Colonial Thought-Lines #1: An unfair law

The Myall Creek Massacre Case:

10 June 1838: A group of eleven stockman, assigned convicts and former convicts, led by a squatter John Fleming of Mungie Bundie run, arrive at the squatter Henry Dangar's Myall Creek station. They tied together all the Aborigines sheltering there with one of their number (convict stockman Charles Kilmeister), and took them behind a ridge about half a mile west of the station hunts. They then slaughtered 28 men, women and children, decapitating the 10 children and cutting the 18 adults down with their swords (the station hut keeper George Anderson, who did not participate, heard only two shots), before attempting to burn their mutilated bodies.
15 November 1838: Eleven of the murderers were tried before Chief Justice James Dowling and a jury. The charged stockmen were represented by 3 barristers funded by 'The Black Association', a group made up of Henry Dangar and other squatters and stockmen from the Hunter Valley and Liverpool Plains. In R v. Kilmeister and Others (1), 1838, the jury found all eleven men not guilty.
27 November 1838: Seven of the murderers were retried before Justice Burton, at the insistence of the Governor of the Colony of New South Wales George Gipps and his Attorney General John Plunkett. This time, in R v. Kilmeister and Others (2), 1838, the seven men were found guilty (although the remaining 4 accused were later discharged due to the disappearance of a prosecution witness).
5 December 1838: The seven guilty men were sentenced to execution by hanging.
7 December 1838: The death sentence was ratified by the Executive Council.
18 December 1838: The seven condemned men were hanged at George Street gaol.

This flexing of executive and judicial muscle, the recognizing of fundamental Aboriginal rights under British law, so enraged the colony's northern squatters that they nominated Henry Dangar to the Legislative Council in 1845. The court's decision did not go unnoticed in the colony's far south either. (Before Separation as the Colony of Victoria in 1851, lands below the Murray River were considered to form the Port Phillip District of the Colony of New South Wales).

Alexander McLean HUNTER on Mimamaluke

23 July 1839 "...We have a tribe of blacks living by us they are a lazy set of savages but it is best to keep on good terms with them..."
24 July 1839 "...the tribe of blacks that were here are the lot that tried to murder Mr Munro About 30 miles from this And came down here for protection all the men left this morning I suspect for no good the government here is very bad if you shot a black for taking your sheep or breaking into your hut or almost to save your life you will be hung but if a white does the same you may shoot him..."

 Diary, 8 December to 1 May 1840, SLV, MS 10300, MSM 151, 154.
 Personal, b. 1821 in Edinburgh, d. 1892 at sea Tongariro, Overlander.
 Pastoral, Mimamaluke (a.k.a. Devils River), 25,000 acres, 5,000 sheep, 1841-1845.

Dr. David Henry WILSONE on Upper Wirrobbee

9 September 1839 "...I expect that we will have a regular fight with the natives as they are becoming very troublesome and bold; the fools of protectors have informed them that we dare not meddle with them, or if we did we would be hanged, they stole from us five fine ewe lambs & since then all our servants are armed and are advised to shoot anyone they see attempt it again or touch them, we are well off by many around us, and soon a regular affair will settle the business and clear our part of the country of these regular cannibals..."
30 August 1840 "...The Blacks have been very annoying to us, having attacked our station 2 times within the last 6 weeks and succeeded in carrying away guns, pistols, clothing, bedding, & provisions. Our people gave them chase, but they succeeded in getting away. This is all owing to the disgraceful manner we have been treated by the Governor of N. S. Wales & Protectors of the Blacks, a parcel of regular humbugs; in fact we are left totally unprotected, when we have paid so dearly to have been so by mounted police, & the consequence must rest on their heads, as we have all united to defend to the utmost our properties and woe betide the blasted race when they are caught injuring us..."
20 July 1841 "...that pseudo Philanthropy you express would meet the contempt of every well informed settler here; at all events blame our immaculate whigs for selling their ideal property and putting ['the natives] nolens volens under British law, not us, who have to pay the government for all we occupy, taxing our flocks and herds besides, so no more squeamish trash on this subject..."

 Letters, June 1838 to July 1841, SLV, MS 9285, MSB 267/1-3.
 Personal, b. 1791 in Glasgow, d. 1841 in Melbourne, Alcoholic.
 Pastoral, Upper Wirrobbee (later Ingliston), P.B. No. 149, 14,400 acres, 8,000 sheep, in partnership with John Campbell from early 1838 to October 1841.

Niel BLACK of Glenormiston

9 December 1839 "...The natives who have not been brought in to subjection have a strong propensity to spearing and stealing sheep and cattle, and the settlers agree that lead is the only antidote that effectually cures them of this propensity. When a few are shot the rest become timid and are easily kept at bay...It is, however, a difficult matter to obtain distinct information respecting the murders committed on the natives. There is nothing but 'bouncing' as it is called (bragging) here, and many persons bounce about their treatment of the natives. This they can only do by hints and slang phrases as the Protectors of the Aborigines are always on the lookout for information against the whites, and anything plainly said would subject them to a prosecution...I believe, however...that 2/3rds of them does not care a single straw about taking the life of a native, provided they are not taken up by the Protectors."
4 January 1840 "Heavy rain today closed a bargain for the sheep at 23/6 each and improvements to be taken at valuation...The run is one of the most wonderful in the colony...The blacks have been very troublesome on it and I believe they have been very cruelly dealt with. The late superintendent ran off from a fear that he wd be apprehended and tried for murdering the natives. The poor creatures are now terror stricken and will be easily managed. This was my principle reason for fighting so hard for it."
21 February 1840 "Rode out with Blackie, the former overseer, to see a saltwater lake and cattle run. Finest feed and soil I have yet seen, but no fresh water...It is the opinion of B..... that about 35 to 40 natives have been dispatched on this establishment and that there is only two men left alive of the tribe. He is certain we will never be troubled with any of them on this run. I think myself remarkably fortunate in a run as well upon this acct as because I believe it perhaps all in all unequalled in the colony, and the situation, as far as I can judge, is the best possible."
23 March 1840 "In the evening...Mr White from Portland Bay came to my house...on his way to inform the Governor of an affray he had with the natives...The Protector of Aborigines was within 6 miles at the time the affray took place, and his report (collected among the natives themselves) is that 41 had been killed, and Mr White says that he is not aware of more than 25. The bodies were all removed and put out of sight by the natives - a thing they never fail to do. I think they will never occasion much trouble in that quarter again. The whole of the sheep was recovered except 45 which they had slaughtered and on which they were feasting themselves when surprised by the Whites, having first skinned and then roasted them. There are several brothers of the Whites, all young men, and they only went to Portland Bay in January last. They are only 70 miles distant from here, but neither them nor I will ever be troubled with blacks again. They may, however, be obliged to go to Sydney to stand their trial for murder, but it will be a mere form. They must be acquitted..."

Diary, 30 September 1839 to 8 May 1840, SLV, MS 8996, MSB 99/1 (2 a+b).
Personal, b. 1804 in Argyllshire, d. 1880 at Mt Noorat.
Pastoral, Glenormiston (formerly Strathdownie), PB No 38, 43,520 acres, 2,500 cattle, 14,000 sheep, managing partner in Niel Black & Co with T.S. Gladstone, A.S. Findlay, W. Stewart, from 1840.
Penalties, no charges were brought against either the perpetrators of the Marida Yallock massacre on Strathdownie/Glenormiston in 1839 (35-40 killed) or the Konongwootong massacre by Whyte Bros and their shepherds in 1840 (41 killed).

Dr. James KILGOUR on Tarrone

[February 1842] "...With the aid of neighbouring estates a force of forty well armed men was raised and pursued the natives...Just as day was breaking the encampment was found and captured, the natives fleeing, two or three of them being shot down. The whole property of the tribe was taken, including a quantity of warlike implements &c., as well as all the booty secured by the tribe in their various raids. The result was peace for twelve months and no more organised attacks on the station. This expedition was not notified to the government because it had prohibited settlers from protecting themselves and their property - it sternly repressed any retaliation by the settlers, some of whom had been brought to trial for murder for killing natives. Such a charge was brought against Dr. Kilgour and his servants in 1844 on the ground that 8 or 10 natives were said to have been poisoned by arsenic in flour supplied to them by his servants while he was away...He was informed that, if he desire a renewal of the annual licence for the station, he must either reside on it himself or place over it a man acceptable to the Government...The Chief Commissioner of Crown Lands introduced to him for this purpose a Mr Chamberlain, a retired officer of the Indian Army, who was duly installed..."

Memoirs, unpublished summary transcript, 20 December 1839 to 21 June 1845, SLV, MS H15908, MSB 102/3.
Personal, b. 1815 in Musselburgh, d. 1897 in Auckland. 
Pastoral, Tarrone, PB No 62, 46,918 acres, 3,000 cattle, partnership with Dr. William Bernard from 1840 to 1845.
Penalties, CCL refused to renew occupation licence to Dr. Kilgour in October 1845, for failure to adequately supervise his employees.

Thomas Alexander BROWNE of Squattlesea Mere

[Ch 6 The Eumeralla War p. 51] 
"By this time ['in the summer of 1844'] the owners of the neighbouring stations were fully aroused to the necessity of concerted action. We had reached the point where 'something must be done'. We could not permit our cattle to be harried, our servants to be killed, and ourselves to be hunted out of the good land we had occupied by a few savages.
Our difficulty was heightened by its being necessary to behave in a quasi-legal manner. Shooting blacks, except in manifest self-defence, had been always held to be murder in the Supreme Courts of the land, and occasionally punished as such.
Now there were obstacles in the way of taking out warrants and apprehending Jupiter and Cocknose [Tarerer and Tykoohe], or any of his marauding braves [the Nillan Gundidj], in the act. The Queen's writ...did not run in those parts. Like all guerillas, their act of outrage took place sometimes in one part of a large district, sometimes in another, the actors vanishing meanwhile, and reappearing with puzzling rapidity.
We were now well armed. We were well mounted and vigilantly on guard. The Chidren of the Rocks were occasionally met with, when collisions, not all bloodless, took place."
[Ch 14 Superior Fattening Country pp. 97, 99-100]
"It has been mentioned in an earlier portion of these reminiscences that the Mount Rouse station [Kolor], originally taken up by Mr John Cox, had been resumed by the Government of the day, represented by His Honour the Superintendant, and devoted to the use and benefit of the aborigines of the district...
However, there was no fighting with the powers that be in those days. There was no Parliament - no press of any great weight - no fierce democracy - no redress nearer than Sydney. It was 'a far cry to Lochaw'. So Mr Cox shifted his stock and servants out, and [Mr Seivewright] moved in, took possession as protector of aborigines, and gathered to him the remnant of the lords of the soil, with their wives and little ones...
The pastoralists never approved of the protectorate system. They accused certain of the protectors...of instructing the blacks if whites shot them it would be considered murder, and the offenders hanged, but if they speared the cattle or the stockmen occasionally, it was only, let us say, an error of judgment, for which they would not suffer death..."

Memoirs, Rolf Boldrewood (1884) Old Melbourne Memories, SLV, RBM Call No. LT919.45 B63.
Personal, b. 1826 in London, d.1915 in Melbourne, Author (1888 Robbery Under Arms).
Pastoral, Squattlesea Mere, PB No 304, 32,000 acres, 1200 cattle, as superintendent for father's creditors 1844-1851, sole licensee 1851-1862.

Postscript: Commissioner of Crown Lands

Captain Foster Fyans was the policeman of the vast Western District of Victoria during the first decade and a half of European occupation. (Prior to Separation of the Colony of Victoria in 1851, the Western District was administered as the Geelong and Portland Bay districts of the District of Port Phillip). As Commissioner of Crown Lands he arbitrated boundary disputes between the squatters. As Captain of the Border Police he arrested Aborigines suspected of performing 'outrages' against the property or personnel of the squatters.
He was a loyal servant of the British Empire and did not really question the legitimacy of the squatters dispossessing the local Aborigines from their land. In a personal (and irregular) capacity he ran a couple of hundred 'FF' branded cattle of his own on Colet Colet run near Lake Colac. But during his years of service as magistrate at Geelong (1837 -1840 and 1849-1853) and commissioner at Portland (1840-1849) he developed a reputation among the squatters as irritable and autocratic. 

He was often exasperated at the pettiness of the squatters' complaints that he was required to settle. "...I found that I had to visit the Merino Downs in Australia Felix, where Mr Henty had formed a large sheep station. The only Europeans in the country, Mr Henty and Mr Winter, these gentlemen had had a difference regarding boundary lines, though not a living soul was to oppose their voracious wishes in taking and holding whatever they wished. Disagreement existed, when millions of acres of the finest pasture in the world lay round in waste and idleness. Spending two days on this part of our mission, we left our friends, wishing them prosperity".
P.L. Brown (ed.), 1986, Memoirs recorded at Geelong, Victoria, Australia, by Captain Foster Fyans (1790-1870), Geelong Advertiser Pty Ltd, p. 229.

And he did not believe that the Aborigines were entirely unjustified in their acts of retaliation. On one occasion the findings of his investigation into "reported depredations of the natives" at Buninyong was almost even-handed. 
"I felt convinced of these depredations, and generally found the origin of theft and murder was from an over-intimacy on both sides - the women ruling, depraved, and bad; so much of this existed that there was hardly a shepherd without disease. Large families of natives - husband, wife, boys, and girls - were eaten up with venereal disease. The disorder was an introduction from V. D. Land [sic., meaning Van Diemens Land, or Tasmania], and I am of the opinion that two thirds of the natives of Port Phillip have died from this infection. During 1837-8-9, as the country began to be occupied, I had many journeys to stations, of from 40 to 50 miles...In all my investigations I found where life was lost that blame was attributable to both sides - to the jealousy of the native and over-intimacy of the hut-keeper or shepherd, who was one day feeding the natives and the day following beating and driving them from the place."
He concludes his letter to Governor La Trobe with the observation that, "From long experience, particularly in the Portland Bay District, I am convinced that the number of aborigines in 1837 in this district could not exceed 3,000, and I feel thoroughly convinced the race will be extinct in 20 years or less."
T.F. Bride (ed.), 1983, Letters from Victorian Pioneers, Currey O'Neil, pp. 181, 191.

REFERENCES: SLV is my abbreviation for State Library of Victoria, Manuscripts Collection.


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