Part 54 (1/2)
In vol. ii. p 380, Captain Grey says:--
”I have been a personal witness to a case in which a native was most undeservedly punished, from the circ.u.mstance of the natives, who were the only persons who could speak as to certain exculpatory facts, not being permitted to give their evidence.”
Under the law lately pa.s.sed in South Australia, the evidence of natives would be receivable in a case of this kind, in palliation of the offence.
Although it is more than questionable how far such evidence would weigh against the white man's oath; but for the purpose of obtaining redress for a wrong, or of punis.h.i.+ng the cruelty, or the atrocity of the European [Note 115 at end of para.], no amount of native evidence would be of the least avail. Reverse the case, and the sole unsupported testimony of a single witness, will be quite sufficient to convict even unto death, as has lately been the case in two instances connected with Port Lincoln, where the natives have been tried at different times for murder, convicted, and two of them hung, upon the testimony of one old man, who was the only survivor left among the Europeans, but who, from the natural state of alarm and confusion in which he must have been upon being attacked, and from the severe wounds he received, could not have been in an advantageous position, for observing, or remarking the ident.i.ty of the actual murderers, among natives, who, even under more favourable circ.u.mstances are not easily recognizable upon a hasty view, and still less so, if either they, or the observer, are in a state of excitement at the time. Is it possible for the natives to be blind to the unequal measure of justice, which is thus dealt out, and which will still continue to be so as long as the law remains unchanged?
[Note 115: Governor Hutt remarks, in addressing Lord Glenelg on this subject:--”In furtherance of the truth of these remarks, I would request your Lords.h.i.+p particularly to observe, that here is one cla.s.s of Her Majesty's subjects, who are DEBARRED A TRUE AND FAIR TRIAL BY JURY, whose evidence is inadmissible in a court of justice, and who consequently may be the victims of any of the most outrageous cruelty and violence, and yet be UNABLE, FROM THE FORMS AND REQUIREMENTS OF THE LAW, to obtain redress, and whose quarrels, ending sometimes in bloodshed and death, it is unjust, as well as inexpedient, to interfere with.
”A jury ought to be composed of a man's own peers. Europeans, in the case of a native criminal, cannot either in their habits or sympathies be regarded as such, and his countrymen are incapable of understanding or taking upon themselves the office of juror.”]
I have no wish to give the native evidence a higher character than it deserves, but I think that it ought not to be rendered unavailable in a prosecution; the degree of weight or credibility to be attached to it, might be left to the court taking cognizance of the case, but if it is consistent and probable, I see no reason why it should not be as strong a safeguard to the black man from injury and oppression, as the white man's oath is to him. There are many occasions on which the testimony of natives may be implicitly believed, and which are readily distinguishable by those who have had much intercourse with this people--unaccustomed to the intricacies of untruth, they know not that they must be consistent to deceive, and it is therefore rarely difficult to tell when a native is prevaricating.
Among the natives themselves, the evil effects resulting from the inability of their evidence to produce a conviction are still more apparent and injurious. [Note 116 at end of para.] It has already been shewn how highly important it is to prevent the elders from exercising an arbitrary and cruel authority over the young and the weak, and how necessary that the latter should feel themselves quite secure from the vengeance of the former, when endeavouring to throw off the trammels of custom and prejudice, and by embracing our habits and pursuits, making an effort to rise in the scale of moral and physical improvement. Whatever alteration therefore we may make in our system for the better, or however anxious we may be for the welfare and the improvement of the Aborigines, we may rest well a.s.sured that our efforts are but thrown away, as long as the natives are permitted with impunity to exercise their cruel or degrading customs upon each other, unchecked and unpunished. We may feel equally certain that these oppressions and barbarities can never be checked or punished but by means of their own unsupported testimony against each other, and until this can be legally received, and made available for that purpose, there is no hope of any lasting or permanent good being accomplished.
[Note 116: Upon the inability of natives to give evidence in a court of justice, Mr. Chief Protector Robinson remarks, in a letter to His Honour, the Superintendent of Port Phillip, dated May, 1843--”The legal disabilities of the natives have been a serious obstacle to their civil protection; and I feel it my duty, whilst on this subject, respectfully to bring under notice the necessity that still exists for some suitable system of judicature for the governance and better protection of the aboriginal races. 'As far as personal influence went, the aboriginal natives have been protected from acts of injustice, cruelty, and oppression; and their wants, wishes, and grievances have been faithfully represented to the Government of the colony,' and this, under the circ.u.mstances, was all that could possibly be effected. There is, however, reason to fear that the destruction of the aboriginal natives has been accelerated from the known fact of their being incapacitated to give evidence in our courts of law. I have frequently had to deplore, when applied to by the Aborigines for justice in cases of aggression committed on them by white men, or by those of their own race, my inability to do so in consequence of their legal incapacity to give evidence. It were unreasonable, therefore, under such circ.u.mstances, to expect the Aborigines would respect, or repose trust and confidence in the Protectors, or submit to the governance of a department unable efficiently to protect or afford them justice. Nor is it surprising they should complain of being made to suffer the higher penalties of our law, when deprived (by legal disability) of its benefits. Little difficulty has been experienced in discovering the perpetrator where the blacks have been concerned, even in the greater offences, and hence the ends of justice would have been greatly facilitated by aboriginal evidence.
It is much to be regretted the Colonial Act of Council on aboriginal evidence was disallowed.”]
The following very forcible and just remarks are from Captain Grey's work, vol. ii. pages 375 to 378:--
”I would submit, therefore, that it is necessary from the moment the Aborigines of this country are declared British subjects, they should, as far as possible, be taught that the British laws are to supersede their own, so that any native who is suffering under their own customs, may have the power of an appeal to those of Great Britain; or to put this in its true light, that all authorized persons should, in all instances, be required to protect a native from the violence of his fellows, even though they be in the execution of their own laws.
”So long as this is not the case, the older natives have at their disposal the means of effectually preventing the civilization of any individuals of their own tribe, and those among them who may be inclined to adapt themselves to the European habits and mode of life, will be deterred from so doing by their fear of the consequences, that the displeasure of others may draw down upon them.
”So much importance am I disposed to attach to this point, that I do not hesitate to a.s.sert my full conviction, that whilst those tribes which are in communication with Europeans are allowed to execute their barbarous laws and customs upon one another, so long will they remain hopelessly immersed in their present state of barbarism: and however unjust such a proceeding might at first sight appear, I believe that the course pointed out by true humanity would be, to make them from the very commencement amenable to the British laws, both as regards themselves and Europeans; for I hold it to be imagining a contradiction to suppose, that individuals subject to savage and barbarous laws, can rise into a state of civilization, which those laws have a manifest tendency to destroy and overturn.
”I have known many instances of natives who have been almost or quite civilized, being compelled by other natives to return to the bush; more particularly girls, who have been betrothed in their infancy, and who, on approaching the years of p.u.b.erty, have been compelled by their husbands to join them.
”To punish the Aborigines severely for the violation of laws of which they are ignorant, would be manifestly cruel and unjust; but to punish them in the first instance slightly for the violation of these laws would inflict no great injury on them, whilst by always punis.h.i.+ng them when guilty of a crime, without reference to the length of period that had elapsed between its perpetration and their apprehension, at the same time fully explaining to them the measure of punishment that would await them in the event of a second commission of the same fault, would teach them gradually the laws to which they were henceforth to be amenable, and would shew them that crime was always eventually, although it might be remotely, followed by punishment.
”I imagine that this course would be more merciful than that at present adopted; viz. to punish them for a violation of a law they are ignorant of, when this violation affects a European, and yet to allow them to commit this crime as often as they like, when it only regards themselves; for this latter course teaches them, not that certain actions, such, for instance, as murder, etc. are generally criminal, but only that they are criminal when exercised towards the white people, and the impression, consequently excited in their minds is, that these acts only excite our detestation when exercised towards ourselves, and that their criminality consists, not in having committed a certain odious action, but in having violated our prejudices.”
Many instances have come under my own personal observation, where natives have sought redress both against one another and against Europeans, but where from their evidence being unavailable no redress could be afforded them. Enough has however been now adduced to shew the very serious evils resulting from this disadvantage, and to point out the justice, the policy, the practicability, and the necessity of remedying it.
In bringing to a close my remarks on the Aborigines, their present condition and future prospects, I cannot more appropriately or more forcibly conclude the subject than by quoting that admirable letter of Lord Stanley's to Governor Sir G. Gipps, written in December, 1842; a letter of which the sentiments expressed are as creditable to the judgment and discrimination, as they are honourable to the feelings and humanity of the minister who wrote it, and who, in the absence of personal experience, and amidst all the conflicting testimony or misrepresentation by which a person at a distance is ever apt to be a.s.sailed and misled, has still been able to separate the truth from falsehood, and to arrive at a rational, a christian, and a just opinion, on a subject so fraught with difficulties, so involved in uncertainty, and so beset with discrepancies.