Uninhabited Islands in the Bay of Bengal, Penang, Singapore and Botany Bay: What Did Terra Nullius Mean in British Colonial Thinking?

Abstract

Enlightenment colonial actors never used the term ‘terra nullius’, they used the phrase ‘uninhabited land or island’. In the 1780s, uninhabited did not mean nobody lived there, but rather signified a land without a sovereign. This article contrasts British East India Company deliberations on the habitation of islands in the Eastern Indian Ocean, with the discussions on habitation in Botany Bay prior to 1788. Between 1778 and 1786, there were proposals for British settlements in the Nicobar Islands, Andaman Islands, Junk Ceylon and Penang. The people who lived on these islands were not considered the inhabitants. Instead, the British looked at the relationship between people on the islands and mainland Asian sovereigns to determine who inhabited these islands. A retrospective discourse developed that Penang and Singapore were uninhabited prior to the British arrival. This discourse was part of plans to end legal pluralism in the settlements and assert colonial sovereignty.

Since the 1940s, historians have used the term terra nullius (a Latin term which means ‘nobody’s land’) to refer to the legal thought of British authorities as they dispossessed First Nations of their lands.¹ When applied to explain colonial decision-making in the 1780s, the term is ahistorical. As Andrew Fitzmaurice wrote, ‘the term terra nullius was not used in the eighteenth and nineteenth centuries to justify the dispossession of Australian Aborigines’.² Fitzmaurice traces the genealogy of terra nullius to the medieval legal doctrine of res nullius (nobody’s property). However the first recorded use of the phrase terra nullius was in the 1885 dispute between Spain and the United States over the Island of Contoy, off Mexico.³ Despite terra nullius not being found in any documents from the late eighteenth century, natural law doctrines on the habitation of territory and the right of sovereigns to claim uninhabited territory expressed the ideas of terra nullius.

In the 1780s, British colonial policy (for both the Crown and the East India Company) looked for uninhabited islands to build colonies in the Bay of Bengal and for an enclave in New Holland as the site for a penal colony. This article brings together British thinking about creating settlements in these two regions. In the first part, I examine East India Company (hereafter the Company) reports about islands in the Bay of Bengal, putting in context their use of the key term ‘uninhabited’. From the 1770s, the Company wanted to build a settlement in the Eastern Indian Ocean. Thomas Forrest (c.1729–c.1802), Francis Light (c.1740–94), James Scott (1746–1808) and Alexander Kyd (c.1754–1826) produced reports that addressed competing claims of occupation of islands by Malay, Burmese and Siamese rulers. Seeking an ‘uninhabited’ island, in order to avoid conflict with local powers, the Company decided in 1786 to build a settlement on Penang (renaming it Prince of Wales Island). In determining whether an island was ‘inhabited’, Forrest, Light, Scott, Kyd and the Company looked for evidence of a feudal lord or hierarchy amongst the people living on the island.⁴ In Southeast Asia, it was common for people deemed ‘savages’ to stand in a subservient relationship to a local sovereign; this meant that the land where such ‘savages’ lived was regarded as ‘inhabited’. In 1783, at the urging of Joseph Banks, William Marsden wrote of relations between the Batak ‘cannibals’ and Malay sovereigns in his History of Sumatra.⁵ The observation of Batak servitude to hierarchy demonstrated the existence, in Sumatra, of a sovereign and therefore of government.

In the second part I review what historians of Australia have said about British perceptions of ‘Aboriginal society’ – based on James Cook’s 1770 visit to Botany Bay. I argue that in British thinking from the 1780s ‘uninhabited land’ did not mean there were no people living there or that the people were in a state of nature. Rather, ‘uninhabited’ meant lawless – an ‘uninhabited’ zone which was without government. In both the Bay of Bengal and Botany Bay colonial agents were looking for signs of a government. They found it in the first region, but not in the second.

Uninhabited islands as lawless zones

Throughout island Southeast Asia, British merchants (who were independent of the Company) used ‘uninhabited’ Islands as trading rondavels. These uninhabited islands were populated by Malay fishermen or orang laut, who, in the British eyes, lacked government. In June 1788, Light (then superintendent of Prince of Wales Island [Penang]) wrote to Lord Cornwallis, Governor General of Bengal, explaining the importance of Penang and the predicament of the traders before the settlement of Penang was created. He noted that British traders had ‘no certain place to frequent but wander from place to place in search of purchases, and meeting the Malays in uninhabited places like thieves gathered together, to divide their spoils’.⁶

Light demonstrated that, in waters plagued by pirates and Dutch naval vessels that might harass unprotected British shipping, uninhabited islands were useful for English traders fearful for their security. Light’s comments pointed to a legal meaning of ‘uninhabited’ that is broader than just something that can be understood as being possessed or claimed. In Light’s description, ‘uninhabited’ islands were sites of illicit activity: ‘like thieves gathered together, to divide their spoils’. He used the word ‘uninhabited’ to mean uncontrolled space – a wild frontier, a place without a government, where things could happen outside the gaze of a sovereign.

The connection between ‘uninhabited’ islands and lawlessness was a theme in eighteenth-century maritime literature; stories about pirates referred to ‘uninhabited islands’ or Desert Islands as hideouts.⁷ There are only a few seventeenth- and eighteenth-century legal passages that deal with claiming ‘uninhabited’ land. In each instance, the criterion of habitation was the existence of a government over people living on the land. For the most part, legal thought considered government as hierarchy with a sovereign at the apex – although not always.

Whether non-European peoples had ‘government’ or should be governed by others were themes of much political theory in the seventeenth and eighteenth centuries. John Locke had demonstrated that social organisation was not limited to patriarchal hierarchy; other forms of communal decision-making demonstrated a social contract and therefore a government.⁸ In rejecting the divine right of kings, Locke used examples of mutual consent from First Nations Americans and other places to illustrate that political societies could come in other forms. For example, he contested Josephus Acosta’s thesis that in many parts of America, such as Peru, ‘there was no government at all’, by conjecturing that Native Americans produced different forms of government by individual consent:

If it be said, that every man there was born subject to his father, or the head of his family; that the subjection due from a child to a father took not away his freedom of uniting into what political society he thought fit, has been already proved. But be that as it will, these men, it is evident, were actually free; and whatever superiority some politicians now would place in any of them, they themselves claimed it not, but by consent were all equal, till by the same consent they set rulers over themselves. So that their politic societies all began from a voluntary union, and the mutual agreement of men freely acting in the choice of their governors, and forms of government.⁹

In his 1651 Leviathan, Thomas Hobbes demonstrated that inhabitants of a territory needed to be part of a sovereign realm, which he called a commonwealth. He wrote that ‘the procreation, or children of a commonwealth, are those we call plantations, or colonies’; these are ‘numbers of men sent out from the commonwealth, under a conductor, or governor, to inhabit a foreign country’. The act of inhabiting land was the creation of a commonwealth: ‘when a colony is settled, they are … a commonwealth of themselves, discharged of their subjection to their sovereign that sent them’.¹⁰

Locke’s Two Treatises of Government is a central reference for claims that territory could be taken from hunter-gather populations by farming colonists.¹¹ The key argument Locke made was that the application of labour (by the tilling of soil and enclosure of land) created property in the land. He proposed a theory of property, arguing that property was created by adding labour to an object.¹² Locke, however, demonstrated that personal property created by that tilling of the soil was different from creation of territory by a political society. For Locke, the possession of territory by a political society was the creation of government. Locke, like Hobbes, focused on social organisation as the defining factor in the creation of a political society. The creation of property in land (by mixing labour) was a secondary activity to the creation of a government:

as Families increased … their possessions inlarged [sic]; but yet it was commonly without any fixed property in the ground they made use of, till they incorporated, settled themselves together, and built Cities, and then, by consent, they came in time, to set out the bounds of their distinct Territories, and agree on limits between them and their Neighbours, and by Laws within themselves, settled the Properties of those of the same Society.¹³

The seventeenth-century Dutch jurist, Hugo Grotius, is often cited as an Enlightenment authority on the question of possession and the use of the Roman legal concept of res nullius.¹⁴ Previous examinations of Grotius’ writings on possession have overlooked that the context of Grotius’ observations about ‘possession’ was his concern with the problem of the extension of law into ungoverned space.

Throughout the Rights of War and Peace, Grotius referred to ‘uninhabited’ territories only once – not in relation to possession, but to government. He wrote about ‘uninhabited’ space in the same chapter, where he defined sovereignty as the existence of a ‘civil authority’. In that chapter, Grotius linked the question of whether a land was ‘uninhabited’ to the question of whether a government existed there, rather than to the question of whether or not people lived there. In one of his few references to ‘uninhabited’ spaces, the lack of a legal system defined ‘uninhabited’ land:

It fails absolutely, either by Right or Fact: By Right, if a Man be in Places not inhabited, as on the Seas, in a Wilderness, in desert Islands; and any other Places where there is no Civil Government. By Fact, if Subjects will not submit to the Judge.¹⁵

Grotius’ concern in these passages was not the absence of people, but rather the lack of capacity for civil government or lack of willingness to submit to a civil government by the people residing there. ‘Uninhabited’ referred to the lack of sovereign power.

By 1753, William Blackstone wrote of ‘uninhabited’ land as a historical ideal, more than a reality in his own time. He maintained that ‘the stocking and cultivation of desert uninhabited countries’ was consistent with ‘law of nature’. However, he rejected as morally wrong ‘the seizing of countries already peopled, and driving out or massacring the innocent and defenceless natives’. He urged those who would civilise mankind to consider ‘how far such a conduct was consonant to nature, to reason, or to Christianity’.¹⁶

Emer de Vattel’s 1758 text Law of Nations appears to respond to Blackstone’s concern about newcomers occupying ‘uninhabited’ land that was already occupied by nomadic peoples. Vattel concluded that nomadic peoples in North America ‘rather ranged through than inhabited them [those lands]’.¹⁷ Fitzmaurice has argued that Vattel was ‘disdainful of the rights of nomadic peoples’ because of their ‘disdain to cultivate their lands’.¹⁸ Stuart Banner has argued that by the time Cook reported on the Aborigines, the British government's thinking was informed by Vattel's argument that (in Banner's gloss) ‘in an enormous continent with a tiny population, there would be plenty of unowned land available for the taking’.¹⁹

Vattel’s concern, however, was not only how much land lacked cultivation but also whether the inhabitants of the land in question were lawless. ‘Those nations who inhabit fertile countries, but disdain to cultivate their lands, and chuse [sic] rather to live by plunder are wanting to themselves, are injurious to all their neighbours, and deserve to be extirpated as savage and pernicious beasts’.²⁰ This harsh prescription (‘deserve to be extirpated’) would apply to societies seen as ‘nomadic’ if they were living not by cultivation but by plunder.

By the end of the eighteenth century, British colonial officials judged ‘habitation’ according to whether a government existed to bring order to the otherwise lawless. When they observed people living in the lands that they encountered they looked for a sovereign or a relationship of dependence by those people. The presence of cultivation was a possible proxy of government, but for these writers what mattered was whether the land in question was under government.

Habitation of the Nicobar and Andaman Islands

Writing sometime between 1805 and 1811, the Company official, L. Wissell, maintained the Company had not wanted to be drawn into possible conflict with local or European powers over the creation of any colony in the Eastern Bay of Bengal.²¹ Under the India Act of 1784, the Company was prohibited from violently extending its domain in India. In practice the Company’s directors in London were cautious of involvement in expensive wars. To avoid conflict, the Company needed either to find locations to which they would be invited by the local rulers, or to find an ‘uninhabited’ island (a lawless zone), that they could claim as a British possession, without offending any of the local powers or European powers.

The Governor General of Bengal, Warren Hastings (r.1874–85), engaged the Company’s sea captain Thomas Forrest to scout possible locations.²² Hastings also received reports from the country traders Scott and Light. Hastings’ objective was a naval base, but Scott and Light – as private merchants – had their own agenda. They wanted a location for merchants, that was protected by British law, to store their merchandise and trade with local Malay, Bugis and Chinese merchants. They preferred a port close to the Malacca Straits trade route. On 6 June 1784, Forrest submitted his report ‘Remarks on the Islands of the Coast of Mergui and the Strait between them and the main land’. In addition to finding possible harbours, Forrest discussed the political-legal issues of claiming territories in the region, and in particular the Nicobar and Andaman Islands, some of which he claimed were ‘not inhabited’.²³

Forrest used the description ‘not inhabited’ as part of a discussion on Burman claims to the Nicobar Islands. The ‘Burmans’, he noted, ‘claimed a right to the Nichobars [sic]’, and this was known because ‘about 20 years ago’, a captain took some ‘Natives of the Nichobar [sic] Islands’ with him as crew to Burma and discovered that ‘they were claimed by [the Burman] Government as being their subjects, and the Captain had got into trouble’. Forrest reasoned that the Burmans ‘surely will claim the intermediate Islands’ (the Andaman Islands).²⁴ He concluded that although the Burmans might have claimed the ‘intermediate islands’ (Andaman Islands), as demonstrated by the reported existence of Burman subjects on the Nicobar Islands, that the ‘intermediate islands’ were ‘not inhabited’ limited the force of the Burman argument. Despite reporting that the islands were ‘not inhabited’, Forrest also noted that fishermen still used these islands, writing the ‘Burmans and others might go there and fish (which I am told they do in the fine season) as usual’, suggesting that people did live there, on a seasonal basis at least.²⁵

Forrest combined two arguments to justify British taking possession: a right of discovery argument supported with an argument of continual usage by British mariners: ‘our Ancestors knew them, and We were necessitated to use them for want of a good Harbour elsewhere that being uninhabited’.²⁶ In using the word ‘uninhabited’, Forrest did not mean that nobody lived there.

Forrest's discussion of habitation was about the relationship that British and Burman subjects had to the land, and it is that relationship that causes some form of habitation. That the British mariners were subjects of the British Crown meant that the Company could claim the islands. Similarly, he admitted, the Burman fishermen were subjects of the Burman Empire, enabling the Burmans to claim ownership of these islands. He based the British claim on the argument that ‘We were necessitated to use them for want of a good Harbour’ but he also acknowledged that the Burmans could make a similar claim based on fishing rights, ‘Burmans and others might go there and fish’. In both cases, the island in question was ‘inhabited’ – not because individuals were there using the island but because those individuals were the subjects of sovereigns.

At no point did Forrest consider the local people of the Nicobar Islands as the inhabitants who owned the islands. In an earlier letter to Hastings from June 1783, Forrest wrote in more detail about the people on those ‘intermediate islands’ (the Andaman Islands) and their potential subjecthood.²⁷ He called the Andaman Islanders ‘Cannibals’ with a ‘narrow Comprehension’ and likened them to ‘N Americans [sic]’. Yet, although he saw them as ‘savages’, he also saw them as being beholden to an external force, rather than being a sovereign people.

He provided three possible origins and relationships of the Andaman Islanders. First, he suggested they were marooned ‘strangers’ and not native:

The Andamanese are descended from the Human Jintoos [Hindu], I dare say, many Strangers are alive amongst them, who speak the Language of the Continent; that these never return, the Reason is plain, no one goes to fetch them: they can’t return of themselves.²⁸

Forrest’s second suggestion was that the Andaman Islanders were subjects of the King of Arakan. He informed Hastings of some gossip he received from a servant of Lord Macartney (Governor of Madras, r.1781–85), who ‘had received a letter from a Friend at Aracan [Arakan]’ which discussed the Andaman Islands. The letter stated that ‘The Andaman Islands belonged to the King his Master’. The Master was the King of Arakan, and so the Andaman Islanders were ‘the Subjects of the King’.²⁹ The letter gave a third possibility: that they were connected to Siam and ultimately slaves. The ‘Descendants of the Ancient Inhabitants, were sent up in the N [sic] and of the Island, by a Race of Caffres, who came from the more Siam parts; and that these Caffres, were descended from some Slaves’.³⁰ In each of these examples, Forrest concludes that the Andamanese were subjects (or possessions) of others and did not possess any sovereignty over the Andaman Islands in their own right.

In 1795, when the Company again thought of building a settlement in the Andamans, Kyd dismissed the people as non-existent. He wrote, ‘Of the natives it is not necessary to say much, as their existence, or none existence can have very little influence on the plan in question’.³¹ Kyd’s words illustrate that living on the island – as a materially and functionally independent people – did not mean the Andamanese ‘inhabited’ the islands in the eyes of these agents of the Company.

Establishing Penang

Despite Forrest’s surveys of the Andaman and Nicobar Islands, the Company preferred the port of Riau (within the Riau archipelago) or Junk Ceylon (Ujung Salang, today Phuket) as locations for settlement. Acquisition of either of these islands would require negotiations with powerful local kingdoms. Riau was a Malay kingdom, and one of the successors to the Johor Empire, and the location could control trade in the Malacca Straits. Forrest and Light both preferred Riau, because it was already being used as a trading base. The disadvantage, from the Company’s point of view, was that the Dutch were also expanding into that zone. Junk Ceylon was a dependency of the Kingdom of Siam and a site of conflict with the Kingdom of Burma. In 1785, while the Company was considering building a factory in Junk Ceylon, the Burmese raided the island and destroyed the European settlement.³² Regional politics thus prevented the establishment of settlements in either Riau or Junk Ceylon. On 23 February 1786, the Calcutta-based merchant Joseph Price was asked to review the options for settlement. He concluded that any settlement should be ‘sufficiently detached from the Continent to prevent surprise or even attack from the natives’.³³ The Company was forced to turn its attention to Penang.

When it came to acquiring Penang, the Company’s paramount wish was to gain consent from a sovereign owner of the island. In the Letters Patent for establishing the settlement of Penang, the Company prided itself on acquiring lands legitimately: ‘This Company settled and established several factories and built several Forts in the East Indies, the cities of which they acquired by purchase or grant from Native Powers’.³⁴ Nevertheless, as we will see, in relation to Penang the Company did not fulfil the terms on which that consent was based.

Light reported on 30 March 1784 that in Penang Malays did not live there permanently. Penang ‘is not inhabited; rovers only resort there in the fair season, the NE monsoon, to fish, and perhaps to dig tin’.³⁵ The idea that the Malays only roved in and out of the island stayed in the British imagination. On 2 March 1786, the Company ‘resolved’ to establish a settlement in Penang.³⁶ The Calcutta Gazette wrote of its prior inhabitants: ‘The Malays do already resort to it’, meaning the Malays travelled to Penang, but did not reside there.³⁷ As we shall see, in 1805 the Company started retrospectively labelling Penang as an ‘uninhabited island’ prior to their occupation. When Light became superintendent of the island, he produced a census and distinguished 158 Malays as being the ‘original inhabitants’.³⁸

In the early 1780s, Forrest reported on Penang that ‘the Island is thinly inhabited, and these inhabitants mostly employed in smelting (after gathering near the surface the tin ore, which they then sell to their Lord (Dattoos) at about two thirds of its value  …)’.³⁹ Forrest also believed that the lack of people was a recent change. He noted that the few people living there had ‘given names to 7 different places around the Island’ and that ‘this proves it has been inhabited [in the past] perhaps better than at present’.⁴⁰

Forrest’s statement emphasised that the inhabitants were beholden to a sovereign, external to the island, and gives a clue as to how he, and the Company, determined who had possession of Penang. The people that Forrest referred to were mining on the island rather than farming. Therefore, they were not a self-sufficient community, but rather transients relying on support from outside the island. Forrest reported that the mining and smelting activity was at the behest of ‘their Lord’, who had authority over them. Consequently, the activities of the miners/smelters were those of servants in a relationship of hierarchy. The lack of people and the transient nature of the population suggested the people were beholden to a sovereign existing outside of Penang.⁴¹

The Company concluded that Penang was a possession of Kedah, the people living there being subjects of Kedah. On 15 February 1786, Light offered his ‘influence and interest … with the King and his ministers to procure a grant of the Island Pinang to the Honourable Company’.⁴² The Sultan responded by offering a security partnership, whereby the Company would come to the defence of Kedah, while not interfering with Kedah’s trade, along with payment of $30,000 Spanish dollars.⁴³ The conditions outlined by the Sultan stipulated an ongoing rent that the Company needed to pay for operating out of Kedah. The security partnership was the most problematic for the Company, because it meant potential war with another power in the region. Light told the Company that Kedah’s wish for security was the ‘only reason why the king wishes an alliance with the Honourable Company’.⁴⁴

Light presented the Sultan of Kedah as an independent sovereign, a point that the Acting Governor General of Bengal, John Macpherson, emphasised in his response to London, calling the proposal from the Sultan ‘a free grant from the acknowledged and rightful owner [which] can never give cause for war’.⁴⁵ However, Light’s reports did not mention that Kedah was not an independent sultanate, but a vassal of the Siamese Empire.⁴⁶

Macpherson decided to build a settlement in Penang. Without prior authorisation from London, this stretched his authority as an Acting Governor General. He wrote to London quoting Price’s 1786 advice that Penang was preferred over Junk Ceylon because they ‘will ever be subject at the Burmese and Peguans [who] are ever at variance, and what one people give when in power the other when superior will always attempt to take away’.⁴⁷ Macpherson ordered Light to ‘plant the Honourable Company’s colours in Paulo [sic] Penang and defend that island against all invaders’.⁴⁸ On 11 August 1786, Light raised the British flag in Penang and built a colonial settlement.

When the Company refused to pay the Sultan annual rent for the island, Kedah responded by increasing levels of hostility towards the settlement. After five years without payment, the Sultan decided to evict the British squatters, organising a force of 8,000 men and over 200 prahus opposite Penang.⁴⁹ The colonial garrison made a pre-emptive attack and destroyed Kedah’s fleet.⁵⁰ Light then negotiated a deal with the Sultan favourable to the Company. The treaty of 12 August 1791 listed an annual payment of $6,000, for recognition of British sovereignty.⁵¹ Neither Light nor the Company consulted the people living in Penang. The Company’s only interest was whether a sovereign claimed authority over Penang.

Retrospective emphasis on uninhabited

Beginning in the 1790s, Penang was retrospectively declared an uninhabited island. Alexander Kyd concluded in a report that ‘Penang as yet can be said to have no inhabitants of its own’.⁵² He described the people who lived on Penang prior to the British arrival, as ‘a few Malay Families who subsisted by fishing and extracting of wood, oil and dammar and who lived near the Point where the Fort stands but [after the British came] have removed to another part of the Island’.⁵³ Kyd did not describe these Malays as followers of the Sultan but pointed to a few families wanting to live outside the bounds of colonial society or Malay Kerajaan (kingdom).

Through interviews, Kyd found further historical details that reflected a history of Kedah’s military conquest of Penang rather than a choice by the Malays living on Penang to become part of the Sultan’s Kerajaan. Kyd found ‘a very old Man’ who lived among the few Malays that ‘subsisted’ on the island. He gave an account of a pre-existing population that farmed and lived in Penang, which was destroyed by a Sultan of Kedah who expelled them from the island:

about thirty years ago a great many Inhabitants on the Island (not less than three thousand) and that at one place it was well cultivated which is evidenced by the Number of burial places … the clearness of Wood, and from many Fruit Trees that are to be seen and above all from the appearance of inclosures [sic] and terraces gives convincing proof that the whole of that Space has been recently in Cultivation. These People having given themselves up to plunder and piracy which disturbed the commerce of Queda [Kedah] the King fitted out an armament and expelled them from the Island.⁵⁴

Penang therefore was subject to a sovereign, by virtue of the fact the Sultan had conquered the island, and in the process had rendered its population extinct. The few people who still lived on the island, after the Sultan evicted and killed the inhabitants, chose to live quiet lives outside the authority of both Kedah and the British.

With the success of Penang as a settlement, Kyd’s extinction narrative was reformed by the early nineteenth century, to mean an uninhabited island transformed into a colonial success story. In 1790, Michael Topping wrote a narrative of the colonial transformation of Kedah and Penang. ‘The first hut on the Island was built no longer ago than in July 1786, yet he [Light] has now a capacious town, and a colony of 10,000 Inhabitants’.⁵⁵

In 1805, the Company faced the question of introducing a legal system in Penang. In Bengal, the Company had a plural legal system, which emanated from the fact it was not the sovereign of Bengal, but rather had the Mughal title Diwani (which conferred the right to collect taxes and administer justice). Using the Diwani power, the Company colonised Bengal, and introduced an English legal system. The India Act of 1784, however, required the Calcutta Supreme Court when dealing with Hindus and Muslims to apply Hindu and Islamic laws and customs in matters of inheritance and contracts.⁵⁶ In addition to the Supreme Courts (the King’s Courts), the Company inherited the Mughal system of courts – the Sadar Adalats, consisting of both civil (Diwani) and criminal (Faujdari) courts. The two systems (the Supreme Courts and Sadar Adalats) had ill-defined jurisdictions and often delivered contradictory rulings.⁵⁷ British judges were ill-equipped to negotiate the application of uncodified Hindu law and Islamic law. When assessing the extant ancient legal texts, judges required a scholarly proficiency in Sanskrit, Urdu and Arabic.⁵⁸ As Lauren Benton argued, ‘Indian litigants did not passively observe these jurisdictional divides but actively exploited them’.⁵⁹

Faced with the legal and administrative complexity that was British India, the Company seized the opportunity of declaring Penang an ‘uninhabited’ island. The Company interpreted ‘uninhabited’ to mean that all residents (whether European, Malay, Chinese or Indian) would be subject only to British law. The Company’s Court of Directors in London directed the government in Penang:

When we consider that at the time we took possession of Prince of Wales Island it was uninhabited, our right to prescribe the system of laws which we may deem most eligible for the government thereof cannot be controverted, since none of its inhabitants who have repaired to the island can claim any prescriptive right founded on ancient usage, to the establishment of any particular system of laws or form of judicial proceedings.⁶⁰

In the Letters Patent issued in 1806, the Company had made ‘uncultivated and uninhabited’ the foundation story for a colony whose settlers were from culturally and legally diverse backgrounds, bound together under British law as British subjects:⁶¹

[T]he island was wholly uncultivated and uninhabited, and since such acquisition the said United Company have caused a fort and town to be built on the said Island, and many of our subjects and many Chinese, Malays, Indian and other Persons … have settled there.⁶²

‘Uninhabited’ was a legal fiction making Penang a legal tabula rasa, notwithstanding that the British continued to pay a $10,000 tribute to the Sultan of Kedah.

A similar retrospective fiction developed of Singapore being an uninhabited island. In his first letters proposing a colony in Singapore in 1818, Thomas Stamford Raffles claimed that only a few fishermen occupied the island. Raffles made this claim despite the fact that he had negotiated permission to build a settlement with the Temenggong, a ‘feudal’ official in the Johor-Riau Lingga Sultanate, who had resided on the island at the time of Raffles’ arrival. The Temenggong had ten groups of ‘island suku’ or sea peoples, who lived in Singaporean waters and numbered 10,000 people.⁶³ These suku owed allegiance to the Temenggong.⁶⁴ The first Singapore census in 1824 listed 4,580 Malays, the majority of whom were the Temenggong’s followers and were local prior to the British arrival.⁶⁵ Therefore the population of Singapore was much larger than the 150 first reported.

The retrospective fiction, that Singapore was an uninhabited island, relied on British descriptions of Singapore’s pre-existing residents as ‘fishermen and pirates, living in a few miserable huts’.⁶⁶ Such descriptions undermined Singapore as a legitimate possession of the Temenggong and Sultan Hussein. A group of pirates was a lawless rabble and not a political society, and so Singapore lacked ‘habitation’. In 1824, John Crawfurd (Resident of Singapore) experimented with the idea that the Malays had not really inhabited the island prior to the arrival of the British, writing ‘Tumâmgimg [Temenggong] … told me himself that he came there with about 10 followers, a few months before the British expedition which afterwards captured Java passed the island, and this happened in the summer of 1811’.⁶⁷

In discrediting the Temenggong’s claims to inhabit Singapore, Crawfurd developed an argument for ending legal pluralism in Singapore. Crawfurd would go on to negotiate a treaty with the Temenggong to purchase the sovereignty of the island for the Company. In consequence, the Temenggong’s and Sultan’s followers were subject to British law inside the colony of Singapore.⁶⁸

In 1820, Crawfurd had developed a plan for a colony on an ‘unoccupied’ island in the Straits of Malacca. He argued that an unoccupied island allowed for the unimpeded introduction of British law, that ‘we have to legislate for Europeans, for Chinese, and for a mixed mass of native inhabitants’ and that ‘the Law should make no distinction between them’. Accordingly, he believed legal pluralism was not an option in a British colony.⁶⁹

The examples of Penang and Singapore demonstrate how the ‘uninhabited’ narrative evolved to remove or pre-empt legal pluralism from colonial space. The focus of colonial authorities in Penang and later Singapore was to create British subjects. By rejecting claims that a pre-existing population were subjects of Kedah or the Temenggong, the Company chose to declare Penang and Singapore uninhabited islands, on which the Company was unimpeded by a pre-existing jurisdiction.

Was Botany Bay ‘inhabited’?

On 18 January 1788, the First Fleet, commanded by Arthur Phillip, landed at Botany Bay to establish a convict settlement in New South Wales (NSW). It had been eighteen years since the British last ventured to Botany Bay, when James Cook charted its coastline in 1770. As with Penang, the British did not consult the actual inhabitants of Botany Bay about building a settlement on their land. In contrast with his extensive and often positive relations with Māori in New Zealand, Cook had failed to have any meaningful interaction with the Gweagal people of Botany Bay. In 1787, the question that faced decision-makers in London was: did a sovereign reside in New Holland?

Until 1992, Australian courts and historical writing had understood ‘terra nullius’ to be the British answer to that question.⁷⁰ As we have seen, although the first recorded use of the phrase ‘terra nullius’ was in 1885, it had its basis in the natural law legal writing on habitation from the seventeenth and eighteenth centuries. Consequently, in 1963, Alex Castles summarised the Australian courts’ view, that at the time of the British arrival Australia was ‘uninhabited or inhabited by a primitive people, whose laws and customs were considered inapplicable to a civilised race’.⁷¹

Historians of the application of ‘terra nullius’ to Australia differ in their assessment of its importance. Henry Reynolds in his influential book Law of the Land unpacked the concept of terra nullius as applied to Australia. He pointed out that the phrase ‘has two different meanings, usually conflated. It means both a country without a sovereign recognized by European authorities and a territory where nobody owns any land’.⁷² Reynolds said little more about colonists’ failure to recognise ‘sovereignty’. He argued that colonists overlooked Aboriginal possession of land because Europeans knew little about the Aborigines and because the ways that Aborigines possessed land did not correspond with the European idea of ownership. In an argument compatible with my argument in this article, Bruce Buchan disputed that ‘terra nullius was the foundational assumption of Australian colonization’.⁷³ Rather than present ‘terra nullius’ as ‘a fabrication that allowed the colonizers to view the land as occupied but “unowned” and therefore “vacant”’, Buchan attended to the words that colonists used – terms such as ‘civilization’, ‘uncivilized’ or ‘savage’.⁷⁴ Buchan argues that the question for Cook was to what extent, if at all, were the natives of New Holland interested in ‘traffick’ – the exchange of goods.⁷⁵ ‘Traffick’ was significant to Cook because,

European notions of commerce … were inextricably entwined with a range of other concepts such as civilization, savagery and sovereignty which enabled them to employ trade and ‘traffick’ in colonial contexts in order to obtain what they took to be Indigenous ‘consent’ to subjection.⁷⁶

And ‘Throughout their imperial enterprise, Europeans and especially the British came to rely upon understandings of “government” and sovereignty as concomitants of relations of private property’.⁷⁷ Because the Gweagal did not respond to his efforts to ‘traffick’ with them, Cook could see nothing in their way of life that amounted to ‘property’ or to ‘polity’.⁷⁸

Scholarship about how eighteenth-century observers determined the existence of government in New Holland has focused on two representations of ‘civilization’ that were central parts of Locke’s theory of property: the tilling of the soil and the creation of trade. In 1981, Alan Frost argued that it was labour and the ‘tilling of the soil’ that for the British in the late eighteenth century indicated a civilised race:

if the indigenous had advanced beyond the state of nature only so far as to have developed language and the community of the family, but no further; if they had not yet mixed their labour with the earth in any permanent way; or if the region were literally uninhabited, then Europeans considered it to be terra nullius.⁷⁹

In 2007, Banner also argued that British interpretations emphasised the tilling of soil, highlighting descriptions in Cook’s journal of an Australia which was ‘the solitary haunt of a few miserable Savages, destitute of clothing’.⁸⁰ Fitzmaurice reasoned that British legal and political thinkers had reinterpreted the ancient Latin legal concept res nullius (which only applied to movable objects) to mean the land was unclaimed because of a lack of civilisation markers such as ‘enclosure’ and ‘cultivation’.⁸¹ The idea that ‘habitation’ was defined by civilisation or labour has resulted in historians rightfully demonstrating that such interpretations were inconsistent with legal thinking at the time.⁸² Nevertheless, the evidence of ‘legal thinking’ in the context of the creation of a British settlement in the Bay of Bengal and Southeast Asia demonstrates that evidence of the presence of government was the key indicator of ‘habitation’.

Recent research has focused on practical colonial assertions of sovereignty, rather than doctrines of terra nullius.⁸³ Bain Attwood has argued that we cannot explain the British assertion of sovereignty over New Holland as its application of ‘terra nullius’; instead he endorses the argument of Benton and Straumann that historical factors, such as self-interest, geo-strategic power politics and opportunism explain the British assertion of sovereignty.⁸⁴ Lisa Ford and David Andrew Roberts have rightly declared that ‘there was no declaration of “terra nullius” in 1788’.⁸⁵ Instead Ford and Roberts conclude that the idea that the land was unoccupied was an ‘epistemic dispossession’ that ‘grew, over time, into the doctrine of terra nullius’.⁸⁶

Attwood placed emphasis on the literal descriptions of a few inhabitants by Banks and Matra as key to British decision-making of creating a colony.⁸⁷ Banks’ and Matra’s representations – that there was a lack of habitation at Botany Bay – gave rise to a ‘perception of power’ which, in Attwood’s words,

probably meant … that the British government [seeking an enclave for a small penal colony, rather than control over a large territory] saw little if any need to pay attention to the sovereignty, let alone rights in land, of the native people, and so it did not.⁸⁸

What the British – according to Attwood – did in New Holland was similar to the Company’s practice of avoiding conflict with a sovereign in Asia. That is, when planning a penal colony at an enclave in New Holland, the British government relied on information that New Holland was ‘uninhabited’. That being so, there was little risk of a clash with a sovereign in New Holland.

When it came to considering the rights of pre-existing inhabitants, the government had to make a decision based on their very limited knowledge of NSW. In 1787, an anonymously published book History of New Holland provided a commentary on James Cook’s published journals supported by excerpts from Sydney Parkinson’s published journal and earlier accounts by William Dampier. The book was the main summary evidence on what was known of New Holland.⁸⁹

Cook’s first observations from the isolation of HMS Endeavour pointed to a large population which possessed some form of control of the landscape and consequently appeared to have a form of government. He noted in his journal that it appeared that many people lived in New Holland. He believed he could detect ‘plantations’ and noted that the ‘smokes and fires’ suggested that the land was ‘pretty thickly inhabited’.⁹⁰ Yet his account expresses his underlying perplexity: would not a large population have developed sophisticated boat-building and harbour facilities? Cook found ‘no appearance of a harbour’.⁹¹ He anchored near what he described as a ‘small village, consisting of about six or eight houses’.⁹²

Cook’s only engagement with the inhabitants of Botany Bay was his first landing, which resulted in both sides demonstrating their violent capabilities, but no successful communication of their various interests.⁹³ Cook wrote that the natives ‘fled’ on being approached by his men.⁹⁴ By the time he left Botany Bay, Cook was unable to negotiate any deal with the inhabitants. The compiler of The History of New Holland noted ‘he found it impossible to establish a friendly correspondence during his short stay in that harbour’.⁹⁵

The second source of information was the testimonies of two surviving authorities: Sir Joseph Banks, the President of the Royal Society, and James Matra, a former officer and advocate for American loyalists, who lobbied for the creation of the British settlement in Botany Bay. Both Banks and Matra had been with Cook on the Endeavour. In 1770, Banks drew the conclusion that New Holland was uninhabited, despite having seen people there; he had also brought back their tools, some of which he had taken from their houses.

Banks reasoned that, although he never saw the inland, ‘we may have liberty to conjecture, however, that it is totally uninhabited’ (my emphasis).⁹⁶ In 1779, Banks appeared before the ‘Committee on Returns of Felons’ to propose a penal colony in NSW. Although Banks had nine years to ruminate on the habitation of NSW, he did not appear to have changed his mind. He was dismissive of the existing population in NSW, believing there were only a few people. The House of Commons recorded Banks’ testimony:

He apprehended there would be little Probability of any Opposition from the natives, as, during his Stay there, in the Year 1770, he saw very few, and did not think there were above fifty in all the Neighbourhood, and had Reason to believe the Country was very thinly peopled; those he saw were naked, treacherous, and armed with Lances, but extremely cowardly, and constantly retired from our People when they made the least Appearance of Resistance.⁹⁷

Four year later, James Matra (a former midshipman on the Endeavour) was equally dismissive of the inhabitants of NSW in his testimony before the House of Commons. Matra believed NSW was ‘peopled only by a few black inhabitants, who, in the rudest state of society, knew no other arts than such as were necessary to their mere animal existence, and which was almost entirely sustained by catching fish’.⁹⁸ These statements were similar to observers’ references to Malay fishermen in Penang and Singapore; they demonstrated to British readers that the few people living in Botany Bay did not live in a political society.

Matra directly addressed the question of the existence of a sovereign, writing ‘the discoveries and enterprise of our officers, many new countries have been found which know no sovereign, and that hold out the most enticing allurements to European adventurers. None are more inviting than New South Wales’ (my emphasis).⁹⁹ For Matra it was a clear statement that NSW was unoccupied and lacking a sovereign. The inhabitants were subjects of nobody and consequently had no rights of sovereignty in the eighteenth-century British legal mind.

Banks’ and Matra’s evidence helped convince the British government that Botany Bay was the best location for the establishment of a convict settlement. Their evidence emphasised the non-existence of a sovereign. The question of habitation and existence of a sovereign, which was open-ended in Cook’s journals, was finalised by Banks and Matra who concluded that the inhabitants were not part of a political society and that no sovereign existed. Consequently, Banks and Matra gave reassuring evidence that there was little chance of a local strategic threat to any future penal settlement in NSW.

Conclusion

Uninhabited land was not a literal concept in Britain in the late eighteenth century. The idea of habitation was built on assumptions about lawless zones and on political concepts which privileged the existence of a sovereign. ‘Uninhabited’ islands were common in Southeast Asia, but this did not mean that no people lived on or used these islands – it meant there was no sovereign associated with them. As Light concluded, such places allowed for opportunities where traders could meet the ‘Malays in uninhabited places like thieves gathered together, to divide their spoils’.¹⁰⁰

The Company initially recognised Penang and Singapore as being inhabited. Retrospectively, the Company referred to Penang and Singapore as uninhabited islands. In doing so, the Company created a legal fiction to avoid the need for legal pluralism, and to forestall interference by Malay rulers. Although a fiction, the justification that they were uninhabited was based on earlier observations that the islands had no substantial population, and that the people living on the islands were not part of a political society. The local sovereigns, who claimed these islands, were then ignored.

In the Australian context, Attwood, Ford and Roberts have all demonstrated that the terra nullius narrative was a retrospective innovation in Australian legal and political discourse. In the Australian context, similar to Penang and Singapore, ‘uninhabited’ became a convenient doctrine to enable the creation of laws unencumbered by Aboriginal claims.

If we can read terra nullius doctrine into the discourse on habitation in the 1780s, it is because the question to be answered by this discourse was whether a land was possessed by a sovereign or not. Banks, Matra and Cook’s journals provided evidence that suggested NSW had no sovereign in 1770. While there were plenty of comments in Cook’s journals to suggest the existence of a political society that did not conform to hierarchy and monarchy, the prevailing assumption was that if no hierarchy or monarchy existed then there was no sovereign for the British to contend with and therefore no local strategic threat.

Acknowledgement

I would like to thank Robert Cribb and Anthony Milner for their advice in developing the argument of this article. I would also like to thank the reviewers and editorial team, particularly Tim Rowse and Fiona Paisley for their helpful critiques post-review.

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by Australian Research Council grants DP200101814, Profit and Loss: The commercial trade, and DP200102850, Heritage and Reconciliation.

Notes

1 E. Scott, ‘Taking Possession of Australia – the Doctrine of “Terra Null[i]us” (No Man’s Land)’, Journal of the Royal Australian Historical Society 26 pt 1 (1940): 1–20; Alan Frost, ‘New South Wales as Terra Nullius: The British Denial of Aboriginal Land Rights’, Australian Historical Studies 19, no. 77 (1981): 513–23.

2 Andrew Fitzmaurice, ‘The Genealogy of Terra Nullius’, Australian Historical Studies 38, no. 129 (2007): 1.

3 Ibid., 2.

4 Gareth Knapman, ‘Settler Colonialism and Usurping Malay Sovereignty in Singapore’, Journal of Southeast Asian Studies 52, no. 3 (2021): 418–40.

5 William Marsden, The History of Sumatra (London: Author, 1783), 303–4.

6 Sumatran Factory Records, India Office Records (hereafter IOR), British Library, IOR/G35/30, 374.

7 Defoe Daniel, The History and Lives of All the Most Notorious Pirates (London: C. Hitch; R. Ware; and S. Crowder, 1765), 54.

8 In reflecting on the Australian implication of Locke’s ideas of non-hierarchical government, Bruce Buchan, Empire of Political Thought: Indigenous Australians and the Language of Colonial Government (London: Pickering & Chatto, 2008), 22–4, argues that rather than being inclusive of non-hierarchical systems of government, Locke ‘gave voice to … an influential view of indigenous life within the traditions of Western political thought by historicizing Indigenous differences as “primitive”’. Buchan is making a similar interpretation to Frost, that Locke enabled eighteenth-century writers to disregard different forms of government.

9 John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 2004), 335.

10 Thomas Hobbes, ‘Leviathan’, in Thomas Hobbes, Leviathan, ed. Crawford B. Macpherson (London: Penguin, 1985 [1651]), 301.

11 Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Cambridge, MA: Harvard University Press, 2007), 62; Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, MA: Harvard University Press, 2007), 36; Paul Keal, European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society (Cambridge: Cambridge University Press, 2003), 5–6; Andrew Fitzmaurice, Sovereignty, Property and Empire 1500–2000 (Cambridge: Cambridge University Press, 2014).

12 Locke, 295.

13 Ibid.

14 For example see: Fitzmaurice, ‘The Genealogy of Terra Nullius’; Banner, How the Indians Lost Their Land, 16, 36; Keal.

15 Grotius, The Rights of War and Peace, book 2 (Indianapolis: Liberty Fund, 2005 [1625]), 241–2, emphasis added.

16 William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 (J.B. Lippincott, 1753) (http://oll.libertyfund.org/title/2140, 2011), 307.

17 Emer de Vattel, Law of Nations (Indianapolis: Liberty Fund, 2008 [1779]), 130.

18 Fitzmaurice, Sovereignty, Property and Empire 1500–2000, 143.

19 Banner, Possessing the Pacific, 17.

20 Vattel, 129.

21 Wissell, ‘Memoir on Prince of Wales Island’, IOR G/34/1, 553.

22 Thomas Forrest, 2 July 1784 letter from Capt. Forrest, IOR G/34/1; Thomas Forrest, Report on Pulo Penang, c.1784, Warren Hastings Papers, MS29210, IOR, British Library; George Forrest, ‘Remarks on the Islands of the Coast of Mergui and the Strait between them and the main land’, 178?, IOR G/34/1, 168–95; George Forrest, ‘Of the Islands called Andamans by Thomas Forrest’, 1783, MS29210.

23 Forrest, ‘Remarks’, 170.

24 Ibid.

25 Ibid.

26 Ibid.

27 Forrest, ‘Of the Islands called Andamans’.

28 Ibid.

29 Ibid.

30 Ibid. Caffres referred to dark-skinned woolly haired people in Southeast Asia. See Gareth Knapman, Race and British Colonialism in South-East Asia, 1770–1870 (Routledge: New York, 2017), 103–4.

31 ‘Report From Major Kyd relative to the Settlements at Prince of Wales Island and the Andamans’, IOR G34/1, 394, emphasis added.

32 K.C. Tregonning, The British in Malaya: The First Forty Years, 1786–1826 (Tucson: University of Arizona Press, 1965), 37.

33 IOR G34/2, 59.

34 IOR G/34/1, 2.

35 IOR G/34/1, 56.

36 IOR G/34/2, 65

37 ‘Penang’, Calcutta Gazette; or, Oriental Advertiser 6 (1 February 1787).

38 IOR G/34/2, 417.

39 Forrest, ‘Report on Pulo Penang’, 244.

40 Ibid.

41 Ibid.

42 IOR G/34/2, 52.

43 Alfred P. Rubin, The International Personality of the Malay Peninsula (Kuala Lumpur: Penerbit Universiti Malaya, 1974), 127–8.

44 Ibid., 128.

45 IOR G/34/2, 59.

46 Rubin, 132.

47 IOR G/34/2, 59.

48 William Maxwell and William Gibson, eds, Treaties and Engagements Affecting the Malay States and Borneo (London: Truscott, 1924), 95.

49 Ibid., 83; Rubin, 136.

50 Rubin, 138

51 Tregonning, 83; Rubin, 139.

52 IOR G/34/1, 141–3.

53 Ibid.

54 Ibid.

55 'Some Accounts of Quedah and the adjacent Countries', IOR G34/1, 368.

56 A. C. Banerjee, English Law in India (New Delhi: Abhinav Publishers, 1984), 108; Robert Travers, Ideology and Empire in Eighteenth Century India: The British in Bengal (Cambridge: Cambridge University Press, 2007), 192–4; An Act for the better Regulation and Management of the Affairs of the East India Company and of the British Possessions in India, and for establishing a Court of Judicature for the more speedy and effectual Trial of Persons accused of Offences committed in the East Indies, 24 Geo. 3 Sess. 2 c. 25.

57 Banerjee, 108, 226–7.

58 Ibid., 108

59 Lauren Benton, ‘Historical Perspectives on Legal Pluralism’, Hague Journal on the Rule of Law 3 no. 1 (2011): 57–69, 61.

60 ‘Appendix no 68, Letter from the Court of Directors to the Governor General in Council at Prince of Wales Island, dated 18th April 1805’, in Second report from the Select Committee on the Affairs of the East India Company (London: C19th House of Commons Sessional Papers, 1810), 347 (emphasis added).

61 See Knapman, ‘Settler Colonialism and Usurping Malay Sovereignty in Singapore’.

62 ‘Plan for a Charter proposed as advisable for the administration of Justice in Prince of Wales Island, for the East India Company to apply for by petition, 28 November 1806’, IOR G/34/1, 70 (emphasis added).

63 Carl Trocki, Prince of Pirates (Singapore: Singapore University Press, 2007), xv.

64 Knapman, ‘Settler Colonialism and Usurping Malay Sovereignty in Singapore’, 9.

65 John Crawfurd, Journal of an Embassy from the Governor-General of India to the Courts of Siam and Cochin China, vol. 2 (London: Henry Colburne and Richard Bentley, 1830), 379.

66 Thomas Wallace, 1st Bn., Select Committee on State of Affairs of East India Company (House of Commons Papers, No. 644: 1830), 308; T.J. Newbold, Political and Statistical Account of the British Settlements in the Straits of Malacca viz Pinang, Malacca, and Singapore, vol. 1 (London: John Murray, 1839), 79.

67 John Crawfurd, Descriptive Dictionary of the Indian Islands and Adjacent Countries (Kuala Lumpur and Singapore: Oxford University Press, 1971), 402.

68 Knapman, ‘Settler Colonialism and Usurping Malay Sovereignty in Singapore’.

69 John Crawfurd, History of the Indian Archipelago, vol. 3 (London: Frank Cass, 1967 [1820]), 62–3.

70 Scott; A.C. Castles, ‘The Reception and Status of English Law in Australia’, Adelaide Law Review 2, no. 1 (1963); Frost; Henry Reynolds, The Law of the Land (Melbourne: Penguin, 1992).

71 Castles, 2.

72 Reynolds, The Law of the Land, 12.

73 Buchan, 17.

74 Ibid., 17–18.

75 Ibid., 51; see also Frost, 519–20; and Maria Nugent, Captain Cook Was Here (Cambridge: Cambridge University Press, 2009), on importance of trade.

76 Buchan, 50.

77 Ibid., 51.

78 Frost, 519–20; Buchan, 33–52.

79 Frost, 515.

80 Banner, Possessing the Pacific, 19.

81 Fitzmaurice, Sovereignty, Property and Empire 1500–2000, 24–6.

82 Reynolds, The Law of the Land; Henry Reynolds, Truth-Telling: History, Sovereignty and the Uluru Statement (Sydney: NewSouth Publishing, 2021); Merete Borch, ‘Rethinking the Origins of Terra Nullius’, Australian Historical Studies 32, no. 17 (2001): 222–39, 238; Keal.

83 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010), 180–1; Bain Attwood, Empire and the Making of Native Title: Sovereignty, Property and Indigenous People (Cambridge: Cambridge University Press, 2020).

84 Attwood, 18–20.

85 Lisa Ford and David Andrew Roberts, ‘Settlement and Dispossession’, in The Cambridge Legal History of Australia, eds Peter Cane, Lisa Ford and Mark McMillan (Cambridge: Cambridge University Press, 2022), 305.

86 Ibid., 326. There is now a body of scholarship (notably, Heather Douglas and Mark Finnane, Indigenous Crime and Settler Law: White Sovereignty after Empire (Basingstoke: Palgrave Macmillan, 2012), but also Ford, Settler Sovereignty, and Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State and Nation (Sydney: Allen & Unwin, 1996)) that demonstrates that after 1788 (and beyond the scope of this article) the British had to confront many difficulties of law and administration when they sought to govern as if there was no Indigenous sovereign.

87 Attwood, 27.

88 Ibid., 33.

89 History of New Holland (London: John Stockdale, 1787).

90 Ibid., 82–3.

91 Ibid., 82.

92 Ibid.

93 Nugent, 103–4.

94 History of New Holland, 90.

95 Ibid., 98.

96 Joseph Banks, Journal of the Right Hon. Sir Joseph Banks, ed. Joseph D. Hooker (London: Macmillan and Co., 1896), 307.

97 ‘Committee on Returns of Felons, 1 April 1779’, Journals of the House of Commons (London: House of Commons, 1779), 311.

98 James Matra, ‘James Matra’s Proposal, 23 August 1783’, in Historical Records of New South Wales, vol. I, pt 2: Phillip 1783–1789, ed. F. M Bladen (Sydney: Charles Potter, Government Printer, 1892), 1.

99 Ibid.

100 IOR G/35/30, 374.