JUDGE WILLIS, BONJON AND THE RECOGNITION OF ABORIGINAL LAW. Janine Rizzetti Introduction The case of R v Bonjon 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 John Walpole Willis. 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 Indigenous Australians 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. New South Wales, he stated, was not acquired by conquest or treaty: 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 sovereignty, 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 Melbourne 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 New Zealand. 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 Sydney. 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 murder 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 Geelong 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 George Augustus Robinson 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 Foster Fyans 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 Port Fairy 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.