8 JULY

AUSTRALIAN ABORIGINES NOT LEGALLY ENTITLED TO THE RIGHT OF A FAIR TRIAL

[ 8 July 1805 ]

On 8 July 1805, Judge Advocate Richard Atkins, the senior judge in Britain’s Australian colony of New South Wales, gave his legal opinion on what should be done with two Aboriginal prisoners, Mosquito and Bulldog, captured after an attack on white settlers. Atkins’ advice, which was accepted by Governor Philip King, was that Aborigines were not capable of understanding the law.  They were not therefore entitled to the rights of a competent counsel, assumption of innocence and trial before a court, which was at least technically the right of even the miserable convicts.

Atkins explained that Aborigines were ‘incapable of being brought before a Criminal Court, either as Criminals or as Evidences: that it would be a mocking of Judicial Proceedings, and a Solecism in Law; and that the only mode at present, when they deserve it, is to pursue and inflict such punishment as they may merit.’¹  Accordingly. the governor was not required to show any respect for the legal rights of the two suspects, Mosquito and Bulldog, who were duly transported to the ‘ocean hell’ of a penal colony on Norfolk Island.²

Even this extrajudicial sentence to a likely early death was sanctimoniously presented by King as one of merciful forbearance. Writing to Lord Camden, the Secretary of State for War and the Colonies, he reasoned that ‘as Two Black Men more than Settlers have been shot, I shall forgo any further retaliation, but as they (other Aborigines) were so desirous of shewing their sorrow by giving up the Delinquents and requiring that they be punished, I should try the expedient of sending them to another Settlement to labour…’³

At the same time, white settlers who had shot dead six Aborigines were to be entirely exempt from any punishment in accordance with Atkins’ legal recommendation that the colonists be excused from slaughtering Aborgines if in reprisal for the killing of European men or women. Atkins legal advice also absolved settlers from killing or wounding Aborigines who stole from their farms.  In this case the victims were nothing more than ‘common predators’ and their killing was therefore justifiable and not punishable under the law.⁴

FOOTNOTES

1. Richard Atkins cited in Cheryll Saunders and Adrian Stone, The Oxford Handbook of the Australian Constitution, Oxford University Press, Oxford, 2018. See also Robert Hughes, The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787-1868, Vintage, London, 2003, p. 275.
2. Cheryll Saunders and Adrian Stone, The Oxford Handbook of the Australian Constitution, Oxford University Press, Oxford, 2018
3. Governor Philip King cited in Lisa Ford, Settler Sovereigny, Jurisdiction and Indigenous Authority in America and Australia, 1788-1836, Havard University Press, 2010, Cambridge, Massachusetts, p. 48.
4. Lisa Ford, Settler Sovereigny, Jurisdiction and Indigenous Authority in America and Australia, 1788-1836, Havard University Press, 2010, Cambridge, Massachusetts, p. 47.

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