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Original Documents on Aborigines and Law, 1797-1840

Document 70

Original Document 70

Rev. Mr Orton to Mr. Justice Burton on the bill for the relief of aborigines. 20 June 1838

[1]

[478]

Hobart Town

June 20th 1838

(To the Hon Justice Burton)

 

Dear Sir

I beg to acknowledge with great respect your kindness in furnishing me with a copy of the proposed "Act" for the Amelioration and Protection of the Natives of the Territory of New South Wales.

I have read the several propositions with interest and attention with which I was highly gratified. There is in them displayed a thought  - discernment and pains in (sic) behalf of that degraded race of our fellow men which is truly philanthropic. I sincerely pray that you may have the only reward sought for by you: the happy assurance of their beneficial operations - or that they have in any degree tended to ameliorate the conditions of those who have such large demands [479] upon our common justice and Christian benevolence.

The subject is one of great importance  - attended with many difficulties which can only be combated by those whose hearts are really engaged in the cause; and who have thought deeply, on correct data, with which the mind may have been furnished.

When you did me the honour to ask my views - and for which purpose you obligingly furnished me a Copy of the proposed "Act" - I felt conscious of the great improbability of my being able to suggest any thing as an improvement upon measures dictated by a mind well informed on the subject - and a heart deeply interested in the welfare of those [of] our degraded Brethren who are the objects of your benevolent designs.

However as you have kindly allowed me the liberty [480] of making any remarks that may suggest themselves I avail myself of the privilege you have granted and refer to one or two points presenting themselves in the course of careful perusal -

Section 1

Would the appointment of such as may by the respective Magistrates be deemed "fit places" be likely to interfere with the locations of any Missionary Societies, or the operations of such Societies?

Section 2

In the event of such locations being found it might be desirable and indispensible to have a Constable or Supervisor being a married man and pious - or at least of strict moral habits - notwithstanding I am of opinion that it would be most desirable and very salutary in the operation to appoint one or more of the most intelligent Natives to act as constables or overseers under the [481] European protector or supervisor of the respective locations -

The nomination of such Native officers to be vested in the Protector or in the Police Magistrate or Government Officer and the election in the male residents of the settlement  or location - the electors being above a certain age. -

By some such arrangement a right would be ceded which would be likely to excite an interest - and a kind of Native civil polity would be created which might tend more effectively to accomplish the object of good order - and whatever might be the result to transgressors by the application of British laws more satisfaction would be afforded to all parties. - It is presumed that such a conception would be no infringement of any existing British statute.

Section 4

In the application and enforcement of British laws for the [482] protection of the Natives - interference between tribes and the punishment of adjudged agressors - I would presume to remark that every possible consideration to their rude conceptions of natural right and every allowance made for their circumstances of deep degradation. However excellent may be the principles of British laws they are in their various bearings and ramifications peculiarly adapted to communities in a comparatively high state of civilization. -

Section 5

Would it not be desirable to substitute an affirmation for an oath, rendering the violation equally liable to penal consequences. The principle might be maintained by a form less offensive to many.

Section 11

With respectful submission and the fullest credit for the purity of the motive which dictated this provision, referring [483] particularly to the latter part I cannot help entertaining doubts as to the correctness and justice of the principles, and am apprehensive would be unsalutary and defeat the real object - For though the Natives are to a certain extent to be viewed as children in our plans for the amelioration of their condition it, notwithstanding, appears to me that much caution is necessary in any aggression that may be made, or invading, what may be convinced to be their natural rights - lest by a rigid observance of measures suggested by the best feeling bit under the bias of high civilization We should fail to accommodate ourselves to their circumstances so as to enable us to lead them step by step to a more exalted position.

Every thing attractive and inducing in its nature I conceive is desirable to be held out to them - consistent with the great object of Evangelization and the formation of habits of industry, comfort [484] and Utility.

Section 24

In such cases of default on the part of the apprentice to be heard and summarily dealt with: has a protector the right of attending on behalf of the apprentice to defend his cause, if it be deemed necessary or the apprentice require it? And ought not the protector to be invested with some power of appeal on behalf of the apprentice in cases where he may be of opinion that it is necessary to the ends of justice. - It appears to me to be a point which requires [?]- The native should also be made to understand as clearly as possible that by entering unto such contract he renders himself amenable to laws by which he may be punished. No native ought to be so bound without affording a tolerable degree of satisfaction, and stating, that he does understand the  nature of [485] the contract and freely and fully consenting thereto in the presence of two or more witnesses of his own class.

Section 25

I think the prohibition of carnal knowledge of native females by Europeans should extend beyond the Wife or reputed wife of a Native - and should include and prohibit the carnally cohabiting with any native female under any circumstances whatsoever - unless such European think fit, by mutual consent of both parties to marry such native female.

Would it not be well - in the sentence reading "with intent to appropriate to his or her own use any tool or implement (belonging to or) supplied on loan" to introduce the words which I have included in parentheses.

I have not discovered any positive provision for the religious instruction of the Natives of the respective location assumed to [486] have an existence.

Indirect reference is made to the Missionaries and the operations of Missionary Societies. But if a Section could be consistently introduced positively providing by some means for the religious instruction of the Natives it would be very desirable - effectively holding out encouragement to the operation of Christian Missionary Societies; which I presume would be found to be the most effective means of civilization  - of course connected with some such salutary provisions as I have had the happiness by your kindness to peruse.

In receiving the remarks which I have been led to make I discover a freedom, which casts me on your indulgence and forbearance - the only ground of Apology upon which I can stand, is the confidence which your kind condescension has inspired.

I presume Sir that you are acquainted with the circumstances of the Aborigines of Van Diemen's Land having been some time ago [487] collected and transported to "Flinders Island" where they are under the charge and protection of this Government. For a considerable time they have been rapidly dying off. The Government has applied to me as the Superintendent of the Wesleyian  Mission to know if as a Society we would take them entirely under our charge provided the Sydney Government will allow of them being located in the Country of Port Philip. The Governor suggests the propriety of their being located in the vicinity of our new Mission to the Natives of Port Philip. His Excellency being of the opinion that the Van Diemen's Land Natives being now partially civilized they might be advantageously employed in aiding the civilization of the Port Philip Natives.

I am somewhat apprehensive that the bringing them into contact with one another would be attended with greater evils than the good which might result from such a connection.

I believe the principal consideration which influenced the proposed removal of the Natives is the probability of [488] sparing their lives by a chance of place habits &etc. In the event of the Wesleyan Missionary Society taking charge it is of course proposed by the Government to indemnify the Society for all expense incurred. I should feel greatly obliged should your important engagements allow you to favor me with your views on the subject. I have not finally replied to the proposition of the Government and may not have positive occasion to do so before there is time to be favoured with your return.

You have no doubt learned Sir, that the Home Government have actually appointed several individuals to act as protectors to the aborigines of New South Wales under the particular direction of the Governor of the Territory. By communications from home I have learned that three or four pious persons had already been selected for whom, my correspondent writes, he had actually taken passages for New South Wales. Such a measure renders it the more necessary that some regulations and specific mode of procedure be laid down for their efficient operations.

In which case your excellent propositions may prove very opportune.

I am Dear Sir

With great respects

Your Very Obedient Servant

Joseph Orton

[489]

June 20th 1838

Josh Orton

to

Mr Justice Burton

On the bill for

Relief of the Aborigines

Note

[1] We are grateful to Dr Shaunnagh Dorsett of UTS for this excellent transcription of a difficult document. The difficulty can be shown by reading the original document.

Published by the Centre for Comparative Law History and Governance of Macquarie University, and State Records NSW