‘A Mere Mockery’: the Trial and Tribulations of Jackey
As the steamer William IV left Newcastle en route for Sydney in April 1834, an Aboriginal man known by the English name ‘Jackey’ was chained naked on the deck. He felt his situation ‘most bitterly’ and was crying as the boat departed from the coastal port.1 Jackey was being conveyed to Sydney to stand trial for the murder of a convict, John Flynn, who died of spear wounds received at the William’s River after he and a posse of armed stockmen rode into an Aboriginal camp at dawn allegedly to speak peacefully with the occupants. The sea journey down the coast to Sydney formed the last leg in an arduous journey that began at the site of the alleged murder near the settlement of Maitland almost a month earlier.
Jackey arrived in Sydney on 1 May 1834 in a pitiful state. According to the
Australian, the unfortunate man was ‘entirely naked, and the irons on his legs had
lacerated them in a dreadful manner’.2 The less conservative Sydney Monitor
observed that Jackey’s condition spoke ‘badly on behalf of the Police and constables who had charge of the man. It appears they valued the black’s flesh at a less price than a piece of old rag, or a bit of old sugee bag’.3 By the time news of his arrival was printed in local newspapers, Jackey was lodged in Sydney Gaol. Three months’ later, he appeared before Chief Justice Forbes in the Supreme Court of New South Wales to answer a charge he barely comprehended. The resultant case R v Jackey 1834 is a significant landmark in legal history as it provides the first instance of an
1
The Australian, 6 May 1834, p. 2.
2
ibid.; Sydney Monitor,7 May 1834, p. 3.
3
Aboriginal person being sentenced to transportation.4 Another compelling facet of this case is the way in which colonists viewed Jackey and his tribe as being camped on the fringes of Archibald Mossman’s station, rather than as inhabiting their ow country. Such thinking, it will be argued, is symptomatic of a colonial discourse of Aboriginality that was deployed to legitimate the expropriation of Aboriginal lands and to justify the criminalisation of those who resisted being d
n
ispossessed.
This chapter explores in greater depth the competition over land use practices introduced in the preceding chapter as a contributing factor to the transportation of Aboriginal men. It focuses on three distinct phases of white settlement in the Hunter Valley: the Newcastle penal station; the Australian Agricultural Company; and land grants to free settlers and emancipated convicts. A particular emphasis is placed on colonial discourses of Aboriginality embedded in these structures, and some attention is given to elucidating the complex nature of everyday relations between local
Aborigines and the newcomers. As a corollary of white expansion into the Hunter Valley, Aboriginal social status and health declined considerably along with the birth rate. The British drew on the colonial dichotomy of ‘civilised/savage’ to explain this phenomenon, and used the same discourse to naturalise the disadvantages faced by Aboriginal defendants in the courtrooms. By the 1830s, the colony judiciary had determined that it had the jurisdiction to sentence people with no prior criminal record and locally born people to transportation. The pertinent case law is discussed later in this chapter, as are several cases that illustrate the strategies adopted by the
4
R v Jackey 1834, Decisions of the Superior Courts of New South Wales, 1788-1899, Bruce Kercher (ed). Division of Law, Macquarie University, Sydney, accessed on 1 October 2005 at
colonial judiciary to enable Aboriginal trials to proceed. It concludes with a discussion of Jackey’s trial and its aftermath.
Near the end of the eighteenth century a boatload of convict absconders accompanied by two children were perhaps the first white intruders into Jackey’s country. Their clandestine departure from Sydney Cove was followed by a brief sojourn up the coast, probably at Port Stephens, before they sailed to Timor and were recaptured.5 As in other British colonies, unofficial agents of Empire preceded the cumbersome official machinery of state by several years. Other colonists soon followed and altercations with local Aboriginal people ensued. Early violent encounters were ascribed to white fishermen assuaging their sexual appetites with Aboriginal women. Sexual encounters between white men and Aboriginal women became a sub-text to episodes of frontier violence between settlers and Aborigines. Questions about whether any forced contact had taken place were raised whenever violent attacks were made by Aborigines on settlers as such attacks were open to being read as retribution. Sometimes white men pre-empted the question by denying that they had interfered with the native women before they were even asked.
A local history provides more insight into a nineteenth-century understanding of the ongoing conflict between the settlers and Aborigines in the Hunter Valley. Henry Huntington described an affray at Port Stephens in 1796 being caused, he
5
James Martin. Memorandums: Escape from Botany Bay, 1791: Being ‘Memorandums’ by James Martin: introduction and notes by Victor Crittenden, Mulini Press, Canberra, 1991.
claimed, through fishermen having ‘molested some members of the native’s family’.6 He constructed this incident as a seminal event that revealed the origins of the
ongoing conflict between settlers and Aborigines in the area. Following this affray it had, according to Huntington, become a practice in the Newcastle area to ‘fire upon the natives whenever they approached, and to deprive them of their women whenever the opportunity offered’.7 Huntington situated himself as a defender of Aborigines:
Persecuted and belied by the whites, they have been represented as destitute of virtues, worthless, and ferocious when, in reality, they frequently exhibit great generosity, elevation of spirit, and energy of address, which are not surpassed among the inhabitants of civilised countries.8
Despite his sympathetic portrayal of Aborigines, Huntington’s discourse was embedded within the colonial dichotomy ‘civilised/savage’ that informed Western understandings of themselves and others throughout the nineteenth century. Describing Aborigines as ‘unoffending creatures’, he naturalised their militant responses to the white intrusion through deploying savagery as an explanatory framework. ‘Unable to draw distinctions’, Huntington postulated, Aborigines ‘invariably exercised that cruelty and resentment which a savage must naturally feel for injuries received’.9 Aborigines were thus constructed as unwitting victims of their own apparent irrationality, superstitions, and emotions or passions.
In 1796, fishermen near Port Stephens discovered a large deposit of coal. News of their find spread through Sydney, inspiring others ‘with a spirit of enterprise
6
Henry Huntington. ‘History of Newcastle and the Northern District No. 4’, Newcastle Morning Herald, 17 August 1897, accessed on 30 May 2006 at
<http://www.newcastle.edu.au/service/archives/aboriginalstudies/pdf/huntington1796.pdf> 7 ibid. 8 ibid. 9 ibid.
to reach the scene’.10 The discovery of coal in the Hunter Valley had significant implications for the indigenous people of the region and for those who were set to work extracting it. It led to a settlement originally known as King’s Town being established on the site of present day Newcastle in 1804 with the help of the well- known Sydney identity, Bungaree, who acted as an interpreter for the colonists.11 King’s Town was seen as having several natural advantages that made it an ideal place to send convicts considered by the colonial administration to be the most recalcitrant. It took at least eight hours to reach the satellite settlement by sea from Sydney Cove, and the terrain separating the main settlement from King’s Town was very hilly and uncharted. The first to arrive were thirty-four Irish convicts implicated in the Castle Hill uprising. Newcastle became a favoured place with Sydney judges to ship convicts who committed further offences whilst already under sentence, that is, those who were secondarily convicted. Between 1805 and 1808, they were overseen by Dr Charles Throsby who acted as commandant at the Newcastle penal station in addition to performing in his capacity as the surgeon there. Incidentally, Captain James Wallis, the man who commanded the expeditionary party that apprehended Duall, also served as a commandant at Newcastle. His term commenced after the 1816 punitive expedition and he was awarded a salary that was considerably higher than that paid to his predecessor.12
10
Henry Huntington. ‘History of Newcastle and the Northern Districts No. 14’, Newcastle Morning Herald, 21 September 1897, accessed on 30 May 2006 at
<http://www.newcastle.edu.au/service/archives/aboriginalstudies/pdf/huntington1796b.pdf>
11
Newcastle Family History Society (NFHS). Early Newcastle: The Fettered and the Free, Newcastle Family History Society, Lambton, 2005, p. 212.
12
Convicts sent to Newcastle were put to work exploiting the region’s abundant natural resources. The burgeoning but ill-housed, under-fed, and poorly dressed convict population was kept fully occupied mining coal, harvesting timber and salt, lime burning, and engaging in public works. Timber and coal were in short supply at the Cape colony, making them a valuable export commodity for the fledgling colony in New South Wales. In return, much needed livestock was imported from the Cape where a pastoral economy had been co-opted from the indigenous Khoena inhabitants by the Dutch and inherited and developed by the British.13
Establishing the penal station at Newcastle had implications for the local economy. The convict settlement may not have been ‘a model of civilised society likely to endear itself to Aboriginal observers’, yet the influx of British convicts and their overseers provided local Aborigines with a significant new trading partner.14 David Roberts described the new settlement as ‘a principal site of cross-cultural trade that was quickly and firmly embedded in the Aboriginal economy’.15 According to Roberts, ‘while convict labourers shovelled the ancient middens into lime kilns on Stockton Beach, Aborigines traded meat and fish for blankets and clothing’.16 With only two cattle and no sheep, goats, or swine at the new settlement in mid-1805, the newcomers were heavily reliant on trade with local Aborigines for a supply of fresh meat and fish.17 The value that local Aborigines attached to the blankets and clothing offered in exchange can be deduced from their willingness to continue to fish and
13
The Duke of Portland to the Right Hon. Henry Dundas, 19 December 1798, HRNSW, Volume III, pp. 517-18.
14
David Roberts. ‘Aborigines, Commandants and Convicts: the Newcastle Penal Settlement’, Awaba, University of Newcastle, accessed on 3 June 2006 at
<http://www.newcastle.edu.au/centre/awaba/awaba/group/amrhd/awaba/history/convicts.html> 15 ibid. 16 ibid. 17 ibid.
obtain meat for the settlement. Trade may also have been influenced by an Aboriginal strategy of inclusion. By establishing alliances with some of the British, Aborigines were working to incorporate them into their own complex social structures and kinship systems.18 As well as having dietary requirements to fulfil, the British would have been motivated not to antagonise local Aborigines who, although substantially reduced in number following the smallpox epidemic of the late eighteenth century, still outnumbered them. The different societies were, on the face of it, operating as equal trading partners with both sides benefiting in various ways from the exchanges that were taking place. Despite the trading relationships that characterised these early years of cultural contact in the Hunter Valley, the commandants at the penal station deployed the figure of the Aboriginal savage, as well as actual Aborigines, in
attempts to control the convict population. An interesting parallel is evident in British strategies at the Andaman Islands where a penal station was established off the Indian coast in the middle of the nineteenth century. Satadru Sen explained that:
Actual intervention against the savage on the outskirts of the settlement was, for the most part, less than energetic … as long as the Andamanese did not pose a direct military threat to the settlement, the British could afford to leave them alone in the forest, and use them as a bogeyman of sorts to deter convicts who were contemplating escape.19
A further strategy was employed at Newcastle that involved allowing the deaths of escaped convicts at the hands of Aborigines to go unpunished. This was aimed at curbing the high desertion rate. Roberts suggested a further reason contact between
18
Henry Reynolds. The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia, Penguin, Ringwood, 1981, p. 39.
19
Satadru Sen. Disciplining Punishment: Colonialism and Convict Society in the Andaman Islands, Oxford University Press, Oxford, 2000, p. 29.
Aborigines and convicts was curtailed was to circumvent escaped convicts inciting Aborigines to commit acts against colonists.20
As well as posing an implicit threat to the convict population through their presence in the surrounding bush, Aboriginal men were encouraged to take on a policing role for the penal station. They were thus, to a limited extent, incorporated into a western model of law and order. John Thomas Bigge, the Commissioner dispatched by the British Government to New South Wales in 1817 to report on the state of the colony, observed Aborigines acting as black trackers for the Newcastle penal station:
By the extraordinary strength of sight that they possess, improved by their daily exercise of it in pursuit of kangaroos and opossums, they can trace to a great distance, with wonderful accuracy, the impressions of the human foot. Nor are they afraid of meeting the fugitive in the woods, when sent in their pursuit, without the soldiers; by their skill in throwing their long and pointed wooden darts they wound and disable them, strip them of their clothes, and bring them back as prisoners, by unknown roads and paths, to the Coal River. They are rewarded for these enterprizes by presents of maize and blankets, and notwithstanding the apprehensions of revenge from the convicts whom they bring back, they continue to live in Newcastle and its neighbourhood, but are observed to prefer the society of soldiers to that of the convicts.21
The favourable impression Bigge formed as to the utility of black trackers in retrieving convict absconders led to Aboriginal people being employed as blacktrackers for convict establishments at Bathurst, Wellington Valley, Port Macquarie, and Moreton Bay.22 The missionary Reverend Lancelot Threlkeld later told the New South Wales Supreme Court that in his opinion the practice of
20
Roberts. ‘Aborigines, Commandants and Convicts.’
21
John Bigge. Report of the Commissioner of Inquiry into the State of the Colony of New South Wales, Volume I, Ordered by the House of Commons to be printed, 1822, p. 117.
22
rewarding Aborigines with the clothing of runaway convicts they apprehended led to Aborigines drawing ‘a distinction between free settlers and what they call “croppies” – that is, prisoners’ and contributed to the relatively harsh treatment often meted out to the latter.23 ‘If they meet a free man in the bush they would not hurt him’,
explained Threlkeld, ‘but if they met a prisoner they would probably strip him’.24 Bigge did not appreciate the potential for Aborigines to draw such a distinction and to act upon it, probably because Newcastle at the time of his visit had been the sole province of Aborigines, convicts, and soldiers.
The official use of the threat and actuality of Aboriginal violence to restrict the illicit movements of the convict population, coupled with a system of rewards for those Aboriginal trackers who apprehended escaped convicts, did little to endear Aboriginal people to the Newcastle convict population. Convict attitudes towards Aborigines hardened in 1819 following a series of lashings being ordered for convicts who assaulted indigenes. The murder trial and execution in 1820 of the convict absconder John Kirby following the death of King Burrigan (also known as Jack, Chief of the Newcastle Tribe) who Kirby stabbed when an attempt was made to apprehend him strained tense relations further.25 Kirby was the only white man to hang for the death of an Aborigine prior to the sensationalised and contentious hangings of seven participants in the Myall Creek massacre almost two decades
23
R v Boatman or Jackass and Bulleye 1832, Decisions of the Superior Courts of New South Wales, 1788-1899, Bruce Kercher (ed). Division of Law, Macquarie University, Sydney,accessed on 1 June 2006 at <http://www.law.mq.edu.au/scnsw/Cases1831-
32/html/r_v_boatman_or_jackass_and_bull.html>
24
ibid.
25
‘Burrigan Stabbed by John Kirby; died’, New South Wales Colonial Secretary’s Office Correspondence, Reel 6067, pp. 135-37, 143, 150, AOT; ‘John Kirby Convicted by Court of Criminal Jurisdiction of Murder of Burrigan’, New South Wales Colonial Secretary’s Office Correspondence, Reel 6023, p. 31, AOT.
later.26 The Attorney General Saxe Bannister concluded that when Macquarie assented to hanging a white man for the murder of an Aborigine ‘the law of
jurisdiction in the Colonial Courts was well settled’.27 White men could and would be hanged for taking the lives of Aboriginal people.
On 1 November 1821, Governor Lachlan Macquarie boarded the Elizabeth Henrietta
to undertake a tour of inspection of the penal stations at Port Macquarie and
Newcastle. While in the vicinity of Newcastle, Macquarie took note of ‘a most rich and beautiful Tract of Forest Land … situated between the River and the Creek, particularly well adapted for Cultivation, and forming a Government Agricultural Establishment on a large scale’.28 By the middle of the decade, Macquarie’s vision
26
The cases R v Kilmeister (No. 1)1838 and R v Kilmeister and Others (No. 2) 1838 arose out of the event that has since become known colloquially as the Myall Creek Massacre. After eleven men from Myall Creek were acquitted on a charge of having murdered an Aboriginal man known as Daddy in the first trial, new charges were brought and a controversial second trial was held. This resulted in the seven defendants, Charles Kilmeister, James Oates, Edward Foley, John Russell, John Johnstone, William Hawkins, and James Parry, being found guilty and subsequently hanged. Public outrage at the hangings of the seven men for killing Aborigines reached such a level that the Government foreclosed on retrying the remaining four prisoners acquitted following the first trial. See R v Kilmeister (No. 1) 1838, Decisions of the Superior Courts of New South Wales, 1788- 1899, Bruce Kercher (ed). Division of Law, Macquarie University, Sydney, accessed on 1 March 2006 at <http://www.law.mq.edu.au/scnsw/Cases1838-