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ABSTRACT
This article investigates the treatment of Aboriginal Australians as politically entitled subjects within New South Wales during that colony's first elections under ‘universal’ male suffrage. Using the case of Yellow Jimmy, a ‘half-caste’ resident prosecuted for impersonating a white settler at an election in 1859, it examines the uncertainties that surrounded Aboriginal Australians’ position as British subjects within the colony's first constitutions. By contrast to the early colonial franchises of New Zealand and the Cape – where questions of indigenous residents’ access to enfranchisement dominated discussions of the colonies’ early constitutions – in the rare instances in which indigenous men claimed their right to vote in New South Wales, local officials used their own discretion in determining whether they held the political entitlements of British subjects. This formed a continuity with the earlier treatment of Aboriginal Australians under settler law, where British authority and imperial jurisdiction was often advanced ‘on-the-ground’ via jurists and administrators rather than via the statutes or orders of Parliament or the Colonial Office.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes
1 Ford, Settler Sovereignty, Benton, Law and Colonial Culture; Ward, “Constructing British Authority in Australasia.”
2 Ford, Settler Sovereignty; Benton, Law and Colonial Culture; Ward, “Constructing British Authority in Australasia”; Smandych, “Contemplating the Testimony of ‘Others’”; Smandych, “The Exclusionary Effect of Colonial Law”; Sampson, “British Voices and Indigenous Rights”; Kercher, An Unruly Child, 1–21; Ward, “Imperial Policy, Colonial Government and Indigenous Testimony in South Australia and New Zealand in the 1840s,” Finnane, “The Limits of Jurisdiction,” 149–68. This scholarship is principally composed of studies within the law, however for disputes of political rights see: Price, “Naturalising Subjects, Creating Citizens”; and McKenna, “Transplanted to Savage Shores.” Work on the enfranchisement of Aboriginal Australians across the continent's colonies is also being completed by Ann Cuthoys and Jessie Mitchell. For early publications of their findings see: Cuthoys, “Indigenous People and Settler Self Government”; Mitchell, “Are We in Danger?”; Curthoys and Mitchell, “The Advent of Self-Government.”
3 Ward, Colonial Self-Government; Evans et al., Equal Subjects.
4 Mitchell, “Are we in Danger,” 297; Evans et al., Equal Subjects, 63.
5 Mitchell, “Are We in Danger,” 297.
6 Chesterman and Galligan, Citizens Without Rights, 14; Evans et al., Equal Subjects, 85; and 84; Lake, “The Gendered and Racialised Self,” paragraph 24. For more on the Canadian context, see: Garner, The Franchise and Politics in British North America. Chesterman and Galligan have critiqued a claim made by Diana Barwick that men on a mission station in Victoria were enrolled as voters in 1878, in spite of this rule. Given the level of uncertainty as to the conditions of the franchise, particularly amongst collectors, there is every chance that such votes were collected. See: Barwick, “A Little More Than Kin,” 183.
7 Armidale Express, 1 Apr 1865.
8 Lake, “The Gendered and Racialised Self,” paragraph 24; Lake, “From Mississippi to Melbourne via Natal,” 209–30.
9 Victoria Constitution Act 1855. This act stipulated that after two years any male British subject over twenty-one years who could not read and write would not be eligible to be newly enrolled as an elector. Similar future-dated literacy qualifications were also proposed in Jamaica in 1852. See: Colonial Standard, 30 Dec 1851. For more on literacy qualifications in Canada, the Cape and Natal, see: Evans et al., Equal Subjects, 55; 163; and 166.
10 Maitland Mercury, 1 Oct 1857; Northern Times, 3 Oct 1857; Empire, 23 Oct 1857, discussion of James Dickson's proposals for educational qualifications under the universal franchise offers an example of the impact a desire for literacy qualifications could have on a candidate's campaign in regional New South Wales.
11 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 989–1044. For evidence of this, we only need look to the case of Yellow Jimmy and the impersonators of Armidale themselves. In testimony, scrutineers outlined the number of individuals who came forward to vote ‘viva voce’ and the measures that were taken to allow this to happen.
12 New South Wales Electoral Act 1858 only required an individual to remain within a given district for six months. Their address did not need to remain constant. Sydney Morning Herald, 15 Oct 1859 provides some discussion of this and its impact on the entitlement of Indigenous peoples in New South Wales, see Augustus Morris’ motion in the Legislative Assembly. Armidale Express, 21 Jan 1860: in the defence of another individual arrested with Yellow Jimmy, his lawyer Robert Forster also explained that residence anywhere in the district was sufficient.
13 Benton, Law and Colonial Cultures, 167–209 for discussions of relationships between emancipated convicts in colonial New South Wales and the status of Indigenous Australians under law. See, also: Smandych, “Contemplating the Testimony of ‘Others’,” 237–83.
14 Curthoys, “Indigenous People and Settler Self Government,”; Curthoys and Mitchell, “The Advent of Self-Government,” Mitchell, “Are We in Danger.”
15 Benton, Law and Colonial Cultures, 167–209; Ward, “Constructing British Authority,”; Smandych, “Contemplating the Testimony of ‘Others’”; Smandych, “The Exclusionary Effect of Colonial Law”; Sampson, “British Voices and Indigenous Rights”; Kercher, An Unruly Child, 1–21; Ward, “Imperial Policy, Colonial Government and Indigenous Testimony in South Australia and New Zealand in the 1840s,” Finnane, “The Limits of Jurisdiction,” 149–68.
16 Heuman, Between Black and White; Holt, The Problem of Freedom.
17 Trapido, “Origins of the Cape Franchise Qualifications of 1853”; Keegan, Colonial South Africa, 75–128; and 248–80; Elbourne, “The Fact So Often Disputed by the Black Man.” Historians have noted that Ordinance 50 asserted an equality of rights, but did not wholly render Khoekhoe populations British subjects.
18 Thomas Wood, quoted in Sampson, “British Voices and Indigenous Rights,” 12.
19 George Gawler, quoted in Smandych, “Contemplating the Testimony of ‘Others’,” 138.
20 Ward, “Constructing British Authority.”
21 Lord Glenelg to Governor Bourke, 1837, quoted in Kercher, An Unruly Child, 12; Smandych, “Contemplating the Testimony of ‘Others’,” 100.
22 Benton, Law and Colonial Cultures, 167–209; Smandyth, “Contemplating the Testimony of ‘Others’”; Sampson, “British Voices and Indigenous Rights.”
23 Empire, 31 August 1855. Within New South Wales the local discretion exhibited by judges was particularly acute following the infamous failure of the Colonial Office's Colonial Evidence Act of 1843, which would have permitted the unsworn testimony of non-Christian inhabitants.
24 Smandyth, “Contemplating the Testimony of ‘Others’.”
25 Cochrane, Colonial Ambition.
26 Ward, Colonial Self-Government; Evans [et al.], Equal Subjects; Taylor, “The 1848 Revolutions and the British Empire” all discuss the wider imperial context of these changes.
27 Cochrane, Colonial Ambition; Thompson, The Seeds of Democracy.
28 Curthoys, “Indigenous Peoples and Self Government”; Mitchell, “Are We in Danger”; Curthoys and Mitchell, “The Advent of Self-Government”.
29 Curthoys, “The Lying Name of Government,” 79–81; Evans [et al.], Equal Subjects, 68.
30 Colonial Intelligencer, Apr 1850 quoted in Evans [et al.], Equal Subjects, 68.
31 Therry, Reminiscences, 459; Empire, 23 Apr 1863, 4.
32 Therry, Reminiscences, 459.
33 Empire, 23 Apr 1863, 4.
34 For one such debate, see: Empire, 23 Oct 1857; Sydney Morning Herald, 23 Oct 1857.
35 State Archives of New South Wales, Colonial Secretary Correspondence, Item 59/47, Box 4/3396, 1859.
36 State Archives of New South Wales, Colonial Secretary Correspondence, Item 59/47, Box 4/3396, 1859.
37 Armidale Express, 1 Apr 1865.
38 “Colonial Parliament,” Sydney Morning Herald, 15 Oct 1859.
39 “Colonial Parliament,” Sydney Morning Herald, 15 Oct 1859. This event has also been noted by Curthoys, “Race, Liberty, Empire,” 8 July 2015.
40 “Colonial Parliament,” Sydney Morning Herald, 15 Oct 1859.
41 Ibid.
42 State Archives of New South Wales, Colonial Secretary Correspondence, Item: LA 59/59, Box: 4/3315, 1859.
43 Armidale Express, 1 Apr 1865.
44 Armidale Express, 1 Apr 1865.
45 Goodall, Invasion to Embassy, 66–88; Reynolds, With the Europeans; Woollacott, Settler Society in the Australian Colonies. See, also, Mitchell, “Are We in Danger” for the place of land development in settlers’ appeals for representative government.
46 Barnard, “Morris, Augustus.”
47 Armidale Express, 16 July 1859.
48 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
49 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 989–1044.
50 Armidale Express, 16 July 1859; Armidale Express, 23 July 1859 for transcripts of the trials.
51 Armidale Express, 24 Sept 1859.
52 Armidale Express, 24 Sept 1859.
53 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 989–1044.
54 Ibid., 1008.
55 Armidale Express, 1 Apr 1855.
56 Lake, “The Gendered and Racialised Self”; Lake, “From Mississippi to Melbourne via Natal.”
57 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1036.
58 Sydney Morning Herald, 15 Oct 1859.
59 Armidale Express, 17 March 1860.
60 Armidale Express, 6 Aug 1859.
61 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1018.
62 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
63 Armidale Express, 17 March 1860.
64 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860; Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1013–14; 1024.
65 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1013–14; “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
66 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1013–14; and 1029.
67 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
68 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1014.
69 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1013.
70 Ibid., 1014.
71 Ibid., 1031.
72 Ibid., 1008.
73 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
74 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
75 “Court of Quarter Sessions,” Armidale Express, 14 Jan 1860.
76 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
77 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
78 Ibid.
79 Therry, Reminiscences, 459.
80 Chesterman and Galligan, Citizens Without Rights, 11–30; McMillan and McRae, “Law, Identity and Dispossession,” 233–44.
81 “The Impersonating Indictments,” Armidale Express, 14 Jan 1860.
82 Ward, “Constructing British Authority in Australasia,” 488.
83 Ward, “Constructing British Authority in Australasia.” Smandych's work on similar debates in the western colonies of Canada has also noted that the greatest cause for concern for jurists were those indigenous populations living beyond the colonies’ settlements. Smandych, “The Exclusionary Effect of Colonial Law.”
84 Parliament of New South Wales, “Report from the Committee of Elections and Qualifications,” 1031. Wood, “Nineteenth Century Bureaucratic Constructions of Indigenous Identities,” discusses the provisions of nicknames to Aboriginal Australians.
85 “Impersonating Indictments,” Armidale Express, 14 Jan 1860.
86 Mitchell, “Are We in Danger,” 297; Evans et al., Equal Subjects, 63.