This rubbery attitude to English law was common in the early colony, where local decisions frequently took the place of strict attention to English legal propriety. What is striking about the legal position of Aborigines, however, is that this uncertainty and failure to observe English law did not begin to be rectified until half a century after colonisation began. One of the most important issues concerned criminal liability for inter-racial clashes. Whites had been found guilty of murder of Aborigines as early as , although they were not hanged.
The uncertainty continued for another 40 years. On many occasions, white killings of blacks were ignored. A smokescreen of legal confusion and argument covered up a continuing pattern of killings at the frontiers of the Australian colonies. Each expansion of settlement was followed by the same tragic pattern: as they were pushed off their land, Aborigines sometimes replied with force, followed  by unofficial and official massacres of Aboriginal family groups.
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The indigenous population of Australia fell from to 50 in the first century of European occupation. At least 20 Aborigines were killed by white violence, about ten times the number of whites killed by blacks.
Aborigines were placed in an impossible position by white law. When they responded aggressively, they were massacred by superior weapons and communications, or tried for murder. When they did not, they lost their land anyway and were assumed to have acquiesced in one of the largest land grabs in history. The most thorough official reaction to Aboriginal attacks was in Van Diemen's Land, that land of extremes where bushranging began and convict discipline was carried so much further than elsewhere.
The island's name carries connotations of brutality towards convicts, but its Aboriginal inhabitants were much greater victims of British policies than convicts, partly because English law was looking the other way. Writing in , Henry Melville described the rapid expulsion of Tasmanian Aborigines from their island, the most tragic story in Australian history. This was more than a disconnected series of raids and reprisals: each side killed the other, regardless of the English notion of individual responsibility.http://emilycolemanportfolio.com/1100.php
In effect, as Melville said, there was an unofficial war between blacks and whites in Van Diemen's Land. In response to these ceaseless killings, the English solution of exile was suggested, but for the whole race of people, not for individuals, and supposedly for their protection rather than punishment as was the case in convict transportation. Exile was not carried out until after the demarcation proclamation of , under which Aborigines were ordered not to enter settled districts.
This cannot have been lawful by imperial standards, since it so obviously contradicted the liberties guaranteed by the common law. Later, a military and civilian line attempted to push the remaining Aborigines to a peninsula. This failed, but the enticements and, possibly, trickery of the humanitarian Protector of Aborigines George Robinson and others managed to gather together some of the Aboriginal survivors, who were then taken to Flinders Island.
After that, a few were taken to the Port Phillip district, where some fell into further conflict with whites. More than a hundred Tasmanian Aborigines were buried on Flinders Island, a memorial to the failure of the law to protect British subjects. With the increase in violence in the s, Governor Arthur, like David Collins almost at the beginning of settlement in Van Diemen's Land, proclaimed that Aborigines were as much to be protected by law as whites. These proclamations were frequently ignored.
In this colony it was blacks who were hanged after incomprehensible trials, not whites. In the  imperial government reminded Arthur of his obligation to prosecute whites for maltreating Aborigines, but he responded by declaring martial law over the whole colony, giving a veneer of legality to the killings, and by planning to drive all Aborigines to one small area. He decided that it was unwise to emphasise that whites could be hanged for the murder of blacks. In doing so, he succumbed to local pressure, ignored his instructions and neglected the most basic rule in English law, that against murder.
Arthur, no doubt, felt frustrated at being unable to stop the killings short of the destruction of the Aborigines. The conflict began with the forcible taking of Aboriginal land.
This was the great wrong, and no solution was possible without official recognition of it, but such an acknowledgment was politically impossible. Local opinion governed the shape of official reactions, as it so often does. Arthur's demarcation proclamations might have been unlawful by English standards, but they had the form of law. Even they did not justify the massacres, however. On this issue, as on so many others, local law differed from that of England, and the local people's version of what was right conflicted with both.
Here, the results were tragic. If it is correct that Aborigines were British subjects, the official and unofficial killings that took place in Van Diemen's Land we're mass murders except in cases of immediate self-defence or within the limits of martial law. Martial law was in force on the island at times, but even this had limits. A declaration of martial law was justified when 'in time of rebellion the Crown might, for the restoration of peace, declare war, and exercise its severities, against rebels'.
The power to declare martial law because a rebellion existed was within the Crown's prerogative, which the colonial governors assumed to themselves as part of the powers delegated to them by the Crown; it was simply the establishment of absolute and discretionary military power, overruling all ordinary law. The military commander took control over the area in which it had been declared, and over civilians who answered the call for assistance. The governors retained power to declare that it had ended, however.
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A soldier who disobeyed his orders was subject to military discipline, but there were few civil limits once martial law was proclaimed. In the same way, the governors, as commanders-in-chief in the colonies, undoubtedly had military control over their subordinates to whom they gave orders. In a martial law declaration by a governor, any statement that loss of life was to be limited could therefore have been only an exhortation as far as civil law was concerned, and not enforceable in the civil courts, at least when the acts were done honestly under the declaration.
The soldier's or civilian's state of mind was the key point when considering attacks on non-combatants such as women and children. The killing of a young child, for  example, could not be an honest act against a rebellion within the scope of martial law, and would be murder, punishable in the ordinary courts.
Similarly, a captive rebel should not have been put to death without at least an informal military trial. The consequence was that martial law did not entitle the troops or settlers to whom it was directed to kill whatever Aborigines they came across. They were subject to military limits and, in some cases, to civil law as well. Obviously, if no declaration of martial law had been made, no soldier or settler could lawfully kill an Aborigine except in the act of self-defence. Given the excesses of killings and physical attacks on Aborigines, both under martial law and otherwise, it is clear that many settlers and soldiers were guilty of murder and assault against Aborigines.
To reach that conclusion, however, it was first necessary to reach an authoritative decision on the legal status of Aborigines according to white law. The legal position of Aborigines was largely settled at an official level in the late s, although it was still debated after then. The courts had to decide whether three kinds of acts were criminal: a white killing of a black; a black killing of a white; and a black killing of a black, even if in accordance with an Aboriginal notion of right.
The latter was the most difficult problem. If that situation were covered by English law, so would the others. In the case of R. Murrell's barrister, Stephen, made a series of ingenious arguments in his defence. He claimed that the colony was not settled, because there were more Aborigines than colonists. Nor was it conquered or ceded, as Britain had never been at war with the Aborigines. Whites were bound by English law, Stephen said, because they were protected by it.
By contrast, Aborigines were given no protection by European law: they were unable to give evidence as witnesses, they could not claim civil rights, and they could obtain no compensation for the land that had been torn from them. As a result they were not bound by white law.
The unstated effect of Stephen's arguments was that Australia was subject to a plurality of laws: that of the whites and those of the many different Aboriginal peoples. It is not surprising that the defence arguments were rejected by the Supreme Court. The Attorney-General made a simple reply: the law does not recognise any independent power in a British territory, and everyone within it is subject to British law and protected by it.
In response to the political reality pressed by the defence, that Aborigines were being killed without protection, the prosecution simply put a formal version of the rule of law, that Aborigines were subject to legal protection.
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The Supreme Court  found in favour of the Attorney-General, although by more elaborate argument. The main judgment in the case was written by justice William Burton. According to his published reasons, he based the Supreme Court's jurisdiction to try the case on several grounds.. Aborigines were insufficiently strong to be recognised as free and independent tribes; a proclamation had laid down the limits of the colony; the British government had exercised rights over the territory 'for a long period'; offences within the colony were punishable as they would be in England, so protecting the victim; and Aborigines were as entitled to the protection of law as if they had been white.
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Burton apparently had further grounds on which he decided the matter. He had been influenced by the missionary Threlkeld, whose sympathies for Aborigines were genuine, within the Eurocentric limits of nineteenth-century humanitarianism. Neither Burton nor Threlkeld was able to accept an idea of equality between the ideas of Aborigines and those of Europeans. Ultimately, Murrell was found not guilty on the facts, although he had been declared subject to British law. While this case seemed to settle the matter of the legal status of Aborigines, it was not accepted by justice Cooper in Adelaide, nor by Justice Willis.
Cooper advised that it was permissible to hang Aborigines without trial, although his view was later rejected by imperial officials, who said that it was murder to do so. In the Bon Jon case in , however, he said he strongly doubted that white law covered situations in which Aborigines took action against one another in accordance with tribal law. British law applied when a white killed a black or vice versa, but not, he seemed to argue, when a black killed a black. He said that this question affected 'a vast and hitherto neglected, oppressed, and deeply injured multitude of the human race'.
His address was as much a political statement as one of law. He called for a treaty with Aborigines to define their rights to protection and self-government. He was also concerned that Aborigines did not understand the proceedings under which they were tried. On another occasion, he  visited an Aborigine in his condemned cell to make sure that he had understood the trial. He linked this to what he saw as their right to land. He rejected the terra nullius theory of the colony's foundation, as well as those of conquest and cession.
British title came in the same way as it did in America and New Zealand, by discovery and occupation of lands that were not in the actual possession of the natives. This settlement occurred without the tacit acquiescence of the Aborigines, who were a distinct people with their own continuing rights but who were dependent on the colonists for their protection. They were dependent allies rather than British subjects, Willis argued. In reaching these conclusions he referred to the view of Saxe Bannister, a former Attorney-General of New South Wales, who had wanted to write down Aboriginal law and direct the British courts to observe it.
According to Willis, ultimate dominion rested with the British Crown, but that was consistent with the sovereignty of the original occupants, who could cede their land to the Crown but not to others. Here, in effect, was a forerunner of the High Court's Mabo decision, reached years earlier by an irascible judge in the bush town of Melbourne.