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

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 pains in behalf of that degraded race of our fellow race which is truly philanthropic. I sincerely pray that you may have the only reward sort for buyer you: the happy assurance of these beneficial operations - all that they have in any degree tended to ameliorate the condition of those who have such large demands whom

To Mr Justice Burton

&c &c &c

[479] upon our common justice and Christian benevolence.

The subject is one of great importance - alluded 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 charter 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 with 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 improved on the subject _ and a heart deeply interested in the welfare of those own degraded broker and who of the objects of your benevolent design.

However as you have kindly allowed me the liberty of [480] 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 cause of care for perusal. _

Section 1

Would the appointment of Jack [?] by the respected Magistrate be deemed “fit places” be likely to interfere with the locations of any Missionary Societies, on the operations of such Societies.

Section 3

      In the event of such Coeatiors [?] being formed it might be desirable and indispensable to have a Constable on Supervision being a married man and pious or at least of strict moral habits notwithstanding I am of opinion that it would be Mrs 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] the 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 Perth male residents of the settlement or location _ the electors being a bar of a certain age _

      By some such an arrangement 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 effectually 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 concession would be no infringement of any existing British Statutes

Section 4

      In the application and enforcement of British laws for the [482] protection of the Natives interference between tribes and that punishment of adjudged aggressions I would presume to    [?] that every possible consideration should be given to their made concessions of natural right and every allowance is 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 civilisation ._

Section 5

      Would it not be desirable to substitute an affirmation for an oath, reducing [?] That a violation equally liable to penal consequences . _

The principle might be maintained by a form loss offensive to many

Section 11

With respectful submission and the fullest credit for the purity of the motive which dictated this provision, referring particularly [483] 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 to a certain extent to be viewed as children in our plans for the amelioration of their condition, yet, notwithstanding, it appears to me that much education is necessary in any aggression that may be made, or invoking, what may be conceived to be their natural right _ blessed by a rigid observance of the measures suggested by the best feeling but under the bias of high civilisation. We should face 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 seducing in its nature I conceive is desirable to be held out to them _ consistent with the great object of Evangalization [sic] and the formation of habits of industry   [484] comfort 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 of the right of a leading on behalf of the apprentice to defend his cause, if it be deemed necessary or in 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 old opinion that it is necessary to the ends of Justice. _   The Native should also be made to understand clearly as possible that by entering into such contract he rendered 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 see the presence of two or more witnesses of his own class –

Section 25

            I think the prohibition of the carnal knowledge of Native females by Europeans should extend beyond the Wife or reputed Wife of a Native _      and should include and prohibit the causally cohabiting with any native female under any circumstances whatever useless like Europeans think fit, by mutual consent of both, acting to marry such a native females.

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 discussed 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 missionary in hand and the operations of Missionary Societies.   But even a section could be consistently introduced positively providing by some [?] Fall of the religious introduction of that Natives it would be very desirable especially holding out encouragement cheer the operations of Christian Missionary Societies; which I presume would be found to be the most effectual means of civilisation _ of course connected with some such salutary provisions as I have had the happiness by your kindness to receive.

In receiving the remarks which I have been led to make I discover a freedrover [?] , which casts many on your indulgence and forbearance the only ground of apology upon which I can stand, is the confidence which your kind consideration [?] has inspired . _

      I presume Sir _ that you are [?] with the circumstances of the Natives of Van Diemens Land having been some time [487] collected and transported to "Flinders land" where they are the charge and protection of this Government. For a considerable time they have been naturally dying off _ The Government has applied to me as the superintendent of the Wesleyan Missionaries to know if as a society we would take them entirely under our charge   provided the Sydney Government will allow of there being located in the Country of Port Philip _ The Governor suggests the proprietary of their being located in the vicinity of our new allusion to the Natives of Port Philip, His Excellency being of opinion that the Van Diemens Land Natives being now partially civilised they might be advantageously [?] In aiding the civilisation of the Port Philip Natives. _

      I am somewhat apprehensive that the bringing them in 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 influences the proposed removal of the natives is the probability of [488] sparing their lives by a change of place habits &c _ In the event of the Wesleyan Missionary Society taking the 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 formally replies to the proposition of the Government and may not have positive reaction to do so before there is time to be favoured with your return.

      You have no doubt Sir, learned that the Home Government actually approached 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 learn that three or four pious protectors had already been selected for whom, my correspondent writes, he had actually taken passages for New South Wales . Such a measure that renders it a more necessary that some regulations and specific mode of procedure be laid down for [?] Efficient operations.

      In which case your excellent propositions may prove very opportune.

I am dear Sir

with great respect

Your very obedient Servant

Josh Orton 

[489]

June 20 th 1838

Josh Orton

to

Mr Justice Burton

On the bill for

Relief of the Aborigines

Note

[1] Burton has made his own notes in the margins throughout the document that are very difficult to read. If a volunteer is intersted in transcribing these notes please refer to the original document.