JUDGE WILLIS, BONJON AND THE RECOGNITION OF ABORIGINAL LAW.

Janine Rizzetti

Introduction

The case of could have been one of the foundational cases in Indigenous legal autonomy. It touched on all the big early 19th century legal questions regarding

Indigenous Australians: the legal status of British settlement, whether Aborigines could be said to have their own law, and whether British law applied in crimes committed between Aboriginal people themselves. It could, too, have been the most significant case in the career of Mr Justice . But it was to be neither a foundational case, nor a career highlight. Instead, if R v Bonjon is known at all, it exists as an aberration, quickly over-ruled at the time, and often referred to in passing or even consigned to a footnote in later discussions of the amenability of to British law.

The case was heard in September 1841 before Willis in his capacity as the first resident Supreme Court judge for the district of Port Phillip, known as Victoria since

1851. Willis, who is best known for his irascibility and subsequent dismissal from office was perceived, both at the time and later, to be no particular friend to Aboriginal people.

Yet in Bonjon Willis expressed an argument that was to have resonances in the Mabo decision and Paul Keating’s Redfern Address- both in 1992. In a departure from the judgment given by others in The Crown v Murrell five years earlier, Willis argued that the Supreme Court had no jurisdiction over crimes committed by Aborigines against one another. , he stated, was not acquired by conquest or : nor was it

1 unoccupied at the time the colony commenced. Aborigines, he proposed, were not

British subjects: they had not consented to British occupation or , and they were entitled to exercise their own usages and laws.

Willis had carefully crafted his own contribution to an empire-wide debate. His

8000 word speech took over three hours to read and was clearly prepared in advance.

Willis personally distributed complete copies to all three local newspapers. His address bears all the hallmarks of his habitual oratory in court: its careful and deliberate construction, the Latin quotations, and the references to classical texts, literature and historical precedents across the empire and beyond. I do not intend to explore the substance of the arguments that Willis made in his address, or the parameters of the debate across the empire- others have done this exhaustively.1 Instead, I want to look at how he argued his stance, the context in which his opinion was delivered and why it has been overlooked. I will argue that his response can best be understood within a local context, specifically his struggle with local authority and the judiciary, and that the context partly explains why his opinion has been largely forgotten.

In many ways, his address was nothing new. From the late 1820s on, in cases involving questions of sovereignty and the jurisdiction of British justice, a bristling arsenal of authorities including John Locke, Lord Mansfield, Clark’s Colonial Law,

Blackstone, Lord Chief Justice Coke and Vattel’s Law of Nations had been marshaled and brandished, for competing ends, by Justice Burton, William Wentworth, Redmond

Barry, Sidney Stephen, James Croke, and now Justice Willis alike.

1 For example Bruce Buchan, The Empire of Political Thought: Indigenous Australians and the Language of Colonial Government London, Pickering & Chatto, 2008., Henry Reynolds, The Law of the Land, Third ed., Camberwell, Victoria, Penguin, 2003., Henry Reynolds, Aboriginal Sovereignty: Reflections on race, state and nation, St Leonards, NSW, Allen & Unwin, 1996.

2 However Willis went further than this. Drawing on these legal authorities and historical accounts, he took an empire-wide approach to the treatment of native peoples in other jurisdictions. Into this he integrated a historical narrative of Australian settlement: a historical argument that came right down to the streets outside his courtroom. He bolstered it with political commentary on the findings of the Select

Committee on Aborigines and cited the recent legislation passed regarding .

But- and with Judge Willis there is always a ‘but’- it was also a calculated career move, aimed at bolstering his position with Governor Gipps and intended as yet another salvo in his ongoing dispute with his brother judges in .

Bonjon the man

Our convention of identifying criminal cases by the name of the defendant recognizes and highlights the human dimension of justice, but our focus on the individual can soon be distracted, especially when the case comes to exemplify a particular legal doctrine. This is certainly true in the case of Bonjon, a young Aboriginal man accused of the of another Aborigine as part of a clan dispute over marriage arrangements. On one level the case was easily characterized as yet another example of the inter-tribal (or inter se) violence that had marked tribal relations before and after white settlement. But once the case had been swept up into the swirling empire-wide debate over sovereignty and the amenability of Indigenous peoples to British justice, the Bonjon case was no longer about a man, but a principle. I want to stay with Bonjon the man for a little longer, to examine the context in which the crime was alleged to have occurred and to recognize the reality that individual, named people were involved.

3 I do not know if ‘Bonjon’ is a conferred European name or a tribal name. I have seen it written as Bovijon and Borijon- a slip of the pen perhaps? The Aboriginal protector Robinson alternated at first between Pun.jon and Bon.jon.2 It is a short name: indeed there is, to European ears, an almost French gaiety about the name ‘Bonjon’.

He was a man of the Wada.wurr.ang balug clan from the Barrabool Hills in the country around what is now in south-central Victoria; the murdered man

Yammowing was from the Gulidjan clan. The disputed woman, Cun.yer.ber.nin, was a native of the Cal.ler.ner.nit on the Lee River. 3 From the depositions and newspaper reports of the Police Court hearing, it is not clear whether Bonjon stole Yammowing’s wife, or vice versa.4 It was framed as yet another manifestation of what was reported as ongoing tribal conflict. Robinson reported that the Gulidjan and Wada.warr.ang were involved in constant disputes concerning marriage arrangements, and the Wesleyan

Missionary Francis Tuckfield feared that the placement of his mission had only exacerbated tensions between the two clans.5

Although this was a tribal dispute, it was carried out in that liminal space between inter-tribal politics and white contact and oversight. The cases of inter se violence that reached the courts invariably emerged from this contested arena. At a time when

Aboriginal testimony was not accepted by the court, there had to be white witnesses and

2 14 August 1841in Ian D Clark, (ed.), The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate Vol Two: 1 October 1840-31 August 1841 Melbourne, 1998. I shall use the spelling “Bonjon” unless spelled differently in direct quotations. 3 The spelling of clan names varies among sources. I have followed Ian D Clark, Aboriginal Language and Clans: an Historical Atlas of Western and Central Victoria 1800-1900, Melbourne, Monash Publications in Geography, 1990, p. 222.. For information on Cun.yer.ber.nin, I have used G.A. Robinson Journal 14 August 1841 in Clark, (ed.), The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate Vol Two: 1 October 1840-31 August 1841 p. 383. 4 Supreme Court Criminal Side 15 Sept 1841 The Queen v Bonjon. Information for murder. VPRS 30/P/000 Unit 185, NCR 9, PROV; Geelong Advertiser Aug 7 1841, Aug 21 1841, Aug 28 1841 5 Clark, Aboriginal Language and Clans: an Historical Atlas of Western and Central Victoria 1800-1900, p. 222.

4 the knowledge and structures of British law to sustain the charge. Jan Critchett reminds us of the local and highly personalized nature of this frontier:

The frontier was represented by the woman who lived near by and was shared by her Aboriginal partner with a European or Europeans. It was the group living down beside the creek or river, it was the ‘boy’ used as guide for exploring parties or for doing jobs now and then. The ‘other side of the frontier’ was just down the yard or as close as the bed shared with an Aboriginal woman.6

In this particular case, the intersections between blacks and whites occurred at several levels. The alleged murder took place close to a living space shared by blacks and whites alike. At the time the offence was alleged to have occurred, Bonjon, Yammowing and

Cun.yer.ber.nin were sleeping together in a hut alongside Thomas Wright, the white settler who owned the hut and a white bullock-driver named John Brough. Conflict broke out between the two Aboriginal men inside the hut, and when the white hut-owner ordered them outside, the dispute was carried out into the surrounding bush.7

Bonjon himself had been with Crown Lands Commissioner as his

‘boy’ for some three or four years. It is not clear exactly what the nature of Bonjon’s relationship with Fyans was, and Fyans’ accounts need to be treated with caution. In a memoir written twelve years later, Fyans described Bonjon as

… a stout lad, very civil and useful. He always attended me in the bush, and was often with me for a space of three or four months going from one station to another, and during that time never seeing one of his tribe.8

Fyans’ memory fails him, however, because after praising Bonjon’s bravery in confronting an Aboriginal suspect in in 1843, he then records a change in

6 Jan Critchett, 'A distant field of murder': Western District Frontiers 1834-1848, Carlton, Vic, Melbourne University Press, 1990, p. 23. 7 Supreme Court Criminal Side 15 Sept 1841 The Queen v Bonjon Information for murder VPRS 30/P/000 Unit 185 NCR 9 8 Letter from Captain Foster Fyans in Thomas Francis Bride, (ed.), Letters from Victorian Pioneers, Melbourne, 1969, p. 188.

5 Bonjon’s disposition that culminated in this murder that Bonjon was alleged to have committed. By this reckoning, the murder would have occurred in 1843, yet we know that it happened some eighteen months earlier in 1841.

Some months after this [i.e. 1843] at Geelong, Bon Jon became quite changed; he no longer had a wish to follow me or wear his dress. Away with his tribe constantly, he came to me occasionally; he still had a strong grudge against the Colac tribe; he came to me one day saying, “One Colac fellow down here with a gin,” and that he would kill him. I desired him not. He was as good as his word. He loaded a carbine, followed the unhappy black with his gun, and shot him dead. Bon Jon and the gin, who was now occupying his time and attention, came back, and eat, drank and were merry. Hearing of the murder, I had Bon Jon apprehended; he was quite indignant…9

Yet in his testimony tendered to the court in September 1841 Fyans reported that at the time of the murder, Bonjon had been working informally for about six months with

Fyans’ contingent of Border Police, receiving rations, furnished with a horse and carbine as part of his service, and free to come and go without punishment for desertion as enlisted men would have been. In testimony that would be pertinent in assessing

Bonjon’s fitness to stand before British justice, Fyans described him as “particularly sharp and intelligent in his own way” but with poor English skills.10

Mrs Sievwright, the wife of the local Aboriginal protector also seemed to have played a pivotal, if somewhat unclear role in the altercation, even though she did not give evidence at the Police Court hearings at Geelong. Chief Protector Robinson, who happened to arrive on the scene shortly after the murder was alleged to have occurred, recorded in his journal on 13 August 1841:

Informed that a Barrable black in Fyan’s police had shot another black a short time previous. It was done in a treacherous manner- he stole upon him at night and shot him in his hut. The murderer had inticed the man’s wife away and was

9 Ibid p.190 10 Port Phillip Patriot 20 Sept 1841

6 cohabiting with her at the Police (Border) on the Marrabul. The husband did not dare venture to go to the barracks but went to Mrs Sievwright who resided opposite and she sent for the woman to come to her husband. She came and they went together, camped a short distance in the bush when the murderer went with a caribine and shot him as mentioned…This information was principally communicated by Mrs Siewright and Fanny, and afterwards by [blank] a native of the tribe to which the deceased belonged.11

In his next entry he provided more details. He reported finding Mrs Sievwright and her daughter alone with “one man left to attend her” in cold, wet and miserable conditions in an “old slab hut without chimney and covered with grass”. Assistant Protector

Sievwright was absent, having been ordered to shift his station to Lake Terang, leaving his wife and daughter at the original site at Lake Keilambete.12 There was an uneasy and tense relationship between all the white protagonists: between Chief Protector Robinson and Assistant Protector Sievwright, between Sievwright and Commissioner Fyans and among the Sievwrights themselves.13 Robinson noted that “Mrs Sievwright informed me she had written to Capt Fyans” about the murder. Robinson records a description, presumably from his informants, of the deceased Yammerwing as a “fine young man” and Cun.yer.ber.nin as a “fine young female”, who after the murder continued to cohabit with Bonjon in the bush.14 In Robinson’s report (which was not consistent with later testimony) not only did Mrs Sievwright adjudicate in her husband’s absence between the competing claims of the two men, but she exerted sufficient authority over

Cun.yer.ber.nin to induce her to leave Bonjon to return to her wronged husband, even

11 G. A. Robinson 13 August 1841 in Clark, (ed.), The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate Vol Two: 1 October 1840-31 August 1841 p. 382 12 Lindsey Arkley, The hated Protector: the story of Charles Wightman Sievwright, 1839-1842, Mentone, Victoria, Orbit Press, 2000, pp. 161-165. 13 Ibid. 14 G. A. Robinson 14 August 1841 in Clark, (ed.), The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate Vol Two: 1 October 1840-31 August 1841 Vol 2.p.383.

7 though the young woman later left with Bonjon after the alleged murder. As Hilary

Carey has pointed out, the wives of protectors and missionaries often participated in the

“moral policing” of Aboriginal women, reflecting middle-class female philanthropy carried out into the missionary context.15 Moreover this was a situation that could fit easily into European tropes of thwarted love amongst “fine young” men and “fine young” women with, at least in Mrs Sievwright’s eyes, a clearly wronged “husband”, infidelity, and improper co-habitation, and it lay within the moral jurisdiction of a protector’s wife.

Other debates over the jurisdiction of the courts

But little of this information was aired in the small Port Phillip courtroom in September

1841. Willis decided that he would “follow the same course as that adopted by the Judges in England, and find out the matter piece-meal”. A jury was sworn in to try the issue of the prisoner’s capacity to plead to the jurisdiction of the court, and then sworn in a second time to try the issue of whether the prisoner had sufficient capacity to plead guilty or not.

The jury returned a verdict that distinguished between the prisoner’s capacity to know whether he killed Yammowing as distinct from knowing whether he was guilty or not guilty of a crime. The jury was discharged at this point as the question now turned instead to the jurisdiction of the court. Defence counsel Redmond Barry and Crown

Prosecutor Croke took centre stage, each in turn reiterating the debate and discourse that had spanned decades in Australia, and centuries across the Empire as a whole. They cited the usual authorities - Locke, Lord Mansfield, Clark’s Colonial Law, Blackstone, Lord

Chief Justice Coke and Vattel’s Law of Nations – as they traveled across arguments that

15 Hilary M. Carey, 'Companions in the Wilderness? Missionary wives in Colonial Australia 1788-1900', The Journal of Religious History, vol. 19, no. 2, (1995), p. 236.

8 had been heard in New South Wales courts previously. Wentworth and Wardell had raised them during their defense of Lieut. Nathaniel Lowe in 1827; and the Ballard case of 1829 and the Murrell judgment five years later all illustrate the pendulum-like nature of the debate.16

For the question of jurisdiction had been before the courts previously. In R v

Ballard (1829) Chief Justice Forbes and Justice Dowling had held that it had been the long-standing policy of the judges and government of NSW not to interfere in disputes between Aborigines themselves.17 In what Bruce Kercher has designated “one of the most important judicial statements on the position of indigenous people in Australian legal history”18, Forbes in Ballard argued that Aborigines were entitled to their own laws, without interference by English law. Dowling argued that English people had no right to wantonly deprive Aborigines of any property they possessed or assumed dominion over.

Moreover until Aborigines consented, actually or by implication, to the interposition of

English laws over acts committed between themselves, there was no justification for interference with their institutions.

Yet seven years later, in R v Murrell (1836), these same two judges held that

Aborigines were amenable to the law of England for inter se violence.19 Although a free and independent people, they did not have sovereign states or laws of their own and because the alleged offence took place in an area under English law, it fell within the

16 . R v Lowe (1827) is reported at http://www.law.mq.edu.au/scnsw/Cases1827- 28/html/r_v_lowe__1827.htm [accessed 3 March 2010]. 17 http://www.law.mq.edu.au/scnsw/Cases1829-30/html/r_v_ballard_or_barrett__1829.htm [Accessed 8 Feb 2011] 18 Bruce Kercher, 'Recognition of indigenous legal authority in New South Wales', Indigenous Law Bulletin, vol. 4, no. 13, (1998). 19 R. v Murrell and Bumarree (1836) 1 Legge 72[1836] available at http://www.law.mq.edu.au/scnsw/cases1835-36/html/r_v_murrell_and_bummaree__1836.htm#2 [accessed 5 March 2010]

9 jurisdiction of the Supreme Court of New South Wales. Justice Burton, the third and most recently arrived member of the Bench, put together and delivered the opinion, to which Forbes and Dowling concurred.20 Kercher raises some interesting questions about this case: why did Forbes and Dowling change their mind? Why was Murrell prosecuted at all, given the decision in R v Ballard? 21 Further, why did Burton take the lead role in this decision? One consideration could be that of timing: the Murrell decision was read before the court on the last day of Forbes’ jurisdiction before departing, ill and exhausted, for a period of sick leave before his eventual retirement. This was no longer his battle.

Dowling and Burton themselves had been battling over the vacant Chief Justice position and Burton bolstered his claims by reference not only to chronological seniority, but also broader imperial expertise gained through his tenure in the .

The Bonjon case was the first Supreme Court murder trial involving inter se violence that had come before Justice Willis in his nearly five years in New South Wales, and the first complete trial of an Aboriginal defendant heard in its entirety by Willis as resident judge in Port Phillip. This was his chance to make his own mark in the debate.

He may have perceived that there was room for his contribution because perhaps the

Murrell judgment was not as definitive as the Sydney judges were later to claim. In

November 1840 Dowling himself had stated in the trial of an Aborigine found guilty of murdering a white settler: “As between the aborigines themselves, the Courts have never

20 The opinion itself is relatively brief and refers, only in passing to the many references Burton consulted during its crafting. Burton’s drafting process can be seen more clearly in ‘Arguments and Notes for judgment in the case of Jack Congo Murrell February 1836’. Document 48 Original Documents on Aborigines and Law 1797-1840 http://www.law.mq.edu.au/scnsw/Correspondence/48.htm [accessed 5 March 2010. 21 Bruce Kercher, 'R v Ballard, R v Murrell and R v Bonjon', Australian Indigenous Law Reporter, vol. 3, no. 3, (1998).; note 1 to R. v Murrell and Bumarree (1836) 1 Legge 72[1836] available at http://www.law.mq.edu.au/scnsw/cases1835-36/html/r_v_murrell_and_bummaree__1836.htm#2

10 interfered, for obvious reasons”.22 Gipps too had noted in 1838 “That, in disputes among themselves, they (the native blacks) may be governed by their own native usages wherever these do not interfere with the rights and safety of their more civilized fellow subjects”.23 Five years later in his Judicial Committee appeal against dismissal, Willis claimed that these comments had influenced his thinking in the Bonjon case, but he did not mention them at the time in his wide-ranging commentary.24

Willis’ address and the use of history

And so, now, after hearing both Croke and Barry debate the jurisdiction of the court, it was time for Willis’ contribution. Somewhat pre-empted by Barry and Croke’s arguments, Willis too, cited the main authorities, expanding his scope to include

American sources as Barry had also done, by direct reference to Storey’s Commentaries on the Constitution of the United States (1833) and Kent’s Commentaries on American

Law (1826-1830). This is significant. Such explicit reference to United States law could be characterized as constituting American, rather than British justice, and “Yankee tendencies” could be viewed as a suspect quality in an Australian colonial judge.25

But just as importantly, when we look at the Bonjon speech as a narrative, it is striking how many historical instances, as distinct from legal principles, he argued from.

Following the practice of Lord Mansfield, Kent and Storey who had themselves drawn

22 Sydney Herald 9 November 1840 23 Enclosure A to Minute No. 38 1838, reprinted in the Parliamentary Paper ‘Australian Aborigines’ ordered to be printed by the House of Commons 12 August 1839 p. 25, 26. Cited in AJCP M1587 Gipps’ defence. 24 Before the Judicial Committee of Her Majesty’s Most Honorable Privy Council John Walpole Willis against Sir on Appeal against an Order of Amotion from the Office of a Judge of the Supreme Court of New South Wales AJCP M1587. The Case of Behalf of the Appellant. 25 For example, Chief Justice Forbes’ “yankee tendencies” were disparaged to the Colonial Office by both Justice Dowling and Governor Darling. See C.H. Currey, Sir : The First Chief Justice of the Supreme Court of New South Wales, Sydney, Angus and Robertson, 1968, p. 5.

11 upon historical narratives, Willis drew on at least four historical texts that he identified by name, calling up parallels from across the Empire including the practice of Suttee, the

Brehon law in , and the treaty with the Maroons in in 1738 to argue the consistency of his approach with the treatment of Indigenous peoples in other jurisdictions.26

Turning from these other imperial examples, he then announced his intention to

“trace the history of this colony and of the settlement of this district” and launched on a potted history lesson that spanned Captain Cook, the Botany Bay landing and the subsequent shift to Port Jackson. He places the Aborigines there, right at the start of settlement:

On the shore appeared a body of savages, armed with spears which, however, they threw down as soon as they found the strangers had no hostile intention; they had not the least particle of clothing, yet they did not seem surprised at the sight of well clad persons, or impressed with a sense of shame.27

However this was not the optimistic and triumphant narrative presented at the colony’s fiftieth anniversary celebrations three years earlier that celebrated the “extensive and flourishing town of Sydney” that had replaced the “one great desert untrodden by the feet

26 He cited Mr Montgomery Martin’s History of Australasia (1839); William Robertson’s History of the Discovery and Settlement of America (1829). There are several references to The History, Civil and Commercial of the British Colonies in the West Indies by Bryan Edwards (1805) and a quotation from William Fishbourne’s Some few and short hints of the Settlement of the Province of Pennsylvania 1739, reprinted in Watson’s Annals of Philadelphia and Pennsylvania in the Olden Times Vol 1 (1830) 27 R.v. Bonjon. All references following to R. v Bonjon are taken from the Port Phillip Patriot 20 September 1841, reprinted at http://www.law.mq.edu.au/scnsw/cases184041/cases1841/R%20v%20Bonjon,%201841.htm. Willis’ speech was reported in all three Port Phillip newspapers but the Patriot version is the fullest as, unlike the other two papers, it includes the arguments of Croke and Barry as well as Willis’ important introductory comments referring to the Sydney judges before the address. However, for some reason- possibly because of these exclusions- Willis submitted the shorter Port Phillip Herald report to Gipps. Gipps in turn forwarded it to the Colonial Office where it was printed in the British Parliamentary Papers, Papers Relating to Emigration, the Aboriginal Population and Other Affairs in Australia, 1844. As a result, the abridged account is more commonly cited than the full version.

12 of civilized man: the haunt of the bounding kangaroo, or gigantic emu”.28 Instead Willis

- speaking not as missionary, not as journalist, not as advocate, but as Supreme Court judge - provided his audience with an unfamiliar, and probably confronting reflection of themselves as foreigners and uninvited intruders:

In this instance, the colonists and not the aborigines are the foreigners; the former are exotics, the latter indigenous, the latter the native sovereigns of the soil, the former uninvited intruders.

The Aborigines he depicted were not the degenerated sons of Ham despaired of by evangelical missionaries; nor were they the brutish, cannibalistic savages of white settler talk.29 Instead, he said, they were a law-based people with “laws and usages of their own”: a controversial viewpoint coming from the man who embodied British law in Port

Phillip. Ongoing frontier violence demonstrated that Aborigines are - and he used the present tense - “neither a conquered people, nor have tacitly acquiesced in the supremacy of the settlers”. As a result

I am at present strongly led to infer that the Aborigines must be considered and dealt with, until some further provision be made, as distinct, though dependent tribes governed among themselves by their own rude laws and customs. If this be so, I strongly doubt the propriety of my assuming the exercise of jurisdiction in the case before me.

Moreover, when he turned his attention to the particular and distinctive history of

Port Phillip, he was speaking to a settlement only six years old, about familiar events and personalities. The claims of the Aborigines “either as the sovereigns or proprietors of the soil” had not been considered, although, as he said, “it is in the recollection of many living men that every part of this territory was the undisputed property of the aborigines”.

28 Sydney Gazette, 27 Jan 1838 29 R. W.H. Reece, Aborigines and Colonists: Aborigines and Colonial Society in NSW in the 1830s and 1840s, Sydney, Sydney University Press, 1974. Ch. 2

13 The Aborigines were still here, and visible to every Melbourne inhabitant- indeed, he said, “a multitude of them was so congregated at this very moment” at a large corroboree on the banks of the Yarra.30 He regretted that no treaty had been made prior to settlement and “no terms defined for their internal government, civilization, and protection”. He derided the

…illegal attempt of the Mr. Batman who has been mentioned, and his co- adventurers, to treat with the chiefs of the native tribes for the purchase of no less that 600,000 acres of land in the immediate vicinity of this town, in consideration of a few blankets, knives and tomahawks, four suits of clothes, fifty pounds of flour, and an annual tribute of some blankets, knives, tomahawks, scissors, looking glasses, slop clothing and two tons of flour.” Yes, such was proposed as the liberal consideration for 600,000 acres of land, an attempted bargain surpassed only by some more recent proceedings of a somewhat similar description in New Zealand. [emphasis in original]

Again, he was referring to local, living memory. Batman himself had been a recognizable figure on the Melbourne streets until his death two years earlier. John

Fawkner, the proprietor of the Port Phillip Patriot and stalwart supporter of Judge Willis, had begun to advance his own alternative history of possession that downplayed

Batman’s role, giving more prominence to his own settler group.31 The people of Port

Phillip would be well aware of these two competing narratives.

Other influences and agendas

But Willis’ stance did not rely on historical argument alone. Much of his address was based on recent events, part of the contemporary political debate. Willis cited extensively from the report of the Select Committee on Aborigines of 1835-6, quoting the testimony

30 Richard Broome, Aboriginal Victorians, Crows Nest, NSW, Allen and Unwin, 2005.Ch. 2 31 Bain Attwood, Possession: Batman's Treaty and the Matter of History, Melbourne, Miegunyah Press, 2009, pp. 98-100.

14 given to the Committee by the Lord Bishop of Australia, Dr Broughton, former Attorney-

General Saxe Bannister and the Rev. J.D. Lang, and he read direct quotes from the

Committee’s findings. Here Willis was overtly basing his legal position on the authority of a report generated as part of a current political question that went right to the heart of the imperial project.

He also made repeated reference to the New Zealand Land Claims Bill of 1840 which regularized European land purchases made before the . In particular, he drew attention to Gipps’ speech to the NSW Legislative Council promoting the legislation32;

But now I come to what, perhaps, is higher and more conclusive authority for considering the aborigines a distinct though dependent people, and entitled to be regarded as self-governing communities. On the 9th of July 1840, His Excellency Governor Sir George Gipps, in his speech in the legislative council on this colony (a speech which would have done honour to any senate), on the Bill respecting claims to grants of land in New Zealand, made, among other, the following quotations in support of his argument, quotations which I know to be correct.

Well he might know them to be correct, because he had provided them to Gipps himself in a lengthy handwritten document in May 1840.33 The document contains lengthy verbatim slabs lifted from various texts, many of which found their way into Gipps’ speech. Although Gipps obviously drew on other sources as well, the influence of Willis’ document on Gipps’ speech is clear, right down to the rhetorical flourish with which

Gipps concluded his speech, lifted almost verbatim from Willis’ document.34

32 Gipps’ speech to the Legislative Council is reprinted in the Sydney Herald 13 July 1840 p.3 33 ‘Notes on the acquisition of New Zealand as a Dependency of New South Wales with reference to the parts obtained by British Subjects from the Aborigines’, Pamphlets collected by Mr Justice Wise ML A857 34 Both speeches close with the exclamation of Caesar’s standard-bearer, when he first set foot on the shores of Britain- Ego meum Republica Imperatori officium prestitero

15 Willis’ address in the Bonjon case was a further elaboration, in his own name this time, of the points he had already researched and formulated for Gipps the previous year.

Willis felt that his Notes had contributed to Gipps’ success with the Bill. As he wrote to his friend Dr James Mitchell, the “New Zealand matter has given great satisfaction in

England; I think I am intitled to a portion of the merit, but it has been my lot to toil and let others reap…”35 But he was not prepared to let Gipps forget the debt entirely. In a neat inversion, during his 1846 Privy Council appeal against his dismissal, Willis later claimed that Gipps’ speech to the Legislative Council and his dispatches to the Colonial

Office had influenced his own thinking during the Bonjon case rather than the other way round.36 But at the time, using Gipps as an authority was a canny political tactic: it simultaneously flattered Gipps, while co-opting him into his argument.

But this was not the only personal agenda running throughout the Bonjon address.

His opening words made this quite clear: “I do not consider myself bound by the opinion of either Mr Chief Justice Forbes, Mr Justice Burton or Mr Chief Justice Dowling in the present case”. As Evans has pointed out, the doctrine of precedent was undergoing change over the course of the nineteenth century, but it is nonetheless a bald statement.37

Interestingly, the Port Phillip Herald newspaper report that Willis submitted to Gipps and which formed the basis of all other reports of the case did not include this introductory comment. Nonetheless in the body of the address he did not pass up the opportunity to indirectly criticize his brother judges in Sydney, marshalling Shakespeare’s Merchant of

Venice to bolster his cause:

35 Willis to Sir James Mitchell 9 Oct 1841, Papers of Dr James Mitchell ML A2026 36 AJCP M1587 The Case of Behalf of the Appellant 37 Jim Evans, 'Change in the Doctrine of Precedent during the Nineteenth century,' in Laurence Goldstein, (ed.), Precedent in Law, Oxford, Clarendon, 1987.

16 I am here as a Judge to declare the right, and not to have recourse to the expedient. I can never permit the end to justify any undue means for its accomplishment. This may be policy and wisdom in a statesman, but it is little less than treason in a Judge. He must not “Wrest the law to his authority/ or do a great right, through a little wrong”.[emphasis in the original]

He does not specifically identify the Murrell judgment as judicial pragmatism, but the implication is clear.38 He was careful, though, not to box himself in. He closed his address by reserving the right to alter or abandon his present impression, should he later be convinced that it was erroneous. It was agreed that the trial would proceed, subject however to the express reservation of the right of jurisdiction, which Willis would take further time to consider. Willis wasted no time in forwarding the Port Phillip Herald newspaper report of his speech to Gipps, urging him to “submit it not only to the Legal

Authorities in the Colony, but also to Her Majesty’s Secretary of State, and the Law

Officers of the Crown in England”.39

Why forgotten?

So why, given Willis’ stance in Bonjon, does the case lapse into obscurity and Willis’ contribution to views of Aboriginal sovereignty remain largely unremarked? First, despite Willis’ efforts in ensuring its publication, the case was only reported in the Port

Phillip papers, not the Sydney press. At the end of the nineteenth century when Gordon

Legge made a retrospective compilation of early Supreme Court cases from 1830 onwards, the Murrell case was picked up from the Sydney Herald report alone, and

38 Sam Cadman, 'An Introduction to the Nature and Significance of Australia's First Permanent Court of Record: The Supreme Court of New South Wales,' in Julie Evans Tracey Banivanua Mar, (ed.), Writing Colonial Histories: Comparative Perspectives, Carlton, Victoria, University of Melbourne Department of History, 2002, p. 73. 39 Willis to Gipps, 22 Sept 1841 Encl 3 in Gipps to Stanley 24 Jan 1842, Desp 12, Historical Records of Australia (HRA)xxi, p. 658

17 Bonjon was overlooked altogether. As a result, only the Murrell case was formally reported and cited right up to the end of the twentieth century as the authority for the proposition that Australian courts have jurisdiction over Aborigines.40

Second, the response by the Sydney judges provided a stronger authority than this opinion by a single judge in Port Phillip. Had the case proceeded, it would have been referred to the full bench in Sydney where Willis would have been outnumbered and his stance would most probably have been overturned. As it turned out, this is all largely hypothetical because the case did not proceed beyond this point. Crown Prosecutor Croke decided not to proceed immediately- a course of action that Willis was later to approve- and after being remanded to the next session, Bon Jon was discharged into the protection of Robinson. Therefore Willis’ address was, as he later pointed out himself, “a delivery of my opinion, and not a decision as it has been falsely called…”41 Nonetheless, the address had elicited “uncertainty as to the state of the Law”. Gipps considered introducing clarifying legislation but Dowling advised Gipps that the question of inter se violence had been decided by R v Murrell and that it would be unnecessary to introduce an Act of Council to remove any uncertainty.42 This approach was endorsed by Lord

Stanley in July 1842. He stated that until Murrell was over-ruled “it must be held to be the Law of the Colony” and, without referring it to the London-based Attorney and

Solicitor-General, deferred to the Sydney judges as “the best and most competent Judges” on the issue.43

40 Bruce Kercher, 'Recovering and Reporting Australia's Early Colonial Case Law: The Macquarie Project', Law and History Review, vol. 18, no. 3, (Fall 2000). 41 Port Phillip Herald 3 Dec 1841. 42 Dowling to Gipps, 8th January 1842 (Enclosure 2); Gipps to Stanley, 24 January 1842, Desp 12 HRA xxi p. 653. 43 Stanley to Gipps 2 July 1842 Desp 144, HRA xxii p 133

18 Third, Willis’ own commitment to Aboriginal sovereignty did not seem to run deep and he did not appear to have the religious or humanitarian contacts that would suggest a longer-term philosophical and political conviction. He is exceptional among the judges in NSW at the time in his relative absence from the social, civic and intellectual life of the colony which might give insight into his own more deeply-held philosophical beliefs. Willis’ own relationship with the evangelical humanitarians is opaque: in his own private capacity he does not appear to be part of a broader evangelical network. Yet he did have access to public submissions and private committee documents generated by the Church Missionary Society, and such information flowed both ways.44 On learning that Gipps intended to follow the stance of the Sydney judges until advised otherwise by the Colonial Office, Willis somewhat triumphantly conveyed to Gipps that “the opinion I expressed in Bonjon’s Case has already been very generally circulated among those in

Europe, who take an Interest in the Cause of the Aboriginals in the British Colonies.

[emphasis in original]” 45 It is not clear whether he himself submitted his opinion to these contacts, or whether it was forwarded by other hands: what is clear is that he drew comfort from the knowledge that it had been distributed within the wider transnational humanitarian network.

Until the Bonjon opinion, - and indeed, afterwards - Willis had given no indication in his other judgments that he would take the stance that he did. He repeated his position twice in December 1841: once when presiding over the trial of whites

44CMS documents are cited in Willis’ ‘Notes on the Acquisition of New Zealand’ ML A857. 45 Willis to La Trobe 30 May 1842 42/1000 VPRS 19 Box 31 in 42/1191

19 accused of Aboriginal murders46, and again during the trial of the Van Diemen’s Land

Aborigines where he differentiated the murder of white settlers from inter se violence

I see no reason whatever to alter the opinion I expressed in Bonjon’s case. That opinion has long since been forwarded, not only to the principal members of the society for the protection of the aborigines in British settlements, but to the leading members of both Houses of the Imperial Parliament, and to the proper official quarter…. I reiterate my opinion, that the aborigines in this district are not, “with regard to the prevalence of our law among themselves, in the unqualified condition of British subjects”, and notwithstanding any assertion to the contrary, I think the following passage from the minute of his Excellency the Governor, laid before the Honourable the Executive Council on this colony on the 6th of April 1838 (as appears by the Papers ordered to be printed by the British House of commons, on the 12th of August 1839) fully warrants my view.

He then quoted directly from Gipps’ minute and asserted again:

Thus does it appear that the Executive itself acknowledged (an acknowledgment acquiesced in by the British Senate), “that the aborigines in disputes among themselves may be governed by their ancient usages.” That they are in fact, (to use the words of Chancellor Kent with regard to the North American Indians,) dependant allies, rather than subjects….47

In making these statements in December 1841, he had not, at this stage, received confirmation that Gipps would “write home on the subject” of his Bonjon speech as he had requested immediately after the judgment: indeed Gipps was not to do so until the following January, after the Van Diemen’s Land Aborigines’ case.48 There was, therefore, a fifteen month hiatus between the Bonjon case and the eventual receipt in late

1842 of the Secretary of State’s final decision. In his despatch of 2 July 1842, Stanley endorsed the opinion of the Sydney judges that the issue of amenability had been settled in Murrell, noting that

…the judges of the Supreme Court, with the exception of Mr Willis, are individually of the opinion that the decision in 1836 was correct; that they have no

46 Port Phillip Herald 3 Dec 1841. 47 Enclosure 9 in Minute 1 Legislative Council 3 Jan 1842, enclosed in Gipps to Stanley 11 March 1842 Parliamentary Papers 1844 (627) p.200 48 Willis to LaTrobe 30 May 1842 42/1000 VPRS 19 Box 31 in 42/1191

20 doubt of the law; that a similar case argued before them on Appeal would in all probability be similarly ruled, and that they see no reason for a declaratory Law.49

From December 1842 onwards, nothing more was heard from Willis on the topic although, admittedly, there was no opportunity and nothing to be gained by reiterating his now-overruled opinion. Nor was it likely that further occasions for challenge would arise in the foreseeable future. The Colonial Office ‘line’ was changing during the 1830s and

1840s, notwithstanding the influence of humanitarian lobby groups. Increasingly, emphasis was being placed on a strict application of British law and the earlier openness to legal pluralism was being replaced by an expectation of an eventual transition to

British law among Indigenous subjects.50 In such an environment, Willis’ stance in the

Bonjon case would represent old thinking that had to be over-ruled.

The case, however, was not without consequences for Willis personally. In the long list of grounds that Gipps enumerated for Willis’ eventual dismissal, the Bonjon case was listed among a string of cases, most of which involved issues of government policy and the behaviour of governmental and judicial officers, which Gipps characterized as either “errors in Law, or of what I can only designate as his attempts to produce mischief”.51 In accordance with normal practice, the Judicial Committee of the Privy

Council that heard Willis’ challenge to his removal reported only briefly that “there were

49 Stanley to Gipps 2 July 1842 Despatch 144 arrived via the Helvellyn which docked on 17 November 1842. HRA xxii. 50 Damen Ward, 'A Means and Measure of Civilisation Colonial Authorities and Indigenous Law in Australasia', History Compass, vol. 1, no. 1, (2003).;Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia 1788-1836, Cambridge Massachusetts, and London, England, Harvard University Press, 2010. 51 Gipps to Stanley 19 July 1843 Despatch 115 HRA xxiii, p. 50 The other cases involved allegations of forfeiture of office by the chief justice, denial of the Crown’s right to dispose of lands, the validity of the act to incorporate the town of Melbourne, forfeiture of offices by the governor of officials. In addition two other cases involved Willis’ judicial decisions over newspaper editor George Arden and an erroneous sentence of death recorded by Willis (which Willis himself quickly amended)

21 sufficient grounds for the amotion” but that it should be overturned because Willis should have been given the opportunity of being heard against the amotion.52 We have no way of knowing to what extent, if any, the Bonjon opinion formed part of these “sufficient grounds”.

Irrespective of Willis’ motives, Bonjon, along with the Ballard case, is the highest point on Indigenous legal autonomy reached by the Supreme Court of New South Wales.

Willis’ address voiced a critique of British justice that had shifted uneasily beneath the earliest Aboriginal/European encounters, right from the beginnings of white settlement.53

But even in a post-Mabo world it is difficult to embrace Willis as an unrecognized and prescient advocate for Aboriginal sovereignty. He has been characterized, rather, as hostile to Aboriginal interests. The simplistic, but nonetheless sobering statistic stands: three Aboriginal men were among the six executions carried out in Port Phillip during

Willis’ time on the bench.54 Willis was criticized for partiality when his friends and neighbours, the Bolden brothers, faced his court accused of the murder of an Aboriginal man Tatkier on their property.55 During this case, he ruled that a pastoral lease carried no reservation in favour of the Aborigines and that the possessor of the lease had “a right by all lawful means to turn off any person whether white or black who should trespass on his run” .56 This opinion was deplored by La Trobe, who claimed it was “received in those

52 Order-in-Council 1 August 1846 sub-enclosure to Enclosure 1, Earl Grey to Fitzroy, 3 October 1846 Desp. 37 HRA xxv, p. 204. 53 Henry Reynolds, This Whispering in Our Hearts, St Leonards NSW, Allen & Unwin, 1998. 54 Ian Macfarlane, 1842 The Public Executions at Melbourne, Melbourne, Victorian Government Printing Office, 1984. 55 Mullaly points out that there were, however, important issues of law in the way that the offence was charged and the admissibility of evidence.Paul R Mullaly, Crime in the Port Phillip District 1835-51, Melbourne, Hybrid Publishers, 2008, p. 371. 56 Willis Case Book No 12 Royal Historical Society of Victoria

22 parts of the country most exposed to depredations from the natives with a feeling which shows that a degree of wholesome restraint established with no little difficulty has been removed”.57 Because Willis accused the government of excessive zeal in pursuing white settlers accused of atrocities, compared with Aborigines accused of the same crime,

Gipps suggested that such statements from the bench were intended to “create a great prejudice in the minds of the lower and worst regulated portion of the people”.58

The surprise in Bonjon is not what was said - after all missionaries and evangelicals had been promoting such views for years - but that it was articulated in the

Supreme Court, and by Judge Willis in particular. Moreover, the real significance of

Bonjon is not that the critique was expressed, but that it was suppressed and then overlooked for so many years.

Bonjon and Aboriginal law

What, then, of Bonjon? By coincidence the very next day another example of an inter se revenge killing was presented to the court. 59 It reinforced Willis’ argument that

Aboriginal law continued to exist and be practised, and raised the potential issue of double jeopardy, whereby an Aborigine could be punished under British law but still nonetheless be subjected to Aboriginal law. This, along with the Crown Prosecutor’s concern that he had insufficient legal evidence to allow him to proceed with the case, led to Bonjon being remanded to the next session, and then released. Protector Robinson noted in his journal that there was disquiet among the ‘natives’ at the release and the

57 La Trobe to Edward Deas Thomson 29 January 1842 42/132. VPRS 16 Unit 12. 58 Gipps defence before the Judicial Committee of Her Majesty’s Most Honorable Privy Council John Walpole Willis against Sir George Gipps, AJCP M1587 p. 86 59 Willis Case Book 12. Royal Historical Society of Victoria; Port Phillip Patriot 20 Sept 1841

23 missionary Francis Tuckfield was apprehensive too, fearing that if the Gulidjan tribe avenged the death of Yammowing, it would be the cause of their extermination.60

Bonjon returned to his work alongside Foster Fyans, who remembered him in his memoirs as a fine horseman and “my trusty boy”.61 But within a few years he was dead: killed in revenge, it is reported, at a corroborree.

Willis’ opinion in the Bonjon trial, as we have seen, was part of an ongoing imperial debate about the jurisdiction of British justice over Indigenous people, but it was complicated by Willis’ other agendas in his disputes with local authority and his judicial brethren. His address did not, as he hoped, cement his judicial reputation at the time, or later. His opinion may have been overlooked for decades following, but in one thing

Willis was certainly correct. The Aboriginal people of the Port Phillip district did have laws of their own and they made use of them. Indeed, it could be said that British law did not deal with Bonjon, but Aboriginal law did.

60 Cited in Heather LeGriffon, Campfires at the Cross: An Account of the Bunting Dale Aboriginal Mission at Birregurra near Colac, Victoria 1839-1851, North Melbourne, Australian Scholarly Publishing, 2006, p. 187. 61 P. L. Brown, (ed.), Memoirs recorded at Geelong Victoria Australia by Captain Foster Fyans (1790- 1870). Transcribed from his holograph manuscript given by descendents to the State Library Melbourne 1962, Geelong, 1986, p. 260.

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