Distant and Disinterested: Oversight of Northern Policing as Colonial Office Policy in
the 1840s and 1850s
Libby Connors
History, University of Southern Queensland
This article looks at the evidence regarding oversight of policing in the northern districts of
New South Wales in the 1840s and 1850s. It argues that Colonial Office policy of
recognising the rights of Aboriginal people as British subjects was embraced by senior New
South Wales officials from the mid-1830s although the capacity to implement it in remote
districts was uneven. The article explores how despite being 1 000 kilometres away, Sydney
officials through regular circuit court visits, critical newspaper reports and their link in the
chain of government all the way to the Colonial Office at number 14 Downing Street, were
able to exercise a limited restraint over events on the northern frontier in the 1840s and
1850s. The official recognition of Aboriginal rights acted as an imperfect check on local
policing until the approach of self-government resulted in more overtly aggressive violence
towards Aboriginal people. It concludes that the contrast in police behaviour in the north
before and after self-government in 1856 confirms there were attempts to enact a
‘humanitarian imperialism’ in the 1830s and 1840s in New South Wales; this evidence
therefore contributes to historical debates regarding the humanitarian-evangelical
movement’s broader impact on colonial policies in this period.
‘I WAS called away on duty because the Chief Constable would not take six of my men for
fear of the Attorney General who it seems has given them a great fright.’1 So wrote a very ill
Commandant of the Native Police in a personal letter to Edward Deas Thomson in June 1853
explaining the delay in his official reports. A decade and a half after the Myall Creek trials
the reputation of John Plunkett, Attorney General for New South Wales, continued to instil
fear in policing officials and civilians on the northern frontier. Plunkett had been crown
prosecutor in the Myall Creek trials but his belief in the equality of all before the law was
marked throughout his long career as the colony’s chief law maker.
1
His repeated
Frederick Walker, Durundur to E. Deas Thomson, 14 June 1853, Colonial Secretary In Letters: 1852 4/3075
enclosure in L/no. 52/3069 State Records of New South Wales (hereafter CSIL & SRNSW).
78
disappointment as a member of the Legislative Council was the failure to have his draft bills
to allow Aboriginal evidence in New South Wales courts passed.2
However there were far more immediate actions by the Attorney General which had
disturbed the local Brisbane community including its constabulary in mid-1853. Plunkett had
been in Brisbane 17 to 20 May 1853 to prosecute cases before the Supreme Court which was
on circuit to Brisbane.
The local newspaper, unhappy about Plunkett’s reluctance to
prosecute Aboriginal accused had editorialised against the Attorney General and sneeringly
reported his ‘tone of deep feeling, [about] ... outrages which he said were perpetrated upon
the aboriginal natives by the European settlers.’3 Despite being 1 000 kilometres away,
Sydney officials through regular circuit court visits, critical newspaper reports and their link
in the chain of government all the way to the Colonial Office at number 14 Downing Street,
were able to exercise a limited restraint over events on the northern frontier in the 1840s and
1850s.
The northern districts of New South Wales including the township of Brisbane did not have a
good record when it came to Aboriginal deaths while evading policing and arrest. This
article outlines a small number of cases in the 1840s in which the authorities took action,
however inadequate, to castigate local police and insist on the protection of Aboriginal people
as British subjects. This is then contrasted with the reversal of the situation by 1855 when
2
The 1st NSW bill drafted by Plunkett in 1839 was disallowed by the British Parliament. In 1843 the House of
Commons passed an Imperial Act to allow Aboriginal evidence but it was rejected by the Legislative Council of
NSW. In 1849 Plunkett tried for a second time to have an act passed locally but failed by one vote. For
discussion of Plunkett’s professional career, see John Molony, An Architect of Freedom: John Hubert Plunkett
in New South Wales 1832-1869 (Canberra: ANUP, 1973); Tony Earls, Plunkett’s Legacy: An Irishman’s
Contribution to the Rule of Law in New South Wales (North Melbourne: Australian Scholarly Publishing, 2009):
esp 87-112; the debate on Plunkett’s 1849 draft bill is also discussed in Libby Connors, “Witness to frontier
violence: Aboriginal boy before the Supreme Court,” Australian Historical Studies 42 no.2 (2011): 230-43.
3
Moreton Bay Courier, 28 May 1853, 2.
79
Sydney officials accepted rural claims that it was necessary to fire at Aboriginal people
resisting arrest. This marked a turning point which set the direction of Queensland’s horrific
frontier policing for the next fifty years and is startling given the strength of evangelical
humanitarian sentiment only a few years earlier. This change in policy direction resulted
directly from the relinquishing of supervision by the Colonial Office in Downing Street.
The evangelical movement of the 1830s centred on the British Member of Parliament for
Weymouth, Thomas Fowell Buxton, whose idealism was reinforced by his extended family
network, supporters from the older anti-slavery campaign, colonial informants and liberal
humanitarians.4 Lester describes their vision as humanitarian imperialism and the inclusion
of both Baron Glenelg, secretary of state for the colonies (1835-39) and Sir James Stephen,
permanent head of the Colonial Office (1836-1847) as part of this network enabled them to
implement policies to reform relations between British colonists and indigenous peoples.
One of the movement’s great successes was the Report of the House of Commons Select
Committee on Aborigines (British Settlements) whose final report in 1837 criticised the
appalling record of dispossession and violence towards Indigenous peoples throughout the
empire.
The effects of this reforming zeal in New South Wales were the appointment of protectors,
government funding of missions and schools and creation of land reserves. The report of the
Select Committee on Aborigines had paid particular attention to the injustice that resulted
from the imposition of British law in colonial settings and recommended the ‘utmost
4
On the role of Buxton’s family see Zoe Laidlaw, “’Aunt Anna’s Report’: The Buxton Women and the
Aborigines Select Committee, 1835-37,” Journal of Imperial and Commonwealth History 32 no.2 (May 2004):
1-28; on the network of colonial informants see Alan Lester, “Humanitarians and White Settlers in the
Nineteenth Century” in Missions and Empire, ed. Norman Etherington, (Oxford: Oxford University Press,
2005): 64-85.
80
indulgence’ for Aborigines accused of committing crimes. It also argued that protection of
Aboriginal rights should ultimately reside with Executive Government emphasising the selfinterest of settlers which made fair administration at local levels impossible.5 This was the
context for the landmark prosecution of the Myall Creek trials of 1838 but other reforms
resulting from the Report’s recommendations were short-lived. Budgetary pressures soon
resulted in Governor Gipps ceasing all financial support to missions by the end of 18426 and
the duties of Aboriginal protectors were added to the roles of commissioners of crown lands
after the Legislative Council of New South Wales voted to abolish the protectorate system in
1849.7
Australian historians have thus been generally pessimistic about any wider policy
commitments to a ‘humane imperialism’ when it came to New South Wales.
Some
Australian historians have argued that the influence and intentions of the evangelical
movement with respect to colonial office policy towards Indigenous peoples in the 1830s and
1840s have been exaggerated. They have particularly sought to rebut Henry Reynolds’s work
on Colonial Office views on Aboriginal land ownership in Australia and New Zealand in the
period 1835-48. Jonathan Fulcher argues that Downing Street instructions must be read in
broader context than Reynolds’ focus;8 while David Ritter, Damen Ward and Bain Attwood
criticise Reynolds for too legalistic and hence simplistic an account of the denial of
Aboriginal rights.9
Aboriginal rights to land were, however, only one part of the anti-
5
Report from the Select Committee on Aborigines (British Settlements), Parliamentary Papers, (1837) 425 VII:
77-80.
6
Sir George Gipps to Lord Stanley, 21 March 1844, Historical Records of Australia, Series 1 XXIII: 484.
7
C.D. Rowley, The Destruction of Aboriginal Society, (Harmondsworth: Penguin, 1972): 62.
8
Henry Reynolds, The Law of the Land (Camberwell Vic.: Penguin, 2003, [3rd ed]). Jonathan Fulcher, “Wik
Judgment, Pastoral Leases and Colonial Office Policy and Intention in NSW in the 1840s,” Australian Journal
of Legal History 3 no.33 (1998): 36-39.
9
David Ritter, “The ‘Rejection of Terra Nullius’ in Mabo: A Critical Analysis,” Sydney Law Review 18 (1996):
29-31; Damen Ward, “A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in
81
slavery/evangelical campaign and historical accounts have perhaps been too quick too
presume that all aspects of humanitarian policy were inconsequential in effect. The greatest
stumbling block to carrying out the Reports’s recommendations with respect to the criminal
law was the repeated disallowing of Aboriginal evidence before the courts which was
effectively blocked by New South Wales colonists until 1876.10 There were nonetheless
attempts to protect Aboriginal people from the horrors of frontier violence which included
concern about the brutality of colonial policing.
This article gives some examples of
attempts to shape frontier policing in the north as an expression of this policy direction.
While it does not provide any clarification of Downing Street’s position on native title, it
does provide a broader context of both local and London views on Aboriginal people’s rights
in this same period. It then gives examples of the change in policy upon self-government
which stands in stark contrast to this earlier period.
The Colonial Office was well aware of the difficulties of regulating distant frontiers. It had
three administrative tools to try to control the violence in the north. By Governor Gipps’s
time all unexplained Aboriginal deaths and all Aboriginal deaths resulting from interracial
violence were required to be investigated by coronial inquest with the deposition papers
forwarded to the attorney general. Following Governor FitzRoy’s decision to re-constitute
Australasia,” History Compass 1 no.1 (2003) online. http://onlinelibrary.wiley.com/doi/10.1111/14780542.049/full ; Bain Attwood, “The Law of the Land or the Law of the Land?: History, Law and Narrative in a
Settler Society,” History Compass 2 no.1 (2004) online. http://onlinelibrary.wiley.com/doi/10.1111/14780542.00082/full.
10
This issue has been covered by many historians; for a useful overview see Russell Smandych, “Contemplating
the Testimony of ‘Others’: James Stephen, the Colonial Office, and the Fate of Australian Aboriginal Evidence
Acts, circa 1839-1849,” Legal History 10 (2006): 97-143; R.H.W. Reece, Aborigines and Colonists: Aborigines
and Colonial Society in New South Wales in the 1830s and 1840s (Sydney: SUP, 1974): 179-182; Nancy
Wright, “The Problems of Aboriginal Evidence in early colonial New South Wales” in Law, History,
Colonialism: The Reach of Empire, ed. D. Kirkby and C. Coleborne (Manchester: MUP, 2001): 140-155. The
recognition of Aboriginal evidence was not enough to overcome the immense disadvantage that Aboriginal
people faced in colonial courts: South Australia passed an Ordinance allowing Aboriginal evidence in 1844 but
Alan Pope covers the structural disadvantage that remained in One Law for All? Aboriginal people and criminal
law in early South Australia (Canberra: Aboriginal Studies Press, 2011).
82
the Native Police for the northern districts, there were mandatory reports from the
commandant regularly conveying the state of relations on the frontier after 1848.11 Lastly
there were the annual State of the Aborigines Reports compiled by local commissioners of
crown lands and forwarded through the governor’s office to Downing Street. The first two
measures were easily manipulated by local police but Sydney officials nonetheless found
ways to use them to uphold the law.
As part of his general instructions in 1839, Major Owen Gorman, the last commandant who
oversaw the winding down of the old Moreton Bay penal settlement and the arrival of the
first pastoralists in the hinterland, was ordered to hold an inquiry into all cases of violent
Aboriginal deaths and to forward copies of the proceedings to the attorney general since, as
he was reminded, they are ‘subjects of Her Majesty’s’.12 This process was followed by
Gorman when he investigated a squatter attack on an Indigenous camp at Grantham in
1841.13 The wording of the commandant’s orders is not surprising – it is close to the
instructions issued to all Commissioners of Crown Lands on 30 September 1841 which
explained that the ‘General object of the establishment of the Police is to keep order amongst
all parties, but in an especial manner, it has been established for the protection of the
Aborigines, and to stop the atrocities which have been committed on both sides ...the Black
Inhabitants of this Country are no less the Subjects of Her Majesty than the White, that all are
equally amenable to the laws and all equally entitled to their protection.’14
11
Libby Connors, “The birth of the prison and the death of convictism: the operation of the law in preseparation Queensland 1839 to 1859,” (PhD, Univ of Qld, 1990): 213-217. A Native Police Force operated in
the Port Phillip district from 1838. Marie Fels, Good Men and True: The Aboriginal Police of the Port Phillip
District, (Melbourne: MUP, 1988).
12
Colonial Secretary’s Office to Owen Gorman, 8 July 1939, L/no. 39/32 in CS: Moreton Bay Penal
Establishment, 1832-42, 4/3795 SRNSW .
13
See Book of Trials held at Moreton Bay, Queensland State Archives Item ID869682, Register – court cases;
Connors, The birth of the prison, 1990, pp. 187-188.
14
Circulars re Aboriginal deaths in CSIL: 1846 Commissioners of Crown Lands, 4/2720.1 SRNSW.
83
These instructions went on to repeat details of a notice first published in the Government
Gazette of 18 May 1836 (and reproduced several times as a circular thereafter) on the need
for an inquest or enquiry on every Aboriginal death resulting from a collision with whites.
This notice had originated during Governor Bourke’s term but it was still being enforced by
Governor FitzRoy in the late 1840s.
So in 1842, when Commissioner Simpson,
Commissioner of Crown Lands for Moreton Bay, reported an Aboriginal attack and
pastoralist retaliation on Coutts station on Lockyer Creek without enclosing any coronial
inquiry, the governor ordered the circular again be addressed to all magistrates and land
commissioners so that ‘a rigid adherence may be paid to the Regulation in question.’15
Although very few of the inquests from the 1840s period have survived, official reports
frequently make mention that inquests were carried out.16 Police or civilian actions that did
not result in direct or immediate deaths were less easily interrogated by Sydney officials.
One of the most brutal police actions in the north took place on a summer night in Brisbane
following the mass Aboriginal attack on Andrew Gregor’s station in October 1846. Two of
the town constables, assisted by a number of Stradbroke Islanders and their friends and
supporters, hid in the bush near the Aboriginal camp at York’s Hollow (now bifurcated by the
Inner City Bypass) in order to capture one of the alleged Gregor attackers. Several shots
were fired, an Aboriginal dog was killed, a constable claimed he succeeded in shooting the
fleeing culprit in the back, and 300 to 400 Aboriginal people who had gathered at the hollow
for a regional meeting were awakened and fled in panic. Reports subsequently floated
around the town that as well as two Aboriginal men, the local elder’s daughter had been shot
15
Commissioner of Crown Lands, Moreton Bay, 12 Sept 1842 in CSIL: 1846 Commissioners of Crown Lands,
4/2720.1 SRNSW. Notices had been published in the Government Gazette 18 May 1836, 22 May 1839, 12
August 1840 and a circular sent 7 November 1846.
16
See newspaper reports of the death of Millbong Jemmy and of Horse Jemmy, Moreton Bay Courier, 7
November & 12 December 1846.
84
during the melee but since she refused to attend the Brisbane hospital and no bodies of any
men were found when the constables visited the camp the next day, this policing action
produced neither victims nor arrestees. It took a campaign of letter writing to Sydney
newspapers by an anonymous Brisbane resident to force the colonial secretary to call a public
inquiry into the incident.17
The next night time raid by the town constabulary in May 1848 was every bit as brutal as that
of December 1846 but Sydney officials were able to make a stronger statement about the
conduct of the Brisbane police because Captain Wickham applied for the payment of a
government reward to the Aborigines and former convict who assisted. Again the police
action was based on information and support from the traditional enemies of the Aboriginal
man they sought. The informants told the police magistrate that Oumulli, the brother of a
much-feared Aboriginal leader, was encamped at Spring Hollow and had been involved in the
attack on Gregor’s station.
Although Police Magistrate Wickham had received this
information on Saturday morning, the acting chief constable waited until evening to send four
constables, the ex-convict and the group of informants to make the arrest. Sneaking upon the
unsuspecting Oumulli, a former convict placed a noose over Oumulli’s head while the
constables grabbed and handcuffed his feet. Oumulli’s cries alerted Aboriginal people
camped nearby who attacked the police party wounding one of the constables. By the time
the police party carried Oumulli to the lock up a mile away in the township he had strangled
17
The anonymous complainant was William Duncan, newly appointed customs official; see Inquiry into affrays
with Aborigines at York’s Hollow l/no. 47/2542 in CSIL no.10 Archival Estrays 81 Dixon Library; William
Augustine Duncan, Autobiography, Mitchell Library, 67-70; Sydney Morning Herald, 28 December 1846;
Moreton Bay Courier, 13 February 1847.
85
to death. True to the required form an inquest held on the Monday morning concluded that
Oumulli had died ‘resisting lawful apprehension ... on a charge of murder.’18
Had Brisbane officials let the matter rest, there would have no further scrutiny. However, in
November 1846 the government had offered a £25 reward or a conditional pardon to anyone
‘who may secure and bring to justice the Murderer or Murderers’ involved in the Gregor
station attack.19 The forms of law having been duly followed, Wickham promptly applied for
it on behalf of those involved in Oumulli’s capture.20
This was the fourth death of an Aboriginal man supposedly evading capture in Brisbane in
less than 20 months and Attorney General Plunkett passed a critical eye over the request. For
the most part the response was typical of Plunkett, incisively exploring the legal details and
argument. The only hint of his own feelings on the matter was his description of the carriage
of Oumulli’s body to the watch house: ‘a rope was put about his neck and arm, and he was
dragged by that rope a considerable distance; and until he reached the Watch House, the
Constables did not perceive that he was actually dead from strangulation.’
[Plunkett’s
emphasis.] The only clear legal deficiency however was that Oumulli had not been named as
one of the accused at the original Gregor-Shannon inquest; the accusation that Oumulli was
implicated in the attack on Gregor’s station came only from an unsworn Aboriginal witness at
the coronial inquest held on Oumulli’s body. Plunkett had legitimate grounds for denying the
payment of the reward and took the opportunity to add that not only had the constables not
taken proper care during the arrest but ‘they cannot be regarded as entirely guiltless of having
18
Moreton Bay Courier, 3 June 1848, p. 2. The Aboriginal view of these events is briefly discussed in Libby
Connors, “Traditional Law and Indigenous Resistance at Moreton Bay 1842-1855, Part II,” ANZLH E-Journal,
Refereed Paper 11 http://www.anzlhsejournal.auckland.ac.nz/pdfs_2006/Paper_11_Connors.pdf (2006): 4-5.
19
Government Gazette, 16 November 1846; copy enclosed in l/no. 54/10741 in CSIL: 1854 4/3256 SRNSW.
20
Police Office Brisbane 30 May 1848 l/no. 48/7004 enclosed in l/no. 54/10741 in CSIL: 1854 4/3256 SRNSW.
86
unnecessarily caused his death.’ Governor FitzRoy took the opportunity to add his agreement
with Plunkett’s findings and ordered the full response to be forwarded to the police
magistrate in Brisbane.21
By the end of the 1840s, four Aboriginal deaths during capture had merely met with an
official refusal to pay a government reward but the inaugural sitting of the supreme court on
circuit to Brisbane gave the Attorney General the opportunity to make a very public
condemnation of violent policing of the Aboriginal community.
It says much about the colonial city as a frontier setting22 that late one night in November
1849 the residents of Brisbane believed they were about to come under mass attack from the
traditional owners. When word reached the chief constable he ordered one of his men to go
straight to Ensign Cameron in command of the local detachment of the 11th Regiment who
immediately marched his forces to the Aboriginal camp on the northern edge of the town.
Once again the York’s Hollow camp of the Turrbal was to ring out with gunfire in the middle
of the night. When the troops were 400 yards [360 metres] from the camp they were ordered
to load and divided by Cameron into two flanks to surround the unsuspecting, sleeping
Turrbal. They soon woke in alarm to find British redcoats lined up in military formation with
muskets pointed at them. Although no order was given some of the soldiers opened fire.23
21
Attorney General’s Office, 12 July 1848, l/no. 48/8074 enclosed in l/no. 54/10741 CSIL: 1854 4/3256
SRNSW.
22
On critical geography’s insights into cities and colonisation see Penelope Edmonds, “Unpacking Settler
Colonialism’s Urban Strategies: Indigenous Peoples in Victoria, British Columbia, and the Transition to a
Settler-Colonial City,” Urban History Review 39 no.2 (2010): 4-20; Cole Harris, Making Native Space:
Colonialism, Resistance and Reserves in British Columbia (Vancouver: UBC Press, 2002); Tracey Banivanua
Mar and Penelope Edmonds, eds, Making Settler-Colonial Space: Perspectives on race, place and identity
(London: Palgrave UK, 2010).
23
Moreton Bay Courier, 8 December 1849, 2-3.
87
Three of the troops were subsequently charged with shooting ‘at an aboriginal native with
intent to do him some grievous bodily harm’ at the first assizes in May 1850.24
It was a difficult case for the Attorney General and for the presiding Judge. Adding to the
already high prestige of the British army was the respect of the local white community for the
prompt reaction of their small garrison however ill-founded their rush to beat to arms had
been late that night. Judge Therry opined that it should have been dealt internally by courts
martial but Plunkett took the opportunity to assert his right to prosecute the case, to refute the
notion that there had been any provocation and to stress again the equality of Aboriginal
people before the law. This last point from his address to the court deserves to be quoted at
length.
A black man’s camp is as much his castle as a white man’s house and if he found it
invaded at night by an armed and hostile force, he would be justified in throwing a
boomerang ... He would have been highly culpable if he had neglected to institute this
prosecution. If offences like these could be committed upon the blacks, with
impunity, it must be conceded that an armed military force might be called out to any
place where large numbers of white people were assembled: - to the race course for
instance – into one of the tents, where numbers of people might be assembled,
drinking, and perhaps intoxicated, and that they might fire upon those people. Who
was there present who would not shudder – the hair of whose head would not stand on
end at such a monstrous proposition? When he had placed the evidence before the
jury he should have done his duty, and no doubt the jury would do theirs.25
The jury found only one of the men guilty and that was of common assault; additionally they
made a recommendation for mercy; Therry obliged by sentencing him to six months
imprisonment in Sydney.26
It was nonetheless an unequivocal message about the
24
R v Richard Bambrick, William Kearns & James Tredenick, in Supreme Court, Criminal Jurisdiction: Clerk
of the Peace, Brisbane 1850, 9/6359 SRNSW.
25
Moreton Bay Courier, 20 May 1850, 1.
26
Ibid., 2.
88
unacceptable level of police violence being directed at the local Aboriginal community which
was reinforced when the detachment was ordered to be withdrawn from Brisbane in June.
The involvement of the military in these events led to further official reflection and reports.
Major-General Wynyard, commander of the British Regiments in New South Wales,
commented on the Brisbane events in his six monthly confidential report to British
headquarters. He placed the blame on the local magistrate for failing in judgment as to
whether the military should have been called out in the first place and then failing to
accompany them to the scene. ‘The civil authority having taken up the matter, I have not
deemed it necessary to institute further proceedings but intend to make it a subject for
animadversion when [Cameron] rejoins his Head Quarters and at the same time instruct the
young officers of the Regiment how they should act under similar circumstances.’27
Nonetheless young Cameron perhaps concluded these events had not helped his career
prospects for within the year he transferred to another regiment.28 By 1850 military and
civilian officials accepted that Aboriginal people had rights before the law and due process
must be followed.
The first commandant of the Native Police – the force operating in the northern regions from
1848 onwards – imbibed this professional policing approach from the start. Or rather, like
the police magistrates and crown lands commissioners, he absorbed the rhetoric and adhered
to the forms of law; settler accounts indicate that excessive violence by the force on the
27
Major General Wynyard, 13 June 1850, Inspection Returns and Confidential reports 1st Period 1850: General
Observations, WO 27/399 Public Records Office [hereafter PRO].
28
On recall of the detachment he was posted as guard to Cockatoo Island which was probably a demotion. By
1852 he was no longer listed in the Inspection Returns. Major General Wynyard, 19 June 1851, Inspection
Returns and Confidential reports, 1st-25th Regiments, 1st Period 1851,WO 27/409 PRO; Major General
Wynyard, 1 July 1852, Inspection Returns and Confidential reports, 11th Regiment, 1st Period 1852,WO 27/419
PRO. Hart’s Army List records George J. Arnold Cameron appointed lieutenant 11 April 1851 in the 10th
Regiment of Foot and serving at Wuzeerabad in 1852. Hart’s Army List (London: John Murray, 1852):161.
89
Macintyre in the years 1848-49 went beyond legal bounds.29 In all official correspondence
however Walker was at pains to assert that his force operated on the same principles of
policing as for Europeans.
In 1852 Walker wrote a circular for each of his sergeants leading remote detachments
outlining their policing duties and emphasising that upon receipt of a warrant they were to
seek to make arrests. Walker acknowledged that they also had a duty to make arrests without
warrant but only if they could prove that an individual Aborigine had committed a felony and
could be sure of their identity. The sergeant’s powers did not extend to dispersing ‘an
illegally assembled body of men’; such actions required the reading of the Riot Act and the
presence of a magistrate.30
Similarly, violent collisions resulting in Aboriginal deaths
required an inquest. Since white officers, appointed as sub-lieutenants in the force’s early
years, were all sworn as justices of the peace31 they were able to conduct their own coronial
inquiries. Thus the main restraint on the detachments was the risk of censure from higher
officials as the sub-lieutenants’ reports were sent to Walker as Commandant who in turn
reported to the colonial secretary.
The force’s insistence on legal process led to dissatisfaction from landholders who expected
immediate and harsh enforcement. The pro-squatter newspaper, the Moreton Bay Free Press,
satirised the unrealistic complaints from pastoralists about Native Police operations.
29
See pastoralist John Watt’s comments cited in L.E. Skinner, Police of the Pastoral Frontier: Native Police
1849-1859 (St Lucia: UQP, 1975): 31; also Mark Copeland, One hour more daylight: a historical overview of
Aboriginal dispossession in southern and southwest Queensland (Toowoomba: Social Justice Commission,
2006).
30
Commandant Native Police to the Colonial Secretary 27 July 1853 (enclosing a circular to the Subalterns of
the Force relative to the management of it since May 1852) Letter no. 54/6984 in CS Special Bundles. Native
Police: Moreton Bay, 1855-1858 4/719.2, SRNSW.
31
List of Gentlemen holding the Commission of the Peace, 1854 in Special Bundles: Returns 4/7230 SRNSW.
90
Now, sir, I will just show you ... how the police dont do their duty at all. Whin a
warrent for a blackfellow is put into their hands, they wont catch him. They say that
they cant find him ... they say that there is no proper description of the blacks given,
just as if a blackfellow wore a coat and trowsers like a Christian, and you could tell
what they wire. What other description of the man would they want than that his
[name] is Paddy or Jackey, or Charley, or whatever the name may be. Whenever they
get the man’s name they should be off to the camp of his frinds and enquire for him,
and grab him at once without any bother about it ... There is now a lot of warrents in
the hands of the police for blacks who have committed depredations, but they wont
catch any of them. Isn’t is a shame, Mr Iditor, a burning shame?32
Walker complained of these views in a report to the colonial secretary in 1852:
Two settlers stated that the Government would not allow the squatters to shoot
Blacks, but have sent up the Native Police to do so ... many settlers have satisfied me
that such were their views ... They still fancy that a system of warfare ought to be
authorized by Government, and do not try to produce evidence upon which the Police
can legally act, and in some cases have prevented the Officers from obtaining such
evidence ... During the four years in which I have held command of this Force, it has
never acted unless ... warrants had been issued, or affidavits, clearly pointing out the
offenders ... The only object [an officer of the Native Police] must have in view is by
endeavouring to put the law into force against offenders, to intimidate others from
committing crime.33
The wide ambit of police powers to arrest for felony meant that there was no meaningful
check on police violence as long as police could produce a warrant and collisions were
followed by reporting; nonetheless officers claimed to follow the forms of police arrest
process even in frontier confrontations during Walker’s term as commandant which was
terminated in January 1855.34
There was one further check, the Annual State of the Aborigines Reports, regularly compiled
by the local commissioners of crown lands for more than a decade. In February 1855, the
Colonial Office in Downing Street disturbed by the 1853 annual State of the Aborigines
32
Moreton Bay Free Press, 16 November 1852.
Letters respecting the Native Police, NSW Votes &Proceedings of the Legislative Council 1 (1852): 801-802.
34
Connors, “The birth of the prison,” 231; Skinner, Police of the Pastoral Frontier, 163.
33
91
reports from New South Wales in which the ‘practice of firing at Natives for the purpose of
preventing their escape, which ... appears from the Report to be almost systematic’ instructed
Governor Denison ‘that it ought on no account ... be permitted.’ Consequently in May 1855
general instructions were re-issued to the Commissioners of Crown Lands and the Native
Police ‘discountenancing the practice of firing at the Natives’.35
The response to the circular marked a turning point in frontier attitudes. Although it simply
re-stated what had been official policy since 1836, a bench of magistrates in the Armidale
district decided to object. Their reply pointedly cited the law governing capture for felony
but nonetheless claimed that their concern was over the line of command. The new governor,
Sir William Denison had had the circular sent by the Chief Commissioner of Crown Lands to
each of the pastoral districts but benches of magistrates had responsibility for town
constabulary and refused to recognise the authority of the Chief Commissioner of Crown
Lands over police matters. Denison then had the circular re-issued in September 1855 from
the colonial secretary’s office.
This time the same bench did question procedures for
securing arrest for felony noting that ‘a constable would not be doing his duty if, all other
means failing to secure the capture of an Aborigine, the officer did not act in the same
manner as with an European offender.’
Denison did not dispute the law governing
apprehension for felony - he simply wanted an end to shooting at Aborigines ‘for any trifling
matter’.36 With self-government and a new constitution looming, instructions which had
originated from Downing Street no longer intimidated those responsible for local policing.
35
Sir George Grey to Sir William Denison 2 February 1855 and copies of correspondence following in l/no.
55/9457 in CS Special Bundles. Native Police: Moreton Bay 1855-1858 4/719.2 SRNSW.
36
Enclosure in Sir George Grey to Sir William Denison 2 February 1855 and copies of correspondence
following in l/no. 55/9457 in CS Special Bundles. Native Police: Moreton Bay 1855-1858 4/719.2 SRNSW.
92
The path to the wholesale slaughter of Native Police operations and the horrors of
Queensland’s 1861 Select Committee had been set.
Following the massacre of the Fraser household at Hornet Bank in October 1857, George
Barney as Chief Commissioner of Crown Lands received disturbing reports from W.H.
Wiseman his commissioner of crown lands then at the Upper Dawson River and directed that
the papers be forwarded to the Minister for Lands and Public Works. When they arrived on
the colonial secretary’s desk along with papers from Edric Morisset, the latest commandant
of the Native Police, Charles Cowper objected. It was not that the officers were ordering the
troopers to fire without any attempt at making arrests, or that the mere claim that particular
Aboriginal men were known to have been in the vicinity of Hornet Bank was regarded as
sufficient culpability, but the overt ‘expression’ of the brutality that had taken place. In
March 1858 he wrote six pages of hand notes explaining his concern.
While I am quite prepared to hear after the numerous murders and other acts of
atrocity committed by the Aborigines in the Northern Districts, that summary and
severe punishment had ensued, I regret to notice in the Reports of Lts Murray and
Powell expression which I cannot omit to pass without special notice ... the expression
to which I entertain objection ... would justify the inference that unawares and
possibly while entrapped within reach of gunshot they were in cold blood destroyed.
But still more objectionable expression occurs ... in dispersing a large party of Blacks
some of them were shot including ‘three gins, as they were running away’ ... [this] is
something abhorrent to the feeling of humanity to read even in [the Fraser] case.37
Cowper went on to make clear that he supported ‘the occasional infliction of exemplary
punishment’ and a ‘just retribution for [Aboriginal] barbarity’ but in future such occurrences
were to be investigated ‘in order to check the feeling that the lives even of the most ignorant
savages may be unnecessarily taken from them.’ Wickham, now Government Resident at
37
Noting attached to Government Resident Moreton Bay forwarding report Commandant Native Police 5 March
1858, CS special Bundles. Native Police: Moreton Bay, 1855-1858 4/719.2, SRNSW
93
Moreton Bay and through whom the Native Police reports were transmitted, simply passed a
copy of the colonial secretary’s letter to all officers of the force.38 No further action was
taken. In less than two years even reports to Sydney would be redundant.
It was ironic that it fell to Charles Cowper, as one of the leading figures of the movement for
self-government,39 to confront the reality of the violence of the northern frontier in his new
capacity as premier. Once Colonial Office oversight and any threat of enforcement were
removed, the substance of law was quickly shed. Forty years ago C.D. Rowley had noted the
significance of self-government in 1856 for deteriorating Aboriginal policy.40 The history of
northern policing from 1839 to 1859 confirms the importance of distance and disinterest in
overseeing settler-Indigenous conflict but just as London had relinquished its powers with the
granting of responsible government in 1856, Sydney now was about to surrender its authority
over the north with separation following in December 1859.
Just twenty months after
Cowper penned his horrified six pages of notes, Queensland became a separate colony, in
which very self-interested settlers would authorise Native Police operations that went well
beyond even retribution.41
In looking past the ensuing onslaught, the strength of evangelical ‘native’ policy in the years
1839 to 1859 is clear. Its principles of remote checks on settlers’ local actions had penetrated
to northern frontiers even if enforcement of the policy was uneven. The resonance of
evangelical policy can be detected long after Thomas Buxton left Parliament in 1837 and Sir
38
Skinner, Police of the Pastoral Frontier, 279.
See Peter Cochrane, Colonial Ambition: Foundations of Australian Democracy (Melbourne: MUP, 2006): 92.
40
Rowley, The Destruction, 137.
41
See evidence and recommendations of the Select Committee on the Native Police Force, Queensland Votes
and Proceedings of the Legislative Assembly, 1861; Jonathan Richards, The Secret War (St Lucia: UQP, 2008).
39
94
James Stephen retired as permanent head of the Colonial Office in 1847.42 The attempts to
rein in the brutality of northern frontier policing are another of the contexts worthy of
consideration in any assessment of Downing Street’s native policy in the mid-century. The
Queensland evidence shows the broad gulf between Downing Street policy and local practice
but nonetheless lends weight to Henry Reynolds’ pioneering work on the question of land
title. Attempts by senior colonial officials to implement a ‘humanitarian imperialism’ with
respect to Indigenous people’s rights inhibited northern settlers until self-government
unleashed a ferocious frontier aggression. The first recommendation of Thomas Buxton’s
Report was proved incontrovertibly correct: when it came to respecting the rights and
protecting the interests of Indigenous peoples the colonial parliaments were ‘unfit for the
performance of this office.’43
42
Zoe Laidlaw, “’Aunt Anna’s Report’,” 19; John M. Ward, “The Retirement of a Titan: James Stephen 184750,” Journal of Modern History 31 no. 3 (Sep 1959): 191-92.
43
Report from the Select Committee on Aborigines, 77.
95