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Colonial Cases

R. v. We-war [1842]

Aboriginal defendant, offence against another Aborigine - Aboriginal law, recognition of - Aborigines, killing of - Aborigines, legal status

Quarter Sessions, Western Australia

W.H. Mackie Esq., 9 January 1842

Source: Inquirer, 12 January 1842 (No 76)[1] 

            QUARTER SESSIONS - Perth, Jan 9, 1842

            BEFORE the Chairman, W. H. Mackie, Esq., and a full Bench of Magistrates.

The cases tried this day were, with one exception, of small magnitude, the offences charged being, for the most part, of petty theft, the particulars of which are in no way interesting.

            The last case in the calendar was that of We-war, a native of the Murray tribe, accused of the murder of Dynung, another native. As this was the first native who had been tried by our laws for an offence committed against one of his own people, the case excited considerable interest. On the prisoner being placed at the bar,

            Mr. E. W. Landor, as his Counsel, objected to his being arraigned. He must take leave to plead to the jurisdiction of the Court. And he did this from a sincere desire that the public might clearly understand what were those principles of justice and of law upon which the original inhabitants of this colony were brought into that Court, to be tried for offences committed among themselves.

            Mr. Landor then entered into an elaborate argument, contending that the Court was not competent to try the prisoner on several grounds. The argument may be thus briefly summed up; It being declared and acknowledged that we acquired possession of this colony by occupancy, and not by conquest, it follows that our laws would not apply to the aborigines for offences committed among themselves, without some express assent on their party by which they agreed to adopt and acknowledge them. 2ndly. Even if the colony were acquired by conquest, it would still be necessary to show that our laws had been expressly imposed upon the natives, and were to be thenceforth received by them in lieu of their own. 3rdly. If they be subject to our laws, they must be subject to the whole machinery of the law, and ought to be punished for minor offences committed among themselves, as slander, perjury, theft, indecent exposure of the person, &c. &c. 4thly. The natives have laws of their own, and stated punishments for particular crimes, and therefore the prisoner had most probably been already either punished or acquitted for the same offence, by the only laws he was acquainted with or bound to obey; and that it is contrary to all justice that he should be tried and punished again. 5thly. There is no act of Parliament which provides that the aborigines shall, as among themselves, be answerable to our laws; and that as we choose to found our title on occupancy, no local proclamation is sufficient authority to make them so amendable; for if the Governor have not arbitrary power to impose penal laws by proclamation upon us, who are really British subjects, a fortiori he cannot possess that power over strangers. If they were already British subjects, there was no need of a proclamation; if they were not British subjects, no proclamation could impose penal laws upon them. And, 6thly, the circumstances of killing a man who happens to be casually employed by the British does not make that to be murder, within the meaning and cognisance of our laws, which would not be murder, had the party not been so employed by the British.

            The Advocate-General said that he thought it perfectly unnecessary to reply to the arguments that had been adduced, but would leave them to the decision of the Bench.

            The Bench consulted together, and after some discussion, the learned Chairman announced that Mr. Landor's objections were overruled by a majority of the magistrates.

            The Chairman observed, - there are three modes by which a nation may acquire foreign territory; treaty, conquest, and occupancy. The first is out of the present question; and although some of the measures of the British government may appear more easily justifiable, if referred to right of conquest than to that of occupancy, yet the theory of that government, as expounded by successive Secretaries of State, is, that its possession of the territory is based on a right of occupancy. According to Vattel and other writers on the law of Nations, there are two cases in which such a right may be exercised. First, in the case of an uninhabited country; which is not the present case. Secondly, when a large extent of country is roamed over by wandering savages, who make no use, or a very trifling use, of the soil, and subsist by the chase and spontaneous products of the earth. In such a case, say the writers referred to, those savage tribes have no right to exclude the rest of mankind from that of which they themselves make no proper use, and of which the surplus population of other states stand in need; and that, therefore, any other densely peopled stated is lawfully entitled to take possession of such a country and to establish colonies in it, provided they leave the natives such a portion of the land, as by proper cultivation or use, would be sufficient for their subsistence. Those writers, however, do not proceed to prescribe by what common principles or rules the intercourse of the Aborigines, within the limits so occupied, and the new comers is to be regulated. But as jurisdiction is clearly an inseparable incident of sovereignty, it follows that the British Nation having, under the principle of the law of natives just stated, taken possession and assumed the sovereignty of a territory bounded by certain parallels and meridians, the law of that nation must be paramount co-extensively with that territorial sovereignty. It is not however to be supposed that a prudent and judicious government would enforce the application of British Law indiscriminately to all transactions of the natives inter se, so as to incur the risk of burlesquing the persons of justice, or turning them into engines of wanton oppression. There are certain obvious limits to that application, as to a right to be protected and offences to be punished. There are on the one hand those sacred rights of persons, which regard the safety of life and member; - on the other, those offences against the laws of god and the law of nature (or, as the latter has been defined, "the dictates of natural conscience,") which infringe those rights; and among which offences, the vindictive spilling of blood is unquestionably one, - even within these limits, as to rights and offences, the operation of the law has hitherto been further confined to cases in which the suffering party was, at the time of the offence, in the service, in the house, or otherwise under the protection of a settler. Of the Justice and humanity, as well as policy, of such an application of our laws there could surely be no serious doubt, it is of the utmost consequences, as affording the most rational prospect of reclaiming and civilizing the natives, that they should be induced by every possible mode to attach themselves to the service, the dwelling, and the society, of the settler, - one of the strongest inducements to such a course would be the belief and experience that the white mans roof and company afforded them a sacred and inviolable protection from the savage habits and propensities of their countrymen. There had hitherto been no interference with the laws and usages of the natives, as between each other, apart from our towns and dwellings. It is well known that many atrocities, among themselves, have been committed in the bush, which have not been made the subject of Judicial inquiry. The Court cannot entertain the objection that by holding the British Criminal Law to be applicable to the Aborigines, they render the latter liable to unjust and arbitrary interference with their natural laws and usages. Hey cannot submit to consider it possible that the local government, or any local authority connected with the administration of Justice would be disposed to apply that law in a wantonly oppressive manner.

            The present limited application of that law is as humane to the native, as it is otherwise justifiable and expedient. Can it be doubted that a settler, who witnessed the murder of a native, while in his employ or in his house, by another native, would be strongly tempted to some irregular mode of redress by his own right hand, if no redress were provided by due course of law? Much had been said against the use of the argument of expediency in favour of the present practice. Mere expediency may be a poor basis for any law or measure. But it may be called in aid of other grounds. What is expedient may be too often neither legal nor just. But it cannot be denied that the most legal and justifiable course is often also the most expedient. No part of the community would feel more sincere pleasure than the Magistrates of the colony if the task of suppressing the barbarous propensities of the natives could be efficiently committed to the Missionary instead of the Police; but until that can be effected, they must discharge what they believe to be their duty.

The prisoner was then arraigned, and a plea of "Not guilty" entered.

            The Advocate-General said that so much of the argument which had been attempted on the other side had been adduced with the view of influencing the feelings of the jury, though not directly addressed to them, that he felt it his duty, ably as the subject had been treated from the Bench, to make a few remarks before entering on the peculiar facts of the case before them. Much stress had been laid on the Law of Nations, and on the title of the British Crown to this territory being that of occupancy, not of conquest. He did not see what the law of nations had to do with the subject. Two laws governed mankind in their general relations; the law of nature, where either of the parties was an uncivilised savage; the law of nations, where vast, united, complex, aggregates of civilised men treated with each other as individuals. He regretted that the silly affectation of disclaiming a title by conquest should have led any one to originate the discussion of this day. The title of England, or of any nation, to a savage territory, was that of occupancy, where the individual savages or families (for tribes were nothing more) did not resist, and of conquest where they did. Did any man believe that if all the tribes had gone to the first party of settlers, and informed them that they did not intend to allow them to reside here, that the British Government would have obligingly abandoned the territory? In fact there never was a more unlucky case for such an argument than that of the prisoner at the bar, whose tribe had actually so resisted, and been accordingly attacked and conquered in the fullest sense of the word. To assert that a savage rabble of wandering families had a right to say to the word, "We will not use this land, and we will not suffer any one else to do so; we are resolved to continue savages, and that the vast continent over which we wander shall continue a desert;" would be at once to prohibit the civilisation of mankind, and would be the greatest curse to the savages themselves. It is true that nations appropriating the territory occupied by savages incurred duties; but what were they? To substitute some sufficient means of sustenance for that of which they deprived them; and to elevate their condition by instruction in the arts, duties, and responsibilities of civilised life. Their native laws had been spoken of; he should like to know what they were. It was a burlesque upon all laws to call the few barbarous customs which the respective families forced each other to submit to whenever they were able, by the name of laws. He should like to know what code would acknowledge the law that any man might steal as many other men's wives or children as he was able, and that in return the other, or any other man, might steal any other wives or children from the tribe o the former, if he was able - that any man might wound or kill any other man, if he was able; but that it was the duty of some other man to wound or kill some other man in return, if he was able. And to the benefit of such laws humanity, forsooth, we are told, entitles the savage. Again it was argued that the savage, if liable to any British law, was liable to all. Undoubtedly he was so liable; and the only restriction upon the application of the law was that of time; for the duty of Great Britain was to teach all her laws to the savage as soon as he could be made to learn them; and of this the case before them was an illustration. The savage had long since learned that to kill a white man would be avenged by death. Now it was necessary to advance his civilisation by teaching him that to kill his fellow savage, when in the society and protection of the white man, was also a crime; but although in the forms of law required conviction for murder, and sentence of death, he would say that the Government had not the remotest idea of carrying the sentence into execution. He would not dwell on the consequences of permitting the savage to be governed by his own bloody customs in a civilised land. In fact it must resolve itself into a steady war of extermination. Treaties between a nation and the savage had been alluded to. He rejoiced to any that no such hypocritical swindling of the unfortunate aborigines had degraded the foundation of this colony. The white man had at once boldly and manfully taken possession of the soil; and had at the same moment commenced the task of civilising the savage; a task which the settlers of Western Australian had accomplished to an extent, he was at once proud and sorry to say, unparalleled in the annuls of the human race. There existed no law in reality among the natives, beyond that of force; for no tribe was ever yet known to permit an individual of any other tribe to execute any of its customs, unless the other tribe were strong enough to compel them to submit. A considerable amount of cant and nonsense had been talked in the mother-country upon allowing the natives distinct districts and hunting grounds. Our duty was to civilise the savage, and this could only be done by inducing them to frequent our residences, and by protecting him when in our society. The prisoner in the present case had gone beyond even the customs of the savages in barbarous treachery and cowardly bloodthirstiness. The unfortunate victim knew that a feud existed between his family and that into whose district the white men requested him to accompany them. They promised however to protect him. The prisoner attempted to join the party; but, in fulfilment of their pledge, the white men refused to suffer him. The murdered man then declared he knew him to be his friend, and that he could trust him; and the prisoner protested the greatest regard for his victim. They went together till evening, when it appears that insidious attempts were made by the prisoner to lead the party astray, and to induce them to lay aside the protection of their loaded firearms; but in vain. That night, Mr. Peel's offices, the prisoner and his victim lay down together to sleep; and in the middle of the night the prisoner arose stealthily and thrust his spear through the body of his unarmed, sleeping, unsuspecting comrade. He believed that such base and bloodthirsty cowardice and treachery was inconsistent with the habits and laws of the savage; but, if otherwise, it was needless to say that the Government would ill perform its duty of carrying out the great task which the settlers had so gloriously commenced, if they did not immediately step forward, and, by a public prosecution and severe punishment, proclaim to the savage that such deeds were alike criminal in the eyes of the Almighty, and intolerable in those of civilised nations. That the prisoner himself was fully aware of the criminality of this act was sufficiently shown by his instantly absconding, without even waiting for the dawn. The learned gentleman having further entered into the facts of the case, proceeded to call.

Henry Maybee, a private of the 51st regiment, who deposed that he was going, on duty, in the month of July, 1840, in company with another soldier, Thomas Magee, from the Canning River to Mr. Peel's estate on the Murray. They were accompanied by a native called Dy-ung, who acted as guide. On the way they encountered the prisoner, We-war. Dy-ung requested that the prisoner might be allowed to join the party, and he did so. They arrived at Mr. Peel's house in the evening. The two natives, who seemed to be on the most amicable terms, spent the night in a hut, or out-house, about 20 yards distant from Mr. Peel's residence. In the night, about one o'clock, witness was awakened by a loud scream, and going to the door, he saw Dy-ung running from the hut, mortally wounded by a spear which had been driven through his chest. Dy-ung out that We-war had speared him as he lay asleep. We-war was not to be found; he had run away. Dy-ung died of the wound in about three hours afterwards.

Cross-examined by Mr. Landor. - Does not understand the native language. Stansmore corroborated the testimony of the first witness.

This was the case for the prosecution.

Mr. Landor could not enter into the defence of the prisoner without making a few observations upon the address of his learned friend the Advocate-General. They had been told there could be no laws among uncivilised nations; a position he must venture to contradict, as the jury were well aware that laws did exist among these natives, however informal and inartificial. But they were such as the natives were bound to recognise and obey. They had been entreated not to be led away by cant - an entreaty perfectly superfluous in this case. But he must also remind them that they were not to be led away by arguments of expediency. It was the first time he had ever heard a lawyer employ such an argument in a court of law and justice.

Mr. Landor then proceeded to comment on the case, and delivered a long and eloquent address, of which we extremely regret, that our limits, will not allow us to give more than an outline. Among other arguments, he observed that the spirit of the British Criminal law is not that of vengeance but of mercy. The spirit of that law is not so much to punish criminals as to deter crime. Now let me ask whether in that spirit it can operate here. Among these poor savages, by whom our laws are neither recognized nor known can they be supposed to operate in any degree as deterring men from crime? And if they do not so operate, what are they but laws of vengeance and of blood - laws which may entitle the savage with a painful mockery, to reproach the christian. Such laws are not calculated to deter men from crime, until they shall be taught their value; for we must recollect that these savages have already laws of their own, which they are bound by imperious custom to obey. No man, we know, can serve two masters; how is it possible that he should obey two laws, diametrically opposite? The laws of his country, and his forefathers, of his religion, requires the death of some one of a certain number of individuals, also subject to the same laws, utterly ignorance or heedless of any legal enactments of ours he proceeds to fulfil the laws of his own country, and executestheir vengeance, not his own, upon the doomed individual. It is not that he entertains any malice against the victim; but there is a duty, a law which he is required to perform and satisfy. It may be fairly considered that he is only the executioner of the law, and no more a murderer than one who justifiably by our own laws puts a condemned malefactor to death. Although it may seem shocking that by the barbarous customs of this land an innocent man may be slain, still the only means to punish such horrors, must be found in the gradual enlightenment of the natives, through the aid of the Christian religion. They who consider the tenacity with which the human mind clings to received laws and customs, and the prejudices of early years, must be conscious, that though he went to hang one half of the native population, for obeying their own laws, the remainder would still go on in the same practices, until all were exterminated, or confined to the Elysium of Rottnest.

In the present case the prisoner is brought here because he has killed another native in the employment of the British. The prisoner had an adopted son, who was slain by a relation of the man he killed. The death of this adopted son may be considered a murder, which required to be avenged by the laws of the land.  And how do those laws provide for such vengeance? Not by summoning the party accused before a jury, and hanging him on the warrant of a Judge, No! they require that the nearest relation of the party slain, shall hasten to appease the manes of the dead, by sacrificing in turn either the murderer, or one of his kinsfolk. The prisoner obeys the exactions of his country's law; he meets with the required victim; he does that which the law demands at his hands and kills him. The pretence which had been set up that he killed his man treacherously, was nothing to the purpose. Treachery is considered the best proof of skill by savages. Ignorance is always cowardly. But in point of fact, murder is not palliated by courage, nor, in the eye of the law, can it be deepened by treachery.

To constitute the crime of murder, under our law, it must be shewn that "malice afore thought" existed in the breast of the murderer. Now it was clear that the prisoner had no personal enmity or ill feeling against the man killed. Had he slain the actual murderer of his adopted son, it might be contended that such malice really existed. But had he met with any other relation of the murderer he would have slain him, and the party actually killed would have escaped. What the prisoner did, was an act sanctioned and required by his country's laws, and to say that he acted with a "malicious intent" would be just as unreasonable as to say that any executioner in England so acts. Mr. Landor, after some further observations, wound up his defence by an eloquent appeal to the jury on behalf of the prisoner, who not feeling that he had committed any crime, could not be made to understand why he should be liable to any punishment. The habits of these natives were but as the instincts of brates; they knew not the difference between a right and wrong, and it filled him with consternation and horror that one of them should be liable to receive sentence of death, when guiltless of crime against any law with which he was acquainted. He felt re-assured however, when he reflected that the novel severity of the English law could not be enforced without their sanction, and he looked with confidence to the jury who were alive to the rights of nature and the dictates of humanity. Mr. Landor observed to the jury that they, as Englishmen, had other enjoyments which compensated in civilised life, for the restraint upon personal freedom, but the natives had none such, - it was their personal freedom alone that formed their enjoyment, the loss of which was as the loss of the atmosphere of day; and he made a passionate appeal to their feelings and sympathy against the pronouncement of that sentence which he stood there to avert. It was not solely on the grounds of mere reason and humanity, that he made this appeal; he had explained to them how he considered tat the prisoner could not legally be found guilty on the indictment preferred against him, and upon this point therefore he relied with confidence for a verdict.

The Chairman, in summing up, observed that the provinces of the Court and of the Jury were distinct; the former decided upon the law, the latter had only to consider of the facts of the case. The Court had already decided that the prisoner was within its jurisdiction, and therefore the jury must not be misled by the arguments of the gentleman who had with so much zeal and ability conducted the defence of the prisoner. With regard to the plea that malice aforethought could not be proved against the prisoner, he must remind the jury that a man who kills another by mistake, instead of the victim he had designed to murder, is no less guilty of murder on that account. He should merely read over the evidence, and leave it to the jury to say whether the offence with which the prisoner was charged had really been committed by him, and whether or not with malice aforethought.

The Jury retired, and after a short deliberation returned with a verdict of guilty. Sentence of death was then passed upon the prisoner, but the punishment will be commuted into transportation for life to the Island of Rottnest.


[1]  Thanks to Anne Hunter for providing the copy from which this was typed.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School