Introduction

In 1838 Justice William Westerbrook Burton, puisne judge of the Supreme Court of New South Wales, apparently at his own behest, drafted an Act for the Protection and Amelioration of the Aboriginal Natives of the Territory of New South Wales.² This was a compendious Act that covered a range of matters directed, as he saw it, towards the ‘amelioration’ of the situation of the Aborigines. In form the Act joins together a number of strands – the idea of ‘amelioration’ itself (drawn from legislation and policy relating to slaves); the simultaneous protection and freeing up of indigenous peoples as a labour force (here drawn in part from the Cape Colony); and the need to provide for legal protection for the indigenous peoples of British settlements, particularly in New South Wales in the face of ongoing frontier violence (most recently addressed by the 1837 Report of the House of Commons Select Committee (British settlements)).³ Never enacted, Burton’s Act predates by some considerable margin the first known ‘protectorate’ legislation in the Australian colonies.

The Draft Act is part of a collection of miscellaneous materials relating to Aborigines at Archives New South Wales, ostensibly collected by Burton (and brought to light by Kercher and Salter of the Colonial Case Law Project).⁴ The purpose of this miscellaneous collection (other than that the materials all concern Aborigines) is difficult to see from the collection itself. However, it might reasonably be hypothesised that these materials were collated by Burton for an intended work on the state of the indigenous population, a companion to his ‘State of Society and of Crime in New South Wales’ (1840) and The State of Religion and Education in New South Wales (1840).⁵ As he noted in the latter, some matters were omitted from that text as ‘the notice of them will properly belong to another part of the writer’s intended observations, viz. “On the State of the Aborigines in New South Wales”’.⁶ Why the third text was not written or, if it was, why it has not survived, or been found, remains unknown.

Burton’s Act was probably drafted in late May 1838. Its purpose, as suggested by the title, was to provide for the protection and amelioration of the Aborigines. Amelioration was a concept that traversed empire, circulating through various colonial places and shifting contexts from slavery to colonial indigenous populations.7 In each place it took on a particular character, inflected by local circumstance. This chapter examines the concepts of amelioration and protection as instantiated in one colonial legal site (Burton’s Draft Act) and in one time/place (New South Wales, at a key moment in frontier relations). In drafting his Act, Burton drew both on long-established ideas that had currency throughout empire (what Tomlins calls the ‘discursive extrastructure of ideas’ that explain and justify), as well as on detailed legal forms and provisions from other contexts (‘the more detailed instrastructure of institutions and processes’).⁸ Both extrastructure and infrastructure, therefore, were a form of legal transplant. From 1824 the idea of amelioration and protection was bound up with the newly revived office of the Protector – first of Slaves and later of Aborigines. At heart, for Burton amelioration was a matter of moral improvement, to be effected, as had been so many earlier attempts by colonial administrators to ‘improve’ the circumstances of Aborigines, through settlement and labour. In drafting his Act, arguably the first attempt to place such ideas at the heart of a comprehensive legal regime to regulate settler– Aboriginal relations, Burton transplanted forms and provisions from slave legislation in Trinidad and from the regulation of the labour of the Khoikhoi in the Cape.

The influence and importance of humanitarian lobbyists in London in working to reshape empire has been described by a number of authors.⁹ They were a node on a vast network of empire – composed of missionaries, philanthropists, colonial and metropole administrators and politicians – and were at the heart of the 1836/7 Select Committee on Aborigines. Of the Committee’s recommendations a number eventually made it into policy, fewer into law. For example, in the Australasian colonies Protectors of Aborigines were appointed, albeit ultimately with little success.¹⁰ Unsworn testimony provisions were enacted in some few jurisdictions (New Zealand and South Australia), but had to wait until later in most.¹¹ The key recommendation for New South Wales – that some ‘short and simple rules… for the regulation of the aborigines’ be passed – did not happen at that time.¹² Only Burton’s draft stands as an example of an Act that might have brought the Committee’s Report fully to life. Yet, as Burton himself made clear, he conceived of, and drafted, the Act prior to seeing the Committee’s recommendations. Rather than directly drawing on the Committee Report, both he and the Committee itself drew upon a similar range of sources (both material and discursive). For Burton, the resources he drew upon were not new; what was new was the context in which he employed them.

The first section considers the background to the drafting of the Act. The second section briefly looks to the legal status of Aboriginal Australians as ‘subjects’, a status that underpins the Act. The third section examines some of the provisions of the Act, while the last section considers the resources upon which Burton drew to construct his Act. There are some brief concluding comments.

Background: legislating amelioration and protection

Not only never implemented, Burton’s Draft Act has left surprisingly little trace. It does not seem to have been widely circulated.13 On 12 June 1838 Burton transmitted his finished Act to Governor Gipps, but, as he wrote the next year to Henry Labouchere, then Undersecretary of State for War and the Colonies:

Burton wrote to Gipps of his conviction that it was necessary to ‘adopt some more effective – and decisive course than has yet been pursued for the amelioration of their moral condition, and therein for the prevention of crimes by them, and for their personal protection’.¹⁵ Burton noted that although fifty years had passed since the British had arrived, and there had been ongoing legislation for the ‘peace, welfare and good government’ of the colony, not a single Act, imperial or local, had been passed ‘in which there is a single mention of the Aborigines, with a view to regulating or restraining the intercourse of the white inhabitants, free or Convicts, with them, or for their protection or civilisation or moral improvement’.¹⁶ In 1839 while on leave in London, he showed the Act to Labouchere, presumably in the hope that it might be found appropriate as a template for legislation by the English parliament.¹⁷ Nothing came of it.

Although frontier violence was a serious ongoing problem in the Australian colonies, this was a particularly turbulent period. In June 1838 the notorious Myall Creek (or ‘Big River’) Massacre occurred. But it was not the only massacre – of white or black – reported in the Sydney newspapers in that immediate period. The area around Ovens River (Port Phillip District) was, for example, particularly troublesome and a number of men were reported as having been killed by the ‘Ovens River Tribe’. Most notable was the death on 11 April of seven or eight (the number is unclear) of Mr Faithfull’s men at Broken River while moving sheep. It seems this may have been in retaliation for the earlier killing of several Aborigines by some members of the party.¹⁸

It appears, however, that the immediate trigger for the drafting of the Act was the case of R v Long Jack, heard early in May before Burton.¹⁹ Long Jack was indicted and found guilty of murdering his wife Mary. Unlike a number of attempted trials both before and after the drafting of the Act, this trial was allowed to proceed. Despite the problems of finding an adequate interpreter who could be sworn, Burton deter mined that Long Jack understood sufficient English for the trial to go ahead.²⁰ This was rarely the case. The year before in R v Wombarty, for example, the prisoner, accused of murdering four Europeans, had been discharged in part because of the impossibility of obtaining an appropriate interpreter.²¹ In summing up in Long Jack, Burton stated, in terms to be repeated to Gipps a few weeks later, ‘that it was lamentable, that although it is now upwards of fifty years since the Colony was first inhabited by the British, so little has been done for the amelioration of the black natives’.22 For Burton, Long Jack exemplified the dire condition to which the Aborigines had been reduced. Long Jack and his wife had gone to the town of Maitland, performed some basic labour in return for liquor, an argument had ensued, and he had murdered his wife ‘at midday in a public street at Maitland’ by ‘beating her with a waddy’.²³

Burton’s view of Aboriginal–settler relations generally was bleak. According to his letter, Burton was of the opinion that in the time since settlement the Aborigines had ‘not progressed in civilisation at all’. They had not even learned to build huts to protect themselves from the elements, liquor was the problem and a ‘system of licentious and depraved immorality was carried on between their women and dissolute white persons… their husbands frequently hiring out their wives for liquor’. In short, they got drunk, failed to protect themselves from the elements, and this, along with prostitution, was leading to the diseases that were wiping them out. Women were raped by stockmen; there was retaliation by Aboriginal men, both against the stockmen and the women; and half-caste children were often left to die. Murders, both by and against stockmen, would ‘sicken the heart’.²⁴

Given Burton’s blunt diagnosis of the situation, amelioration, broadly speaking, required strict legal regulation of settler–Aboriginal relations. Given continual failures to undertake measures over the preceding fifty years, Burton stated in Long Jack that:

The idea that some enactment might be appropriate in order to afford legal protection was in general circulation at the time in both New South Wales and the metropole. The Rev. Lawrence Threlkeld, in his 1837 Report on the Mission at Lake Macquarie, a document also in Burton’s possession, railed against the position of Aborigines before the Supreme Court. Commenting on R v Wombardy he stated that the ‘just and equitable, principle’ which declares:

More importantly, in 1837 the recommendations of the House of Commons Select Committee on Aborigines in British Settlements were handed down. A number of recommendations in the Report related directly to legal protection. The Report called, in the context of the Australian colonies, for the formation of legal regulations to protect Aborigines, in the form of ‘short and simple rules as may form a temporary and provisional code for the regulation of the Aborigines, until advancing knowledge and civilisation shall have superseded the necessity for any special laws’.²⁶ Burton had been, as he put it, ‘favoured with a sight of the Report’ by Gipps, albeit after he had drafted most of his Act. He felt, therefore, that his conviction that some regulation must be attempted had been confirmed by the ‘High Authority of that Committee’.²⁷

Subjects of Her Majesty

The underlying premise of the Draft Act was that Aborigines were ‘subjects of Her Majesty’ and that therefore some provision must be made for their legal protection. The status of Aborigines had long been a matter of uncertainty. Indeed, in the famous decision of the New South Wales Supreme Court in R v Murrell, two years earlier, while Burton determined that English law applied to the Aborigines with regards matters inter se, he did not do so on the specific basis that they were subjects of the Crown.²⁸ In fact, he deliberately avoided making that finding: subjects or aliens temporarily residing among British subjects, in either case were entitled to the protection of the law:

In cases directly after Murrell the judges did not directly address the status of the Aborigines as British subjects – but all agreed that they were entitled to the protection of the law and in turn that white settlers were entitled to protection from them. When the decision was made that Aboriginal Australians were to be considered subjects, it was made not by court determination, but by the Colonial Office. A year after Murrell, Glenelg in a despatch to Governor Bourke in response to the news of the killing of members of the Barkindji tribe on the banks of the Murray River by Major Mitchell’s party, stated, perhaps for the first time unambiguously, that Aborigines were to be considered subjects: