Let Us Suppose That In An Attempt To Maltreat The Native, The European Should Be Wounded Or Injured By Him, And That The European Has The Native Brought Up And Tried For A Murderous Attack Upon Him, How Would It Fare With The Poor Native?

The oath of the white man would overpower any exculpatory unsworn testimony that the native could bring, and his conviction and punishment would be (as they have been before) certain and severe.

Without attempting to assign a degree of credence to the testimony of a native beyond what it deserves, I will leave it to those who are acquainted with Colonies, and the value of an oath among the generality of storekeepers and shepherds, to say how far their SWORN evidence is, in a moral point of view, more to be depended upon than the unsworn parole of the native. I would ask too, how often it occurs that injuries upon the Aborigines are committed by Europeans in the presence of those competent to give a CONVICTING TESTIMONY, (unless where all, being equally guilty, are for their own sakes mutually averse to let the truth be known)? or how often even such aggressions take place under circumstances which admit of circumstantial evidence being obtained to corroborate native testimony?

Neither is it in the giving of evidence alone, that the native stands at a disadvantage as compared with a white man. His case, whether as prosecutor or defendant, is tried before a jury of another nation whose interests are opposed to his, and whose prejudices are often very strong against him.

I cannot illustrate the position in which he is placed, more forcibly, than by quoting Captain Grey's remarks, vol. ii. p. 381, where he says: -

"It must also be borne in mind, that the natives are not tried by a jury of their peers, but by a jury having interests directly opposed to their own, and who can scarcely avoid being in some degree prejudiced against native offenders."

The opinion of Judge Willis upon this point may be gathered from the following extract, from an address to a native of New South Wales, when passing sentence of death upon him: -

"The principle upon which this court has acted in the embarrassing collisions which have too frequently arisen between the Aborigines and the white Europeans, has been one of reciprocity and mutual protection. On the one hand, the white man when detected (WHICH I FEAR SELDOM HAPPENS), has been justly visited with the rigour of the law, for aggressions on the helpless savages; and, on the other, the latter has been accountable for outrages upon his white brethren. As between the Aborigines themselves, the court has never interfered, for obvious reasons. Doubtless, in applying the law of a civilized nation to the condition of a wild savage, innumerable difficulties must occur. The distance in the scale of humanity between the wandering, houseless man of the woods, and the civilized European, is immeasurable! FOR PROTECTION, AND FOR RESPONSIBILITY IN HIS RELATION TO THE WHITE MAN THE BLACK IS REGARDED AS A BRITISH SUBJECT. In theory, this sounds just and reasonable; but in practice, how incongruous becomes its application! As a British subject, he is presumed to know the laws, for the infraction of which he is held accountable, and yet he is shut out from the advantage of its protection when brought to the test of responsibility. As a British subject, he is entitled to be tried by his PEERS. Who are the peers of the black man? Are those, of whose laws, customs, language, and religion, he is wholly ignorant - nay, whose very complexion is at variance with his own - HIS peers? He is tried in his native land by a race new to him, and by laws of which he knows nothing. Had you, unhappy man! had the good fortune to be born a Frenchman, or had been a native of any other country but your own, the law of England would have allowed you to demand a trial by half foreigners and half Englishmen. But, by your lot being the lowest, as is assumed, in the scale of humanity, you are inevitably placed on a footing of fearful odds, when brought into the sacred temple of British justice. Without a jury of your own countrymen - without the power of making adequate defence, by speech or witness - you are to stand the pressure of every thing that can be alleged against you, and your only chance of escape is, not the strength of your own, but the weakness of your adversary's case. Surrounded as your trial was with difficulties, everything, I believe, was done that could be done to place your case in a proper light before the jury. They have come to a conclusion satisfactory, no doubt, to their consciences. Whatever might be the disadvantages under which you laboured, they were convinced, as I am, that you destroyed the life of Dillon; and as there was nothing proved to rebut the presumption, of English law, arising from the fact of homicide being committed by you, they were constrained to find you guilty of murder. There may have been circumstances, if they could have been proved, which would have given a different complexion to the case from that of the dying declaration of the deceased, communicated to the Court through the frail memory of two witnesses, who varied in their relation of his account of the transaction. This declaration, so taken, was to be regarded as if taken on oath, face to face with your accuser; and, although you had not the opportunity of being present at it, and of cross-examining the dying man, yet by law it was receivable against you."

In vol. ii. p 380, Captain Grey says: -

"I have been a personal witness to a case in which a native was most undeservedly punished, from the circumstance of the natives, who were the only persons who could speak as to certain exculpatory facts, not being permitted to give their evidence."

Under the law lately passed in South Australia, the evidence of natives would be receivable in a case of this kind, in palliation of the offence. Although it is more than questionable how far such evidence would weigh against the white man's oath; but for the purpose of obtaining redress for a wrong, or of punishing the cruelty, or the atrocity of the European [Note 115 at end of para.], no amount of native evidence would be of the least avail.

Enter page number Go  Previous Next
Page 242 of 247
Words from 248839 to 249928 of 254601