument in colonial Australia. It rested not so much on the positive recognition of Aboriginal custom as a negative insistence on indigenous ‘savagery’ and inability to grasp the nature of British legal proceedings. For example, R v Boatman or Jackass and Bulleye, 10 Feb. 1832, DSCNSW.

69. Bennett, Sir Charles Cooper, 62.

70. While attempts by defence lawyers to challenge jurisdiction directly were unsuccessful, the judge remained very sympathetic to Aboriginal accused. See, for instance, Cooper's comments to counsel and jury instructions in R v Manteyuldi, 11 June 1846; Judges' Common Notebooks 1846, Supreme Court Library, Adelaide (JCN); Register, 13 June 1846.

71. Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564; Pope, ‘Aborigines and the Criminal Law’, 70–80.

72. Cooper had halted an earlier inter se prosecution on a technical point at the grand jury stage: R v Pilgulta, 19 Sept. 1846, JCN; Register, 25 Nov. 1846.

73. Register, 28 Nov. 1846. In response to further submissions from Bartley, Cooper fell back on the artful pedantry of legal pleadings. The jurisdiction of the court where a victim was non-Aboriginal was not at issue, so the judge noted that the indictment did not record that the dead man was an Aborigine. According to the Register Bartley noted the indictment ‘calls him Rollooloolyoo. Surely that is not an English name’. Cooper replied ‘How do I know that? (A laugh.)’.

74. Ibid.

75. Minute, 15 March 1847, JCN [copy filed loose in JCN ‘Criminal side 1841–3’].

76. Advocate-General to Colonial Secretary, 16 Oct. 1846; Cooper, minute, GRG 24/6/1846/1276. Cooper couched his complaint in terms of the accused's competency to plead and the use of prosecutorial discretion (‘I do not think them fit subjects for trial in our Criminal Courts’). The advocate-general accused Cooper of wanting to deprive him of what had ‘by previous authoritative sanction, been declared to be the only legal mode of retribution against the Aborigines’.

77. Register, 28 Nov. 1846.

78. Advocate-General to Colonial Secretary, 16 Oct. 1846, GRG 24/6/1846/1276; Bennett, Sir Charles Cooper, 66–67; Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564.

79. Minute, 15 March [1847], JCN.

80. Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564. See also Foster, ‘Imaginary Dominion’, 60–64.

81. Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564. Emphasis in original.

82. Robe to Earl Grey, 21 April 1848, CO 13/53, 370; Merivale, [Nov. 1847] minute, CO 13/53, 411.

83. Driver to Robe, 2 April 1846, GRG 24/6/1846/441; Colonial Secretary to Driver, 9 May 1845, GRG 24/4/1844/658; Moorhouse to Colonial Secretary, 20 April 1846, GRG 24/6/1846/411; Colonial Secretary to Lang, 19 Jan. 1852, GRG 24/4/1/1852/64.

84. Foster, Hosking and Nettelbeck, Fatal Collisions, 57–60; Castles and Harris, Lawmakers and Wayward Whigs, 19. Driver to Colonial Secretary, 2 April 1844; Moorhouse to Advocate-General, 20 April 1844, GRG 24/6/1844/411.

85. Robe to Earl Grey, 10 July 1848, CO 13/59, 229; Robe to Earl Grey, 21 April 1848, CO 13/53, 370. Pope, ‘Aborigines and the Criminal Law’, 76–80.

86. Cooper to Robe, undated, received 27 March 1847, GRG 24/6/1851/1564; Robe to Earl Grey, 10 July 1848, CO 13/59, 229; 21 April 1848, CO 13/53, 370.

87. Eyre, Journals of Expeditions, 170, 185, 199, 354, 475–98.

88. For instance, Reynolds, Aboriginal Sovereignty, 63–64, 119. Cooper may have favoured using remand to ‘educate’ Aborigines on settler law and religion before their release, in the hope they would then explain colonial law to their own communities. Cooper had been closely involved in other law reform issues but did not develop further proposals here. See Bennett, Sir Charles Cooper, 88–89; Cooper to Colonial Secretary, 11 June 1853, GRG 24/6/1853/1401.

89. Robe to Earl Grey, 21 April 1847, CO 13/53, 364; 10 July 1848, CO 13/59, 229.

90. R v Bobbo, Gazette and Mining Journal, 17 June 1848. The Protector of Aborigines had stressed in court that Bobbo's tribe had never been told that the colonial courts had jurisdiction over them. Robe to Earl Grey, 10 July 1848, CO 13/59, 229.

91. Earl Grey to Fox Young, 24 Nov. 1848, CO 13/59, 238; Minutes by staff, CO 13/59, 235–36.

92. Merivale, minute, Nov. 1847, CO 13/53, 411–13; Minutes on Robe to Earl Grey, 10 July 1848, CO 13/59, 229; Gardiner to Hawes, 14 Oct. 1848, CO 13/53, 373; Earl Grey to Robe, 24 Nov. 1848, CO 13/59, 238.

93. Maltalta, an Aboriginal man released from prison in Adelaide, had been left to walk home to Port Lincoln. He had been killed while travelling through another tribe's territory. Maltalta had been arrested in connection with the murder of settlers on the Eyre Peninsula and transported to Adelaide, but there proved insufficient evidence to proceed. Foster, Hosking and Nettelbeck, Fatal Collisions, 50; Report of trial, [May 1851], GRG 24/6/1851/1564.

94. Grand jury presentment enclosed in Cooper to Colonial Secretary, GRG 24/6/1851/1564.

95. Ibid.

96. Ibid; Foster, ‘Imaginary Dominion’, 63–66. The jury said that prior to settlement ‘all Jurists’ would have treated Aboriginal tribes as ‘distinct communities’ able to make their own laws. However, the jury offered its views ‘without entering upon the abstract question of the rights which possession once obtained, the superior and more powerful people may justly exercise over those subjected to them’.

97. Memorial, 8 Oct. 1847, GRG 24/6/1849/1847; Register, 9 June 1849; Hale to Colonial Secretary, [c. 20 May 1851], GRG 24/6/1851/1581; Foster, Hosking and Nettelbeck, Fatal Collisions, 49–50.

98. Cooper to Fox Young, 26 May 1851; Fox Young to Cooper, 27 May 1851, GRG 24/6/1851/1564.

99. Cooke, ‘Arguments for the Survival of Aboriginal Customary Law’, 201–41.

100. PP 1862 xxxvii [3048]; Castles and Harris, Lawmakers and Wayward Whigs, 196; McHugh, Aboriginal Societies, 139–42.