William Westbrooke Burton

Introduction

In an interview with Sydney radio personality John laws in October 1996, then Prime Minister John Howard observed that “… the emphasis should not be on past wrongs but on present disadvantage.”

Professor Henry Reynolds responded by accusing the Prime Minister of attempting to censor history: “… we have to face the reality of our past to say as he does that Australia does not have a racist past suggests to me that John Howard does not know his history.”[1]

This exchange is informative on a number of levels; it put the theme of black armband history firmly on the political agenda again and confirmed that Aboriginal people were irrelevant when it came to discussing Aboriginal history. All participants in the exchange were Australians of European extraction. My aim in this paper is to redress this imbalance in a small way, to look at a discrete yet important period in Australian colonial history from the perspective of an Aboriginal Australian.

My voice is that of a ‘blak’ man, a Wiradjuri, a member of the stolen generation(s), who as a result of Australia’s racist past is a marginalised member of a society in which I can never achieve a full ‘franchise’ because of my ‘blakness.’[2]

The focal point of this paper will be Judge William Westbrooke Burton, man of empire, radical Protestant and tamer of savages. In the final analysis, Burton was the harbinger of change to the Colony of New South Wales, change that left Australian Aborigines with no sovereignty, no jurisdiction, no law and lore.

By the time Burton left for Madras in 1844 Indigenous Australians had become a category of person’s sui generis, living under the King’s protection within the King’s peace but with no legal autonomy, no custodianship over their land and no capacity to provide sworn evidence in court against whites who committed crimes against them. The consequences of Burton’s influence was far reaching, the reverberations felt to this day.

What is History?

The significance of black armband history and the almost complete absence of Aborigines from the political and academic debate in the 220 years since the European invasion began raises passions^[3].

Eric Wolf [4] argued that, “… one of the most important ways in which a society can ideologically justify itself, or a class within that society, is through the writing of history.” This concept has its roots in the very beginning of the western literary tradition.

Thucydides, the historian’s historian, wrote in the 5^th century BCE that, “The absence of romance in my history will, I fear, detract somewhat from its interest; but if it be judged useful by those inquirers who desire an exact knowledge of the past as an aid to the understanding of the future, which in the course of human things must resemble if it does not reflect it… I have written my work, not as an essay which is to win the applause of the moment, but as a possession for all time” (Thucydides1.22.4).

Though written almost 2,500 years ago, Thucydides words are a truism. Fundamentally history is about how a society relates to its own past, indeed how it judges its past in terms of the present.

While history is open for all to interpret, denying a people a right to interpret their own history, openly and fairly, is paternalism verging on cultural genocide.

Burton and Whiggish History

In the hallowed halls of academe famous is the expression Whiggish history, referring to the nineteenth century British school of historiography. True to its Protestant roots it viewed history as a form of evolutionary development leading to the final pinnacle of human achievement – Victorian England.

I suspect that the inventors of the Whiggish school of history used Robinson Crusoe as their template, an expression of the ideals to which Protestantism aspires. Crusoe’s impact on Protestant imperialism, racism and therefore Burton cannot be overstated. Crusoe is the Protestant paradigm; at ease with his god, isolated from the world, with no need of a conscience, as god and he are as one on all issues.

For Crusoe, as for Burton and all Protestants, there are no alternatives, no strange gods. A jury of peers, a dozen mirrors reflecting one’s self. Crusoe is Protestantism’s Joseph. His God trumps all other gods, Judge W.W. Burton his obedient acolyte.

When Crusoe named Friday, language and culture collided spawning a new language of racism. Man Friday became Protestantism’s second paradigm that of the ethnic, but not quite boon companion to the white macho hero. The ethnic companion will never get to share the rewards of his Protestant ?better’.

Man Friday-esque racism, which seeks to strip identity by denying individual status, was masterfully used in Australia where the 500 separate cultures inhabiting the continent on 25 January, 1788 were grouped together using the racial stereotype ‘Aborigine’. No room for individual identity there.

The Crusoe paradigm in Protestant ideology reached its apogee in the Protestant belief that the colonized, not being endowed with the same economic reasoning capacities as Protestants, were unable to “improve”, justifying the Protestant theft of their land. To be able to maintain such reasoning it became necessary for Protestant ideologues from Locke onwards to argue that non-European, non-Christian peoples were incapable of the economic rationality necessary to increase productivity for the benefit of the commonweal, meaning that their mere presence on their own living space became a hindrance to the spread of civilization. Once this premise is accepted everything, including rape, murder and dispossession becomes justifiable, in the furtherance of the preordained destiny for the white, Protestant male.

Burton’s Early Life

William Westbrooke Burton was born on 31 January 1794, the fifth son of Edmond, and Elizabeth Burton. True to the position and status of his parents he attended Daventry Grammar School before entering the navy as a midshipman in 1807.

Initially posted to the Frigate Conqueror he travelled widely, seeing active service at New Orleans and Toulon where he was wounded.

Burton left the navy following the defeat of Napoleon in 1815, and entered the legal profession. He was called to the Bar at the Inner Temple in November 1824, where he served as recorder of Daventry and President of the local Court of Quarter Sessions.

In 1827 he accepted a seat on the bench of the newly constituted Supreme Court at the Cape of Good Hope as second puisne judge. Prior to taking up this position he married Margaret Smith.

Due to Cape Colony originally being settled by the Dutch and two in every three Europeans in the colony being of Dutch extraction, Burton sojourned in Holland on his way to take up his judicial appointment where he studied the Dutch language and Roman Dutch law. Proscribed reading for all Dutch lawyers of that time was Emer de Vattel’s Law of Nations, first published in 1758.

Protestant Influences

In the late Eighteenth century when Burton was a student, the English grammar school curriculum consisted of Latin, Greek, sometimes Hebrew and a good dose of Protestant Christianity.[5] These formed the prerequisites for a gentlemanly career in the clergy, the law or the military – the professional mainstays of the middle class in Georgian England.

If the curriculum of the Georgian English Grammar School was limited, the social interaction of its wards was more so. While theoretically a free Grammar school was open to all, a child’s labour had an economic value for the poor, hence children of lesser means rarely attended school. In reality, Burton’s fellow students would have been like him, the sons of England’s staunch Protestant middle class.

Wendy Wood[6],  after conducting a study on racism and religion found a strong link between religious in-group identity and derogation of racial out-groups. She concluded that races might be treated as out-groups because religion is practiced largely within race. Training in a religious in-group is crucial to identity and promotes general ethnocentrism, such that others of differing views appear to be in competition for resources. In Professor Wood’s words:

“… white people tend to practice religion with other white folks, and they tend to believe that their own religious group is morally right. This situation leads to racism.”

Georgian English Grammar Schools such as Daventry perfected the in-house identity to such a degree that their Alma Mater entered the world possessing the ultimate passe-partout, faith in their religion and destiny. Burton, Empire wide judge, and subjugator of the savage, whose judicial career took him to South Africa, New South Wales and India was no exception.

Burton was not unique in having a bureaucratic career spanning three continents. After the American war of Independence, the English Government re-organised the way it governed its empire establishing a professional class of travelling bureaucrats tasked with administering the Empire and ensuring that the laws of England were fairly dispensed to all god fearing Christians.

It was inevitable that Burton would import with him his staunch Protestant school lessons, class structure and paternalistic attitudes about ‘others’ when he set out to help govern England’s Empire.

Protestantism, Racism and Burton

Northern European Protestants were not missionaries; those Crusoe’s weren’t about spreading the ‘good’ word and converting the heathen, they were parasites living off Man Friday’s work.

In the sixteenth century Sir Thomas Moore proposed in Utopia that land could justifiably be taken from, “… any people [who] holdeth a piece of ground void and vacant to no good or profitable use.” The idea that failure to put property to “good or profitable use” was grounds for seizing it became especially popular with Protestants, who saw land as being nothing more than a vehicle for production in pursuit of the commonweal … or at least their personal gain.

The Protestant concept of land tenure received a further boost in the eighteenth century when de Vattel published his seminal text on international law, the Law of Nations. In fine Protestant tradition, de Vattel peddled a powerful synthesis of neo-Lockean legal and racist thought about the world’s indigenous people.

What philosophers such as Moore and de Vattel did was to seek a justification in the European concept of god for European imperial expansion. From this point on, the history of western Christian civilization is littered with the corpses of the ‘other’ peoples. By the time Christianity reached Australia it had an impressive track record:

having exterminated one billion heathens,
heretics, Jews, Moslems, witches,
mystical seekers,
black men, Asians, and Christian brothers,
every one of them for his own good,
a whole continent of red men
for living in community,
one billion species of animals
for being sub-human,
and ready and eager to take on…
the bloodthirsty creatures…
[of Terra Australis Incognita]
I, Christian man, groan out this testament of my last will. [7]

To this end and with intellects vast, cool and unsympathetic, Christians regarded our land with envious eyes and slowly and surely drew their plans against us.

Burton and His Historical Setting

In 1605 the Dutch made their first landfall on the Australian coast in the Gulf of Carpentaria. This was the first of a series of reconnaissance probes along the northern and western shores of the unknown continent in the first half of the seventeenth century. These culminated in the far-reaching explorations of Abel Tasman, who in 1642-3 sailed south of New Holland (now Australia) and touched on the coast of Van Diemen’s Land (Tasmania). The Dutch accounts described a land that was arid and barren with little in the way of resources, inhabited by a few primitive nomads who seemed as backward as any people in the world. These early Dutch descriptions of New Holland would prove to have far reaching legal consequences for the Indigenous people of the future Colony of New South Wales.

Those early forays by the Dutch worshippers of the dead man on a cross[8] were eventually followed by others including William Dampier, who in his 1697 publication New Voyage Round the World, included a woodblock of Dampier meeting Aboriginal Australians.

Dampier’s explorations were eventually followed up by another of his tribe, James Cook, who at 6.00 pm on 22 August 1770 – using the time sequence of his tribe – “hoisted the English coulers and in the Name of His Majesty King George the Third took possession of the whole Eastern Coast…by the name of New South Wales”.[9]

Invasion

At the time of the English Invasion in 1788 there were about 500 tribes with different languages and customs, numbering about 750,000 people living in Australia.

In Aboriginal societies, people are closely identified with their lands and the animal and plant species on them. Aboriginal philosophies do not have a deep dichotomy between ‘man’ and ‘nature’ or ‘culture’ and ‘nature’ as do European traditions. Within each clan, human and animal are bound together by common descent, mutual concern and shared destiny. These associations between human and non-human link Aboriginal people inextricably within the entire ecosystem of the lands they inhabit.

Aboriginal societies had developed a precise, although complex concept of land holding. It was and still is very different from the European concept, in which land is an individually owned private property, a commodity.

Aboriginal familial links to the land do not confer rights, but rather obligations and responsibilities. They are custodians who must care for the land and all its creatures. To the Aboriginal mind, land is not a vehicle for profit, but an extension of one’s self:

People.
They can’t listen for us.
They just listen for money.
Money.
We want goose, we want fish.
Other men want money.
Him can make million dollars,
But only last one year.
Next year him want another million.
Forever and ever him make million dollars.
Him die.
Million no good for us.
We need this earth to live because
We’ll be dead,
We’ll become earth.

(Bill Neidjie – Gagudju Man)

While Aborigines sought to live in harmony with ‘nature’, no Aboriginal societies were wholly dependent on ‘nature’, and each had developed its own strategies and technologies for increasing the carrying capacity of the land. These led to marked differences in Aboriginal lifestyle between regions. The grasslands people of the central areas such as the Kamilaraay, Wiradjuri, Ngiyampaa and Paakantji used firestick farming extensively to enhance the grass-seed crop, thereby increasing both the game that fed on the grass shoots and that which was harvested and used for later use.

To Burton and his peers, the inconvenient and apparently archaic Wiradjuri farming techniques presented nothing more than a slight bump on the road to the Protestant Promised Land.

The Aboriginal concept of land was an affront to everything Protestant Christianity stood for de Vattel argued, “Those who still pursue this idle mode of life [hunting and gathering] … [have] no reason to complain if other nations … come and take possession of a part of those lands.”

Irreconcilable Differences

The early encounters between the worshippers of the dead man on a cross and representatives of the various Aboriginal tribes attested to several important, but irreconcilable differences between the two cultures, differences that to this day have not been bridged.

In a Lockean view of the world, displacement was actually good for Aboriginal people as it introduced them to private property and commerce, to Christianity and law. Their losses would be more than compensated for by the enhanced value of their labour and any remnants of their land they laboured on.

Messer’s Dampier, Cook, et al were clearly wrong in their initial assessments of Aborigines being primitive and undeveloped. The various Aboriginal tribes had long established social structures regulating social interaction as well as the way the various clans and tribes interacted with each other.

Secondly and more problematically for future interactions between Aborigines and the worshippers of the dead man on a cross, both had very different concepts of land and country.

One of the keys to understanding Aboriginal culture is to recognise that Aborigines live on two inter-related planes – one physical the other metaphysical, where the past, present and future are current and interact. The land and everything on it was laid out during the Dreaming and the Dreaming became law.

Law never change,
Always stay same.
Maybe it hard,
But proper one for all people
Not like white European law,
Always changing.
If you don’t like it,
You can change.
Aboriginal law never change.
Old people tell us,
‘You got to keep it.’
It always stays.

The words part of Uncle Bill Neidjie’s story, resonate with all Aboriginal people. The land and the law are immutable; man cannot change what the gods have ordained. To the worshippers of the dead man on a cross, land had become nothing more than a vehicle to be exploited for production, cleared, mined, fenced and owned all in the name of progress for the commonweal. These differences set the stage for Burton, dispossession and the legitimacy for genocide.

The Man of Empire Arrives

From 1832 a new imperial orthodoxy crept into the Colony of New South Wales with the arrival of William Burton. Trained at the Temple Bar, a career man of empire, he brought to New South Wales the experience he gained in dealing with ‘savages’ as a puisne judge in Cape Colony. In 1844 he left Sydney for Madras where he again served as a judge.

The scope and breadth of the English Empire, as it then was known, offered men like Burton the chance to travel the world while at the same time providing England with a steady stream of well educated functionaries capable of administering her empire.

With this movement of people also came a movement of ideas. Ideas that were to prove useful in building an empire while simultaneously stripping large numbers of indigenous peoples world wide of their sovereign rights.

Significantly for the development of Aboriginal settler relations in New South Wales and consequently the rest of Australia, Burton’s brief tenure in Cape Colony coincided with momentous legal change there. Not least of the legal issues arising during Burton’s time at the cape was the fierce local debate about the status of African labour. Britain had outlawed the slave trade with the Slave Trade Act of 1807; this was followed by the establishment of the first Anti-Slavery Society in England in 1823. From that time on there was agitation within England to free all slaves within the Empire. Ultimately, the English Parliament passed the Slavery Abolition Act in 1833.

The anti-slavery movement gained momentum, reaching Cape Colony during Burton’s tenure. This led the Liberal metropolitan reformers in Cape Colony to demand the liberation of the African slaves and their protection against the Dutch settlers. The Dutch settlers, opposed to any change in status of the Hottentots, argued that African incapacity, nomadic habits, and absence of legal rights rendered them incapable of managing their own affairs.

In 1828, in response to the competing demands of the Dutch settlers and the reformers, Burton drafted “…ordinance 50 for the improvement of ‘the conditions of the Hottentots and other Free Persons of Colour’ and giving them civil and political equity with the settlers.” Indigenous rights in Burton’s frame of reference were best protected by colonial jurisdiction.[10]

Burton’s experience in drafting Ordinance 50 was to have far reaching consequence for the future development of Aboriginal-settler relations in New South Wales. In 1836, he would preside over the Murrell decision, declaring that Australian Aborigines had no sovereignty, no jurisdiction and no law.

Burton and the Law in New South Wales 1829 to 1842

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

(W.H. Auden – Law Like Love)

While only in Australia as a judge for12 years, Burton left a legacy whose ramifications are felt to this day. Judicial opinion recognised Aboriginal laws and customs prior to Burton’s arrival in the colony of New South Wales. Australian Aborigines were at liberty to practice their customs and enforce their own laws provided that they did not encroach into the settled areas. By the time Burton left for Madras in 1844, he had presided over the total subjugation of Aborigines to the will of the English invaders … all in the name of his god, naturally.

Prior to Burton’s arrival in New South Wales, the Supreme Court was asked to decide whether a crime, in this case murder, involving only Aboriginals was within the purview  of the court. In the case an Aboriginal man named Bollard was accused of murdering another Aboriginal man by the name of Dirty Dick in an inter-tribal battle fought in the Domain, part of the settlement of Sydney.

In R v Bollard the Supreme Court held that Aborigines were entitled to their own laws, without interference by English law and until Aborigines consent, either actually or by implication to the interposition of English laws in the administration of justice for acts committed by themselves upon themselves, there was no reason justifying interference with their institutions. This decision was consistent with the writings of de Vattel on the rights of nomadic peoples. [11]

This is where matters stood until December 1835 when Jack Congo Murrell and George Bummaree, both Aborigines, killed two other Aborigines in an inter-tribal dispute on the public road between Richmond and Windsor, within settled territory. For the first time since 1829, the attorney-general resolved to bring an inter-tribal dispute before the Supreme Court which, with some reluctance, agreed to hear it.

For the attorney-general, Court and Colony this was to be the final contest over the nature and extent of settler law. By the end of the trial, Burton, using his knowledge of savage subordination, perfected in drafting Ordinance 50 in Cape Colony, left Aboriginal Australians with no sovereignty, no jurisdiction and no law.

In keeping with his Protestant bigotry, he used a new logic of territoriality, based on distinctions between various levels of savagery and race, to sweep aside the Ballard decision. Using passages in de Vattel, Burton gave judicial sanction to a reality that already existed between settlers and Aborigines twisting international law to suit:

“[T]he various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.”

In a nutshell, Burton said that because the Aborigines were not cultivating the land and lacked laws and customs worthy of European notice, the English were entitled to settle in New South Wales and in so settling brought the entire territory of New South Wales within their jurisdiction. Burton’s decision in R v Murrell became the first clear judicial pronouncement of the concept that eventually became known as terra nullius. Ironically, an inter-tribal dispute placed before the settler court for adjudication resulted in the judicial death of Aboriginal people in Australia.

Justice John W Willis in R v Bonjon heard at Port Phillip in 1841, tried to reinstate the law as had been decided in Bollard’s case in 1829, but by then the tide of judicial opinion had well and truly turned. The idea of shared sovereignty was dead, Willis was overruled, and the deaths of 600,000 Aborigines proceeding and succeeding Burton’s brief judicial tenure in the Colony were legitimised.

Burton, Batman, a Treaty and a Bill – a denial of history, a denial of rights

When John Batman – one of the pioneers in the founding of Victoria – first settled at Port Phillip, he made an attempt to buy the land from the Aboriginal people through a treaty. New South Wales Governor Sir Richard Bourke, effectively quashed the treaty with a Proclamation issued by the Colonial Office, sent to the Governor with Dispatch 99 of 10 October 1835. Its publication in the Colony meant that from then, all people found occupying land without the authority of the government would be considered illegal trespassers.

The Proclamation of Governor Bourke implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no one prior to the British Crown claiming possession. Aboriginal people therefore could not sell or assign the land, nor could an individual person acquire it, other than through distribution by the Crown.

In the same way that the Proclamation of Governor Bourke stripped Aboriginal people of their rights in their land, Burton’s decision in Murrell stripped Aboriginal people of their rights in law. The final part of this unholy trinity came in October 1839 when Governor Gipps sent a copy of his proposed Aborigines Evidence Bill to the Colonial Office in London which referred the matter to the British Attorney and Solicitors General. A year later the new head of the Colonial Office, Lord John Russell, wrote to Gipps stating that the Act had been ‘disallowed’ on legal advice because:

To admit in a Criminal case the evidence of a witness acknowledged to be ignorant of the existence of a God or a future state would be contrary to the principles of British jurisprudence.[12]

As part of its decision making process the Colonial Office had been in communication with Judge Burton. Burton informed the Colonial Office that the local judiciary could ignore Aboriginal evidence in two instances:

First, where it has been impossible to communicate with a proposed witness on account of his ignorance of the English language and when no interpreter could be found to interpret between him and the court; and, secondly, where a proposed witness has been found to be ignorant of a Supreme Being and a future state.[13]

The Implications of the Unholy Trinity

The combined effect of Burton’s decision in Murrell, his advice to the Colonial Office on Governor Gipps proposed Aborigines Evidence Bill and his input into the Proclamation of Governor Bourke was that the Aborigines of New South Wales were systematically stripped first of their rights in their land, then of their rights in their law and finally of any protections they might have been afforded under English law.

Remembering that most crimes committed against Aborigines by white people occurred on the frontiers, the only likely witnesses were other Aboriginal people. If the only available witnesses to crimes were legislatively barred from providing evidence in court, prosecution of the perpetrators becomes near impossible. Apart from the perpetrators of the Myall Creek Massacre no white settlers were effectively tried for crimes committed against Aborigines. The Colonial authorities in Sydney and Melbourne were given legal sanction to impose the will of England on the Aboriginal people of Australia. What followed is a history of theft, murder and genocide.

Burtons legacy, 160 years on

“Though lies move fast,
Truth catches up at last.”

Old Dutch proverb.

Mr. Anand Grover UN Special Raporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health findings on Australia’s treatment of its Indigenous peoples, (4 December 2009):

“Indigenous populations are also vastly overrepresented in the prison population… Basic needs, such as adequate housing, safe drinking water and sanitation and access to education are not being met. Unresolved issue surrounding native titles and land rights continue to have a detrimental impact. Communities are not benefitting from the equal access to primary healthcare facilities which are at times inaccessible or inappropriate…Decades of neglect, racism and discrimination have stigmatized and disempowered these populations, impeding equal access to basic services, leaving them on the margins of the Australian society.”

One hundred and sixty years on from the Murrell decision, the very people that Burton stripped of their rights in order to offer them the protection of the English, Protestant legal system are still the most disadvantaged people in Australia. The thin veneer of pretext used by Burton to rob Australia’s Aborigines of everything, including their very lives, is wearing very thin indeed.

We can now safely add the natives of Terra Australis Incognita to Galway Kinnell’s lament for the victims of Christian aggression.

BIBLIOGRAPHY

Primary Sources

Auden, W. H, Law Like Love http://www.poemhunter.com/poem/law-like-love

Historical records of Australia. Series 1, vol. XX

Kinnell, G (1973) The Book of Nightmares, Mariner Books

Neidjie, B. (2002), Gagudju Man. JB Books Australia

Thucydides. The History of the Peloponnesian War (translated by Rusten. J. S. (2009)) Oxford University Press

Vattel de, E. (1758) Law of Nations or Principles of Natural Law, (translated by Joseph Chitty (1838))

Secondary Sources

Ellison, K. “Trimestrial Potpourri, Notes and Comments,” South African Law Journal 98 (1992): 557 – 564

Ford, L. (2010) Settler Sovereignty, Harvard University Press

Goodall, H. (2008) Invasion to Embassy, Sydney University Press

Wolf, E. (1982) Europe and the People Without History Berkeley

On-line Sources

Schools of Old England (1907), first viewed on 28 June, 2010 at http://www.oldandsold.com/articles24/school-management-21.shtml

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[1] Sydney Morning Herald, 25-26 October 1996, also Weekend Australian, 26-27 October 1996

[2] The term ’blak‘, in the Australian context, was devised by artist Destiny Deacon in defiance of the inexorable power of the English language. It expresses our right to state who and what we are, to self-identify, not as solely Aboriginal, Torres Strait Islander or Indigenous, although we are some or all of those things.

[3] In more recent years Indigenous historians such as Professor Marcia Langton have started adding their voice to the debate.

Eriic Wolf held the joint positions of Professor of Anthropology at Lehman College and the CUNY Graduate Center. During his career he focused on issues of power, politics and colonialism.

[5] Schools of Old England (1907), first viewed on 28 June, 2010 at http://www.oldandsold.com/articles24/school-management-21.shtml.

[6] Wendy Wood is Provost Professor of Psychology and Business at the University of Southern California

[7] While the verse comes from The Dead Shall Be Raised Incorruptible – Galway Kinnell, it speaks of a truth, the truth of how Christianity treats those it considers different and then justifies its bigotry by resorting to ‘the word of god’ as record in its sacred books.

[8] Wiradjuri oral traditions recall early encounters with new arrivals that, contrary to all concepts of Wiradjuri spirituality, appeared to worship a dead man on a cross.

[9] Emer de Vattel, an influential jurist of the 18^th Century, wrote in his Opus Magnus, Law of Nations, that, “When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation”. This appears to be the basis underlying Cook’s Claim to New Holland.

^[10] Kahn Ellison has written extensively on the impact of Ordinance 50 on the Hottentots and their continued virtual enslavement to the Dutch settlers of the Cape. See for example her article, “Trimestrial Potpourri, Notes and Comments,” South African Law Journal 98 (1992): 557 – 564.

[11] Vattel’s views on nomadic peoples are found at book 1 chapter 18, Law of Nations.

[12] (Campbell and Thomas Wilde to Lord John Russell, 27 July 1840Historical records of Australia., p. 756) The colonial law officers upheld a ‘strict application’ of British law at this time.

[13] A ‘future state’ is most likely a reference to life after death. WW Burton to Henry Labouchere, 17 August 1839, in ibid., p. 759; Historical records of Australia. Series 1, vol. XX, pp. 302-5